Sammar Singh vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused herein is directed against the impugned judgment of conviction and order of sentence dated 13.06.2016 passed by the Additional Judge to the Court of Additional Sessions Judge, Katghora, District Korba, Chhattisgarh, in Sessions Trial No. 03/2015 by which appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay fine of ₹ 5,000/-; in default of payment of fine additional imprisonment for three months and for offence under Section 201 of the IPC and to undergo rigorous imprisonment for two years and to pay fine of ₹ 2,000/-; in default of payment of fine additional imprisonment for three months. Both sentences were directed to run concurrently.

Case of the prosecution, in nutshell, is that between 03.09.2014 at 3:00 pm & 04.09.2014 at 4:30 pm, at village Batari, Police Station Deepka, District Korba, Chhattisgarh, appellant strangulated his wife Gowri Bai by which she died and to screen himself from the offence, he thrown the dead body of the deceased into the well and thereby committed the aforesaid offence. It is further case of the prosecution that on 04.09.2014, appellant himself lodged merg intimation (information of sudden and untimely death) (Ex.P/11) that on 03.09.2014 at 3:00 pm his wife Gowri Bai (now deceased) had gone to participate in the immersion of Lord Ganesha and did not come back to the house in the night, then he searched, but could not find her anywhere. On 04.11.2014, in the evening, at about 5:00 pm, he heard the noise of persons of his locality and went to the place from where the noise of persons was coming and saw that the dead body of his wife Gowri Bai was floating on the water of well, then he reported the merg intimation (Ex.P/11). First Information Report (Ex.P/10) was registered. Inquest proceedings (Ex.P/7) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/8), proved by Dr. Hari Prakash Kanwar (PW-10), cause of death is asphyxial death secondary to throttling that is postmortem drowning in nature.

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

In order to bring home the offences, prosecution has examined as many as 12 witnesses and exhibited 19 documents and defence in support of its case has not examined any witness, but exhibited one document (Ex.D/1).

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

Mr. Rajesh Jain, learned counsel for the appellant, submits that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He further submits that there is no eye witness account to the incident and the appellant has been convicted solely on the basis of circumstantial evidence. He also submits that when the deceased went missing, she was not only searched by the appellant, but was also searched by the other villagers. He also submits that the appellant is in jail since 11.10.2014 and the conviction of the appellant herein is not sustainable and, as such, the impugned judgment deserves to be set aside and the appellant deserves to be acquitted.

On the other hand, Mr. Sudeep Verma, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences. He further submits that the present is a case of house murder where the body of the deceased was found in a well, within the compound of the appellant and the appellant has failed to offer any explanation in his statement under Section 313 of the Cr.P.C. and as per the statement of autopsy surgeon, the cause of death was throttling 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 is, whether the death of the deceased was homicidal in nature?

In this regard, the learned trial Court has recorded the finding in affirmative that death of the deceased was homicidal in nature on the basis of postmortem report (Ex.P/8) proved by Dr. Hari Prakash Kanwar (PW-10), 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 question for consideration would be whether the appellant has assaulted the deceased?

The case of the prosecution is based on the circumstantial evidence and the trial Court has found incriminating circumstances established. The five golden principles which constitute panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 in paragraph 153 which state as under:-

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(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 circumstances 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.”

The trial Court has convicted the appellant on the basis that the appellant and his wife Gowri Bai both were last seen together in their house at 4:00 pm on 03.09.2014 by Charan Das (PW-5) and thereafter, dead body of the deceased was recovered on 04.09.2014 at 5:00 pm. Appellant's wife, Gowri Bai was missing and his conduct in not searching his wife would be relevant fact under Section 8 of the Indian Evidence Act, 1872 and further the death of the deceased was found homicidal in nature and the appellant has not offered any explanation in his statement under Section 313 of the Cr.P.C. that as to how and under what circumstance his wife died by strangulation.

The first circumstance which the trial Court has found proved is, the appellant and the deceased both were seen together lastly on 03.09.2014 at 4:00 pm by Charan Das (PW-5), as he has stated in his statement before the Court that both were standing in the courtyard of their house and thereafter, as per information of sudden and untimely death (Ex.P/11), on the next day i.e. 04.09.2014 at 5:00 pm, dead body of the deceased was found.

Now, question for consideration would be whether the trial Court is 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.”

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 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 from the statement of Charan Das (PW-5) that he had seen the appellant and the deceased both were standing together in the courtyard of their house on 03.09.2014 at 4:00 pm and thereafter, dead body of the deceased was recovered on 04.09.2014 at 5:00 pm vide Ex.P/11 (information of sudden and untimely death), but between the time of last seen together of appellant herein and the deceased and recovery of dead body of the deceased, there is a considerable time gap of 24 hours, therefore, in absence of corroboration it cannot be concluded, even if theory of last seen is established, that it is only the appellant herein who is the author of the crime in question.

Furthermore, the trial Court has also recorded a finding that subsequent conduct of the appellant in not going for search of his wife, though she was missing, is an objectionable conduct which would be relevant fact under Section 8 of the Indian Evidence Act, 1872.

Now, the question would be whether on the basis of subsequent conduct of the appellant / accused, which is relevant under Section 8 of the Indian Evidence Act, 1872 appellant can be convicted for the offence under Section 302 of the IPC ?

Very recently in the matter of Subramanya v. State of Karnataka 2022 SCC OnLine SC 1400, the Supreme Court has clearly held that subsequent conduct of the accused may be relevant fact under Section 8 of the Evidence Act, but it cannot form basis for conviction that too for offence of murder and observed in para 95 as under :

“95. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.”

The last circumstance trial Court has found proved is, the appellant used to quarrel with his wife Gowri Bai (deceased) after consuming liquor, however, it is not established by the prosecution beyond reasonable doubt. Furthermore, finding recorded by the trial Court that the death of the deceased was on account of strangulation and it is homicidal in nature, is a correct finding. Though, it is held that the death of the deceased is homicidal in nature, but prosecution has failed to prove that the appellant is the author of the crime in question as theory of last seen together cannot be relied upon in absence of corroboration and furthermore, there is considerable time gap of 24 hours and in view of the decision rendered by the Supreme Court in the matter of Subramanya (supra), conviction of the appellant cannot be solely rested upon the subsequent conduct of the appellant that too for offence under Section 302 of the IPC. As such, he is entitled for acquittal on the basis of benefit of doubt and consequently, the conviction of the appellant for offence under Sections 302 & 201 of the IPC is hereby set aside. The appellant is reported to be in jail since 11.10.2014, we direct that he 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 he is lodged and suffering jail sentence, forthwith for necessary information and action, if any.