1 CRA No. 1388 of 2018 2025:CGHC:32910-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1388 of 2018 [Arising out of judgment dated 09.07.2018 passed in Sessions Trial No.23/2017 by the Additional Judge to the Court of Additional Sessions Judge, Mungeli, District Mungeli, Chhattisgarh.]  Akkal Gond S/o Sundra Gond, aged about 20 years, R/o village - Jhiriya, Chowki - Khudiya, Police Station - Lormi, District - Mungeli, Chhattisgarh, District : Mungeli, Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Station House Officer, Police Station - Lormi, District - Mungeli, Chhattisgarh. ... Respondent For Appellant :- Mr. Shailendra Sharma, Advocate. For State-Respondent :- Mr. Amit Buxy, Panel Laywer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sachin Singh Rajput Judgment On Board (15.07.2025) Sanjay K. Agrawal, J 1. This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.07.18 17:51:39 +0530 2 CRA No. 1388 of 2018 judgment of conviction and order of sentence dated 09.07.2018 passed by the Additioanl Judge to the Court of Additional Sessions Judge, Mungeli, District Mungeli, Chhattisgarh in Sessions Trial No. 23/2017 by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of ₹ 500/-; in default of payment of fine to undergo additional rigorous imprisonment for 3 months. Prosecution Case :- 2. The case of the prosecution as projected and accepted by the trial Court is that on 01.03.2017 at about 4:00 pm, at the house of Budhram Gond village Jhiriya, Chowki Khudiya, Thana Lormi, the appellant assaulted Sukhram Gond by axe by which he suffered grievous injuries and died and thereby committed the aforesaid offence. The said incident was reported by wife of the deceased Rajani Bai (PW-3) pursuant to which unnumbered dehati merg intimation and dehati first information letter were registered vide Exs..P/3 & P/4, respectively. Thereafter, merg intimation and FIR were registered vide Exs. P/18 & 17, respectively. Nazari naksha was prepared vide Ex.P/7. Inquest proceedings (Ex.P/5) were conducted and the dead body of the 3 CRA No. 1388 of 2018 deceased was sent for the postmortem. As per the postmortem report (Ex.P/9) proved by Dr. Rupesh Sahu (PW-6), cause of death was cardio-respiratory arrest due to traumatic brain damage and homicidal in nature. Wheels of investigation started running and the appellant was arrested. Pursuant to memorandum statement of the appellant (Ex.P/11) clothe of the appellant was seized vide Ex.P/12. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/25) on the vest (Article C i.e. बनिया) of the appellant blood was found and on the pant of the appellant (Article D) and axe human blood was found. 3. After due investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution has examined as many as 13 witnesses and exhibited 25 documents and defence in support of its case has not examined any witness, but exhibited one document. 4 CRA No. 1388 of 2018 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission :- 6. Mr. Shailendra Sharma, learned counsel for the appellant, would submit that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He would also submit only on the basis of recovery of alleged vest (बनिया) pursuant to memorandum statement of the appellant, the appellant has been convicted for the offence in question, however, the memorandum witnesses namely Bablu Yadav (PW-7) and Naresh Kumar Nilgam (PW-8) have not supported the prosecution case. He would further submit that except the FSL report (Ex.P/25), the prosecution has failed to bring the other corroborative piece of evidence in support of FSL and only on the basis of forensic evidence the conviction of the appellant is not sustainable in law in light of decision of the Supreme Court in the matter of Raja Naykar v. 5 CRA No. 1388 of 2018 State of Chhattisgarh 1 . Thus, the appellant is entitled for acquittal on the basis of benefit of doubt and the present appeal deserves to be allowed. 7. On the other hand, Mr. Amit Buxy, learned State counsel, would support the impugned judgment and submit that prosecution has been able to prove the offence against the appellant beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He would also submit that in the FSL report (Ex.P/25) on the vest of the appellant human blood was found which corroborates the appellant in commission of crime. Therefore, the present appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records meticulously. Discussion & Analysis :- 9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/9) proved by Dr. Rupesh Sahu (PW-6), which, in our considered opinion, is a 1 2024 SCC Online SC 67 6 CRA No. 1388 of 2018 correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 10. Now, the question for consideration would be whether the appellant has assaulted the deceased? 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 v. State of Maharashtra 2 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. 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. 2 (1984) 4 SCC 116 7 CRA No. 1388 of 2018 State of Maharashtra3 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 appellant on the basis of memorandum statement of the appellant (Ex.P/11) pursuant to which vest of the appellant was recovered (Ex.P/12) and on which in the chemical examination blood was found and also on the pant of the appellant and weapon of offence i.e. axe human blood was found vide FSL report vide Ex.P/25. 13.Now, the question for consideration would be whether the appellant has rightly been convicted on the basis of seizure of his 3 (1973) 2 SCC 793 8 CRA No. 1388 of 2018 bloodstained clothe (vest) which were recovered pursuant to memorandum statement of the appellant and on which human blood was found in the FSL report? 14.However, it is well settled law that the disclosure alone would not automatically lead to conclusion that offence was also committed by the accused and, therefore, the burden lies on prosecution to establish a close link between the 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 Rajasthan 4 , have held in paragraphs No.25 to 27 which states 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 Rajasthan5. 4 (2011) 11 SCC 724 5 (2011) 12 SCC 545 9 CRA No. 1388 of 2018 27. The scope and ambit of Section 27 were also illuminatingly stated in Pulukuri Kotayya v. King Emperor6 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 Rajasthan7.” 15.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 decision, it is quite vivid, as per the prosecution case, the bloodstained clothe (vest) of the appellant i.e. vest was recovered pursuant to memorandum statement of the appellant, 6 (1946-47) 74 IA 65 : AIR 1947 PC 67 7 (2004) 3 SCC 657 10 CRA No. 1388 of 2018 however, the memorandum witnesses namely Babalu Yadav (PW-7) and Naresh Kumar Nilgam (PW-8) have turned hostile and not supported the memorandum statement of the appellant and the case of the prosecution and, as such, the seizure of bloodstained clothe (vest) (Ex.P/12) pursuant to memorandum statement of the appellant (Ex.P/11) is of no use to the prosecution in light of the decision of the Supreme Court in the matter of Mustkeem alias Sirajudeen (supra). 16.The trial Court has relied upon the forensic evidence (Ex.P/25) to base the conviction of the appellant. As per the FSL report (Ex.P/25) on the weapon of offence i.e. axe and jeans of the appellant human blood was found and on the vest of the appellant only blood was found. However, it is well settled that only on the basis of forensic evidence appellant could not be convicted that too for offence under Section 302 of the IPC without corroboration in view of the decision of the Supreme Court in the matter of Raja Naykar (supra) as such, in view of the above, it would be unsafe to base the conviction of the appellant that too for offence under Section 302 of the IPC. 11 CRA No. 1388 of 2018 17. Accordingly, the prosecution has failed to discharge its primary burden of providing its case and also failed to complete the chain of circumstances in light of the decision of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra) and the appellant is entitled for acquittal on the basis of benefit of doubt. Conclusion :- 18.In view of the above discussion and analysis, the impugned judgment of conviction and order of sentence dated 09.07.2018 passed by the trial Court, is hereby set aside and the appellant is entitled for acquittal on the basis of benefit of doubt. Appellant is stated to be on bail. He need not surrender. However, his bail bonds shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 19.Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any. S Sd/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge Ankit