1 2025:CGHC:23309-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 979 of 2016 1 - Bahadur Ram S/o Late Maya Ram Aged About 34 Years Caste Uraon, R/o Village Gullu, Chowki Sonkyari, Thana Sanna, District Jashpur, Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through The Police Station Jashpur, District Jashpur, Chhattisgarh. ... Respondent(s) For Appellant : Shri NK Malviya, Advocate. For Respondent(s) : Shri Ashutosh Shukla, Panel Lawyer. Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (12/06/2025) Deepak Kumar Tiwari, J 1. This Criminal Appeal preferred by the accused/appellant under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and sentence dated 23.7.2016 passed by the Sessions Judge, District Jashpur in ST No.11/2016 by which the appellant has been convicted and sentenced as under:- KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.06.16 11:48:43 +0530 2 Conviction Sentence Under Section 364(A) of the IPC RI for life with a fine of Rs.20,000/-, in default of payment of fine to further undergo RI for 2 years. Under Section 201 of the IPC RI for 5 years with a fine of Rs.5,000/-, in default of payment of fine to further undergo RI for 1 year. 2. Case of the prosecution, in brief, is that deceased Ku. Suganti Bai, aged about 16 years, was the only daughter of (PW-12) Baguram and (PW-13) Rujani. She was studying in class-10th in Motilal High School at village Lokhandi. On 12th September in the morning at about 9 am the deceased left the house after informing her father that she was going to Jashpur market, but thereafter she did not return. Father of the deceased lodged a report on 9.10.2015 at Police Station Lodam vide Ex.-P/22 and numbered FIR was registered at Police Station Jashpur under Crime No.280/15 under Section 363 of the IPC vide Ex.-P/21. Radheshyam (PW-2) informed the Police Station Narayanpur on 17th September, 2015 in the morning at about 7.30 am and lodged merg intimation vide Ex.-P/7 alleging that a dead body of young girl aged about 17 years is lying near Ambadah under the Churi Ghat of Eeb river. 3. Inquest was conducted after giving intimation to the witnesses vide Ex.-P/8. Naksha Panchayatnama was prepared vide Ex.- P/9. Crime details form was prepared vide Ex.-P/11. From the Churi waterfall from where the dead body was found, water was collected vide Ex.-P/12. To perform the last rites, the dead body 3 was handed over to the village people of village Bene as unknown dead body. 4. Dr. Sangita Tirki (PW-5) has conducted postmortem on 17th September, 2015 vide Ex.-P/14 and she opined that the cause of death is Asphyxia due to drowning and the nature of death is uncertain. From the photographs and clothes of the deceased, the mother of the deceased has identified the dead body to be of her daughter Ku. Suganti vide Ex.-P/20. During postmortem, right femur and tibia fibula bones were preserved. Dr. Ashutosh Tirki (PW-16) has collected blood samples of father and mother of the deceased for DNA examination vide Ex.-P/30 & P/31 and the same were sent for DNA examination. In the DNA report (Ex.-P/33), (PW-13) Rujani was found to be the biological mother whereas sample of the father was not matched. 5. During investigation, memorandum statement of the accused/ appellant was recorded vide Ex.-P/2 and in pursuance of the same, the weapon of offence i.e. thermocol cutter was seized. Call details of the deceased and the appellant were collected. 6. Statements of the witnesses were recorded. After completion of the investigation, charge sheet was filed. The appellant abjured his guilt and claimed to be tried. 7. In order to bring home the charges, the prosecution examined as many as 22 witnesses and exhibited 35 documents. The accused/ appellant in his statement recorded under Section 313 4 of the CrPC has stated that he has been falsely implicated. However, he has not adduced any defence witness. 8. The learned trial Court after appreciating the oral and documentary evidence available on record convicted and sentenced the appellant as mentioned in para-1 of this judgment, against which this Appeal has been preferred by the appellant. 9. Learned counsel for the appellant would submit that the prosecution has failed to prove the offence beyond reasonable doubt, as the death is established to be on account of drowning, however, it has not been established that the death was homicidal in nature or it was the appellant who pushed the deceased into waterfall because of which she drowned and died. The trial Court merely on the basis of assumption has convicted the appellant, though the chain of circumstances is not complete and not of such a nature which can be made basis for his conviction. There is no satisfactory evidence that the appellant has thrown the deceased into Churi fall. He would further submit that Dr. Sangita Tirki (PW-5), who has conducted postmortem (Ex.-P/14) on the dead body of the deceased, has not given any definite opinion regarding nature of death. The trial Court in its judgment at para-25 did not find any error or raise suspicion on such information. Only on the basis that the appellant and the deceased were in love, for which the prosecution has produced the call details, which has also not been proved in legal manner, as no mandatory 5 certificate under Section 65-B of the Indian Evidence Act has been brought on record, which was condition precedent in view of the judgment of the Supreme Court in the matter of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal1 the appellant was convicted. He would further submit that in pursuance of the memorandum (Ex.-P/2) given by the appellant, thermocol cutter was seized vide Ex.-P/3, however, witnesses to the memorandum and seizure namely, (PW-1) Ramdhani Ram and (PW-3) Sukhram have turned hostile and no FSL report has been filed. He would further submit that even the identity of the dead body was not established by the prosecution. Dr. Ashutosh Tirki (PW-16), who collected the samples vide Ex.-P/30 & P/31 of the father and mother of the deceased, has not stated in his statement about such nature of collection of evidence, which cannot be proved by the statement of the I.O. alone. Further, only from the clothes of the deceased, mother of the deceased has identified, which is not sufficient to convict the appellant particularly under Section 302 of the IPC. Considering the above infirmities, the prosecution has utterly failed to prove the charges against the appellant beyond reasonable doubt. The appellant is entitled for acquittal and the Appeal deserves to be allowed. 10. Per contra, learned State Counsel would support the impugned judgment of conviction and submit that the prosecution has been able to bring home the charges beyond reasonable doubt and the trial Court has rightly convicted the appellant for 1 (2021) 7 SCC 1 6 aforesaid offence and, therefore, the Appeal deserves to be dismissed. 11. We have heard learned counsel for the parties, considered their rival submissions and have gone through the records with utmost circumspection. 12. The first and foremost question is whether the death of the deceased was homicidal in nature or not? In the entire judgment of the trial Court, the trial Court has not given any clear finding on this aspect. Further, the trial Court at para-25 of the judgment did not find any error or raise suspicion regarding opinion in the autopsy report (Ex.-P/14), as Dr. Sangita Tirki (PW-5), who has conducted the postmortem, has only opined that the cause of death is Asphyxia due to drowning and the nature of death is uncertain. There is absolutely lack of eyewitness account that it was the appellant who had thrown the deceased in the Churi fall, though it is quite established that the deceased died on account of drowning. In the circumstances, we are of the opinion that the prosecution has failed to establish that the death of the deceased was homicidal in nature. 13. Now the next question would be whether the accused/appellant herein is the author of the crime in question. 14. In the present case, there is no direct evidence and the case of the prosecution rests 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 7 by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtra2 which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-152 as under:- “152.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 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 2 (1984) 4 SCC 116 8 probability the act must have been done by the accused.” 15. In the present case, the trial Court has relied upon the call details of the mobile which was used by the deceased, as the mobile belonged to her father and the mobile of the appellant. However, no such specific question was put to the accused/ appellant under Section 313 of the CrPC regarding the call details which were collected from the mobile No.9753806707 used by the deceased and the mobile No.7089587329 of the appellant at the time of offence. The I.O. Rajesh Xalxo (PW-22), Sub Inspector, admits that he has seized the call details from Head Constable Martin Xalxo (not examined) vide seizure memo Ex.-P/27. However, no service provider of the company has been examined. Perusal of the call details (Ex.-P/28) shows that the same does not fulfill the necessity of mandatory certificate as required under Section 65B(4) of the Evidence Act which is a condition precedent in view of the judgment of the Hon’ble Supreme Court in the matter of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Others3 wherein their Lordships have held that certificate required under Section 65B(4) of the Evidence Act is a condition precedent to the admissibility of secondary evidence by way of electronic evidence as laid down in Anvar P.V. Versus P.K. Basheer4 and held at para-61 as under:- “61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of 3 (2020) 7 SCC 1 4 (2014) 10 SCC 473 9 evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor5, which has been followed in a number of the judgments of this Court, can also be applied. Section 65- B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65- B(4) otiose.” 16. Apart from that, as per the prosecution case, although the deceased and the appellant were in love relation, it may be possible that the deceased might have fallen in the waterfall accidentally. 17. On close scrutiny of the evidence on record, it appears that the prosecution has utterly failed to establish the identify of the dead body of the deceased. Mother of the deceased only on the basis of clothes has identified the deceased vide Ex.-P/20 and similar is the statement of father of the deceased Baguram (PW- 12). This witness has not stated that any photograph has been shown to them as mentioned in Ex.-P/20. Further, the prosecution has also conducted the proceeding for identification of the deceased through DNA vide Ex.-P/33. Though in the said report, mother of the deceased was found to be biological mother but the relation of the father was not established. 18. It is significant to note that the prosecution has also not proved the collection of blood samples from the father and mother of the deceased vide Ex.-P/30 & P/31, which was done by Dr. Ashutosh Tirki (PW-16), but in the Court statement, the said 5 (1875) LR 1 Ch D 426 10 doctor has given the statement only in respect of Ex.-P/19 that he has examined the appellant and found him physically and mentally fit, and the said doctor has not given any statement with regard to Ex.-P/30 & P/31. The aforesaid documents cannot be proved by the IO alone because the sample has been collected by Dr. Ashutosh Tirki (PW-16) and this witness is silent on such aspect about collection of sample. 19. Further, report of the DNA has also lost its significance, as the dead body of the deceased was cremated by the villagers as unknown dead body. Looking to such nature of evidence, we are of the view that identity of the dead body is also not established. 20. The prosecution has also relied upon the memorandum statement (Ex.-P/2) of the appellant, in pursuance of which thermocol cutter was seized vide Ex.-P/3, but the witnesses to the memorandum and seizure namely, PW-1 Ramdhani Ram and PW-3 Sukhram have turned hostile and not supported the proceeding conducted by the IO. Moreover, no FSL report has been filed regarding the weapon used in the offence. Merely on the basis of love letters seized, the appellant cannot be connected with the crime in question. 21. On the basis of aforesaid discussion, we are of the considered opinion that the prosecution has utterly failed to complete the chain of circumstances inasmuch as the dead body of the deceased was not established, nature of death is also not proved and the trial Court only on the basis of presumption has 11 convicted the appellant and the said finding recorded by the trial Court is not sustainable. 22. In the result, the Appeal is allowed. Conviction and sentences imposed on the appellant under Section 364 (A) & 201 of the IPC are set aside and he is acquitted of the said charges. It is made clear that the appellant is being acquitted by extending benefit of doubt. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. 23. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Barve