Conviction for murder of a 10-year-old boy based on circumstantial evidence, including last-seen-together and failure to explain under Section 106 Evidence Act. High Court affirmed conviction and dismissed appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 444 of 201 7
(Arising out of judgment dated 16.01.2017 passed in Sessions Trial No. 89/2016 by the learned Sessions Judge, Janjgir-Champa)
Loknath S/o Amritlal Tandon, Aged About 27 Years R/o Junadih Jhimili, Police Station Pamgarh, Civil And Revenue District Janjgir Champa, Chhattisgarh.
---Appellant
Versus
State Of Chhattisgarh Through Station House Officer, Police Station Pamgarh, District Janjgir Champa, Chhattisgarh.
---Respondent
| For Appellant For State-Respondent |
:- Ms. :- Mr. |
Seema Singh , Advocate S. S. Baghel, Dy. G.A. |
|---|
Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment on Board
(06.02.2024 )
Sanjay K. Agrawal, J.
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sentence dated 16.01.2017, passed by learned Sessions Judge, Janjgir-Champa (C.G.) in Sessions Trial No.89/2016, whereby the appellant has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs.100/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for five days.
2. The case of the prosecution, in short, is that on 26.02.2016 in the evening, in village Borsi, Police Station Pamgarh, District – Janjgir-Champa, the appellant is alleged to have strangulated Sahil Tandon who was aged around 10 years to death, thereby committed the offence of murder punishable under Section 302 of IPC. It is the case of prosecution that on 26.02.2016 at about 7.30 p.m. Prakash Ratre (PW-2) along with Kotwar Dhandas Manikpur and Sakharam Tandon made an oral information to Police Station, Pamgarh stating that in the evening of 26.02.2016 he was sitting outside the shop of Sakharam Tandaon. At that time, the appellant was taking his nephew Sahil Tandon (deceased) on his motorcycle towards Bandhiya pond
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of the village. After sometime, there was an uproar in the village that Sahil Tandon was murdered and his body was thrown in the Bandiya pond of the village. When they went near Bandhiya pond, saw the dead body of Sahil lying there and a towel was wrapped around his neck. Prakash Ratre (PW-2) had also verbally stated to the police that the appellant used to doubt the character of his wife due to which he committed the murder of Sahil by strangulating and hitting with lump of mud on his face. Based on the oral information of Prakash Ratre (PW-2), Merg Intimation (Ex. P-3) and FIR (Ex. P-4) were registered. Spot map was prepared vide Ex.P-1. Inquest was conducted vide Ex.P/11 and the dead body was sent for postmortem examination which was conducted by Dr. R. Dahire (PW-12) vide Ex. P/12 in which the cause of death is opined to be asphyxia shock and death due to antemortem strangulation along with antemortem head injuries and the nature of death was homicidal. Memorandum statement of the appellant was recorded vide Ex. P/5, pursuant to which, full pant and full shirt were seized vide Ex.P/7. In addition, half T-shirt, half pant &
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underwear of the deceased and one towel (Gamchha) were also seized. All the seized articles were sent for chemical examination to the FSL and as per FSL report (Ex. P/21A) human blood was found on D1, D2 & D4 which are half shirt, pant and Gamchha. After due investigation, the appellant was charge - sheeted for the aforesaid offence before the jurisdictional criminal court and the case was ultimately committed to the Sessions Court, JanjgirChampa for trial and its disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.
3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses and exhibited 27 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellant-accused in support of his defence has
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examined one witness but no document has been exhibited.
4. After conclusion of the trial, the trial Court, on appreciation of the oral and documentary evidence available on record, convicted the appellant for the offence punishable under Section 302 of I.P.C. and sentenced him as mentioned above in the opening para of this judgment against which the present appeal has been preferred by the appellant.
5. Learned counsel for the appellant, submits that the theory of last seen together has not been established beyond reasonable doubt and on the basis of last seen together, the appellant cannot be convicted as it requires corroboration. He would further submit that the appellant was suffering from insanity and therefore, he is entitled for the protection under Section 84 of the IPC. As such, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal.
6. Learned State counsel supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable
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doubt, and the conviction of the appellant for the offence under Section 302 of I.P.C. is well merited, as such, the appeal deserves to be dismissed.
7. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and gone through the records with utmost circumspection.
8. The trial Court has convicted the appellant by finding five circumstantial evidence against the appellant recorded in para-18 of the impugned judgment which are as under:
9. In the instant case, there is no direct evidence available on record and the case of prosecution is solely based on circumstantial evidence. The five golden principles which constitute the Panchsheel of
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the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads as under: -
“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra2 where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
1(1984) 4 SCC 116
2(1973) 2 SCC 793
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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
10. Now we consider the circumstances recorded by the trial Court in the light of the principles of law laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra). The first and foremost circumstance for consideration is as to whether the death of deceased Sahil Tandon was homicidal in nature?
11. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex. P-12 proved by Dr. R. Dahire (PW-12) that the death of the deceased was homicidal in nature,
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which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.
12. The 2nd 3rd & 4th circumstances are that the appellant and the deceased were last seen together on 26.02.2016 at about 4 p.m. by Prakash Ratre (PW-2) and Ganpat Ram (PW-7) and within one hour thereafter Sahil Tandon was found dead in the pond and in this regard the appellant has not given any explanation in his statement under 313 CrPC.
13. A careful consideration of the statement of Prakash Ratre (PW-2) would show that on the date of offence, in the evening, he was sitting in the shop of Makram Tandon (PW-3) whose son was Sahil (the deceased). At about 4 p.m. Sahil came to home from the school. At that time, the appellant came to the house of deceased and took him on his motorcycle towards the pond. After sometime, at about 5-6 p.m. Sahil Tandon was found dead near the pond. The grandfather of the deceased Ganpatram (PW-7), corroborating the statement of Prakash Ratre (PW-2), has clearly stated that on the date of offence, in the
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evening, when the deceased came to home from his school, the appellant came on a motorcycle and took Sahil on his motorcycle by saying that he was going towards the field. However, half an hour later, Sahil was found dead near the village pond and a towel was wrapped around his neck. When the appellant was put to question as to how and where he parted the company of the minor child Sahil, he has not given any explanation in this regard in his statement made under secion 313 CrPC. The trial Court has also considered, in para 24 & 32 of its judgment, that the time gap between the last seen together of the appellant and the deceased and the recovery of dead body was so short a period i.e. within an hour, that possibility of any person other than the appellant being the perpetrator of the crime becomes impossible. Furthermore, as per FSL report (Ex. P/21A) human blood was found on D1, D2 & D4 which are half shirt, pant and Gamchha seized from the appellant and spot. Thus, the theory of last seen together has clearly been established by the prosecution.
14. The Supreme Court in the matter of Sucha Singh vs.
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State of Punjab3 while dealing with a case where two persons were taken away by armed assailants from their house at night and their dead bodies, studded with gunshot injuries, were found next morning lying near their house and the abductors did not explain and furnish any information, which was within their exclusive knowledge as to what happened to the deceased therein after they were abducted, it was held that presumption can be drawn and the abductors were responsible for murder of the deceased therein and observed in Para-15, 18, 19 & 20 as under:
“15. The abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased.
“33. Presumption of fact is an inference as to the
3(2001) 4 SCC 375
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existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”
15. Very recently, the Supreme Court in the matter of Ram
Gopal V. State of Madhya Pradesh, (2023) 5 SCC 534, by
relying upon its earlier decisions in the matter of Rajender vs.
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State (NCT of Delhi)4 and Satpal vs. State of Haryana5 held that in a case based on circumstantial evidence furnishing or non-furnishing of explanation by accused would be very crucial fact and theory of last seen together as propounded by the prosecution has to be proved against him and observed in Para-06 & 9 as under:
“6. It may be noted that once the theory of “last seen together” was established by the prosecution, the accused was expected to offer some explanation as to when and under what circumstances he had parted the company of the deceased. It is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. Of course, Section 106 is certainly not intended to relieve the prosecution of its duty to prove the guilt of the accused, nonetheless it is also equally settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, in view of Section 106 of the Evidence Act, such failure on the part of the accused may be used against the accused as it may provide an additional link in the chain of circumstances required to be proved against him. In the case based on circumstantial evidence, furnishing or non- furnishing of the explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution was proved against him.
- (2018) 6 SCC 610
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does owe an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence.”
16. Reverting to the facts of the present case, in the light
of the aforesaid proposition of law laid down by their Lordships of the Supreme Court, it is quite vivid that the death of the deceased as has already been held is homicidal in nature. Admittedly and un-disputedly, as per the statement of Prakash Ratre (PW-2) and Ganpatram (PW-7) it is clearly established beyond doubt that on the date of offence, at about 4 pm, it is the appellant who had taken the deceased on his motorcycle towards the pond and thereafter, within an hour, his dead body was found near the pond. Therefore, the appellant could have clearly and easily informed/explained before the Court as to what transpired or what happened to the deceased after he was taken along with him, which the appellant failed to do so in his statement recorded under Section 313 of CrPC. Therefore, in view of the decision of the Hon’ble Supreme Court in the case of Sucha Singh
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(supra) and Ramgopal (supra) it has to held that it is the appellant who has committed the murder of Sahil Tandon (the deceased), as no explanation in the statement under Section 313 of CrPC has been made by him as to what happened to the deceased or where he had gone after his company on 26.02.2016 at 4 pm. and the motive of offence the trial Court has rightly found to be established which is in our opinion correct finding of fact.
17. In that view of the matter, we are of the considered opinion that the chain of circumstances is complete and leads only to one conclusion that it was the appellant herein who committed the murder of Sahil Tandon (the deceased), as the prosecution has been able to prove the five golden principles which constitute the “Panchsheel” of proof of a case based on circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda (Supra). Hence, the trial Court is justified in convicting and sentencing the appellant for the offence punishable under Section 302 of IPC and we do not find any merit in the appeal.
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18. Thus, the present criminal appeal deserves to be and is accordingly dismissed.
Sd/Sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge
Khatai
3 issues framed by the court
Whether the conviction under Section 302 IPC based solely on circumstantial evidence, including last-seen-together theory, was sustainable.
Whether absence of explanation by accused regarding what happened to the deceased could complete the chain of circumstances.
Whether insanity defence under Section 84 IPC entitled the appellant to acquittal.
Colour shows how this judgement treated each authority
Sharad Birdhichand Sarda v. State of MaharashtraApplied¶9
(1984) 4 SCC 116 · Who else cites this
Sucha Singh vs. State of PunjabApplied¶14
(2001) 4 SCC 375 · Who else cites this
Ram Gopal V. State of Madhya PradeshApplied¶15
(2023) 5 SCC 534 · Who else cites this
Rajender vs. State (NCT of Delhi)Referred¶15
(2019) 10 SCC 623 · Who else cites this
Satpal vs. State of HaryanaReferred¶15
(2018) 6 SCC 610 · Who else cites this
4 provisions across 3 enactments
Loknath S/o Amritlal Tandon
State Of Chhattisgarh Through Station House Officer, Police Station Pamgarh
Sanjay K. Agrawal
Sanjay Kumar Jaiswal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
