Page No.1 of 8 IN CRA-682-2015 2025:CGHC:16450-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 682 of 2015 [Arising out of judgment dated 27.04.2015, passed in Sessions Case No.13 of 2014 (State of Chhattisgarh v. Vijay @ Kallu) by the Additional Sessions Judge, Pendra Road, District Bilaspur (CG)] Vijay @ Kallu, S/o Ram Singh Pathari, aged about 23 years, R/o Village Kumhari, Police Station Marwahi, Civil and Revenue District Bilaspur (Chhattisgarh) ... Appellant (On Bail) Versus State of Chhattisgarh, through Station House Officer, Police Station Marwahi, Civil and Revenue District Bilaspur (Chhattisgarh) ... Respondent [Cause-title taken from Case Information System (CIS)] ------------------------------------------------------------------------------------------ For Appellant : Mr. Vinod Kumar Tekam, Advocate For Respondent : Mr. Sharad Mishra, Panel Lawyer ------------------------------------------------------------------------------------------ Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (08.04.2025) Sanjay K. Agrawal, J (1) In this criminal appeal preferred under Section 374(2) of Cr.P.C., the accused-appellant is calling in question the legality, validity and correctness of impugned judgment of conviction and order of sentence dated 27.04.2015, passed in Sessions Case No.13 of 2014 (State of Chhattisgarh v. Vijay @ Kallu) by the Additional SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.04.09 17:58:17 +0530 Page No.2 of 8 IN CRA-682-2015 Sessions Judge, Pendra Road, District Bilaspur (CG), whereby he has been convicted for offences: under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.500/- and, in default of payment of fine, additional rigorous imprisonment for 03 months and also under Section 397 of IPC and sentenced to undergo rigorous imprisonment for 05 years with fine of Rs.200/- and, in default of payment of fine amount, additional rigorous imprisonment for 03 months. (2) The case of the prosecution, in short, is that in the intervening night of 05/06-10-2013, between 10 PM to 10 AM, at Village Madakot, which comes within the ambit of Police Station Marwahi, District Bilaspur (CG), the accused-appellant alongwith one juvenile in conflict with law, has committed murder of one Shanti Bai Lahare (hereinafter referred to as the “deceased”) by means of strangulation with the help of a scarf and, further looted Rs.1600/- cash kept in the room of the deceased and, thereby, said to have committed the aforesaid offences. (3) It is further case of the prosecution that when sone of the deceased, namely, Shivadas Lahre (PW-01) reported the matter to the police, merg intimation (Ex.P/01) and FIR (Ex.P/10) were registered and and wheels of investigation started running, in which, spot map was prepared vide Ex.P/02. Inquest proceedings were conducted vide Ex.P/08. The dead-body of the deceased was sent for postmortem examination and, in the postmortem report Page No.3 of 8 IN CRA-682-2015 (Ex.P/14), conducted by Dr. Krishna Kumar Dhruw (PW-12), it has been opined that the cause of death of the deceased is asphyxia due to fracture of thyroid cartilage of neck and nature of death is homicidal. Thereafter, the accused-appellant was arrested vide Ex.P/12 and his memorandum statement was recorded vide Ex.P/03. Further, in the present case, memorandum statement of the juvenile in conflict with law has also been recorded vide Ex.P/11 and, pursuant to which, one bag/pure was seized vide Ex.P/04. The said bag/pure has been identified by the husband of the deceased, namely, Baijnath (PW-03) vide Ex.P/05. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 15 documents, whereas the appellant/accused in support of his defence, has neither examined any witness nor exhibited any document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Sections 302 & 397 of IPC and Page No.4 of 8 IN CRA-682-2015 sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Vinod Kumar Tekam, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 & 397 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that there is no evidence available on record against the appellant to connect him with the offences in question. Nothing has been seized from the possession of the appellant. Even the bag/pure seized vide Ex.P/04 has been seized on the basis of the memorandum statement of the juvenile in conflict with law recorded vide Ex.P/11. Hence, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charges on the basis of benefit of doubt. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. In view of statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Sections 302 & 397 of IPC and, therefore, the present appeal deserves to be dismissed. Page No.5 of 8 IN CRA-682-2015 (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/14), wherein it has been opined that cause of death of the deceased is asphyxia due to fracture of thyroid cartilage of neck and nature of death is homicidal, which is duly proved by the statement of Dr. Krishna Kumar Dhruw (PW-12). Accordingly, taking into consideration the postmortem report (Ex.P/14) and the statement of Dr. Krishna Kumar Dhruw (PW-12), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. (10) Now, the next question would be whether the accused- appellant herein is the author of the crime or not ? (11) In the case at hand, the case of the prosecution is not based on direct evidence, infact it is based on circumstantial evidence that too in shape of memorandum statement of the appellant recorded vide Ex.P/03. However, nothing has been seized pursuant to the memorandum statement of the appellant, indeed, one bag/purse Page No.6 of 8 IN CRA-682-2015 has been seized vide Ex.P/04 pursuant to the memorandum statement of the juvenile in conflict with law recorded vide Ex.P/11. But, the learned trial Court has wrongly recorded a finding that the said bag/purse has been seized on the basis of the memorandum statement of the appellant herein recorded vide Ex.P/03. In this regard, Investigating officer, namely, C.R. Dhruw (PW-09) has clearly stated in Para-04 of his cross-examination that the bag/purse (cloth bag) seized vide Ex.P/04 has not been seized from the appellant. Even otherwise, it is not the case of the prosecution that the said bag/purse has been seized pursuant to the memorandum statement of the appellant or the same is of such a unique quality or design which is not easily available in the market. As such, the learned trial Court has committed grave legal error in convicting the appellant on the basis of his memorandum statement recorded vide Ex.P/09 and seizure of said bag/pure vide Ex.P/04 that too for offence under Section 302 of IPC. We hereby hold accordingly. (12) Furthermore, though the learned trial Court has rightly held that Section 394 of IPC is not made out against the appellant, but wrongly convicted him for offence under Section 397 of IPC for the reason that firstly nothing has been seized from the possession of the appellant and secondly there is no evidence available on record to show that the appellant has committed robbery. The sole seizure of bag/purse has been made on the basis of memorandum Page No.7 of 8 IN CRA-682-2015 statement of the juvenile in conflict with law recorded vide Ex.P/11. Moreover, the confessional statement of the accused or juvenile in conflict with law is a weak piece of evidence (See: Hari Charan Kurmi v. State of Bihar 1 ). Therefore, the offence under Section 397 of IPC is also not made out against the appellant, as there is no applicability of the same in present case because the appellant has been acquitted by the learned trial Court for offence under Section 394 of IPC and the provisions of 397 of IPC does not create any new substantive offence as such but merely serves as complementary to Section 392 & 395 of IPC (See: Ashfaq v. State (Govt. of NCT of Delhi) 2 ]. We hereby hold accordingly. (13) In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove its case beyond all reasonable doubt and, in absence of which, the learned trial Court is totally unjustified in convicting the appellant for offence under Section 302 & 397 of IPC being the author of the crime and same is liable to be set aside. Accordingly, the conviction and sentence of the appellant for offence punishable under Sections 302 & 397 of IPC, as imposed upon him by the learned trial Court, are hereby set aside. He is acquitted of the said charges on the basis of benefit of doubt. Since the appellant is reported to be on bail, therefore, he need not to surrender. But his bail bonds shall remain in force for a further period of six months in light of provisions contained under Section 1 AIR 1964 SC 1184 : 1964 SCC Online SC 28 2 (2004) 3 SCC 116 : AIR 2004 SC 1253 Page No.8 of 8 IN CRA-682-2015 437-A of CrPC. (14) This criminal appeal is allowed. (15) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge s@if