Tarun Netam Vs State of Chhattisgarh

This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 03.06.2019, passed by the learned Additional Sessions Judge, Gariyaband in Sessions Trial No.47/2017, by which the appellant herein has been convicted for the offence under Section 302 & 201 of Indian

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Penal Code and sentenced as under :

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CONVICTION	SEN	TENCE
U/s. 302 of I.P.C.	: Rigorous	imprisonment
	for life a	nd fine of Rs.
	500/-, i	n default of
	payment months simple im	of fine, 2 additional prisonment.
U/s. 201 of I.P.C.	: Rigorous	imprisonment
	for 4 yea	rs and fine of
	Rs.500/-,	in default of
	payment	of fine, 2
	months simple im	additional prisonment.

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Case of the prosecution, in short, is that in the intervening night of 15.06.2017 to 20.06.2017 near Chhaila river at Village Muramahan, Police Station Amlipadar, District Gariyaband, the appellant herein strangulated Tulsi Markam (now deceased) and caused her death and in order

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to screen himself from the offence, buried the dead body and thereby committed the offence. The father of the deceased Hoomo (PW-6) reported the matter to the police, pursuant to which, Dehati Merg was registered vide Ex.P-9, Dehati Nalsi was recorded vide Ex.P-10, Merg Intimation was registered vide Ex.P-28, FIR was registered vide Ex. P-29, dead body of deceased was identified vide Ex.P-11 by father of the deceased Hoomo (PW-6), Inquest was conducted vide Ex.P-13 and dead body of deceased Tulsi Markam was subjected to post-mortem, which was conducted by Dr. Snigdha Jain (PW-10), who proved the post-mortem report vide Ex.P-22, according to which, it is stated that cause of death remain open, however, ligature strangulation leading to neck compression cannot be ruled out. Pursuant to memorandum statement of the appellant Ex.P-18, iron spade was recovered vide Ex.P-24. After due investigation, the appellant was charge-sheeted for the aforesaid offences 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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In order to bring home the offence, prosecution examined as many as 17 witnesses and exhibited 35 documents and the appellant-accused in support of his defence has not examined any witness but exhibited the document Ex.D-1.

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The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 & 201 of Indian Penal Code and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred.

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Mr. Utkal Pradhan, learned counsel for the appellant, would submit that the appellant has been convicted only on the basis of the theory of last seen together proved by father of the deceased Hoomo (PW-6), as the appellant and deceased both were lived together as husband & wife after having entered into a compromise deed vide Ex.P-14. As such, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

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Mr. Pankaj Singh, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences. He further submits

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that the theory of last seen together has clearly been established, as the appellant started living with the deceased as husband & wife pursuant to compromise deed entered between them vide Ex.P-14 proved by Hoomo (PW6), father of the deceased and thereafter, the dead body was seen by Rajesh Nagesh (PW-3) and the Merg was lodged by Hoomo (PW-6), father of the deceased vide Ex.P-28 and, as such, the appeal deserves to be dismissed.

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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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The first question for consideration as to whether the death of deceased Tulsi Markam was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-22), proved by Dr. Snigdha Jain (PW-10), according to which, cause of death was stated to be 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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The case of the prosecution is not based on direct evidence, it is based on circumstantial evidence. The five golden

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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 1 Sharad Birdhichand Sarda v. State of Maharashtra , 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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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

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1 (1984) 4 SCC 116

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2 (1973) 2 SCC 793

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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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The trial Court has convicted the appellant on the basis of the incriminating circumstance that vide Ex.P-14, a compromise deed entered into between the appellant and deceased in the village social meeting and the appellant and deceased both were asked to live together as husband & wife and thereafter, the deceased went alongwith appellant. Thereafter, after 5-6 days, part of the dead body was seen by Rajesh (PW-3) and thereafter, the merg was reported by the father of the deceased Hoomo (PW-6) and pursuant to memorandum statement of the appellant, iron spade was recovered.

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Now, the question for consideration would be, whether the trial Court is justified in convicting the appellant only

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on the basis of the theory of last seen together finding it to be duly established ?

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At this stage, it would be appropriate to notice the decisions with regard to theory of last seen together rendered by the Supreme Court.

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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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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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“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

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3 (1991) 3 SCC 27

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4 1994 Supp (2) SCC 372

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

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5 (2007) 3 SCC 755

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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 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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Similarly, in the matter of Kanhaiya Lal v. State of

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Rajasthan 6, their Lordships of the Supreme Court have

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6 (2014) 4 SCC 715

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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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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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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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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

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7 (2017) 14 SCC 359

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8 (2018) 16 SCC 161

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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 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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9 (2007) 3 SCC 755

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Coming to the facts of the case, it is quite vivid that the appellant and deceased both were entered into compromise on 14.06.2017 vide Ex.P-14 to live together as husband & wife in the village social meeting, which has been proved by father of the deceased Hoomo (PW-6) in which there were number of witnesses and except the father of deceased Hoomo (PW-6) and Tularam Markam (PW-9), no other witness has been examined. Hoomo (PW-6), father of the deceased has stated that after meeting, her daughter had gone along-with the appellant to stay with him and thereafter, Rajesh (PW-3) informed him that in the land of Manik Bhujia, he had seen the hand of some person coming out, pursuant to which, he has lodged the Dehati Merg vide Ex.P-9 and Dehati Nalsi vide Ex.P-10 and thereafter, the wheels of investigation started running. However, this witness (PW-6) has only stated that pursuant to compromise (Ex.P-14), his daughter had gone along-with the appellant to stay, but when and in what date & time, the deceased had gone along-with appellant to stay or when they imparted the company of each other could not be explained by him and when he lastly seen the appellant and deceased, except this bald statement, nothing has been established. However, even if, it is taken that the appellant and deceased has seen lastly on 14.06.2017, but

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the dead body was seen by Rajesh (PW-3) on 20.06.2017 and merg was lodged on 21.06.2017 at 6:15 P.M. As such, there is considerable time gap between the last seen together of appellant with deceased and the date and time of recovery of the dead body. Therefore, in absence of corroboration, it would be unsafe to rely upon the theory of last seen together to base the conviction.

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In shape of corroboration, pursuant to memorandum statement of the appellant, iron spade was recovered, but both the witness to the seizure and memorandum have not supported the case of the prosecution. However, the spade was not the weapon of offence, but it was used for digging and buried the dead body of deceased. As such, recovery of spade was of no use to the prosecution and there is no other evidence available on record to base the conviction of the appellant. In that view of the matter, the trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 & 201 of I.P.C. and, as such, he is entitled for acquittal on the ground of benefit of doubt.

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Accordingly, the impugned judgment of conviction and order of sentence dated 03.06.2019 is hereby set aside. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for the offences punishable

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under Sections 302 & 201 of Indian Penal Code. The appellant is in jail since 24.06.2017, he is directed to be released forthwith from jail, unless he is required in any other offence.

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In the result, the appeal is allowed.

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

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

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Ashok

Tarun Netam v. State of Chhattisgarh

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Tarun Netam v. State of Chhattisgarh

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