1 2025:CGHC:22618-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1317 of 2015 Tangaru Pahadi Korawa S/o Etawa Pahadi Korawa, Aged About 40 Years, Occupation Agriculture, R/o Village Badi Chalgali, P.S. Rajpur, Distt. Balrampur Ramanujganj (Chhattisgarh) … Appellant(s) versus State Of Chhattisgarh Through P.S. Shankargarh, Distt. Balrampur Ramanujganj, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Rishi Rahul Soni, Advocate For Respondent(s) : Mr. Afroz Khan, Panel Lawyer DIVISION BENCH Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ. Judgment on Board 09/06/2025 SHYNA AJAY Digitally signed by SHYNA AJAY Date: 2025.06.13 14:45:07 +0530 2 Sanjay K. Agrawal, J. 1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, 1973 (in short ‘Cr.PC’), the present criminal appeal has been preferred by the appellant, calling in question the legality, validity and correctness of the judgment dated 02.09.2015 passed by the learned Additional Judge to Additional Sessions Judge, Ramanujganj, District Sarguja (Ambikapur) CG in Sessions Case No.R-13/2013, by which, the appellant has been convicted and sentenced as under :- Conviction Sentence Under Section 302 of the IPC Rigorous imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine, to undergo additional rigorous imprisonment for one month. Under Section 201 of the IPC Rigorous imprisonment for 3 years and to pay fine of Rs.100/-, in default of payment of fine, to undergo additional rigorous imprisonment for 5 days Both the sentences will run concurrently 3 2. Case of the prosecution, in short, is that in between 21.6.2013 and 23.6.2016, the appellant assaulted his wife Jalahi Bai and in order to screen himself from the offence, concealed her dead body and thereby, committed the offence. Poko Pahadi Korwa (died during trial), brother of Jalahi Bai, gave an information vide Ex.P-4 to the Police on 23.6.2013 stating that on 21.6.2013, the appellant along with his wife (deceased) had come to his house for inviting him to attend a death ritual program of his father. At about 12:00 noon, while returning, some quarrel took place between the appellant and his wife Jalahi Bai, during which, he hit her twice with the handle of a Tangia. When Polo Pahadi Korwa forbade him from doing so, he along with his wife left his house crossing a barren field. Subsequently, on 23.6.2013, the dead body of Jalahi Bai was found lying under a tree in the said area . Thereafter, inquest report (Ex.-P/6) was prepared and the FIR (Ex.-P/3) was registered. The dead body of the deceased was sent for postmortem examination, which was conducted by Dr. Shashikala Toppo (PW-6) and she gave her report vide Ex.P/7A opining that the cause of death was shock due to excessive subdural haemorrhage and head injury; and the death was homicidal in nature. 4 3. Pursuant to the memorandum statement (Ex.P/10) of the appellant, a Tangia was seized vide Ex.P/11. After due investigation, the appellant herein was chargesheeted for the aforesaid offences 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 charges, the prosecution examined as many as 6 witnesses and exhibited 16 documents. 5. Learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellant as mentioned above, against which, this Appeal has been preferred by the appellant. 6. Learned counsel for the appellant would submit that the trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 and 201 of the IPC as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that the appellant has been convicted solely on the basis of the last seen theory, as stated in the FIR (Ex.P/3), however, the maker of the FIR has already died. He submits that in view of the principle laid down in the matter of Lalita Vs. Vishwanath and others,1 an accused cannot be convicted solely on the basis of the 1 2025 SCC OnLine SC 370 5 maker of the FIR, who could not be examined on account of his death. Thus, the appeal deserves to be allowed and the appellant is entitled for acquittal. 7. 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 the aforesaid offence. The appellant is not entitled for acquittal and the Appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions and have gone through the record with utmost circumspection. 9. The first question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative relying upon the Postmortem Report (Ex.-P/7A), which is proved by Dr. Shashikala Toppo (PW-6), wherein, it was opined that the death was homicidal in nature, and we do not find any illegality in the said finding, as the same is neither perverse nor contrary to the record and the said finding is hereby affirmed. 6 10. Now, the next question is, whether the trial Court has rightly held the appellant to be the author of crime in question? 11.Case of the prosecution is not based on direct evidence; it is mainly based on circumstantial evidence, particularly the theory of last seen together. 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 2 in paragraph 152, which reads 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 Sahabrao Bobade v. 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 (1984) 4 SCC 116 3 (1973) 2 SCC 793 7 (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. In the present case, the trial Court has relied upon the following three incriminating circumstances against the appellant in para 9 of the impugned judgment, which read as under :- ^^izFke& ;g gS fd e`frdk ,oa vfHk;qDr ifr ifRu gS] tks fnukad 21-06-2013 dks e`frdk ds HkkbZ iksdks igkM+h dksjok ds ?kj vk;s Fks] tgka ls nksuksa ,d lkFk vius ?kj xzke ckM+h pyxyh tkus ds fy, fudys Fks] mlh le; vfHk;qDr us e`frdk ls >xM+k dj Vkaxh ds csaB ls nks ckj ekjk Fkk] f}rh;& e`frdk dks vafre ckj vfHk;qDr ds lkFk ns[kk x;k Fkk rFkk r`rh;& vfHk;qDr dks vfHkj{kk esa ysdj iwNrkN fd;k x;k vkSj mlds cjkenxh Kkiu ds vk/kkj ij ?kVuk esa iz;qDr Vkaxh tIr fd;k x;k FkkA** 8 13. We shall consider the aforesaid incriminating circumstances found proved by the trial Court one by one to find out whether the learned trial Court is justified in convicting the appellant for the offence under Sections 302 and 201 of the IPC. Incriminating Circumstance Nos.1&2 14. As regards these circumstances, on 21.6.2013, the appellant and his wife Jalahi Bai, both visited the house of Poko Pahadi Korwa, brother of the deceased. Thereafter, both the husband and wife left the house together and ultimately, the dead body of the deceased-wife was found on 23.6.2013 . Consequently, the FIR (Ex.P/3) was registered at the instance of Poko Pahadi Korwa. However, it is an admitted position on record that Poko Pahadi Korwa, who was the witness to the last seen together of the appellant and the deceased, had already departed for heavenly abode before he could be examined before the Court as Prosecution Witness, therefore, he could not appear before the Court to examine himself as a prosecution witness. Ultimately, the trial Court proceeded to rely upon the FIR (Ex.P/3) as substantive piece of evidence, since the other witness Bulchu Pahadi (PW-3) was a hearsay witness, who was informed about the incident by Poko Pahadi Korwa (died during trial). 9 15.Now, the question is whether the trial Court was justified in relying upon the FIR (Ex.P/3) as substantive piece of evidence, as its maker - Poko Pahadi Korwa, could not be examined on account of his death during trial? 16.It is well settled that if the informant dies, the FIR can be used as a substantive evidence, but before the FIR is taken as a substantive piece of evidence, the death of the informant must have nexus with the FIR lodged or somehow having some link with any evidence regarding the FIR (See Damodar Prasad V. State of UP4). 17.It is also well settled that an FIR can be taken as a dying declaration if the informant dies of his injuries after lodging the same (See : Munna Raja Vs. State of M.P.)5. 18. In Lalita (supra), their Lordships of the Supreme Court have considered the issue as to whether the FIR can be used as a substantive piece of evidence, particularly when the maker of FIR/informant dies and thus held in para-34 as under : 34. Another important thing is that for an F.I.R. lodged by a deceased person to be treated as substantial, its contents must be proved. It has to be corroborated and proved for there to be any value of the same in the case. The F.I.R. can be used by the defence to impeach the credit of the person who 4 (1975) 3 SCC 851 5 (1976) 3 SCC 104 10 lodged the F.I.R. under Section 154(3) of the Evidence Act. In case the death of the informant has no nexus with the complaint lodged i.e. he died a natural death and did not succumb to the injuries inflicted on him in relation to a matter, the contents of the F.I.R. would not be admissible in evidence. In such circumstances, the contents cannot be proved through the Investigating Officer. The Investigating Officer, in the course of his deposition, should not be permitted to depose the exact contents of the F.I.R. so as to make them admissible in evidence. All that is permissible in law is that the Investigating Officer can, in his deposition, identify the signature of the first informant and that of his own on the First Information Report and he can depose about the factum of the F.I.R. being registered by him on a particular date on a particular police station. 19. Reverting back to the facts of the present case, in light of the decision of the Supreme Court in Lalita (supra), it is quite vivid that admittedly, Poko Pahadi Korwa was the lodger of the FIR, who was cited as a witness to the last seen theory, however, during the trial, before his examination, he died and therefore, he could not be examined as prosecution witness. As such, the death of the above prosecution witness has no nexus with the complaint lodged as he died natural death and it is not the case of the prosecution that he suffered injuries in the subject crime. Therefore, in our view, the FIR (Ex.P/3) is not admissible in evidence in the absence of examination of its maker - Poko Pahadi Korwa, and there is no other 11 evidence to prove the theory of last seen together. Therefore, the prosecution has not been able to establish that the appellant and the deceased were last seen before the incident and as such, the theory of last seen together is not established. Recovery of weapon (third circumstance) 20. Though the weapon of the offence has been seized at the instance of the appellant. However, recovery of weapon would not automatically lead to the conclusion that the offence was committed by the accused. Furthermore, 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. (See Mustkeem alias Sirajudeen Vs. State of Rajasthan6). Furthermore, the weapon of offence was also not subjected to forensic examination and as such, the third circumstance is also not established. Therefore, the appellant is entitled to acquittal on the ground of benefit of doubt. 21. In view of the foregoing discussion, the Appeal is allowed. Conviction and sentence imposed on the appellant under Sections 302 and 201 of the IPC are set aside and he is acquitted of the said charge. The appellant is on bail. He 6.(2011) 11 SCC 724) 12 need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months in view of the provisions contained under Section 437-A of the Cr.P.C. 22. 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 Shyna