Shobharam vs State Of Chhattisgarh

Sanjay K. Agrawal, J

Since both the above captioned criminal appeals have arisen out of one and same judgment dated 27-2-2015 passed by the Sessions Judge, Bastar at Jagdalpur in Sessions Trial No.109/2014 and since common question of fact and law is involved in both the appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

These two criminal appeals have been preferred by the two appellants herein under Section 374(2) of the CrPC against the impugned judgment convicting them as under: -

Shobharam (A-1)

Conviction

Sentence

Section 302 of the IPC

Imprisonment for life and fine of Rs. 1,000/-, in default, additional rigorous imprisonment for two months

Section 201 read with Section 34 of the IPC

Rigorous imprisonment for five years and fine of Rs. 500/-, in default, additional rigorous imprisonment for one month

Both the sentences to run concurrently

Subhsan (A-2)

Conviction

Sentence

Section 201 read with Section 34 of the IPC

Rigorous imprisonment for five years and

fine of Rs. 500/-, in default, additional rigorous imprisonment for one month

The sole appellant in Cr.A.No.845/2015 namely, Shobharam (A-1) and the sole appellant in Cr.A.No.507/2015 namely, Subhsan (A-2), both, have assailed their conviction and sentences for offences under Sections 302 & 201 read with Section 34 of the IPC and Section 201 read with Section 34 of the IPC, respectively.

Case of the prosecution, in a nutshell, is that in between 6.50 p.m. of 12-9-2014 and 8.00 a.m. of 13-9-2014, accused / appellant Shobharam (A-1) assaulted deceased Govind Gautam by axe by which he suffered injuries and died and in order to screen from the offence, he along with co-accused Subhsan (A-2) thrown the dead body near Railway Crossing of Village Bamhni and thereby committed the offence. Further case of the prosecution is that on 12-9-2014 at 6.30 p.m., deceased Govind Gautam is said to have left his house along with accused Shobharam (A-1) and his dead body was found on 13-9-2014 at 8 a.m., near Bamhni Railway Crossing which was noticed by one Sukhdas, who has informed to Shrawan Gautam (PW-2) – brother of the deceased, who visited the spot and found the body of the deceased and informed the matter to Police Station Nagarnar pursuant to which morgue intimation was recorded vide Ex.P-3 and FIR was registered against unknown person vide Ex.P-4. Notices were issued to the witnesses under Section 175 of the CrPC vide Ex.P-1 and inquest over the dead body of the deceased was prepared vide Ex.P-2. Dead body of deceased Govind Gautam was sent for postmortem to Primary Health Centre, Nagarnar vide Ex.P-23 and postmortem was conducted by Dr. C.L. Gavre (PW-9) and his postmortem report is Ex.P-17. As per the postmortem report, cause of death is due to head injury, contusion and fracture of the orbital bone, nasal bone, lower left frontal bone, temporal bone, left cheek bone, middle cranial fossa, blood clots, blood present inside the cavity, brain lacerated left side and mode of death is coma. Query report Ex.P-18 has also been obtained from the medical officer. Thereafter, pursuant to the memorandum statement of accused Shobharam (A-1) recorded vide Ex.P-8, his clothes were seized vide Exs.P-12 & P-13 and pursuant to the memorandum statement of accused Subhsan (A-2) recorded vide Ex.P-9, cycle etc. were seized vide Exs.P-10 & 11. Seized articles were sent for chemical examination to the FSL from where report Ex.P-34 was received accoridng to which blood was found on the clothes of accused Shobharam (A-1) and the deceased, but no human blood has been found.

Statements of the witnesses were recorded under Section 161 of the CrPC and after usual investigation, the two appellants herein were charge-sheeted for the aforesaid offences and charge-sheet was filed before the jurisdictional criminal court in which they abjured the guilt and entered into defence stating that they have not committed the offence and they have been falsely implicated.

In order to bring home the offence, the prosecution has examined as many as 12 witnesses and exhibited 35 documents Exs.P-1 to P-35. The defence has not examined any witness and exhibited no document in support of its case. The accused / appellants were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question.

The trial Court after appreciating oral and documentary evidence on record, convicted and sentenced the appellants herein under Sections 302 & 201 read with Section 34 of the IPC and Section 201 read with Section 34 of the IPC, respectively, in the manner mentioned in the opening paragraph of this judgment against which these appeals have been preferred.

Mr. Awadh Tripathi, learned counsel appearing for the appellants in both the appeals, would submit in respect of accused / appellant Shobharam (A-1) that the trial Court has relied upon the theory of last seen together on the basis of the statement of Smt. Ichhawati Gautam (PW-11) – wife of the deceased, which is not reliable, in light of the statement of Sukhdev (PW-7) – father of the deceased; particularly, dead body was recovered on the next day i.e. 13-9-2014 at 8 a.m., which is after lapse of about 12 hours, therefore, the theory of last seen together is not established in absence of corroboration. Furthermore, pursuant to the memorandum statement of the accused, axe has been seized, but only blood has been found on it and no human blood has been found, therefore, it cannot be held that the appellant is the author of the crime; more particularly, merely on the basis that blood was found on the clothes of the appellant and the deceased, the appellant cannot be convicted for offence under Section 302 of the IPC, as mere recovery of axe is a weak piece of evidence and thus, in absence of positive FSL report, conviction of appellant Shobharam (A-1) is bad in law.

In respect of accused / appellant Subhsan (A-2), Mr. Tripathi, learned counsel, would submit that Subhsan (A-2) has been convicted only on the basis of his memorandum statement, whereas there is no cogent evidence on record to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and accused Subhsan (A-2) has caused the evidence to disappear and further that A-2 has acted with intention to screen the offender, known or unknown.

Therefore, conviction of appellant Subhsan (A-2) is also bad in law.

Mr. Neeraj Pradhan, learned Panel Lawyer appearing for the State / respondent, would submit that on the basis of the statement of Smt. Ichhawati Gautam (PW-11) – wife of the deceased, theory of last seen together of appellant Shobharam (A-1) and the deceased on 12-9-2014 leaving the house of the deceased, is clearly established and furthermore, pursuant to the memorandum statement of the accused, axe has been seized and blood has been found on the clothes of the appellant and the deceased. Similarly, the trial Court has clearly recorded finding that appellant Subhsan (A-2) has assisted appellant Shobharam (A-1) in throwing the dead body near railway crossing as such, conviction of Shobharam (A-1) under Sections 302 & 201 read with Section 34 of the IPC and that of Subhsan (A-2) under Section 201 read with Section 34 of the IPC is well merited and the appeals deserve to be dismissed.

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

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

The trial Court relying upon postmortem report Ex.P-17 proved by Dr. C.L. Gavre (PW-9), who conducted postmortem on the dead body of the deceased, came to the conclusion that death of the deceased was homicidal in nature. The said finding is a finding of fact which is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the next question would be, whether accused / appellant Shobharam (A-1) is the author of the crime for offence under Section 302 of the IPC?

The trial Court has relied upon the statement of Smt. Ichhawati Gautam (PW-11) – wife of the deceased, who has seen the appellant and the deceased leaving her house on 12-9-2014 at 8.00 p.m.. In her statement before the Court, she has clearly stated that on the fateful day, lastly, appellant Shobharam (A-1) came to her house at 8.00 p.m. and he and her husband Govind Gautam both left the house together and thereafter, on the next day, her husband Govind Gautam’s brother Shrawan informed her that her husband’s dead body was lying near railway track and the matter was reported by her husband’s brother Shrawan Gautam. In cross-examination paragraph 4, she has clearly stated that on the fateful day at 8 p.m., her husband Govind Gautam after taking his meal had gone along with Shobharam with axe, shawl, kettle and umbrella and thereafter, dead body of her husband was found on 13-9-2014 at 8 a.m. in the morning, as per inquest Ex.P-2 which is one of the basis for convicting the appellant for offence under Section 302 of the IPC.

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 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.

In the instant case, appellant Shobharam (A-1) and the deceased were seen alive on 12-9-2014 at 8 p.m. in the house of the deceased himself by his wife and thereafter, they left together from the house of the deceased and dead body of the deceased was found on 13-9-2014 at 8 a.m. with a gap of 12 hours, as such, there is considerable time gap between last seen together and the time when the dead body of the deceased was recovered at 8 a.m. in the morning of 13-9-2014. Therefore, it cannot be held that accused / appellant Shobharam (A-1) is the perpetrator of the offence that too particularly in absence of corroboration and more particularly, when Sukhdev (PW-7) – father of the deceased, in his statement before the Court has clearly stated in paragraph 2 that on 12-9-2014, his son / deceased came to meet him at 8.30 p.m. in Jondra Badi and thereafter, where he left, he is not aware. As such, after leaving the house with the appellant at 8 p.m., the deceased came to meet his father Sukhdev (PW-7) at 8.30 p.m. and thereafter, he went alone and it is not the case of the prosecution that after meeting Sukhdev, both appellant Shobharam (A-1) and the deceased again met and went together and thereafter, the deceased went missing. Appellant Shobhram (A-1) & the deceased were last seen together alive on 12-9-2014 and dead body of the deceased was recovered on 13-9-2014 at 8.00 a.m. with a gap of more than 12 hours after expiry of considerable time gap between last seen together and the time when the dead body of the deceased was recovered and more particularly, after seeing them lastly on 12-9-2014 at 8 p.m., the deceased also met his father Sukhdev at 8.30 p.m. and thereafter, he left the place of his father all alone. As such, the theory of last seen together is not clearly established and therefore it would be unsafe to convict appellant Shobharam (A-1) under Section 302 of the IPC on the basis of last seen together.

Furthermore, pursuant to the memorandum statement of accused Subhsan (A-2), axe has been seized from his possession which has been proved by Lakeshwar (PW-4) and axe has been sent for chemical examination to the FSL and FSL report is Ex.P-34 in which on Art. K. (axe), blood has not been found. The Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another (2019) 7 SCC 781 has clearly 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, but in the instant case, on the weapon of offence – axe, no blood much less human blood has been found and therefore recovery is of no use. Since recovery itself is a weak piece of evidence and merely on the basis of recovery of axe particularly, when it is not stained with human blood, the said recovery is of no use to the prosecution.

As such, conviction of appellant Shobharam (A-1) for offence under Section 302 of the IPC is unsustainable and bad in law, as the theory of last seen together is not established and thus, it is unsafe to convict him under Section 302 of the IPC, more particularly when the recovery of axe is not supported by FSL report and it was not established that the said axe was stained with human blood.

Both the appellants herein – Shobharam (A-1) & Subhsan (A-2) have also been convicted under Section 201 read with section 34 of the IPC. Since we have already held that it is not established by the prosecution that appellant Shobharam (A-1) has committed the offence of murder under Section 302 of the IPC of causing death of Govind Gautam, therefore, we are unable to uphold the conviction of both the appellants under Section 201 read with Section 34 of the IPC, particularly of Subhsan (A-2), as there is no evidence on record that he was aware that offence has been committed and he has reason to believe that offence has been committed and he acted with the intention of screening the offender, known or unknown. As such, conviction of both the appellants under Section 201 read with Section 34 of the IPC is not sustainable under the law and it is liable to be set aside.

In view of the aforesaid analysis, we are unable to maintain conviction and sentences awarded to the two appellants herein.

Consequently, the impugned judgment dated 27-2-2015 passed by the Sessions Judge, Bastar at Jagdalpur in S.T.No.109/2014 is hereby set aside. The appellants are acquitted of the charges alleged against them. Shobharam (A-1) is reported to be in jail. We direct that he be released forthwith, unless he is required in connection with any other case. Subhsan (A-2) is already on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.

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.

The criminal appeals are allowed.