Page No.1 of 11 IN CRA-734-2019 2026:CGHC:5420-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 734 of 2019 Hemant Markam, S/o Jan Singh Markam, aged about 40 years, R/o Karranawapara, Police Station Pali, District Korba (Chhattisgarh) ... Appellant (On Bail) Versus State of Chhattisgarh, through Police Station Pali, District Korba (Chhattisgarh) ... Respondent [Cause-title taken from Case Information System (CIS)] ----------------------------------------------------------------------------------------------- For Appellant : Mr. CR Sahu, Advocate For Respondent-State : Mr. HAPS Bhatia, Panel Lawyer ----------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board (31.01.2026) Sanjay K. Agrawal, J (1) Invoking criminal appellate jurisdiction of this Court, the sole appellant herein has preferred this criminal appeal under Section 374(2) of Cr.P.C., calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 15.03.2019, passed in Session Trial No.69/2017 (State of Chhattisgarh v. Hemant Markam) by the Addl. Judge to the Court of Addl. Sessions Judge, Katghora, District Korba (CG), whereby he SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 11 IN CRA-734-2019 has been convicted for offences: under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.500/- and, in default of payment of fine, sentenced to undergo additional rigorous imprisonment for 01 month and also under Section 201 of IPC and sentenced to undergo rigorous imprisonment for 03 years with fine of Rs.100/- and, in default of payment of fine, sentenced to undergo additional rigorous imprisonment for 01 month. [Both the sentences are directed to run concurrently] (2) The case of the prosecution, in short, is that in the intervening night of 02-03/09.2017, between 11:00 PM to 05:00 AM, in the house of Laxminarayan, situated at Village Talapara, the accused- appellant herein assaulted his father-in-law, namely, Laxminarayan (hereinafter referred to as the “deceased”) by means of farsa, due to which, he suffered burn injuries and died and, further, in order to screen himself from the legal punishment, hide the said farsa and blood stained clothes in the house of his brother, namely, Santosh and, thereby, said to have committed the aforesaid offences. (3) It is further case of the prosecution that when the aforesaid matter was reported to the police, merg intimation and FIR were registered vide Ex.P/01 & Ex.P/02 respectively and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/03 and inquest proceedings were conducted vide Ex.P/04. Spot map was also prepared vide Ex.P/13. The dead-body of the deceased was sent for postmortem Page No.3 of 11 IN CRA-734-2019 examination, which was conducted by Dr. Anil Kumar Saraf (PW-15) and, as per PM report (Ex.P/17), it has been opined that cause of death is hemorrhage and shock due to injury on neck and mandible (jaw) and nature of death is homicidal. The appellant-accused was arrested vide Ex.P/14 and his memorandum statement was recorded vide Ex.P/11. Pursuant to the memorandum statement of the appellant, weapon of the offence (farsa) and clothes (lungi and baniyan) were seized vide Ex.P/08. Thereafter, the seized articles were sent for chemical examination and, as per FSL report (Ex.P/29) it has been opined that stains of human blood were found on the weapon of the offence (farsa) and clothe (lungi), which were seized from the appellant. After statements of witnesses were recorded and due investigation, the police filed charge-sheet against the appellant in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 16 witnesses and exhibited 37 documents, whereas the appellant- accused in support of his defence neither examined any witness nor exhibited any documents. (5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the Page No.4 of 11 IN CRA-734-2019 appellant for offence under Section 302 & 201 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant- accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. CR Sahu, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 & 201 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that there is no direct evidence available on record against the appellant. The testimony of eye-witness has been disbelieved by the learned trial Court. Further, the conviction of the appellant is based on the memorandum statement of the appellant recorded vide Ex.P/11, pursuant to which, weapon of the offence i.e. faras and clothes were seized, in which, as per FSL report stains of human blood were found. However, there is no material available on record to show that the said human blood belongs to the deceased only or was having same blood group to that of the deceased and, therefore, the recovery of said articles are of no help to the prosecution. He also submits that the learned trial Court has found motive of the offence to be proved against the appellant, but it is well settled that only on the basis of motive, the appellant cannot be held guilty of the offence in question. As such, the present appeal deserves to be allowed and the appellant is liable to be acquitted of Page No.5 of 11 IN CRA-734-2019 the said charge on the basis of benefit of doubt. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Sections 302 & 201 of IPC. Thus, the present 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 and foremost question is as to whether the death of the deceased was homicidal in nature or not, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/17), wherein it has been opined that cause of death is hemorrhage and shock due to injury on neck and mandible (jaw) and nature of death is homicidal. Accordingly, taking into consideration the postmortem report (Ex.P/17) and the statement of Dr. Anil Kumar Saraf (PW-15), who has conducted the postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and Page No.6 of 11 IN CRA-734-2019 same is neither perverse nor contrary to the record. We hereby affirm the said finding. (10) Now, the next question would be whether the accused- appellant herein is the author of the crime in question or not? (11) In the case at hand, though the learned trial Court has not found proved the direct evidence available in the case in shape of testimony of eye-witness and disbelieved the same, but proceeded to rely upon the circumstantial evidence available on record in shape of : (i) memorandum statement of the appellant recorded vide Ex.P/11, pursuant to which, weapon of the offence i.e. faras and clothes were seized, in which, as per FSL report stains of human blood were found and (ii) motive of the offence that the appellant was unhappy with the deceased (i.e. his father-in-law), as his wife used to stay in her parental house and the deceased was not allowing her to return to the appellant’s house. As regards incriminating circumstance No.(i): (12) So far as recovery of farsa from the appellant is concerned, there is no evidence available on record to show that the said farsa was used by the appellant in the crime in question, as it was the duty of the prosecution to do so. Furthermore, their Lordships of the Supreme Court in the matter of Mustkeem alias Sirajudeen v State of Rajasthan 1 have clearly held that the disclosure alone would not automatically lead to conclusion that offence was committed only 1 (2011) 11 SCC 724 Page No.7 of 11 IN CRA-734-2019 and only by the accused and the burden lies on the prosecution to establish a close link between the discovery of material object and its use in commission of offence and observed in Paras-25 to 27 as under: “25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.” 26. If the recovery memos were prepared at the police station itself then the same would lose their sanctity as held by this Court in Varun Chaudhary v. State of Rajasthan2. 27. The scope and ambit of Section 27 were also illuminatingly stated in Pulukuri Kotayya v. King Emperor3 reproduced hereinbelow: (IA p. 77). “… it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were 2 (2011) 12 SCC 545 3 (1946-47) 74 IA 65 : AIR 1947 PC 67 Page No.8 of 11 IN CRA-734-2019 discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” The same were thereafter restated in another judgment of this Court in Anter Singh v. State of Rajasthan4.” (13) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgment, it is quite vivid that though in the present case the weapon of the offence i.e. farsa and his clothes have been seized pursuant to the memorandum/disclosure statement of the appellant, but it has not been established by the prosecution that the said farsa was used by the appellant in the crime in question in any manner. As such, in light of Mustkeem alias Sirajudeen (supra) the appellant cannot be held guilty only on the basis of recovery of article (farsa), which has been made on the basis of his disclosure statement recorded vide Ex.P/11. Even otherwise, though as per FSL report (Ex.P/29) stains of human blood were found on the said farsa and clothes, which were seized from the appellant, but there is no evidence available on record to show that the human blood, which was found on the said farsa and clothes, seized pursuant to the memorandum statement of 4 (2004) 3 SCC 657 Page No.9 of 11 IN CRA-734-2019 the appellants herein, matches with the blood group of the deceased. Furthermore, as per the record, the said articles were seized on 03.09.2017 and were sent to the FSL laboratory on 07.10.2017 and there is no evidence available on record to show that whether the said articles were kept in safe custody from 03.09.2017 to 07.10.2017 (i.e. for a period of one month) or not. As such, chances of fabrication and manipulation cannot be ruled out. Therefore, the opinion of FSL report (Ex.P/29) is also not found reliable and trustworthy. Moreover, the Supreme Court in the matter of Raja Nayka v. State of Chhattisgarh 5 by relying upon its earlier decision rendered in the matter of Mustkeen @ Sirajudeen (supra) has held that sole circumstance of recovery of blood-stained article cannot form the basis of conviction unless the same is corroborated with other piece of incriminating circumstances. Consequently, for the aforesaid reasons, the recovery of aforesaid articles is also of no help to the prosecution and the learned trial Court is absolutely unjustified in convicting the appellant for the offence in question on the basis of aforesaid incriminating circumstance No.01. We hereby hold accordingly. As regards incriminating circumstance No.(ii): (14) Another incriminating circumstance that has been relied upon by the learned trial Court is the motive of the offence that the appellant was unhappy with the deceased (i.e. his father-in-law), as 5 2024 SCC Online SC 67 Page No.10 of 11 IN CRA-734-2019 his wife used to stay in her parental house and the deceased was not allowing her to return to the appellant’s house. However, it is well settled law that motive may be an important circumstance in a case based on circumstantial evidence, but it cannot take place of conclusive proof. (See: Sampath Kumar vs. Inspector of Police, Krishnagiri 6 ). Further, the decision rendered in the matter of Mahendra Singh vs. State of M.P. 7 their Lordships of the Supreme Court reiterated the law on the point stating that merely because motive is established, solely on that basis accused cannot be convicted under Section 302 of IPC. We hereby hold accordingly. (15) In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 8 , in absence of which, the learned trial Court is unjustified in convicting the appellants for the offences in question being the author of the crime in question in light of above-mentioned incriminating circumstances and same is liable to be set aside. (16) Accordingly, the conviction and their respective sentence of the appellant for offence punishable under Section 302 & 201 of IPC, as imposed upon him by the learned trial Court, are hereby set aside. 6 (2012) 4 SCC 124 7 (2022) 7 SCC 157 8 (1984) 4 SCC 116 Page No.11 of 11 IN CRA-734-2019 He is acquitted of the said charge on the basis of benefit of doubt. Since the appellant is already on bail, he need not to surrender. However, his bail bonds shall remain in force for a further period of six months in view of the provision contained in Section 437-A of the CrPC. (17) Consequently, the criminal appeal is allowed to the extent indicated herein-above. (18) Let a certified copy of this order alongwith original record be transmitted to the trial Court concerned for necessary information and action, if any. sd/- sd/- (Sanjay K. Agrawal) (Arvind Kumar Verma) Judge Judge s@if