1 CRA No. 245 of 2015 2025:CGHC:14028-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 245 of 2015 [Arising out of judgment dated 08.01.2015 passed in Sessions Trial No.194/2014 by the Sessions Judge, Raigarh, Chhattisgarh] 1. Prem Say Chauhan S/o Late Shri Jagmohan Chauhan, aged about 62 years, R/o Village North Regaon, P.S. & Tahsil Tamnar, District Raigarh, Chhattisgarh. 2. Laxmi Ram Chauhan S/o Shri Prem Say Chauhan, aged about 38 years, R/o Village North Regaon, P.S. & Tahsil Tamnar, District Raigarh (C.G.) Civil and Revenue District Raigarh, Chhattisgarh. ... Appellants versus  State of Chhattisgarh through Police Station Tamnar, District Raigarh, Chhattisgarh. ... Respondent For Appellants :- Mr. Manoj Kumar Sinha, Advocate. For State-Respondent :- Mr. Amit Buxy, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (24.03.2025) ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.03.27 15:59:34 +0530 2 CRA No. 245 of 2015 Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the two appellants namely Prem Say Chauhan (A-1) and his son Laxmi Ram Chauhan (A- 2), is to the legality, validity and correctness of the judgment dated 08.01.2015 passed by the Sessions Judge, Raigarh, Chhattisgarh, in Sessions Trial No.194/2014, 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 ₹ 5,000/- each; in default of payment of fine amount the appellants have to undergo additional rigorous imprisonment for two years and also convicted for offence under Section 201 read with Section 34 of the IPC and sentenced thereunder to suffer rigorous imprisonment for two years with fine of ₹ 1,000/- each; in default of payment of fine amount the appellants have to undergo additional rigorous imprisonment six months. Both the sentences are directed to run concurrently. 3 CRA No. 245 of 2015 Prosecution story:- 2. Padma Bai was the resident of village South Regaon/Manjhapara and was working as the village Kotwar of village North Regaon and the appellant Prem Say Chauhan (A- 1) used to reside in the village North Regaon and was working as the village Kotwar of village South Regaon. In the intervening night of 24.01.2014 to 25.01.2014, at village North Regaon, Police Station Tamnar, District Raigarh, Chhattisgarh, the appellants A-1 Prem Say Chauhan and A-2 Laxmi Ram Chauhan, in furtherance of their common intention, caused the murder of Padma Bai, village Kotwar, who was at that time in the state of intoxication, by putting her in a gunny bag and took her towards the pond and after getting her out from the gunny bag drowned her into the pond. Thereafter, to screen themselves from the offence, drowned the dead body of the deceased into the pond, threw the jute rope, burnt the gunny bag and washed the spot and thereby committed the offence. 3. About the said incident merg intimation and FIR were registered vide Exs.P/6 & P/8, respectively. Crime details 4 CRA No. 245 of 2015 forms were prepared vide Exs.P/4 & P/10. Dead body indentification was conducted vide Ex.P/1. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/16) proved by Dr. Savita Tigga (PW-8) cause of death was alcoholic intoxication and drowning leading to cardio respiratory failure and the manner of death could be accidental in nature. Wheels of investigation started running and the appellants were arrested. 4. After due investigation, appellants herein 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. In order to bring home the offence, prosecution has examined as many as 13 witnesses and exhibited 20 documents, whereas, defence, in support of its case, has not examined any witness but exhibited 2 documents. The statement of the appellants / accused persons were recorded under Section 313 of the CrPC in which they denied the circumstances appearing 5 CRA No. 245 of 2015 against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused persons for the offence as mentioned in the opening paragraph of the judgment, against which the appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 7. Mr. Manoj Kumar Sinha, learned counsel for the appellants, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. He would also submit that the conviction of the appellants is totally based on the testimony of Chhotu Chauhan (PW-9), Pitarbai Chauhan (PW-10) and Savita Chauhan (PW-11) who have seen and heard the quarrel between the appellants and the deceased, but PW-9, PW-10 & PW-11 were not acquainted with the voice of the deceased, therefore, the conviction of the appellants on 6 CRA No. 245 of 2015 the basis of alleged voice heard by PW-9, PW-10 & PW-11 is not in accordance with law. He would further submit aht there is no corroborative piece of evidnece has been brought on record by the prosecution in support of its case and also there is no corroboration in the statements of PW-9, PW-10 & PW-11 with regard to last seen together of the appellants and the deceased. He would further submit that there is no evidence has been brought on record by the prosecution that the two appellants herein were responsible for deceased’s intoxication condition by which she suffered alcoholic intoxication, drowning leading to cardio respiratory failure, as such, the two appellants herein are entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 8. Mr. Amit Buxy, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would also submit that PW-9, PW-10 & PW-11 have clearly supported the case of prosecution and, therefore, the present appeal deserves to be dismissed. 7 CRA No. 245 of 2015 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the with utmost care and circumspection. Discussion & Analysis:- 10.Now, the question for consideration would be whether the appellants have assaulted the deceased and also whether the death of the deceased was homicidal in nature? 11.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 (supra) 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. 8 CRA No. 245 of 2015 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 Maharashtra1 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.” 12.The trial Court has convicted the two appellants for offences in question on the basis of statements of PW-9 Chhotu Chauhan, PW-10 Pitarbai Chauhan & PW-11 Savita Chauhan. 1 (1973) 2 SCC 793 9 CRA No. 245 of 2015 However, PW-9, PW-10 & PW-11 have not seen the appellants while assaulting and killing the deceased, but as per their statements they have heard the voice of the deceased as the appellants were assaulting the deceased, meaning thereby, they have identified Padm Bai by her voice as the appellants were assaulting her and also as per the statement of PW-11, she had seen the appellants and the deceased quarrelling each other before the incident. 13.As per the statement of PW-11 Savita Chauhan, the deceased was the resident of village Manjhapara and she was the village Kotwar of village North Regaon. PW-9 Chhotu Chauhan in his statement before the Court has stated that on the date and time of offence when he and his brother Raju (not examined) were returning home, they went towards the tank to wash their hands, then he (PW-9) heard the voice from the house of the appellants “chhotu beta bachao pani pilao nahi bachungi”, and that voice of Padma Bai (deceased). However, they (PW-9 and his brother Raju) did not take any steps and went back to their home and informed the said incident to their parents who told them to inform the said incident to Nagendra Chauhan (PW- 10 CRA No. 245 of 2015 5), son of the deceased, then they met him (PW-5) and informed him about the said incident and came back to their (PW-9 & and his brother Raju, who has not been examined) home, but PW-5 did not come to resque her mother. However, as per the Court’s statement of PW-9, deceased was crying and calling him for help, but said fact is missing in his statement recorded under Section 161 of the CrPC vide Ex.D/2. In Ex.D/2, PW-9 has only stated that the deceased was crying and he heard the voice of the deceased “chhotu beta ni banchi”. 14.Similarly, PW-10 Pitarbai Chauhan, in her statement before the Court has stated that when she was coming back to her home, on the way, she had seen the appellants while dragging the deceased to their house and also assaulting her (deceased). She (PW-10) had also heard the voice of the deceased “ye chhotu mola bachao, mor ankhee mn la nikal dethe” and thereafter, she came home. After some time, she (PW-9) again came outside of her house and heard the voice of the deceased “mat maro, mat maro, kaan ko mat kato”. She has also stated that the appellants had cut the lips of the 11 CRA No. 245 of 2015 deceased and they had also committed the rape with the deceased. PW-11 Savita Chauhan in her statement before the Court has also stated that when she was going for bath, she had seen the appellant and the deceased quarrelling and when she was coming back to her house and stayed outside then she saw the knife in the hand of A-2 Laxmi Ram Chauhan. After some time she again came outside from her house for some work then she heard the voice of the deceased “chhotu mere ankh ko nikal diye hai, mujhe pani pilao”. However, the injuries, which has been stated by PW-10 & PW-11, are missing as per Dr. Savita Tigga (PW-8) who medically examined the deceased vide Ex.P/16. She (PW-8) has only stated that minor injuries were found over the body of the deceased, on the left knee scratch was found and on the left side of skull an injury was found. Also there was no such injuries were found on the private part of the deceased and, as such, it appears to be afterthought of the witnesses (PW-10 & PW-11). 15.The identification by voice and gait under Section 9 of the Indian Evidence Act, 1872 (for short IEA) is well settled and it 12 CRA No. 245 of 2015 has been held by their Lordships of the Supreme Court in the matter of Kirpal Singh v. The State of Uttar Pradesh 2 in paragraph No.4, which states as under:- “4. The conclusion recorded by the court of first instance and affirmed by the High Court is based upon appreciation of evidence and no question of law arises therefrom. Normally this Court does not proceed to review the evidence in appeals in criminal cases, unless the trial is vitiated by some illegality or irregularity of procedure or the trial is held in a manner violative of the Rules of natural justice resulting in an unfair trial or unless the judgment under appeal has resulted in gross miscarriage of justice. Rakkha Singh deposed that he had been able to recognise the appellant from his “voice and gait”. Rakkha Singh was the father-in- law of the appellant, and had during the last few days before the death of Karam Singh seen the appellant frequently. Only four days before the incident there was a quarrel between Karam Singh and the appellant about the delivery of sugarcane crop and the appellant and his brothers had retired from the scene at the intervention of Rakkha Singh, greatly annoyed. It is true that the evidence about identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial. But the appellant was intimately known to Rakkha Singh and for more than a fortnight before the date of the offence he had met the appellant on several occasions in connection with the dispute about the sugarcane crop. Rakkha Singh had heard the appellant and his brothers calling Karam Singh to come out of the hut and had also heard the appellant, as a prelude to the shooting 2 AIR 1965 SC 712 13 CRA No. 245 of 2015 referring to the dispute about sugarcane. In the examination-in-chief Rakkha Singh has deposed as if he had seen the actual assault by the appellant, but in cross-examination he stated that he had not seen the face of the assailant of Karam Singh. He asserted however that he was able to recognize the appellant and his two brothers from their ‘gait and voice’. It cannot be said that identification of the assailant by Rakkha Singh, from what he heard and observed was so improbable that we would be justified in disagreeing with the opinion of the Court which saw the witness and formed its opinion as to his credibility and of the High Court which considered the evidence against the appellant and accepted the testimony.” 16.Similarly, the Supreme Court in the matter of Inspector of Police, Tamil Nadu v. Palanisamy alias Selvan 3 has held that in absence of evidence adduced to show that the witnesses were closely acquainted with accused to identify him from his voice, that too from very short replies, purported to have been given, possibility of identification as claimed by the witnesses rightly doubted by the High Court. 17.Coming to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above stated judgments, it is quite vivid that no evidence has been brought on record by the prosecution that Chhotu 3 (2008) 14 SCC 495 14 CRA No. 245 of 2015 Chauhan (PW-9), Pitarbai Chauhan (PW-10) and Savita Chauhan (PW-11), who used to live in the village North Regaopn, were closely acquainted with the voice of Padma Bai (deceased) who was the village Kotwar of village North Regaon and the resident of village South Regaon/Manjhapara. More particularly, as per the statements of PW-9, PW-10 & PW- 11, the injuries which were said to have been occurred over the body of the deceased, have not been found by Dr. Savita Tigga (PW-8), who conducted the postmortem of the deceased vide Ex.P/16. Furthermore, as per the Court’s statement of PW-9, deceased was crying and calling him for help, but said fact is missing in his statement recorded under Section 161 of the CrPC vide Ex.D/2. As per the statement of Savita Chauhan (PW-11) in the evening at about 6:30 pm, the appellants and the deceased were quarrelling with each other, but when she was returning to her home she had only seen A-2 and not seen the deceased with him, therefore, said fact is of no use to the prosecution as in support of the said fact no corroborative piece of evidence has been brought on record by the prosecution to connect the appellants with the crime. As such, it would be risky to rely upon the statements of PW-9, PW-10 15 CRA No. 245 of 2015 & PW-11 to base the conviction of the appellants that too for offence under Section 302 of the IPC. 18.Furtheromre, the prosecution has failed to bring home that the death of the deceased was homicidal in nature as the Dr. Savita Tigga (PW-8), who conducted the postmortem of the deceased vide Ex.P/16, in her statement befor the Court has stated that the cause of death was due to alcoholic intoxication and drowning leading to cardio respiratory failure and death could be accidental in nature. As such, the prosecution has failed to establish that the death of the deceased was homicidal in nature. Thus, the appellants deserve to be acquitted on the basis of benefit of doubt. Conclusion:- 19. In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 08.01.2025 passed by the trial Court convicting and sentencing the appellants for the offence under Section 302 read with Section 34 of the IPC and for offence under Section 201 read with Section 34 of the IPC, is hereby set aside and 16 CRA No. 245 of 2015 the appellants are entitled for acquittal on the basis of principle of benefit of doubt. Appellants are stated to be on bail. They need not surrender. However, their bail bonds shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 20. 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 the appellants 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