Rambhog Vaishya vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 07.12.2016, passed by the Special Judge [SC/ST (Prevention of Atrocities) Act], Surajpur, in Special Sessions Trial No.30/2015, by which, the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.2000/-, in default of payment of fine, 6 months additional rigorous imprisonment.

Case of the prosecution, in short, is that on 26.06.2015 at 11:00 p.m. to 28.06.2015 at 6:00 a.m. at village Semrakhurd (Aamapara), Police Station- Pratappur, the appellant strangulated Leelawati (now deceased) to death and thereby, he has committed the offence. Further case of the prosecution is that the appellant and deceased both were working on the post of Rojgar Sahayak and they have relationship other than marriage and on the date of offence on 26.06.2015, while they were going together for work, they stayed in the house of Devnarayan Singh (PW-2) and got their mobile charged and went away. Thereafter, dead body of deceased Leelawati and her Scooty was seen near the shop of Kapil Rajwade (PW-8) on 28.06.2015 at 6:00 a.m. and thereafter, the merg intimation was lodged by Kapil Rajwade (PW-5) vide Ex.P-8 and the wheels of investigation started running. The FIR was registered vide Ex.P-9, inquest was conducted vide Ex.P-2 and dead body of deceased Leelawati was subjected to post-mortem, which was conducted by Dr. Narendra Pratap Singh (PW-14), who proved the post-mortem report vide Ex.P-18, in which, cause of death was stated to be asphyxia due to strangulation and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-12, Hand-purse, SIM and Lava Mobile were seized vide Ex.P-13. After due investigation, the appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

In order to bring home the offence, prosecution examined as many as 18 witnesses and exhibited 26 documents and the appellant-accused in support of his defence has examined 3 witnesses and exhibited 3 documents.

The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Sections 302 of Indian Penal Code and sentenced him as mentioned in the opening paragraph of the judgment against which the present appeals have been preferred.

Learned counsel for the appellant would submit that the appellant has been convicted only on the basis of last seen together by Devnarayan Singh (PW-2) and furthermore, the SIM and Lava Mobile, which have been seized have not been proved to be owned by appellant and therefore, there is no corroborative piece of evidence and, as such, the impugned judgment is liable to be set aside and the appeal deserves to be allowed.

Learned State counsel would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and learned trial Court has rightly convicted the appellant herein for the aforesaid offence and 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 as to whether the death of deceased Leelawati was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-18 proved by Dr. Narendra Pratap Singh (PW-14), which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

The conviction of the appellant is based on the theory of last seen together and furthermore on the basis of memorandum of the appellant, Hand-purse of deceased Leelawati, SIM and Lava Mobile were seized and therefore the appellant has been convicted. The trial Court while convicting the appellant has recorded the following incriminating circumstances in para 50 of its judgment, which states as under :-

Now, the question for consideration would be, whether the trial Court is justified in convicting the appellant only on the basis of the theory of last seen together finding it to be duly established ?

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 to though 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.

In the instant case, the appellant and deceased were seen alive by Devnarayan Singh (PW-2) on 26.06.2015 at 2:00 p.m. and thereafter, dead body of deceased was found on 28.06.2015 at 6:00 a.m. as per merg intimation Ex.P-8 lodged by Ransai Singh (PW-5). As such, there is considerable time gap of more than 40 hours between the last seen together and the time when the dead body of deceased was recovered. Therefore, it has to be seen whether there is a corroboration of the theory of last seen together put forth by the prosecution, for which the trial Court has relied upon that pursuant to memorandum statement of the appellant Ex.P-12, Hand-purse, Lava Mobile and Idea SIM No.9753956959 have been recovered, which have been proved by Brijlal (PW-6) and Chamar Sai (PW-11). However, the SIM No.9753956959, which has been seized has not been proved to be owned by deceased Leelawati. Similarly, the Mobile IMEI No.911386554120080 & 911386554120098 have also not been proved to be owned by deceased Leelawati. As such, the prosecution has failed to prove any fact of corroboration apart from stating that appellant and deceased were lastly seen together by Devnarayan Singh (PW-2) and, as such, though the death of deceased was homicidal in nature, the appellant & deceased were knew each other, they were working together and they have some relationship other than marriage, but there is a considerable time gap between the last seen together and the date & time when the dead body was recovered and there is no corroborative piece of evidence.

In light of the aforesaid decisions rendered by the Supreme Court particularly, in Anjan Kumar Sarma (supra), 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 and no other incriminating circumstance which leads to the hypothesis of guilt against the appellant has been proved. As such, in absence of poof of other circumstances, only the theory of ‘last seen together’ cannot be made the sole basis for conviction of the appellant as it would be unsafe to rest conviction only on the theory of ‘last seen together’. Therefore, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting the appellant under Section 302 of the IPC only on the basis of the theory of ‘last seen together’ finding it fully established in absence of motive for offence on the part of the appellant and in absence of other incriminating material against the appellant in light of the principles of law laid down by their Lordships of the Supreme Court in Arjun Marik (supra), Sanjay Thakran’s case (supra) and Kanhaiya Lal (supra).

Accordingly, the impugned judgment of conviction and order of sentence dated 07.12.2016 is hereby set aside. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for the offence punishable under Sections 302 of Indian Penal Code. Accordingly, the appellant is directed to be released forthwith from jail, unless he is required in any other offence.

In the result, the appeal is allowed.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.