ANIL SONI @ RINKU vs STATE OF CHHATTISGARH

This criminal appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as

the Cr.P.C. in short) against the judgment dated 13th March, 2013 passed by the 3rd Additional Sessions Judge, Bilaspur (C.G.) in Sessions Trial

No.141/2012 whereby the appellant has been convicted under Section 302 of the Indian Penal Code (for brevity, the IPC) and sentenced to life

imprisonment with fine amount of Rs.1,000/- and, in default of payment of fine amount, he has to undergo additional imprisonment for one month.

Case of the prosecution, in short, is that on 02.05.2012 at 10.00 pm, theaccused/appellant Anil Soni along with his friend Sudhir Sharma came to the

deceased Prakash Chand Agrawal at his quarter No.39 and took him to the terrace of the third floor of the same building and because of their

previous enmity they killed him by throttling his neck and absconded after keeping the dead body near the water tank of the terrace.

Based upon the aforesaid incident, merg intimation (Ex.P.1) was lodged bythe deceased's brother Makhanlal Agrawal on 03.05.2012 at 06.15 am

and on the strength of merg intimation (Ex.P.1), F.I.R. (Ex.P.32) was registered at 18:15 hours (06.15 pm) by the Station House Officer, Civil Lines,

Bilaspur (C.G.) against the two accused persons, namely, Anil Soni and Sudhir Sharma under Sections 302, 201 and 34 of the IPC. Inquest was

conducted on the body of the deceased vide Ex.P.3 on 03.05.2012. After the inquest, dead body was sent for autopsy. Post-mortem examination was

conducted by Dr. R.K.Shukla (P.W.9) on 03.05.2012, who gave post-mortem report (Ex.P.27) by opining that cause of death is respiratory arrest due

to asphyxia resulting from throttling.

After investigating the matter, the offence punishable under Section 302, 201 & 34 of IPC has been registered against the appellant Anil Soni and

one Sudhir Sharma by the concerned Station House Officer, who submitted its final report before the Chief Judicial Magistrate, Bilaspur on

29.07.2012 and the matter was thereafter committed to the District and Sessions Judge,

Bilaspur for its trial.

After considering the prima facie materials available on record, charges underSection 302 read with Section 34 and 201 of IPC have been framed

against the appellant Anil Soni and one Sudhir Sharma on 25.08.2012. They pleaded not guilty in connection with the aforesaid crime, as framed, and

claimed to be tried.

In order to prove the guilt, the prosecution has examined as many as 14witnesses while none was examined by the accused persons in their

defence.

After considering the evidence led by the prosecution, the trial Court, vide itsimpugned judgment, has convicted the appellant and sentenced him as

aforesaid while acquitting the co-accused Sudhir Sharma of the commission of the alleged crime. Hence, this appeal.

Being aggrieved, the appellant has preferred this appeal. Shri Gagan Tiwari,learned counsel for the appellant submits that the judgment under

appeal as passed by the Court below is apparently contrary to law as the same has been passed without considering the evidence in its proper

perspective. He submits that there is no eye-witness and based upon the weak circumstantial evidence, the trial Court ought not to have convicted the

appellant with regard to the offence punishable under Section 302 of the IPC. He submits further that the theory of last seen together cannot by itself

form the basis of holding the appellant guilty of the alleged offence. In support, he placed his reliance upon the decisions rendered in the matters of

Kanhaiya Lal v. State of Rajasthan reported in (2014) 4 SCC 715, Ashok v. State of Maharashtra reported in (2015) 4 SCC 393 and Anjan Kumar

Sarma and others v. State of Assam reported in (2017) 14 SCC 359 and submitted that the judgment impugned as passed by the trial Court is perverse

in the eye of law and deserves to be set aside.

On the other hand, Shri Vivek Sharma, learned counsel for the State supported the impugned judgment by submitting, inter alia, that it has been

passed upon due consideration of the statement of the wife of the deceased, namely, Maya Agrawal (P.W.13) along with other documentary

evidence, and therefore, does not require to be interfered.

We have heard learned counsel for the parties and perused the entire record carefully.

Smt. Maya Agrawal (P.W.13) is the wife of deceased Prakash Chand Agrawal. She has stated in her evidence that on the date of incident, i.e.,

on 02.05.2012 at 10.00 pm she along with her family members was watching the T.V. at their Government quarter No.39. At the relevant time,

someone rang the door bell. Upon hearing so, she opened the door and saw the appellant Anil Soni standing outside the house/quarter, who enquired

about her husband. Upon queries being raised by her (deceased's wife), he replied that there is some work with him and asked her to send him to the

terrace of the said building as he is also the resident of quarter No.41 of the same building. She informed her husband that Anil Soni is calling you,

then her husband came out and told her that he will come back. She has stated further in her cross-examination at para 14 that both went towards

terrace of the said building. She has stated further that when her husband did not come back even by 11.10 pm, then she went to the quarter No.41

and knocked the door in order to know the whereabouts of her husband whereupon one Ashwini Soni, the relative of the appellant, opened the door

and informed that her husband is sleeping inside the house and will come in the morning. This witness has stated further that she went to the terrace

also but could not see anything due to darkness and thereafter she came back to her home and went to sleep but could not have a sound sleep. Due to

which, she got up at 2.30 am and found that the lights of quarter No.41 were on and suspected why the lights were on even at that time and thereafter

she fell asleep. She has further stated that the next morning she went to the terrace of the said building where she found the dead body of her

husband lying near the water tank. She immediately informed to one Painkra, who is residing in front of her quarter. He, in turn, upon seeing the dead

body informed the same to deceased's elder brother Makhanlal Agrawal, who was on duty at that point of time at Police Control Room, Bilaspur.

After his arrival, she narrated the entire story of the incident.

This witness (P.W.13) has stated further that her husband had seen theaccused persons coming along with the girls and they often used to bring

the girls and consume liquor. She has stated further that her husband told the accused Anil Soni for stopping of all these activities as members of the

colony are living with their families. This fact was informed by her husband and upon knowing it she advised her husband not to interfere in their

matter. According to her, this might have been the reason of conspiracy being hatched by them to eliminate her husband.

Makhanlal Agrawal (P.W.1), brother of the deceased, is Head Constable in Police Control Room and was on duty on the fateful day. He has

stated that Government quarter No.39 was allotted to him wherein he resides along with his deceased brother and his family members. He received

the information from one of his colleagues regarding the death of his brother and immediately, after getting the said information, he rushed to the

house where Maya Agrawal, the deceased's wife, narrated the entire incident to him. Thereafter, he lodged the merg intimation (Ex.P.1) on

03.05.2012. Sunil Kumar (P.W.2) is a Constable and was witness to the Panchnama (Ex.P.5). Gajpati Sidar (P.W.3) is a Revenue Inspector, who has

prepared the Nazri Naksha (spot map) (Ex.P.11) on 15.06.2012. Yogesh Agrawal (P.W.4) is a witness to the seizure memo Ex.P.13 & Ex.P.15.

Rajendra Singh (P.W.5) is a Head Constable and reached to the said quarter where people gathered. These witnesses are, thus, formal in nature.

Shiv Kumar (P.W.6) is the witness to the inquest (Ex.P.3) and has turnedhostile. Balram Singh Thakur (P.W.7) is the witness of memorandum

(Ex.P.18 & Ex.P.19) and also of the seizure memos (Ex.P.20 & Ex.P.21) but has not supported the prosecution story and turned hostile. Dilip Tiwari

(P.W.8) is a formal witness, who has taken the photos of dead body from different angles. Dr. R.K.Shukla (P.W.9) is the medical officer, who has

conducted the postmortem examination on the dead body on 03.05.2012 and has submitted his post-mortem report (Ex.P.27) giving opinion as to cause

of death on account of respiratory arrest due to asphyxia resulting from throttling. Ishwar Singh Thakur (P.W.10) is a formal witness and has turned

hostile. Likewise, Vikram Singh Thakur (P.W.11) has also turned hostile without supporting prosecution case. Santosh Sharma (P.W.12) and Ajay

Shankar Tripathi (P.W.14) are investigating officers and have supported the prosecution case.

From perusal of the statements of aforesaid prosecution witnesses, it isevident that there is no eye-witness to the incident occurred on 02.05.2012

and the entire case is based upon the statement of deceased's wife Maya Agrawal (P.W.13) and that by considering her evidence, the trial Court has

convicted the appellant in relation to the commission of crime in question.

In view of the aforesaid facts and circumstances, we are, therefore, focusingon her (P.W.13) evidence in order to ascertain the fact as to the

involvement of the appellant in crime in question. As reflected from her testimony, it has unequivocally come on the surface that on the fateful day,

i.e., on 02.05.2012 at 10.00 pm, the deceased's wife Maya Agrawal (Ex.P.13) was watching the T.V. along with her family members and at that

relevant time, the accused Anil Soni came and upon his calling her husband Prakash Chand Agrawal, both went to terrace. It is also not in dispute that

the dead body of her husband has been found near the water tank of the terrace of quarter No.41 where the appellant along with his family members

was residing. No such evidence is available on record, by which, it could be held that he was alive thereafter during the said period and/or after

leaving the company of the appellant. Pertinently to be noted here that both, the deceased and the appellant, were the residents of the same building

situated at Police line, Bilaspur (C.G.). The deceased Prakash Chand Agrawal was residing with his family members at quarter No.39 of the said

building while appellant at quarter No.41. Once it has come on record, as we gathered from the testimony of the deceased's wife Maya Agrawal

(P.W.13), that deceased had accompanied the appellant Anil Soni in the night to the terrace of the said building and has not returned even by the time

when his wife went for sleeping, then in such circumstances, the appellant was under an obligation to show by placing the cogent and clinching

evidence that the deceased was alive during that relevant period. However, no evidence as such, pointing out the said fact, was placed on record by

the appellant so as to hold that the deceased was alive after leaving his company. Since the deceased was found dead in the terrace of the same

building during the period where it was not possible for anyone else either to meet him or to approach him at the place of occurrence, therefore, in

absence of any evidence as required to be established by him under Section 106 of the Indian Evidence Act, 1872 (for short, the Act of 1872), the

only conclusion would, therefore, be that the appellant Anil Soni alone is responsible for the alleged crime.

It is true that the circumstances of last seen together, as contended by ShriGagan Tiwari, cannot by itself form the basis of holding the appellant

guilty of the offence, but it would be a relevant circumstance in a case, like the present one, where there was no possibility of any other person either

to meet the deceased or approach him at the place of incident or before the commission of crime in the intervening period. Therefore, the contention

of learned counsel for the appellant, under such circumstances, cannot be accepted.

18.1 We shall now consider the case laws cited by the learned counsel for the appellant. The reliance as placed in the matter of Ashok v. State of

Maharashtra (supra) is, however, noted to be distinguishable. The facts involved in the said case were entirely on different footing with that of the

instant case. That is the case where three persons, namely, the wife and minors of the appellant were found dead respectively on 29.08.2008 and

30.08.2008 and the first information report was lodged only on 27.09.2008, i.e., after lapse of about one month and the prosecution has evidently failed

to offer any explanation whatsoever in lodging such a delayed F.I.R. In that factual scenario, the Hon'ble Supreme Court has not accepted the theory

of last seen together. However, in the instant case, the deceased was called upon by the appellant Anil Soni in the night at 10.00 pm on the fateful day

and his dead body was found on the terrace of quarter No.41 of the same building on the next day morning. Therefore, in absence of any explanation

offered by the appellant in this regard, as required under Section 106 of the Act of 1872, the reliance as placed by the counsel for the appellant would

not be of any helpful to him.

18.2 Likewise, the principles laid down in the matter of Kanhaiya v. State of Rajasthan (supra), as relied upon by Shri Gagan Tiwari, are also

distinguishable from the facts involved in the present case. In that case, although the deceased (Kala) was seen with the accused (Kanhaiya Lal) on

the fateful day, but it was observed by the Supreme Court that the motive as alleged in the said case that the appellant Kanhaiya Lal had illicit relation

with the wife of the deceased's younger brother was not found to be proved. Contrarily, it was found that there was no dispute between them and

instead they had cordial relationship for a long time. As a consequence, it was held that in absence of proof of motive, the conviction merely on the

basis of last seen theory cannot be held to be sustainable. However, in the instant matter, the deceased had raised objection against the appellant

bringing girls in the colony and that was the motive, by which, the appellant committed the alleged offence.

18.3 Similarly, further reliance of counsel for the appellant in the matter of Anjan Kumar Sarma and others v. State of Assam (supra) would also not

be of any helpful to him as the principles laid down in the said matter is fully distinguishable from the facts of the present case.

The Supreme Court, however, while considering the theory of last seentogether in the matter of Trimukh Maroti Kirkan v. State of Maharashtra

reported in (2006) 10 SCC 681 has explained the same at paragraph 22 of its judgment as under:

“22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly

before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it

has been consistently held that if the accused does not suffer any explanation how the wife received injuries or offers an explanation which is found to

be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P., (1972) 2 SCC

80 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri†and the fact

that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State

of Maharashtra, (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that

when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his

statement under Section 313 CrPC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with

the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In

State of U.P. v. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300, the medical evidence disclosed that the wife died of strangulation during late night

hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide

by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and

their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of

circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the

judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of T.N. v. Rajendran (1999) 8 SCC 679 the

wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00

p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire

which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation

and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who

was the perpetrator of the crime.â€​

Yet, in the case of State of Goa v. Sanjay Thakran and another reported in (2007) 3 SCC 755, it has been held by the Supreme Court at paragraph

34 as under:

“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 seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket 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 of 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.â€​

By applying the principles as laid down by the Supreme Court in the facts and circumstances of the present case and considering the fact that the

deceased was found dead in the same building where appellant also resides and that in absence of any explanation offered by the appellant as

required under Section 106 of the Act of 1872, the only conclusion would, therefore, be that the appellant Anil Soni alone is responsible for the

commission of alleged offence punishable under Section 302 of the IPC. The trial Court has, therefore, not committed any illegality by placing its

reliance upon the evidence of Maya Agrawal (P.W.13) in arriving at a conclusion that the appellant is the author of the crime and is liable to be

punished under Section 302 of the IPC. We, therefore, uphold the said finding.

Consequently, we do not find any substance in this appeal. This appeal is accordingly dismissed.