1 2025:CGHC:13782-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 314 of 2021 Yadram Banjare S/o Dukalha Banjare Aged About 27 Years R/o Village Khadma, Police Station- Chhura, District Gariyaband Chhattisgarh, District : Gariyabandh, Chhattisgarh ---appellant versus State Of Chhattisgarh Through District Magistrate Gariyaband District Gariyaband Chhattisgarh, District : Gariyabandh, Chhattisgarh --- Respondent(s) CRA No. 357 of 2021 Ranu Markandey W/o Late Shailendra Markandey Aged About 24 Years R/o Village Pachari Police Station Patewa District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgarh ---appellant Versus State Of Chhattisgarh, Through District Magistrate Gariyaband, District Gariyaband Chhattisgarh., District : Gariyabandh, Chhattisgarh --- Respondent(s) For appellants in both the appeals : Mr. Awadh Tripathi, Advocate For Respondent(s) : Mr. S. S. Baghel, Dy. Govt. Advocate 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ravindra Kumar Agrawal, J. 22.03.2025 1. Both these criminal appeals are arising out of the same Crime No., same Sessions Trial and common judgment, therefore, both these appeals are being heard and decided together. 2. Both these appeals have been filed by the respective appellants against the impugned judgment of conviction and sentence dated 18.02.2021 passed by learned Addl. Sessions Judge, Gariyaband (C.G.) in Sessions Case No. 53/2018 whereby the appellants have been convicted and sentenced in the following manner:- S.No. Conviction Sentence 1. U/s 120(B) of IPC Life imprisonment and fine of Rs. 1000/- in default of payment of fine amount one year additional S.I. 2. U/s 302 of IPC Life imprisonment and fine of Rs. 1000/- in default of payment of fine amount one year additional S.I. 3. U/s 201 of IPC R.I. for 5 years and fine of Rs. 1000/- in default of payment of fine amount one year additional S.I. All sentences shall be run concurrently. 3. The brief facts of the case are that on 30.06.2018, the complainant Yashwant Kumar Markandey (PW/2) gave a merg intimation (Ex-P/12) to the Police that his younger brother Shailendra Markandey had gone on his motor cycle on 29.06.2018 bearing No. CG 06 GG 9619 and at about 8 pm, he informed through mobile that he is at Jhalap, Mahasamund and will come after some time. Today, in the morning at about 8 am, one villager Bhurwa 3 came to his house and informed that Shailendra Markandey has met with an accident at Village- Pattharri and has died. He went on the spot, he saw that someone has killed him. Based on the merg intimation, the Police has prepared the inquest of the dead body of the deceased (Ex-P/16) in presence of the witnesses and the dead body was sent for its post mortem to Community Health Centre, Phingeshwar, where PW/11 Dr. Rupal Gupta conducted the post mortem of the dead body of the deceased and gave the post mortem report (Ex-P/26). At the time of post mortem, the Doctor has noticed the following injuries on the dead body of the deceased:- • Lacerated wound on frontal bone right side above to right eyebrow. Frontal bone is having depressed and fracture wound depressed, length 6 cm X width 2 cm X depth 3 cm. • Near the right pragus lacerated wound is present and zygoma-tic bone is fractured, depressed in nature, length 4 cm X width 1½ cm X depth 3 cm. • Right side parietal bone having depressed fracture into various pieces, length 7 cm X width 2 cm X depth 3 cm. Of opening the cranial cavity full of blood due to intracranial hemorrhage due to injuries. After conducting the post mortem, the doctor has opined that cause of death, Cardiorespiratory due to Head Injury and mode of death, shock due to hemorrhage and nature of death seems to be homicidal in nature. 4. The FIR (Ex-P/36) was registered against the appellant for the offence under Section 302 of IPC on 01.07.2018. The Spot Map (Ex-P/13) was prepared by the Police and (Ex-P/14) was prepared by the Patwari. The blood stain and plain soil have been seized from the spot vide seizure memo (Ex-P/18). One motor cycle bearing No. CG 06 GG 9619 and one empty liquor bottle and two plastic disposal glass have been seized from the spot vide seizure memo (Ex-P/19). The appellant Yadram Banjare was taken into custody on 01.07.2018 and his memorandum Statement (Ex P/2) was recorded in which he described the details in which he committed the offence and based on his 4 memorandum statement, one iron rod was seized vide seizure memo (Ex- P/5). The cloths of the deceased was also recovered from the appellant Yadram Banjare which was kept in carry bag under the shrubs and his shirt, pant and chappal have been seized vide seizure memo (Ex-P/6). The Talasi Panchanama (Ex-P/3 & P/4) was also prepared before recovery of the said articles from the appellant Yadram Banjare. The motor cycle of the appellant Yadram Banjare, one mobile phone and one micro sim have also been seized from the appellant Yadram Banjare vide seizure memo (Ex-P/7) and after recovery of the iron rod from the Canal, recovery memo (Ex-P/8) was prepared. The seizure memo of his shirt, pant and chappal was also prepared as (Ex-P/9). On the basis of memorandum statement of the appellant Yadram Banjare, the other accused persons Ranu Markandey and Dashoda Dhritlahre have also been arrested in the offence as there was allegation against them about conspiracy to commit murder of the deceased. One mobile phone has also been seized vide seizure memo (Ex-P/14) from the wife of the appellant Yadram Banjare. The seized articles were sent for its chemical examination to State FSL, Raipur, from where report (Ex-P/45) was received. According to the FSL report, except the plain soil, blood has been found on the other articles and in the trouser of the deceased (Article- C), human blood was found. The call detail record of the mobile numbers 8458988156, 9285298767, 9009110765 and 9111344021 were obtained from the service provider company Vodaphone along with the certificate under Section 65 B the Indian Evidence Act, 1872. The statement of the witnesses have been recorded and after completion of usual investigation, charge-sheet was filed before the learned Judicial Magistrate First Class, Rajim for the offence under Section 302, 201, 120B and 34 of IPC against three accused persons namely Yadram Banjare, Ranu Markandey and Dashoda Dhritlahre. The case was committed to the court of learned 5 Sessions Judge from where the same was transferred to the learned trial Court for its trial. 5. The learned trial Court has framed charges against the appellant Yadram Banjare for the offence under Sections 120 B, 302 and 201 of IPC whereas the charge against the other accused persons Ranu Markandey and Dashoda Dhritlahre have been framed for the offence under Section 120B of IPC. The accused persons denied the charge and claimed trial. 6. In order to prove the charge against the accused persons the prosecution has examined as many as 25 witnesses statement under Section 313 of Cr.P.C of the accused persons were also recorded in which they denied circumstances appears against them, plead innocence and have submitted that they have been falsely implicated in the offence and they are innocent. 7. After appreciation of oral as well as documentary evidence produced by the prosecution, the trial Court has acquitted the accused Dashoda Dhritlahre from the offence under Section 120B of IPC, however, the present appellants have been convicted and sentenced as mentioned in opening paragraph of this judgment, hence, this appeal. 8. Mr. Awadh Tripathi, learned Counsel for the appellants appearing in both the appeals would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses. There is no eye witness to the incident in the case of the prosecution based on the circumstantial evidence. There are number of missing links in the case and the conviction of the appellants cannot be made on the basis of uncorroborated evidence of the witnesses. Except from the memorandum and seizure, no other sufficient evidence available against the appellants to connect them with the offence in question. There is no evidence of conspiracy that they conspired together to commit murder of the deceased. There is no motive proved by the prosecution to commit the murder of the deceased. There is no evidence 6 also on record that Ranu Markandey who is the wife of the deceased was having any animosity or she hired the appellant Yadram or even she was having any intimacy with him. There is no motive for the appellant Yadram to commit his murder. Presence of blood is in the cloths of the appellant Yadram is not sufficient to hold him guilty in the capital offence when the blood group is not proved by the prosecution. The call detail report is also not sufficient to connect them with the offence in question. He would further submit that it is not a case of murder but it is a case of accident. He would also submit that the Doctor has also admitted the possibility of accidental death of the deceased and also admitted that the injuries found in the body of the deceased can also be received in accident. In the merg intimation also, firstly it was report that the deceased met with an accident and it is subsequently alleged that the deceased was being murdered by the accused persons. The alleged memorandum and recovery of the articles have not been proved by the witnesses in accordance with law and therefore, there is no cogent, clinching and connecting evidence against the appellants to hold their conviction and they are entitled for their acquittal. 9. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellants and have submitted that the prosecution has proved its case beyond reasonable doubt. There are so many connecting evidence which complete the chain of circumstances. But for minor omission and contradictions which are trivial in nature, the other evidence are sufficient and corroborative with each other. From the call detail, it prima facie proved that both the accused persons had the telephonic call and connected through mobile phone at the relevant point of time. On the memorandum statement of the appellant Yadram Banjare, iron rod was seized which was thrown in the Kenal and the blood was found on the said iron rod. In the cloths of the appellant also blood was found. He would also submit that the conspiracy is always hatched in conspiracy and it 7 is a meeting of mind between two accused persons and it is very difficult to bring the direct evidence with respect to the conspiracy, however, the conspiracy can also be infirred by the conduct of the accused persons. There is evidence with respect to the previous dispute between the appellant Yadram and the deceased which has been proved by PW/12 Indra Arya Markandey and PW/5 Tarni Lahre who stated in their evidence that prior to the incident, the appellant Yadram hearling threat that he will kill the deceased. He would also submit that the motive to commit murder has also been proved by PW/5 and PW/12 and the appellant Ranu Markandey was having illicit relation with the appellant Yadram which is the motive to commit murder of the deceased. The last seen theory was also found proved by the evidence of Dharamraj Tandan (PW/3), Indra Arya Markandey (PW/12) and Phoolchand Baghel (PW/15). Therefore, there are ample evidence against the appellants to commit the murder of the deceased which has rightly been appreciated by the learned trial Court and has convicted the appellants for the alleged offences which needs not interference. 10. We have heard learned counsel for the parties and perused the record of the case with utmost circumspection. 11. The homicidal death of the deceased was considered by the learned trial Court and on the basis of the evidence the Dr. Rupal Gupta PW-11 who conducted the post-mortem of the dead body of the deceased and also in view of other evidence available on record to hold that the death of the deceased was homicidal. 12. PW-11, Dr. Rupal Gupta have stated in his evidence that on 30.06.2018, he conducted the post-mortem of the dead body of the deceased and found numerous injuries on the body of the deceased including fracture of frontal bone jagomatic bone and parietal bone and opined that the cause of death 8 was due to cardio respiratory due to head injury and mode of death is shock due to hemorrhage and nature of death seems to be homicidal in nature. 13. In cross-examination though he admitted that the circumstances of the injuries could also be the circumstances of the accidental injuries. He voluntarily stated that if it would be accidental injuries, there should be some other injuries also. He admitted that in an accident by the truck, if the person dashed or fall on the road on the side of head through the head direction, there is possibility of receiving crush injuries on the head and bones may be fractured in crushed shape. In the present case except the injuries on the head part of the dead body of the deceased no other injuries on other part of the body was found by the doctor while conducting the post-mortem of the deceased. 14. The homicidal death of the deceased was further found proved by the evidence of PW-13 Banshi Joshi who stated in his evidence that when he received information about the incident who went to the hospital he saw the dead body having injuries on his head which appears to be inflicted by iron rod and the mark of chappal was also there on his chest, they suspected that it was not an accident. The evidence of PW-13 is also supported by the prosecution evidence of PW-15 Phool Chand Baghel he too have seen the dead body in the hospital and notice the same injuries as PW-13 have disclosed. There is nothing in their cross-examination which makes their evidence doubtful that they have not seen the injuries on the dead body of the deceased. 15. The doctor PW-11 has also opined that he given a query report Ex.P/28 with respect to the iron rod produced before him and opined that the injuries found on the body of the deceased could have been caused by the said iron rod. Further the defence taken by the appellant that the deceased died due to motor accident and not by assault made by any person or the appellant. 9 From perusal of the inquest Ex.P/16 in its description it is mentioned that the motorcycle of the deceased was found parked and not in the accidental condition lying on the road. It has been mentioned that “?kVuk LFky ds ikl e`rd dk eksVj lkbfdy vikph jksM ds fdukjs [kM+k feyk eksVj lkbfdy esa e`rd dk ‘kVZ Vaxk gqvk jax gYdk xqykch jksM+ ds fdukjs FkksMh nwj ij esftd ewesaV ‘kjkc dk 180 ml dk [kkyh iOok iMk gqvk e`rd ds ‘ko ds ikl 2 ux IykfLVd dk fMLiksTky iM+k gqvk feykA” likewise in the spot map Ex.P/13 was prepared by the police. The same situation has been mentioned that the motorcycle of the deceased was found parked on the side of the road had the deceased been met with an accident his motorcycle was lying on the road in accidental condition but it was not the case here. Therefore, the finding recorded by the learned trial Court that the death fo the deceased was homicidal in nature is neither perverse nor contrary to the record. 16. So far as the involvement of the appellant in the offence in question is concerned. The case of the prosecution is based on circumstantial evidence. 17. In the case of circumstantial evidence the evidence which requires to be considered has been held by Hon’ble Supreme Court in a number of judgment and some of them are given herein below: There is no eyewitness in the present case. The case of the prosecution rests on the circumstantial evidence. The Hon’ble Supreme Court in case of Ravindra Singh Vs. State of Punjab, 2022 (7) SCC 581 has held in para 10 as under:- 10. The conviction of A2 is based only upon circumstantial evidence. Hence, in order to sustain a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent. This court has consistently held in a long line of cases [See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa @ Krishnappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh @ Dalbir Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. 10 (AIR 1989 SC 1890)] that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 10.1. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt. 10.2. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed that: “21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”. 18. In the matter of para Surendra Kumar and Another Vs. State of Uttar Pradesh, 2021 (20) SCC 430, the Hon’ble supreme Court has held in 11 and 12 as under:- “11. As the case against the appellants is entirely based on circumstantial evidence, it is necessary to determine whether the available evidence lead only to the conclusion of guilt and exclude all contrary hypothesis. The enunciation on the law of circumstantial evidence stood the test of time since Hanumant Vs. State of Madhya Pradesh1 where Mahajan J., has written as under:- “10…………It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as 11 not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused……………” 12. The nature, character and essential proof required in criminal cases was discussed in detail by Fazal Ali J in Sharad Birdhichand Sarda vs. State of Maharashtra2 and the proposition of law culled out on circumstantial evidence was approved in many subsequent judgments and was recently reiterated by Krishna Murari J., writing the opinion for a three Judges Bench in Shailendra 1 AIR 1952 SC 343 2 (1984) 4 SCC 116 Rajdev Pasvan & Ors. Vs. State of Gujarat & Ors. 3 where it was succinctly laid down as under:- “17. It is well settled by now that in a case based on circumstantial evidence the courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.” 19. In the matter of Digambar Vaishnav and Another Vs. State of Chhattisgarh, 2019 (4) SCC 522, the Hon’ble supreme Court has held :- “14.One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt. 15. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the 12 conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. 16. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied: i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and iii.) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 17. In Varkey Joseph v. State of Kerala, 1993 Suppl (3) SCC 745, this Court has held that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt. 18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under: "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large differ- ence between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence pro- duced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure con- clusions to be arrived at, on the 13 touchstone of dis- passionate judicial scrutiny, based upon a com- plete and comprehensive appreciation of all fea- tures of the case, as well as the quality and credi- bility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so de- mand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely prob- able doubt, but a fair doubt that is based upon reason and common sense". 20. In the matter of Nagendra Sah Vs. State of Bihar, 2021 (10) SCC 725 in paragraphs 17 and 18 replying upon the golden principles enumerated in case Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116, the Hon’ble Supreme Court has held as under: “17. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In the case of Sharad Birdhichand Sarda v. State of Maharashtra2, in paragraph 153, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Paragraph 153 reads thus : - “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 & Anr. v. State of Maharashtra where the following observations were made: 19.....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 14 (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.” (emphasis added). 18. Paragraphs 158 to 160 of the said decision are also relevant which read thus : “158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. State of Bihar, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: 9.......But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, . . . such absence of explanation or false explanation would itself be an additional link which completes the chain." 159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied : (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation. 160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was 15 examined in Shankarlal case where this Court observed thus: 30........Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused." (emphasis added)” 21.The first circumstance against the appellant is that prior to the incident the appellant Yaadram Bajare hurling threat that he will kill the deceased, which has been proved by PW-5 and PW-12. 22.PW-5, Smt. Tarni Lahre who stated in his evidence that the deceased was his uncle the appellant Ranu Markande is her aunt. There was a dispute between the Ranu Markande and her parents, thereafter, she went back to her parents house and despite the efforts made by her uncle she could not return back and she herself had gone to convince her and then her mother asked her that her daughter is not willing to go there and if her uncle wants to reside with her, he should come her but after her efforts, the appellant Ranu Markande was ready to came with her. At about 07:30 p.m., the appellant Yaadram Banjare along with his wife Soniya Banjare came to her aunt’s house, the appellant Yaadram Banjawre. is the brother-in-law of her aunt Ranu Markande and the wife of the appellant is the elder sister of Ranu Markande. On the next morning when she had gone to the house of her aunt she saw that the appellant Yaadram Banjare and Ranu Markande were in same cot and chatting with each other having a close position when she asked her to go to her house but she refused and asked to come after 1 – 2 days. On the next day she brought her back and left her in the house of her uncle. In the month of June, she gave birth to a female child and in her 6 th day celebration, the appellant came to her house in drunken state of liquor and hurling abuse and threatening that he will kill the deceased Shailendra. On 29th June, the appellant Yaadram Banjare committed murder of her uncle. She stated that the appellant Yaadram Banjare was having illicit 16 relation with her aunt Ranu Markande since 07 years back and for that reason the appellant Yaadram Banjare committed murder of her uncle. Dashoda bai was also conspired in the said offence which she has seen in mobile phone. 23.In cross-examination she stated that she has not seen that the appellant is committing murder of the deceased. She also stated about the dispute between the deceased and the appellant Ranu Markande and frequent quarrel between them. She has proved that the motive to commit murder of the deceased that the appellant Yaadram Banjare was having illicit relation with the appellant Raju Markande for which the appellant Yaadram Banjare has committed murder of the deceased. 24.PW-12, Indira Arya is another nephew of the deceased who stated in his evidence that prior to the death of the his uncle, he made a telephonic call to his elder brother Dharamdas and informed that he was with the Yaadram Banjare when he made telephonic call to him he informed that he is at village Jhalap but they received information about the incident they had gone to the hospital and saw the dead body in which injuries on his head was visible. He stated that the appellant Yaadram Banjare was having illicit relation with the wife of the deceased and for that reason his uncle was being murdered. 25.In his cross-examination he remained firm in saying that the appellant Yaadram Banjare was having illicit relation with the appellant Ranu Markande for which the deceased was being murdered. After the death of the deceased they found mobile and SIM card and police has also gathered information from the witnesses that the appellant Yaadram Banjare was having illicit relation with the appellant Ranu Markande. Though he has not seen both the appellants in compromising position but that itself is not sufficient to discard his evidence. 17 26.PW-16, Budhelal Chandel is the father of the deceased, he stated in his evidence that on 02.06.2018 the wife of the deceased gave birth to a female child but he did not know as to from whom the child was born. There was a dispute between his son and the appellant Ranu Markande with respect to the said child. At the time of 6th day celebration after birth of the child the appellant Yaadram Banjare disclosed his relation with the appellant Ranu Markande and threatened the deceased that he will kill him at that time the other persons were also there and on the next day the appellant Ranu Markande went back to her parents house. During her stay in her parent’s house, she called deceased Shailendra through telephone and in the night of 29th June 2018. The accused persons committed murder of Shailendra. When he made a telephonic call to Ranu Markande she switch off her mobile phone. Before that she disclosed that Shailendra had left her house in the night itself. He also disclosed that there was frequent quarrel between them. On the issue of having illicit relation between the appellant Yaadram Banjare. Nothing specific has come in his cross-examination which makes his evidence doubtful and he speaks about the motive to commit the murder of the deceased. 27.The Supreme Court in Nathuni Yadav Vs. State of Bihar, 1978 (9) SCC 238 has held as under: “Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impells a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in Reg v. Palmer (Shorthand Report at page 308 SCC May 1850; thus: "But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties". Though, it is a sound proposition that every criminal act is 18 done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental Condition existed in She mind of the assailant.” 28.The second circumstance which has been proved by the prosecution is the last seen theory from the evidence of PW-3 Dharamraj Tandon, PW-12, Indira Arya and PW-15 Phool Chand Baghel. PW-3 Dharamraj Tandon have stated in his evidence that on 29.06.2018 at about 09:15 to 09:30 p.m., he made a telephonic call to the deceased Shailendra then he said that he along with the appellant Yaadram Banjare and he asked him to came back to his house and at the same moment the phone was disconnected. At the time of last rites of the deceased he disclosed that in the night when he had a telephonic call with him he disclosed that he was at Fingeshwar and when he obtained the mobile number of the appellant Yaadram Banjare and made a telephonic call to him and asked about the deceased then the appellant Yaadram Banjare denied the deceased Shailendra was with him. At about 12:00 pm., he came to the mortuary of the hospital and when the relatives asked about the incident he has not replied and immediately return back. 29.In cross-examination he stated that he was very close to the deceased and he was his friend more than his relation as uncle, he shared every thing with him. 30.From the document Ex.D/1 which is 161 of Cr.P.C. Statement of this witness it has also been stated by him in the said statement that on 29.06.2018 at about 09:30 p.m. when he made a telephonic call to the deceased in his mobile number from his mobile phone and asked his whereabouts, he disclosed that he was sitting with his co-brother and on 30.06.2018 when the appellant came to the hospital he asked the deceased then he denied that he was with him in the previous night. Thereafter, he raised suspicion over 19 him. In further cross-examination the allegation was levelled against this witness that he committed the murder of the deceased which he denied. 31.PW-12, Indra Arya, have also proved that on the date of incident when he made a telephonic call to his uncle (deceased) he disclosed that he is at village Jhalap and just before the incident he had a telephonic call with elder brother and at that time he informed that he was with the appellant Yaadram Banjare. 32.PW-15, Phool Chand Baghel have stated in his evidence that when they were in the hospital and in the process of discharging the dead body of the deceased from the hospital the friends of the deceased Dharamlal Tandon came there and informed that the deceased Shailendra was that that the appellant Yaadram Banjare at the time of incident. After 10-15 minutes the appellant Yaadram Banjare was also came there and when he was being inquired by the persons he disclosed that he did nothing and try to flee from the place and sat on the police vehicle. On the next day when the police interrogated him he disclosed since last 6 months he searching for an occasion to commit his murder and prepared a plan for the same. He also disclosed that the appellant Ranu Mankande and Dashoda insisted him to commit his murder. He also stated that at the time of 6th day celebration the appellant Yaadram Banjare threatened the deceased Shailendra that he will commit his murder one day. Though he has been cross-examined that he disclosed the fact that about the conduct of the appellant that when the persons inquired from him he tried to flee from the place and sat on the police vehicle have been disclosed from him first time before the Court. But he has not been confronted with his police statement as to whether he actually made such statement or not. Though he admitted that he made such statement before the Court first time but in absence of any confrontation with his police statement his evidence cannot be discarded on that ground alone. 20 33.From the evidence of these witnesses it also came that when the PW-3 made a telephonic call to him deceased answered that he was with the appellant and his conduct is also relevant that when the persons inquired him about the deceased he tried to flee and sat on the police vehicle. 34.The further evidence which connects appellant with the offence in question the call detail report Ex.P/44 and Ex.P/55 and the certificate under Section 65-B of the Indian Evidence Act Ex.P/56 which has been proved by Sanjeev Nema PW-25, from his evidence it has been proved which reflects in the CDR Ex.P/55 that on the date of incident at about 08:00 a.m. there a conversation between mobile No. 9009117065 which was the mobile number of deceased Shailendra and mobile No. 6261306369 which was the mobile number of the appellant Yaadram Banjare. Although from the mobile call details what conversation they have made could not be proved in absence of any transcript but they had a talk with each other and closely related at the time of incident can be considered through their call detail report Ex.P/55. Though, it cannot take place of proof but it can be considered, an additional link in the chain of circumstance to connect the appellant with the offence in question. 35.Further from the FSL report Ex.P/45 the blood has been found on the iron rod seized from the appellant article-E his clothes full shirt article-F, full pant article-G and chappal article-H and there is no explanation from the appellant as to how blood has been found in his clothes as well as iron rod seized from him. 36.Close scrutiny of the evidence makes it clear that it is the appellant Yaadram Banjare who was with the deceased at the relevant point of time and immediately thereafter his dead body was found in injured condition who died due to homicidal death having injuries on his head. The iron rod seized from the appellant Yaadram Banjare which was the weapon of offence in which blood has been found. In the clothes also of the appellant blood was 21 found for which there is no explanation. He has taken the evidence the deceased met with an accident died due to said accident but from the evidence available on record and the nature of injuries and from the evidence of the doctor who conducted the post-mortem his death was found to be homicidal and it was not accidental. Had he been met with an accident, his motorcycle was not found parked on the side of road but it would be found on lying on the road in accidental condition. There was a motive to commit murder that he was having illicit relation with that appellant Ranu Markande and to eliminate the deceased he committed his murder. Though it has been alleged that the appellant Ranu Markande had conspired with the appellant Yaadram Banjare to commit murder of the deceased. But there is no sufficient evidence in the evidence that they have conspired or there was any prior meeting of mind for the commission of the offence. There is no sufficient evidence against the appellant Ranu Markande that she conspired with the co-accused Yaadram Banjare. Though there is evidence that she having illicit relation with the appellant Yaadram Banjare, but that itself is not sufficient to hold that she conspired with the appellant Yaadram Banjare to commit murder of the deceased. 37.In the result, we find force in the argument advanced by learned counsel appearing for the appellant Ranu Markande that there was a lack of cogent and clinching evidence to hold guilty for the offence of Section 120-B of IPC and her appeal is allowed. She has been acquitted from the alleged offence. Her conviction for the offence under Section 120-B of IPC is set aside. The appellant Ranu Markande is reported to be on bail. Her bail bond shall continue for further period of 06 months as provided under Section 481 of BNSS, 2023. 38.So far as the appeal filed by the Yaadram Banjare is concerned, there is no sufficient evidence with respect to the conspiracy between the appellant Yaadram Banjare and Ranu Markande to commit murder of the deceased, 22 the appellant Yaadram Banjare is acquitted from the offence under Section 120-B of IPC. However, there are sufficient evidence on record that he committed the murder of the deceased and tried to conceal the evidence by giving the effect of his accidental death. Therefore, the conviction of the appellant for the offence under Section 302 and 201 of IPC is hereby affirmed. He shall undergone the entire sentences awarded by the learned trial Court for the offence under Section 302 and 201 of IPC. 39.The appellant Yaadram Banjare is reported to be in jail since 02.07.2018. He shall serve the entire sentence as awarded by the learned trial Court for the offence under Section 302 and 201 of IPC. 40.Registry is directed to sent a copy of this judgment to the concerned Superintendent of jail where the appellant Jadram Banjare who has filed CRA No. 314/2021 is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 41. With the aforesaid modification/observation the appeal filed by the appellant Yaadram Banjare is partly allowed. 42.The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.04.15 10:32:25 +0530