Chattisgarh High Court
Bhuwan Singh Daruva vs State Of Chhattisgarh on 6 February, 2024
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Neutral Citation
2024:CGHC:3965-DB
-1-
(Cr.A. No. 109 of 2017)
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRIMINAL APPEAL NO. 109 OF 2017
(Arising out of judgment dated 08.12.2016 passed in Sessions
Trial No. 18/2015 by the learned Additional Sessions Judge,
Gariyaband, CG)
Bhuwan Singh Dhruva S/o Jaitpal Aged About 60 Years
R/o Sangda, Tikrapara, Police Station Idagaon, District
Gariyaband, Chhattisgarh.
... Appellant(s)
Versus
State Of Chhattisgarh Through Station House Officer,
Police Station- Indagaon, District Gariyaband,
Chhattisgarh.
:
... Respondent(s)
_____________________________________________________
For Appellant :- Mr. Azad Siddiqui, Advocate.
For Respondent/State:- Mr. S.S. Baghel, Dy. Govt. Advocate.
_____________________________________________________
Division Bench
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment on Board
(06.02.2024)
Sanjay Kumar Jaiswal, J.
1. In this Criminal Appeal presented under Section 374 (2) of the Code of Criminal Procedure, 1973, the judgment dated 08.12.2016 passed by the Additional Sessions Judge, Gariyaband, Chhattisgarh in Session Trial No.-18/2015 "Chhattisgarh State v. Bhuvan Singh Dhruva" has been challenged, under which, the Neutral Citation 2024:CGHC:3965-DB -2- (Cr.A. No. 109 of 2017) appellant/accused Bhuvan Singh Dhruva has been convicted for the offense punishable under Section 302 & 201 of the Indian Penal Code and sentenced to undergo life imprisonment with fine of Rs. 200/- (two hundred rupees) and four years rigorous imprisonment with fine of Rs 200/- (two hundred rupees) respectively. In case of non-payment of fine amount, the appellant has been sentenced to undergo additional rigorous imprisonment of one-one month under both the sections.
2. The allegation against the appellant Bhuvan Singh Dhruva is that in the intervening night of 28-29 November, 2014, he killed his wife Purna Bai, on account of quarrel, by strangulating her in his Lorry/field situated in village Sagada Tikrapara under police station - Indagaon, district - Gariaband, Chhattisgarh and with the intention of destroying the evidence, he wrapped the body in straw-husk (Para & Bhusa) and burnt it.
3. The case of the prosecution, in brief, is that on 28/11/2014, the appellant's son Aimat Dhruva (PW-4) along with his wife and parents i.e. the appellant and his wife (deceased) threshed paddy. At around 04.00 Neutral Citation 2024:CGHC:3965-DB -3- (Cr.A. No. 109 of 2017) p.m, the son of appellant came home with his wife. Appellant Bhuvan Singh Dhruva and deceased Purna Bai were also seen by neighbor Chhattar Singh (PW-9) in their lorry/field at around 04.00 pm. Next morning i.e. on 29/11/2014, neighbor Chhattar Singh (PW-9) found that deceased Purna Bai lying dead in a burnt condition on the road beside the lorry of the appellant. Then he informed Aimat Dhruva (PW-4) about the incident who in turn informed the villagers, Kotwar, Sarpanch etc. and went to the police station and made a report in this regard, on which Merg Ex. P-4 was registered. Panchnama (Ex. P-6) of the dead body was prepared. Dr. Satendra Markandey (PW-14) examined the dead body and conducted post-mortem and gave report Ex. P-25, in which, he has stated that about 90% of Purna Bai's body was burnt whose death was due to cardio-respiratory arrest as a result of mechanical asphyxia i.e. lack of oxygen in the heart and lungs due to blockage of oxygen supply to the body and death was homicidal in nature. Remains of burnt straw-husk, half-burnt clothes, corn peels etc. were seized from the spot and sent to the laboratory for chemical examination, on which, test report Ex. P-
Neutral Citation 2024:CGHC:3965-DB -4- (Cr.A. No. 109 of 2017) 17 was received, according to which, diesel, petrol or kerosene was not found in the said articles. The appellant was not in the village after the incident. Later, when he returned to the village on 01/12/2014, his confession Panchnama Ex. P-9 was prepared by the police, in which he has stated about killing of his wife Purna Bai by strangulating her on account of quarrel between them and burnt her body on the straw and corn lying in the field. After careful consideration, the final report was filed by the police against the appellant.
4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 14 witnesses and exhibited 25 documents. In defence, neither any witness has been examined nor any document has been exhibited. Statement of the accused/appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.
5. After conclusion of the trial, the Trial Court, by impugned judgment dated 08.12.2016, on appreciation of the oral and documentary evidence Neutral Citation 2024:CGHC:3965-DB -5- (Cr.A. No. 109 of 2017) available on record, convicted the appellant herein for the offences punishable under Sections 302 & 201 of IPC and sentenced him as mentioned in para-1 of this judgment, against which the present appeal has been filed by the appellant calling in question the legality, validity and correctness of the impugned judgment.
6. Learned counsel for the appellant argues that the case is based on the theory of last seen together, which the prosecution has not been able to prove. The key witness i.e. the son of the appellant and the deceased Aimat (PW-4) has been hostile. Neighbor Chhattar Singh (PW-9) has stated that he last saw the deceased at 04.00 pm and Purana Bai's dead body on the next day morning. There has been a gap of more than 16 hours in between. Purna Bai's body was found on the road. The dead body was not found in any such locked house in which the sole appellant resided with her or was last seen. The subsequent conduct of the appellant regarding not being available in the village after the incident is a weak nature of evidence. On the basis of circumstantial evidence, the prosecution has failed to complete the chains of evidence on the basis of which a conclusion can be drawn that the crime Neutral Citation 2024:CGHC:3965-DB -6- (Cr.A. No. 109 of 2017) was committed only by the appellant. Thus, the prosecution case against the appellant is doubtful. Therefore, the appeal should be accepted and the appellant should be acquitted.
7. Per contra, Mr. S. S. Baghel, learned State Counsel, would submit that the prosecution has been able to bring home the offences beyond reasonable doubt by circumstantial evidence and therefore the Trial Court has rightly convicted the appellant for the aforesaid offences and the appeal deserves to be dismissed.
8. We have heard learned counsels for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection.
9. The first question as to whether the death of Purna Bai was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. Satyendra Markande (PW-14) who has proved the post-mortem report (Exhibit P-25) in which the cause of death of Purna Bai has been opined to be cardio respiratory arrest as a result of mechanical asphyxia and the nature of death was homicidal, which, in our considered opinion, is a Neutral Citation 2024:CGHC:3965-DB -7- (Cr.A. No. 109 of 2017) correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court.
10. The case is based on circumstantial evidence. The five golden principles which constitute the Panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads as under: -
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(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 v. State of Maharashtra where the following observations were made:
Neutral Citation 2024:CGHC:3965-DB -8- (Cr.A. No. 109 of 2017) 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 of the accused and must show that in all human probability the act must have been done by the accused."
11. The case of the prosecution against the appellant is based on the theory of last seen together whose main witnesses are the son of the deceased and the appellant's Aimat Dhruva (PW-4) and neighbor Chhattar Singh (PW-9), who have stated that, they had seen the deceased and the appellant together on 28/11/2014 at around 04.00 pm at the time of Neutral Citation 2024:CGHC:3965-DB -9- (Cr.A. No. 109 of 2017) threshing of paddy in the field and then next day morning, they saw dead body of Purna Bai in burnt condition on the road in front of the lorry/field. There is a gap of about 18 to 19 hours in between because Marg Intimation Ex. P-4 was registered around 11.30 am on 29/11/2014.
12. In the matter of Arjun Marik v. State of Bihar, reported in 1994 Supp (2) SCC 372, 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 para 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. 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."
13. Likewise, in the matter of State of Goa v. Sanjay Thakran, reported in (2007) 3 SCC 755, the Supreme Court has held that the circumstance of last seen Neutral Citation 2024:CGHC:3965-DB -10- (Cr.A. No. 109 of 2017) 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 para 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 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, Neutral Citation 2024:CGHC:3965-DB -11- (Cr.A. No. 109 of 2017) 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."
14. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan reported in (2014) 4 SCC 715, their Lordships of the Supreme Court have clearly held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the Neutral Citation 2024:CGHC:3965-DB -12- (Cr.A. No. 109 of 2017) appellant. It has been held in paras 15 & 16 as under :-
"15. The theory of last seen - the appellant having gone with the deceased in the manner noticed herein before, 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 Rajasthan.
16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise."
15. In the matter of Anjan Kumar Sarma v. State of Assam reported in (2017) 14 SCC 359, 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 Neutral Citation 2024:CGHC:3965-DB -13- (Cr.A. No. 109 of 2017) circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction.
16. In the matter of Navaneethakrishnan v. State by Inspector of Police reported in (2018) 16 SCC 161, the Supreme Court has held that though the evidence of last seen together could point to the guilt of the accused, but this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration, and observed in para 22 as under: -
"22. PW 11 was able to identify all the three accused in the court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross-examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW 11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last Neutral Citation 2024:CGHC:3965-DB -14- (Cr.A. No. 109 of 2017) seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration."
17. Likewise, in the matter of State of Goa v. Sanjay Thakran and another reported in (2007) 3 SCC 755, their Lordships of the Supreme Court found that there was considerable time gap of approximately 8½ hours when the deceased was last seen alive with the accused persons and their Lordships held that there being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.
18. If we consider in the light of the above decisions of the Hon'ble Supreme Court, in the case before us, the theory of last seen together is of 17-18 hours prior to the dead body was found when they were working in the field. It is noteworthy that the body of the deceased was not found inside the house but on the road in front of the house and the field, which is evident from spot map Ex. P-5 prepared by the Investigator. There is no evidence of the nature that Neutral Citation 2024:CGHC:3965-DB -15- (Cr.A. No. 109 of 2017) the Appellant was seen with the deceased just before the dead body was found. Due to the long gap between the last seen together and the recovery of the dead body, it is not established on the basis of last seen evidence that it is the appellant alone who killed the deceased by strangulating and burning her.
19. As far as the question of the appellant not being present in the farm or village after the incident is concerned, in this regard, it is noteworthy that the conduct after the incident, the evidence presented under Section 8 of the Indian Evidence Act is of weak nature. The Supreme Court in the matter of Subramanya v. State of Karnataka reported in AIR 2022 SC 5110 has held that only on the basis of subsequent conduct, the appellant could not have been convicted for the aforesaid offences and that too for an offence of murder punishable under Section 302 of IPC.
20. If we consider in the light of the above judgment of the Hon'ble Supreme Court, the incident is said to have taken place in the intervening night of 28-29 November, 2014. The confessional statement of the Neutral Citation 2024:CGHC:3965-DB -16- (Cr.A. No. 109 of 2017) appellant was recorded as Exhibit P-9 dated 01/12/2014, which is not admissible in evidence since it is a confession made before the police. Therefore, it cannot be clearly said that the appellant intentionally remained absconding after the incident. In the trial of the accused under Section 313 of the Code of Criminal Procedure, no clear question was asked in this regard so that the appellant could clarify his position. In such a situation, when the evidence of conduct after the incident is of weak nature and which has not been established beyond reasonable doubt in the case, on the basis of above evidence analysis, this Court finds that as per the principle of Panchsheel given by the Honorable Supreme Court in the case of Sharad Birhichand Sarda (Supra), the chain of evidences are not complete in which the appellant alone can be held guilty for the incident. Consequently, we are unable to uphold the conviction of the appellant for offence under Section 302 & 201 of the IPC and the appellant is entitled for the benefit of doubt.
21. In that view of the matter, the prosecution has failed to establish its case beyond all reasonable doubts and Neutral Citation 2024:CGHC:3965-DB -17- (Cr.A. No. 109 of 2017) therefore the appellant is entitled to acquittal from the offence punishable under Sections 302 & 201 of IPC on the basis of benefit of doubt.
22. Accordingly, the impugned judgment dated 08.12.2016 passed by the Additional Sessions Judge, Gariaband, Chhattisgarh in Session Trial No.-18/2015 convicting and sentencing the appellant for the offence under Section 302 & 201 of IPC, is hereby set aside/quashed and the appellant is acquitted from the said offence. The appellant is reported to be in jail since 01.12.2014, we direct that he be released from jail forthwith, if not required in any other matter.
23. Resultantly, this criminal appeal is allowed.
24. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, for information and necessary action, if any.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Judge Judge
Khatai