Sahat Ram @ Thutha vs State Of Chhattisgarh

Goutam Bhaduri, J

1) The instant appeal is against the judgment of conviction and order of sentence dated 12.03.2020 passed by the learned First Additional Sessions Judge, Ambikapur, District Surguja (C.G) in Sessions Trial No.08 of 2019 whereby the appellant stands convicted for the offence punishable u/s 302 of IPC and sentenced to undergo R.I., for life and to pay a fine of Rs.500/- with further default stipulation.

2) The case of the prosecution in brief is that a report was made by Radhe Majhwar at Police Station Batauli on 22.4.2018 that Babulal Majhwaar the deceased went out of the house and was going towards Marghatai canal. Subsequently in the evening a villager namely Sahdev informed that Babulal was lying near wheat field. The merg was registered by Ex.P-6 and on 05.06.2018 after investigation, the FIR was lodged against the appellant u/s 302 IPC by Ex.P-25. After recording entire statements of witnesses and collection of other evidence, the charge sheet was filed by the prosecution. The appellant abjured his guilt before the trial Court and claimed to be tried. The prosecution examined as many as 10 witnesses and exhibitted 29 documents. The learned trial Court after evaluation of facts and evidence, convicted and sentenced the accused as aforesaid.

3) Learned counsel for the appellant would submit that the conviction is solely based on circumstantial evidence. He would submit that on the basis of last seen theory of P.W.4 and P.W.10, the prosecution developed its case but P.W.4 who is brother of deceased did not support the case of prosecution. He submits that P.W.10 has only narrated that in the morning the appellant was in the company of the deceased. He would submit that P.W.10 was also in the Company of deceased and accused and after some time he parted his way and thereafter if on the basis of last seen theory, the conviction is made, it would be wrong. He would submit that the seizure witnesses P.W.5 & P.W.6 have also turned hostile. It is submitted that though the wooden club and stone which were alleged to be used in the offence were containing human blood but these articles were recovered after 1 ½ months of the alleged incident. Therefore, the very seizure wooden club and stone also becomes very doubtful and no iota of evidence exists to convict the accused. Therefore, the judgment of the learned trial Court is required to be set aside.

4) Per contra, learned counsel for the respondent would submit that the prosecution has been able to prove the last seen theory on the basis of statement of P.W.10 followed by seizure memo (Ex.P-16) which was of the wooden club and the stone and the seized articles were containing human blood, which is proved by FSL report (Ex.P.C-) that it was having ‘B’ blood group. He submits that the accused also failed to explain the presence of blood on articles seized. Under the circumstances, the conviction and sentence is well merited which do not call for interference of this Court.

5) We have heard learned counsel for the parties. Admittedly, there is no eye-witness account in this case. The prosecution witnesses P.W.4 Devlal and P.W.10 Ajit Kujur who initially stated that both of these witnesses along with accused and deceased were together in the morning. P.W.4 has completely turned hostile before the trial Court and has not supported the prosecution version whereas P.W.10 though has not supported the case of prosecution, he was declared hostile and in the cross examination, this fact came to fore that on the date of incident, he along with Devlal (P.W.4) and deceased Babulal and accused Sahatram were together. Deolal went for his house and he (PW-10) also went to his sugar-cane field and thereafter he cannot say as to where accused Sahatram and deceased Babulal had gone. Subsequently, the dead-body was found near the field. Except that fact, nothing is on record. The map of the area (Ex.P-2) would show that it was a different field where the dead-body was found and a canal passes through at a nearby area of such field. According to the prosecution, the incident happened in the broad day light. No other witnesses were brought by the prosecution as to who was the assailant except the statement of last seen theory and subsequent recovery of wooden club and stone which was made after 1 ½ months. The memorandum of accused was recorded vide Ex.P-15 and on that basis, the wooden club and stone were seized on 06.06.2008 that is after 1 ½ months vide Annexure P-16. It would be evident from map Ex.P-2 and Ex.P-7 that the recovery of articles was made from an open place which was accessible to other general public at large. Ex.P-16 also does not show that it was containing any blood mark. Be that as it may, when it was sent for FSL as per Ex.P-1 both the articles were found having blood group of “B”. The prosecution has not produced the evidence of blood group of deceased. It is only on the basis of the fact that human blood was found on article seized, the appellant was inculpated. We cannot forget the fact remains that the seizure of incriminating articles was made after 1 ½ months that too from a common place which was accessible to all the general public and this fact proves fatal to the prosecution case.

6) The Supreme Court in a recent decision rendered in Dinesh Kumar Versus State of Haryana 2023 SCC OnLine SC 564 at para 36 reiterated the well settled factors to be considered in case of circumstantial evidence as laid down in Anjan Kumar Sarma Versus State of Assam (2017) 14 SCC 359 and observed that when a case rests upon circumstantial evidence, the following tests must be satisfied.

Para 36 is relevant here and quoted below :

The factors which have to be taken into consideration by the Court in a case of circumstantial evidence, are too well settled to be stated but nevertheless these factors which are being reproduced from Anjan Kumar Sarma (supra) are as under:-

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstance should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

7) Recently, in Ram Pratap Versus State of Haryana (2023) 2 SCC 345 the Supreme Court reiterated the observations made in catena of cases including Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 and held that the suspicion, howsoever strong, cannot substitute proof beyond reasonable doubt. The court emphasised that there is not only a grammatical but also a legal distinction between “may” and “must”. For proving a case based on circumstantial evidence, it is necessary for the prosecution to establish each and every circumstance beyond reasonable doubt, and further, that the circumstances so proved must form a complete chain of evidence so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show, in all human probability, that the act has been done by the accused. Further, it has been held that the facts so established must exclude every hypothesis except the guilt of the accused.

8) In the present case, the prosecution was sailing through presumption based on the evidence of P.W.10 who stated that he was in the company of deceased and accused in the morning and after some time he left them and had gone to some other place. P.W.4, the brother of deceased, has completely has disowned the prosecution version. The evidence of P.W.10 who projects the last seen theory as also recovery of wooden club and stone after 1 ½ months is only a hypothesis and cannot be stated that the chain of circumstances has proved the fact that the appellant was only the author of crime. The fact that the  recovery having been made after 1 ½ months it also becomes doubtful especially when the blood group of deceased was not established. The body of the deceased was recovered at about 5 O’ clock and the entire day which was lying in the field.

9) Applying the above principles laid down by the Supreme Court to the facts and circumstances of the present case, we are of the view that the circumstantial evidence so placed on record was not sufficient to hold that the appellant is only the author and the benefit of doubt must lean in his favour.

10) Accordingly, we allow the appeal and set aside the judgment of conviction and order of sentence passed by the trial Court. If the appellant is in jail, he be released forthwith if not required in any other crime on furnishing a personal bond in sum of Rs.25,000/- to the satisfaction of the trial Court. The bond shall remain operative for a period of six months as required under the provisions of Section 437-A of the Cr.P.C. The appellant shall appear before the higher Court as and when directed.