Mukesh Sahu Vs State of Chhattisgarh

1 - Mukesh Sahu S/o Ramkripal Sahu Aged About 26 Years R/o Devri, Thana - Dharsinva, District Raipur, Chhattisgarh, At Present R/o Beergaon, Purani-basti House of Gaukaran Sahu, Thana Urla, District Raipur Chhattisgarh. ... Appellant

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versus

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1 - State of Chhattisgarh through Police Station Urla, District Raipur Chhattisgarh. ... Respondent

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For the appellant : Mr. Dheerendra Pandey, Advocate For the State : Mr. Amit Buxy, Panel Lawyer

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(Division Bench)

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Hon’ble Shri Justice Sanjay K. Agrawal

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Hon’ble Shri Justice Sanjay Kumar Jaiswal

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C A V Judgment

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Sanjay Kumar Jaiswal, 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 judgment of conviction and order of sentence dated 25.07.2019 passed by the 1st Additional .Sessions Judge, Raipur (C.G) in Sessions Trial No. 43/2019 by which the appellant herein has been convicted and sentenced as under :

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U/s 302 IPC	: Imprisonment for Life and fine of Rs.500/-, in default of payment of fine, Additional RI for 1 month.
U/s 25-1(B) of Arms Act.	: RI for 1 year and fine of Rs.500/-, in default of payment of fine, Additional RI for 1 month.

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2. The prosecution case, in brief, is that deceased Daneshwar alias Golu and appellant Mukesh used to work together in the warehouse of Reliance Mobile. On 23/09/2018, appellant Mukesh had gone to Birgaon to play DJ at Ganesh idol immersion (Visarjan) of his elder brother Laxmi Narayan. After immersion of Ganesh idol, appellant Mukesh, deceased Daneshwar alias Golu, Shailendra Devangan (PW7), Vicky and Bablu went to the ruins near Purani Basti in Birgaon and consumed liquor. Thereafter, at about 10.00 to 10.30 pm, Vicky, Bablu and Shailendra Devangan (PW-7) went to Raipur. Then appellant Mukesh and deceased Daneshwar alias Golu were sitting near the

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shutter of a grocery shop near Budhi Mata Chowk. When they returned from Raipur, Shailendra Devangan (PW-7) came to know that Daneshwar alias Golu was found dead. Meanwhile, at about 11.45 pm, Rinku Bairagi (PW-15) saw a boy lying down near the temple. He went to the Ganesh Pandal and informed the people present there. Pawan Tiwari (PW-3) and Gaukaran (PW-2) came there and saw that Daneshwar alias Golu was lying dead. Then, on the information given by Gaukaran (PW-2), merg was registered by the police vide Exhibit P- 5. FIR (Exhibit P-4) was registered against an unknown person. A black coloured mobile phone, a piece of motorcycle visor, plastic slippers etc. were seized from the scene of the incident and seizure memo Ex. P-7 was prepared. The dead-body was examined after preparing a Panchnama. Doctor M. Nirala (PW-16) examined the body and gave a report (Ex.P-27), according to which, a stab wound caused by sharp and pointed weapon was found on the left upper part of the neck of deceased due to which the jugular vessel was cut, there was also a contusion on his forehead and it was opined that the death was due to excessive bleeding and shock which was homicidal in nature. Then the police prepared the map of the scene of incident. Memorandum (Ex. P- 12) was prepared by taking the statement of the appellant, on whose indication an iron knife was seized vide seizure memo Ex. P-3. Statements of witnesses were recorded. The seized property was sent to the FSL for chemical examination. Blood was found on the clothes of the deceased and in the knife seized from the appellant. After completing the investigation, charge sheet was presented.

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3. When the appellant denied the charges before the trial Court, the prosecution has in all examined 16 witnesses and exhibited 27 documents to prove its case. The accused was examined under Section 313 CrPC wherein he pleaded innocence and false implication. However, he has not examined any witness to defend his case. After conclusion of trial and considering the evidence of prosecution witnesses and material available on record, learned Trial Court vide impugned judgment, convicted and sentenced the appellant as above. Hence this appeal.

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4. On the basis of the evidence of Shailendra Devangan (PW-7), the trial court found that the appellant was last seen with the deceased and after one to one-and-half hours, Daneshwar alias Golu was found dead. On the statement of the deceased's sister-in-law's sister Bhumika Sahu (PW-5), it was found that at the time of the incident, the appellant had called Bhumika Sahu (PW-5) from the deceased's mobile and Bhumika Sahu (PW-5) had heard the sound of a fight. Shailendra Devangan (PW-7), who had gone to Raipur after consuming alcohol with both the parties, had tried to call the appellant by mobile after getting information about the death of Daneshwar alias Golu, but the appellant neither picked up the phone nor took any information. The knife, which was seized on the basis of the memorandum statement of the appellant, was examined by the doctor. While giving the report Exhibit P-27, Dr. M. Nirala (PW-16) gave the opinion that the injury found on the deceased could have been caused by the said knife and blood was also found on the knife. On the basis of all this evidence, the appellant has

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been convicted by the trial court.

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5 Learned counsel for the appellant argues that there is no eyewitness to the incident and the entire case of prosecution rests on circumstantial evidences and the chain of circumstances are not complete in this case to connect the accused in the aforesaid offence. He further submits that none of the witnesses supported the prosecution case and the trial Court has placed the conviction only on the ground that the knife was seized on which the blood stains were present and the appellant has not properly explained to prove as to how the blood stains were found in his wearing clothes and no serology report is produced to match the blood of seized articles with the blood group of deceased. He further submits that the conviction of the appellant is based on suspicion which cannot be allowed to sustain. Therefore, learned counsel submits that the impugned judgment of conviction needs interference and the appellant should be acquitted.

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6. Per contra, learned State Counsel has supported the impugned judgment and submitted that the chain of circumstances have been duly proved by the prosecution beyond reasonable doubt by leading evidence of clinching nature. He has submitted that the trial Court has rightly convicted the appellant for the aforesaid offence and the appeal is liable to be dismissed.

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7. We have heard learned counsel for the parties and have also perused the records.

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8. The case of prosecution is not based on direct evidence. It 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 Maharashtra¹ which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads as under: -

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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 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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2 (1973) 2 SCC 793

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1 (1984) 4 SCC 116

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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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9. Now, we will consider the circumstances recorded by the trial Court one by one in the light of the principles of law laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra).

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10. The first question is as to whether the death of deceased Daneshwar @ Golu was homicidal in nature, which learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report (Ex. P-27) proved by Dr. M. Nirala (PW-16) according to which, the cause of death was haemorrhage and shock and nature of death was homicidal, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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Last seen theory

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11. In State of Goa v. Sanjay Thakran (2007) 3 SCC 755 Hon’ble 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

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the place of incident or before commission of crime in the intervening period. It was observed in para 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 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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12. Further Hon’ble Supreme Court in a recent case Ram Gopal v. state of Madhya Pradesh (2023) 5 SCC 534 relying upon its earlier decisions in Rajender v. State (NCT of Delhi), (2019) 10 SCC 623 and Satpal v. State of Haryana (2018) 6 SCC 610 held that in a case based on circumstantial evidence furnishing or non-furnishing of explanation by accused would be very crucial fact and theory of last seen together as propounded by the prosecution has to be proved against him and observed in paras 6 and 9 as under :

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It may be noted that once the theory of “last seen together” was established by the prosecution, the accused was expected to offer some explanation as to when and under what circumstances he had parted the company of the deceased. It is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. Of course, Section 106 is certainly not intended to relieve the prosecution of its duty to prove the guilt of the accused, nonetheless it is also equally settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, in view of Section 106 of the Evidence Act, such failure on the part of the accused may be used against the accused as it may provide an additional link in the chain of circumstances required to be proved against him. In the case based on circumstantial evidence, furnishing or nonfurnishing of the explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution was proved against him.

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In view of the afore-stated legal position, it is discernible that though the last seen theory as propounded by the prosecution in a case based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does owe an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a wrong explanation,

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absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence.”

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13. The main circumstance against the appellant is that of the last seen theory, in respect of which the main witness is Shailendra Devangan (PW-7). He has confirmed the prosecution case and said that after playing DJ, appellant Mukesh, deceased Daneshwar alias Golu, Vicky and Ashish bought eatables from the grocery shop near Mawali Coaching and went to the ruins near Budha Dev situated near Ram Mandir and consumed liquor and then he went with Ashish and Vicky on a motorbike to see Ganesh Visarjan at Raipur between 10.00 to 10.30 pm. At that time only the appellant Mukesh and deceased Daneshwar alias Golu were near Muni's house. When he returned to the village in the night at 12.00 – 01.00 am, he came to know that Daneshwar alias Golu was murdered a little ahead of Muni's house and he saw a mark of injury near his neck. In cross-examination, this witness has remained consistent and unrebutted in his statement that last time they had left the deceased Daneshwar alias Golu and appellant near Muni's house where there was not much activity in the village. Thus, there is no contradiction in the statement of witness Shailendra Dewangan (PW-7) to the effect that before about 11.45 p.m. the body of Daneshwar alias Golu was first seen by Rinku Bairagi (PW15) and then Pawan Tiwari (PW-3) and Gaukaran (PW-2) were informed and before that, the appellant was last seen with the deceased. The merg (Ex. P-5) was registered by Gaukaran (PW-2) with the police at about 02.00 am on the same night in which the incident is

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shown to have taken place between 11.30 pm and 12.00 pm and the FIR Ex. P-4 was also registered against an unknown person on the information of Gaukaran (PW-2). Thus, it has been proved that appellant Mukesh was last seen with the deceased Daneshwar alias Golu by Shailendra Devangan (PW-7) about one to one-and-half hours before the body of Daneshwar alias Golu was found and in the statement under Section 313 of the Code of Criminal Procedure, the appellant Mukesh has not given any explanation as to when, how and under what circumstances Daneshwar alias Golu died when he was with Daneshwar alias Golu till about 10.30 pm. In such a situation, on the basis of last seen theory, the involvement of the appellant in the murder of Daneshwar alias Golu has been found to be a first incriminating circumstance and there is no reason to disbelieve it.

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14. The second important circumstance is that Bhumika Sahu (PW-5) has stated that the deceased Daneshwar alias Golu is her brother-inlaw's younger brother. She has also stated that sometimes, Golu used to call her from his mobile and she used to talk to him. She has stated that at about 11.30 pm in the night of incident, she received a call from Golu’s number and as his number was saved in her mobile, she picked up the call, but the voice of that person talking on that mobile was not of Golu but that voice was of accused Mukesh Sahu. She has stated that she had recognised the voice of accused as earlier she had heard that voice. She has further stated that since at that time the accused was with Golu, she had heard the voice of accused too and the accused

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had asked her whether she had taken food then she told him that she had not eaten anything, soon thereafter, sound of a quarrel was heard and Daneshwar alias Golu said "To whom have you called?" Thereafter the conversation stopped reaching and the mobile got switched off. It is noteworthy that according to the seizure memo (Ex.P-7) prepared by Inspector Dwarika Prasad Shrivas (PW-14) from the scene of the incident, a black coloured mobile phone was also seized and Bhumika Sahu (PW-5) has remained consistent and firm in her statement that the phone call she received in the night of the incident was from the mobile phone of the deceased and the voice coming in it was of the appellant. This also confirms the fact that the appellant Mukesh was present with the deceased at the last moment. Thus, the statement of Bhumika Sahu (PW-5) also corroborates the statement of Shailendra Dewangan (PW7) that the appellant Mukesh was present with the deceased at the last moment and Appellant Mukesh has not given any explanation in this regard in his statement under Section 313 of the Criminal Procedure Code that how and in what circumstances Daneshwar alias Golu died ?

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15 . Now another incriminating circumstance is the conduct of the appellant after the incident, for which, the statement of Shailendra Devangan (PW-7) is very significant. According to Shailendra Devangan, before the incident, after consuming alcohol with the appellant and the deceased, he had gone to see Ganesh Visarjan with Vicky and Ashish. On returning from there, when he came to know

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about the death of Daneshwar alias Golu, he called the appellant Mukesh by phone and tried to know how Daneshwar alias Golu died. But according to the statement of Shailendra Devangan (PW-7), when he called the appellant, he did not pick up the phone. In such a situation, the appellant’s conduct in not receiving the phone call of Shailendra Devangan (PW-7) and not discussing anything with Shailendra Devangan regarding the death of Daneshwar alias Golu would show the subsequent conduct of the appellant. According to Section-8 of the Indian Evidence Act, the subsequent conduct of the appellant is relevant and is an incriminating circumstance, which also strengthens the prosecution case.

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16. Assistant Sub-Inspector Tulsiram Bhardwaj (PW-11) has stated that he recorded the memorandum Ex.P-2 on statement of appellant and at his instance, he took out the knife from under the stone in the ruined house and prepared seizure memo (Ex.P-3). This memorandum and seizure proceedings stood proved by the statements of owner Ram Sahu (PW-1) and Chetan Lal Dhiwar (PW-10). Doctor M. Nirala (PW16) has stated that he had examined the knife and given a query report Ex.P-19 in which he has opined that the injury found on the deceased is likely to have been caused by the said knife. According to FSL report Ex.P-25, blood has been found on the knife, regarding which no explanation has been given by the appellant. On minute analysis of the entire material on record, it is found that by using the same knife, a fatal injury was caused to Daneshwar alias Golu on a vital part like the

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neck which caused excessive bleeding due to cutting of the jugular vessel and as a result, Daneshwar alias Golu died.

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17. Thus, the prosecution has established all the incriminating circumstances which are interlinked and which lead to one and only conclusion that the appellant intentionally caused the death of Daneshwar alias Golu by cutting the jugular vessel at a vital place like the throat by using the above knife, which later was seized at the place indicated by the appellant. Thus, we do not find infirmity or illegality in the conviction placed by the trial Court against him. Accordingly, the argument of the appellant cannot be allowed to stand and is rejected.

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18. In view of the aforesaid discussion, we are of the considered opinion that the five golden principles to prove a case based on circumstantial evidence as laid down by their Lordships of the Supreme Court in Sharadchand Birdichand Sarda (supra) have rightly been proved by the prosecution and it has been able to prove the appellant guilty of the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. In that view of the matter, we do not find any merit in this appeal.

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19. Accordingly, this criminal appeal stands dismissed.

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20 . Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned for information and necessary action, if any.

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21. The Registry is directed to send a copy of this judgment to the concerned Superintendent of jail where the appellant is undergoing his jail term, informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal under Article 136 of the Constitution of India before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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Sd/-

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Sd/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal Judge Judge

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Rao

Mukesh Sahu v. State of Chhattisgarh

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Mukesh Sahu v. State of Chhattisgarh

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