1 CRA No. 837 of 2019 2025:CGHC:5565-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 837 of 2019 (Ari sing out of judgment dated 26.04.2019 passed in Sessions Trial No.23/2018 by the Sessions Judge, Uttar Bastar Kanker, Chhattisgarh. ) 1. Ghanshyam Sahu S/o Dhelu @ Asharam Sahu, aged about 57 years; 2. Gopal Sahu S/o Ghashyam Sahu, aged about 38 years; Both are R/o Village - Sarona, Chandani Chowk Para, Out Post - Dudhwa, Police Station- Narharpur, District - North Bastar Kanker, Chhattisgarh. 3. Suresh Netam S/o Late Premsingh Netam, aged about 46 years, R/o Sarona, Bazarpara, Outpost - Dudhwa, Police Station - Narharpur, District - North Bastar Kanker, Chhattisgarh. ... Appellants versus  State of Chhattisgarh through Outpost – Dudhwa, Police Station – Narharpur, District – North Bastar Kanker, Chhattisgarh. ... Respondent For Appellants :- Mr. Sanjeev Kumar Sahu, Advocate. For State-Respondent :- Mr. Vivek Mishra & Mr. Pankaj Singh, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (30.01.2025) ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.02.05 15:41:32 +0530 2 CRA No. 837 of 2019 Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellants-accused persons namely Ghanshyam Sahu (A-1), Gopal Sahu (A-2) and Suresh Netam (A-3), is to the legality, validity and correctness of the judgment dated 26.04.2019 passed by the Sessions Judge, Uttar Bastar, Kanker, Chhattisgarh, in Sessions Trial No. 23/2018 by which the appellants herein have been convicted for offence under Section 302 read with Section 34 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of 1,000/- each; in ₹ default of payment of fine amount to undergo additional rigorous imprisonment for six months and also convicted for offence under Section 201 read with Section 34 of the IPC and sentenced thereunder to suffer rigorous imprisonment for four years with fine of 1,000/- each in ₹ default of payment of fine amount to undergo additional rigorous imprisonment for six months. Both the senteces are directed to run concurrently. Prosecution story:- 2. On 17.09.2018 at about 8:30 pm, at village Sarona Bazar, Chowki Dudhwa, the appellants in furtherance of their common intention assaulted Ramesh Baghel, with the help 3 CRA No. 837 of 2019 of axe by which he suffered grievous injuries and died and to screen themselves from the legal punishment they hide the axe and washed the blodd stained clothes of the deceased and thereby committed the aforesaid offence. 3. Further case of the prosecution is that on 17.09.2018 at about 10:15 pm, police chowki Dudhwa in-charge received a phone call that at village Sarona an unknown person murdered Ramesh Baghel by sharp edged weapon pursuant to which police reached to the spot. On the report of Pardeshi Baghel (PW-1) unnumbered Dehati Nalsi and unnumbered dehati merg intimation were registered vide Exs. P/1 & P/3, respectively, against the unknown person. Merg intimation and zero FIR were registered vide Exs.P/2 & P/33 against the unknown person, respectively. Numbered FIR was registered vide Ex.P/45. Crime details form and spot map were prepared vide Exs.P/4 & P/9, respectively. Inquest proceedings (Ex.P/6) were conducted and the dead body of the deceased was sent for the postmortem. As per postmortem report (Ex.P/11) proved by Dr. Manish Netam (PW-12) cause of death was haemorrhagic shock, syncope, head injury and nature was homicidal. Pursuant to memorandum statement of A-1 (Ex.P/17), weapon of offence i.e. axe and clothes were 4 CRA No. 837 of 2019 seized vide Exs.P/20 & P/21, respectively; from the memorandum statement of A-2 (Ex.P/19), clothes were seized vide Ex.P/24 and pursuant to memorandum statement of A-3 (Ex.P/18), bucket and clothes were seized vide Exs.P/22 & P/23, respectively. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/42) on the weapon of offence i.e. axe and the clothes of A-1, which were seized pursuant to memorandum statement of A-1, human blood was found; on the clothes of A-2 & A-3 human blood was found, which were seized pursuant to their memorandum statements. 4. After due investigation, appellants were charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence. 5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 16 witnesses and exhibited 45 documents, whereas, the appellants in defence have not examined any witness, however, exhibited 2 documents. Statement of the 5 CRA No. 837 of 2019 appellants were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence brought on record, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 7. Mr. Sanjeev Kumar Sahu, learned counsel for the appellants, would submit that the trial Court is absolutely unjustified in convicting the appellants for the offence in question. He would also submit that the case of the prosecution is based on the surmises and conjectures and there is no direct evindence has been brought on record by the prosecution against the appellants, therefore, they are entitled for acquittal on the basis of benefit of doubt and the instant appeal deserves to be allowed. 8. On the other hand, Mr. Vivek Mishra & Mr. Pankaj Singh, learned State counsel, would support the impugned 6 CRA No. 837 of 2019 judgment and submit that prosecution has been able to bring home the offence beyond reasonable doub and, therefore, the trial Court has rightly convicted the appellants for the aforesaid offence. Thus, the instant appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely. Discussion & Analysis :- 10. 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 (Ex.P/11) proved by Dr. Manish Netam (PW-12), 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. 11. Now, the question for consideration would be whether the appellants have assaulted the deceased? 7 CRA No. 837 of 2019 12. 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 v. State of Maharashtra 1 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. 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, 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 8 CRA No. 837 of 2019 (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.” 13. In order to base the conviction of the appellants, two incriminating circumstances have been found proved by the trial Court. First:- Dheekesh Baghel (PW-2), son of the deceased, had seen the appellants absconding from the spot after leaving the deceased in a sitting position against the wall. Second:- Pursuant to memorandum statement of A-1 weapon of offence i.e. axe and clothes were seized and pursuant the memorandum statements of A-2 & A-3 their clothes were seized and on which the in FSL report (Ex.P/42) human blood was found. 14. First incriminating circumstnace :- The trial Court has found proved that Dheekesh Baghel (PW-2), son of the deceased, had seen the appellants absconding from the spot after leaving the deceased in a sitting position against the wall. However, it is appropriate to mention here that as per the statement of Deekesh Baghel (PW-2), he had immeditately informed about the incident to his grand 9 CRA No. 837 of 2019 father Pardeshi Baghel (PW-1), grand mother Savitri Baghel (PW-4) and Sanjay Kumar Baghel (PW-7) and his grand father Pardeshi Baghel (PW-1) had reported the matter to the police vide Ex.P/3 (dehati merg intimation) immediately after the incident on 17.09.2018 at about 10:30 pm i.e. after two hours of the incident, but in Ex.P/3, it has not been mentioned that PW-2 had seen the appellants absconding from the spot after leaving the deceased in a sitting position against the wall, otherwise it could have been mentioned in Ex.P/3. Furthermore, in dehati Nalsi (Ex.P/1) as well as in merg intimation (Ex.P/2) lodged by Pardeshi Baghel (PW-1) the said fact that PW-2 had seen the appellants while absconding, has not been mentioned, even in the said reports (Ex.P/1, P/2 & P/3) it has been stated by PW-1 that Deekesh Baghel (PW-2) had informed him (PW-1) that unknown person had murdered his father Ramesh Baghel. Moreover, the incident took place on 17.09.2018 and statement under Section 161 of the CrPC of Deekesh (PW-2) was recorded on 18.09.2018 vide Ex.D/1 with a delay of on day and by that time he had the opportunity to improve his version that he had seen the appellants absconding from the spot. As such, in view of the above contradictions the incriminating circumstance 10 CRA No. 837 of 2019 that Deekesh Baghel (PW-2), son of the deceased, had seen the appellants absconding from the spot cannot be accepted as an incriminating circumstance to base the conviction of the appellants that too for offence under Section 302 of the IPC. Hence, we do not affirm the said finding of the trial Court in shape of incriminating circumstance to base the conviction of the appellants. 15. Second incriminating circumstance :- The trial Court has found that pursuant to memorandum statement of the A-1 Ghanshyam Sahu (Ex.P/17), weapon of offence i.e. axe & clothes of the appellant were seized vide Exs.P/20 & P/21, respectively; pursunat to memorandum statement of A-2 Gopal Sahu (Ex.P/19), his clothes were seized vide Ex.P/24 and pursuant to memorandum statement of A-3 Suresh Netam (Ex.P/18) bucket and his clothes were seized vide Ex.P/22 & P/23, respectively. In corroboration, the trial Court has also found proved that in the chemical analysis report of the seized articles [FSL report (Ex.P/42)] human blood was found on the axe and the clothes of the appellants which were seized pursuant to their memorandum statements. However, a careful perusal of the FSL report (Ex.P/42) would show that the axe and the clothes of the appellants were seized on 20.09.2018 and the 11 CRA No. 837 of 2019 same was received by the forensic laboratory on 12.10.2018 and there is no explanation given by the prosecution that the said seized articles were kept in a safe custody, between the date on which articles were seized i.e. 20.09.2018 and the date on which articles were received i.e. 12.10.2018, therefore, in absence of evidence that the said articles were kept in safe custody, chances of fabrication and manipulation cannot be ruled out. Even otherwise, it is well settled law that the disclosure alone would not automatically lead to conclusion that offence was also committed by the accused unless it is proved that the weapon of offence was used in the commission of the offence and, therefore, the burden lies on prosecution to establish a close link between the discovery of material object and its use in commission of offence, which the prosecution has failed to established. [See:- Mustkeem alias Sirajudeen v. State of Rajasthan 3 ]. As such, recovery of blood stained articles are of no use to the prosecution in absence of any corroborative piece of evidence connecting the weapon with the crime alleged to have been committed. 3 (2011) 11 SCC 724 12 CRA No. 837 of 2019 Conclusion:- 16. In view of the aforesaid discussion and analysis, except the nature of death of the deceased homicidal in nature, the prosecution has failed to prove the other incriminating circumstances to base the conviction of the appellant as the statement of Deekesh Baghel (PW-2), son of the deceased, is not found to be reliable as the fact that he had informed his grand father Pardeshi Baghel (PW-1) that he had seen the appellants absconding after leaving his father in sitting position against the wall is not mentioned in the dehati merg intimation (Ex.P/3) which is immediately reported by Pardeshi Baghel (PW-1) on the date of incident i.e. 17.09.2018 at about 10:30 pm immediately after two hours of the incident and even otherwise, in the dehati nalsi, merg intimation and dehati merg intimation (Exs.P/1, P/2 & P/3, respectively) reported by Pardeshi Baghel (PW-1) it has been mentioned that he (PW-1) has been informed by Deekesh Baghel (PW-2) that unknown person has murdered Ramesh Baghel. Further, recovery of blood stained articles are of no use to the prosecution in absence of any corroborative piece of evidence connecting the weapon with the crime alleged to have been committed in light of the decision of the Supreme Court in the matter of 13 CRA No. 837 of 2019 Mustkeem alias Sirajudeen (supra). As such, we are of the considered opinion that the the conviction of the appellants namely Ghanshyam Sahu (A-1), Gopal Sahu (A-2) and Suresh Netam (A-3) for offences under Sections 302/34 and 201/34 of the IPC as well as their respective sentences are hereby set aside and they are acquitted of the said charges on the basis of principles of benefit of doubt. They are reported to be in jail since 20.09.2018. Accordingly, the appellants be released from jail forthwith, if not required any other matter. 17. This criminal appeal is allowed. 18. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where they are lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit