1 2025:CGHC:17867-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 621 of 2016 {Arising out of judgment dated 30.04.2016 passed in Sessions Trial No.03/2016 by the learned Fourth Additional Sessions Judge, Bilaspur} 1- Ramesh Kumar Suryavanshi, S/o. Mathura Prasad Suryavanshi, Aged About 35 Years, R/o. Village Belmundi, P.S. Hirri, District Bilaspur, Chhattisgarh. 2- Prahlad Suryavanshi, S/o. Mathura Prasad Suryavanshi, Aged About 30 Years, R/o. Village Belmundi, P.S. Hirri, District Bilaspur, Chhattisgarh. ... Appellants versus State Of Chhattisgarh, Through The Police Station Hirri, District Bilaspur, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellants : Mr. Manoj Mishra, Advocate For Respondent : Mr. H.A.P.S.Bhatia, Panel Lawyer ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.04.23 10:15:19 +0530 2 (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (21.04.2025) Sanjay K. Agrawal, J. 1. This criminal appeal preferred under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 30.04.2016 passed by learned Fourth Additional Sessions Judge, Bilaspur, in Sessions Trial No.03/2016, by which the two appellants herein have been convicted for the offence under Section 302 read with Section 34 of I.P.C. and sentenced to undergo life imprisonment and fine of Rs.1000/- each, in default of payment of fine amount, 1 month’s additional rigorous imprisonment. 2. Case of the prosecution, in short, is that in the intervening night of 15/16.10.2015, the two appellants herein, in furtherance of their common intention, assaulted Dashrath Suryavanshi (now deceased) by Bamboo Lathis, by which he suffered grievous injuries and died; thereby the offence has been committed. The matter was reported to the police, pursuant to which, Merg Intimation was registered vide Ex.P-1, 3 FIR was registered vide Ex.P-2, Nazari Naksha was prepared vide Ex.P-4, Inquest was conducted vide Ex.P-6 and dead body of deceased Dashrath Suryavanshi was subjected to post- mortem, which was conducted by Dr. Prakash Ghoreshwar (PW-6), who proved the post-mortem report vide Ex.P-11, according to which, cause of death was stated to be hemorrhagic shock due to multiple fractures at face bone as well as skull bones and laceration at brain tissue and death was homicidal in nature. Pursuant to memorandum statement of both the appellants vide Ex.P-15 & Ex.P-15A, Bamboo Lathis were recovered vide Ex.P-16 & Ex.P-17, which were sent for chemical examination along-with other seized articles to FSL and as per the FSL report (Ex.P-28), human blood was found on the seized Lathis. After due investigation, the appellants were charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated. 4 3. In order to bring home the offence, prosecution examined as many as 16 witnesses and exhibited 28 documents and the appellants/accused in support of their defence have not examined any witness but have exhibited the documents Ex. D-1 to Ex.D-3. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants herein for the offence under Section 302 read with Section 34 of I.P.C. and sentenced to undergo life imprisonment as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Mr. Manoj Mishra, learned counsel for the appellants, would submit that the appellants have been convicted solely on the basis of circumstantial evidence but the nature of circumstan- tial evidence is not as such which can be made basis for their conviction. He would further submit that main evidence against the appellants is of Ramcharan, who is alleged to have seen the appellants and deceased on the date of incident. It has been further argued that though as per the FSL report (Ex.P-28), human blood has been found on the seized Lathis and clothes of the appellants but there is no serological report 5 to confirm the origin of the blood. Therefore, the appellants are entitled for acquittal on the ground of benefit of doubt and the appeal deserves to be allowed. 6. Mr. H.A.P.S.Bhatia, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellants for the aforesaid offence and, as such, 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 Dashrath Suryavanshi was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-11), proved by Dr. Prakash Ghoreshwar (PW-6), according to which, cause of death was stated to be hemorrhagic shock due to multiple fractures at face bone as well as skull bones and laceration at brain tissue and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available 6 on record, it is 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 paragraph 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: 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 7 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.” 10. The trial Court has culled out the following incriminating circumstances in paragraph 9 of its judgment, which states as under : 1& अभियुक्तगण का अपराध किकायु जाने का हेतका। 2& मृतका दशराथ सूयुवंश का हेत्युत्मृका मृत्यु कारिरात हे#ने । 3& अभियुक्तगण का ቛኋरा किकायु गयु ्ቚकाटने काथने का आधरा परा अपराध मृ( ्ቚयुक्त किकायु गयु हेथिथयुरा* का बरामृदग। 4& मृमृले मृ( जाप्तशद वंस्तओं मृ( लेग राक्त का सूबध मृ( राज्यु न्युयुलेयियुका किवंሺኋने ्ቚयु#गशले का ्ቚस्तत रिराप#ट । 8 5& अभियुक्तगण का# मृतका दशराथ सूयुवंश का सूथ अकितमृ सूमृयु मृ( दखा जाने । 11. In order to consider the correctness of the findings so recorded by the trial Court, we will consider the aforesaid incriminating circumstances one by one. (i) The first incriminating circumstance is motive of the offence. The trial Court has found proved the motive of offence on the basis of the statement of Lekhram Suryavanshi (PW-8) who stated that in the month of February, 2015, at the time of Mahashivratri, some quarrel took place between Prahlad (appellant No.2) and his wife Ramkumari upon which the deceased and other villagers intervened and thereafter, quarrel has been taken place between the appellants and deceased and that is the motive for commission of offence. However, it is well settled that in serious offences like murder, the Court always searches for the motive and the motive always plays an important role. Motive is of great importance in cases based on circumstantial evidence, and there is absence of such motive, it is always a circumstance in favour of the accused and against the prosecution. Motive, however adequate, cannot sustain a criminal charge in absence 9 of clear and cogent evidence pointing to the guilt of the accused and motive alone can hardly be a ground for conviction in absence of any other circumstantial evidence. [See: Sampath Kumar v. Inspector of Police, Krishnagiri 3 ]. In the matter of Chunthuram v. State of Chhattisgarh 4 , their Lordships of the Supreme Court, in para 17, have held that on the motive aspect, the land dispute was finally decided and it was stated by Mahtoram, PW-1 (father of the deceased) that Sildhar was murdered when the said land dispute was still pending. If this be the situation, without any further material to show any proximate and immediate motive for the crime, it would be difficult to accept the cited motive, to support the conviction. Similarly, in the matter of Vishwajeet Kerba Masalkar v. State of Maharashtra 5 , their Lordships of the Supreme Court have held that solely on the basis of circumstance of motive, a conviction cannot be based and states as under:- “27. That leaves us with the circumstance of motive. We find that solely on the basis of circumstance of movie, a conviction cannot be based. As held by this Court in the case of Shard 3 (2012) 4 SCC 124 4 (2020) 10 SCC 733 5 2024 INSC 788 10 Birdhichand Sharda (supra), a suspicion, however strong it may be, cannot take the place of a proof beyond reasonable doubt. As has been held by this Court in the case of Shard Birdhichand Sharda (supra), there is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved”. It is a primary principle that the accused “must be” and not merely “may be” guitly before a court can convict and every possible hypothesis except the guilt of the accused has to be ruled out. In our considered opinion, in the present case, the prosecution has failed to do so. We are therefore of the considered view that the impugned judgment and order of the High Court as well as the trial Court are not sustainable in law.” In the instant case, the quarrel took place in between the appellant No.2 and wife of Lekhram Suryavanshi (PW-8) at the time of Mahashivratri and that cannot be held to be the motive attributable for the commission of offence. As such, the motive of offence is not proved and the finding in this regard by the trial Court is not based on the evidence available on record and accordingly, we hereby reject the finding of the trial Court with regard to motive of offence. (ii) The second incriminating circumstance which has been found proved by the trial Court is that the death of deceased is homicidal in nature, which we have already held in foregoing 11 paragraph that the trial Court has rightly found proved that the death of deceased was homicidal in nature. (iii) The third and fourth incriminating circumstances, which have been found proved by the trial Court are that pursuant to memorandum statement of the appellants Exs.P-15 & P-15A, the weapon of offence i.e. Bamboo Lathis were seized vide Exs.P-16 & P-17, in which human blood was found in the FSL report (Ex.P-28), which has been supported by the prosecution witnesses namely Devcharan (PW-9) and Ramprashad (PW- 10). Though, the blood stained Bamboo Lathis have been seized pursuant to memorandum statement of the appellants, but it is well settled law that disclosure alone would not automatically lead to conclusion that offence was also committed by accused and, therefore, burden lies on prosecution to establish a close link between discovery of material object and its use in commission of offence. In this regard, Their Lordships of the Supreme Court in the matter of Mustkeem Alias Sirajudeen v. State of Rajasthan6, held as under : 25. With regard to Section 27 of the Act, what is important is discovery of the material object at the 6 (2011) 11 SCC 724 12 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 Emperor7 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 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." 7 AIR 1947 PC 67 13 Furthermore, in the FSL report (Ex.P-28), human blood was found on the seized Bamboo Lathis, however, merely on the basis of FSL report, the appellants cannot be convicted in light of the decision rendered by the Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh 8 . In that view of the matter, the FSL report is of no use to the prosecution. (iv) The last incriminating circumstance which has been found proved by the trial Court is that the appellants and deceased were lastly seen together by Ramcharan (PW-1). Ramcharan (PW-1) in his statement before the Court has stated that he had seen the appellants walking behind the deceased when the deceased was going to his house after completion of Jagrata program and thereafter, in the late night, he was informed by Satanand that Dashrath was murdered. However, Satanand Suryavanshi (PW-16) has only stated that the two appellants herein armed with Lathis were present in Jagrata program, but he did not say that he had seen the appellants and deceased together in Jagrata program. As such, in view of the aforesaid discrepancies in the statements of the leading witnesses, the theory of last seen together is not established. 8 2024 SCC Online SC 67 14 12. In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the 'panchsheel' of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellant for offence under Section 302 read with Section 34 of I.P.C. being the perpetrator/ author of the crime in question in light of the incriminating circumstances culled out in para 9 of the impugned judgment and same are liable to be set aside. 13. Accordingly, the impugned judgment of conviction and order of sentence dated 30.04.2016 is set aside. The appellants stand acquitted giving them benefit of doubt from the charge framed against them for the offence punishable under Section 302 read with Section 34 of I.P.C. The appellants are already on bail, they need not surrender; however, their bail bonds 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. 14. In the result, the appeal is allowed. 15 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) (Deepak Kumar Tiwari) Judge Judge Ashok