Janjgir-Champa, Chhattisgarh v. State of Chhattisgarh Through The Police Station Palari, District : Balodabazar-Bhathapara, Chhattisgarh
Case Details
1 2025:CGHC:34516-DB NAFR ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1372 of 2023 Suresh Kumar Meher S/o Nathuram Meher Aged About 43 Years R/o Khargahna Laaripara Shivrinarayan, District : Janjgir-Champa, Chhattisgarh --- Appellant versus State of Chhattisgarh Through The Police Station Palari, District : Balodabazar-Bhathapara, Chhattisgarh --- Respondent CRA No. 2239 of 2024 1 - Pintoo Baagh S/o Dashrath Baagh Aged About 27 Years R/o Bhurkipara, Vaidpali, Police Station- Paikamaal, Distt.- Bargarh (Odissa) 2 - Mahesh Baagh @ Mintoo @ Chhotu S/o Dashrath Baagh Aged About 24 Years R/o Bhurkipara, Vaidpali, Police Station- Paikamaal, Distt.- Bargarh (Odissa) ---Appellants Versus State of Chhattisgarh, Through District Magistrate, Balouda Bazar, Distt.- Balouda Bazar, C.G. --- Respondent ________________________________________________________ For Appellant in CRA 1372/2023 : Mr. Ashwin Panickar, Advocate For Appellant in CRA 2239/2024 : Mr. Keshav Dewangan, Advocate For Respondent/State ________________________________________________________ Hon'ble Mr. Ramesh Sinha, Chief Justice r. Bibhu Datta Guru : Mr. Shashank Thakur, Dy. A.G. Hon’ble M , Judge 2 Judgment on Board Per Ramesh Sinha, Chief Justice 21.07.2025 1. 2. Since both the above-captioned appeals arise out of a common incident and common factual matrix, this Court is disposing of both these appeals by a common judgment. CRA No. 1372 of 2023 has been filed by the accused/appellant – Suresh Kumar Meher under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) against the impugned judgment of conviction and order of sentence dated 02.02.2023 passed by the learned Second Additional Sessions Judge, Balodabazar (C.G.) in Sessions Trial No.01/2020, by which the appellant has been convicted and sentenced in the following manner :- Conviction Under Section 302 of IPC Under Section 397 of IPC Under Section Sentence Life imprisonment and fine of Rs. 5,000/- Rigorous imprisonment for 7 years Rigorous imprisonment for 3 years and fine 201 of IPC Under Section of Rs. 1,000/- Rigorous imprisonment for 3 years and fine 120B of IPC In default of payment of fine, additional RI for 6 months with a of Rs. 1,000/- direction to run all the sentences concurrently 3. CRA No. 2239 of 2024 has been filed by the accused/appellants – (1) Pintoo Baagh and (2) Mahesh Bagh @ Mintoo @ Chhotu 3 under Section 415 (2) of Bhartiya Nagrik Suraksha Sanhita, 2023 (for short, ‘BNSS’) against the impugned judgment of conviction and order of sentence dated 05.09.2024 passed by the learned Second Additional Sessions Judge, Balodabazar (C.G.) in Sessions Trial No.01/2020, by which the appellants have been convicted and sentenced in the following manner :- Conviction Under Section 302/34 of IPC Under Section 397/34 of IPC Under Section Sentence Life imprisonment and fine of Rs. 5,000/- Rigorous imprisonment for 7 years Rigorous imprisonment for 3 years and fine 201/34 of IPC Under Section of Rs. 1,000/- Rigorous imprisonment for 3 years and fine 120B/34 of IPC In default of payment of fine, additional RI for 6 months with a of Rs. 1,000/- direction to run all the sentences concurrently 4. Case of the prosecution, in brief, is that on 16.09.2019 at about 10:00 am, deceased Bhuneshwar Kesharwani left for Raipur from Shivrinarayan in his own vehicle number CG04-LK-4524 with his driver accused Suresh Kumar Meher to buy iron with five lakh rupees. As per the pre-planned scheme, accused Pintoo Baagh, Mahesh Baagh @ Mintoo @ Chhotu and Mohan Lal Patel reached near Dongridih on a motor cycle and were waiting for accused Suresh Meher to bring the truck and park it. When accused Suresh Meher stopped the vehicle near Dongridih, accused Pintoo Baagh boarded the said vehicle and hit the deceased Bhuneshwar Kesharwani on the head several times 4 with a rod like wheel pana inside the vehicle and tied the towel around the neck of the deceased and looted the five lakh rupees kept with the deceased and fled leaving the vehicle and the body in the forest of village Khairi-Dhamani. The deceased's son Lucky Kesharwani, when his phone was not reachable, searched for him and reported his missing to the police station. At that time, police received information about a dead body in the forest of Khairi- Dhamani and on the information of informant Lekh Ram Manhare, a rural case number 0/2019 under section 174 CrPC for the deceased Bhuneshwar Kesarwani resident of Shivrinarayan was registered and after panchnama proceedings, case number 89/2019 was registered. Postmortem of the dead body was conducted. Crime number 365/2019 under section 302, 201 IPC was registered against suspect driver of the said vehicle i.e. accused Suresh Meher. During the investigation, a memorandum statements of accused Suresh Meher and Mohan Lal Patel were recorded. Cash was seized from accused Suresh Meher and a vehicle was seized from accused Mohan Lal Patel. The items were seized from the crime scene and chemical tests were conducted and the statements of the witnesses were recorded. After complete investigation in the case, the accused Suresh Meher and Mohan Lal Patel were arrested and accused Mahesh Baagh @ Mintoo @ Chhotu and Pintoo Baagh were absconding. After preparing a chargesheet under Section 302, 201, 397, 120 (B) IPC accused Suresh Meher and Mohan Lal Patel and 5 presenting it before the competent jurisdictional Court, the case was surrendered to the Sessions Judge, Balodbazar, from where the case was transferred to Court of Second Additional Sessions Judge, Balodabazar for trial. 5. Charges were framed against the Suresh Meher and Mohan Lal Patel as offences were revealed under Sections 120(B)/34, 397/34, 302/34, 201/34 of IPC. When the charges were read out and explained to the accused, they denied committing the crime and expressed their desire for trial; hence their plea were recorded. 6. On behalf of the prosecution, witnesses Lekh Ram Manhare (P.S.1), Lucky Kesharwani (P.S.2), Krishna Kumar alias Krishna Kesharwani (P.S.3), Shubham Sharma (P.S.4), Saurabh Kesharwani (P.S.5), Deepak Kumar Rohidas (P.S.6), Mattulal Nishad (P.S.7), R.K. Dhruv (P.S.8), Prashant (P.S.9), Neetu Kesharwani (P.S.10), Manbodh Ram Mehar (P.S.11), Bharat Mehar (P.S.12), H.R. Tandon (P.S.13), Dr. B.S. Dhruv (P.S.14), Dileshwar Kesharwani (P.S.15) and N.K. Swarnkar (PW16) have been examined. No defence witness has been examined on behalf of the accused. 7. By the prosecution, Ex.P-1 rural death report, Ex.P-2 notice, Ex.P-3 dead body panchanama, Ex.P-4 and Ex.P-28 site maps, Exs.P-5 and 6, seizure memos, Ex.P-7 statement of Lekh Ram, Ex.P-8, seizure of RC book from Neetu Kesharwani, Ex.P-9 Postmortem application of the deceased and postmortem report 6 Ex.P10, Memorandum of accused Suresh Meher, Ex.P-11 Memorandum of accused Mohan Lal Patel, Ex.P 12 Panchnama, Ex.P-13 Seizure of clothes of the deceased from Har Prasad, Ex.P-14 Seizure of cash from accused Suresh Meher, Ex.P-15 Seizure of motor cycle from accused Mohan Lal Patel, Ex.P-16, 17 Arrest memo of accused Mohan Lal Patel and accused Suresh Meher, Ex.P-18 Statement of Shubham Sharma Ex.P-19 Statement of Saurabh Kesharwani, Ex.P 21 Statement of Mattulal, Ex.P-23 Patwari Panchnama, Ex.P-24 Handover of deceased vehicle, Ex.P-25 Handover of the body of the deceased, Ex.P-26 Duty Certificate, Ex.P-27 Clothes Inspection Report, Ex.P-29
Facts
Death Intimation, Ex.P-30 First Information Report, Ex.P-31 Memorandum to the Tehsildar, Ex.P-32 Application for chemical test, Ex.P-33A, Ex.34 Acknowledgment, Ex.P-35 Chemical Test Report and Ex.D-1 Statement of Lucky Kesharwani, Ex.D-2 Statement of Krishna Krimar, Ex.D-3 Manbodh's statement has been tested. 8. The accused were examined under Section 313 of Cr.P.C. In the examination, they stated that they did not know most of the facts or that they were wrong and while giving evidence in their defence, they took the defence of being innocent and falsely implicated. 9. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 02.02.2023, acquitted the accused Mohan Lal Patel 7 from the charges levelled against him, however, convicted and sentenced the accused Suresh Meher in the manner mentioned in the opening paragraph of this judgment, against which, CRA No.1372/2023 under Section 374(2) of the CrPC has been preferred calling in question the impugned judgment. 10. The absconding accused of the case, Mahesh Baagh @ Mintoo @ Chootu and Pintu Baagh, were arrested on 21.09.2022 and a supplementary challan was presented before the concerned jurisdictional Court on 22.11.2022. Since the case was triable in the Sessions Court, the case was transferred to the Sessions Judge, Balod Bazar, from where the case has been received by Court of Second Additional Sessions Judge, Balodabazar on transfer for trial. 11. As the crime was reflected under 397/34, 302/34, 201/34, charges were framed and when the charges were read out and explained to the accused, they denied committing the crime and expressed the desire for trial, hence their plea was recorded. The accused were examined under section 313 of Cr. P.C. In the examination, they stated that they did not know most of the facts or that they were wrong and while giving evidence in their defence, they took the defence of being innocent and falsely implicated. 12. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 05.09.2024, convicted and sentenced the accused Mahesh Baagh @ Mintoo @ Chootu and Pintu Baagh in the manner 8 mentioned in the opening paragraph of this judgment, against which CRA No.2239/2024 under Section 415(2) of the BNSS has been preferred calling in question the impugned judgment.
Legal Reasoning
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.” 31. Likewise in the matter of State of Goa v. Sanjay Thakran 5 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 persons 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 :- 4 5 1994 Supp (2) SCC 372 (2007) 3 SCC 755 20 “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 21 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. ” 32. Similarly in the matter of Kanhaiya Lal v. State of Rajasthan 6 , 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 6 (2014) 4 SCC 715 22 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 Rajasthan7. 16. 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.” 33. 8 Finally in the matter of Anjan Kumar Sarma v. State of Assam 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. 34. Reverting to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court particularly in the matter of Anjan Kumar Sarma (supra), it is quite established that the prosecution has not only proved that death of deceased 7 8 (2010) 15 SCC 588 (2017) 14 SCC 359 23 Bhuneshwar was homicidal in nature and that appellant- Suresh Kumar Meher and the deceased both were lastly seen together and thereafter recovery of looted amount Rs.1,50,000/- from the relative of the accused on his pointing out which leads to the hypothesis of guilt against the appellant have been proved. As such, evidence of Lucky Kesharwai (PW-2), alleged evidence of last seen together, whereby he has said on the date of alleged incident i.e. on 16.09.2019 at about 10 am his father deceased Bhuneshwar Kesharwani along with driver accused Suresh left from Shivrinarayan to Raipur with Mazda vehicle No. CG 04 LK 4524, is duly proved and the said could not be denied by accused Suresh, hence it is clearly proved that the deceased was last seen taking the vehicle along with accused Suresh Kumar Meher. Moreover, blood stains were found on the resin of the driver's rear seat of vehicle number CG04-LK-4524. According to FSL report Ex.P-35, human blood was found on the piece of resin Article-A, which could not be denied by accused Suresh. 35. Accused Suresh Kumar Meher had taken the said vehicle which was found parked in the jungle along with the dead body of the deceased, but accused Suresh did not give any information in this regard to the family of the deceased nor did he give any information to the police and he himself absconded from the scene of incident which goes against him. Vehicle CG04-LK-4524 was found in a parked condition, but no evidence has come to light regarding its being damaged, this also goes against accused 24 Suresh. In front of prosecution Manbodh Mehar (PW-11), who is the brother of the accused Suresh, he has admitted to have murdered the deceased, which goes against accused Suresh. 36. All the above facts are against the accused and all the circumstances are inter-connected, hence the prosecution has succeeded in proving that accused Suresh Kumar Meher has committed the murder of the deceased and has tried to hide the cash of the deceased by abandoning the vehicle in the forest. 37. There is no evidence against accused Mahesh Baagh @ Mintoo @ Chootu and Pintu Baagh in this case except the memorandum of accused Suresh Kumar Meher himself. According to the memorandum of the accused Suresh Kumar Meher, accused Pintoo had hit the deceased Bhuneshwar Kesharwani on his head several times with a rod like wheel pana inside the vehicle and tied the towel around the neck of the deceased and looted the five lakh rupees kept with the deceased, but no recovery of any incriminating articles have been made from the said co-accused. The link of accused Mahesh Baagh @ Mintoo @ Chootu and Pintu Baagh act related to their involvement in the conspiracy to commit the murder of the deceased with accused Suresh has not been fully established. In such a situation, it is not clear whether accused Mahesh Baagh @ Mintoo @ Chootu and Pintu Baagh were involved in the conspiracy to commit murder or not and it is established law that the memorandum of the co-accused is evidence of weak nature 25 and the benefit of doubt always remains in favor of the accused. Therefore, the link of circumstances of the crime related to murder has not been proved against accused Mahesh Baagh @ Mintoo @ Chootu and Pintu Baagh. Therefore, the prosecution has failed to prove the crime against accused Mahesh Baagh @ Mintoo @ Chootu and Pintu Baagh beyond doubt. 38.
Arguments
13. Mr. Ashwin Panickar, learned counsel for appellant – Suresh Kumar Meher in CRA No. 1372 of 2023 vehemently argued that the conviction of the appellant is totally erroneous and against the evidence presented in the case. He further submitted that there is no eyewitness in the present case the appellant has been falsely implicated in the present case only on the basis of last seen theory and his memorandum statement and recovery of alleged Rs.1,50,000/-, which is said to have been looted money. He also submitted that the alleged amount was not recovered from the possession of the appellant, but the same has been recovered from the relative of the appellant on pointing out and the said recovery is false one, the prosecution has not proved the case against the present appellant beyond all the reasonable doubt. Hence, the appellant is entitled for the benefit of doubt. 14. Mr. Keshav Dewangan, learned counsel for appellants – Pintoo Baagh and Mahesh Bagh @ Mintoo @ Chhotu in CRA No. 2239 of 2024 vehemently argued that the learned trial Court has not properly appreciated the facts and evidence available on record while passing the impugned order. He further argued that the learned trial Court has failed to appreciate that there is there is no any eye witness in this case and only on the basis of memorandum statement made by co-accused Suresh registered 9 the case against the present appellants. The learned trial Court further failed to consider that, the concerned police did not seize any article from the present appellants with regards to incident. The learned trial Court further failed to consider that, as per evidence adduced by DW/1 Dr. Ajay Raut, on the date of incident the appellant no.1 was suffering from high fiver and was unable to walk, thus on the date of incident the appellant no.1 was not involved in this crime. So far as the circumstantial evidence is concerned no any article has been seized by the police and also no any evidence as been adduced by the prosecution against the present appellants which shows that on the date of incident they were involved. The conclusions and findings arrived by the learned trial Court are based on presumption and surmises, therefore, the impugned conviction and sentence of the appellants is bad in law and deserves to be set aside. 15. On the other hand, learned State counsel supports the impugned judgment and submitted that appellant Suresh Meher being the driver of the deceased had accompanied him from his house and was having knowledge that the deceased was carrying an amount of Rs.5,00,000/- with him for the purchase of iron and on the way as per the pre-planned scheme, accused Mahesh Baagh @ Mintoo @ Chootu, Pintu Baagh and Mohan Lal Patel reached near Dongridih on a motor cycle and were waiting for accused Suresh Meher to bring the truck and park it and when accused Suresh Meher stopped the vehicle near Dongridih, accused 10 Pintoo Baagh boarded the said vehicle and hit the deceased Bhuneshwar Kesharwani on the head several times with a rod like wheel pana inside the vehicle and tied the towel around the neck of the deceased and looted the five lakh rupees kept with the deceased and fled leaving the vehicle and the body in the forest of village Khairi-Dhamani and Rs.1,50,000/- was recovered from the relative of the appellant Suresh Meher on pointing out by him. It is also submitted that the learned trial Court after appreciating the evidence on record and after examining the cross-examination of the witnesses, came to the conclusion regarding guilty of the accused/appellants, which is just and proper therefore, both appeal deserves to be dismissed. 16. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 17. Conviction of the accused Suresh Kumar Meher is substantially based on the circumstantial evidence, recovery of Rs.1,50,000/- from his relative on his pointing out and last seen theory as stated by Lucky Kesharwani (PW-2), son of the deceased and conviction of accused Mahesh Baagh @ Mintoo @ Chootu and Pintu Baagh is solely based on the memorandum statement of accused Suresh Kumar Meher, however, neither any recovery has been made from them nor they have been lastly seen with the deceased. 18. The first question for consideration would be, whether the trial 11 Court was justified in holding that death of deceased Bhuneshwar Kesharwani was homicidal in nature ? 19. Dr. B.S. Dhruv (PW-14), who has conducted postmortem over the body of deceased Bhuneshwar Kesharwani and given his report vide Ex.P-09, whereby he has found following injuries :- (i) There were multiple scratches and rope marks all around the neck of the deceased and the mark on the neck appeared to be made of a cloth. (ii) There was a blue coloured cloth around the neck of the deceased whose size was 51X28 inches and there was a blood- like stain on the cloth. (iii) There was a 2X1, 1X1, 0.5X1 inch torn wound on the right temple of the deceased and the bone of the right temple was broken. (iv) There was swelling on the right side of the face measuring 2X2 inches and the bone (maxillary bone) at the same place was broken. (v) Swelling measuring 2X2 inches was present on the right side of the chest of the deceased. He opined that the death was due to complication of throttling of neck and intracranial hemorrhage due to injury on skull and vital organ and it was homicidal in nature and mode of death was asphyxia, the duration of death was within 24-30 hours since 12 postmortem examination. The trial Court, relying upon the statement of Dr. B.S. Dhruv (PW-14), came to the conclusion that the death of deceased was homicidal in nature. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellants. We hereby affirm the said finding. 20. The next question for consideration would be, whether recovery of Rs.1,50,000/- from the relative of accused Suresh Kumar Mehar on his pointing out pursuant to memorandum statement of the accused is admissible and it can be used against him or not ? 21. In the present case, there is no direct evidence / eyewitness available on record. The trial Court has convicted the appellant Suresh Kumar Meher on the basis of his memorandum statement followed by recovery of Rs.1,50,000/- from the relative of accused on his pointing out and on the basis of last seen theory as stated by Lucky Kesharwani (PW-2), son of the deceased, which have been proved in accordance with law. 22. Memorandum statement of accused Suresh Kumar Mehar (Ex.P-10) and seizure memo (Ex.P-14), whereby Rs.1,50,000/- has been seized from relative of accused Suresh Kumar Mehar on his pointing out, have been proved by the Investigating Officer 13 N.K. Swarnakar (PW-16) and Memorandum and Seizure witnesses Shubham Sharma (PW-4) and Prashant Kesharwani (PW-9) and on that basis, the accused Suresh Kumar Meher has been convicted. 23. A careful perusal of memorandum statement of the appellant Suresh Kumar Meher (Ex.P-10) would show that the same has been recorded by Investigating Officer N.K. Swarnakar (PW-16) in presence of two panch witnesses Shubham Sharma (PW-4) and Prashant Kesharwani (PW-9), in which the appellant Suresh Kumar Meher was said to have stated that he is resident of Shivrinarayan and work as a driver. Since last two months, he was driving Mazda bearing No. CG 04 LK 4524 of Iron businessman Bhuneshwar Kesharwani of Shivrinarayan. As he always used to come to Raipur Steel Factory, Urla along with Bhuneshwar Kesharwani, he acquainted with Guard Chootu @ Mahesh Baagh and his brother Pintoo Baagh. On 15.09.2019 at around 12 moon, Chootu, his brother Pintoo Baagh and their friend Mohan Lal Patel came to his house at Shivrinarayan in a black colour Pulsar Motorcycle. In the night after taking meal, Chootu and Pintoo told that him that his boss is going to buy iron with money and they have to steal it. Then they make a plan that tomorrow i.e. on 16.09.2019 in the morning, he will go to Raipur with the boss and stop the vehicle near Dogridih at that time, they can steal the money. All three slept in his house at night. In the morning all three got up and left in their Pulsar vehicle as per their 14 convenience. He left for Raipur at around 10 AM with his boss Bhuneshwar Kesharwani in Tata Mazda bearing No. CG 04 LK 4524 and stopped the vehicle near Dogridih then Pintoo Baagh came and asked to take him along with them. He asked him to sit in the vehicle and Pintoo sat in the vehicle and when the vehicle was moved forward, Pintoo hit with a iron wheel pana into the head of his boss Bhuneshwar Kesharwani several times, due to which Bhuneshwar Kesharwani fell down, then Pintoo tied a gamchha, which he had with him around his neck. Driving the above vehicle from Shedhra Road to Doropar, on the way Pintoo thrown the iron wheel pana. From Doropar they came to Lawan and from there moved towards Khartora and he stopped the vehicle in the middle of forest near village Khairi-Dhamani and came down with his boss’s bag. He and Pintoo went to the other side. They took out money from the bag in which there were 10 bundles of Rs. 500 each, totaling Rs. 5 lakh and 10 bundles of Rs.100 each, totaling Rs.10 thousand. Out of which, he kept 03 bundles of Rs. 500 each and one bundle Rs. 100 and Pintoo Baagh kept 07 bundles of 500-rupee notes with himself. Both of them went to village Rohansi by the reserved route. From Rohansi he came to Lawan by sitting in a Toofan Taxi and Pintoo had gone to Khartora where Chhotu Baagh and Mohal Lal Patel were waiting. He threw his shirt and the fuller in which the bloodstains were present in river Mahanadi and thereafter he came to his home and after wearing another clothes, he went to village and 15 kept the looted money in the house of his relative Anujram. He will get recovered the entire money. 24. At this stage, it would be appropriate to notice Section 27 of the Indian Evidence Act, 1872, which states as under: - “27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 25. Section 27 of the Indian Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered. 26. The Supreme Court in the matter of Asar Mohammad and others v. State of U.P.1 with reference to the word “fact” employed in Section 27 of the Evidence Act has held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the 1 AIR 2018 SC 5264 16 knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor2 observed as under: - “13. It is a settled legal position that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of Maharashtra reported in (2015) 1 SCC 253, in particular, paragraph 23 thereof. The same read thus: “23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor (supra) has held thus: (IA p. 77) “... it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the 2 AIR 1947 PC 67 17 setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. xxx xxx xxx xxx xxx xxx xxx xxx xxx” 27. Reverting to the facts of the case in light of the principles of law laid down by their Lordships of the Supreme Court in Asar Mohammad (supra), only discovery of an object, the place from which it is produced and knowledge of the accused as to this extent would be admissible. In the present case, recovery of an amount of Rs.1,50,000/- has been the relative of the accused on his pointing out pursuant to the memorandum statement of the appellant (Ex.P-10). As such, that part of evidence would be admissible. 28. Now the next question for consideration would be whether 18 the trial Court is justified in convicting the appellant Suresh Kumar Meher only on the basis of theory of 'last seen together' as stated by PW-2 Lucky Kesharwani, whereby he has stated that he saw the deceased and appellant together on the date of alleged incident, finding it to be duly established ? 29. The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 3 has clearly laid down the factors to be taken into account in adjudication of cases of circumstantial evidence, which states as under :- “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (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 3 (1984) 4 SCC 116 19 probability the act must have been done by the accused.” 30. In the matter of Arjun Marik v. State of Bihar4, it has been held by their Lordships of the Supreme Court have held 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 to though a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased.
Decision
For the foregoing reasons, CRA No. 2239 of 2024 filed on behalf of appellant- Mahesh Baagh @ Mintoo @ Chootu and Pintu Baagh is allowed and their conviction & sentences are hereby set aside. It is stated that they are in jail. They be released forthwith if not required in any other case. 39. Keeping in view the provisions of Section 437-A CrPC (now Section 481 of BNSS), appellants- Mahesh Baagh @ Mintoo @ Chootu and Pintu Baagh are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- each with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 40. CRA No. 1372 of 2023 filed on behalf of accused /appellant Suresh Kumar Meher, being devoid of merit, is liable to be and is hereby dismissed. 26 41. The appellant Suresh Kumar Meher is reported to be in jail. He shall serve the remaining period of jail sentence as has been awarded to him by the learned trial Court. 42. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant Suresh Kumar Meher is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 43. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Bibhu Datta Guru) Judge Sd/- (Ramesh Sinha) Chief Justice Chandra