2020 Supreme(Chh) 168

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Prashant Kumar Mishra and Gautam Chourdiya, JJ.
STATE OF CHHATTISGARH - Appellant
Versus
RAM SONA - Respondent
Criminal Reference No. 2 of 2018; Criminal Appeal No. 1517 of 2018
Decided On : 31-01-2020

Headnote:

Indian Penal Code, 1860 – Sections 376(A), 302, 201/34, 202, 216, 212, 363, 365 and 366 – Criminal Procedure Code, 1973 – Sections 43, 37 and 129 - Evidence Act – Section 30, 3, 27, 26 and 106 – Offence of rape – Murder – Charged – Challenged - Accused was taken into custody on and his memorandum statement was recorded vide - He disclosed to police that when deceased was playing alone near at about noon he brought her in his house by gifting her chocolate and promising to her more chocolates if she comes to his house - When he reached house his friend was watching TV in his house - When he was committing rape with deceased tried to restrain him but he continued act and later on thrashed her head on ground due to which she became unconscious - Learned counsel for appellants would argue that names of the accused persons were not mentioned in missing report/FIR therefore they were framed subsequently by prosecution as they were not finding culprits – Held, Court find force in submission of learned Senior Counsel for State - Next point to be noted is that Privy Council rejected argument of counsel appearing for Crown that fact discovered is physical object produced and that any and every information which relates distinctly to that object can be proved - Court have considered respective submissions and evidence on record - There is no eyewitness to occurrence but only circumstances coupled with fact of deceased having been last seen with appellant - Criminal jurisprudence and plethora of judicial precedents leave little room for reconsideration of basic principles for invocation of last seen theory as a facet of circumstantial evidence - Succinctly stated it may be a weak kind of evidence by itself to found conviction upon same singularly - When Court draws a balance-sheet of the aggravating and mitigating circumstances for purposes of determining whether extreme sentence of death should be imposed upon accused or not scale of justice only tilts against accused as there is nothing but aggravating circumstances evident from record of Court - In fact one has to really struggle to find out if there were any mitigating circumstances favouring accused - Order Accordingly