1 2025:CGHC:47-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 962 of 2024 1 - Digeshwar @ Golu Yadav Son Of Dau Lal Yadav Aged About 28 Years Resident Of Village Sarkhi, Police Station Abhanpur, District - Raipur, Chhattisgarh. ... Appellant(s) versus 1 - State of Chhattisgarh Through - Station House Officer, Police Station Abhanpur, District - Raipur, Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Sudhir Kumar Sahu, Advocate For Respondent(s) : Mr. Hari Om Rai, Panel Lawyer Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board Per Ramesh Sinha, Chief Justice 02/01/2025 1. The present criminal appeal has been filed under Section 14(A)(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (in short 'SC/ST' Act) against the impugned judgment of conviction and sentence dated 10.05.2024 passed by Learned Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Raipur, in Special Criminal Case No. 04/2024 whereby the appellant has 2 been convicted for the offence of Section 302 of I.P.C. and Sentenced for R.I. for life with fine of Rs. 1000/-, in default of payment of fine additional RI for one month. 2. Brief facts of the case are that on 31.10.2023 at about 23:50 hours the informant Ramsharan Khelwar had given the hospital memo to the police that the deceased Nagesh Dhruw has died on 31.10.2023. Based on the hospital memo the merg intimation Ex.-P/16 was recorded by the police, inquest Ex.- P/3 was prepared in presence of the witnesses. At the time of inquest the witnesses have disclosed that the deceased have died due to assault made by the appellant by iron rod, therefore, the dead body was sent for its port- mortem to Community Health Centre, Abhanpur, District Raipur where PW- 12 Dr. Akash Pariyal have conducted the post-mortem of the dead body and found number of abrasion and contusion on the various parts of the body and opined that the cause of death his head injury (intracromial haemorrhage, SAH) and its complications leading to cardioreopiratory arrest. Final opinion will be given after FSL report. The post-mortem is report is Ex.-P/17 given by the doctor PW-12 Akash Pariyal. PW-12 Akash Pariyal have also given short pm report Ex.-P/18, in which he opined that on the basis of opinion given, death can be homicidal in nature. 3. The spot map Ex.-P/12 and Ex.-P/23 was prepared by the police and P-19 was prepared by the Patwari. The FIR Ex.-P/22 has been registered against the appellant for the offence under Section 302 of I.P.C. Since the witnesses have disclosed that the appellant has assaulted the deceased and F.I.R has been registered naming the present appellant, he was arrested on 02.11.2023. His memorandum statement Ex.-P/4 was recorded and based on his memorandum statement, iron rod was seized vide seizure memo Ex.- P/5. During the investigation the viscera of the deceased and his clothes have also been seized vide seizure memo Ex.-P/7. The seized iron rod was sent to CHC, Abhanpur for its query which has been given by the PW-12 Dr. 3 Akash Pariyal vide query Ex.-P/19-A, in which he opined that the injuries caused to the deceased can be caused by this type of weapon, injury caused by this type of weapon can lead to the death of the deceased. The viscera of the deceased, clothes of the deceased and iron rod seized from the appellant were sent for chemical examination to the FSL, Raipur. 4. Statement of the witnesses under Section 161 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet has been filed against the appellant for the offence under Section 302 and 294 of I.P.C. and Section 3 (2)(v) of the SC/ST Act. 5. The learned trial Court has framed charge against the appellant for the offence under Section 302 of I.P.C. and Section 3 (2)(v) of SC/ST Act. The appellant denied the charge and claimed trial. 6. In order to prove the charge against the appellant, the prosecution has examined as many as 18 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, plead innocence and have submitted that he has been falsely implicated in the offence. 7. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in earlier part of this judgment. Hence this appeal. 8. Learned counsel for the appellant would submits that the appellant is innocent and has been falsely implicated in the offence. The prosecution has failed to prove its case beyond reasonable doubt against the appellant as he is the perpetrator of the crime. He would further submits that the witnesses who are projected by the prosecution as eye-witnesses to the incident have not supported the prosecution case and except for the memorandum statement of the appellant no other evidence available in the case against him. Even no FSL report have been produced by the prosecution with respect to the alleged recovery of iron rod from him to connect the appellant 4 with the offence in question. Only on the basis of the fact that the appellant was working under the deceased who was contractor and some dispute with respect to the wages, he has been made accused for commission of the offence of murder of the deceased. The case of the prosecution based on circumstantial evidence and the chain of circumstances has not been completed to hold the appellant guilty for the capital offence. The memorandum statement is not admissible piece of evidence except its discovery part and even if it is found that iron rod was recovered from the petitioner there is no report that the blood was found in it or it is connected with the offence of murder of the deceased, therefore, in absence of any cogent and clinching evidence, the appellant is entitled for acquittal. 9. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and have submitted that there is no sufficient evidence available on record against the appellant which connected him from the alleged offence. The deceased was contractor and the appellant was working under him. The appellant suspected that the deceased had relation with his wife and used to talk her through mobile phone. On the basis of memorandum statement of the appellant the iron rod was recovered and the witnesses have duly been proved the memorandum statement and recovery of iron rod. From the query report Ex.-P/19-A, the Dr. PW-12 Akash Pariyal clearly opined that from the said iron rod the injuries can be inflicted on the deceased and death may be caused. He would further submits that the eye-witnesses to the incident have not supported the prosecution case but the evidence come on record and also the conduct of the appellant clearly spells about his guilt and after meticulously examining the evidence available on record, the learned trial Court has convicted and sentenced the appellant which is strictly in accordance with law and the appeal filed by the appellant is liable to be dismissed. 10. We have heard learned counsel for the parties and perused the material 5 available on record. 11. The first point for determination in the case would be whether the death of the deceased is homicidal or not? 12. From the evidence of PW-4 Keshav Kamal Dhruw, who is the witness of inquest, it appears that he saw the injuries on the dead body of the deceased at the time of inquest which has been noticed in inquest Ex.-P/3. 13. PW-7 Eklavya Kumar Dhruw, is also the witnesses of the inquest Ex.-P/3 he too have seen the injuries on the dead body. He is the younger brother of the deceased and stated that the deceased has been murdered. 14. PW-11 Geshram Koshriya, who is the Head Constable Police Station, Abhanpur have stated in his evidence that he received the hospital memo on 31.10.2023 and recorded the merg intimation with respect to the unnatural death of the deceased Nagesh Dhruw which is Ex.-P/16. 15. PW-15 Sheel Aditya Singh, who is the Inspector of Police was posted at Police Station, Abhanpur he conducted the investigation in the matter he prepared the inquest memo Ex.-P/3 in presence of the witnesses and sent the dead body for its post-mortem. 16. PW-12 Dr. Akash Pariyal, have conducted the post-mortem of the dead body and found abrasion wound of approximate size 3cm x 0.4 cm over the left side of neck below & behind left ear seen. Swelling present in surrounding region. Contusion present in the posterior lateral aspect of left side of neck region & occipital region of head of approximate size 7cm x 7cm. On disecting hematoma & Blood clott present in the subcutanioul tissue & over the sterno clevicunomustoid muscle of left side, on internal examination subarchnoid hemorrhage & intraceribral hemorrhage present in the occipital region of brain. The doctor has opined that the cause of death is head injury (intracromial haemorrhage, SAH) and its complications leading to cardioreopiratory arrest and inquiry report Ex.-P/18. He opined that the injury can be homicidal in nature. Based on the aforesaid evidence, the learned 6 trial Court has comes to the conclusion that the death of the deceased was homicidal and this Court does not find any perversity in the said finding recorded by the learned trial Court. 17. The second question in the case would be as to who caused the injuries to the deceased. The eye-witnesses to the incident PW-2 Yashwant Druw, PW- 3 Jaggu Devdas, PW-9 Pooran Kumar Dhruw, PW-10 Vinod Dhruw, have turned hostile and have not supported the prosecution case that they have seen the incident committing murder of the deceased by the appellant. In absence of any eye-witnesses to the incident the case of the prosecution rests on circumstantial evidence. The circumstances appears in the present case against the appellant is (i) motive to commit murder (ii) Based on his memorandum statement the weapon of offence i.e. iron rod has been seized (iii) In the query report Ex.-P/19-A the doctor has opined the injuries found on the body of the deceased could have caused by the said iron rod and death could be possible. 18. Before entering into the merits of the case, we would like to quote certain judgments with respect to the requirement to prove the guilt of the accused based on circumstantial evidence and some of them are given hereinbelow: 19. 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. (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 7 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....”. 20. 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 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 8 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.” 21. 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 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 9 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 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". 22. The Supreme Court in case of Madhu Vs. State of Kerala, 2012 (2) SCC 399 has held in paragraph 5 as under: “5. The care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to the benefit of doubt.” 23. In view of the aforesaid law laid down by Hon'ble Supreme Court in case of circumstantial evidence, we would examine the first point of motive to commit murder of the deceased. In the present case the prosecution has projected the motive that the deceased was the contractor and the appellant suspected that the deceased was used to talk with his wife by which the appellant unhappy with his behaviour. 24. From the evidence of PW-2 Yashwant Dhruw, it comes that on 31.10.2023 the deceased was talking to someone through his mobile phone during his talk, he heard the noise of abusing which was in high volume. When he came out from their room they saw the appellant was there. They did not know that the appellant was abusing the deceased or not. Similar is the evidence of PW-3 Jaggu Devdas and there is no evidence on record that the appellant was having any animosity with the deceased or suspected that he used to talk his wife. The fact of motive as alleged by the prosecution is come in the memorandum statement of the appellant that the deceased was used to talk 10 with his wife by which he annoyed. The said memorandum Ex.-P/4 was witnessed by Jaggu Devdas PW-3 and Yashwant Kumar PW-2 but they have not supported the said memorandum statement that the appellant has given that part of statement to the police. There is no sufficient evidence that the appellant was having any grudge against the deceased which can be taken as the motive to commit murder of the deceased. In the case of Niranjan Panja Vs. State of West Bengal reported in 2010(6)SCC 525 the Hon'ble Supreme Court has held that motive has an important role in a case based on circumstantial evidence. Therefore, in the present case, a link of motive is missing to complete the chain of circumstantial evidence and i.e. the deposition in the present case also the motive is abusing/nor proved which can be considered such missing link in circumcised evidence. 25. On the second point of memorandum and recovery of weapon of offence, the PW-2 Yashwant Dhruw and PW-3 Jaggu Devdas have denied that the appellant has given any memorandum statement in their presence and no seizure have been made on the instance of the appellant. The alleged recovery was said to have been made from high school ground near boundary wall which is an open place. From the spot map Ex.-P/12 it appears that the place of incident is also near the school ground, therefore, alleged recovery of iron rod, if any, made from the appellant cannot be said to be recovery on his memorandum statement and cannot be said to be sufficient to connect the appellant with the alleged offence of murder of the deceased. There is no FSL report produced by the prosecution in the case as to whether any human blood was found in the said iron rod allegedly seized from the appellant or not. 26. In the matter of Abdul Sattar Vs. Union Territory, Chandigarh, 1986 CrLJ 1072 the Hon'ble Supreme Court has observed in para 4 of its judgment as under: “…….the pant and the shirt had been removed from the body and hidden 11 there. Recovery is said to have been made more than three weeks after the occurrence. Admittedly, the place from where these two things are said to have been recovered was a public place and appears to have been very much accessible to people of the locality. It is difficult to believe that these two had been so concealed that they were not noticed and were available to be collected from the very place such a long time after.” 27. Although the PW-12 Dr. Akash Pariyal, have opined in the query report Ex.- P/19-A that death could have been caused by the said iron rod but in absence of any evidence that it is the appellant who caused injuries to the deceased and further from the seizure of iron rod from an open place, it cannot be said that it is the appellant who caused injuries to the deceased by the iron rod by which the deceased died. There is no evidence on record or there is no connecting link available on record which connect the appellant with the offence in question. There are number of missing link which absolved the appellant from the alleged offence. Except from memorandum statement and recovery of iron rod, there is no other clinching evidence on which the conviction of the appellant can be sustained. In view of the evidence available on record the said memorandum Ex.-P/4 and recovery of iron rod cannot be said to be proved in accordance with law and sufficient to hold guilty of the appellant for the alleged offence. 28. It is settled principles of law that prosecution has Burden to prove its case beyond reasonable doubt and where two views are possible, arising based on the same evidence, the view which is favoruable to the accused should be taken into consideration and the accused should be given benefit of doubt. In the matter of Digambar Vaishnav (Supra) it has been held as under: “19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808]. 29. Thus, in view of the foregoing, we are of the considered opinion that there are various components which are missing from the chain of circumstantial evidence. By giving the benefit of doubt to the appellant, the appeal filed by 12 him is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant is acquitted from the alleged offence of Section 302 of I.P.C. The appellant is reported to be in jail since 21.11.2023. he be released forthwith if not required in any other case. 30. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Digeshwar @ Golu Yadav is directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 31. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok