Kitab Singh Paikra vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 13.12.2014 passed in Sessions Case No. 04/2013 by the Additional Sessions Judge, Katghora (C.G.) by which the appellant stands convicted & sentenced as under:-

Conviction

Sentence

In Default

U/s 302 of IPC

Life imprisonment with a fine of Rs.1,000/-

In default of payment of fine amount additional RI for 1 year.

Case of the prosecution, in brief, is that on 04.11.2012, at around 9 pm, at Village: Saila, the appellant assaulted his wife Rambai by wooden stick (Chair's handle). This incident was witnessed by their two daughters Ku. Saraswati (PW-3), Ku. Laxmi (PW-4) and his (appellant) sister's son Jagnarayan (PW-5) and thereby committed the offence. Immediately thereafter Rambai was escorted to the Government Hospital, Pali and thereafter brought to CIMS Hospital, Bilaspur where she succumbed to injuries. Merg Intimation Ex.P/16 and FIR Ex.P/6 were registered. Inquest was conducted vide Ex.P/2. Thereafter, dead body of the deceased was sent for postmortem examination which was conducted by Dr. Vijay Kumar Verma (PW-14) who has proved the postmortem report Ex.P-24, in which cause of death was stated to be due to Coma and the death was homicidal in nature. Pursuant to memorandum statement of appellant recorded vide Exhibit-P/12, the weapon of the offence was recovered from the possession of appellant vide Exhibit-P/13 and P/14 which was sent for FSL, but no FSL report has been brought on record.

After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

In order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 32 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the aforesaid offence and sentenced as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred.

Learned counsel for the appellant submits that the appellant has been convicted on the basis of last seen theory. The dead body of the deceased has been found inside the house of the appellant, but defence of the appellant is that at the time of incident he was not in the house. She further submits that PW-14, Dr. Vijay Kumar Verma, Autopsy Surgeon, has categorically stated that injury No. 1 sustained by the deceased could have been caused due to fall. She also submits that the eye-witnesses to the incident PW-3, Ku. Saraswati, PW-4, Ku. Laxmi and PW-5, Jagnarayan have not supported the case of the prosecution. As such, on the basis of the evidence of alleged last seen together of the appellant with the deceased alive, conviction of the appellant cannot be sustained and is liable to be set aside. In the weapon of the offence, no human blood has been found, therefore, the recovery pursuant to the memorandum, is of no use, as such, the appellant deserves to be acquitted.

Learned counsel for the State supports the impugned judgment and submits that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and learned trial Court has rightly convicted and sentenced the appellant herein for the aforesaid offence, therefore, the appeal deserves to be dismissed.

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

The first question for consideration is, whether the death of deceased Rambai was homicidal in nature ?

Learned trial Court has recorded an affirmative finding that the death of the deceased was homicidal in nature relying upon the post mortem report (Ex.P-24) proved by Dr. Vijay Kumar Verma (PW-14) which is a 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 question would be, whether the appellant is the author of the crime in question ?

The case of the prosecution is based on circumstantial evidence. The learned Trial Court has convicted the appellant merely on the basis of finding that the appellant and deceased both were lastly seen together at Village: Saila, on 04.11.2012 at 9 pm by Saraswati (PW-3), Laxmi (PW-4) their two daughters and his Sister's son Jagnarayan (PW-5) and further pursuant to the memorandum statement of the appellant, the weapon of the offence was seized.

The next question is whether the Trial Court is justified in convicting the appellant on the basis of 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.”

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. ”

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 Rajasthan.

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.

Reverting to the facts of the present case in light of the aforesaid decisions rendered by their Lordships of the Supreme Court, it is quite vivid that the prosecution has only established that the appellant was last seen with the deceased and no other connecting links have been satisfactorily made out. However, the finding of the Trial Court that the appellant and deceased were last seen together is based on the testimony of Saraswati (PW-3), Laxmi (PW-4) and Jagnarayan (PW-5). PW-4, Laxmi has stated that her mother was sleeping in the next room and father was watching T.V. After hearing the hue and cry of her mother, she and her father found her mother lying on the floor. She has also stated that her mother Rambai was suffering from Epilepsy. From the statement of PW-3, Saraswati and Jagnarayan, PW-5, it is not clearly established that the appellant and deceased were in the same room. As such, it is not clearly established that the appellant and deceased both were in the same room and they have been last seen together by Saraswati (PW-3), Laxmi (PW-4) and Jagnarayan (PW-5). As such no other incriminating circumstance which leads to the hypothesis of the guilt against the appellant has been proved. Therefore, it cannot be held that the appellant is the perpetrator of the offence and in absence of corroboration, it cannot be held that the appellant is the author of the crime. Therefore, we are of the view that prosecution has failed to bring home the offence beyond reasonable doubt. As such the appellant is entitled for acquittal on the basis of benefit of doubt. The learned trial Court is totally unjustified in convicting and sentencing the appellant for offence under Section 302 of IPC. Accordingly, the impugned judgment of conviction and order of sentence dated 13.12.2014, passed by the learned trial Court is liable to be set-aside.

Consequently, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence imposed upon him by the learned trial Court is hereby set-aside. He is acquitted of the said charge. Since the appellant is in jail from 06.11.2012, we direct that he be released from jail forthwith, if not required in any other matter/case.

In the result, the criminal appeal is allowed.

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