Rohit Kumar Sahu Vs State of Chhattisgarh

legality, validity and correctness of the judgment of conviction and order of sentence dated 31.07.2019, passed by learned Sessions Judge, Baloda Bazar, District Baloda Bazar-Bhatapara, Chhattisgarh, in Sessions Trial No.52/2018, by which, the appellant herein has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1,000/-, in default of payment of fine, to further undergo additional rigorous imprisonment for 3 months.

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2. The case of prosecution, in short, is that on 19.04.2018, at around 11:30 p.m., near the house of Daulal, village Tata, PS Sarsiwa, District Balodabazar-Bhatapara, the appellant herein assaulted his father-in-law Ghasiram Sahu (Now deceased) by stone, as a result of which, he suffered grievous injuries on his head and died. On the information of Yashwant Sahu (PW-5) i.e. son of the deceased, Dehati Nalsi Ex. P-9 and Dehati Merg Ex. P-10 were recorded. FIR was registered vide Ex.P-21. Inquest proceedings were conducted vide Ex.P-4 and the dead body of deceased was subjected to postmortem, which was conducted by Dr. Pushpendra Vaishnav (PW-13), who has proved the postmortem report (Ex. P-25), in which, cause of death has been opined to be head injury and hemorrhagic shock and death was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P/12), the weapon of offence i.e. stone was seized vide Ex. P-13 which was sent for chemical examination to FSL along with other seized articles. In FSL report (Ex. P-28), blood was found on the said stone and human blood was found on the Gamchha (towel) seized from the spot.

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3. After completion of investigation, appellant herein was charge - sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence stating that he has not committed any offence and he has falsely been implicated in crime in question.

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4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 14 witnesses and exhibited 28 documents. The statement of 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, appellantaccused in support of his defence has examined 3 witnesses and exhibited 2 documents.

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5. Learned trial Court, after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence.

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6. Mr. Alok Nigam , learned counsel for appellant, would submit that there is no eye witness to the incident and the appellant has been convicted solely on the basis of weak circumstantial evidences. He submits that the son of the deceased Yashwant Sahu (PW-5) and the daughter of the deceased Smt. Dulari Sahu (PW-11) are not reliable witnesses as there are 3 days delay in recording their statements. He submits that the prosecution has not been able to bring home the offence beyond reasonable doubt,

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therefore, the appellant is entitled for acquittal on the basis of benefit of doubt.

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7. On the other hand, Mr. Ashish Shukla, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence punishable under Sections 302 of I.P.C. As such, the appeal deserves to be dismissed.

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8. 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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9. In the instant case, there is no direct evidence available on record and the case of prosecution is based solely 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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(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 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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(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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10. The trial Court in paragraph-7 of its judgment has recorded the following incriminating circumstances against the appellant:

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(1973) 2 SCC 793

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मृतक घासीराम की मृत्यु मानव वध स्वरूप की है ।

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मृतक घासीराम मृत्यु के ठीक पूव� अपने दामाद अभि"युकत रोहिहत के साथ अंतितम बार देखा गया था ।

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अभि"यु्ሹ , मृतक की मृत्यु का कोई समाधान्ቚद स्प्ቖीकरण देने में असफल रहा है ।

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अमन ढाबा के सामने से अभि"युकत के रोहिहत के मोटर सायकल ्ቅमांक CG-11AD-7925 को हिदनांक 20-04-2018 को बरामद हिकया गया है ।

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मृतक के शव में अभि"यु्ሹ का बेल्ट व गमछा पड़ा हुआ था ।

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अभि"यु्ሹ की पत्नी दुलारी साहू के ्ቛारा मृतक के शव में पड़े बेल्ट तथा गमछे को अपने पतित/अभि"यु्ሹ का बताये जाने पर वहीं घटनास्थल पर अभि"यु्ሹ ने अपनी पत्नी के साथ मारपीट हिकया गया था ।

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अभि"यु्ሹ ने पैसे की लालच में मृतक की मृत्यु कारिरत की है ।

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अभि"यु्ሹ की हिनशानदेही पर अपराध में ्ቚयु्ሹ पत्थर बरामद हुआ है ।

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11. Now we consider the circumstances recorded by the trial Court 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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12. The first and foremost circumstance for consideration is as to whether the death of deceased Ghasiram Sahu was homicidal in nature?

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13. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex. P-25 proved by Dr. Pushpendra Vaishnav (PW-13), according to which, cause of death was opined to be head injury and hemorrhagic shock and death was homicidal in nature, which is a correct 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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14. The second incriminating circumstance is that as per the statement of Smt. Dulari Sahu (PW-11), the appellant and the deceased were last seen together during the intervening

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night of 19/20.04.2018. Before proceeding with the facts of the case, it would be relevant to notice the relevant decisions of the Hon’ble Supreme Court relating to the 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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“31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to though a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.”

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4 1994 Supp (2) SCC 372

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3 (1991) 3 SCC 27

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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 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

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5 (2007) 3 SCC 755

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

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“15. The theory of last seen – the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts

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6 (2014) 4 SCC 715

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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, 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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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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7 (2017) 14 SCC 359

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8 (2018) 16 SCC 161

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“22. PW 11 was able to identify all the three accused in the court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the 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. Revering to the facts of the present case, in the light of the aforesaid decisions rendered by the Supreme Court, we first consider the statement of Dulari Sahu (PW-11) who is the daughter of the deceased and wife of the appellant. This witness has stated that in the night of the offence, the appellant and the deceased had consumed liquor. They did not take meal. The appellant took the deceased to a Dhaba for food. Thereafter, the deceased did not return at night.

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The appellant returned early in the morning and told her that someone had killed her father i.e. the deceased. She immediately went to the spot and found her father lying on Manpasar road and there were a belt and a towel lying on the dead-body of her father which belonged to the appellant. She has stated that the appellant had beaten her at the place of occurrence and before that, the appellant had demanded one lakh rupees from the deceased and also threatened to kill him.

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22. It is pertinent to mention here that according to Dulari Sahu (PW-11), both her father and the appellant had consumed liquor but as per the post-mortem report Ex.P-25, no stance of liquor was found on the body of the deceased. Dulari Sahu (PW-11) has stated that the appellant had assaulted her on the spot which has also been supported by her brother Yashwant Sahu (PW-5) stating that the appellant had beaten his sister (Dulari Sahu) very badly on the spot due to which her bangles got broken and blood started flowing. However, neither the bangles were seized from the spot nor the MLC of Dulari Sahu was done to prove that she had sustained injuries and was bleeding. Further, Yashwant Sahu (PW-5) has not stated in his 161 CrPC statement that the appellant had beaten his sister due to which her bangles were broken and she was bleeding. In Dehati Merg Intimation Ex.P-10 lodged by Yashwant Sahu (PW-5), the fact of beating by the appellant has also not been mentioned. Thus, the statement of Yashwant Sahu (PW-5) and Dulari Sahu (PW-11) that the appellant had beaten Dulari Sahu on the spot is not established in the absence of MLC and seizure of broken bangles. As such, the 6 th incriminating circumstance of Marpit has not been established as PW-11

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was not subjected to MLC nor the broken bangles were seized.

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23. According to Dulari Sahu (PW-11), she reached the spot in the morning of 20.04.2018 but surprisingly, her statement under Section 161 CrPC was recorded on 22.04.2018. Upon being asked to the Investigating Officer S. S. Mourya (PW12) about the delay in recording the statement of Dulari Bai, no plaussible explanation has been given by the IO as to why the statement could not be recorded earlier when she had reached the spot immediately after receiving information about the death of her father. Further, the relationship between the daughter of the deceased Dulari Bai (PW-11) and the appellant being strained, it is unsafe to rely on her evidence as an witness of last seen together.

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24. Dulari Sahu (PW-11) further states that a belt and a Gamchha (towel) were lying on the dead body of her father. The Gamchha was recovered from the spot vide Ex. P-14 but no identification has been conducted to find out that the said Gamchha belonged to the appellant. Similarly, the belt was seized by Police Constable Amedkar Kurre vide Ex. P- 19 but the said Constable has not been examined nor any identification has been conducted to prove that the said belt was belonging to the appellant. Thus, the statement of Dulari Sahu (PW-11) that the Gamchcha and the belt belonged to the appellant has not been established. Accordingly, the 5 th circumstance of the Gamchha and the belt belonged to the appellant is not established beyond reasonable doubt.

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25. The fourth circumstance that the motorcycle of the appellant was seized from in front of Aman Dhaba on 20.04.2018 is of

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no useful to the prosecution. Though the demand of one lakh rupees by the appellant from the deceased has been proved but for that account the appellant committed the murder has not been proved. The last circumstance that pursuant to the memorandum statement of the appellant, the stone was seized but the trial Court itself in para-24 of its judgment has not found this circumstance proved beyond doubt. As such, we are of the considered opinion that the theory of last seen together is not established at all. Even otherwise, without corroboration of theory of last seen together, as per the decision of the Hon’ble Supreme Court in the case of Navaneethakrishnan (supra) the appellant cannot be convicted for offence under Section 302 of IPC.

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26. In that view of the matter, we find that as per the principle of ‘Panchsheel’ laid down by the Honorable Supreme Court in the case of Sharad Birhichand Sarda (Supra), the chain of circumstances are not so complete in which the appellant can be held guilty for the offence. Consequently, we are unable to uphold the conviction of the appellant for offence punishable under Sections 302 of IPC and the appellant is entitled for acquittal on the basis of the principle of the benefit of doubt.

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27. Accordingly, t he impugned judgment dated 31.07.2019 passed by the Trial Court convicting and sentencing the appellant for offence under Section 302 of IPC is hereby set aside/quashed on the basis of benefit of doubt and the appellant is acquitted from the said offence. Appellant is reported to be in jail. He be released from jail forthwith, if his detention is not required in connection with any other offence.

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28. This criminal appeal, accordingly, stands allowed .

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29. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court 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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Khatai

Rohit Kumar Sahu v. State of Chhattisgarh

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Rohit Kumar Sahu v. State of Chhattisgarh

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