Chaitram v. State of Chhattisgarh

The trial Court, after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellants as mentioned in the opening paragraph of this judgment, against which, they have preferred the instant appeal under Section 374(2) of the Cr.P.C.

Learned counsel for the appellants would submit that the learned trial Court has erred in convicting and sentencing the appellants for the aforesaid offences as the prosecution has failed to establish the charges beyond reasonable doubt. He would further submit that the prosecution's case is based entirely on a weak and incomplete chain of circumstantial evidence, which falls short of pointing unerringly to the guilt of the appellants. He would also submit that the crucial 5 circumstance of the appellants being "last seen together" with the deceased has not been proved beyond reasonable doubt. He would further contend that no clear or established motive has been attributed to the appellants and the alleged call detail records have not been duly proved in accordance with law. As such, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellants be acquitted of the said charges. Reliance has been placed upon the decisions of Supreme Court in the matters of Arjun Marik v. State of Bihar reported in 1994 Supp (2) SCC 372, State of Goa v. Sanjay Thakran reported in (2007) 3 SCC 755, Kanhaiya Lal v. State of Rajasthan reported in (2014) 4 SCC 715, Anjan Kumar Sarma v. State of Assam reported in (2017) 14 SCC 359, and also in the matter of Rambraksh @ Jalim vs. State of Chhattisgarh reported in (2016) 12 SCC 251.

Learned counsel for the State would support the impugned judgment and submit that the prosecution has brought home the offence against the appellants and has proved the case beyond reasonable doubt and thus, the appellants have rightly been convicted and sentenced for the aforesaid offences.

We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

The first question for consideration would be whether the death of the deceased was homicidal in nature which has been answered by the 6 trial Court in affirmative relying upon the postmortem report (Ex.P-4) proved by PW-13 Dr.Sulabha Ahluwaliya, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the question would be whether the appellants are the author of the crime in question?

The first question that arises for our consideration is whether the deceased was last seen in the company of the accused persons. According to the prosecution, PW-1 Suraj Singh, the brother of the deceased, has been projected as the ‘last seen’ witness who allegedly saw the deceased in the company of the accused shortly before his death. Although he has stated in his testimony that he knows the appellants, but a careful perusal of his statement reveals that he has not, at any point, specifically asserted that he saw the deceased last in the company of the accused. Furthermore, it is only after the post- mortem report that he came to know the deceased had not committed suicide by hanging, but had in fact been strangled to death. In the absence of a categorical assertion regarding the ‘last seen’ circumstance, the prosecution has failed to establish PW-1 as a credible witness in this regard. Consequently, the theory of the deceased being ‘last seen together’ with the accused remains unsubstantiated through his evidence.

In addition, the prosecution has presented PW-2 Tiharobai, the wife of the deceased, as another ‘last seen’ witness. In her examination-in- 7 chief, she stated that the deceased had gone along with appellant No.2- Dhaniram, towards the fields across the road and did not return for the entire night. However, during her cross-examination, she admitted that her husband had, in fact, returned home with appellant No.2- Dhaniram at around 8–9 p.m., and thereafter, both of them went out again. She further stated that she subsequently went to sleep inside the house with her child and was unaware of where her husband and Dhaniram went thereafter. Her own testimony, therefore, establishes that she did not see the deceased last in the company of appellant No.2, as she lost sight of them thereafter. In light of these material contradictions, her version does not inspire confidence and cannot be relied upon to establish the ‘last seen together’ circumstance. Accordingly, her testimony does not sufficiently support the prosecution's theory and is not considered reliable.

In the matter of Arjun Marik (Supra), 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 to though a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. 8 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.

Likewise, in the matter of Sanjay Thakran (Supra), 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.

15. 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.” 1 (2010) 15 SCC 715 11

In the matter of Anjan Kumar Sarma, 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.

Also, the Hon’ble Supreme Court in Kanhaiya Lal (Supra) has held that evidence on 'last seen together' is a weak piece of evidence and conviction only on the basis of 'last seen together' without there being any other corroborative evidence against the accused, is not sufficient to convict the accused for an offence under Section 302 IPC. The following passage from the judgment in paras 12 and 15 can be profitably referred: “12. 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. 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.

15. The theory of last seen-the appellant having gone with the deceased in the manner noticed hereinbefore, the singular piece of 12 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, (2010) 15 SCC 588".

Similarly, the Hon’ble Apex Court in Rambraksh (supra) has reiterated above legal position in the following words in paras 12 and 13, which has been held as under:- "12. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the timegap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused. 13 13. In a similar fact situation this Court in Krishnan v. State of T.N. (2014) 12 SCC 279 held as follows: (SCC pp. 284-85, paras 21-24) "21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar (1994) Supp (2) SCC 372 this Court held as follows: (SCC p. 385, para 31) ' 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 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.'

22. This Court in Bodhraj v. State of J&K, (2002) 8 SCC 45 held that: (SCC p. 63, para 31)

31. 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.' 14 It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together.

23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4- 2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased.

24. In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, this Court held that in the absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed. "

Reverting to the facts of the present case in light of the aforementioned authoritative pronouncement, it is quite evident that the prosecution has failed to establish, by leading cogent, reliable, and convincing evidence, that the deceased was last seen in the company of the accused persons immediately prior to his death. The two principal witnesses projected by the prosecution in support of the ‘last seen’ 15 theory—PW-1 (Suraj Singh) and PW-2 (Tiharobai)—have both failed to withstand the test of credibility. In view of these material discrepancies and contradictions, the prosecution has not discharged the burden of proving the crucial link of ‘last seen together’. Sole reliance on the weak, inconsistent, and uncorroborated testimony of the alleged ‘last seen’ witnesses is grossly insufficient to establish the guilt of the accused beyond reasonable doubt.

As regards the alleged motive behind the commission of the offence, the prosecution has sought to attribute the motive to accused/appellant No.1 Chaitram @ Maru, alleging that he had illicit relations with the wife of the deceased. It is further alleged that due to this, the deceased would often get angry, which led to quarrels between the deceased and the accused. The prosecution claims that, although a compromise was allegedly reached between them at some point, but this strained relationship ultimately led the accused persons to commit the murder of the deceased. However, upon careful scrutiny of the evidence available on record, it is evident that the prosecution has failed to substantiate this alleged motive with any cogent, reliable, or corroborative material. No independent witness has come forward to testify regarding the alleged illicit relationship between appellant No.1 and the wife of the deceased. Moreover, the wife of the deceased, who could have been a key witness on this aspect, has not made any categorical statement in her testimony supporting the prosecution’s version of the motive. There is also no evidence of any prior complaint, confrontation, or incident that may lend credibility to the claim of ongoing animosity or strained 16 relations between the deceased and the accused based on this alleged relationship. It is well settled in criminal jurisprudence that while motive is not a sine qua non for conviction where the case is based on direct evidence, but in cases resting on circumstantial evidence, motive assumes greater significance and often acts as a crucial link in the chain of circumstances. In the present case, where the prosecution relies entirely on circumstantial evidence and the ‘last seen together’ theory has already been found unreliable, the absence of a proven motive further weakens the prosecution's case. In light of the above discussion, this Court is of the considered view that the prosecution has failed to establish any credible or convincing motive on the part of the accused persons to commit the murder of the deceased. The alleged motive remains unsubstantiated and cannot be treated as a proven circumstance capable of forming part of a complete chain pointing unerringly to the guilt of the accused.

In addition to the aforementioned lapses, it is pertinent to note that while the prosecution claims to have seized a beer bottle, disposable glasses, the deceased’s mobile phone and a pair of slippers from the place of occurrence, as well as two mobile phones from accused- Dhaniram and one mobile phone each from accused Chaitram and accused Kartik, but the evidentiary value of these recoveries is substantially diminished due to serious flaws in the investigation. PW-14 K.S. Nagwanshi, the Investigating Officer, in his cross-examination, made several crucial admissions that severely undermine the credibility and utility of the alleged recoveries. He admitted that he seized three 17 beer bottles and disposable glasses not from the actual spot of the incident but from a vacant land located behind the appellants’ house. This raises a serious doubt as to whether the said items were in fact connected with the crime or planted thereafter, as there is no linkage established between these items and the deceased or the incident in question.

It is a settled principle of criminal jurisprudence that the prosecution must establish the chain of circumstances with cogent and reliable evidence, particularly in cases based on circumstantial evidence.

It is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 2 which constitute the 2 (1984) 4 SCC 116 19 ‘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 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, 20 (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.

In the light of aforesaid decisions of the Hon’ble Supreme Court, it is quite evident that the prosecution has failed to establish a complete and unbroken chain of circumstances that unerringly point to the guilt of the accused persons. The theory of the deceased being ‘last seen together’ with the accused persons remains unsubstantiated; the alleged motive is vague and unproven; and the investigation is marred by significant lapses, including the unexplained delay in lodging the FIR and failure to verify critical electronic evidence such as mobile phone and SIM ownership. In a case based entirely on circumstantial evidence, such omissions are fatal. It is a well-settled principle of criminal jurisprudence that the prosecution must establish its case beyond reasonable doubt. That standard has clearly not been met in the present matter. Consequently, the accused persons are entitled to the benefit of doubt and deserve to be acquitted of the charges levelled against them. 21 26. Accordingly, the appeal is allowed, and the impugned judgment of conviction and order of sentence passed by the learned trial Court is hereby set- aside. The appellants are acquitted of the aforesaid charges on the basis of benefit of doubt.

The appellants are reported to be on bail. Keeping in view the provision of Section 437-A of Cr.P.C., the appellants are directed to forthwith furnish personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- each with one surety each in the like amount before the trial 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.

Registry is directed to transmit the lower Court record along with a copy of this judgment to the trial court forthwith for information and necessary compliance. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha