(Cr.A.No.943/2018) 2025:CGHC:22617-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 943 of 2018 {Arising out of judgment dated 20-4-2018 in Sessions Trial No.92/2016 of the 8th Additional Sessions Judge, Durg} Bhanu Kumar Verma, S/o Bharatlal Verma, Aged about 19 years, R/o Nutan Chowk, Near Gatawa Pond, Bhilai-3, Police Station Bhilai-3, District Durg, Chhattisgarh (In Jail) ... Appellant versus State of Chhattisgarh, Through Station House Officer, Police Station Bhilai-3, District Durg, Chhattisgarh ... Respondent For Appellant : Mr. Hemant Kumar Agrawal, Advocate. For Respondent : Mr. H.A.P.S. Bhatia, Panel Lawyer. Amicus Curiae : Mr. Rishi Rahul Soni, Advocate. Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Deepak Kumar Tiwari, JJ. Judgment On Board (09/06/2025) Sanjay K. Agrawal, J. 1.This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 20-4-2018 SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.06.12 18:44:54 +0530 (Cr.A.No.943/2018) passed by the 8th Additional Sessions Judge, Durg, in Sessions Trial No.92/2016, by which the sole appellant herein has been convicted under Section 302 of the IPC and sentenced to undergo imprisonment for life & pay fine of 500/-, in ₹ default, additional rigorous imprisonment for three months. 2.Case of the prosecution, in short, is that on 18- 2-2016, at about 4.30 p.m., in front of the house of Sushma Shrivastava at Ekta Nagar, Police Station Bhilai-3, District Durg, the appellant assaulted Surekha Nirmalkar on her stomach by knife by which she suffered grievous injuries and died, and thereby committed the offence. The incident was witnessed by Deep Kumar @ Chiku (PW- 4) & Dhanu @ Bhanu (PW-8) and immediately, Santosh Kumar Nirmalkar (PW-1) – husband of the deceased, reported the matter to the police vide merg intimation Ex.P-1 and FIR was lodged vide Ex.P-2. Inquest over the dead body of the deceased was conducted vide Ex.P-5. Spot map was prepared by the Investigating Officer vide Ex.P-3 (Crime Details Form). Patwari also prepared spot (Cr.A.No.943/2018) map vide Ex.P-7. Dead body of the deceased was sent for autopsy to Government District Hospital, Durg vide Ex.P-23. Autopsy was conducted by Dr. N.C. Rao & Dr. A.K. Nagdeve (PW-13) vide autopsy report Ex.P-24 in which cause of death was stated to be severe injury in body and heart injury. Memorandum of the accused was recorded vide Ex.P- 9 pursuant to which knife was seized from him vide Ex.P-10. Seized articles were sent for chemical examination to the FSL, Raipur from where report Ex.P-21 was received according to which blood was found on knife – Art. C, T-shirt – Art. D, full pant – Art. E, and clothes of the deceased – Arts. F1, F-2, F-3, F-4 & F-5, whereas human blood was found on T-shirt – Art. D, full pant – Art. E and clothes of the deceased – Arts. F1, F-2, F-3, F-4 & F-5, and blood group of ‘A’ was found on T-shirt – Art. D. 3.Statements of witnesses were recorded under Section 161 of the CrPC and after usual investigation, the appellant was charge-sheeted for offence under Section 302 of the IPC and the case was committed to the Court of Session, Durg (Cr.A.No.943/2018) from where the learned 8th Additional Sessions Judge, Durg received the case on transfer for trial and for hearing and disposal in accordance with law where the trial was conducted. 4.The prosecution, in order to prove the offence against the appellant, examined as many as 14 witnesses and brought on record 24 documents Exs.P-1 to P-24. The defence has examined one witness Shivji Singh (DW-1) and brought on record two documents Exs.D-1 & D-2 i.e. the statements of Santosh Nirmalkar and Shishupal Yadav recorded under Section 161 of the CrPC. The accused / appellant was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him and pleaded innocence and false implication. 5.The trial Court after appreciating oral and documentary evidence on record, proceeded to convict the appellant herein for offence under Section 302 of the IPC, against which he has preferred this appeal. 6.Mr. Hemant Kumar Agrawal, learned counsel appearing for the appellant, would submit that (Cr.A.No.943/2018) Deep Kumar @ Chiku (PW-4) & Dhanu @ Bhanu (PW-8) are not reliable eyewitnesses and therefore reliance cannot not be placed upon their evidence. Similarly, Shishupal Yadav (PW-2) & Lachchhu @ Laxmi Yadav (PW-3) are also not reliable witnesses. As such, conviction of the appellant cannot be placed upon the evidence of these witnesses who are not reliable witnesses and therefore the appellant is entitled for acquittal. 7.Mr. H.A.P.S. Bhatia, learned Panel Lawyer appearing for the State/respondent, would support the impugned judgment and submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and the impugned judgment is well merited. He would further submit that the two witnesses Deep Kumar @ Chiku (PW-4) & Dhanu @ Bhanu (PW-8) are reliable eyewitnesses as they have seen the incident and the matter has duly been promptly reported by Santosh Kumar Nirmalkar (PW-1) – husband of the deceased. Therefore, the appeal deserves to be dismissed. Page 6 of 20 (Cr.A.No.943/2018) 8.Mr. Rishi Rahul Soni, learned amicus curiae, would submit that the spot map Ex.P-7 prepared and proved by the Patwari namely Chandra Shekhar Sahu (PW-5) and the spot map (Crime Details Form) Ex.P-3 prepared by the Investigating Officer clearly show that the witnesses could not have seen the incident from where it is alleged to have taken place and the witnesses were not shown in the spot maps Exs.P-7 & P-3 from where they were standing and have seen the incident. He would rely upon the decisions of the Supreme Court in the matters of Shingara Singh v. State of Haryana and another1, Baldev Singh and another v. State of M.P.2, Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re v. v. State of Andhra Pradesh and others3 and Pratap Singh and another v. State of M.P.4 to buttress his submission. As such, the appellant is entitled for acquittal and the appeal deserves to be allowed. 1 (2003) 12 SCC 758 2 (2003) 9 SCC 45 3 (2021) 10 SCC 598 4 (2005) 13 SCC 624 (Cr.A.No.943/2018) 9.We have heard learned counsel for the parties and considered their rival submissions made herein- above and also went through the record with utmost circumspection. 10. The first question whether the death of the deceased was homicidal in nature has been answered by the trial Court in affirmative considering the postmortem report Ex.P-24, which has been proved by Dr. A.K. Nagdeve (PW-13) in which cause of death was stated to be severe injury in body and heart injury and death was homicidal in nature. The finding recorded by the trial Court that death of deceased Surekha Nirmalkar was homicidal in nature, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11. The next question is, whether the appellant is the author of the crime to which the trial Court has held that Deep Kumar @ Chiku (PW-4), who is a chance witness aged about 15 years is reliable eyewitness and furthermore, Dhanu @ Bhanu (PW-8) – son of Santosh Nirmalkar (PW-1) & the deceased, (Cr.A.No.943/2018) who is also aged about 10 years, is reliable witness. Shishupal Yadav (PW-2) & Lachchhu @ Laxmi Yadav (PW-3) have seen the appellant returning from the place of incident by holding knife on his hand. As such, basically, conviction rests on the testimonies of Deep Kumar @ Chiku (PW-4) – chance witness aged about 15 years and Dhanu @ Bhanu (PW-8), aged about 10 years who is son of the deceased & the complainant (PW-1), who have been relied upon by the prosecution. 12. The date of incident is 18-2-2016. Statements of Deep Kumar @ Chiku (PW-4) & Dhanu @ Bhanu (PW-8) under Section 161 of the CrPC have been recorded on 24-2-2016, though there is no cross- examination by the appellant in this behalf for delay in recording statements under Section 161, however, a careful perusal of the statement would show that though the incident was witnessed by Deep Kumar @ Chiku (PW-4), but he did not report the matter to anyone including the police and when his statement was recorded, he disclosed that he has witnessed the incident and his name (Cr.A.No.943/2018) also does not find place in merg intimation Ex.P- 1 and FIR Ex.P-2. However, the place of incident is admittedly, near Pani Tanki in front of the house of Sushma Shrivastava and Deep Kumar (PW-4) was admittedly near Pani Tanki, Bali Maidan, the place shown as ‘E’ in spot map Ex.P-3 (Crime Details Form) proved by complainant Santosh Kumar Nirmalkar (PW-1), however, it was not prepared at the instance of two witnesses either Deep Kumar @ Chiku (PW-4) or Dhanu @ Bhanu (PW-8). Spot map (Ex.P-7) has also been prepared by Patwari Chandra Shekhar Sahu (PW-5), however, he has stated before the court that he has not shown Pani Tanki in the map Ex.P-7 prepared by him i.e. the place from where witness Deep Kumar (PW-4) has seen the incident. In para 5, he has clearly admitted that he has not mentioned in Ex.P-7 the distance from Pani Tanki to the place of incident as to how much meters or feet. He has further stated that Pani Tanki and Sulabh Sauchalay are located at about 200 meters distance from the place of incident and from Pani Tanki, the place of incident cannot be seen, as there is a turning in between. Though there are two witnesses (Cr.A.No.943/2018) according to the prosecution i.e. Deep Kumar @ Chiku (PW-4) & Dhanu @ Bhanu (PW-8) as shown in the Crime Details Form Ex.P-3, but Patwari Chandra Shekhar Sahu (PW-5) who has prepared spot map Ex.P-7 has clearly stated that from Pani Tanki where the incident has allegedly taken place, Deep Kumar @ Chiku (PW-4) who was grazing cattle could not see the incident in front of the house of Sushma Shrivastava. Furthermore, the Patwari who has prepared spot map Ex.P-7 on 30-3- 2016 vide Ex.P-7 has not shown the place from where Deep Kumar @ Chiku (PW-4) has seen the incident of the appellant assaulting the deceased. 13. In Shingara Singh (supra), their Lordships of the Supreme Court have held that the omission to show essential feature in the site plan is a serious infirmity and observed in para 29 as under: “The evidence on record with regard to the existence of cots in the court-yard of Gurdeep Singh, the existence of a bicycle, as also about the existence of a ladder is rather unsatisfactory and creates a serious doubt as to whether the prosecution witnesses are telling the truth. The omission to show them in both the site plans cannot be attributed to a (Cr.A.No.943/2018) mere lapse on the part of the investigating agency. In fact so far as the site plans are concerned, the case of the prosecution is that they were prepared in the presence of PW 5 and another witness and on their pointing. However, PW 5 denied that the plans were prepared in his presence. The other witness was not examined.” 14. Similarly, in Baldev Singh (supra), it has been held by the Supreme Court that site plan is not a mere formality and it is essential feature to highlight the importance of the site plan and observed as under : “13. … The site plan prepared by Arvind Khare does not show the presence of cycles or the bushes although the site plan mentions the place wherefrom the two witnesses claim to have seen the incident.” 15. In Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re (supra), the Supreme Court has issued following guidelines regarding site plan: “3. SCENE MAHAZAR/ SPOT PANCHANAMA i. A site plan of the place of occurrence of an incident shall be appended by the Investigating Officer to the scene mahazar or spot panchnama. ii. The site plan shall be prepared by the Investigating Officer by hand, and shall disclose (Cr.A.No.943/2018) a. the place of occurrence, b. the place where the body (or bodies) was / were found, c. the place where material exhibits and/or weapons, d. blood stains and/or body fluids had fallen, e. the place where bullet shells, if any, were found or have caused impact, f. the source of light, if any and g. adjoining natural and man-made structures or features such as walls, pits, fences, trees/bushes, if any and h. elevation of structures and their location. iii. The preparation of this sketch by the Investigating Officer shall be followed by a scaled site plan prepared by police draftsman, if available, or such other authorized or nominated draftsman by the State Government, who shall prepare the scaled site plan after visiting the spot. iv. The relevant details in the mahazar or panchnama shall be marked and correlated in the said site plan.” 16. In Pratap Singh (supra), the Supreme Court has held that the investigating officer was duty- bound to show the places wherefrom the witnesses had witnessed the occurrence in the site plan prepared by him. Page 13 of 20 (Cr.A.No.943/2018) 17. Coming to the facts of the present case in light of the aforesaid decisions of the Supreme court, it is quite vivid that firstly, as per Ex.P-3 Crime Details Form proved by Santosh Kumar Nirmalkar (PW-1), from point E – the place where witness Deep Kumar @ Chiku (PW-4) was grazing cattle, PW-4 cannot see the incident happened at place A in front of the house of Sushma Shrivastava and furthermore, Patwari Chandra Shekhar Sahu (PW-5) in the sit plan Ex.P-7 prepared by him, did not identify the place from where PW-4 has seen the incident. For the aforesaid reason, Deep Kumar @ Chiku (PW-4) cannot be said to be the eyewitness and reliance cannot be placed upon his evidence to base the conviction of the appellant herein. 18. Similarly, Dhanu @ Bhanu (PW-8) though is an eyewitness following his mother i.e. the deceased herein, but his statement under Section 161 of the CrPC was recorded after six days of the incident on 24-2-2016, however, he has shown different place of incident, as Pani Tanki was the place from where Deep Kumar @ Chiku (PW-4) (Cr.A.No.943/2018) was grazing the cattle and from where he has seen the incident which has admittedly taken place in front of the house of Sushma Shrivastava, but Pani Tanki has been shown to be the place of incident and Dhanu @ Bhanu (PW-8) has informed the matter to his father Santosh Kumar Nirmalkar (PW-1), however, PW-1 did not state this fact either in the merg intimation Ex.P-1 or in the FIR Ex.P-2 and also in his statement recorded under Section 161 of the CrPC on 19-2-2016, though it was informed by his son PW-8 that the present appellant has caused the death. It is an omission on the part of Santosh Kumar Nirmalkar (PW-1) and furthermore, as per spot maps Exs.P-3 & P-7, statements of the witnesses (PW-4 & PW-8) cannot be relied upon for the reason that there are material discrepancies in the Crime Details Form (Ex.P-3) wherein the incident is shown to have been taken place at spot A and according to Dhanu @ Bhanu (PW-8), the incident took place at spot E which is Bali Maidan/Pani Tanki, whereas according to the prosecution, the incident has taken place at place A in front of the house of Sushma Shrivastava. Even in Ex.P-3, the (Cr.A.No.943/2018) investigating officer did not specify from which place Dhanu @ Bhanu (PW-8) has seen the appellant assaulting his mother which is a serious infirmity on the part of the investigating officer not specifying the place from where PW-8 has seen the appellant assaulting his mother. As such, it would be unsafe to rely upon the evidence of Dhanu @ Bhanu (PW-8) as eyewitness for the reason that admittedly, he has informed the incident to his father Santosh Kumar Nirmalkar (PW-1), but his father has not mentioned this fact in his statement recorded under Section 161 of the CrPC vide Ex.D-1 and also not mentioned it in merg intimation Ex.P-1 & FIR Ex.P-2, which makes the statement of Dhanu @ Bhanu (PW-8) untrustworthy and unreliable. 19. Furthermore, the trial Court has relied upon the statements of Shishupal Yadav (PW-2) & Lachchhu @ Laxmi Yadav (PW-3) to hold that on cry being made by Deep Kumar @ Chiku (PW-4) & Dhanu @ Bhanu (PW- 8), they have seen the appellant absconding from the spot. Here there is one more discrepancy (Cr.A.No.943/2018) rather contradiction in the statements of these two witnesses to be pointed out i.e. PW-2 states that he has seen the appellant absconding from the spot after throwing the weapon of offence, whereas PW-4 states that he has seen the appellant absconding from the spot holding the weapon of offence. The above evidence is relevant under Section 6 of the Evidence Act, but in absence of corroboration from material particulars, only on the basis of res gestae witness, accused cannot be convicted. 20. However, the fact that appellant was seen with the weapon of offence knife at the place of occurrence would be admissible in evidence under Section 6 of the Evidence Act but it is settled position of law that such evidence which is admissible under Section 6 of the Evidence Act cannot be made the sole basis for conviction in absence of any corroboration. 21. At this stage, it would be relevant to notice the provision contained in Section 6 of the Evidence Act, which provides as under :- “6. Relevancy of facts forming part of same transaction – Facts which, though not in (Cr.A.No.943/2018) issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.” 22. In the matter of Sukhar v. State of Uttar Pradesh5, their Lordships of the Supreme Court have observed the following in paragraphs 10 and 11 qua Section 6 of the Evidence Act:- “10. Applying the ratio of the aforesaid two cases to the evidence of PW 2, we have no hesitation to come to the conclusion that his statement indicating that the injured told him that his nephew has fired at him, would become admissible under Section 6 of the Evidence Act. We are, therefore, unable to accept the first submission of Ms. Goswami, learned counsel appearing for the appellant. 11. The next question that arises for consideration is whether even if the statement becomes admissible, can the statement be held to be so reliable that a conviction under Section 307 can be based thereupon. PW2 in the cross-examination candidly admitted that Sukhar, the present appellant and he are inimical to each other since long before. It was also elicited in the cross-examination of the said witness that by the time he reached the scene of occurrence, more than 20 persons had gathered next to Nakkal and yet none of them has been examined by the prosecution to corroborate PW 2 as to what was told to him by the injured. The witness also stated in the cross- examination that Nakkal was naming the accused as his assailant in front of all those people who had gathered but it is not 5 AIR 1999 SC 3883 (Cr.A.No.943/2018) understood as to why the prosecution has chosen not to examine any one of them but to examine only PW 2 who was admittedly inimically disposed of towards the accused/ appellant. In this view of the matter, the evidence of PW 2 cannot be held to be of such an unimpeachable character on whose testimony alone, the conviction can be based without any corroboration. On the other hand, the witness being inimical to the accused and on whose testimony alone, the conviction can be based without any corroboration. On the other hand, the witness being inimical to the accused and on account of what has been elicited in his cross-examination, his evidence requires corroboration before being accepted. Admittedly there is not an iota of corroboration either from any oral evidence or from any other circumstance. In this view of the matter, we have no hesitation to come to the conclusion that the conviction of the appellant on the unreliable and shaky evidence of PW 2 without any corroboration, cannot be sustained. We accordingly set aside the conviction and sentence of appellant and acquit him of the charges levelled against him. The accused who is in jail should be released forthwith. The appeal is allowed accordingly.” 23.It is well settled that subsequent conduct of accused is relevant fact under Section 8 of the Evidence Act, however, that cannot be made the sole basis for conviction. The Supreme Court in the matter of Subramanya v. State of Karnataka6 has clearly held that conduct of an accused may be relevant under Section 8 of the Evidence Act, 6 (2023) 11 SCC 255 (Cr.A.No.943/2018) but cannot form basis for conviction that too for an offence of murder and observed in paragraph 89 as under: - “89. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.” 24. In view of the above, the trial Court is absolutely unjustified in convicting the appellant under Section 302 of the IPC. Consequently, conviction and sentences imposed upon the appellant under Section 302 of the IPC are set-aside and he is acquitted of the said charge on the basis of benefit of doubt. The appellant is in jail since 19-2-2016. He shall be released forthwith, if not required to be detained under any other process of law. 25. The appeal stands allowed. Page 20 of 20 (Cr.A.No.943/2018) 26. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence. 27. This Court appreciates the assistance rendered by Mr. Rishi Rahul Soni, Advocate, who appeared as amicus curiae and submitted written synopsis and made submissions and also assisted the Court. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) JUDGE JUDGE Soma