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2026:CGHC:4398-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 513 of 2017

Ashok Toppo @ Babu, S/o. Edward Toppo, Aged About 25 Years,

R/o. Village Godhanpur, Ambikapur, Police Station Gandhinagar,

District- Surguja, Chhattisgarh.

--- Appellant

versus

State Of Chhattisgarh, Through The Police Station Rajpur, District-

Balrampur-Ramanujganj Chhattisgarh, Civil District Surguja-

Ambikapur, Chhattisgarh.

--- Respondent

For Appellant :Mr. Ashok Kumar Shukla, Advocate

For Respondent :Mr. Amit Buxy, Dy. Govt. Advocate with

Mr. Siddhant Tiwari, Panel Lawyer

&

CRA No. 898 of 2017

Amit Bhagat @ Pintu, S/o. Sukhnath Bhagat, Aged About 26

Years, R/o. Village Parsagudi, Police Station Rajpur, District-

Balrampur- Ramanujganj, Chhattisgarh.

---Appellant

Versus

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State Of Chhattisgarh, Through Station House Officer, Police

Station- Rajpur, District Balrampur-Ramanujganj, Chhattisgarh,

Civil District Sarguja, Ambikapur, Chhattisgarh.

--- Respondent

For Appellant :Mr. Siddharth Pandey, Advocate

For Respondent :Mr. Amit Buxy, Dy. Govt. Advocate with

Mr. Siddhant Tiwari, Panel Lawyer

(Division Bench)

Hon'ble Shri Justice Sanjay K. Agrawal

Hon'ble Shri Justice Arvind Kumar Verma

Judgment on Board

(27.01.2026)

Sanjay K. Agrawal, J.

1.Amit Bhagat @ Pintu (A-1) has preferred Criminal Appeal No.

898/ 2017 and Ashok Toppo @ Babu (A-2) has preferred

Criminal Appeal No.513/2017. Since common question of law

and facts are involved in both the appeals and have been

arisen from Sessions Trial No. R-21/2013, they have been

clubbed together, heard together and are being disposed of

by this common judgment.

2.Both the appeals filed under Section 374(2) of Cr.P.C. are

directed against the impugned judgment dated 16.03.2017

passed by learned Additional Judge of Additional Sessions

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Judge, Ramanujganj, District Surguja (Ambikapur) in

Sessions Trial No. R-21/2013, by which, the appellants

herein have been convicted and sentenced as under :

CONVICTION SENTENCE

U/s. 302 read with

Section 34 of IPC.

:Life imprisonment and

fine of Rs. 1000/- in

default of payment of

fine, further rigorous

imprisonment for 50

days.

U/s. 201 of IPC. :Rigorous imprisonment

for 3 years and fine of

Rs.1000/-, in default of

payment of fine, further

rigorous imprisonment

for 50 days.

Both the sentence to run concurrently.

3.Case of the prosecution, in short, is that in between

07.08.2013 at 3:00 P.M. till 08.08.2013 at 5:00 A.M. at village

Parsagudi, Police Station Rajpur, District Balrampur-

Ramanujganj, both the appellants in furtherance of their

common intention caused the death of Kishore Goswami @

Golcha (now deceased) and in order to screen themselves

from the offence, they thrown the dead body into the septic

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tank of the house of Sukhnath Bhagat (PW-5) and thereby

committed the aforesaid offences. The matter was reported

to the police, pursuant to which, Merg Intimation was

registered vide Ex.P-13, FIR was registered vide Ex.P-12,

Inquest was conducted vide Ex.P-16 and dead body of

deceased Kishore Goswami was subjected to post-mortem,

which was conducted by Dr. A.P.Gupta (PW-11), who proved

the post-mortem report vide Ex.P-19, according to which,

cause of death was stated to be syncope due to hemorrhagic

shock, injury to neck and head and death was homicidal in

nature. Pursuant to memorandum statement of the appellant

(A-1), blood stained iron spade, motorcycle, nokia mobile

phone of deceased were seized vide Ex.P-4 and from the

memorandum statement of appellant (A-2), iron angle, jeans

pant & wooden stick were seized vide Ex.P-17. After due

investigation, the appellants were charge-sheeted for the

aforesaid offences to the jurisdictional criminal court and the

case was ultimately committed to the Court of Sessions for

hearing and disposal in accordance with law, in which, the

appellants abjured their guilt and entered into defence stating

that they have not committed any offence and they have

been falsely implicated.

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4.In order to bring home the offences, prosecution examined

as many as 16 witnesses and exhibited 26 documents and

the accused/ appellants in support of their defence had

neither examined any witness nor exhibited any document.

5.The trial Court, after appreciation of oral and documentary

evidence on record, convicted the appellants herein for the

aforesaid offences as mentioned in the opening paragraph of

this judgment, against which the present appeal has been

preferred.

6.Mr. Arun Kumar Shukla & Mr. Siddharth Pandey, learned

counsel appearing for the appellants, would submit that the

theory of last seen together has not been established and,

even if, it is established, corroboration would be required and

furthermore, the prosecution has failed to bring home the

offence beyond reasonable doubt, therefore, the appellants

are entitled for acquittal and the appeal deserves to be

allowed. They would rely upon the decision of the Supreme

Court rendered in the matter of Padman Bibhar v. State of

Odisha

1

.

7.Mr. Amit Buxy & Mr. Siddhant Tiwari, learned State counsels,

would submit that the prosecution has been able to bring

12025 SCC OnLine SC 1190

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home the offence beyond reasonable doubt and the trial

Court has rightly convicted the appellants herein, therefore,

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.The first question for consideration as to whether the death of

deceased Kishore Goswami was homicidal in nature has

been answered by the trial Court in affirmative relying upon

the post-mortem report (Ex.P-19) proved by Dr. A.P.Gupta

(PW-11), according to which, cause of death was stated to be

syncope due to hemorrhagic shock, injury to neck and head

and nature of death was homicidal, which in our considered

opinion is a correct finding of fact based on evidence

available on record, it is neither perverse nor contrary to the

record and accordingly, we hereby affirm the said finding.

10.The case of the prosecution is based on theory of last seen

together. Now, the question is whether the trial Court is

justified in convicting the appellants relying upon the theory

of last seen together to be duly established ?

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11.At this stage, it would be appropriate to notice the decisions

with regard to theory of last seen together rendered by the

Supreme Court.

12.In the matter of Jaharlal Das v. State of Orissa

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, 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.

13.In the matter of Arjun Marik v. State of Bihar

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, 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

2 (1991) 3 SCC 27

3 1994 Supp (2) SCC 372

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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.”

14.Likewise, in the matter of State of Goa v. Sanjay Thakran

4

,

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

4 (2007) 3 SCC 755

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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 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. ”

15.Similarly, in the matter of Kanhaiya Lal v. State of

Rajasthan

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, 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

5 (2014) 4 SCC 715

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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 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.”

16.In the matter of Anjan Kumar Sarma v. State of Assam

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,

their Lordships of the Supreme Court have clearly held that

6 (2017) 14 SCC 359

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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.

17.In the matter of Navaneethakrishnan v. State by Inspector

of Police

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, 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: -

“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

7 (2018) 16 SCC 161

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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.”

18.In the matter of State of Goa v. Sanjay Thakran and

another

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, 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.

19.In the instant case, the appellants and deceased were last

seen alive on 07.08.2013 at 10:00 A.M. at Nawapara Chowk,

8 (2007) 3 SCC 755

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Ambikapur and dead body of deceased was noticed on

08.08.2013 at 4:00 P.M. with a gap of more than 29 hours. As

such, there is a considerable time gap between the last seen

together and the time when dead body of deceased was

recovered. Therefore, it cannot be held that it is only the

appellants who are perpetrator of crime in absence of

corroboration, as required in the matter of Navaneetha-

krishnan (supra).

20.The next incriminating circumstance which has been found

proved by the trial Court is that the dead body of deceased

was recovered from the septic tank of newly constructed

house of Sukhnath i.e. father of appellant (A-1). However, no

such document has been produced by the prosecution to

demonstrate that the newly constructed house was owned by

Sukhnath (PW-5). Since the dead body of deceased was

found in the house of Sukhnath (PW-5) which happens to be

father of appellant (A-1) but that itself would not implicate the

appellant (A-1) for the offence in question, unless the offence

in question is established beyond reasonable doubt by the

prosecution.

21.The last incriminating circumstance is that pursuant to

memorandum statement of appellant (A-1) proved by

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Prakash (PW-1) & Suraj Kumar (PW-9), iron spade has been

recovered in which blood has been found, but the blood

group has not been ascertained. As such, mere recovery of

blood-stained weapon from the possession of the appellant

(A-1), pursuant to his memorandum statement, conviction

cannot be sustained in light of the decision of the Supreme

Court in Raja Naykar v. State of Chhattisgarh

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. Further-

more, though Nokia mobile phone of the deceased is said to

have been recovered from the appellant (A-1), but it has not

been established that the seized mobile phone having a

particular IMEI number was owned/purchased by the

deceased and, as such, it could not be proved that the

seized mobile belongs to the deceased. Furthermore, from

the appellant (A-2), one iron angle was seized, but it has not

been supported by the seizure witness Dhaniram (PW-10) &

Satish Kumar Dubey (PW-16). Even otherwise, it cannot be

held that seized article was used in commission of offence in

absence a close link between discovery of material object

and its use in commission of offence in light of decision of the

Supreme Court in the matter of Mustkeem Alias Sirajudeen

v. State of Rajasthan

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. As such, the prosecution has failed

to bring home the offence beyond reasonable doubt,

9 2024 SCC Online SC 67

10(2011) 11 SCC 724

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therefore, both the appellants are entitled for acquittal on the

basis of benefit of doubt.

22.In view of the above, the impugned judgment of conviction

and order of sentence dated 16.03.2017 is set aside. The

appellants (A-1 & A-2) stand acquitted giving them benefit of

doubt from the charges framed against them for the offence

under Sections 302/34 & 201 of I.P.C. The appellants are

already on bail, they need not surrender; however, their bail

bonds shall remain in force for a period of six months in view

of the provision contained in Section 437-A of the Cr.P.C.

23.In the result, both the criminal appeals are allowed.

24.Let a certified copy of this judgment along-with the original

record be transmitted to the concerned trial Court forthwith

for necessary information & action, if any.

Sd/- Sd/-

(Sanjay K. Agrawal) (Arvind Kumar Verma)

Judge Judge

Ashok