Shiv Rajak Vs State Of Chhattisgarh

Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellant herein, is to the legality, validity and correctness of the judgment dated 23.06.2014 passed by the 1^st Additional Sessions Judge, Bilaspur, Chhattisgarh, in

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Sessions Trial No. 97/2013, by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer rigorous imprisonment for life with fine of 1,000/-; in default of payment of fine, he has to₹ undergo rigorous imprisonment for 4 months.

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Prosecution story:-

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The prosecution projected the case during the course of trial is that on 12.03.2013, at about 11:25 pm, at Uslapur Over Bridge, District Bilaspur, the appellant pushed his co-brother Rajkumar, by which he fell down from the bridge and suffered grievous injuries and died, thereby, committed the aforesaid offence. Against the aforesaid incident numbered and unnumbered merg intimations were registered vide Exs.P/9 & P/11, respectively. Numbered and unnumbered FIR were registered vide Exs.P/16 & P/17, respectively. Spot map was prepared vide Ex.P/07. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for the postmortem. As per postmortem report (Ex.P/8) proved by Dr. Anshul Lal (PW-10), cause of death was haemorrhage and shock due to cardio-respiratory failure. Wheels of investigation started running and the appellant was arrested. Pursuant to memorandum statement of the appellant (Ex.P/5) motorcycle was seized vide Ex.P/4.

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After due 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.

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In order to bring home the offence, prosecution has examined as many as 18 witnesses and exhibited 17 documents, whereas, defence, in support of its case, has examined 1 witness and exhibited 3 documents. The statement of the 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.

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The 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 the judgment, against which the instant appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Submission of the Parties:-

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Mr. Roop Naik, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified on convicting

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appellant for offence in question. He would also submit that according to the prosecution case as disclosed by merg intimation (Ex.P/9) that on the date of incident the appellant and the deceased both had consumed liquor while returning home and on the way at the over bridge they stopped as insisted by the deceased for having more liquor, which was opposed by the appellant and at that time deceased lost his balance and fell down from the bridge due to which he suffered grievous injuries and died, as such, no offence would be made out against the appellant and even the theory of last seen together is also not established. Therefore, the appeal deserves to be allowed and the appellant is entitled for acquittal on the basis of benefit of doubt.

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Mr. Pankaj Singh, learned State counsel, would oppose the prayer made by learned counsel for the appellant and submit that the trial Court has rightly convicted the appellant for the offence in question relying upon the theory of last seen together, therefore, the appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submission made herein above and gone through the records precisely.

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Discussion & Analysis:-

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The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/8) proved by Dr. Anshul Lal (PW-10) and other evidences available on record, which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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Now, the question for consideration would be whether the appellant has assaulted the deceased?

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The case of the prosecution is based on the theory of last seen together which the trial Court has found established on the basis of statement of Pradeep Kumar (PW-2), Ganesh Rajak (PW-5) and Arun Kumar (PW-6) and recovery of motorcycle pursuant to memorandum statement of the appellant.

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Theory of last seen together:-

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It is not in dispute that the appellant and deceased were cobrothers and on the date of offence they have consumed liquor in the liquor shop situated at Sakari main road, as proved by

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Pradeep Kumar (PW-2), Ganesh Rajak (PW-5) and Arun Kumar (PW-6) and thereafter, from the liquor shop they were going towards their village. On the way to the village, at the over bridge, deceased is said to have insisted for some more liquor, which the appellant objected on account of which the dispute arose and due to intoxicated state, the deceased lost his balance and fell down from the bridge and suffered grievous injuries which is apparent from the merg intimation (Ex.P/9), proved by Investigating Officer V.P. Thakur (PW-18) in para 6 of his statement.

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So far as the theory of last seen together, though it has been found proved by the trial Court on the basis of statements of PW-2 , PW5 & PW-6, but the Supreme Court in the matter of Navaneethakrishnan v. State by Inspector of Police 1, 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

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1 (2018) 16 SCC 161

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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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Coming to the facts of the present case in light of the principles of

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law laid down by their Lordships of the Supreme Court in the above-stated decision, it is quite vivid that the theory of last seen together established to the extent that the appellant and the deceased started going together from the Jain International School to the place where they had consumed liquor i.e. liquor shop situated at Sakari main road, however, thereafter, nobody had seen the appellant and the deceased together near the bridge while consuming the liquor or while fighting with each other. Therefore, it could not be established that after consuming the

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liquor from the liquor shop, they were seen near or over the bridge or fighting with each other, as such, theory of last seen together is not clearly established beyond reasonable doubt as the dead body was not found at the place where they had consumed liquor i.e. liquor shop at Sakari main road, and the dead body was found near the over bridge and there is considerable distance from where the appellant and deceased consumed liquor and the where the dead body was found. Thus, the theory of last seen together is not established, even if it is assumed to be established, the corroboration is required to support the theory of last seen together in light of decision of the Supreme Court in the matter of

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Navaneethakrishnan (supra) which the prosecution has failed to establish.

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Furthermore, seizure of motorcycle vide Ex.P/4 cannot be taken as a corroborative piece of evidence in view of the fact that it was neither proved to be owned by the appellant nor it was proved to be used by the appellant in commission of the offence. Moreover, merg intimation (Ex.P/9) recorded under Section 174 of the CrPC which is the document of the prosecution, in which it is clearly mentioned that died on account of falling from the over bridge after consuming the liquor. As such, it would be unsafe to convict the appellant on the basis of statements of PW-2 , PW-5 & PW-6,

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witnesses of the last seen together and, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt.

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Conclusion:-

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In view of the aforesaid discussion and analysis, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 23.06.2014 passed by the trial Court convicting and sentencing the appellant for the offence in question, is hereby set aside and the appellant is entitled for acquittal on the basis of principle of benefit of doubt. Since the appellant is stated to be on bail, he need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC.

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

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Sd/- Sd/- (Sanjay K. Agrawal) (Arvind Kumar Verma) Judge Judge

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Ankit

Shiv Rajak v. State Of Chhattisgarh

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Shiv Rajak v. State Of Chhattisgarh

Case brief

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