Rambraksh @ Jalim Vs. State of Chhattisgarh, on 12th May 2016, Supreme Court of India- Read Judgement

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 462 of 2016

(Arising out of SLP(Crl.) No.1962 of 2015)
Rambraksh @ Jalim .. Appellant

Versus

State of Chhattisgarh .. Respondent
J U D G M E N T

C. NAGAPPAN, J.
Leave granted. This appeal is preferred against the judgment dated
25.7.2014 of the High Court of Chhatisgarh at Bilaspur in Criminal Appeal
No.470 of 2001.
The appellant Rambraksh @ Jalim was accused No.2 and Bechan Ram was accused
No.1 in the case in Sessions Trial No.133 of 1993, on the file of
Additional Sessions Judge, Surajpur, and they were tried for the offences
under Section 302 read with 34 and Section 201 of Indian Penal Code. The
trial court acquitted accused No.1 Bechan Ram and at the same time
convicted accused No.2 Rambraksh and sentenced him to undergo imprisonment
for life and to pay a fine of Rs.500 and in default to undergo rigorous
imprisonment for five months for the offence under Section 302 IPC and
further sentenced him to undergo two years rigorous imprisonment and to
pay a fine of Rs.100 in default to undergo rigorous imprisonment for one
month for the offence under Section 201 IPC and ordered the sentences to
run concurrently. Aggrieved by the conviction and sentence accused No.2
Rambraksh preferred criminal appeal and the High Court dismissed the same.
Challenging the said judgment the present appeal is preferred.

The case of the prosecution in a nutshell is as follows: On 7.10.1992
appellant herein/accused No.2 Rambraksh went to the house of deceased
Ramsevak at 12.00 noon and asked to go with him to Ambikapur. Ramsevak
refused saying that he does not have money and accused No.2 assured that he
has money and he would come at night and they would go to Ambikapur by the
first bus in the early morning. Thereafter he along with accused No.1 came
to the house of Ramsevak at 11.00 p.m. and told him that they will proceed
towards chowki from where they will board the bus to Ambikapur. Ramsevak
went with accused and thereafter did not return home. On 14.10.1992,
Rajesh son of Ramsevak inquired about his father to his mother PW3
Dasmatiya Bai and she told him that his father had gone with accused to
Ambikapur and then Rajesh informed her that he had gone with Kamlesh and
PW5 Banshidhar to their field and he noticed clothes, gamcha and shoes of
his father in the field. PW3 Dasmatiya Bai along with her son went to the
said place and found the
articles of her husband and on noticing birds
flying near one place they went there and she found skeleton remains of
her husband. She went to Chandni Police Station and lodged Exh.P2 morque
and the police recorded Morque vide Exh.P1. The investigation officer
visited the scene of occurrence and conducted inquest on the scattered
bones vide Exh.P5. Report vide Exh. P4. He seized from the spot one
bamboo stick vide Exh.P6, pair of shoes vide Exh.P7, towel, pant, shirt,
banjan and underwear vide Exh.P8, Bloodstained and plain soil vide
Exh.P9, Hairs found on the spot vide Exh.P10. The human bones i.e.
skull, jaw, legs and ribs were seized from the spot vide Exh.P13. He sent
the bones of dead body for autopsy and PW6 Dr. Arvind Bhat on examination
found the following :

“ 1 skull bone with 13 teeth.

2 humerus bones

1 vertebral column broken in three pieces each attached with each other
with left femur attached with pelvis (detail of vertebral colum, sacrum, 5
lumber vertebrae, 12 thoracic vertebrae),

One mandible attached 7 teech

Two broken scapula

Nine ribs

Two broken long bones (one simulating to tibia and one simulating to femur)

One radio ulna bones

One broken ulna

3 vertebrae

2 detached tooth

4 pieces of broken bones.”

Thereafter, dehati nalishi was recorded and FIR was registered vide
Exh.P.18. Spot map was prepared vide Exh. P19. Bones were sent to Medical
College, Raipur and PW10 Dr. Sapan Kumar Das examined the bones vide
Exh.P23 and opined as follows:

These bones are of human origin

Sex-Male

Age-Between 25 to 40 years

No marks of injury present to any of the bones

Cause of death cannot be said

Time lapse since death-within 6 months of the date of examination.

In the course of investigation accused No.1 Bechan Ram was arrested and he
made disclosure statement leading to recovery of banjan and towel vide
Exh.P11, P16 and P17. The accused No.2 was arrested and he made disclosure
statement leading to recovery of stick and clothes vide Exh.P12, P14 and
P15. The seized articles were sent for chemical examination vide Exh.P19.
On completion of investigation charge-sheet was filed against both the
accused.

In the trial prosecution examined ten witnesses and the accused were
examined under Section 313 of Cr.P.C. and their statements were recorded.
No defence witness was examined. The trial court acquitted accused No.1
and convicted and sentenced accused No.2 as stated supra. The appeal
preferred by him came to be dismissed and aggrieved by the same accused
No.2 has preferred the present appeal.

The learned counsel for the appellant contended that it was alleged that
deceased Ramsevak was last seen alive in the company of the appellant on
7.10.1992 and bones were noticed in the field and seized on 14.10.1992
namely 7 days after such last seen theory and there is long time gap and in
the absence of any other corroborative piece of evidence the conviction of
the appellant only on the basis of last seen theory is not sustainable law.
It is his further submission that prosecution has not even established the
death of Ramsevak and there is no evidence adduced by the prosecution to
show that bones recovered were those of deceased Ramsevak and the medical
evidence does not in any way advance the prosecution case. Lastly, it is
contended that there was inordinate delay of 7 days in filing the complaint
and PW3 Dasmatiya Bai made material improvements in her testimony before
the court and the testimony cannot be relied on. Per contra the learned
counsel appearing for the respondent State contended that the prosecution
has established through evidence of PW3 Dasmatiya Bai that her husband
Ramsevak was taken from house by the appellant and in the absence of any
explanation from the appellant as to when he parted company, the Courts
below rightly convicted the appellant for the offence of murder and the
judgment warrants no interference.

The prosecution case rests only upon the circumstantial evidence. The
Sessions Judge as well as the High Court mainly relied upon the evidence of
the wife of the deceased PW3 Dasmatiya Bai to hold the appellant guilty of
the charges. PW3 Dasmatiya Bai in her complaint as well as in the
statement given to the police during investigation has stated that on
7.10.1992 at about 12.00 noon the appellant/accused No.2 came to their
house and told her husband Ramsevak to come with him to Ambikapur and left
the place by saying that he would return with money in the night and they
would leave by the early morning bus to Ambikapur. It is her further
testimony that both the accused came to their house in the night at about
10.00 p.m. and took her husband Ramsevak with them at 11.00 p.m. for
Ambikapur and after that her husband Ramsevak never returned home. She has
further stated that on 14.10.1992 her son Rajesh inquired about the
whereabouts of his father and informed her that he went to the field of
Kamlesh where he saw gamcha, shirt, pant and shoes of his father.
Thereafter, she went along with him and found the articles of her husband
lying in torn condition in the field and on noticing the flying of birds
near that place she went and saw the bones of dead body lying scattered and
she identified the same as that of her husband and she went to the Police
Station and lodged complaint. When she gave evidence as PW3 in the trial
before the Court she testified that the accused came to their house at
night and took her husband to Ambikapur and after they left she heard
scream of her husband and she ran to the place and saw the
appellant/accused No.2 Rambraksh and accused No.1 Bechan Ram assaulting her
husband Ramsevak by lathi and Danda and when she tried to intervene, she
was driven away and in the morning while going to police chowki she saw her
husband Ramsevak lying dead in the field and she informed the Munshi at
Chandni Police Station and she was asked to come later when called and
thereafter she waited for 7 days and then again went to the Police Station
and lodged the complaint. As already stated PW3 Dasmatiya Bai in her
complaint as well as her statement before the police has not told that she
witnessed the occurrence during which both the accused assaulted her
husband with lathi and Danda. Only in her testimony before the Court she
claimed to have witnessed the occurrence. The High Court has rightly
ignored the improved part of her testimony and placed no reliance on it.

The bones, articles, clothes and shoes allegedly belonging to Ramsevak were
recovered on 15.10.1992. Exh.P2 Morgue given by Dasmatiya Bai was
recorded and the FIR came to be registered on 15.10.1992. There is
absolutely no explanation given by the prosecution for the inordinate
delay in lodging the complaint and registering the case. The independent
witnesses examined by the prosecution have not supported the case. As per
last seen theory projected by the prosecution the deceased Ramsevak was
last seen alive in the company of the appellant on 7.10.1992 and after 7
days the bones and clothes allegedly belonging to Ramsevak came to be
noticed and thereafter seized from the field. At this juncture, it is
pertinent to point out that they were not seized/recovered pursuant to any
information furnished by the accused.

The contention for the learned counsel for the appellant that the
prosecution has not even established the death of Ramsevak cannot be
brushed aside. The investigation officer seized the bones from the field
vide Exh.P13 and sent them for autopsy. PW6 Dr. Arvind Bhat in his report
Exh.P10 gave an account of the bones forming the skeleton. Thereafter they
were sent to Medical College, Raipur, and PW10 Dr. Sapan Kumar Das
examined them and gave Exh.P23 opinion stating that the bones are of human
origin and they belonged to male aged between 25 to 40 years and there were
no marks of injury in any of the bones and the cause of death cannot be
said and the death could have occurred within 6 months prior to the date
of examination. The Investigation Officer did not take any attempt to
conduct DNA analysis of bones to prove that the skeleton seized was that
of Ramsevak. In short the prosecution has failed to prove the death of
Ramsevak either homicidal or otherwise.
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.
In a similar fact situation this Court in the case of Krishnan v. State of
Tamil Nadu [(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 record the finding that it is consistent only with the
hypothesis of the guilt of the accused and, therefore, no conviction on
that basis alone can be founded.”

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

“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.

In the present case as noticed above the Sessions Court as well as the High
Court convicted the appellant/ accused No.2 on the basis of last seen
evidence, the correctness of which is also doubtful. The High Court had
failed to appreciate the aforesaid fact and erred in affirming the judgment
of conviction passed by the Sessions Court. We are satisfied that the
conviction of the appellant cannot be sustained in law and liable to be set
aside.

The appeal is allowed and the impugned judgment of conviction and sentence
imposed on the appellant is set aside. The appellant is ordered to be set
at liberty forthwith if not required in any other case.

…….….……………………….J.(JAGDISH SINGH KHEHAR)
……………………………..J. (C. NAGAPPAN)
New Delhi
May 12, 2016
ITEM NO.1  A COURT NO.3   SECTION IIA

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s).462/2016 @ SLP(CRL.)NO.1962/2015

RAMBRAKSH @ JALIM Appellant(s)

VERSUS

STATE OF CHHATTISGARH Respondent(s)

HEARD BY HON’BLE JAGDISH SINGH KHEHAR AND HON’BLE C. NAGAPPAN, JJ.]

Date : 12/05/2016 This appeal was called on for pronouncement
today.

For Appellant(s) Mr. Yogesh Tiwari, Adv.
for Mr. Vikrant Singh Bais,AOR

For Respondent(s) Mr. C. D. Singh,AAG
Ms. Sakshi Kakkar, Adv.

Hon’ble Mr. Justice C. Nagappan pronounced the judgment of the
Bench comprising Hon’ble Mr. Justice Jagdish Singh Khehar and His Lordship.

For the reasons recorded in the Reportable judgment, which is
placed on the file, the appeal is allowed and the impugned judgment of
conviction and sentence imposed on the appellant is set aside. The
appellant is ordered to be set at liberty forthwith, if not required in any
other case.

(Renuka Sadana)   (Parveen Kumar)
Court Master AR-cum-PS

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