Santosh Kumar Vs State of Chhattisgarh

As we proceed to hear the matter finally with the consent of learned counsel for both the parties, IA No.01/2025, application under Section 430 Bhartiya Nagrik Suraksha Sanhita, 2023 for suspension of sentence and grant of bail to the appellant stands disposed of.

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This criminal appeal filed by the appellant-accused under Section 374(2) of the Code of Criminal Procedure, is directed against the impugned judgment of conviction and order of sentence dated 01.4.2023 passed by learned First Upper Sessions Judge, Balod Distt. Balod (CG) in Sessions

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BINI Digitally signedby BINI PRADEEP PRADEEP Date: 2025.02.1716:21:46 +0530

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Trial No.16/2021, whereby the appellant-accused has been convicted and sentenced in the following manner:

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Sl.	Conviction	Sentence	Fine	Default
No.	under
	Section
01.	302 IPC	Imprisonment for life	1,000/-	RI for 01 month

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Prosecution story, in nutshell, is that on 12.01.2020, brother of the deceased namely Devdas Markande has given information to the police at Police Station Rajhara that his elder sister Asha @ Poto (deceased) used to go to Uttar Pradesh and Bihar for dance programme and prior to 07 months, the deceased came back along with one Santosh/appellant and started living with him in Rajhara as husband and wife, but they were not married. On 12.01.2020 when the deceased did not come out from the house, Manrakhan Gaada, who is maternal grand-father of the deceased, went inside the house, where he found the deceased lying dead on the bed and there were injuries on her face and neck and the appellant fled away from the spot on the previous night itself. Based on that information, police registered Merg (Ex-P/1) and started investigation, panchnama was conducted and the body was sent for postmortem to Primary Health Centre Chikhalakasa, where Dr. Jai Kumar Chunarkar (PW-08) conducted postmortem and gave his report vide Ex-P/12, and he opined that cause of death is asphyxia due to throttling and nature of death of the deceased was homicidal. Based on suspicion, FIR was lodged against suspected accused Santosh Kumar under Section 302 IPC. During investigation, spot maps (ExP/03 & Ex-P/18) were prepared, two pillows and one colourful chunari (dupatta) were seized vide Ex- P/7. Statement of the witnesses were

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recorded, the accused was arrested on 17.11.2020. Memorandum statement of the accused was recorded vide Ex-P/9 and alleged Mobile SIM card of the deceased was seized vide Ex-P/11 from the pocket of the appellant. After usual investigation, charge sheet was filed against the appellant under Section 302 IPC in the Court of Judicial Magistrate First Class, Dallirajhara, who in turn committed the case to the Court of Sessions Judge, Balod and the case was transferred to First Upper Sessions Judge, Balod, who conducted the trial.

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The learned First Upper Sessions Judge framed charges under Section 302 IPC, read and explained to the appellant who abjured the guilt and entered into defence.

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In order to bring home the offence, the prosecution has examined as many as 12 witnesses and exhibited 21 documents.

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After examination of prosecution witnesses, the appellant was examined under Section 313 CrPC, in which he denied most of the circumstances appearing against him and he has stated that he has been falsely implicated.

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7 . The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 01.4.2023 convicted the appellant for offence under Section 302 IPC and sentenced him as mentioned in the preceding paragraph of this judgment, which is under challenge in this appeal.

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Mr. BP Singh, learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the offence under Section 302 IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He would further submit that there is no eyewitness to the alleged crime, rather case of the prosecution is based only

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on circumstantial evidence, i.e. ‘last seen together’ theory, as stated by Manrakhan Gaada (PW-3), whereby he has stated that on 10.01.2020 night he saw the appellant and the deceased together cooking food in their house. He would further submit that merely on the basis of last seen together, no conviction can be recorded unless the chain of circumstances is complete to reach to a conclusion that it is only the accused/appellant who had caused murder of the deceased. Learned counsel further submitted that the prosecution has failed to prove any motive of the appellant in causing murder of the deceased. Thus, chain of circumstances has not been proved by the prosecution against the appellant, but the learned trial Court without considering the aforesaid facts, only on the basis of conjectures and surmises and without relevant materials has convicted the appellant. Hence, it is prayed that the appeal may be allowed by setting aside the impugned judgment passed by the learned trial Court. 9. On the other hand, learned counsel appearing for the State strongly objected the submission made by learned counsel for the appellant. He would further submits that although instant case is based on circumstantial evidence, but the prosecution has proved the chain of circumstances appearing against the appellant beyond reasonable doubt. He would further submit that Manrakhan Gaada (PW-3) is witness of last seen together as he clearly stated that on the previous night of date of recovery of dead body, he saw the appellant and the deceased cooking food together and on the next day morning, dead body of deceased was found lying on the bed in her house and the appellant was missing from the place. He would further submit that at the instance of the appellant, SIM card belongs to the deceased was recovered from his possession. He would lastly submit that

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the impugned judgment has been passed on due appreciation of the evidence and in accordance with law, hence, appeal is liable to be dismissed. 10. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection.

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The first question for consideration before this Court is whether death of deceased Asha was homicidal in nature? 12. Dr. Jai Kumar Chunarkar (PW-8) has conducted postmortem of dead body of the deceased and prepared postmortem report (Ex-P/12), in which, he found various internal and external injuries on her neck, as such, he opined that death is on account of asphyxia due to throttling and the mode of death was homicidal in nature. After hearing learned counsel for the parties and after considering the submissions advanced by learned counsel for the parties, we are of the considered opinion that the finding recorded by the trial Court that death of Asha was homicidal in nature, is finding of fact based on evidence available on record. It is neither perverse nor contrary to record, therefore, we hereby affirm that finding.

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The next question for consideration would be whether it is the appellant who has caused murder of deceased Asha?

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In the instant case, undisputedly, there is no direct evidence against the appellant, rather case of the prosecution is based on two circumstantial evidence. Firstly, alleged SIM card of the deceased was seized from the pocket of the trouser of the appellant, which he was wearing and secondly, ‘last seen together’.

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Devdas Markande (PW-1) is brother of the deceased, Manrakahan Gaada (PW-3) is maternal grand-father of the deceased and Heeralal Markande (PW-4) is father of the deceased. As per the deposition of

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these witnesses, deceased Asha used to go to other States i.e. U.P. & Bihar to perform dance and singing programme and she had been doing this work for many years. Prior to 7-8 months of the incident, when Asha returned, she brought the appellant with her and thereafter they were residing together as husband and wife in her house at Dalli Rajhara, but they had not performed marriage. These facts have not been controverted by the defence counsel in their cross-examination, as such, it is established that prior to 7-8 months of the incident, the appellant had come with the deceased and residing with her as husband and wife. But as per record of the prosecution, the appellant was not residing with her continuously for 7-8 months, rather after coming he had left the place, but in between, he used to visit the deceased and used to reside with her in her house and at the time of the incident also he was residing with the deceased.

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So far as the circumstance, i.e. seizure of SIM card of the deceased from the pocket of the trouser of the appellant which he was wearing is concerned, the trial Court itself has not believed this fact, as such, it has disproved it because the investigating officer Manish Sharma (PW-11) has himself deposed that prior to arrest of the appellant, search was made upon him and in that search, nothing was recovered from him, whereas, as per the memorandum statement (Ex-P/9) of the appellant, he had kept the SIM card bearing number 6207232105 in the pocket of his pants/trouser and the same was seized from him. Further, Manish Sharma (PW-11) has admitted in his cross-examination that, he did not know in whose name the SIM card was. Therefore, we affirm the finding of the trial Court that neither recovery of SIM card from the appellant has been proved nor there is any other evidence to prove the fact that, that SIM card belonged to deceased Asha.

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So far as the circumstance of ‘last seen together’ is concerned, to prove this fact, there is only one witness i.e. Manrakhan Gaada (PW-3), who was maternal grand-father of the deceased.

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Manrakhan Gaada (PW-3) has stated in his deposition that in the morning of 11.01.2020, his wife Kalinbai went to the house of Asha to wake her up and after coming back from there, she told him that she had gone to wake Asha up but her voice was not heard, then this witness himself went to the house of Asha and found the house locked from outside, therefore, he broke the lock and went inside the house and saw Asha lying dead on the bed. He found that the neck of Asha was twisted and red marks were visible on her neck. He has further deposed that on 10.01.2020, when he went to Asha's house at night, he saw that accused/appellant Santosh Soni was also there and they were cooking food and on 11.01.2020, when he went to her house, he found her dead and the appellant was not there, rather he fled away. Thus, as per his evidence, he did not see the appellant with Asha in and around the house of the deceased after her murder. Other witnesses, i.e. Devdas Markande (PW-1) brother of the deceased, Smt. Champa Sahu (PW-2) who is neighbour of the deceased, Heeralal Markhande (PW-4), father of the deceased, Jagat Nishad (PW-5), reached on the spot subsequent to finding of dead body of Asha on 12.01.2020. Thus, there is no other witnesses, except Manrakahn Gaada (PW-3) in respect of last seen the appellant with the deceased. But this witness has deposed in his Court statement that in the night of 10.01.2020, he had seen the appellant with the deceased in their house and at that time they were cooking food and on the next day i.e. 11.01.2020, Asha was found dead in her house. He has admitted the suggestion of learned defence council that in the morning of 11.01.2020 and thereafter in the night and in the next day i.e. 12.01.2020, he

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had not seen the accused, whereas, as per his police statement, he had seen them together in the night of 11.01.2020 and on the next day i.e. 12.01.2020, he saw dead body of Asha in her house. But again he has admitted the suggestion of learned defence counsel in his cross-examination that on 10.01.2020, 11.01.2020 & 12.01.2020, he had not seen the appellant coming in the house of Asha (deceased). He firmly stated that he had seen the appellant in her house on 10.01.2020. He has also not stated in his police statement recorded under Section 161 CrPC (Ex-D/2) that when he saw the appellant in the house of the deceased, at that time, they were preparing food. Thus, in the night of which date, i.e. 10.01.2020 or 11.01.2020, he had seen the appellant with deceased Asha, is itself contradictory. Further, the manner in which he entered in the house of the deceased, when he saw the dead body, is also contradictory, because, as per his deposition, when he went to the house of Asha, he saw that outside door of her house was locked, therefore, he broke the lock and entered into the house, thereafter he saw the dead body of the deceased lying on the bed, but as per the Police statement, (Ex-D/2), when he went to her house, then he found that outside door was closed from inside. Therefore, with the help of other people, he put his hands through the hole of the door and removed its latch and opened it. Thereafter he saw the dead body of Asha.

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Having considered the aforesaid contradictions as to on the night of which date he had seen the appellant in the house of the deceased and material omissions in respect of what they were doing on that night and further contradictions in the manner in which he entered in to the house of the deceased, as such only on the basis of his such vague statements of last seen the appellant with the deceased is not found to be believable beyond reasonable doubt.

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It is settled preposition of law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. For this, all the circumstances should be completed, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

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The cases which rest on circumstantial evidence, the Hon’ble Supreme Court has laid down cardinal factors to be taken into account in adjudication of cases of circumstantial evidence. In the case of Sharad Birdhichand Sarda vs. State of Maharastra¹ has clearly laid down the factors to be taken into account in adjudication of cases of circumstantial evidence, which states as under:-

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“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established.

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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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1 (1984) 4 SCC 116

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Likewise, it is also well settled and the consistent view of the Supreme Court that where the only circumstantial evidence taken resort to by the prosecution is that the accused and the deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt.

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In the matter of State of Goa vs. Sanjay Thakran² 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 persons 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

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2 (2007) 3 SCC 755

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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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In the matter of State of Rajasthan v. Kashi Ram³ , the Supreme Court while dealing with last seen theory held as under: -

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“23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in

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3 (2006) 12 SCC 254

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discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re.⁴ “

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In the matter of Rambraksh alias Jalim v. State of Chhattisgarh⁵ the Supreme Court relying upon the aforesaid judgments has held that normally, last seen theory comes into play where time gap, between the point of time when accused and deceased were seen last alive and when deceased is found dead, is so small that possibility of any person other than accused being the perpetrator of crime, becomes impossible. The Supreme Court held as under:-

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“12. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.”

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5 (2016) 12 SCC 251

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4 AIR 1960 Mad 218 : 1960 Cri LJ 620

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Further in the case of Anjan Kumar Sarma vs. State of Assam⁶ their Lordships of 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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Recently the Hon’ble Supreme Court while considering the case on the basis of circumstantial evidence has reiterated aforesaid principle of law in the case of Nasrat Parween vs. State of Jharkhand⁷ in para 17 as under:-

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“17. It is a cardinal principle of criminal jurisprudence that Section 106 of the Evidence Act shall apply and the onus to explain would shift on to the accused only after the prosecution succeeds in establishing the basic facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer a proper explanation about the existence of the said other facts, the Court can draw an appropriate inference against the accused. In cases based on circumstantial evidence, the accused's failure to provide a reasonable explanation as required under Section 106 of the Evidence Act can serve as an additional link in the chain of circumstantial evidence - but only if the prosecution has already established other essential ingredients sufficient to shift the onus on to the accused. However, if the prosecution fails to establish a complete chain of circumstances in the first place, then the accused's failure to discharge the burden under Section 106 of the Evidence Act becomes irrelevant.”

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7 2024 SCC OnLine SC 3683

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6 (2017) 14 SCC 359

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Applying the aforesaid principle of law to the case at hand, as has been stated in the preceding paragraphs that Manrakhan Gaada (PW-3), is the sole witness of last seen the appellant with the deceased, but his deposition itself is highly contradictory and also contain material omissions, as on the night of which date he had seen the appellant lastly with the deceased and the way in which he entered into the house are full of contradictions and the manner in which he saw the appellant with the deceased is also contain material omissions. Further as per the case of the prosecution, he saw the appellant with deceased Asha at 8.00 pm in the night and on the next day at 11.00 am Asha was found dead. Thus, gap between these two timings are about 15 hours. As per the deposition of Smt. Champa Sahu (PW-2) and Manrakhan Gaada (PW-3), since the deceased used to do dance and singing programme, other persons/her friends often used to come to her house to meet her. Therefore, having considered the time gap and the fact that various other persons also used to visit the deceased at her house, the last seen theory projected by the prosecution against the appellant is found to be very weak and doubtful. As such, conviction of the appellant cannot be based on such weak and doubtful evidence, as no other incriminating circumstances which leads to the hypotheses of guilt against the appellant have been proved by the prosecution. Therefore, we are of the considered opinion that the trial Court is absolutely unjustified in convicting the appellant for the offence under Section 302 IPC, as it would be unsafe to rest conviction only on the theory of ‘last seen together’, which itself is very weak and doubtful.

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As a fallout and consequence of the aforesaid legal analysis, the criminal appeal filed on behalf of appellant – Santosh Kumar is allowed. Impugned judgment dated 01.4.2023 passed by First Upper Sessions Judge,

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Balod, Distt. Balod in Session Trial No.16/2021, convicting and sentencing the appellant for offence under Section 302 IPC is hereby set aside. The accused/appellant is acquitted of the said charge levelled against him. He is in jail. He shall be set at liberty forthwith if no longer required in any other criminal case.

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The appellant is directed to file personal bond and one surety in the like amount to the satisfaction of the Court concerned in compliance with Section 480 of the Bhartiya Nagrik Suraksha Sanhita, 2023.

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Let a copy of this judgment and original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.

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Sd/Sd/( Naresh Kumar Chandravanshi ) ( Ramesh Sinha ) Judge Chief Justice

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Bini

Santosh Kumar v. State of Chhattisgarh

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Santosh Kumar v. State of Chhattisgarh

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