Harbhajan Singh Vs State Of Chhattisgarh

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NAFR

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(CRA-742-2017)

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 742 of 201 7

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(Arising out of judgment dated 13.05.2016 passed in Sessions Trial No. 56/2015 by the Sessions Judge, Baikunthpur)

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Harbhajan Singh S/o Dashrath Singh @ Naha Singh Gond (Maha Singh Gond wrongly mentioned in order sheet) aged about 28 years, R/o Village-Khutrapara, Kasra, P.S. Patna, District-Koriya, Chhattisgarh.

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, Through: Police Station – Patna, DistrictKoriya, Chhattisgarh.

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---- Respondent

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--------------------------------- For Appellant :	------------------------------------------------------ Mr. A.L. Singroul, Advocate/Panel
	Lawyer appointed by Chhattisgarh
	High Court Legal Services Committee
For Respondent-State : ----------------------------------	Mr. Rahul Tamaskar, Government Advocate. -------------------------------------------------------

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DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (08.02.2024)

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Sanjay K. Agrawal, J.

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(1) This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 13.05.2016, passed by learned Sessions Judge, Baikunthpur, DistrictKoriya (C.G.) in Sessions Trial No. 56/2015, whereby the

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appellant has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.500/- and, in default of payment of fine, to undergo additional rigorous imprisonment for three months. He has also been convicted for the offence punishable under Section 201 of IPC and sentenced to undergo rigorous imprisonment for seven years with fine of Rs.500/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for three months. Both sentences have been directed to run concurrently.

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(2) Case of the prosecution, in brief, is that during the period between 02.08.2014 to 02.05.2015, in village Kasra, Khutrapara, the appellant assaulted his aunt (badi maa), Sedambai (now deceased) by hands and fists, on account of which she suffered grievous injuries and died and further with an intention to conceal the evidence, he hid the dead body in order to screen himself from legal punishment, thereby, committed the offences under Section 302 and 201 of IPC.

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(3) Further case of the prosecution is that the deceased has only daughter, Smt. Geeta Singh (PW-1) who was residing separately with her husband after the marriage. The deceased had kept the appellant in her house to help in housework and to look after some small agricultural field. On 08.09.2014, the

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matter was reported to the police by Smt. Geeta Singh (PW-1) that her mother is missing from 02.08.2014 on which, a missing report was lodged and Rojnamcha Sanha was registered vide Exs. P/13C and P/14C. Thereafter, on 01.05.2015 Bhulsi Bai (PW-02) noticed that a human skeleton was lying in the courtyard outside the boundary wall of the house of the deceased. The matter was report to the police and Merg intimation was registered vide Ex.P/17. Inquest proceeding was conducted vide Ex.P/05. The dead-body of deceased was recovered and sent for postmortem examination which was identified by Smt. Geeta Singh (PW-1), daughter of the deceased. Thereafter, appellant-accused was arrested vide Ex.P/22 and his memorandum statement was recorded (Ex.P/08) pursuant to which, seizure of articles were made vide Exs.P/09 and P/12 and sent for chemical examination to FSL. In FSL report (Ex.P/25) blood was found on the clothes of the deceased.

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(4) After due investigation, the appellant was charge-sheeted for the offences punishable under Sections 302 & 201 of IPC before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

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(5) During the course of trial, in order to bring home the offence, the prosecution has examined as many as 14 witnesses and exhibited 27 documents & articles A-1 to A-11. 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 relied upon only one document marked as Ex.D/1.

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(6) By impugned judgment, the learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant herein for offences punishable under Sections 302 and 201 of IPC and sentenced him as mentioned in the opening para of this judgment against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(7) Learned counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubt and the prosecution has not been able to prove that the death of the deceased was homicidal in nature nor the prosecution has been able to establish that appellant is author of the crime in question. As such, the trial Court is absolutely unjustified in invoking Section 106 of the Indian Evidence Act

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and convicting the appellant for the said offences. Therefore, the appeal deserves to be allowed and the appellant is entitled to be acquitted on the basis of benefit of doubt.

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(8) Per-contra , learned State counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court is absolutely justified in applying Section 106 of the Evidence Act in convicting the appellant for the said offences and therefore the appellant is not entitled to be acquitted on the basis of benefit of doubt and appeal deserves to be dismissed.

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(9) 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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(10) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has answered in affirmative taking into consideration the oral and documentary evidence available on record, particularly considering the postmortem report (Exs.P/26 & P/27) which is duly proved by the evidence of Dr. Manoj Singh (PW-13). Accordingly, taking into consideration the postmortem report (Exs.P/26 & P/27) and the statement of Dr. Manoj Singh (PW13), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased is homicidal in nature, as the same is correct finding

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of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirmed the said finding.

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(11) Now, as regards the question as to whether the appellant is the author of the crime, the trial Court has recorded the finding that the dead body of the deceased was found in the courtyard of her house inside the wall and since the appellant was also residing with the deceased, he is the author of the crime in question. However, from the evidence available on record, it is clear that the dead body was not found inside the house. Furthermore, the deceased was missing since 02.08.2014 and the dead body was found on 02.05.2015 i.e. about 9 months later. As such, the theory of last seen together is not clearly established as the dead-body of the deceased was found after 9 months from the date of her last seen together with the appellant. Therefore, it cannot be held that the appellant is the author of the crime in absence of proof of other circumstances, even otherwise the circumstance of last seen together in absence of corroboration alone cannot be made the basis of conviction.

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(12) In the matter of Navaneethakrishnan v. State by Inspector of Police , reported in (2018) 16 SCC 161 , the

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Supreme Court has held that though the evidence of last seen together could point to the guilt of the accused, but this

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evidence along 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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“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 Basco 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 cross-examination 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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(13) In the present case, no legal evidence have been brought on record to establish that the appellant and the deceased were last seen together. Furthermore, the dead body of the deceased was found after more than 9 months from the time the appellant was allegedly last seen with the deceased and

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in the absence of corroboration it cannot be held that the appellant is the author of the crime in question. As such, in the absence of proof of other circumstances or chain of circumstances, only the theory of ‘last seen together’ cannot be made the sole basis for conviction. Therefore, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting the appellant under Sections 302 and 201 of IPC.

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(14) Accordingly, the impugned judgment dated 13.05.2016 passed by the Trial Court convicting and sentencing the appellant for the offences under Sections 302 and 201 of IPC, is hereby set aside/quashed and the appellant is acquitted from the said offences on the basis of benefit of doubt. Appellant is stated to be in jail since 02.05.2015. He be released from jail forthwith, if his detention is not required in connection with any other offence.

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(15) This criminal appeal, accordingly, stands allowed.

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(16) Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he lodged and suffering jail sentence, forthwith for information and necessary action, if any at the earliest.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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H.L. Sahu

Harbhajan Singh v. State Of Chhattisgarh

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Harbhajan Singh v. State Of Chhattisgarh

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