Rajnandgaon, Chhattisgarh. vs For Appellant(s)

matter to the police, marg intimation (Ex.P/21) and FIR (Ex.P/20) were registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were issued vide Ex.P/22 and inquest proceedings were conducted vide Ex.P/23. Spot map was also prepared vide Ex.P/07. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/14), conducted by Dr. Seema Thakur (PW-14), it was opined that the cause of death of the deceased is asphyxia & excessive bleeding in digestive and vaginal injury and case is an incident of multiple assault and nature of death is homicidal. Thereafter, the appellant was arrested vide Ex.P/08 and sent for medical examination. Appellant’s MLC report is vide Ex.P/15. Memorandum statement of the appellant was also recorded vide Ex.P/05 and, pursuant to which, clothes of the deceased has been seized vide Exs.P/09,10 & 11. The seized articles were sent for chemical analysis and, as per FSL report (Ex.P/24), it has been opined that human blood was found on the clothes of the deceased. 4

3. Furthermore, in order to ascertain the exact age of the deceased, birth certificate has been issued by Government of Chhattisgarh, wherein her date of birth has been mentioned/recorded as

18.11.2010, meaning thereby, the deceased was minor aged about 5 years and 2 months on the date of offence.

4. The prosecution in order to prove its case examined as many as 18 witnesses and exhibited 24 documents, whereas the appellant in support of his defence neither examined any witness nor exhibited any document. 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, pleaded innocence and false implication.

5. The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict only the present appellant for offence under Sections 364, 302 & 201 of IPC and under Section 6 of POCSO Act and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

6. Learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 364, 302 & 201 of IPC and 5 under Section 6 of POCSO Act. He further submits that last seen evidence has not been proved and the prosecution has failed to prove the circumstantial evidence appearing against the appellant. The FIR was lodged against unknown persons. The seizure and memorandum has not been proved. Hence, the present appeal deserves to be allowed and appellant is liable to be acquitted of the said charges.

7. On the other hand, learned counsel for the State 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. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under 364, 302 & 201 of IPC and under Section 6 of POCSO Act. Thus, 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/14), wherein it has been opined that cause of death of deceased is asphyxia & excessive bleeding in 6 digestive and vaginal injury and case is an incident of several assault and nature of death is homicidal, which is duly proved by the statement of Dr. Seema Thakur (PW-14). Accordingly, taking into consideration the postmortem report (Ex.P/14) and the statement of Dr. Seema Thakur (PW-14), who has conducted postmortem of the dead-body of the deceased, 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 or not?

11. Ajmat (PW-1) is the witness from whose Kothar (place for storing paddy husk), the dead body was found. In his evidence, he has supported case of the prosecution that the dead body of the deceased minor girl was found in the paddy husk collected by him.

12.Parasram (PW-2) is the witness before whom the dead body of the deceased minor girl was recovered.

13.Kalpana (PW-3) is the minor witness who has seen the accused- appellant with her deceased sister.

14.Lakhan Lal (PW-4) is the father of the deceased minor girl who after coming to know about the disappearance of his minor daughter, went to inquire from the accused-appellant, upon which 7 the accused-appellant told him that he had left the girl in front of the house of one Chetan.

15.Devlal (PW-5) is the witness of the memorandum vide Ex.P/5 and the witness of the map prepared by the police. He has stated that in memorandum the accused-appellant has stated that he has committed the rape of minor girl and strangulated her neck and thrown the dead body in the paddy husk. He further stated that he had hidden the packet of mixture in the paddy husk, which was seized on the instance of the accused-appellant, which has been recovered vide Ex.P/6. The accused-appellant was arrested before him, and he has signed the arrest memo. In the cross- examination also he has also confirmed this fact that the packet of mixture was seized on the instance of the accused-appellant.

16.Bharatlal Sahu (PW-6) is the witness of the seizure memo, by which the blood-stained paddy straw as well as the unstained straw were seized.

17.Lochan Kumar (PW-7) is the witness, was informed about the missing girl.

18.Vijay Kumar Sahu (PW-8) is a Patwari, has prepared a spot map vide Ex.P/7.

19.Leeladhar Nandloi (PW-9) is a Constable, has signed upon the Ex.P/10 by which he has been handed over the sealed underwear of the accused-appellant.

20.Narad Singh (PW-10) is Sarpanch of the village and also the witness of seizure vide Ex.P/9 of blood stained paddy husk and 8 normal husk.

21.Ku. Pooja Sonwani (PW-11) is the minor girl who has also seen the accused-appellant along with the deceased minor girl. She has shown the place of incident vide Ex.P/4.

22.Meena Bai (PW-12) is the shopkeeper from whom the mixture was purchased by the accused-appellant. She has also seen the accused-appellant holding the hands of the deceased minor girl and taking her away.

23.Santram Sahu (PW-13) is a constable, was recorded Seizure Memo vide Ex.P/11, Duty Certificate vide Ex.P/12 and Supurdnama vide Ex.P/13.

24.Seema Thakur (PW-14) is a Medical Officer, who has examined the dead body of the deceased minor girl. She has pointed out four injuries that can be viewed outside the body. Upon internal examination, she has stated that the private parts of the deceased were torn. The perineum, farchit and endometrium were torn. The vagina and anus were also torn. She has opined that the deceased minor girl died due to asphyxia & excessive bleeding in digestive and vaginal injury and the case is of an incident of several assault and nature of death is homicidal. In her cross- examination she has stated that in the head of the deceased there was serious injuries. There were multiple fractures near her ear. The bones were broken. 9

25.Dr. Mohan Tikam (PW-15) is the doctor, who examined the accused-appellant, who has stated that the accused-appellant is competent to commit a sexual act.

26.Harish Chandra (PW-16) is the witness, has seen the dead body of the deceased minor girl and has supported the recovery of the deceased minor girl from the place of the incident.

27.Kamlesh Usare (PW-17) is the Panchayat Secretary, has deposed in respect of date of birth by showing the date of birth maintained by the Gram Panchayat.

28.Umesh Kumar Yadav (PW-18) is a constable, brought the seized articles for FSL examination before the Forensic Laboratory, Raipur. He has stated that all the articles have been seized.

29.Mukesh Yadav (PW-18) who is I.O. It seems that though FIR vide Ex. P/20 was reported against unknown persons, however, during investigation and during the course of recording of statement under Section 161 of CrPC, it was found that the deceased minor girl was last seen together with the appellant. In his cross- examination it has been stated that in investigation nothing has been concealed or suppressed by him and what has been investigated by him was in accordance with law. Nothing could be elucidated from the I.O. by the defence. The witnesses were firmed in deposing against the appellant. During course of investigation the materials collected were sent to FSL and in FSL report was obtained vide Ex.P/24. From the said FSL report it was ascertained that in the underwear of the appellant there was 10 presence of semen.

30.The evidence of last seen together as stated by PW-3, PW-11 and PW-12, however, the accused/appellant has not produced any evidence in support of denial. The report of doctor was also confronted to him, however, except denial nothing was brought in his evidence and in the last paragraph he has stated that he has been falsely implicated.

31.In view of aforesaid evidence as well as the circumstances as brought by the prosecution, the trial Court culled out following circumstances against the accused-appellant. (1.) Last seen together. (2.) On memorandum, the packet of mixtures were seized on the instance of the accused-appellant.. (3.) Semen were found from the underwear of the accused- appellant as per FSL report. (4.) The conduct of the accused-appellant.

32.So far as first circumstance i.e. last seen together is concerned. From the evidence of PW-3, PW-11 & PW-12 it is quite vivid that the minor deceased girl was last seen together with the appellant . From the evidence, it is further evident that no one except the accused-appellant was last seen together with the deceased minor girl. These witnesses have categorically stated about the accused lastly seen together in the shop, from where mixture was purchased. 11

33.In the present matter also except the appellant no one was seen along with the deceased except the appellant. The evidence is clearly indicating that it was the accused-appellant who was last seen together with the deceased minor girl while holding the hands of the deceased along with packet of mixture which was recovered on the instance of the appellant as such this Court confirms the appellant lastly seen with the minor deceased girl.

34.So far as second circumstance i.e. the seizure of mixture packet on his instance which was said to have been purchased from the shop with deceased which was confirmed by the shopkeeper and the other witnesses and the said packet was seized on the instance of the appellant.

35.So far as third circumstance in respect of semen stained found on the underwear of the deceased is also connecting circumstantial evidence against the accused which has been confirmed by the FSL report.

36.So far as fourth circumstance regarding conduct of of the accused-appellant is concerned it also goes against the appellant and when he was interrogated or questioned by the father of the deceased minor girl, he has not explained any probability.

37.Since, in the present case there is no direct evidence against the appellant and the case of the prosecution is based on circumstantial evidence, it is profitable here to note following five 12 golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 1 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 1 (1984) 4 SCC 116 13 of the accused and must show that in all human probability the act must have been done by the accused.”

38.Likewise, in the matter of State of Goa v. Sanjay Thakran 2 , 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 2 (2007) 3 SCC 755 14 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. ”

39.In the matter of Mahavir Singh v. State of M.P.3, the Hon’ble Supreme Court held that the conviction can be sustained on last seen theory if proximity of time is established. The relevant paragraphs are quoted hereinbelow:- “It is the duty of the Apex Court to separate chaff from the husk and to dredge the truth from the pandemonium of Statements. It is but natural for human beings to state variant statements due to time gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements 3 (2016) 10 SCC 220 15 [See : Tahsildhar Singh v. State of UP, AIR 1959 SC 1012; Pudhu Raja v. State, (2012) 11 SCC 196; State of UP v. Naresh, (2011) 9 SCC 698]. The case in hand is a fit case, wherein there are material exaggerations and contradictions, which inevitably raises doubt which is reasonable in normal circumstances and keeping in view the substratum of the prosecution case, we cannot infer beyond reasonable doubt that the appellant caused the death of the deceased. Normally, when a culprit perpetrates a heinous crime of murder and takes away the life of a human being, if appropriate punishment is not awarded to that offender, the Court will be failing in its duty. Such crime, when indulged by a criminal blatantly, is not committed against an individual alone, but is committed against the society as well to which the criminal and victim are a part. It needs no emphasis from this Court that the punishment to be awarded for such a crime must be relevant and it should conform to and be consistent with the atrocity and brutality with which the crime has been carried out. Here in the instant case, no doubt, an innocent man has lost his life at the hands of another man, and looking at the way in which the investigation was handled, we are sure to observe that it was carried out in a lackluster manner. The approach of the Investigating Officer in recording the statements of witnesses, collecting the evidence and preparation of site map has remained unmindful. The Investigating Officer, dealing with a murder case, is expected to be diligent, truthful and fair in his approach and his performance should always be in conformity with the 16 police manual and a default or breach of duty may prove fatal to the prosecution’s case. We may hasten to add that in the present case the investigation was carried out with unconcerned and uninspiring performance. There was no firm and sincere effort with the needed zeal and spirit to bring home the guilt of the accused. We feel that there are no compelling and substantial reasons for the High Court to interfere with the order of acquittal when the prosecution has miserably failed to establish the guilt of the accused. Added to this, the accused has already undergone nine years’ of imprisonment and we feel that it is a fit case inviting interference by this Court.”

40.In the matter of Ramreddy Rajesh Khanna Reddy v. State of A.P.4, the recovery under Section 27 of the Indian Evidence Act and last seen together can jointly prove the guilt. It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [See Anil Kumar Singh v. State of Bihar 4 (2006) 10 SCC 172 17 (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603] The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration. In State of U.P. v. Satish [(2005) 3 SCC 114], this Court observed: "22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." [See also Bodh Raj @ Bodha & Ors. Vs. State of 18 Jammu & Kashmir AIR 2002 SC 3164.] It is, furthermore, well-known that motive by itself is not sufficient to prove the guilt. [See State of M.P. through CBI & Ors. v. Paltan Mallah & Ors. (2005) 3 SCC 169, para 9.] Furthermore, the solitary witness, to prove the alleged motive, namely, P.W.8 was examined by the police after two days. No reliance, thus, can be placed on his evidence. It may be true that the Appellant No. 2 was a history-sheeter. It may further be true that P.W.1 instituted a case against the Appellant No. 1 for threatening him when he was on bail. It may also be, that P.W.7 did not identify the Appellants as he was found shaking. If the Appellants are guilty of other offences, they can be proceeded against appropriately and in accordance with law. We hope the authorities would do so. But, keeping in view of the peculiar facts and circumstances of this case, we are of the opinion that the prosecution cannot be said to have established the guilt of the Appellants herein beyond all shadow of doubt. The prosecution story has a large number of loopholes and, thus, we have no other option but to hold that the Appellants are entitled to the benefit of doubt. The impugned judgment is, therefore, set aside and the appeals are allowed. The Appellants are directed to be set at liberty unless wanted in connection with other case.”

41.In the matter of Anjan Kumar Sarma v. State of Assam5, their 5 (2017) 14 SCC 359 19 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.

42.In the matter of Abdul Nassar vs. State of Kerala and another6, the Hon ‘ble Supreme Court has held that :- “26.Based on the analysis of the evidence on the record, we are of the view that the chain of incriminating circumstances required to bring home the guilt of the accused is complete in all aspects. In the present case, we affirm that the prosecution has been able to prove the guilt of the accused appellant by fulfilling the five golden principles (Panchsheel) laid down by this Court in the case of Sharad Birdhichand Sarda (supra) and circumstances present before us, taken together establish conclusively only one hypothesis that being the guilt of the accused appellant.”

43. In light of the above pronouncements of the Hon’ble Supreme Court and the facts duly proved, this Court finds no infirmity or perversity in the findings recorded by the trial Court. From the evidence of the medical officer, it is clear that the private parts of the prosecutrix were torn, and when all the circumstances 6 (2025) SCC OnLine SC 111 20 are connected against the appellant, it is clear that the accused- appellant is the author of the crime, and no one else can be held responsible.

44. In view of the cogent and credible evidence presented by the prosecution, this Court finds that the trial Court rightly appreciated the oral and documentary evidence on record and correctly convicted the appellant under Sections 364, 302, and 201 of the IPC and Section 6 of the POCSO Act. The prosecution established a complete chain of circumstantial evidence pointing to the appellant’s guilt.

45. Accordingly, the conviction and sentences are affirmed. No illegality or perversity is found in the trial Court’s findings to warrant interference by this Court.

47. Resultantly, this Criminal Appeal is dismissed. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

48. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, 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 the High Court Legal Services Committee or the Supreme Court Legal Services 21 Committee. Sd/- (Rajani Dubey) Judge Raghu Jat/Vishakha Sd/- (Amitendra Kishore Prasad) Judge