Chattisgarh High Court
Rohit Kumar Sahu vs State Of Chhattisgarh on 15 January, 2025
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.01.23
11:50:57 +0530
2025:CGHC:2419-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1221 of 2019
Rohit Kumar Sahu S/o Pitambar Sahu Aged About 29 Years R/o
Village Tata, Police Station Sarsiwa, District- Baloda Bazar-
Bhatapara, Chhattisgarh.
... Appellant
versus
State Of Chhattisgarh Through Station House Officer, Police
Station Sarsiwa, Civil And Revenue District- Balodabazar-
Bhatapara, Chhattisgarh.
... Respondent
For Appellant : Mr. Alok Nigam, Advocate
For Respondent/State : Mr. Ashish Shukla, Addl. Advocate
General & Mr. Ashutosh Shukla, P.L.
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment On Board
(15.01.2025)
Sanjay K. Agrawal, J.
1. This criminal appeal has been preferred by the appellant
under Section 374(2) of Cr.P.C. calling in question the
2
legality, validity and correctness of the judgment of
conviction and order of sentence dated 31.07.2019, passed
by learned Sessions Judge, Baloda Bazar, District Baloda
Bazar-Bhatapara, Chhattisgarh, in Sessions Trial
No.52/2018, by which, the appellant herein has been
convicted for offence under Section 302 of Indian Penal Code
and sentenced to undergo life imprisonment and fine of
Rs.1,000/-, in default of payment of fine, to further undergo
additional rigorous imprisonment for 3 months.
2. The case of prosecution, in short, is that on 19.04.2018, at
around 11:30 p.m., near the house of Daulal, village Tata,
PS Sarsiwa, District Balodabazar-Bhatapara, the appellant
herein assaulted his father-in-law Ghasiram Sahu (Now
deceased) by stone, as a result of which, he suffered grievous
injuries on his head and died. On the information of
Yashwant Sahu (PW-5) i.e. son of the deceased, Dehati Nalsi
Ex. P-9 and Dehati Merg Ex. P-10 were recorded. FIR was
registered vide Ex.P-21. Inquest proceedings were
conducted vide Ex.P-4 and the dead body of deceased was
subjected to postmortem, which was conducted by Dr.
Pushpendra Vaishnav (PW-13), who has proved the
postmortem report (Ex. P-25), in which, cause of death has
been opined to be head injury and hemorrhagic shock and
death was homicidal in nature. Pursuant to memorandum
statement of the appellant (Ex.P/12), the weapon of offence
i.e. stone was seized vide Ex. P-13 which was sent for
chemical examination to FSL along with other seized
articles. In FSL report (Ex. P-28), blood was found on the
said stone and human blood was found on the Gamchha
(towel) seized from the spot.
3
3. After completion of investigation, appellant herein was
charge – sheeted for the aforesaid offence and the case was
committed to the Court of Sessions for trial in accordance
with law. The appellant / accused abjured his guilt and
entered into defence stating that he has not committed any
offence and he has falsely been implicated in crime in
question.
4. During the course of trial, in order to bring home the offence,
the prosecution has examined as many as 14 witnesses
and exhibited 28 documents. The statement of appellant /
accused was recorded under Section 313 of the CrPC in
which he denied the circumstances appearing against him in
the evidence brought on record by the prosecution, pleaded
innocence and false implication. However, appellant-
accused in support of his defence has examined 3 witnesses
and exhibited 2 documents.
5. Learned trial Court, after appreciating the oral and
documentary evidence available on record, convicted the
appellant / accused for the offence as mentioned in the
opening paragraph of this judgment, against which this
appeal has been preferred by the appellant questioning the
impugned judgment of conviction and order of sentence.
6. Mr. Alok Nigam, learned counsel for appellant, would submit
that there is no eye witness to the incident and the appellant
has been convicted solely on the basis of weak
circumstantial evidences. He submits that the son of the
deceased Yashwant Sahu (PW-5) and the daughter of the
deceased Smt. Dulari Sahu (PW-11) are not reliable
witnesses as there are 3 days delay in recording their
statements. He submits that the prosecution has not been
able to bring home the offence beyond reasonable doubt,
4
therefore, the appellant is entitled for acquittal on the basis
of benefit of doubt.
7. On the other hand, Mr. Ashish Shukla, learned State
counsel, would support the impugned judgment and submit
that the prosecution has been able to bring home the offence
beyond reasonable doubt and the trial Court has rightly
convicted the appellant for offence punishable under
Sections 302 of I.P.C. As such, the appeal deserves to be
dismissed.
8. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and went through
the records with utmost circumspection.
9. In the instant case, there is no direct evidence available on
record and the case of prosecution is based solely 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 Maharashtra1 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.
1. (1984) 4 SCC 116
5
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 Maharashtra2 where
the following observations were made:
Certainly, it is a primary principle that
the accused must be and not merely may
be guilty before a court can convict and
the mental distance between ‘may be’
and ‘must be’ is long and divides vague
conjectures from sure conclusions.
(2) the facts so established should be
consistent only with the hypothesis of
the guilt of the accused, that is to say,
they should not be explainable on any
other hypothesis except that the accused
is guilty,(3) the circumstances should be of a
conclusive nature and tendency,(4) they should exclude every possible
hypothesis except the one to be proved,
and(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent
with the innocence of the accused and
must show that in all human probability
the act must have been done by the
accused.”
10. The trial Court in paragraph-7 of its judgment has recorded
the following incriminating circumstances against the
appellant:
2. (1973) 2 SCC 793
6
1. मृतक घासीराम की मृत्यु मानव वध स्वरूप की है ।
2. मृतक घासीराम मृत्यु के ठीक पूर्व अपने दामाद अभियुकत रोहित के साथ अंतिम बार
देखा गया था ।
3. अभियुक्त, मृतक की मृत्यु का कोई समाधानप्रद स्पष्टीकरण देने में असफल रहा है ।
4. अमन ढाबा के सामने से अभियुकत के रोहित के मोटर सायकल क्रमांक CG-11-
AD-7925 को दिनांक 20-04-2018 को बरामद किया गया है ।
5. मृतक के शव में अभियुक्त का बेल्ट व गमछा पड़ा हुआ था ।
6. अभियुक्त की पत्नी दल
ु ारी साहू के द्वारा मृतक के शव में पड़े बेल्ट तथा गमछे को
अपने पति/अभियुक्त का बताये जाने पर वहीं घटनास्थल पर अभियुक्त ने अपनी
पत्नी के साथ मारपीट किया गया था ।
7. अभियुक्त ने पैसे की लालच में मृतक की मृत्यु कारित की है ।
8. अभियुक्त की निशानदेही पर अपराध में प्रयुक्त पत्थर बरामद हुआ है ।
11. Now we consider the circumstances recorded by the trial
Court in the light of the principles of law laid down by the
Hon’ble Supreme Court in the case of Sharad Birdhichand
Sarda (supra).
12. The first and foremost circumstance for consideration is as
to whether the death of deceased Ghasiram Sahu was
homicidal in nature?
13. Learned trial Court has recorded an affirmative finding in
this regard relying upon the postmortem report Ex. P-25
proved by Dr. Pushpendra Vaishnav (PW-13), according to
which, cause of death was opined to be head injury and
hemorrhagic shock and death was homicidal in nature,
which is a correct 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.
14. The second incriminating circumstance is that as per the
statement of Smt. Dulari Sahu (PW-11), the appellant and
the deceased were last seen together during the intervening
7
night of 19/20.04.2018. Before proceeding with the facts of
the case, it would be relevant to notice the relevant decisions
of the Hon’ble Supreme Court relating to the theory of last
seen together.
15. In the matter of Jaharlal Das v. State of Orissa3, the
Supreme Court has noted the fact that at the stage of
inquest, the important incriminating circumstance namely,
the deceased was last seen in the company of the accused,
was not noted and that is not there in the inquest report.
Thereafter, in that view of the above fact and other evidence
on record, their Lordships have held that the deceased was
last seen in the company of the accused is not established
beyond reasonable doubt.
16. In the matter of Arjun Marik v. State of Bihar4, 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. 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.”
3 (1991) 3 SCC 27
4 1994 Supp (2) SCC 372
8
17. Likewise, in the matter of State of Goa v. Sanjay Thakran 5,
the Supreme Court has held that the circumstance of last
seen together would be a relevant circumstance in a case
where there was no possibility of any other person meeting
or approaching the deceased at the place of incident or
before the commission of crime in the intervening period. It
was observed in paragraph 34 as under :-
“34. From the principle laid down by this Court,
the circumstance of last-seen together would
normally be taken into consideration for finding
the accused guilty of the offence charged with
when it is established by the prosecution that
the time gap between the point of time when the
accused and the deceased were found together
alive and when the deceased was found dead is
so small that possibility of any other person
being with the deceased could completely be
ruled out. The time gap between the accused
persons seen in the company of the deceased
and the detection of the crime would be a
material consideration for appreciation of the
evidence and placing reliance on it as a
circumstance against the accused. But, in all
cases, it cannot be said that the evidence of last
seen together is to be rejected merely because
the time gap between the accused persons and
the deceased last seen together and the crime
coming to light is after a considerable long
duration. There can be no fixed or straight
jacket formula for the duration of time gap in
this regard and it would depend upon the
evidence led by the prosecution to remove the
possibility of any other person meeting the
deceased 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
5 (2007) 3 SCC 755
9there 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. “
18. Similarly, in the matter of Kanhaiya Lal v. State of
Rajasthan6, 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 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
6 (2014) 4 SCC 715
10assume 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
Rajasthan1.
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.”
19. 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 absence of satisfactory explanation,
cannot be made basis of conviction.
20. In the matter of Navaneethakrishnan v. State by Inspector
of Police8, 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 paragraph 22 as under: –
7 (2017) 14 SCC 359
8 (2018) 16 SCC 161
11“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
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.”
21. Revering to the facts of the present case, in the light of the
aforesaid decisions rendered by the Supreme Court, we first
consider the statement of Dulari Sahu (PW-11) who is the
daughter of the deceased and wife of the appellant. This
witness has stated that in the night of the offence, the
appellant and the deceased had consumed liquor. They did
not take meal. The appellant took the deceased to a Dhaba
for food. Thereafter, the deceased did not return at night.
12
The appellant returned early in the morning and told her
that someone had killed her father i.e. the deceased. She
immediately went to the spot and found her father lying on
Manpasar road and there were a belt and a towel lying on
the dead-body of her father which belonged to the appellant.
She has stated that the appellant had beaten her at the
place of occurrence and before that, the appellant had
demanded one lakh rupees from the deceased and also
threatened to kill him.
22. It is pertinent to mention here that according to Dulari Sahu
(PW-11), both her father and the appellant had consumed
liquor but as per the post-mortem report Ex.P-25, no stance
of liquor was found on the body of the deceased. Dulari
Sahu (PW-11) has stated that the appellant had assaulted
her on the spot which has also been supported by her
brother Yashwant Sahu (PW-5) stating that the appellant
had beaten his sister (Dulari Sahu) very badly on the spot
due to which her bangles got broken and blood started
flowing. However, neither the bangles were seized from the
spot nor the MLC of Dulari Sahu was done to prove that she
had sustained injuries and was bleeding. Further, Yashwant
Sahu (PW-5) has not stated in his 161 CrPC statement that
the appellant had beaten his sister due to which her bangles
were broken and she was bleeding. In Dehati Merg
Intimation Ex.P-10 lodged by Yashwant Sahu (PW-5), the
fact of beating by the appellant has also not been mentioned.
Thus, the statement of Yashwant Sahu (PW-5) and Dulari
Sahu (PW-11) that the appellant had beaten Dulari Sahu on
the spot is not established in the absence of MLC and
seizure of broken bangles. As such, the 6 th incriminating
circumstance of Marpit has not been established as PW-11
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was not subjected to MLC nor the broken bangles were
seized.
23. According to Dulari Sahu (PW-11), she reached the spot in
the morning of 20.04.2018 but surprisingly, her statement
under Section 161 CrPC was recorded on 22.04.2018. Upon
being asked to the Investigating Officer S. S. Mourya (PW-
12) about the delay in recording the statement of Dulari Bai,
no plaussible explanation has been given by the IO as to
why the statement could not be recorded earlier when she
had reached the spot immediately after receiving information
about the death of her father. Further, the relationship
between the daughter of the deceased Dulari Bai (PW-11)
and the appellant being strained, it is unsafe to rely on her
evidence as an witness of last seen together.
24. Dulari Sahu (PW-11) further states that a belt and a
Gamchha (towel) were lying on the dead body of her father.
The Gamchha was recovered from the spot vide Ex. P-14 but
no identification has been conducted to find out that the
said Gamchha belonged to the appellant. Similarly, the belt
was seized by Police Constable Amedkar Kurre vide Ex. P-
19 but the said Constable has not been examined nor any
identification has been conducted to prove that the said belt
was belonging to the appellant. Thus, the statement of
Dulari Sahu (PW-11) that the Gamchcha and the belt
belonged to the appellant has not been established.
Accordingly, the 5th circumstance of the Gamchha and the
belt belonged to the appellant is not established beyond
reasonable doubt.
25. The fourth circumstance that the motorcycle of the appellant
was seized from in front of Aman Dhaba on 20.04.2018 is of
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no useful to the prosecution. Though the demand of one
lakh rupees by the appellant from the deceased has been
proved but for that account the appellant committed the
murder has not been proved. The last circumstance that
pursuant to the memorandum statement of the appellant,
the stone was seized but the trial Court itself in para-24 of
its judgment has not found this circumstance proved beyond
doubt. As such, we are of the considered opinion that the
theory of last seen together is not established at all. Even
otherwise, without corroboration of theory of last seen
together, as per the decision of the Hon’ble Supreme Court
in the case of Navaneethakrishnan (supra) the appellant
cannot be convicted for offence under Section 302 of IPC.
26. In that view of the matter, we find that as per the principle of
‘Panchsheel‘ laid down by the Honorable Supreme Court in
the case of Sharad Birhichand Sarda (Supra), the chain of
circumstances are not so complete in which the appellant
can be held guilty for the offence. Consequently, we are
unable to uphold the conviction of the appellant for offence
punishable under Sections 302 of IPC and the appellant is
entitled for acquittal on the basis of the principle of the
benefit of doubt.
27. Accordingly, the impugned judgment dated 31.07.2019
passed by the Trial Court convicting and sentencing the
appellant for offence under Section 302 of IPC is hereby set
aside/quashed on the basis of benefit of doubt and the
appellant is acquitted from the said offence. Appellant is
reported to be in jail. He be released from jail forthwith, if his
detention is not required in connection with any other
offence.
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28. This criminal appeal, accordingly, stands allowed.
29. Let a certified copy of this judgment along with the original
record be transmitted forthwith to the concerned trial Court
for necessary information & action, if any. A copy of the
judgment may also be sent to the concerned Jail
Superintendent wherein the appellant is suffering the jail
sentence.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Judge Judge
Khatai
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