Suleman @ Sonu @ Majnu vs State of Chhattisgarh

Sanjay K. Agrawal, J

(1) In this criminal appeal filed under Section 374(2) of Cr.P.C. the accused-appellant is calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 27.02.2016, passed by Sessions Judge, Bilaspur in Sessions Trial No.86 of 2015, whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.200/-.

(2) The case of the prosecution, in short, is that in the intervening night between 22.05.2015 to 23.05.2015, at Village Kenda, within the ambit of Police Station Kota, the accused-appellant herein assaulted Dilip (hereinafter referred to as “deceased”) by means of a knife, due to which he suffered grievous injuries and died and, thereby, the appellant is said to have committed offence under Section 302 of IPC.

(3) It is further case of the prosecution that since deceased was having illicit relationship with appellant’s sister, namely, Sikku Khan, the appellant was having enmity with the deceased and, on that account, as per the statement of Ku. Reema Kol (younger sister of the deceased), on 22.05.2015 at about 09:00 PM, the appellant took the deceased from her house on the pretext of having dinner and thereafter the deceased did not return back. It is also the case of the prosecution that in the same night, the appellant assaulted the deceased by means of knife, due to which, he suffered grievous injuries and died. Thereafter, on 23.05.2015 in the morning at about 06:00 AM, the dead-body of the deceased was found near the ‘badi’ of Bandhwapara, upon which, marg intimation (Ex.P/04) and FIR (Ex.P/05) were registered by the police and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/01 and inquest proceedings were also conducted vide Ex.P/02. Nazri Naksha was prepared vide Ex.P/07. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/24), conducted by Dr. B.D. Singh (PW-09), it was opined that the cause of death of deceased is cardio-pulmonary arrest due to hypovolemic shock as a result of excessive blood loss and nature of death is homicidal. Thereafter, the accused- appellant was arrested vide Ex.P/23 and his memorandum statement was recorded vide Ex.P/10. Pursuant to the memorandum statement of the appellant, the weapon of the offence i.e. knife has been seized vide Ex.P/11. Further, from the possession of the appellant, his shirt and underwear were seized vide Ex.P/12. The aforesaid seized articles were sent for chemical analysis vide Ex.P/21 and as per FSL report (Ex.P/31), it has been opined that only blood has been found on the knife (Article-

C) seized pursuant to the memorandum statement of the appellant, whereas human blood has been found on the shirt and underwear (Article-D1 & Article-D2) seized from the possession of the appellant. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

(4) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 31 documents apart from Article-A to Article-C, whereas the appellant-accused has neither examined any witness nor exhibited any document in support of his defence.

(5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Section 302 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

(6) Mr. Rishi Rahul Soni, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the theory of last seen together is not a reliable piece of evidence, as it does not corroborates with other incriminating circumstances. Furthermore, though pursuant to the memorandum statement of the appellant, knife (alleged weapon of the offence) has been seized, but as per FSL report (Ex.P/31) it has been opined that only blood has been found on the said knife. As such, the circumstances pointed by the learned trial Court are not sufficient to maintain the conviction of the appellant and, therefore, the impugned judgment of conviction and order of sentence passed by the learned trial Court is liable to be set aside and the appellant deserves to be acquitted from the said charge.

(7) Per-contra, Mr. Sudeep Verma, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The prosecution has clearly established the death of the deceased to be homicidal in nature alongwith other incriminating circumstances i.e. theory of last seen together and recovery of incriminating articles from the possession of the appellant, in which blood has been found. As such, the conviction and sentence passed by the learned trial Court against the appellant is well merited and, therefore, present appeal deserves to be dismissed.

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

(9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/24), wherein it has been opined that cause of death of deceased is cardio-pulmonary arrest due to hypovolemic shock as a result of excessive blood loss and nature of death is homicidal, which is duly proved by the statement of Dr. B.D. Singh (PW-09), who has conducted postmortem on the dead-body of the deceased. Accordingly, taking into consideration the postmortem report (Ex.P/24) and the statement of Dr. B.D. Singh (PW-09), we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

(10) Now, the next question would be whether the accused-appellant herein is the author of the crime in question or not ?

(11) The instant case is based on circumstantial evidence as laid down by the learned trial Court in Para-18 of the impugned judgment, which reads thus:

“(i) that accused accompanied the deceased in previous night of incident and did not return;

(ii) deceased was subjected to murderous assault in the same night. As per opinion of the doctor homicidal death was done since 15-20 hours of postmortem on 23.05.2015 at 12:00 AM.

(iii) that knife, shirt and nylon chaddi is discovered in consequence of information received from the accused, there was human blood on shirt and chaddi (underwear) seized from the accused. There was also blood on knife seized from the accused.

(iv) the accused betrayed ignorance about the human blood on his clothes, his conduct held to be inconsistent with his innocence.”

(12) Before proceeding further, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under:

“153. …. (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 & Anr. 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.”

(13) We shall now consider each of the incriminating circumstances one by one.

Theory of last seen together:-

(14) The first incriminating circumstance that has been found proved by the learned trial Court is that the appellant and the deceased both were last seen together in the night of 22.05.2015 at about 09 PM and thereafter the dead-body of the deceased was found lying near the badi of Bandhwapara in the morning of 23.05.2015 at about 06:00 AM by Mahadev Kol (PW-01), which was duly reflected in marg intimation (Ex.P/04). Ku. Reema Kol (PW-03), who is sister of the deceased, has stated before the Court that on 22.05.2015 the appellant took her brother (deceased) in the night at about 09:00 PM for the purpose of dinner and, thereafter, he did not return back and in the morning, i.e. on 23.05.2015 at about 06:00 AM, Mahadev Kol (PW-01) informed her that the dead-body of her brother (deceased) was found lying near the badi of Bandhwapara, which the learned trial Court has found proved.

(15) 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 ?

(16) 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.

(17) 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.”

(18) 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. ”

(19) 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 & 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.”

(20) 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.

(21) 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.”

(22) 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.

(23) In the instant case, though Ku. Reema Kol (PW-03) in her statement before the Court has stated that on 22.05.2015 at about 09:00 PM the appellant herein took her brother (deceased) for having dinner and thereafter her brother did not return back and she has also refused the suggestion that in the night she was alongwith her father and had visited to fields at Kachwar, thus fact remains that the appellant herein allegedly took the deceased on 22.05.2015 at about 09:00 PM, thereafter, the dead-body of the deceased was found lying near the badi of badhwapara in the morning on 23.05.2015 at about 06:00 AM, which fact is also reflected in marg intimation (Ex.P/04) and FIR (Ex.P/05), which were recorded on 08:40-50 AM on 23.05.2015. Thus, there is considerable time gape of more than 09 hours between last seen together and the time when the dead-body of the deceased was recovered. Therefore, it cannot be held that only the appellant is the author of the offence and in absence of corroboration, it cannot be held that the appellant is the author of the crime. We hereby hold accordingly.

Recovery of incriminating article from the appellant:

(24) In shape of corroboration, the learned trial Court has relied upon the recovery of knife pursuant to the memorandum statement of the appellant. True it is that pursuant to the memorandum statement of the appellant recorded vide Ex.P/10, knife has been seized vide Ex.P/12, however, as per FSL report (Ex.P/31) it has been clearly opined that only blood stains were found on the said knife. The Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another (2019) 7 SCC 781 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 and held in Para-24 as under:

“24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

(25) Bearing in mind the aforesaid principle of law laid down by their Lordships of the Supreme Court in the matter of Balwan Singh (supra), it is quite vivid that though as per FSL report (Ex.P/31), human blood has been found on the shirt and underwear seized from the possession of the appellant vide Ex.P/ 12, but there is no evidence available on record to show that human blood was found on the knife (alleged weapon of the offence) seized pursuant to the memorandum statement of appellant, in absence of which, such a recovery is of no help to the prosecution. We hereby hold accordingly. Furthermore, in view of findings arrived by us herein-above, the finding of the learned trial Court that human blood has been found on the shirt and underwear seized from the possession of the appellant pales into insignificance.

(26) In view of the aforesaid discussions, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the appellant is entitled to benefit of doubt. The learned trial Court is unjustified in convicting the appellant for offence under Section 302 of IPC in light of incriminating circumstances laid down in Para-18 of the impugned judgment. Accordingly, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment 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 23.05.2015, we direct that he be released from jail forthwith, if not required in any other matter/case.

(27) This criminal appeal is allowed.

(28) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.