Chattisgarh High Court
Ram Prasad Yadav vs State Of Chhattisgarh on 6 May, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal, Rajani Dubey
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1118 of 2014
Ram Prasad Yadav S/o Nanduram Yadav, Aged about 24
years, R/o village Gangapur, P.S. Katghora (Civil
and Revenue) District Korba, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through P.S. Katghora, (Civil
and Revenue) Distt. Korba, Chhattisgarh.
Respondent
For Appellant : Mr. Rajesh Jain, Advocate
For State : Mr. Sudeep Verma, Dy. G.A.
Criminal Appeal No. 283 of 2015
Santosh Prasad Yadav S/o Shri Vishal Ram Yadav,
Aged about 21 years, R/o Village Gangpur, Police
Station Katghora, Distt. Korba, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through P.S. Katghora,
Distt. Korba, Chhattisgarh.
Respondent
For Appellant : Mr. Rishi Rahul Soni, Advocate
For State : Mr. Himanshu Kumar Sharma, P.L.
2
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
06/05/2022
Sanjay K. Agrawal, J.
1. Since both of these criminal appeals have arisen out of common impugned judgment dated 17/10/2014, therefore, they have been heard together and are being decided by this common judgment.
2. The two appellants namely Ram Prasad Yadav and Santosh Yadav have preferred these two criminal appeals under Section 374(2) of CrPC questioning the impugned judgment dated 17/10/2014 passed by learned Additional Session Judge, Katghora in Sessions Trial No 21/2014 by which they have been convicted for offence punishable under Section 302 read with Section 34 of IPC as well as Section 201 read with Section 34 of IPC and sentenced to life imprisonment along with a fine of Rs. 1,000/ in default of payment of fine, further R.I. for six months and imprisonment for three years and fine of Rs. 500/ in default of payment of fine, further R.I. for three months, respectively.
3. The case of the prosecution, in brief, is that on the intervening night of 12/11/2013 and 13/11/2013 (in between 10 PM to 7 AM) at village Gangapur, the 3 two appellants herein namely Ram Prasad Yadav and Santosh Yadav, in furtherance of their common intention, assaulted one Mohpal Yadav (hereinafter called the deceased) and caused his death and thereafter, hung his dead body on a Char tree near Vijay Ghati Jhora and further caused disappearance of the evidence of crime and they thereby committed the offences punishable under Sections 302 read with Section 34 of IPC and Section 201 read with Section 34 of IPC.
4. It is admitted position on record that both the appellants herein as well as deceased Mohpal Yadav were residents of Village Gangapur, Police Station Katghora and Jivanpal Yadav (P.W.2), Bhuvanpal Yadav (P.W.6) and Khilavan Yadav (P.W.8) are brothers of the deceased and Narayan Yadav (P.W.5) is father of the deceased.
5. Further case of the prosecution is that on 13/11/2013 at about 09:00 AM, Sahasram Yadav (P.W.
4), while returning back from forest after chopping wood, noticed the dead body of deceased Mohpal Yadav hanging from a tree near Vijay Ghati Jhora. He informed about the same to the Police pursuant to which merg intimation (Ex. P/3) was registered and First Information Report bearing Crime No. 301/2013 (Ex. P/4) was lodged and thereafter, 4 Police took up the matter for investigation. On the same day i.e. 13/01/2013, Police reached the crime spot and prepared inquest report (Ex. P/2) and sent the dead body of the deceased for postmortem which was conducted by Dr. K.S. Kanwar (P.W.12) and the postmortem report has been filed as Ex. P/22 wherein the cause of death is shown to be Asphyxia due to smothering. Thereafter, certain articles including plain soil as well as blood stained soil, tshirt and slippers, deceased's underwear were seized by the Police from the spot vide Ex. P/5. Pursuant to the memorandum statement of appellant/accused Ram Prasad Yadav vide Ex. P/8, one suzuki motocycle bearing registration No. CG 13 G 5895 as well as one mobile phone of Celkone company containing one sim of airtel with No. 9585964946 and another sim of reliance with No. 8103524229 were seized and pursuant to the memorandum statement of appellant/accused Santosh Yadav vide Ex. P/9, lower of the deceased as well as mobile phone of the deceased were seized along with his own mobile phone of Micromax company containing one sim of airtel with No. 8085471835 was seized and thereafter, the two appellants herein were arrested vide Ex. P/16 and P/17. Pursuant thereof, telephone details were gathered from the Cyber Cell of the Police which are filed 5 as Ex. P/28 and P/29. After completing the due investigation and after collecting incriminating material against the appellants herein, the Police proceeded to submit the chargesheet before the Criminal Court which was committed before the Court of Session for hearing and disposal in accordance with law. The appellants abjured their guilt and entered into defence.
6. In order to bring home the offence, prosecution examined as many as 15 witnesses and brought on record 29 documents whereas the appellants/accused persons, though examined none, but brought on record 4 documents in their defence.
7. Learned trial Court, after appreciating the oral and documentary evidence on record, proceeded to convict the appellants herein for offences punishable under Sections 302 read with Section 34 of IPC and Section 201 read with Section 34 of IPC and also awarded the sentence as aforesaid finding the following incriminating circumstances against the appellants herein :
i) that, the death of deceased Mohpal Yadav was homicidal in nature.
ii) that, the theory of 'last seen together' of the appellants with the deceased is clearly established 6 on the basis of the testimony of Jivanpal Yadav (P.W.2) and Khilawan Yadav (P.W.8) [brothers of the deceased].
iii) that, the motive of the offence is also established as deceased Mohpal Yadav was in a love affair with one Sunita Yadav, sister of appellant Ram Prasad Yadav.
However, the following facts were not found proved by the trial Court :
i) that, the FSL report has not been brought on record and the memorandum and seizure has not been duly proved by the prosecution (see: paragraph 20 of the impugned judgment).
ii) that, the prosecution has failed to prove that deceased Mohpal Yadav was called by appellant Santosh Yadav by the call details extracted by the Cyber Cell vide Ex. P/28 and P/29 (see: paragraph 22 of the impugned judgment).
8. Mr. Rajesh Jain, learned counsel appearing for the appellant Santosh Prasad Yadav in CRA/1118/2014, would submit that the appellants have only been convicted by the trial Court on the basis of the theory of 'last seen together' finding it to be proved by the prosecution, which in fact has not 7 been established which is apparent from the statements of Jivanpal Yadav (P.W.2) and Khilavan Yadav (P.W.8). He would further submit that even if the theory of 'last seen together' is found established by this Court, the conviction of the appellants cannot rest merely on that in view of the decision rendered by the Supreme Court in the matter of Kanhaiya Lal v. State of Rajasthan1. He would also submit that the motive of the offence has also not been established though Sunita Yadav is the sister of appellant Ram Prasad Yadav, but there is no evidence on record to hold that there was bitterness between the appellant and the deceased on account of the alleged love affair existing between Sunita Yadav and the deceased, as such, the conviction of the appellant is liable to be set aside.
9. Mr. Rishi Rahul Soni, learned counsel for the appellant Santosh Yadav in CRA/283/2015, would submit that merely on the basis of the theory of 'last seen together', conviction of the appellants under Section 302 of IPC cannot be maintained as the seizure and memorandum have not been proved and no other incriminating circumstances have been found to be established by the prosecution against the appellants herein. As such, his conviction is 1 (2014) 4 SCC 715 8 liable to be set aside. He would further submit that though the motive of the offence has been alleged to be the dispute that arose between the appellant Santosh Yadav and deceased on account of money owed by Santosh Yadav in lieu of 50 litres diesel that he had given to the appellant, but there is no such evidence on record except some statement in the memorandum statement of appellant Santosh Yadav (Ex. P/9) to connect the appellants with the offence punishable under Section 302 of IPC. As such, the impugned judgment of conviction resting only on the theory of 'last seen together' is liable to be set aside.
10. Per Contra, Mr. Sudeep Verma and Mr. Himanshu Kumar Sharma, learned counsel for the respondent/State, would support the impugned judgment of conviction recorded and sentence awarded by the trial Court and submit that prosecution has brought ample evidence on record to hold the appellants guilty for offences punishable under Section 302 read with Section 34 and Section 201 read with Section 34 of IPC and they have rightly been convicted relying upon the death of deceased Mohpal Yadav being homicidal in nature and on the basis of the theory of 'last seen together' which has fully been established it cannot be held that on the basis of 9 'last seen together' theory only, conviction cannot rest, as such, the conviction of the appellants recorded and sentence awarded is strictly in accordance with law and the instant appeals deserve to be dismissed.
11. We have heard learned counsel for the parties, considered their rival submissions made herein above, and went through the records with utmost circumspection.
12. The first question for consideration is whether the death of deceased Mohpal Yadav was homicidal in nature ?
13. Learned trial Court has recorded an affirmative finding with regard to the aforesaid question holding that the death of deceased Mohpal Yadav was indeed homicidal in nature relying upon the medical evidence of postmortem report (Ex. P/22) which has been proved by Dr. K.S. Kanwar (P.W.12) stating that deceased died due to asphyxia by smothering. A careful perusal of the statement of Dr. K.S. Kanwar (P.W.12) would show that he has clearly stated that the deceased Mohpal Yadav died on account of asphyxia due to smothering (see: paragraph 5). As such, after hearing learned counsel for the parties and after going through the record particularly the 10 statement of medical witness Dr. K.S. Kanwar (P.W.
12) and postmortem report (Ex. P/22), we are of the considered opinion that learned trial Court is absolutely justified in holding that the death of deceased Mohpal Yadav was homicidal in nature. We hereby affirm the said finding recorded by the trial Court.
14. The aforesaid finding would bring us to the next question which is, whether the death of deceased Mohpal Yadav was caused by the appellants herein ?
15. As noticed above, learned trial Court has clearly recorded the finding that death of deceased was homicidal in nature and on the basis of the theory of 'last seen together' the appellants have been convicted for offence punishable under Section 302 read with Section 34 of IPC and for causing disappearance of evidence of crime offence punishable under Section 201 read with Section 34 of IPC.
16. It has firstly been contended by learned counsel for the appellants that the theory of 'last seen together' has not been established. Jivanpal Yadav (P.W.2) and Khilavan Yadav (P.W.8), who are the brothers of deceased Mohpal Yadav, are the witnesses who have proved the theory of 'last seen 11 together'. Jivanpal Yadav (P.W.2) has clearly stated in paragraph 2 of his statement before the Court that on the night of the incident, Mohpal Yadav ate his meal with his father Narayan Yadav (P.W.5) and his brothers Bhuvanpal Yadav (P.W.6) and Khilavan Yadav (P.W.8) and after receiving a phone call, he went out of the house wearing a T shrit and Lower and the deceased along with the two appellants were sitting around a bonfire warming their hands nearby their house as it was a cold night. A similar statement has been made by Khilavan Yadav (P.W.8). He has further added that his friends Bajrang and Komal were also present but thereafter the three of them left leaving behind the deceased and the two appellants sitting around the bonfire. On the next morning, the people returning from Village Jhora informed that there is someone's dead body hanging from a tree and when their father Narayan Yadav (P.W.5) went to the spot, he came back and informed them that the dead body hanging from the tree is of deceased Mohpal Yadav. Though both the witnesses have been subjected to crossexamination but nothing has come on record to disbelieve their testimony before the Court or to say that they have not seen the deceased and the appellants sitting together before the incident had taken place. As such, it cannot be 12 held that the theory of 'last seen together' is not established. In the considered opinion of this Court, learned trial Court has rightly held that the theory of 'last seen together' has fully been established.
17. Now, before considering the question as to whether the conviction of the appellants under Section 302 of IPC can rest solely on the theory of 'last seen together', it would be appropriate to consider the finding recorded by the trial Court that there was motive of the offence which has duly been established by the prosecution.
18. Admittedly, Sunita Yadav is the sister of appellant Ram Prasad Yadav and as per the statement of Jivanpal Yadav (P.W.2), deceased Mohpal Yadav was having a love affair with Sunita Yadav, which is said to be the motive of appellant Ram Prasad Yadav for causing death of Mohpal Yadav. Similarly, brother of deceased Bhuvanpal Yadav (P.W.6) has also stated that after the death of Mohpal Yadav, he got to know that Sunita Yadav, sister of appellant Ram Prasad Yadav, had a love affair with the deceased. Navmichand (P.W.7), with whom deceased Mohpal Yadav had worked, has also stated before the Court that the deceased had informed him that he was having a love affair with Sunita Yadav, 13 sister of Ram Prasad Yadav, and on account of some dispute that took place between appellant Ram Prasad Yadav and deceased Mohpal Yadav, the appellant Ram Prasad Yadav was arrested by the Police. Likewise, Khilavan Yadav (P.W.8) has also stated in paragraph 9 of his statement that he suspects that a love affair existed between his brother Mohpal Yadav and Sunita Yadav, sister of Ram Prasad Yadav and that is why the appellants caused the death of deceased and hung his dead body on the tree.
19. A careful perusal of the aforesaid statements of prosecution witnesses would show that only fact that deceased Mohpal Yadav was in a love affair with Sunita Yadav, sister of Ram Prasad Yadav has been established, but there is no such evidence on record to establish that on account of said love affair, there was bitterness between appellant Ram prasad Yadav and deceased Mohpal Yadav and it is the cause of death. Prosecution was obliged to bring clear cut evidence on record that due to their love affair existing between deceased Mohpal Yadav and Sunita Yadav, there was some dispute between the two families and they warned the two not to continue their relationship or that since they were in an illicit relationship which was 14 objected by Ram Prasad Yadav and his family. Except for the evidence of relationship between deceased Mohpal Yadav and Sunita Yadav, no further evidence has been brought on record qua bitterness between appellant Ram Prasad Yadav and deceased Mohpal Yadav on account of the relationship between Mohpal Yadav and Sunita Yadav. Though Narayan Yadav (P.W.
5) father of deceased as well as three brothers of the deceased namely Jivanpal Yadav (P.W.2), Bhuvanpal Yadav (P.W.6) and Khilavan Yadav (P.W.
8) have stated in their testimony about the relationship between deceased Mohpal Yadav and Sunita Yadav, but they have nowhere stated that on account of their relationship, there was bitterness between their family and the family of appellant Ram Prasad Yadav. As such, we are of the considered opinion that the motive of offence on the part of appellant Ram Prasad Yadav has not been established by the prosecution.
20. Likewise, it has been faintly argued by learned counsel for the respondent/State that appellant Santosh Yadav has stated in his memorandum statement (P.W.9) that deceased Mohpal Yadav owed him the money for 50 litres of diesel which he had given to Mohpal Yadav, as such, there is motive for offence on the part of appellant Santosh Yadav. 15 This submission made by learned counsel for the respondent is not acceptable as it is settled legal position that Section 27 of the Evidenct Act, 1872 is applicable only if confessional statement leads to discovery of some new fact. The relevance is limited as relates distinctly to fact thereby discovered in relation to the crime (see :
Navneethakrishnan v. STATE by Inspector of Police2). Furthermore, though as many as 15 witnesses have been examined by the prosecution but no such evidence has been brought on record to demonstrate that deceased Mohpal Yadav had taken any diesel from the appellant Santosh Yadav and he has not paid money to the appellant for the same.
As such, the motive of offence on the part of appellant Santosh Yadav has also not been established and the submission made by learned counsel for the respondent/State in this regard is hereby rejected.
21. The last question for consideration would be whether learned trial Court is justified in convicting the appellants only on the basis of the theory of 'last seen together' finding it to be duly established ?
2 (2018) 16 SCC 161 16
22. The Supreme Court, in the matter of Sharad Birdhichand Sarda v. State of Maharashtra3, 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 probability the act must have been done by the accused."
23. 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 1971985 and had stayed in the night at the house of deceased Sitaram is very shaky and 3 (1984) 4 SCC 116 4 1994 Supp (2) SCC 372 17 inconclusive. Even if it is accepted that they were there it would at best amount tothough a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."
24. Likewise in the matter of State of Goa v. Sanjay Thakran5 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 : "34. From the principle laid down by this Court, the circumstance of lastseen 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 5 (2007) 3 SCC 755 18 persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. "
25. Similarly in the matter of Kanhaiya lal (supra), 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 nonexplanation on the part of the appellant in our considered opinion, by itself cannot lead to 19 proof of guilt against the appellant. It has been held in paragraphs 15 and 16 as under : "15. The theory of last seen - the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan6.
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 appellantaccused 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."
26. Finally 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 6 (2010) 15 SCC 588 7 (2017) 14 SCC 359 20 absence of satisfactory explanation, cannot be made basis of conviction.
27. 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 vivid that prosecution has only proved that the death of deceased Mohpal Yadav was homicidal in nature and that the appellants were last seen with the deceased and no other connecting links have been satisfactorily made out and no other incriminating circumstance which leads to the hypothesis of guilt against the appellants/accused persons have been proved. As such, in absence of proof of other circumstances, only the theory of 'last seen together' cannot be made the sole basis for conviction of the appellants herein as it would be unsafe to rest conviction only on the theory of 'last seen together'. We are of the considered opinion that learned trial Court is absolutely unjustified in convicting the appellants herein for offence punishable under Section 302 read with Section 34 of IPC and Section 201 read with Section 34 of IPC only on the basis of the theory of 'last seen together' finding it fully established in absence of motive for offence on the part of the appellants 21 and in absence of other incriminating material against the appellants in light of the principles of law laid down by their Lordships of the Supreme Court in the matters of Arjun Marik, Sanjay Thakran and Kanhaiya lal (supra). We hereby set aside the conviction so recorded and the sentence so awarded by the trial Court vide impugned judgment dated 17/10/2014. The appellants herein are acquitted of the charges of Sections 302, 201 read with Section 34 of IPC and they be released forthwith, if not required in any other case.
28. These appeals are allowed to the extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Harneet