Chattisgarh High Court
Chaman Lal Jangde vs State Of Chhattisgarh on 20 July, 2023
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.892 of 2020
Chaman Lal Jangde S/o Shri Bishatram Jangde Aged About 38 Years
R/o Ward No. 12 Amodi, Police Station Aarang District Raipur,
Chhattisgarh., District : Raipur, Chhattisgarh
---- Appellant ( In Jail)
Versus
State Of Chhattisgarh Through District Magistrate, Mahasamund,
Chhattisgarh., District : Mahasamund, Chhattisgarh
---- Respondent
For Appellant : Shri Kshitiz Sharma, Advocate
For Respondent/State : Shri Praveen Shrivastava, Panel Lawyer
D.B.: Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
Per Goutam Bhaduri, J.
20.07.2023
1. This present appeal is against the impugned judgment of conviction and order of sentence dated 29.10.2020 passed by the First Additional Sessions Judge, Mahasamund in Sessions Trial No.H- 14/2019, whereby the appellant has been convicted and sentenced as below:-
CONVICTION SENTENCE Under Section 302 of the Life Imprisonment and fine of Rs.5000/-, and IPC in default of payment of fine, additional R.I. for six months
2. The prosecution case, in brief, is that when on 23.11.2018, the complainant Manohar Singh went for bath at 7 AM to Mahanadi 2 Barrage, at that time he saw a dead body was lying and having seen the same, he found that the injury was caused on his head by a stone, as such, he reported the said incident to Police Station Tumgaon. The Police Station Tumgaon registered the merg No.59/18 and upon enquiry, it was found that the dead body of one Keshav Das Manikpuri. The dead body was subjected to postmortem and it was found that the death was homicidal in nature, as such, case under Section 302 of the IPC was registered against the appellant. After due investigation, the accused Chaman Lal Jangde was found to be involved in the crime and he was arrested and during custody, when enquiry was conducted, a weapon used for commission of the said offence i.e. bamboo stick and stone were recovered at the instance of the appellant-accused. Further, the shirt, which was stained with blood, was also recovered from the accused. On the basis of the statement of prosecution witnesses that the appellant was last seen in company of the deceased as also on the basis of tower location of mobile call of accused, the charge sheet was filed after collection of evidence. During the course of trial, the appellant abjured the guilt and claimed to be tried. The prosecution examined as many as 15 witnesses and after evaluating the evidence, convicted the appellant as aforesaid. Hence, this appeal.
3. Learned counsel for the appellant would submit that there is no direct evidence to the case and the conviction of the appellant is solely based on the circumstantial evidence. Referring to the statement of Sewaram Sahu, PW-5, Narendra Kumar Sahu, PW-8 and Punaram 3 Dhritlahre, PW-9, learned counsel for the appellant would submit that only on the basis of last seen evidence, the appellant has been inculpated. He would further submit that before the incident, the accused and the deceased were seen in a liquor shop, wherein other congregation of the people was also present, therefore, accusation which was shifted over the appellant without any evidence is only on doubt & fake story was planted by the prosecution. He would further submit that according to the prosecution, alleged weapon, bamboo stick and the stone were recovered at the instance of the accused, but they were from the open place. Consequently, it cannot be attached to the accused and place was in access to the general public.
4. He would further submit that recovery of bloodstained shirt from the accused after 2 days is improbable to accept that the accused when he was apprehended, considerable time had passed. It is stated that he would continue to wear the same bloodstained shirt and then appear before the police. It is stated that the recovery of shirt was at the police station which makes the recovery doubtful. He placed reliance in the case of Jabir and others vs. The State of Uttarakhand, reported in AIR 2023 SC 488, to submit that the last seen theory cannot be solely relied. Further, reliance has been placed in the case of Balwan Singh and others vs. The State of Chhattisgarh and others, reported in AIR 2019 SC 3714, to submit that the nature of recovery must be proved beyond reasonable doubt and when it is not being recovered from the open place, it cannot be attached to the accused. Reliance has 4 also been placed by learned counsel for the appellant in the case of Ramvriksh vs. State of Chhattisgarh, decided by this Court on 21.07.2022 in Criminal Appeal No.376 of 2014 and lastly, the reliance has been placed by learned counsel for the appellant on a decision rendered by the Supreme Court in the case of Pradeep Kumar vs. State of Chhattisgarh, reported in (2023) 5 SCC 350 to submit that if there are two versions, the same can be accepted, then, in such a case, the version which supports the case of the accused, may be accepted. Therefore, the impugned judgment of conviction and order of sentence passed by the learned First Additional Sessions Judge, Mahasamund is liable to be set aside.
5. Per contra, learned counsel appearing for the State would submit that the presence of the accused on the basis of the statement of Awadh Jain, Nodal Officer (PW-12), the tower location at the time of incident, was established. He would further submit that the last seen evidence was corroborated by the statement of Jitendra Manikpuri, PW- 1, Karan Das Manikpuri, PW-4 apart from the evidence of Sewaram Sahu, PW-5, Narendra Kumar Sahu, PW-8 and Punaram Dhritlahre. He would also submit that the recovery of bloodstained shirt at the instance of the appellant-accused has not been properly explained by the accused, therefore, incriminating circumstances should have been explained and having failed to do so, the learned trial Court has rightly convicted and sentenced the appellant-accused as aforesaid and no interference is called for.
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6. We have heard learned counsel for the parties at length and perused the record.
7. After recovery of dead body from the river bank, it was sent for postmortem, wherein it was revealed that it was the dead body of Karan Das Manikpuri. Admittedly, death was homicidal in nature and the Postmortem Report is filed as Ex.P-27 and the same was proved by Dr. Dinesh Kumar Sinha, PW-11. According to Dr. Dinesh Kumar Sinha, PW-11, in which, following injuries were found:-
S. No. Description of Injury
1. Lacerated wound over occipital region 3 x 1 x 1 cm Linear between two temporal eminence
2. Abrasion over left side of forehead Round 2 x 2 cm
3. Abrasion wound over left molar poless 3 x 2 cm Round
4. Pattered Abrasion over back 15 cm x 10 cm between two scapula and down 5 5 x 5 cm Round burn injury at Right flank
6. 4 x 4 cm Round burn injury over left thigh front aspect middle
7. 2 x 1 cm vertical linear lacerated wound over middle of B/L shin.
According to Dr. Dinesh Kumar Sinha, PW.11, cause of death was due to coma as a result of head injury and death was homicidal in nature.
8. Since there is no eye-witness to this case and the case was 6 completely based on circumstantial evidence, the chain of circumstances are required to be established. The Supreme Court in the matter of Sattatiya alias Satish Rajanna Kartala Vs. State of Maharashtra, reported in (2008) 3 SCC 210, has reiterated the law laid down at paras 12, 13 & 14, which are reproduced hereunder:-
12. "In Padala Veera Reddy v. State of A.P. 1989 Supp (2) SCC 706, this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied :
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so as to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none-else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
13. In Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116, it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are : (SCC p. 185, para 153) -
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances 7 concerned 'must' or 'should' and not 'may be' established;
(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.
14. In State of U.P. v. Ashok Kumar Srivastava (1992) 2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt."
9. Therefore, we would explore the evidence and the chain of events whether it connects the dotted line to prove the guilt towards the accused-appellant.
10. The prosecution has relied upon the statement of Sewaram Sahu, PW-5, Narendra Kumar Sahu, PW-8 and Punaram Dhritlahre, PW-9, apart from the statement of Jitendra Manikpuri, PW-1 and Karan Das Manikpuri, PW-4 to dwell upon the principles of last seen theory of accused just before the incident. The statement of Karan Das Manikpuri, PW-4 would show that on 22.11.2018, Chaman Lal Jangde, the accused and the deceased Keshav Das Manikpuri came to him and 8 demanded money of Rs.100/- to drink liquor and thereafter, went away. When he called over mobile phone, the accused-Chaman Lal Jangde, initially he replied, but, subsequently he did not reply.
11. Statement of Sewaram Sahu, PW-5 would show that both the accused and the deceased were in a countrymade liquor shop and likewise the statement of Narendra Kumar Sahu, PW-8, who has stated that on the date of incident, both accused and the deceased went to a liquor shop and consumed liquor and he was also present there, wherein the deceased was standing and having asked, he disclosed that he had come along with the accused-appellant and thereafter, he went away.
12. Another witness Punaram Dhritlahre, PW-9 has also stated that he has seen the appellant-accused and the deceased together before the incident.
13. The Supreme Court in the matter of Rambraksh vs. State of Chhattisgarh, reported in (2016) 12 SCC 251, which is reiterated in the subsequent judgment in the case of Jabir and others vs. The State of Uttarakhand, reported in AIR 2023 SC 488, and affirmed the view that the conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. It further held that in other words, the conviction cannot be based only on the basis of circumstantial evidence of last seen together. It held that the last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and 9 when the deceased is found dead, it shows the possibility of any other person being the perpetrator of the crime becomes impossible. Therefore, to record a conviction, last seen together would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused. In the case of Rambraksh(supra), the Supreme Court held as under:-
24. "Recently, in Rambraksh vs. State of Chhattisgarh, (2016) 12 SCC 251, this court after reviewing previous decisions, stated as follows:
"10. 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 time gap, 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.
11. In a similar fact situation this Court in the case of Krishnan v. State of Tamil (2014) 12 SCC 279, held as follows:
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)
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 10 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 (2002) 8 SCC 45) held that:
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."
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."
Again, in Nizam & Ors. v State of Rajasthan,8 it was held as follows:
"Courts below convicted the Appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the Appellants on 23.01.2001. Undoubtedly, "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to 11 the cause of death of the deceased. It is well- settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen."
14. Now, coming back to the statement of Karan Das Manikpuri, PW- 4, Sewaram Sahu, PW-5, Narendra Kumar Sahu, PW-8 and Punaram Dhritlahre, PW-9, which would show that Karan Das Manikpuri, PW-4 had called the accused-Chaman Lal Jangde, once he talked over mobile, then he did not answer. Sewaram Sahu, PW-5 has stated that the accused and the deceased went to countrymade liquor shop, wherein he was also there to consume liquor and it was stated that the deceased has told him that he had come along with the accused. He has also admitted this fact that the countrymade liquor shop is a crowded place, wherein the congregation present till 11 PM. He further stated that at the spot, two vehicles were met with an accident, wherein he had last seen that the deceased was standing and along with the deceased, 5 to 7 persons were also standing at that time and the accused Chaman Lal Jangde was not present. Therefore, the last seen theory of togetherness is intercepted by the statement of Sewaram Sahu, PW-5. Narendra Kumar Sahu, PW-8 states that he also went to liquor shop to consume liquor, where he met the deceased and having asked the deceased that with whom, he has come, he replied that he had come with Chaman Lal Jangde. He admitted the fact in the cross- 12 examination that he has not seen the accused along with the deceased- Keshav Das Manikpuri in the said shop at that time. He has also stated in the cross-examination that the deceased has told him that the accused-Chaman Lal Jangde was highly intoxicated, as such, his brothers had taken him to their home. Likewise the statement of Punaram Dhritlahre, PW-9, has stated that he was also present at the said liquor shop and saw deceased was indulged in some quarrel with some people present in liquor shop, however, he did not pay attention to it, because, such quarrel was a normal routine in the liquor shop. Thereafter, he came to know that Keshav had died. He further admitted the fact that after consuming liquor, Keshav used to create nuisance.
15. A cumulative reading of the aforesaid facts points out that the deceased initially went along with the appellant to the liquor shop, but, subsequently, they were not together. The deceased and the accused, therefore, were disintegrated, as such, the last seen theory as pointed out by the prosecution comes under the cloud. The query remains open that when the evidence has come that the deceased was quarreling with another people in the liquor shop, wherein the accused was absent, the last seen theory cannot be pressed into motion only on the basis of statement of Awadh Jain, PW-12 (Nodal Officer), who has stated about the tower location of the mobile phone of the accused.
16. The evidence of Awadh Jain, PW-12, who was examined to prove the call made by the accused during such period, may raise certain doubt that he might be present in the area covered by mobile 13 tower, but, in absence of any corroborative evidence, it would be difficult to hold it was only the accused, who had committed the crime on the basis of last seen theory.
17. Therefore, in order to find out as to whether other circumstances existed to prove the guilt beyond reasonable doubt. The recovery in this case was made by Ex.P-12 i.e. Bamboo stick used in the offence. Further, the recovery of sky blue shirt having bloodstained spots, which the accused was wearing while committing crime and the motorcycle vide Ex.-13 used for crime was seized. The seizure witness Dharmendra Yadav, PW-6 states that the bamboo stick, which was alleged to be used for killing Keshav Das, was found at the open place and admits the fact that place was accessible to the general public. Likewise the statement of other witness Pappu Kumar Patel, PW-7, which shows that the place of recovery was common thoroughfare and it was accessible to the general public at large. The place of recovery being common thoroughfare, it also raises doubt. According to the prosecution, the bamboo stick was having bloodstained and also the shirt, was also bloodstained. Both the articles were sent for Forensic Science Laboratory and in the Forensic Science Laboratory report in this case filed as Ex.P-32.
18. A perusal of the Forensic Science Laboratory report would show that full shirt, which was seized by Uttam Sahu, PW-13, that of the accused, was marked as "D" and according to the Forensic Science Laboratory, the blood was found to be present and the group of blood 14 was stated to be disintegrated. The presence of blood group and the origin of blood on the said articles may assume importance, but, when the appellant states that he has been falsely implicated, then, in order to remove such doubt, the prosecution was required to prove the blood group, which was present on article, to connect it with the deceased and the accused. We are constrained to observe these facts on the basis of statement of Jitendra Manikpuri, PW-1, son of the deceased, who states at para-9 that after the accused-appellant was apprehended, then the villagers and the son went to higher officials of the police to submit that the original culprits have been set at large in as much the complaint was to the effect that for murder of his father, 4 to 5 persons were involved.
19. The Forensic Science Laboratory report did not disclose that the blood, which was found in the shirt, was human blood. Submission of the appellant is also appears to be quite logical to accept that the recovery of shirt was said to be at the police station from the accused vide Ex.P-13. It would be quite uncommon human conduct and behaviour that a person after committing crime, would roam here and there wearing bloodstained shirt, till he is arrested and brought to the police station. In any event, the recovery of alleged bloodstained clothes from the accused did not advance the case of prosecution on the ground that the blood group of the accused was not proved and even otherwise, if it is accepted that the presence of human blood was there, the explanation given under Section 313 of the Cr.P.C. by the 15 accused that he had sustained certain injuries in his home, raises doubt. Absence of the blood group to connect the deceased with the accused would, therefore, fatal to the prosecution ( See: Prakash vs. State of Karnataka, reported in (2014) 12 SCC 133 ).
20. In view of aforesaid reasons stated above, we are of the view that the prosecution has failed to prove the case beyond reasonable doubt against the accused and hence, the gap of connectivity of dotted lines remains unexplained.
21. In view of foregoing, we are inclined to allow this appeal. Accordingly, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 29.10.2020 passed by the First Additional Sessions Judge, Mahasamund is hereby set aside. The appellant is in jail. He be released forthwith if not required in any other case, on furnishing a personal bond for a sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the trial Court. The bail bond shall remain in operation for a period of six months as required under the provisions of Section 437-A of the Cr.P.C.
SD/- SD/-
(Goutam Bhaduri) (Sanjay S. Agrawal)
Judge Judge
Tumane