Chamra Dhanwar vs State of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC preferred by the appellants-accused persons is directed against the impugned judgment of conviction and order of sentence dated 05.03.2016 passed by the learned 1st Additional Sessions Judge, Raigarh, Chhattisgarh in Sessions Trial No. 04/2016 by which appellants have been convicted for offence under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life and to pay fine of ₹ 1,000/- each; in default of payment of fine additional rigorous imprisonment for three months and for offence under Section 201 of the IPC and sentenced to undergo rigorous imprisonment for 1 year and to pay fine of ₹ 500/- each; in default of payment of fine additional rigorous imprisonment for one month.

Case of the prosecution, in nutshell, is that on 14.10.2015 at about 7:00 pm, at village Pordamuda Darha, appellants herein namely Chamra Dhanwar (A-1) & Ghasno Bai (A-2), assaulted Mahettar Dhanwar by hand & fist and thereafter, strangulated him by which he suffered grievous injuries and died. To screen themselves from the offences, appellants herein burnt the dead body of the Mahettar Dhanwar and hide it under the bridge and thereby, committed the aforesaid offences. It is further case of the prosecution that Mahettar Dhanwar (now deceased) had gone to village Porda with his cousin brother Etwar (PW-1). On the date of offence, in the night, Mahettar Dhanwar met with two appellants herein near Murra Darha canal, which was witnessed by Rameshwar Shrivas (PW-3). Thereafter, appellants (A-1 & A-2) strangulated Mahettar Dhanwar and burnt his dead body and hide it under the bridge. Merg intimation and FIR were registered vide Exs. P/2 & P/11, respectively. Inquest proceedings were conducted vide Ex.P/4 and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/14) proved by Dr. A.K. Minj (PW-9), cause of death is cardio respiratory arrest due to strangulation intrathoracic hemorrhage and nature of death is homicidal. Memorandum statement of A-1 has been recorded vide Ex.P/5. From the spot empty matchbox, burnt pieces of tyre and ash were recovered vide Exs. P/6 & 7.

After due investigation, appellants were charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence.

In order to bring home the offences, prosecution has examined as many as 10 witnesses and exhibited 17 documents and defence in support of its case has neither examined any witness nor exhibited any document.

The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused persons for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

Mr. Manoj Kumar Jaiswal, learned counsel for the appellants, would submit that appellants have falsely been implicated in crime in question and they have been convicted by recording a finding which is perverse to the record. He would further submit that the appellants herein could not be convicted only on the basis of theory of last seen without corroboration as there is no other evidence brought on record by the prosecution and, therefore, the involvement of the appellants could not be proved beyond reasonable doubt. He would further submit that appellants are in jail since 20.10.2015, as such, the impugned judgment deserves to be set aside and appellants deserve to be acquitted.

On the other hand, Mr. Ashish Tiwari, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would further submit that theory of last seen has been fully established by the prosecution and, therefore, the instant appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

Now, the first question for consideration would be whether the death of the deceased was homicidal in nature ?

In this regard, the learned trial Court has recorded the finding in affirmative that the death of Mahettar Dhanwar was homicidal in nature on the basis of postmortem report (Ex.P/14) which was proved by Dr. A.K. Minj (PW-9) and which is the 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.

Now, the next question for consideration would be whether the appellants are author of the crime in question?

The Mahettar Dhanwar (deceased) and two appellants were last seen alive by Rameshwar Shrivas (PW-3) near Murra Darha canal at about 7:00 pm on the date of offence i.e. 14.10.2015 and thereafter, the dead body of the deceased was found on 15.10.2015 at about 7:00 am vide Ex.P/2, which is one of the basis of incriminating circumstances found established by the trial Court in para 13 of the impugned judgment.

Now, question for consideration would be whether the trial Court has justified in convicting the appellant on the basis of last seen together? It would be appropriate to notice the relevant decisions qua the theory of last seen together.

In the matter of Jaharlal Das v. State of Orissa (1991) 3 SCC 27, 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.

In the matter of Arjun Marik v. State of Bihar 1994 Supp (2) SCC 372, 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 :-

“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 tothough 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.”

16.Likewise, in the matter of State of Goa v. Sanjay Thakran (2007) 3 SCC 755, 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 :-

“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. ”

17.Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan (2014) 4 SCC 715, 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 :-

“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 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.

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.”

In the matter of Anjan Kumar Sarma v. State of Assam (2017) 14 SCC 359, 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.

In the matter of Navaneethakrishnan v. State by Inspector of Police (2018) 16 SCC 161, 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: -

“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.”

In the matter of State of Goa v. Sanjay Thakran and another (2007) 3 SCC 755, their Lordships of the Supreme Court found that there was considerable time gap of approximately 8½ hours when the deceased was last seen alive with the accused persons and their Lordships held that there being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.

Coming to the facts of the present case in the light of the aforesaid decisions of the Supreme Court, it is quite vivid that though the appellants herein and the deceased were last seen together by Rameshwar Shrivaw (PW-3) on 14.10.2015 at 7:00 pm and thereafter, dead body of the deceased was recovered on 15.10.2015 at about 7:00 am, but between the time of last seen together of appellants herein and the deceased and recovery of dead body there is a considerable time gap of 12 hours and, as such, it cannot be concluded that it is only the appellants herein are the authors of the crime in absence of corroboration.

Now, the question is whether the prosecution has able to bring the corroborative piece of evidence to prove the offence against the two appellants herein ?

The trial Court has held that pursuant to memorandum statement of A-1 (Ex.P/5), empty match box, burnt tyre and ash were recovered vide Exs. P/6 & P/7. A careful perusal would show that all the aforesaid articles have been seized from the place of occurrence i.e. an open place, and the said articles were not seized from the possession of the appellants herein pursuant to their memorandum statements. Therefore, such recovery allegedly made pursuant to the memorandum statements of the appellants herein is of no use to prosecution. Further, in corroboration, the trial Court has found proved that the two appellants herein have taken tyre from the house of Budhram (PW-6) on 14.10.2015 at 8:00 pm which was found burnt near the place of occurrence, however, it is not established that same tyre, which was taken by the two appellants herein from the house of Budhram (PW-6), was found burnt on the place of occurrence. It is pertinent to mention here that in the postmortem report (Ex.P/14) proved by Dr. A.K. Minj (PW-9), no burn injury was found over the body of the deceased. As such, though the prosecution has able to prove that two appellants herein and the deceased were last seen together, but as per statement of Rameshwar Shrivas (PW-3), they were not quarrelling. Consequently, in absence of corroboration and in view of the decisions rendered their Lordships of the Supreme Court, it would be unsafe to convict the two appellants herein for offence under Section 302 of the IPC and we are unable to uphold the conviction of the two appellants herein for offence under Section 302 read with Section 34 of the IPC and Section 201 of the IPC and they are entitled for benefit of doubt. The appellants are reported to be in jail since 20.10.2015, we direct that they be released from the jail forthwith, if not required in any other matter.

This criminal appeal is allowed.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where they are lodged and suffering jail sentence, forthwith for necessary information and action, if any.