1 2025:CGHC:24874-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 106 of 2016 {Arising out of judgment dated 18.08.2015 passed in Sessions Trial No.71/2014 by the learned First Additional Sessions Judge, Raigarh} Suleman Kujur, S/o. Milan Sai Kujur, Aged About 30 Years, R/o. Village Bhalupakhna, Post Office Rairuma, Police Station Dharamjaigarh, District Raigarh, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Station House Officer, Police Station Dharamjaigarh, District Raigarh, Chhattisgarh. ... Respondent For Appellant : Mr. Shivendra Bhardwaj, Advocate For Respondent : Mr. Pankaj Singh, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (17.06.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.06.19 14:26:53 +0530 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 18.08.2015, passed by the learned First Additional Sessions Judge, Raigarh, in Sessions Trial No.71/2014, by which the learned Sessions Judge while acquitting the co-accused Ravinder Nishad, convicted the appellant herein for the offences under Section 302 of I.P.C. and Section 25 & 27 of the Arms Act and sentenced as under : CONVICTION SENTENCE U/s. 302 of IPC : Imprisonment for life and fine of Rs.5000/-, in default of payment of fine, 5 months’ additional rigorous imprisonment. U/s. 25 of Arms Act. : Rigorous imprisonment for 1 year and fine of Rs.1000/-, in default of payment of fine, 1 month’s additional rigorous imprisonment. U/s. 27 of Arms Act. : Rigorous imprisonment for 7 years and fine of Rs.5000/-, in default of payment of fine, 5 months’ additional rigorous imprisonment. All the sentences to run concurrently. 3 2. Case of the prosecution, in brief, is that, the appellant along- with acquitted co-accused Ravinder Nishad on 29.11.2013, at 6:30 P.M., at Gagimuda Rairumakhurd, Police Station Gharghoda, District Raigarh, made gun shot injury to Mircha Sai (now deceased), by which he suffered grievous injury and died. The appellant was found in possession of country made pistol without any license and thereby, the aforesaid offences have been committed. Fulmani Kujur (PW-1), wife of deceased, reported the matter to the police, pursuant to which, zero Merg Intimation was registered vide Ex.P-1 against unknown person and numbered Merg Intimation was registered vide Ex.P-32, zero FIR was registered vide Ex.P-2 against unknown person and numbered FIR was registered vide Ex.P-33, Inquest was conducted vide Ex.P-15 and dead body of deceased Mircha Sai was subjected to post-mortem, which was conducted by Dr. Uma Agrawal (PW-6), who proved the post-mortem report vide Ex.P-6, according to which, cause of death was stated to be syncope as a result of internal hemorrhage and death was homicidal in nature. Pursuant to memorandum statement of the appellant, the country made pistol was seized, which was subjected to armorer examination vide Ex.P-29 and the appellant/ accused 4 was also subjected to Test Identification Pared by K.L.Souri (PW-9) vide Ex.P-24 in which eye-witness Sanjeeta Kujur (PW-4) has identified the appellant as Suleman Kujur. After due investigation, the appellant was charge-sheeted for the aforesaid offences before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 13 witnesses and exhibited 34 documents and the appellant-accused in support of his defence has examined only one witness DW-1 and has exhibited the document Ex.D-1. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the aforesaid offences as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred. 5. Mr. Shivendra Bhardwaj, learned counsel for the appellant, would submit that the prosecution has not been able to bring 5 home the offences beyond reasonable doubt, therefore, the appellant is entitled for acquittal. He further submits that the appellant was not identified correctly as the police has not shown the accused person to Sanjeeta (PW-4), therefore, the Test Identification Parade is of no use to the prosecution. Furthermore, the witness to the memorandum and seizure Mohit Ram (PW-11) has not supported the case of the prosecution at all, therefore, the recovery is of no use to the prosecution and, as such, the appellant is entitled for acquittal and the appeal deserves to be allowed. 6. Mr. Pankaj Singh, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences and, as such, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Mircha Sai was homicidal in nature has been 6 answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-6) proved by Dr. Uma Agrawal (PW- 6), according to which, cause of death was stated to be syncope as a result of internal hemorrhage and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. The case of the prosecution is not based on direct evidence, it is based on circumstantial evidence. The five golden principles which constitute the 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 , which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 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. 1 (1984) 4 SCC 116 7 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, (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.” 10. Now, the trial Court has culled out the following incriminating circumstances in paragraph 29 of its judgment, which states as under : 2 (1973) 2 SCC 793 8 “29. ifjfLFkfr tU; lk{; ds fy, iz’uxr ifjfLFkfr;ksa esa fof/k dh ;g vis{kk gS fd ;fn ,d gh ifjfLFkfr gks tks etcwr rFkk fu.kkZ;d gks vkSj vfHk;qDr ds nks"k ds laca/k esa vU; fdlh vuqeku dks bafxr u djrh gks rks og i;kZIr gksrk gSA bl izdj.k esa vfHkys[k esa miyC/k ifjfLFkfr tU; lk{; dk Øe fuEukuqlkj dfM+;ksa ls vfHk;qDr lqyseku ds fo:) tqM+rk gSA igyk& e`rd dh ?kVuk fnukad dks QkW;j vkeZ ds iz;ksx ls vkbZ pksV ds ifj.kkeLo:i e`R;q gksukA nwljk& vfHk;qDr lqyseku dk dkjrwl@dV~Vk Nqikdj j[ks tkus ds fo"k; esa /kkjk 27 lk{; vf/kfu;e ds rgr fn;k x;k Kkiu ,oa mldh fu’kkunsgh ij lkf{k;ksa ds le{k mDr dV~Vs dh tIrh fd;k tkukA rhljk& vfHk;qDr ls tIr vkXuss; vkL= dk ijh{k.k djus ij mls 315 cksj dk ns’kh dV~Vk gksuk ik;k tkuk ,oa mlds pkyw gkyr esa gksrs gq, mlls xksyh dk pyuk rFkk vkjksih ds 'kjhj ls fudyh xksyh ,oa mDr dV~Vs esa Qalk dkjrwl dh cukoV dk lkeku gksxkA pkSFkk ,oa lcls vg~e ifjfLFkfr& vkjksih dks izR;{kn’khZ lk{kh lathrk ds }kjk ns[kk tkuk ,oa mldk vkjksih dh igpku dk;Zokgh dks jksdukA 11. In order to find out the correctness of the findings recorded by the trial Court for the aforesaid offences, we will discuss each of the incriminating circumstances one by one. For the sake of convenience, we will take up the fourth incriminating circumstance first i.e. testimony of the eye witness Sanjeeta Kujuar (PW-4) and identification of the appellant by her in Test Identification Parade vide Ex.P-24. 12. Fourth incriminating circumstance – Testimony of the eye- witness Sanjeeta Kujur (PW-4) : Sanjeeta Kujur (PW-4) was 9 cited as an eye-witness, who is daughter of the deceased, she is said to have seen the incident and thereafter, she informed to her mother Fulmani Kujur (PW-1). However, Fulmani Kujur (PW-1) immediately reported the matter to the police by lodging the zero Merg Intimation vide Ex.P-1 and numbered Merg Intimation vide Ex.P-32 and also by lodging zero FIR vide Ex.P-2 and numbered FIR vide Ex.P-33 against unknown person. The lodger of the FIR i.e. Fulmani Kujur (PW-1) has been examined, however, in the cross-examination, she has stated that the FIR (Ex.P-2 & Ex.P-33) has been written as per the report which was against the unknown person. Similarly, the merg intimation also lodged against the unknown person and even in the unexhibited document i.e. statement recorded under Section 161 of Cr.P.C. on the same day, Fulmani Kujur (PW-1) has stated that the assailant is unknown to her. 13. In this regard, the decision of the Supreme Court in the matter of Ram Kumar Pande v. The State of Madhya Pradesh 3 , their Lordships have held that no doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it and is relevant under 3 AIR 1975 SC 1026 10 Section 11 of the Evidence Act in judging the veracity of the prosecution case. 14. The principles of law laid down in Ram Kumar Pande (supra) has recently been followed in the matter of The State of Uttar Pradesh v. Raghuvir Singh 4 and the Supreme Court has held in paragraph 31 as under : “31. If he claims to be an eye-witness to the incident and is said to have witnessed three persons known to him assaulting his son i.e. the deceased then what was the good reason not to name the other two accused (juvenile Accused) in the FIR. This omission assumes significance and is a relevant fact under Section 11 of the Evidence Act.” 15. In view of the above, it is quite vivid that Sanjeeta Kujur (PW-4), who is an eye-witness, has not seen the incident otherwise she would have informed the name of the appellant herein to her mother Fulmani Kujur (PW-1) and her mother (PW-1) would have lodged the named FIR against the present appellant, but the same has not been done by her mother Fulmani Kujur (PW-1) while lodging the Merg as well as FIR. As such, we are unable to hold that Sanjeeta Kujur (PW-4) had seen the appellant while making gun shot injury to her father. Furthermore, in the Test Identification Parade vide 4 Criminal Appeal No.1588 of 2015 11 Ex.P-24, Sanjeeta Kujur (PW-4) has identified the accused/ appellant to be assailant. However, she (PW-4) in her statement before the Court in para 4 has clearly stated that immediately after the arrest/taking custody of appellant by the police, she was brought to the Police Station and she had seen the appellant in the Police Station and thereafter, the identification proceeding was conducted at Dharamjaigarh. In that view of the mater, since the cited eye-witness had already seen the appellant in the Police Station before the Test Identification Parade is conducted, her statement is inadmissible in evidence under Section 9 of the Indian Evidence Act and, as such, it is answered against the State. 16. Now, the first incriminating circumstance that the deceased has died on account of gun shot injury made by country made pistol is correct, but the second incriminating circumstance that the country made pistol was seized pursuant to memorandum statement of the appellant is not proved, as the only witness Mohit Ram (PW-11) has stated that seizure of pistol vide Ex.P-21 was not made in presence of the accused, but it was made in the house of Sarpanch in which he has signed. As such, no seizure was conducted in his presence and 12 he has made statement under the pressure and intimidation of the police. As such, the seizure of country made pistol at the instance of the appellant is not proved. In that view of the matter, it cannot be proved that pursuant to memorandum statement of the appellant, the country made pistol has been seized. As such, the alleged seizure is inadmissible in evidence. Furthermore, the third incriminating circumstance that the country made pistol was found to be in running condition and the gun shot injury was made from that pistol is also of no use to the prosecution, as it could not be proved that the said pistol was seized pursuant to the memorandum statement of the appellant. In that view of the matter, the appellant is entitled for acquittal on the basis of benefit of doubt. 17. In view of the above, the impugned judgment of conviction and order of sentence dated 18.08.2015 is hereby set aside. Consequently, the appellant stands acquitted giving him benefit of doubt from the charges framed against him for the offence under Section 302 of Indian Penal Code and Section 25 & 27 of the Arms Act. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in 13 force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 18. In the result, this criminal appeal is allowed. 19. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ashok