1 2025:CGHC:33180-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 672 of 2017 {Arising out of judgment dated 13.05.2016 passed in Sessions Trial No.68/2015 by the learned Second Additional Sessions Judge, Durg} Jitendra @ Jittu Sonwani, S/o. Motiram Sonwani, Aged About 24 Years, R/o. Village Rakhi, Thana Patan, District Durg, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Police Station Patan, District Durg, Chhattisgarh. ... Respondent For Appellant : Mr. Deepak Jain, Advocate For Respondent : Mr. Rahul Tamaskar, Govt. Advocate (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board (16.07.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.07.17 14:21:34 +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 13.05.2016, passed by the learned Second Additional Sessions Judge, Durg in Sessions Trial No. 68/2015, by which the sole appellant herein has been convicted for the offence under Section 302 & 201 of Indian Penal Code and sentenced as under : CONVICTION SENTENCE U/s. 302 of IPC. : Rigorous imprisonment for life and fine of Rs.250/-, in default of payment of fine amount, additional rigorous imprisonment for 6 months U/s. 201 of IPC. : Rigorous imprisonment for 3 years and fine of Rs.250/-, in default of payment of fine amount, additional rigorous imprisonment for 1 month. Both the sentence to run concurrently 2. Case of the prosecution, in short, is that, in between 27.02.2015 at 6:30 P.M. to 28.02.2015 at 6:30 A.M. at 3 village Rakhi, the appellant caused the death of Preetam Kumar Gayakwad by iron latch and in order to screen himself from the offence, he thrown the iron latch in Nistari Pond of the village; thereby the aforesaid offences have been committed. The matter was reported to the police, pursuant to which, Merg Intimation was registered vide Ex.P-1, Dehati Nalsi was recorded vide Ex.P-9, FIR was registered vide Ex.P-20, Inquest was conducted vide Ex.P-6 and dead body of deceased Preetam Kumar Gayakwad was subjected to post-mortem, which was conducted by Dr. Ajay Singh Thakur (PW-14), who proved the post-mortem report vide Ex.P-21, in which cause of death was stated to be shock and haemorrhage due to multiple injuries present in body and death was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P-13), weapon of offence i.e. iron latch was seized vide Ex.P-14 and bloodstained stones were recovered from the spot vide Ex.P-9, which were sent for chemical examination to FSL along-with the other seized articles and as per the FSL report, no blood was found on the seized iron latch, but human blood was found on the stones i.e. Article A to D. After due investigation, the appellant was charge-sheeted for the aforesaid offences to the jurisdictional criminal court and the case was ultimately committed to the Court 4 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. 3. In order to bring home the offences, prosecution examined as many as 15 witnesses and exhibited 31 documents and the appellant-accused in support of his defence has not examined any witness but 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 offences under Section 302 & 201 of Indian Penal Code and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Mr. Deepak Jain, learned counsel for the appellant, would submit that the appellant has been convicted solely on the basis of circumstantial evidence but the nature of circumstantial evidence is not as such which can be made basis for his conviction. He would further submit that only on the basis of memorandum statement of the appellant and the seizure of one iron latch allegedly used in commission of offence, the appellant has been convicted. It 5 is further submitted that FSL also does not support the case of the prosecution. Therefore, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 6. Mr. Rahul Tamaskar, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences. As such, the appellant is not entitled for acquittal and 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 Preetam Kumar Gayakwad was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-21) proved by Dr. Ajay Singh Thakur (PW-14), according to which, cause of death was stated to be shock and haemorrhage due to multiple injuries present in body 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 6 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 para 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. 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 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 7 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. The only circumstance that has been projected by the prosecution which the trial Court has found established is that pursuant to memorandum statement of the appellant, the weapon of offence i.e. iron latch was seized, which was duly supported by the seizure witnesses and furthermore, as per the memorandum statement of appellant, the stones (Article A to D) were also recovered from the spot in which human blood was found and on that basis, the trial Court has proceeded to convict the appellant. 11. True it is that pursuant to memorandum statement of the appellant, the iron latch was seized which is said to have 8 been used in commission of offence, but there is no evidence on record that it was used in commission of offence. However, it is well settled law that disclosure alone would not automatically lead to conclusion that offence was also committed by accused and burden lies on prosecution to establish a close link between discovery of material object and its use in commission of offence and it has been held by their Lordships of the Supreme Court in the matter of Mustkeem Alias Sirajudeen v. State of Rajasthan3 as under : 25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. 27. The scope and ambit of Section 27 were also illuminatingly stated in Pulukuri Kotayya v. King Emperor4 reproduced hereinbelow:- "...it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and 3 (2011) 11 SCC 724 4 AIR 1947 PC 67 9 the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 12. Furthermore, in the matter of Raja Naykar v. State of Chhattisgarh 5 the Supreme Court has clearly held that only on the basis of sole circumstance of recovery of blood- stained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt. In that view of the matter, the trial Court is absolutely unjustified in convicting the appellant for the offence in question, as the chain of circumstances is not complete as enumerated in Sharad Birdhichand Sarda (supra) and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt. 5 2024 SCC Online SC 67 10 13. Accordingly, the impugned judgment of conviction and order of sentence dated 13.05.2016 is hereby set aside. In the result, the appeal is allowed. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for the offences punishable under Sections 302 & 201 of Indian Penal Code. 14. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 15. 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) (Sachin Singh Rajput) Judge Judge Ashok