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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRIMINAL APPEAL No. 306 of 2017
P Murli Mohan Rao, S/o Late Shri P.S. Rao, aged 46 years, R/o 54/A, Railway Colony Zone-1 BMY Charoda, P/S GRP Bhilai, District Durg
(C.G.)
... Appellant Versus
State of Chhattisgarh, through GRP Bhilai, District Durg (C.G.)
... Respondent ______________________________________________________________
For Appellant : Mr. Ajay Mishra, Advocate. For Respondent/State : Mr. Rahul Tamaskar, Govt. Advocate
____________________________________________________________ Division Bench
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment on Board
(29.01.2024)
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the appellant herein against the judgment of conviction and order of sentence dated 22.12.2016 passed by the Third Additional Sessions Judge, Durg (C.G.) in Sessions Trial No.30 of 2016, by which the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and sentenced to undergo rigorous imprisonment for life with fine of Rs.100/- and in default of
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payment of fine amount, additional simple imprisonment for 15 days.
2. The case of the prosecution, in nutshell, is that on 04.10.2015, at about 2:00 - 3:00 P.M., at Carriage and Wagon Workshop, BMY Charoda, District Durg, the appellant caused death of his wife, P. Padmavati, by assaulting and strangulating her. The matter was informed at the Police Station GRP, Bhilai, District Durg. Merg intimation was recorded vide Ex.P/1. Summons under Section 175 of CrPC was given vide Ex.P/2 and inquest proceedings were conducted vide Ex.P/3. Memorandum statement of the appellant was recorded vide Ex.P/6, pursuant to which, clothes of appellant and black pearl necklace of deceased were seized from his house vide Ex.P/7. Blood stained craft gear screw, red & green bangles, vomit of deceased, plain & blood stained soil as well as necklace of deceased were seized vide Ex.P/4 and clothes of the deceased were also seized vide Ex.P/12. Spot Map was prepared vide Ex.P/15. The dead body of deceased P. Padmavati was sent for postmortem examination and in the postmortem report (Ex.P/17), Dr. B.N. Dewangan (PW-13) opined that the cause of death seems to be throttling with head injury with subdural and intracerebral hemorrhage; the injuries were ante-mortem and nature of death is homicidal. First Information Report was recorded vide Ex.P/18 and
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the appellant was arrested vide Ex.P/9. Seized articles were sent for chemical examination. In the FSL report (Ex.P/24), blood stains have been found on the clothes of appellant.
3. After completion of the investigation, the appellant was charge- sheeted for the offence punishable under Section 302 of IPC before the concerned jurisdictional Criminal Court and thereafter, the case was committed to the Court of Thrid Additional Sessions Judge, Durg for trial and its disposal in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entered into trial.
4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 17 witnesses and exhibited 25 documents. In defence, neither any witness has been examined nor any document has been exhibited. Statement of the appellant was recorded under Section 313 of CrPC, in which, he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.
5. After conclusion of the trial, the Trial Court, by impugned judgment dated 22.12.2016, on appreciation of the oral and documentary evidence available on record, has convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him as mentioned herein-above, against which, the present appeal has
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been filed by the appellant calling in question the legality, validity and correctness of the impugned judgment.
6. Mr. Ajay Mishra, learned counsel appearing for the appellant, would submit that the theory of last seen together is not established and even if it is established there is no corroboration. He would further submit that memorandum statement and seizure have not been corroborated by the prosecution witnesses. It is contended that in case of circumstantial evidence, every link should be interconnected and there should be solid evidence in this regard so that only conclusion can be drawn that appellant is found to be guilty. As such, the appellant is entitled to be acquitted on the basis of benefit of doubt and the appeal deserves to be allowed.
7. Per contra, Mr. Rahul Tamaskar, learned State Counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court has rightly convicted the appellant for the aforesaid offence. As such, the appellant is not entitled to be acquitted on the basis of benefit of doubt and the appeal deserves to be dismissed.
8. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.
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9. The first question, as to whether the death of P. Padmavati was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. B.N. Dewangan (PW-
13) who has proved the postmortem report (Ex.P/17), in which, the cause of death has been opined to be throttling with head injury with subdural and intracerebral hemorrhage; the injuries were ante- mortem and nature of death is homicidal, which, in our considered opinion, is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the Trial Court.
10. The case of the prosecution is based on circumstantial evidence. The Supreme Court in the matter of Sharad Birhichand Sarda v. State of Maharashtra1has laid down the following five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence:-
"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 where the following observations were made:
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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."
11. As regards the next question as to whether the appellant is author of the crime and has caused death of his wife, P. Padmavati, the Trial Court has relied upon the evidence of Rajendra Kumar (PW- 8), who has seen the appellant and the deceased together in the afternoon on the date of incident i.e. 04.10.2015 at about 12:30 P.M. and then, immediately after some time in the evening, dead body of deceased P. Padmavati was found inside the tool room of CLW Office and the appellant has not explained in his statement recorded under Section 313 of CrPC as to how and under what circumstances his wife died. However, a careful perusal of statement of Rajendra Kumar (PW-8) would show that on the date of incident, in the afternoon at 12:30 P.M., he went to the tool room
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to keep his things where he saw that P. Padmavati was inside the room and the appellant was sitting on Scooty outside the tool room and, thereafter, dead body of P. Padmavati was found in the evening inside the tool room of CLW Office, Charoda.
12. Now, the question for consideration would be, whether the Trial Court is justified in convicting the appellant on the basis of the theory of last seen together finding it to be duly established ?
13. In the matter of Jaharlal Das v. State Of Orissa . of Orissa2, 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.
14. In the matter of Arjun Marik v. State of Bihar3, 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 para 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.
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Even if it is accepted that they were there it would at best amount to though 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."
15. Likewise, in the matter of State of Goa v. Sanjay Thakran4, 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 para 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,
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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."
16. Similarly, in the matter of Kanhaiya Lal v. State Of Rajasthan . of Rajasthan5, 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 paras 15 and 16 as under :-
"15. The theory of last seen - the appellant having gone with the deceased in the manner noticed herein before, 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 . of Rajasthan6.
16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is
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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 Assam7, 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 . by Inspector of Police8, 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 para 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
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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. Reverting to the facts of the present case, in light of the aforesaid decisions rendered by the Supreme Court, it is quite vivid that Rajendra Kumar (PW-8) has stated in his evidence that on the date of incident at about 12:30 P.M., he went to the tool room to keep his things where he saw that P. Padmavati was inside the tool room of CLW Office and the appellant was sitting on Scooty outside the tool room and except this statement, there is no other evidence on record to hold that the appellant and the deceased were last seen together. It has not come on record that at which time the appellant and the deceased both had gone out together. It is not the case of the prosecution that appellant had gone to the tool room of CLW Office where the deceased was working for murdering his wife and it is also not acceptable that appellant has murdered his wife inside the tool room where other workers were also visiting for discharging their duties.
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20. It is noteworthy that theory of 'last seen together' is to be established beyond reasonable doubt, which is not established in the present case as discussed herein-above, and even if it is established beyond reasonable doubt, in light of
Navaneethakrishnan (supra), it requires corroboration and for which the Trial Court has relied upon the memorandum statement of the appellant, pursuant to which, clothes of appellant and black pearl necklace of deceased were seized from his house vide Ex.P/7. Blood stained craft gear screw, red & green bangles, vomit of deceased, plain & blood stained soil as well as necklace of deceased were seized vide Ex.P/4; clothes of the deceased were also seized vide Ex.P/12 and blood was found in the FSL report (Ex.P/24) on the clothes of the appellant. However, a careful perusal of the statement of the seizure witness, Ramkumar Dewangan (PW-11) would show that on 05.10.2015, he had gone to the Government Hospital, Durg for postmortem examination of deceased P. Padmavati and doctors have gave him a sealed packet, in which, clothes of deceased were present and the same were sent for chemical examination to the State Forensic Science Laboratory, Raipur. Blood stains were found present on the clothes of the appellant vide Ex.P/24.
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21. At this stage, Mr. Tamaskar submits that certain incriminating articles were seized and sent for chemical examination, however as per FSL report (Ex.P/24), only blood has been found on the said articles, which is not a human blood.
22. In light of the principles of law laid down by the Hon'ble Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another9, the recovery of aforesaid articles is of no help to the prosecution. In shape of corroboration, the learned Trial Court has also relied upon the the statements of Rajendra Kumar (PW-8) and Ramkumar Dewangan (PW-18) as well as recovery of some articles. True it is that pursuant to the memorandum statement of the appellant recorded vide Ex.P/6, some articles were seized vide Ex.P/7, however, as per FSL report (Ex,P/24), it has been clearly opined that only blood stains were found on the aforesaid seized articles and no human blood has been found on it.
23. The Supreme Court in the matter of Balwan Singh (supra) 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 even though the blood group is not proved because of disintegration of blood and held in Para 24 as under:-
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"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."
24. 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/24) only blood has been found on the articles seized, but there is no evidence available on record to show that stains of human blood were found on the said articles, in absence of which, recovery of aforesaid articles is of no help to the prosecution. We hereby hold accordingly.
25. Furthermore, though the Trial Court has found that the appellant was present at the spot where dead body of the deceased was found, however, according to the statement of Rajendra Kumar (PW-8), the appellant was sitting on Scooty outside the tool room of CLW Office, Charoda and the dead body of the deceased was found inside the tool room and there is no evidence on record that appellant who is not the employee of CLW Office, Charoda has entered into the tool room without any work and murdered his wife, where other employees were also working and crowded place.
26. In that view of the matter, the finding recorded by the Trial Court that the appellant was present where dead body of deceased, was found
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is incorrect finding and is not based on the evidence available on record.
27. Under these circumstances, the prosecution has failed to establish its case beyond all reasonable doubts and therefore, the appellant is entitled to acquittal from the offence punishable under Section 302 of IPC on the basis of benefit of doubt.
28. Accordingly, the impugned judgment of conviction and order of sentence dated 22.12.2016 is set aside/quashed. The appellant is acquitted of the charge under Section 302 of IPC. He is stated to be in jail since 18.10.2015. He be set at liberty forthwith, if not required in any other offence.
29. Resultantly, this criminal appeal is allowed.
30. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned Trial Court and the Superintendent of Jail for necessary information and action, if any, at the earliest.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge
Yogesh