Hulas @ Khulas @ Khubu vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) By way of this criminal appeal filed under Section 374(2) of Cr.P.C., the accused-appellants are calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 28.11.2013, passed by the Court of learned Addl. Sessions Judge, Sakti, District Janjgir-Champa (Chhattisgarh), in Sessions Trial No.104/2011, whereby they have been convicted for offence under Section 302 read with Section 34 of IPC and sentenced to undergo life imprisonment with fine of Rs.80,000/- and, in default of payment of fine, additional rigorous imprisonment of 04 years.

(2) The case of the prosecution, in short, is that between 13.02.2011, at about 07:00 AM, to 17.02.2011, at about 09:30, at Village Kashigarh within the ambit of Police Station Jaijaipur, District Janjgir-Champa (Chhattisgarh) the accused-appellants herein assaulted Dharam Chandra (hereinafter referred to as the “deceased”) by means of ‘lathi’ and iron rod, due to which he suffered grievous injury and died and, thereby, committed the offence under Section 302, 34 of IPC.

(3) The further case of the prosecution is that on 13.02.2011 at about 09:00 PM the two accused-appellants herein visited the house of the deceased and requested him to accompany them for repairing the electricity line, as he was an electrician, pursuant to which deceased accompanied both of them but did not return back to his house. Thereafter, on 17.02.2011, the dead-body of deceased was noticed by Dharmu Chandra (PW-11), brother of the deceased, and he immediately lodged marg intimation (Ex.P/13). Panchanama for identification of the dead-body of deceased was prepared vide Ex.P/12. Spot map was prepared vide Ex.P/10 and inquest was also conducted vide Ex.P/02. Thereafter, the dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/12), conducted by Dr. Rajkumar Singh (PW-20), the cause of death of deceased remains open, as the dead-body was found in decomposed condition. The appellants-accused were arrested and their memorandum statements were recorded vide Ex.P/ 05 & P/07 respectively and pursuant to memorandum statement of appellant No.01- Hulas recorded vide Ex.P/05, motor-cycle, jacket and full-pant were seized vide Ex.P/06 and, similarly, pursuant to memorandum statement of appellant No.02- Sunder Kahra, iron plier and full-pant were seized vide Ex.P/08. Further, from the place of incident, one iron rod was recovered vide Ex.P/04. Thereafter, all the aforesaid seized articles were sent for FSL examination vide Ex.P/20, but no FSL report has been brought on record for the reasons best known to the prosecution. Further, visara from the dead-body of deceased was also preserved vide Ex.P/21 and same was sent for FSL examination vide Ex.P/22 and in the FSL report (at Page 59 of the paper-book) it was opined that no poisonous substance was found in the said visara. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet in the Court of Chief Judicial Magistrate, Jaijaipur and, the case was committed to the Court of Sessions for trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated.

(4) The prosecution in order to prove its case examined as many as 20 witnesses and exhibited 27 documents apart from the FSL report, whereas the appellants-accused in support of their defence has not examined any witness, but exhibited 08 documents (Ex.D/01 to D/8).

(5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellants for offence under Section 302/34 of IPC and sentenced them as mentioned herein-above, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence.

(6) Mr. Akhtar Hussain, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for the offence under Section 302/34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that the conviction of the appellants is premised on following three incriminating circumstances: (i) theory of last seen together, (ii) extra-judicial confession made by the appellant No.01 before Dharmu Chandra (PW-11) and (iii) recovery of iron plier pursuant to memorandum statement of accused-appellant No.02. All three incriminating circumstances are inadmissible, unsustainable and bad in the eyes of law, as the theory of last seen together was found proved by the learned trial Court in absence of any corroboration; the alleged extra-judicial confession made by the appellant No.01 before Dharmu Chandra (PW-11) does not find mention in the marg intimation (Ex.P/13) lodged by him and also in his Section 161 CrPC statement and, further, there is no FSL report with regard to existence of human blood on the seized item, therefore, seizure of iron plier pursuant to memorandum statement of accused-appellant No.02 and seizure of iron rod from the place of occurrence/spot are of no help to the prosecution. Hence, the present appeal deserves to be allowed and the appellants are liable to be acquitted/discharged from the said offence.

(7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellant for the offence mentioned hereinabove. Therefore, the present appeal deserves to be dismissed.

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

(9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/12), duly proved by Dr. Rajkumar Singh (PW-20), who has conducted the postmortem of the dead-body of the deceased. Accordingly, taking into consideration the postmortem report (Ex.P/12) and the statement of Dr. Rajkumar Singh (PW-20), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.

(10) Now the next question would be whether the learned trial Court has rightly held the accused-appellants herein as perpetrator of the crime in question ?

(11) In order to convict the two appellants herein the learned trial Court has found proved the following three incriminating circumstances: (i) the evidence of last seen together, (ii) the extra judicial confession made by the accused-appellant No.01 before Dharmu Chandra (PW-11) and (iii) the recovery of iron plier pursuant to memorandum statement of accused-appellant No.02, as projected/ relied upon by the prosecution. We will deal/consider each of the aforesaid incriminating circumstances one by one.

(12) As regards incriminating circumstance No.(i) vis-a-vis theory of last seen together: In order to prove the story of last seen together, the prosecution has adduced the evidences of Sushila Chandra (PW-02), wife of the deceased and Dooj Bai (PW-04), wife of deceased’s younger brother, namely, Dharmu Chandra (PW-11), as they have seen the appellants and the deceased alive lastly as on 13.02.2011 at at about 09 PM, when deceased, Sushila Chandra (PW-02) and Dooj Bai (PW-04) all were in the house and the accused-appellants herein came to their house and took the deceased alongwith them on the pretext of repairing the electricity line, as the deceased was an electrician, but thereafter deceased did not return back to home and, thereafter, on 17.02.2011, at 09:30 AM the dead-body of deceased was noticed by Dharmu (PW-11), pursuant to which marg intimation (Ex.P/13) was lodged.

(13) 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.

(14) 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.”

(15) 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. ”

(16) 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.”

(17) In the matter of Anjan Kumar Sarma v. State of Assam (2017) 14 SCC 3597, 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.

(18) 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.”

(19) 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.

(20) Reverting to the facts of the present case in light of principle of law laid down by their Lordships of Supreme Court in above-stated cases, it is quite vivid that the accused-appellants and the deceased were lastly seen alive on 13.02.2011 at about 09:00 PM by Sushila Chandra (PW-02) and Dooj Bai (PW-04) and the dead-body of the deceased was recovered on 17.02.2011 at about 09:30 AM i.e. with a gap of more than 04 days, as such, there is considerable time gap between the last seen together evidence and the recovery of dead-body. Therefore, it cannot be held that the appellants are the perpetrator of the offence and, in absence of corroboration, it cannot be held that it is only and only the present appellants who are the authors of the crime. We hereby hold accordingly.

(21) As regards incriminating circumstance No.(ii) vis-a-vis alleged extra judicial confession made by the appellant No.01 before Dharmu Chandra (PW-11) : A bare perusal of the statement given by Dharmu Chandra (PW-11), who is brother of the deceased, before the Court would show that in Para-5 of his statement he for the first time has stated that the appellant No.01- Hulas @ Khulas has confessed commission of murder of his brother- Dharam Chandra (deceased), which statement does not find mention in the marg intimation (Ex.P/13) lodged by him as also in his Section 161 CrPC statement. Furthermore, it is quite unnatural that after committing murder of deceased, the appellant No.01 would go back and make confession of his crime before the real brother of the deceased i.e. Dharmu Chandra (PW-11) that he has committed murder of his brother (deceased). Even otherwise, neither the exact words uttered by the appellant No.01 nor the date, time and place have been mentioned/specified with regard to the alleged extra-judicial confession made by the appellant No.01 before Dharmu Chandra (PW-11). As such, the alleged extra-judicial confession made by the appellant No.01 to Dharmu Chandra (PW-11) is a weak piece of evidence and does not found to have been proved. We hereby hold accordingly.

(22) As regards incriminating circumstance (iii) vis-a-vis recovery of iron plier pursuant to memorandum statement of accused-appellant No.02- Sunder: The aforesaid iron plier seized vide Ex.P/08 pursuant to the memorandum statement of the appellant No.02 recorded Ex.P/ 07 was sent for FSL examination vide Ex.P/20 alongwith other items seized vide seizure memos (Ex.P/04, P/06 & P/09), but no FSL report with respect to the aforesaid seized articles is brought on record for the reasons best known to the prosecution.

(23) The Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh and another (2019) 7 SCC 781 held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood and held in Para-24 as under:

“24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

(24) Reverting to the facts of the present case in light of principle of law laid down by their Lordships of the Supreme Court in the matter of Balwan Singh (supra), it is quite vivid that there is no evidence available on record to show that human blood was found on the iron plier seized pursuant to the memorandum statement of appellant No.02, in absence of which, such a recovery is of no help to the prosecution. We hereby hold accordingly.

(25) In that view of the matter, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116, in absence of which, the appellants are entitled to benefit of doubt. Consequently, the impugned judgment of conviction and order of sentence dated 28.11.2013, passed by the learned trial Court in convicting the appellants for offence under Section 302/34 of IPC is not sustainable.

(26) Accordingly, the conviction of the appellants for offence punishable under Section 302 read with Section 34 of IPC as well as the sentence imposed upon them by the learned trial Court is hereby set aside. They are acquitted of the said charges. Since the appellants are already on bail, they need not surrender. However, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437-A of CrPC.

(27) This criminal appeal is allowed to the extent indicated herein-above.