Page No.1 of 10 IN CRA-882-2015 2025:CGHC:15196-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 882 of 2015 [Arising out of judgment dated 03.07.2015, passed in Sessions Trial No.58 of 2015 (State of Chhattisgarh v. Habil Kujur and another) by the Sessions Judge, Raigarh (CG)] Habil Kujur, S/o Bolo Kujur, aged about 45 years, R/o Village Bagudega, Siyarpara, P.S. Lailunga, Tahsil Gharghoda, District Raigarh, Civil and Revenue District Raigarh (Chhattisgarh) ... Appellant Versus State of Chhattisgarh, through The District Magistrate, Raigarh, District- Raigarh (Chhattisgarh) ... Respondent [Cause-title taken from Case Information System (CIS)] ------------------------------------------------------------------------------------------ For Appellant : Mr. Vivek Tripathi, Advocate For Respondent : Mr. Ashish Shukla, Addl. Adv. General and Mr. Arvind Dubey, Govt. Advocate ------------------------------------------------------------------------------------------ Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (01.04.2025) Sanjay K. Agrawal, J (1) This criminal appeal filed by the appellant-accused herein under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 03.07.2015, passed in Sessions Trial No.58 of 2015 (State of Chhattisgarh v. Habil Kujur and another) by the Sessions Judge, Raigarh (CG), whereby he has been convicted for offences: under Section 302 of Page No.2 of 10 IN CRA-882-2015 IPC and sentenced to undergo imprisonment for life with fine of Rs.5,000/- and, in default of payment of fine amount, sentenced to undergo additional rigorous imprisonment for 02 years and also under Section 201 of IPC and sentenced to undergo rigorous imprisonment for 02 years with fine of Rs.1,000/- and, in default of payment of fine amount, sentenced to undergo additional rigorous imprisonment for 06 months {Both the sentences are directed to run concurrently]. (2) The case of the prosecution, in short, is that in the intervening night of 30/31.01.2015, from 07 PM to 06 AM, at Main Road, Siyarpara, Village Bagudega, which comes within the ambit of Police Station Lailunga, District Raigarh (CG), the accused-appellant herein (A-1) firstly conspired with another acquitted co-accused, namely, Smt. Shobha (A-2) and shared common intention of killing Vilokan Tigga [husband of Smt. Shobha (A-2)] and, in furtherance thereof, committed murder of Vilokan Tigga (hereinafter referred to as the “deceased”) by means of strangulation and, further, in order to screen himself from the legal punishment and also in order to shape the aforesaid incident to be an accident, kept the dead-body of the deceased beside the road and covered it by means of a blanket and, thereby, said to have committed the aforesaid offence. (3) It is further case of the prosecution that when Smt. Gulapi Bai (PW-01) reported the matter to the police, marg intimation Page No.3 of 10 IN CRA-882-2015 (Ex.P/02) and FIR (Ex.P/01) were registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were issued vide Ex.P/05 and inquest proceedings were conducted vide Ex.P/04. Site map was also prepared vide Ex.P/06. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/13), conducted by Dr. Yogeshwar Singh Saratiya (PW-06), it was opined that the cause of death of the deceased is asphyxia due to strangulation with rope and nature of death is homicidal. Thereafter, the appellant (A-1) as well as the acquitted co-accused (A-2) were arrested vide Ex.P/10 & Ex.P/11. Memorandum statement of the appellant was also recorded vide Ex.P/08 and, pursuant to which, one plastic rope has been seized vide Ex.P/09. The said rope has been subjected to query to an expert/doctor and, as per Query Report (Ex.P/14), it has been opined by Dr. Yogeshwar Singh Sarathiya (PW-06) that death of the deceased, as mentioned in the postmortem report, may caused by the said rope. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent criminal court having jurisdiction and, thereafter, 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. Page No.4 of 10 IN CRA-882-2015 (4) The prosecution in order to prove its case examined as many as 07 witnesses and exhibited 20 documents, whereas the appellant in support of his defence 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 only the present appellant for offence under Section 302 & 201 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Vivek Tripathi, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 & 201 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that the only evidence that has been brought on record is the disclosure/memorandum statement of the appellant recorded vide Ex.P/08 and, pursuant to which, one plastic rope has been seized vide Ex.P/09. Though, the said rope has not been subjected to chemical analysis, but same has been sent for query to an expert/doctor and, as per Query Report (Ex.P/14), it has been opined by Dr. Yogeshwar Singh Sarathiya (PW-06) that death of the deceased, as mentioned in the postmortem report, may caused Page No.5 of 10 IN CRA-882-2015 by the said rope. It is vehemently argued that by learned counsel for the appellant that in light of decision rendered in Mustkeem alias Sirajudeen v State of Rajasthan 1 merely on the basis of disclosure statement of the appellant and recovery of article on the basis of it, cannot point out the guilt of the appellant in order to convict him for the offence of murder that too in absence of forensic evidence. Hence, the present appeal deserves to be allowed and appellant is liable to be acquitted of the said charge. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 & 201 of IPC. Thus, the present appeal deserves to be dismissed. (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/13), wherein it has been opined that 1 (2011) 11 SCC 724 Page No.6 of 10 IN CRA-882-2015 cause of death of deceased is asphyxia due to strangulation by means of rope and nature of death is homicidal, which is duly proved by the statement of Dr. Yogeshwar Singh Saratiya (PW-06). Accordingly, taking into consideration the postmortem report (Ex.P/13) and the statement of Dr. Yogeshwar Singh Saratiya (PW- 06), 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, after holding the death of the deceased to be homicidal in nature, the learned trial Court, in order to hold the appellant guilt for the offence in question, relied upon the disclosure/memorandum statement of the appellant recorded vide Ex.P/08, pursuant to which, one plastic rope has been seized vide Ex.P/09 and, the same has also been sent for query to an expert/doctor, whereby vide Query Report (Ex.P/14), it has been opined by Dr. Yogeshwar Singh Sarathiya (PW-06) that death of the deceased may be caused by the said rope. However, the said rope has not been sent for chemical analysis to FSL for the reasons best known to the prosecution and no evidence has been brought on record to show that the said rope was used by the Page No.7 of 10 IN CRA-882-2015 appellant in the crime in question. As such, recovery of the said rope is of no help to the prosecution, more particularly when relying upon the similar set of evidence, the learned trial Court has acquitted co-accused- Smt. Shoba (A-2) and only proceeded to convict the appellant herein. (12) In this regard, their Lordships of the Supreme Court in the matter of Mustkeem alias Sirajudeen (supra) have clearly held that the disclosure alone would not automatically lead to conclusion that offence was committed only and only by the accused and the burden lies on the prosecution to establish a close link between the discovery of material object and its use in commission of offence and observed in Paras-25 to 27 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 object 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.” 26. If the recovery memos were prepared at the police station itself then the same would lose their sanctity as held by this Court in Varun Chaudhary v. State of Rajasthan2. 2 (2011) 12 SCC 545 Page No.8 of 10 IN CRA-882-2015 27. The scope and ambit of Section 27 were also illuminatingly stated in Pulukuri Kotayya v. King Emperor3 reproduced hereinbelow: (IA p. 77). “… 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 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.” The same were thereafter restated in another judgment of this Court in Anter Singh v. State of Rajasthan4.” (13) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgment, it is quite vivid that though in the present case one plastic rope has been seized pursuant to the 3 (1946-47) 74 IA 65 : AIR 1947 PC 67 4 (2004) 3 SCC 657 Page No.9 of 10 IN CRA-882-2015 memorandum/disclosure statement of the appellant, but in absence of any forensic evidence, the same is of no use to the prosecution that too when it has also not been established by the prosecution that the said rope was used by the appellant in the crime in question in any manner. As such, in light of Mustkeem alias Sirajudeen (supra) the appellant cannot be held guilty only on the basis of recovery of article (rope), which has been made on the basis of his disclosure statement recorded vide Ex.P/08 and, more particularly, when on the basis of similar set of evidence, co- accused- Smt. Shobha (A-2), who is wife of the deceased, has been acquitted by the trial Court for the identical offences. Therefore, the learned trial Court is absolutely unjustified in convicting the appellant for the offence in question being the author of the crime and he is liable to be acquitted of the said charges on the basis of benefit of doubt. We hereby hold accordingly. (14) In view of the aforesaid discussion, the conviction and their respective sentences of the appellant for offence punishable under Sections 302 & 201 of IPC, as awarded by the learned trial Court, are hereby set aside. The appellant is acquitted of the said charges on the basis of benefit of doubt. Since the appellant is reported to be on bail, he need not to surrender, however, his bail bonds shall remain in force for a further period of six months in view of provision contained under Section 437-A of CrPC. (15) This criminal appeal is allowed to the extent indicated Page No.10 of 10 IN CRA-882-2015 herein-above. (16) 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) (Sanjay Kumar Jaiswal) Judge Judge s@if