Mintu Verma Vs State Of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 524 of 2017

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{Arising out of judgment dated 21-02-2017 passed in Sessions Trial No.9/2016 by the learned Additional Judge, Dongargarh to First Additional Sessions Judge, Rajnandgaon}

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Mintu Verma, S/o. Rikhiram Verma, Aged About 23 Years, R/o. Village Bichchhitola, Police Station Dongargarh, District- Rajnandgaon, Chhattisgarh.

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---Appellant

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Versus

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State Of Chhattisgarh, Through Station House Officer, Police Of Police Station Dongargarh, District- Rajnandgaon, Chhattisgarh.

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---Respondent

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(Cause Title taken from Case Information System)

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For Appellant : Mr. K. Rohan, Advocate For Respondent : Mr. Rahul Tamaskar, Govt. Advocate

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sachin Singh Rajput

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Judgment on Board (15.02.2024)

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Sanjay K. Agrawal, J.

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1 . This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 21.02.2017 passed by learned Additional Judge, Dongargarh to First Additional Sessions Judge, Rajnandgaon, in Sessions

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Trial No.9/2016, by which, the appellant herein has been convicted for offence under Sections 302, 364 & 201 of Indian Penal Code and sentenced as under with a direction to run all the sentences concurrently :

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CONVICTION	SENTENCE
U/s. 302 of IPC	: Life imprisonment and fine of Rs.2000/-, in default of payment of fine, additional rigorous imprisonment for 1 year.
U/s. 364 of IPC	: Rigorous imprisonment for 10 years and fine of Rs.1000/-, in default of payment of fine, additional rigorous imprison- ment for 1 year.
U/s. 201 of IPC	: Rigorous imprisonment for 1 year and fine of Rs.500/-, in default of payment of fine, additional rigorous imprison- ment for 1 month.

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2 . Case of the prosecution, in short, is that on 06.01.2016, at about 8:00 p.m., at village Bichchhitola, Police Station Dongargarh, the appellant herein kidnapped the minor Jitendra Verma, son of Suresh Verma (PW-4), aged about 13 years from his lawful guardianship and strangulated to death with the help of electric wire and thereafter, in order to screen himself from the legal punishment, hide the dead body into the husk stored in the courtyard of Nandu Lal

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Verma (PW-1); thereby the offence has been committed. The matter was reported to the police and thereafter, the dead body was recovered on 12.01.2016 pursuant to merg intimation lodged by Nandulal (PW-1) vide Ex.P-1 as previously the missing report has been lodged. The dead body was identified to be Jitendra Verma and inquest was conducted vide Ex.P-17 and dead body of deceased Jitendra Verma was subjected to post-mortem, which was conducted by Dr. Suchita Shrivastava (PW-10), who proved the post-mortem report Ex.P-19, according to which, cause of death was stated to be asphyxia due to strangulation and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-13, locket & footwear of deceased and electric wire were seized from the appellant vide Ex.P-14 and he was put to trial. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and 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.

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3 . In order to bring home the offence, prosecution examined as many as 16 witnesses and exhibited 30 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

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4 . The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302, 364 & 201 of I.P.C. and sentenced to undergo life imprisonment, against which the present appeal has been preferred.

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5 . Mr. K. Rohan, learned counsel for the appellant would submit that the prosecution case is based on extremely doubtful circumstantial evidence. The evidence of Manish Kumar (PW-8) regarding motive on the part of the accused/appellant and he having last seen the deceased child with the appellant is not reliable because this witness did not disclose the aforesaid incident to anyone for long time and even after having come to the know about the death of the child, he did not inform anybody regarding motive of enmity and he having last seen the child with the appellant. He further submits that recovery of locket, wire, footwear from the appellant are inconsequential

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because the identification of the same by the father of the deceased is highly doubtful as the articles are of common use. It is also submitted that various call details though collected, none of them has been found to involve the present appellant. Therefore, the appellant is entitled for acquittal on the ground of benefit of doubt and the appeal deserves to be allowed.

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6 . On the other hand, learned State counsel would submit that the conviction is founded on the evidence of Manish Kumar (PW-8) who has stated that the appellant was in inimical relation with the father of the deceased and had declared that he will teach him lesson, deceased child was last seen with the appellant and thereafter eloped and finally his dead body was found and on the memorandum of the appellant, locket, footwear of the deceased were recovered from the house of the appellant, supported by independent witnesses of memorandum and seizure and those articles were identified by the father of the deceased. He further submits that the conviction of appellant for offence under Section 302, 364 & 201 of I.P.C. is well merited as the prosecution has been able to bring home the offence beyond reasonable doubt and, as such, the appeal deserves to be dismissed.

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7 . We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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8 . The first question for consideration as to whether the death of deceased Jitendra Verma was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-19, proved by Dr. Suchita Shrivastava (PW-10), according to which, cause of death was stated to be asphyxia due to strangulation and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9 . Now, the next question is whether the appellant is the author of the crime, for which the trial Court has relied upon the incriminating circumstances that the appellant has been seen lastly along-with deceased on 06.01.2016 and dead body of deceased was recovered on 12.01.2016 in the courtyard of Nandulal (PW-1) and pursuant to memorandum statement of the appellant, locket & footwear of deceased and electric

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wire were seized from the possession of appellant, which was identified by father of deceased Suresh Verma (PW-4) vide identification memo Ex.P-10.

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10. Since the case of the prosecution is based on circumstantial evidence, the five golden principles which constitute the panchsheel of 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 Maharashtra 1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 as under: -

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“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:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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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:

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1 (1984) 4 SCC 116

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2 (1973) 2 SCC 793

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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.

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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,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(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.”

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11. We will examine first the main circumstance which has been projected by the prosecution and found proved by the trial Court that the appellant and deceased both were lastly seen on 06.01.2016, at 8:00 p.m., at village Bichchhitola in the Bhagwat program organized by the villagers, in which, according to Manish Kumar (PW-8), who was also present in the said Bhagwat program, while he along-with other villagers coming back,

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deceased & appellant both were talking together and at that time, father of deceased was not there and thereafter, he has gone to his house, but he did not particularize as to whether appellant & deceased both have went together and what happened thereafter, he did not state clearly.

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12. Now, the question for consideration would be, whether the trial Court is justified in convicting the appellant on the basis of the theory of last seen together finding it to be duly established ?

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13. In the matter of Jaharlal Das v. State of Orissa 3, the Supreme Court has noted the fact that at the stage of inquest, the important incriminating circumstance namely, the deceased was last seen in the company of the accused, was not noted and that is not there in the inquest report. Thereafter, in that view of the above fact and other evidence on record, their Lordships have held that the deceased was last seen in the company of the accused is not established beyond reasonable doubt.

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14. In the matter of Arjun Marik v. State of Bihar 4, it has been held by their Lordships of the Supreme Court that conviction cannot be made solely on the basis of theory

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3 (1991) 3 SCC 27

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4 1994 Supp (2) SCC 372

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of 'last seen together' and observed in paragraph 31 as under :-

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“31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19.7.1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to though a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.”

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15. Likewise, in the matter of State of Goa v. Sanjay

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Thakran 5, the Supreme Court has held that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was observed in paragraph 34 as under :-

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“34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the

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5 (2007) 3 SCC 755

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point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the

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place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. ”

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16. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan 6, their Lordships of the Supreme Court have clearly held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the appellant. It has been held in paragraphs 15 and 16 as under :-

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“15. The theory of last seen – the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan .

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6 (2014) 4 SCC 715

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In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise.”

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17. In the matter of Anjan Kumar Sarma v. State of Assam 7, their Lordships of the Supreme Court have clearly held that in a case where other links have been satisfactorily made out and circumstances point to guilt of accused, circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction.

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18. In the matter of Navaneethakrishnan v. State by

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Inspector of Police 8, the Supreme Court has held that though the evidence of last seen together could point to the guilt of the accused, but this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration, and observed in paragraph 22 as under:

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7 (2017) 14 SCC 359

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8 (2018) 16 SCC 161

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“22. PW-11 was able to identify all the three accused in the court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the crossexamination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW 11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration.”

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19. In the matter of State of Goa v. Sanjay Thakran and

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another 9, their Lordships of the Supreme Court found that there was considerable time gap of approximately 8½ hours when the deceased was last seen alive with 9 (2007) 3 SCC 755

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the accused persons and their Lordships held that there being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.

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20. Returning to the facts of the case, in light of the principles of law laid down by Their Lordships of the Supreme Court, it is quite vivid that Manish Kumar (PW-8) has been projected by the prosecution as a witness of last seen and found proved by the trial Court, he in his statement has clearly stated that on 06.01.2016, she was present in the Bhagwat program of village Bichchhitola organized by the villagers and while he was coming back to his house along-with other villagers, he had seen the appellant & deceased both were talking together and thereafter, he went to his house, but he did not particularize as to whether the appellant and deceased went together or they were present there and what happened thereafter, he did not state clearly. As such, it is the only statement of Manish Kumar (PW-8) that he had seen the appellant and deceased talking together, which is usual and natural that the persons gathered have usual tendency to have discussion and nothing unnatural, as has been

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stated by Manish Kumar (PW-8) and more surprisingly, the dead body was recovered on 12.01.2016, as per the merg intimation (Ex.P-1) at 12:00 p.m. from the courtyard of Nandu Lal Verma (PW-1), pursuant to which, the wheels of investigation started running. As such, the theory of last seen together is not clearly established beyond reasonable doubt and even, it is assumed that the theory of last seen together is established, considering the time gap between last seen together of appellant & deceased and recovery of dead body of deceased i.e. after a period of six days from the date of last seen together, it cannot be held that only the appellant is the author of the crime and, as such, in absence of corroboration, the conviction of appellant cannot be sustained in view of the decision of the Supreme Court in Navaneethakrishnan (supra).

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21. Now in shape of corroboration, the trial Court in para 71 of its judgment has recorded that pursuant to memorandum statement of the appellant, locket & footwear of the deceased and electric wire have been seized, which have been identified by the father of deceased Suresh Verma (PW-4). However, the locket and footwear, which have been seized are not of the unique quality, which are not easily available in the

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market and, as such, recovery of locket and footwear would not implicate the appellant for offence in question more particularly, offence under Section 302 of I.P.C. Similarly, the electric wire, which has been seized, has not been subjected to FSL examination and therefore, no human blood has been found and, as such, it is also of no use to the prosecution in light of the decision of the Supreme Court in the matter of 10 Balwan Singh v. State of Chhattisgarh .

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22. However, the trial Court has found the motive of offence proved as per the statement of Suresh Verma (PW-4), but it is well settled law that the motive of offence in criminal cases, specially in a case where it is based on circumstantial evidence, it is one of the incriminating circumstances, but conviction cannot be made only on the basis of motive itself. In that view of the matter, the trial Court is absolutely unjustified in convicting the appellant for offences in question and, as such, he is entitled for acquittal on the ground of benefit of doubt.

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23. Accordingly, the impugned judgment of conviction and order of sentence dated 21.02.2017 is set aside. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for the offence

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10 (2019) 7 SCC 781

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punishable under Sections 302, 364 & 201 of Indian Penal Code. Consequently, the appellant is directed to be released forthwith from jail, unless he is required in any other offence.

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24. In the result, the appeal is allowed.

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25. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

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Sd/Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge

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Ashok

Mintu Verma v. State Of Chhattisgarh

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Mintu Verma v. State Of Chhattisgarh

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