Allowed

Ganesh Ram Dugga v. State of Chhattisgarh

Chhattisgarh HC18 Jun 2024CRA/925/2018

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed an appeal against murder conviction, holding that the evidence of last seen together alone is insufficient for conviction without corroborative links. The Court applied the five golden principles of circumstantial evidence, finding the prosecution failed to establish a chain excluding innocence, and acquitted the appellant.

What did the court decide?

The appellant was acquitted of the charge under Section 302 of the IPC and directed to be released from jail forthwith if not required in any other offence.

Ganesh Ram Dugga Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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Page 1 of 16 IN Criminal Appeal No.925 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 925 of 20 18

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[Arising out of judgment dated 01.06.2018, passed in Sessions Case No.29 of 2016 (State of Chhattisgarh v. Ganesh Ram Dugga), by the Sessions Judge, Kondagaon (C.G.)]

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Ganesh Ram Dugga, Son of Dasruram Dugga, aged about 26 years, Resident of Village Karmari, Gudrapara, Police Station Dhanora, District Kondagaon (Chhattisgarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through Police Station- Dhanora, District Kondagaon (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. C.R. Sahu, Advocate/Panel Lawyer appointed through C.G. High Court Legal Services Committee For Respondent : Mr. Afroz Khan, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment on Board (19.06.2024)

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Sanjay K. Agrawal, J

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(1) This criminal appeal preferred by the accused-appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 01.06.2018, passed by the Sessions Judge, Kondagaon in Sessions Case No.29 of 2016, whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.200/- and, in default of payment of fine amount,

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additional rigorous imprisonment for 03 months.

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(2) The case of the prosecution, in a nutshell, is that on 28.01.2016, at about 07 PM in the evening, near Electricity Poll, situated at Main Road, Primary School, within the ambit of Police Station Dhanora, Kondagaon, the appellant herein with the intent to kill his uncle, namely, Pandiram Dugga (hereinafter referred to as the ‘deceased’) assaulted him by means of sharp edged weapon (i.e. knife), due to which, he suffered grievous injury and died. As such, the appellant is said to have committed offence under Section 302 of IPC.

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(3) It is further case of the prosecution is that the appellant was nephew of the deceased. The deceased used to perform black magic and, on that account, there existed previous enmity between the appellant and the deceased. On the date of offence, when the deceased alongwith his son- Manu Ram (PW-01), wife- Smt. Rukmani Bai (PW-05) and Reno Gawade (not examined) were siting in the courtyard of the house of the deceased, at that juncture, the appellant herein came to his house and took the deceased with him on the pretext that he has some work in his house. After some time, Smt. Balbati, W/o Santosh (PW-06) heard cries of the deceased in front of her house and when she went outside to enquiry about the same, she saw the deceased lying on the ground in injured condition and the appellant was also standing there

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Page 3 of 16 IN Criminal Appeal No.925 of 2018

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armed with knife. Sukhman Poya (PW-07) has also seen the deceased lying in injured condition in front of the house of Santosh (not examined) and the appellant was also standing there armed with knife and thereafter ran away from the spot leaving the knife therein. Thereafter, Manu Ram (PW-01) and Smt. Rukmani Bai (PW-05) reached to the spot and took the deceased to their house in injured condition, but the deceased succumbed to the injuries and died.

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(4) On the basis of report so lodged by Manu Ram (PW-01), the police registered marg intimation (Ex.P/01) and FIR (Ex.P/02) against the appellant and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/06 and inquest proceedings were conducted vide Ex.P/07. Spot map was prepared vide Ex.P/14. The dead-body of the deceased was sent for postmortem examination and in the postmortem report (Ex.P/03), conducted by Dr. Harendra Baghel (PW-02), it was opined that the cause of death of the deceased is shock due to extensive hemorrhage resulting from injury to vital organs and nature of death is homicidal. Thereafter, the accusedappellant was arrested vide Ex.P/11. From the place of incident, weapon of the offence i.e. knife has been seized vide Ex.P/09. Clothes of the appellant were also seized vide Ex.P/10, whereas, clothes of the deceased were seized vide Ex.P/05. The aforesaid seized articles were sent for chemical examination and, as per FSL

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Page 4 of 16 IN

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Criminal Appeal No.925 of 2018

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report (Ex.P/18), it has been opined that stains of human blood were found only on the sweater belonging to the deceased, whereas, disintegrated blood stains were found on the knife seized from the spot and clothes of the appellant. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against all the accused persons in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(5) The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 19 documents, whereas the appellant-accused in support of his defence, has neither examined any witness nor exhibited any document.

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(6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Section 302 of IPC and sentenced him as mentioned herein-above, 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) Mr. C.R. Sahu, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in

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convicting the appellant for offence under Sections 302 of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that there is no direct evidence available against the appellant and case of the prosecution is based on circumstantial evidence. The circumstances relied upon by the learned trial Court in Para-36 of the impugned judgment are based on surmises and conjunctures and there is no material available on record to connect the appellant herein with the aforesaid offences. Learned counsel further submits that even if it is accepted that in light of testimonies of Manu Ram (PW-01) and Smt. Rukmani Bai (PW-05), the theory of last seen together is found to be established, but in absence of corroboration, the appellant herein cannot be held guilty for the offence in question. He placed reliance on Navaneethakrishnan v. State by Inspector of Police 1 to bolster his submission. Hence, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charge on the basis of benefit of doubt.

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(8) Per-contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. In view of statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant

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1 (2018) 16 SCC 161

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Page 6 of 16 IN Criminal Appeal No.925 of 2018

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for offence under Section 302 of IPC and, therefore, the present 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 recorded in affirmative by taking into consideration the postmortem report (Ex.P/03), wherein it has been opined that cause of death of deceased is shock due to extensive hemorrhage resulting from injury to vital organs and nature of death is homicidal, which is duly proved by the statement of Dr. Harendra Baghel (PW-02). Accordingly, taking into consideration the postmortem report (Ex.P/03) and the statement of Dr. Harendra Baghel (PW-02), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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(11) Now, the next question would be whether the accusedappellant herein is the author of the crime or not ?

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(12) At this stage, it is profitable herein to quote following incriminating circumstances as culled out by the learned trial

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Court in Para-36 of the impugned judgment:

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“ ¼i½ ?kVuk fnukad 28@01@2016 dks 'kke djhc 7 cts] xzke djejh esa vkjksih] e`rd iMhjke dks mlds ?kj ls cqykdj vius lkFk ys x;kA “vafre ckj lkFk ns[kk tkuk”

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¼ii½ vkjksih ds }kjk iaMhjke dks vius lkFk ys tk;s tkus ds dqN nsj ckn iaMhjke ds fpYykus dh vkokt ij Jherh ckycrh ¼v0lk0 6½ us vius ?kj ds lkeus iaMhjke dks ?kk;y voLFkk esa iM+s ns[kk Fkk] ekuqjke ¼v0lk0 5½ Hkh iaMhjke ds fpYykus dh vkokt ij igqaps Fks vkSj iaMhjke dks ?kk;y voLFkk esa iM+s ns[kk Fkk] ckn esa mldh e`R;q gks x;hA

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¼iii½ iaMhjke ds ?kj ls ftl LFkku ij iaMhjke e`r iM+s feyk] mldh nwjh yxHkx 200 ehVj gSA

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¼iv½ iaMhjke dh eR;q dh izdfr ekuo o/kkRed FkhA

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¼v½ ekSds ls foospd us Nqjh cjken dh] ftlls e`rd dks vk;h pksVs igaqpk;h tk ldrh FkhA

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¼vi½ vkjksih e`rd iaMhjke ij ;g lansg djrk Fkk fd og mls ikaxrk Fkk] vFkkZr vijk/k dkfjr djus dk gsrqd FkkA

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¼vii½ vkjksih dh dksbZ cpko dgkuh@Li"Vhdj.k ugha gSA”

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(13) Since, in the present case there is no direct evidence against the appellant and the case of the prosecution is based on circumstantial evidence, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of

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Maharashtra2 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under:

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

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2 (1984) 4 SCC 116

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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 & Anr. v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made:

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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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(14) In the case at hand, the learned trial Court has convicted the appellant herein on the basis of the theory of last seen together, as it is the case of the prosecution that on the date of incident, when the deceased alongwith his son- Manu Ram (PW-01), wife- Smt. Rukmani Bai (PW-05) and Reno Gawade (not examined) were siting in the courtyard of the house of the deceased, the appellant herein came to his house and took the deceased with him on the pretext

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Criminal Appeal No.925 of 2018

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that he has some work in his house and, after some time, Smt. Balbati, W/o Santosh (PW-06) and Sukhman Poya (PW-07) found the deceased lying on the ground in injured condition in front of the house of one Santosh (not examined) and the appellant was also standing there armed with knife. As such, the theory of last seen together is duly established. Now, the question would be whether the prosecution has been able to prove any other corroborative piece of evidence in order to hold the appellant herein guilty for the offence of murder of the deceased on the basis of theory of last seen together?

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(15) 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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(16) 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 of 'last seen together' and observed in paragraph 31 as under :-

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3 (1991) 3 SCC 27

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4 1994 Supp (2) SCC 372

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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 tothough 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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(17) Likewise, in the matter of State of Goa v. Sanjay Thakran 5,

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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 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

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5 (2007) 3 SCC 755

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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 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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(18) 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 6 (2014) 4 SCC 715

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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 Rajasthan¹ .

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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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(19) In the matter of Anjan Kumar Sarma v. State of Assam 7,

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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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7 (2017) 14 SCC 359

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(20) In the matter of Navaneethakrishnan v. State by 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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“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 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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(21) In the matter of State of Goa v. Sanjay Thakran and

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8 (2018) 16 SCC 161

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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 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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(22) Reverting to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court particularly, in Anjan Kumar Sarma (supra), it is quite vivid that the prosecution has only established that the appellant was lastly seen with the deceased and no other connecting links have been satisfactorily made out and no other incriminating circumstance which leads to the hypothesis of guilt against the appellant has been proved. Even the weapon of the offence i.e. knife has been seized from the spot, therefore, in light of the decision of Boby v. State of Kerala 10 it is of no help/use to the prosecution. Further, as per FSL report (Ex.P/18), disintegrated blood stains were found on the said knife as also on the clothes of the appellant, therefore, in light of the decision of the Supreme Court in the matter of Balwan Singh v.

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State of Chhattisgarh and another11 the seizure/recovery of said articles pales into insignificance. Motive of the offence is also not

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9 (2007) 3 SCC 755

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10 2023 LiveLaw (SC) 50

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11 (2019) 7 SCC 781

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established for the reason that there is no evidence available on record except the self-serving statements of the prosecution witnesses to show that the deceased used to perform black magic and because of which there existed enmity between the appellant and the deceased. As such, in absence of poof of other circumstances or chain of circumstances, only the theory of ‘last seen together’ cannot be made the sole basis for conviction of the appellant, as it would be unsafe to rest conviction only on the theory of ‘last seen together’. Therefore, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting the appellant under Section 302 of the IPC only on the basis of the theory of ‘last seen together’, finding it fully established and in absence of motive for committing offence on the part of the appellant and in absence of other incriminating material against the appellant, in light of the principles of law laid down by their Lordships of the Supreme Court in Arjun Marik (supra), Sanjay Thakran’s (supra) and Kanhaiya Lal (supra). We hereby hold accordingly.

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(23) In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellant for

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offence under Section 302 of IPC in light of above-mentioned incriminating circumstances and same are liable to be set aside.

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(24) Accordingly, we hereby set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 01.06.2018. The appellant is acquitted of the charge under Section 302 of the IPC on the basis of benefit of doubt. Since the appellant is in jail, we direct that he be released from jail forthwith, if not required in any other offence/crime.

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(25) This criminal appeal is allowed .

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(26) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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s@if

Ganesh Ram Dugga v. State of Chhattisgarh

Case brief

What is this about?

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Ganesh Ram Dugga v. State of Chhattisgarh

Case brief

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