1 CRA No. 1066 of 2017 2026:CGHC:2730-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1066 of 2017 [Arising out of judgment dated 21.06.2017 passed in Sessions Trial No.94/2016 by the 7 th Additional Sessions Judge, Durg, District Durg, Chhattisgarh.]  Mohammad Saheb S/o Mohammad Firoz Khan, aged about 21 years, R/o Ekta Nagar, Near Dewangan Kirana Stores, Bhilai-3, Police Station Bhilai-3, District Durg, Chhattisgarh. ... Appellant versus  State of Chhattisgarh Through Station House Officer, Police Station Khursipar, District Durg, Chhattisgarh. ... Respondent For Appellant :- Ms. Fouzia Mirza, Senior Advocate, with Mr. Shamsuddin Mirza, Advocate. For State-Respondent :- Mr. Afroz Khan, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Arvind Kumar Verma Judgment On Board (16.01.2026) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellant herein, is to the legality, validity and correctness of the judgment dated ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2026.01.19 10:33:11 +0530 2 CRA No. 1066 of 2017 21.06.2017 passed by the 7th Additional Sessions Judge, Durg, District Durg, Chhattisgarh, in Sessions Trial No. 94/2016, by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer rigorous imprisonment for life with fine of 500/-; in default of payment of fine, he has to undergo ₹ rigorous imprisonment for 2 months. Prosecution story:- 2. The prosecution projected the case during the course of trial is that during the intervening night of 24.12.2015 to 25.12.2015 at about 12:35 am, near I.T.I. Khursipar, Police Station Khursipar, District Durg, Chhattisgarh, the appellant assaulted unknown person with the help of stone and thereby committed the offence. Against the said incident Merg and FIR were registered vide Exs.P/1 & P/2, respectively. Crime details form and nazari naksha were prepared vide Exs.P/3 & P/4, respectively. Inquest proceedings (Ex.P/18) were conducted and the dead body of the deceased was subjected to postmortem. As per the postmortem report (Ex.P/28) proved by Dr. Sanjeev Kumar Shukla (PW-10) cause of death was shock due to anti- mortem extensive head injury and haemorrhage and it 3 CRA No. 1066 of 2017 seems to be homicidal in nature. Wheels of investigation started running and the appellant was arrested. Pursuant to memorandum statement of the appellant (Ex.P/11), his clothes were seized and weapon of offence i.e. stone was also seized from the spot at the instance of the appellant. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/28) on the stone (Article A) and on the clothes of the appellant (Articles B1 to B4) as well as on the clothes of the deceased (Articles E1 & E2) human blood was found. 3. After due 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. 4. In order to bring home the offence, prosecution has examined as many as 12 witnesses and exhibited 29 documents, whereas, defence, in support of its case, has examined 1 witness and exhibited 3 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence 4 CRA No. 1066 of 2017 brought on record by the prosecution, pleaded innocence and false implication. 5. The 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 the judgment, against which the instant appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 6. Ms. Fouzia Mirza, learned Senior Advocate for the appellant, would submit that the trial Court is absolutely unjustified on convicting appellant for offence in question. She would also submit that the present case is base upon the circumstantial evidence and only on the ground of suspicion arose on the basis of statements of Police Constables Anil Singh (PW-1) and Nitin Singh (PW-2), and on the basis of corroborative piece of evidence that in the FSL report human blood of group ‘O’ was found on the clothes of the appellant as well as on the clothe of the deceased, the appellant has been convicted for offence in question, but it cannot be sufficient to constitute the chain 5 CRA No. 1066 of 2017 of circumstances as held in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 . She would further submit that the case of the prosecution is based upon the surmises and conjectures and no direct evidence has been brought on record by the prosecution against the appellant, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 7. Per contra, Mr. Afroz Khan, learned State counsel, would oppose the prayer made by learned counsel for the appellant and submit that the trial Court has rightly convicted the appellant for the offence in question relying upon the circumstantial evidence, therefore, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submission made herein above and gone through the records minutely. Discussion & Analysis:- 9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report 1 (1984) 4 SCC 116 6 CRA No. 1066 of 2017 (Ex.P/28) proved by Dr. Sanjeev Kumar Shukla (PW-10), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 10. Now, the question for consideration would be whether the appellant has assaulted the deceased? 11. The case of the prosecution is based on the circumstantial evidence and the trial Court has found incriminating circumstances established. The five golden principles which constitute 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 (supra) in paragraph 153 which state 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. 7 CRA No. 1066 of 2017 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.” 12. The trial Court has found proved two circumstances that the appellant was sitting near the dead body of the deceased with a stone in his hand, which was seized by pursuant to memorandum statement of the appellant on which the human blood was found and also pursuant to memorandum statement of the appellant, his clothes were seized on which human blood was found. 13. The appellant was only found sitting near the dead body of the deceased which was seen by Anil Singh (PW-1) and Nitin Singh (PW-2) who came immediately on the spot after the incident. However, it is not the case of the prosecution that dead body was recovered pursuant to memorandum 2 (1973) 2 SCC 793 8 CRA No. 1066 of 2017 statement of the appellant and even PW-1 & PW-12 are not the eye witnesses to the incident and they have not seen the incident, admittedly. Merely, the appellant was found sitting near the dead body of the deceased, it cannot be held that the appellant caused the death of the deceased. Particularly, when the trial Court has itself recorded a finding that near the body of the deceased, appellant’s motorcycle lying therein with broken indicator and further recorded a finding that the deceased was dashed from the motorcycle of the appellant and only on account of that accident the appellant might have caused the death of the deceased. However, to convict the appellant, the prosecution is required to establish the offence beyond reasonable doubt and only on the basis of surmises and conjectures appellant could not be convicted that too for offence under Section 302 of the IPC. 14. So far as the fact that in the FSL report (Ex.P/28) on the clothes of the appellant human blood of group ‘O’ was found which is similar to the blood group which was found on the clothes of the deceased. However, it cannot be held to be a corroborative piece of evidence and even otherwise, in absence of other supportive or corroborative piece of evidence, appellant cannot be convicted only on the basis of 9 CRA No. 1066 of 2017 FSL report in light of decision of the Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh 3 . As such, the appellant is entitled for acquittal on the basis of benefit of doubt. Conclusion:- 15. In view of the aforesaid discussion and analysis, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 21.06.2017 passed by the trial Court convicting and sentencing the appellant for the offence in question, is hereby set aside and the appellant is entitled for acquittal on the basis of principle of benefit of doubt. Since the appellant is stated to be on bail, he need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 16. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Arvind Kumar Verma) Judge Judge Ankit 3 2024 SCC Online SC 67