1 2025:CGHC:17125-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1498 of 2015 1 - Joy Thankan @ Molu S/o Kirti Puri Parigan Thankan, Aged About 32 Years Caste Kaser, R/o Village Maanpur, Kaserpara, Surajpur, Police Station Surajpur, District Surajpur, Chhattisgarh, 2 - Gunjan Mahraj S/o Late Shri Brahmadev Mahraj, Aged About 22 Years R/o Village Sanhaparora, Post Begusarai, Police Station Begusarai, District Patna Bihar, At Present Resident Of New Mines Ward No.5 Pondi, Police Station Pondi, District Koria, Chhattisgarh, 3 - Roshan Kumar Soni @ Chhotu S/o Manikchand Soni, Aged About 21 Years Caste Kaser, R/o Mahuapara, Bhaiyathan, Police Station Bhaiyathan, District Surajpur, At Present Resident Of New Mines Quarter, Molana Azad Dafai, Ward No.5 Pondi, Police Station Pondi, District Koria, Chhattisgarh, District : Koriya (Baikunthpur), Chhattisgarh 4 - Tinu Narayan Prasad @ Tinu S/o Paneshwar Prasad, Aged About 22 Years R/o Village Bhaukara, Nawapara, Police Station Rajpur, District Balrampur, Chhattisgarh, At Present Resident Of New Mines Ward No.5 Quarter No.338, Pondi, Police Station Pondi, District Koria, Chhattisgarh, ... Appellant(s) versus 1 - State Of Chhattisgarh Through- Station House Officer, Police Station- Chirmiri, District Koria, Chhattisgarh, ... Respondent(s) KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.04.16 18:55:11 +0530 2 For Appellants : Shri Sunil Otwani, Advocate. For Respondent(s) : Shri Arvind Dubey, Govt. Advocate. Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (15/04/2025) Sanjay K. Agrawal, J 1. Appellant No.1 - Joy Thankan @ Molu, appellant No.2 – Gunjan Mahraj, appellant No.3 – Roshan Kumar Soni @ Chhotu & appellant No.4 – Tinu Narayan Prasad @ Tinu have preferred by this Appeal under Section 374 (2) of the CrPC questioning the legality, validity and correctness of the judgment of conviction and order of sentence dated 28.10.2015 passed by the Sessions Judge, Baikunthpur, District Korea in ST No.136/2014 by which the appellants have been convicted and sentenced as under:- Conviction (In respect of Appellant No.1) Sentence Under Section 506 Part-II of the IPC RI for 3 years & to pay a fine of Rs.500/-. Under Section 109 read with Section 506 Part-II of the IPC RI for 3 years & to pay a fine of Rs.500/-. Under Section 109 read with Section 302 of the IPC RI for life & to pay a fine of Rs.500/-. Under Section 109 read with Section 307 of the IPC RI for 10 years & to pay a fine of Rs.500/-. In default of payment of total fine amount of Rs.2,000/- (all Sections), the appellant was directed to 3 undergo RI for 3 months under each count. Conviction in respect of appellants No.2 to 4 Sentence Under Section 120-B of the IPC RI for life & to pay a fine of Rs.500/- each. Under Section 460 of the IPC RI for 10 years & to pay a fine of Rs.500/- each. Under Section 302 of the IPC. RI for life & to pay a fine of Rs.500/- each. Under Section 307 of the IPC. RI for 10 years & to pay a fine of Rs.500/- each. In default of payment of total fine amount of Rs.2,000/- (all Sections), the appellants were directed to undergo RI for 3 months under each count. 2. Case of the prosecution, in brief, is that on 6.9.2014, in the early morning at about 3-4 am, the appellant No.1 hatched a conspiracy with appellant Nos.2 & 3 to commit murder of his mother-in-law Manbasiya. In furtherance of the conspiracy, the accused persons commited house trespass and committed her murder and also caused serious injuries to (PW-9) Shukla Soni. Merg intimation (Ex.-P/2) was lodged by (PW-1) Ashok Kumar, son of the deceased. FIR (Ex.-P/1) was also lodged by the said witness. Inquest was conducted vide Ex.-P/9. The spot map was also prepared. The dead body of the deceased was sent for postmortem examination which was conducted by Dr. Pradeep Kumar Rohan (PW-14) and he gave his report Ex.-P/37 opining that the cause of death is shock due to 4 antemortem haemorrhage from scalp and neck wound and the death is homicidal in nature. 3. In pursuance of the memorandum given by appellant No.1 - Joy Thankan, one Nokia mobile was seized. Pursuant to the memorandum given by Appellant No.2 – Gunjan Mahraj, two knives were seized which were stained with blood. In pursuance of the memorandum given by appellant No.3 – Roshan Kumar Soni, clothes were recovered. In pursuance of the memorandum given by appellant No.4 – Tinu Narayan, one key of lock was seized. The seized articles were sent to the Forensic Science Laboratory for examination and as per the FSL report (not exhibited), blood was found on the knife seized from accused Gunjan Mahraj as also on the clothes seized from appellant No.3 – Roshan. 4. In order to bring home the charges, the prosecution examined as many as 19 witnesses and exhibited 50 documents. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellants as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellants- accused questioning the impugned judgment of conviction and order of sentence. 6. Learned counsel appearing for the appellants submits that there is 5 no evidence against the appellant No.1 showing his involvement in commission of the crime. The only evidence against appellants No.2 & 3 is the seizure of knife and bloodstained clothes respectively. Though the FSL report is positive, but there is no serologist’s report and no question in this regard was put to these appellants in their statements recorded under Section 313 of the CrPC. It has also not been proved that the knife which was seized was used in commission of offence. Therefore, the appellants are entitled for acquittal. 7. On the other hand, learned State counsel would support the impugned judgment of conviction and order of sentence and would submit that the prosecution has proved the offence beyond reasonable doubt. 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. 9. The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/37), wherein it has been opined that cause of death of deceased is shock due to antemortem haemorrhage from scalp & neck wound, which is duly proved by the statement of Dr. PK 6 Rohan (PW-14). Accordingly, taking into consideration the postmortem report (Ex.P/37) and the statement of Dr. PK Rohan (PW-14), who has conducted postmortem on the dead-body of the deceased, we are of the considered opinion that death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. 10. Now the next question would be whether the accused/appellants herein are the author of the crime in question. 11. In the present case, 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 by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtra1 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 1 (1984) 4 SCC 116 7 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 probability the act must have been done by the accused.” 12. In the present case, the trial Court has relied upon the following circumstances against the appellants for basing conviction:- (i) ;g fd vfHk;qDr dza 1 Tok; Fkudu mQZ eksyw us fnukad 6-9-2014 dks mudh iRuh euh"kk tks ek;ds esa jgrh Fkh] okil llqjky ugha vkrh Fkh blfy, vfHk;qDr vius lkyk v’kksd dqekj dks tku ls ekjus dh /kedh fn;k] ftlls v’kksd dqekj Hk;xzLr gqvk vkSj mls la=kl dkfjr gqbZA (ii) blh rjg bl vfHk;qDr us izkFkhZ v’kksd dqekj dsk ekjihV djus ds fy, vfHk;qDr jks’ku vkSj vfHk;qDr xaqtu egjkt dks nq"izsfjr fd;kA (iii) blh rjg vfHk;qDr eksyw ds f[kykQ ;g Hkh izekf.kr gksrk gS fd mlus fnukad 6-9-2014 dsk viuh iRuh ds ek;ds okyksa dh gR;k djus ds fy, ipkl gtkj #- vfHk;qDr 8 xqatu vkSj vfHk;qDr jks’ku dks nsdj nq"izsfjr fd;k] ftlds ifj.kkeLo#i vfHk;qDr xqatu vkSj vfHk;qDr jks’ku vkSj vfHk;qDr Vhuw ukjk;.k us eucfl;k ds ekuo fuokl esa x`g Hksnu djus ds vuqdze esa eucfl;k dh gR;k dj fn;kA (iv) blh rjg vfHk;qDr Tok; Fkudu ds nq"izsfjr djus ds ifj.kkeLo#i vfHk;qDr xqatu egjkt] vfHk;qDr jks’ku vkSj vfHk;qDr Vhuw ukjk;.k us izkFkhZ 'kqDyk lksuh dh gR;k djus dk iz;kl fd;sA 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 appellants for the offences mentioned in para-1 of this judgment. 14. As regards the first circumstance, the appellant No.1 has threatened his brother-in-law (PW-1) and his father (PW-9) to kill. However, careful perusal of the statement of PW-1 would show that the threat was extended about 6-7 months prior to the date of the incident (vide para-8) and no evidence has been adduced by the prosecution that after the said threat, any FIR was lodged by these witnesses i.e. PW-1 & PW-9 to the effect that the appellant No.1 has threatened to kill them. As such, the said circumstance is not established beyond reasonable doubt. 15. As regards the second & third circumstance, the appellant No.1 has abetted the appellants No.2, 3 & 4 by giving them Rs.50,000/-. However, there is no evidence at all to show that the appellant No.1 has abetted the other appellants i.e. appellants No.2 to 4 to kill his mother-in-law. Even otherwise, there is no evidence on record to show that the appellant No.1 has abetted the appellants No.2 to 4 to 9 seriously injure PW-9 i.e. the father-in-law of the appellant No.1. However, the trial Court has found that pursuant to the memorandum statements of appellants No.2 & 3 blood stains have been found on the clothes of appellant No.3 Roshan as also on the knife recovered from appellant No.2 Gunjan, but the said FSL report has not been exhibited nor any question was put to the accused persons under Section 313 of the CrPC as to how and under what circumstances blood stains were found on the said articles. 16. It is a settled position that it is the obligation of the Court to put material evidence to the accused under Section 313 CrPC. One of the main objects of recording of a statement under the CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence. 17. In the present case, after the receipt of the FSL report, no question was put to the appellants No.2 & 3 with regard to the blood found on the clothes as well as on the knife seized from the respective appellants. As such, the FSL report cannot be used against the appellants. Moreover, 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 10 alias Sirajudeen v State of Rajasthan 2 , 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 Rajasthan3. 27. The scope and ambit of Section 27 were also illuminatingly stated in Pulukuri Kotayya v. King Emperor4 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 2 (2011) 11 SCC 724 3 (2011) 12 SCC 545 4 (1946-47) 74 IA 65 : AIR 1947 PC 67 11 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 Rajasthan5.” 18. As regards the last circumstance, in view of the findings recorded by this Court in the preceding paragraphs of this judgment, we are of the opinion that the last circumstance is also not established by the prosecution. 19. In that view of the matter, we are of the considered opinion that none of the incriminating circumstances pointed out by the trial Court at para-62 of the impugned judgment are established. Furthermore, recovery of bloodstained clothes is also of no help to the prosecution. As far as recovery of knife at the instance of appellant No.2 – Gunjan is concerned, as per section 27 of the Act, such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact 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. Furthermore, it is an admitted position that the relations between the appellant No.1, his wife and in-laws were not cordial and, therefore, only on the basis of suspicion the trial Court has proceeded to convict the appellants. It is well settled that 5 (2004) 3 SCC 657 12 suspicion, however, great it may be, cannot take the place of legal proof. A moral conviction however, strong or genuine cannot amount to a legal conviction supportable in law. {See : Sharad Birdhichand Sarda (Supra}. 20. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellants under Sections 506 (Part-II), 109/506 (Part-II), 109/302, 109/307, 120-B, 460, 302 & 307 of the IPC are set aside and they are acquitted of the said charges on the basis of benefit of doubt. The appellants are on bail. They need not surrender. The bail bonds furnished by the appellants 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. 21. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Barve 13