1 CRA Nos.1174/2017 & 251/2016 2025:CGHC:35353-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1174 of 2017 Tulsiram S/o Arjun Yadav, Aged About 19 Years R/o Village Semariya, Police Station Palari, District Baloda Bazar Chhattisgarh., Chhattisgarh --- Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Pipariya, District Kabirdham Chhattisgarh., Chhattisgarh --- Respondent CRA No. 251 of 2016 Punau Yadav S/o Kartik Yadav Aged About 20 Years R/o Village Khapri, Police Station Palari, District Baloda Bazaar Chhattisgarh. , Chhattisgarh ---Appellant Versus State Of Chhattisgarh Through Station House Officer, Police Station Pipariya, District Kabirdham Chhattisgarh. , Chhattisgarh ---- Respondent AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.07.24 15:43:41 +0530 2 CRA Nos.1174/2017 & 251/2016 For Appellants : Ms. Nirupama Bajpayi, Advocate For Respondent/State : Mr. R.S. Marhas, Addl. A.G. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Bibhu Datta Guru, Judge 23.07.2025 1. Challenge in both these appeals is to the judgment of conviction and order of sentence dated 02-09-2015 passed by the learned Sessions Judge, Kabirdham(Kawardha), C.G. in Sessions Case No.03/2015 whereby learned Court below convicted and sentenced the appellants as under:- Conviction Sentence Section 302/34 IPC Life Imprisonment Section 201 of the IPC R.I. For 7 years Both the sentences are directed to run concurrently 2. Pursuant to the order dated 15/04/2025 by which bailable warrants were issued, today both the appellants are present before this Court and their presence is marked. 3. (a) Case of the prosecution, in brief, is that on 12.08.2014, Rajendra Sahu of village Paneka informed Khileshwar Sahu (PW-6) over phone that the body of an unknown person was floating in the pond. Then Up-Sarpanch Bholaram, Gajadhar 3 CRA Nos.1174/2017 & 251/2016 went to the pond and saw the dead body of unknown person wearing a white & black shirt and black pant. The body looked to be 2-3 days old. A wooden stick was tied to the left wrist of the dead body. After the incident, Khileshwar Sahu went to the Dasharngpur police post along with Up- Sarpanch Bholaram, Gajadhar, Nathusingh and lodged a report of the death of an unknown person, on which, the Dasharngpur police post registered a zero number case. Thereafter, Pipariya police station registered an FIR vide Ex.P-28. (b) During the investigation statement of witnesses Jitendra, Ritesh resident Balodabazar was taken. Jitendra told that he used to run truck bearing No.CG 04 JC 9796 on rent since 4-5 years ago, whose driver Satyadev/deceased from Bihar used to drive it. Tulsiram Yadav resident of Semaria was working as a conductor in the truck for last 6-7 months. Driver Satyadev and conductor Tulsiram left from Balodabazar for Dongargarh in the said truck on 09.08.2014 carrying sacks of Ambuja cement. When on 10/08/2014, Jitendra contacted the driver (deceased) through mobile, the said mobile was switched off. (c) On 13.08.2014, an information was received by Jitendra PW-3 through mobile that truck bearing No. CG 04 JC 9796 was parked near village Devkatta in Dongargarh. Then, 4 CRA Nos.1174/2017 & 251/2016 Jitendra went to to the spot on 14/08/2014 and found the truck loaded with cement parked on the roadside near village Devkatta, which he informed to Dongargarh police station and took the truck back home after unloading the goods. He was searching for the driver and conductor. Conductor Tulsiram/appellant was found on 02.11.2014. On enquiry, he told that driver Satyadev used to quarrel with him over petty issues e.g. food, transactions, etc. so on 09.08.2014 he brought his friend Punau /appellant with him in the truck. After some time, he asked the driver to park the truck near pond of village Paneka. At that time, driver/deceased was sleeping. Punau was sitting in the back of the truck, then he called Punau and thereafter, Punau pressed the throat and mouth of driver/deceased in the truck itself and Tulsiram assaulted deceased on his forehead by means of wheel tool pana due to which Satyadev/deceased died. Thererafter, Satyadev was drowned in the pond water and a sack of Ambuja cement was kept on the body of deceased. The appellants kept ATM of deceased and Punau is using the mobile of deceased by his SIM. The truck was left near Devkatta Dongargarh. On the basis of Jitendra's evidence, crime was registered against Tulsiram and Punau and investigation was done. Spot map was preapred vide Ex.P-1. The dead-body of deceased was sent for postmortem examination and in the postmortem 5 CRA Nos.1174/2017 & 251/2016 examination report (Ex.P/37), Dr. Snigdha Jain (PW-9) opined that the cause of death has been kept pending till the report of the chemical test comes and it cannot be said right now, because the body has decomposed. The time of death was between 48 to 72 hours from the postmortem. After completing the investigation, the final report was prepared. 4. In course of trial the prosecution examined as many as 09 witnesses and exhibited 37 documents. to bring home the charges. The accused persons abjured the guilt; pleaded innocence; and false implication. 5. The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellants herein for the aforementioned offence and sentenced them as mentioned herein-above against which these appeals have been preferred by the appellants- accused herein questioning the impugned judgment of conviction and order of sentence. 6. Learned counsel appearing for the appellants, would submit that there is absolutely no evidence against any of the appellants conclusively connecting them with the commission of crime. She would submit that no any opinion about the nature of death was given by the Doctor, PW-9, because dead body had been completely decomposed. She 6 CRA Nos.1174/2017 & 251/2016 submits that the conviction of the appellants is based on extra judicial confession and the the appellants could not have been convicted on the basis of so called extra judicial confession. Apart from that, there is no eye witnesses in the present case and the appellants have been falsely implicated. Learned counsel would further submit that the circumstantial evidence does not complete the chain nor an inference of guilt can be drawn on the basis of such evidence as has been brought on record by the prosecution. She further submits that the feature and ingredients of Section 302 and 201 of the IPC are not available in the present case. Hence, the present appeal deserves to be allowed. 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. The learned trial Court has rightly convicted the appellants for the aforesaid offence, 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. 7 CRA Nos.1174/2017 & 251/2016 9. Dr. Snigdha Jain (PW9), who conducted the postmortem of deceased and submitted a report vide Ex.P-37, according to her, the cause of death has been kept pending till the report of the chemical test comes and it cannot be said right now because the body of deceased has decomposed. The time of death was between 48 to 72 hours from the postmortem test. This witness has proved the postmortem report vide Ex.P-37 and has put her signature on it. No such evidence has been reflected in the cross-examination of this witness on the basis of which the postmortem report Ex.P-37 can be disbelieved. In para 4, she stated that there were no injury or wound marks present on the neck. Skull and vertebrae were intact and there was discoloration due to decomposition. Silt was intact. Brain and spinal cord were found with brown Coloured paste flowing from the skull. Ulna, ribs and cartilage were intact. 10. Now the next question would be whether the accused- appellants herein are the author of the crime in question ? 11. PW-6, Khileshwar Sahu, stated in his evidence that he knows the appellants present in the court. He also knows the complainant Jitendra Sahu. He don’t know the deceased. The incident happened about 8-9 months ago. There is a pond located on the side of the main road of village Paneka. A dead body was found in that pond. When 8 CRA Nos.1174/2017 & 251/2016 the dead body was found, he also went to the pond, where he saw the dead body. On finding the dead body, being the Sarpanch of the village, he went to the police post Dasharngpur and informed about the dead body of an unknown person found in the pond on the basis of the which, police registered an FIR and spot map was prepared in from of him. In cross-examination, at para 3, he stated that the appellants gave their statement near the pond and in the police station. 12. PW-3, Jitendra stated in his evidence that he used to drive a truck bearing No. CG 04 JC 9796 on rent. The driver of that truck was Satyadev/deceased who was a resident of Bihar. Satyadev/deceased was a driver with him for about 4-5 years and accused Tulsiram was working as a conductor/helper for about 7-8 months. This happened about 7-8 months ago. The incident was happened of the year 2014. His truck driver Satyadev/deceased had loaded Ambuja cement in the truck and left from Balodabazar to take it to Dongargarh and he was accompanied by conductor/helper Tulsiram. When his truck did not reach the place Dongargarh, he contacted his truck driver on his mobile number, but it was not connected. Then, he got information from Dongargarh police station that his truck bearing No. CG 04 JC 9796 is standing near Devkatta. 9 CRA Nos.1174/2017 & 251/2016 Then, he went to Devkatta with his friend Ritesh. Driver Satyadev and conductor Tulsiram were not in the truck. After that, he informed Dongargarh police station and then brought his truck. After that, he kept looking for his driver Satyadev and conductor Tulsiram. After about one and a half month, he found conductor Tulsiram. Then he asked him about driver Satyadev but he did not tell anything. He had reported to Dongargarh police station, so he took conductor Tulsiram to the police station. Police interrogated him at the police station. First Tulsiram told that he has taken Satyadev's clothes to some field and hide it. He stated that before this incident, whenever Satyadev and Tulsiram used to go in the truck, there used to be a fight between them. When the police interrogated Tulsiram again, Tulsiram told that he and Punau together killed the deceased and his body has been thrown into the pond and a bag of Ambuja cement has been placed over it and buried in the pond. Tulsiram had told the police that he and Punau had strangled the driver Satyadev and he had assaulted him with the wheel pana on the head of deceased. In cross- examination, he stated that he did not question the accused Tulsiram. Tulsiram was taken to Dongargarh police station and the police interrogated him in the police station, where he told the police everything. 10 CRA Nos.1174/2017 & 251/2016 13. PW-5, Nathuram, stated in his evidence that the incident happened about 4-5 months ago. He don’t know the deceased. There is a pond located on the side of the main road in village Paneka. A dead body of unknown person was found in that pond. When the dead body was found, he also went to the pond, where he saw the dead body. When the dead body was found, the village Sarpanch Khileshwar Sahu PW-6 went to Dasharngpur and informed about the dead body of an unknown person found in the pond. Then the police came for investigation. In para 2, he stated that both the appellants said that they killed the deceased/driver on the way and threw the dead body in the pond of village Paneka. The appellants also said that after throwing the dead body into the water, they put a cement bag over it. The police had written down their statement in his presence. The memorandum statement is Ex.P.11 and Ex.P.12, in which, has made his signature from A to A part. 14. In the FSL report vide Ex.P-35, chemical poison was not found in articles A, B and C. However, there is no report of Wheel tool Pana, which has been seized on the basis of memorandum statement of appellant Tulsiram. 15. Admittedly, there is no ocular version of the crime, as no witness has seen the appellants committing the crime. Case of the prosecution, therefore, rests on circumstantial 11 CRA Nos.1174/2017 & 251/2016 evidence. The principle as to when an accused can be convicted on the basis of circumstantial evidence has been propounded by the Supreme Court in the celebrated case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, wherein it has underlined the conditions, which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held 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 Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made: ‘certainly, it is a primary principle 12 CRA Nos.1174/2017 & 251/2016 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.” 16. In a recent judgment in Nathiya Vs. State represented by Inspector of Police, Bagayam Police Station, Vellore, (2016) 10 SCC 298, the Supreme Court has reiterated the above principles. 13 CRA Nos.1174/2017 & 251/2016 17. In Jonh Pandian v State, Represented by Inspector of Police, Tamil Nadu, (2010) 14 SCC 129 the Supreme Court has held that all means adopted and illegal acts done must be proved to be done in furtherance of the object of conspiracy hatched. A systematic role played by each accused has to be highlighted. Similarly each one of the circumstances should be proved beyond reasonable doubt and such circumstances proved must form a chain of events from which the only irresistible conclusion is about the guilt of the accused which can be safely drawn and no other hypothesis of the guilt is possible. Since the evidence of conspiracy is very hard to find and the prosecution would always have great difficulty in proving the conspiracy and, therefore, the conspiracy has to be inferred from circumstantial evidence, but the circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. 18. Similar proposition has been laid down by the Supreme Court in Sherimon v State of Kerala, (2011) 10 SCC 768 and held thus in paras 17 & 18 : 17. The gist of the offence of conspiracy is the agreement between two and more persons to do or cause to be 14 CRA Nos.1174/2017 & 251/2016 done an illegal act or a legal act by illegal means. There must be meeting of minds resulting in an ultimate decision taken by the conspirators regarding commission of the crime. In this case, no such evidence has come on record. PW-5 Biju, the employee of City Auto Finance at Moovattupuzha was the only witness examined by the prosecution to prove the alleged meeting between the appellant and the other accused. He has turned hostile. Therefore, there is nothing on record to establish meeting of minds between the appellant and the other accused. 18. Assuming that the appellant had produced certain documents pertaining to the said auto rickshaw, it cannot be concluded on the basis thereof that he had entered into a conspiracy with A-1 to A-3 to repossess the said auto rickshaw because the loan amount was not repaid and in pursuance thereof A-1 to A-3 murdered the driver of the said auto rickshaw. The evidence on record is totally inadequate to come to such a conclusion. It is, therefore, not possible to sustain the impugned judgment. 19. In the case at hand, the case of the prosecution is based on circumstantial evidence, as there is no ocular version of the crime. Except the memorandum statements of appellants, which has been proved by the PW-5 Nathuram, there is no other evidence against the appellants. The dead body of deceased was found in the pond and no specific opinion was given by Doctor PW-9 in the postmortem report, wherein, it has been mentioned that the cause of death has been kept pending till the report of the chemical test comes and it cannot be said right now because the body of 15 CRA Nos.1174/2017 & 251/2016 deceased has decomposed. The time of death was between 48 to 72 hours from the postmortem test. There is only a memorandum statement of the appellants and according to the above examined witnesses, the appellants gave their statement near the pond and in the police station. Thus, this evidence alone is not sufficient to establish that the appellants have assaulted the deceased by means of wheel tool pana and threw the body of deceased in the pond. 20. In view of the above, there is absolutely no evidence against the appellants. There is no FSL report with respect to recovery of wheel tool pana recovered from the memorandum statement of appellant/Tulsiram, there is no other evidence of conclusive nature by which their guilt of committing murder of the deceased can be proved. In the state of evidence on record, the appellants are entitled for the benefit of doubt. 21. Accordingly, conviction and sentence imposed on all the appellants are hereby set aside and they are acquitted of the said charges. 22. In the result, both the criminal appeals are allowed. The appellants are on bail. Surety and personal bonds earlier furnished by them at the time of suspension of sentence shall remain operative for a period of six months in view of 16 CRA Nos.1174/2017 & 251/2016 the provisions of Section 481 of the BNSS. The appellants shall appear before the higher Court as and when directed. 23. The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Gowri/ Amardeep