Tabrej Khan vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 23.04.2012, passed by the Court of learned Sessions Judge, Mahasamund in Sessions Case No.69/2011, whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.5,000/- and, in default of payment of fine, additional rigorous imprisonment of 06 months.

(2) The case of the prosecution, in breif, is that in the intervening night of 05.07.2011 & 06.07.2011, between 12:00 to 12:30 AM, near Baisakhu Yadav’s (PW-08) house at Ward No.04, Nayapara, the appellant-accused assaulted his friend, namely, Pawan Kumar Yadav (hereinafter referred to as “deceased”) by means of a heavy stone on his head and caused his murder, pursuant to which, Budduram (PW-01) lodged Dehati Nalis (Ex.P/01) and, thereafter, dehati marg and FIR were also registered vide Ex.P/02 & P/11 respectively. Further, spot map was prepared vide Ex.P/05 and inquest was conducted vide Ex.P/04. Thereafter, the dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/10), conducted by Dr. Girdharilal Chandrakar (PW-10), it was opined that the cause of death of deceased is cardio respiratory failure due to severe hemorrhage and injury on vital organ- brain and nature of death is homicidal. The appellant-accused was arrested vide Ex.P/13 and his memorandum statement was recorded vide Ex.P/07. Further, from the place of incident, sample of soils and stone were recovered vide Ex.P/06 and from the possession of accused-appellant one full-pant was seized vide Ex.P/08. Thereafter, all the aforesaid seized articles were sent for FSL examination vide Ex.P/16, but no FSL report has been brought on record for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet in the Court of Chief Judicial Magistrate, Mahasamund and, thereafter, the case was committed to the Court of Sessions for 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 21 documents, whereas the appellant-accused in support of his defence has not examined any witness but exhibited 01 document i.e. Statement of Smt. Fagni Yadav (Ex.D/01).

(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) Dr. Shailesh Ahuja, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the offence under Section 302 of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that the conviction of the appellant is premised on the story of last seen together and the alleged extra-judicial confession made by the appellant before Fagni Bai (PW-12), which is unsustainable and bad in the eyes of law. Hence, the present appeal deserves to be allowed and the appellant is liable to be acquitted/discharged from the said offence.

(7) Per-contra, 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 learned trial Court has rightly convicted the appellant for the offence mentioned hereinabove. Therefore, the 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/10), duly proved by Dr. Girdharilal Chandrakar (PW-10), who has conducted the postmortem of the dead-body of the deceased, wherein it has been opined that the cause of death of deceased is cardio respiratory failure due to severe hemorrhage and injury on vital organ- brain and nature of death is homicidal. Accordingly, taking into consideration the postmortem report (Ex.P/10) and the statements of Dr. Girdharilal Chandrakar (PW-10), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of 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. Accordingly, we hereby affirm the said finding.

(10) Now the next question would be whether the accused-appellant herein is the perpetrator of the crime in question ?

(11) The appellant has been convicted on the basis of theory of last seen together, which the learned trial Court has found proved.

(12) 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.

(13) 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.”

(14) 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. ”

(15) 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.”

(17) 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.

(18) 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.”

(19) 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.

(20) In the instant case, the appellant and the deceased were seen alive by Kumari Bai Yadav (PW-02) and Fagni Bai (PW-12), who are aunt and mother of the deceased. Fagni Bai (PW-12) has seen the deceased alongwith the appellant on 05.07.2011 in the evening, whereas Kumari Bai Yadav (PW-02) has seen them on 05.07.2011 at 11:45 PM. The dead-body of deceased was recovered on 06.07.2011 at about 07:30 AM vide Dehati Nalsi (Ex.P/01) i.e. with a gap of 12 hours as per Fagni Bai (PW-12) and with a gap of 07 hours as per Kumari Bai Yadav (PW-02), as such, there is considerable time gap between the last seen together and the recovery of the dead-body. Therefore, it cannot be held that the appellant is the perpetrator of the offence and in absence of corroboration, it cannot be held that the appellant is the author of the crime. Furthermore, the learned trial Court has found proved the extra-judicial confession made by the appellant to the Fagni Bai (PW-12), who is mother of the deceased. It is quite unnatural that after committing murder of deceased, the appellant would go back and make confession of his crime before the mother of the deceased i.e. Fagni Bai (PW-12) that he has committed murder of her son (deceased). Even otherwise, neither the exact words uttered by the appellant nor the date, time and place have been mentioned/specified with regard to the alleged extra-judicial confession made by the appellant before the Fagni Bai (PW-12), even otherwise, the extra-judicial confession is a weak piece of evidence.

(21) Reverting to the facts of the present case 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. Even the extra-judicial confession made by the appellant before Fagni Bai (PW-12), mother of the deceased, is a weak piece of evidence. As such, in absence of poof of other circumstances or chain of 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).

(22) Accordingly, we hereby set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 23.04.2012. The appellant is acquitted of the charge under Section 302 of the IPC. Since the appellant is already on bail, he need not to 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.

(23) The appeal is allowed to the extent indicated herein-above.