1 2025:CGHC:13830-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1843 of 2023 Devnarayan Dewangan S/o Shri Thakur Ram Dewangan Aged About 40 Years R/o Vill. Nawagaon, P.S. Birjher, Kurud, Distt. Dhamtari (C.G.) ... Appellant versus State Of Chhattisgarh Through Police Station Birjher, P.S. Kurud, Distt. Dhamtari (C.G.) ... Respondent For Appellant : Mr.Pragalbha Sharma, Advocate For Respondent(s) : Mr.Sanghrash Pandey, Government Advocate Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, CJ 22/03/2025 1. This criminal appeal arises out of the judgment of conviction and order of sentence dated 31.08.2023 passed by the Sessions Judge, Dhamtari in Sessions Case No.57/2020, whereby the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.03.25 10:19:50 +0530 2 Rs.5000/-, in default of payment of fine to further undergo SI for six months. 2. The prosecution story, in brief, is that complainant Shrikant Dewangan (PW-1) reached Police Station Birejhar on 03.11.2020 and informed that on 03.11.2020 at around 7 A.M., Pooja Dewangan’s brother-in-law Yogesh Dewangan called him and told him that at around 1 A.M. in the night, Pooja Dewangan and her husband Devnarayan Dewangan had a fight over something, on which Devnarayan Dewangan ran to kill Pooja Dewangan and since then both are missing. After some time, it was found that Pooja Dewangan’s body was found in the field of village Navagaon, then when he went to see, Pooja Dewangan’s head, nose and ears were bleeding and the end of sari was tied around her neck. He believes that Devnarayan Dewangan killed Pooja Dewangan by fighting with her for some reason. 3. Based on the above information, Dehati merg intimation was registered vide Ex.P-1 at Police Outpost Birejhar, Police Station Kurud and after investigation, the FIR was registered vide Ex.P-27 under Section 302 of the IPC under Crime No.539/2020. The spot map was prepared by the investigating officer vide Ex.P-2. Inquest was prepared over the body of the deceased vide Ex.P-4. Top of the ear, mungalsutra, three broken pieces of bangles red coloured, a rubber band, one goggle with broken glasses and blood soaked soil were seized from the spot vide Ex.P-5. A gold 3 earring, broken gold chain, mangalsutra locket set gold with two pendants, two gold like beads of mangalsutra, blue t-shirt with blood like stains, key of maruti van with blood red tissue stains on it, old torn shorts with 7 spots of human, vest and a pair of slippers with mud on them were seized from the house on production of Smt.Veena Dewangan vide Ex.P-6. Panchnama of viewing mobile was prepared vide Ex.P-8. Memorandum statement of the appellant was recorded vide Ex.P-9. One mobile was seized from the appellant vide Ex.P-10. The appellant was arrested on 15.11.2020 vide arrest memo Ex.P-11. Panchnama of viewing mobile was also prepared vide Ex.P-12. Spot map was also prepared by the investigating officer vide Ex.P-14. Identification panchnama was prepared vide Ex.P-19. Patwari also prepared the spot map vide Ex.P-21. Dead body of the deceased was sent for postmortem to the District Hospital, Dhamtari where Dr.Rinki Baghel (PW-19) conducted postmortem over the body of the deceased vide Ex.P-39 and found following injuries:- “Body was cold and stiff, both eyes were closed, mouth was closed, there was swelling, there was blackness in both eyes, blood was present on the face, there was fracture in left temporal region and bleeding in nose and both ears. A knot of sari was tied around the neck. The sari was printed and had a red colour. The circumstance of the knot of the sari which was tied around the neck was 41 cm. Length of sari 4 was 457 cm. And width was 125 cm. Signs of menstruation were visible. Four nail marks were present on the right side of the neck, one nail mark on the left side of the neck. There was a fracture and scratch on left temporal side measuring 0.5x0.2 cm. There was bleeding inside the brain. The skin on the neck of the dead body had turned blue. Internal organs like heart, lungs, liver, spleen, uterus were congested. There was half-digested food in the intestine. There was feces in small intestine and large intestine.” The doctor has opined that death is due to cardio respiratory arrest caused by brain injury. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.P-41), blood was found on Article A mangalsutra, Article B soil, Article E sari of the deceased, Article F t-shirt of the appellant, Article G underwear of the appellant, Article H vest and Article I key seized from the appellant and human blood was found on Article A mangalsutra, Article E sari, Article F t-shirt of the appellant and Article G underwear of the appellant. 4. Statements of the witnesses were recorded under Sections 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Kurud, who in turn, committed the case to the Court of Sessions, Dhamtari. 5 5. Learned trial Court framed the charge under Section 302 of the IPC against the appellant. Moreover, the appellant denied the charge and face trial. 6. In order to prove the guilty of the accused/appellant, the prosecution has examined as many as 19 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and claimed innocence and false implication in the crime in question and stated that relationship between him and his wife was cordial. 7. After affording an opportunity of hearing to the parties, learned trial Court has convicted and sentenced the appellant as mentioned in opening paragraph of this judgment. Hence, this appeal. 8. Learned counsel for the appellant vehemently argued that learned trial Court has failed to appreciate that the case of the prosecution is per se unbelievable, incredible and illogical. It should have been seen by the trial Court that the prosecution has failed to produce any admissible evidence against the appellant. He further submits that learned trial Court has failed to appreciate that the prosecution has totally failed to produce any admissible evidence against the appellant on the basis of which he could be convicted in the offence in question. Learned trial Court has failed to see that the entire case of the prosecution is based on circumstantial evidence and the chain is not complete so as to establish the involvement of the appellant in the offence. He also submits that learned trial Court has failed to appreciate that the prosecution witnesses have not supported the 6 case of the prosecution and the appellant has been convicted by the trial Court merely on the basis of conjectures and surmises and the prosecution could not produce any credible witness or evidence against the appellant as required by law for convicting him for offence under Section 302 of the IPC. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. He relied upon the judgment of the Supreme Court in the matter of Darshan Singh v. State of Punjab reported in AIR 2024 SC 627. 9. On the other hand, learned Government Advocate appearing for the respondent/State submits that conviction of the appellant / accused is based on circumstantial evidence. The prosecution during investigation recorded the statements of the prosecution witnesses in which they have categorically deposed in their statements regarding conduct and commission of offence by the accused / appellant, which is concurrent evidence against the accused / appellant and thus, the learned trial Court has rightly convicted and sentenced the accused / appellant. Therefore, the instant appeal deserves to be dismissed. He further submits that learned trial Court has come to the conclusion regarding involvement of the accused / appellant in the crime in question under the concluding paras of the judgment in which the learned trial Court has observed all incriminating circumstances against the accused / appellant, which connect him with the instant crime and chain of circumstances are fully linked and completed with each other. Thus, the prosecution has proved its case beyond reasonable doubt and the judgment of the trial Court is just and 7 proper and does not call for any interference by this Court and as such, criminal appeal deserves to be dismissed. 10.We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 11. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased Pooja Dewangan was homicidal in nature ? 12. The trial Court relying upon the statements of Dr.Rinki Baghel (PW- 19), who has conducted postmortem on the body of deceased Smt.Pooja Dewangan vide Ex.P-39, has clearly come to the conclusion that death of deceased Pooja Dewangan was homicidal in nature. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellants. We hereby affirm the said finding. 13. It is the case of no direct evidence, rather conviction is based on circumstantial evidence. 14. We may also make a reference to a decision of the Supreme Court in C. Chenga Reddy and Ors. v. State of A.P., (1996) 10 SCC 193, wherein it has been observed thus: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. 8 Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”. 15. In Padala Veera Reddy v. State of A.P. and Ors., AIR 1990 SC 79, it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 16. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out by the Supreme Court that great care must be taken in evaluating circumstantial evidence and if the evidence 9 relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 17. Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted”. 18. Five golden principles which constitute Panchseel of proof of case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 which state as under :- “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The 10 circumstances concerned “must” or “should” and not “may be” established; (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.” 19. The Supreme Court in the matter of Sailendra Rajdev Pasvan and Others vs. State of Gujarat Etc., AIR 2020 SC 180 observed that in a case of circumstantial evidence, law postulates two-fold requirements. Firstly, that every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt and secondly, all the circumstances must be consistent pointing out only towards the guilt of the accused. We need not burden this judgment by referring to other judgments as the above principles have been consistently followed and approved by this Court time and again. 20. The Supreme Court in the matter of Suresh and Another v State of Haryana, (2018) 18 SCC 654 has observed that cases of 11 circumstantial evidence, the courts are called upon to make inferences from the available evidence, which may lead to the accused's guilt. The court at paras 41 and 42 has observed thus : “41. The aforesaid tests are aptly referred as Panchsheel of proof in Circumstantial Cases (refer to Prakash v. State of Rajasthan). The expectation is that the prosecution case should reflect careful portrayal of the factual circumstances and inferences thereof and their compatibility with a singular hypothesis wherein all the intermediate facts and the case itself are proved beyond reasonable doubt. 42. Circumstantial evidence are those facts, which the court may infer further. There is a stark contrast between direct evidence and circumstantial evidence. In cases of circumstantial evidence, the courts are called upon to make inferences from the available evidence, which may lead to the accused's guilt. In majority of cases, the inference of guilt is usually drawn by establishing the case from its initiation to the point of commission wherein each factual link is ultimately based on evidence of a fact or an inference thereof. Therefore, the courts have to identify the facts in the first place so as to fit the case within the parameters of “chain link theory” and then see whether the case is made out beyond reasonable doubt. In India we have for a long time followed the “chain link theory” since Hanumant case, which of course needs to be followed herein also.” 21. In the present case, the prosecution has proved the following circumstantial evidence against the appellant:- 12 (i) As per FSL report (Ex.P-41), human blood was found on Article A mangalsutra, Article E sari, Article F t- shirt of the appellant and Article G underwear of the appellant. (ii) Dr.Rinki Baghel (PW-19) who conducted postmortem has opined that death is due to cardio respiratory arrest caused by brain injury. 22. The next question for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime by relying upon the following circumstances:- (i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P-39) of Dr.Rinki Baghel (PW-19) who conducted autopsy. (ii) As per the case of the prosecution, the fact of death of deceased Smt.Pooja Dewangan was within the knowledge of the appellant, however, there was no any explanation given by the appellant in his statement under Section 313 of the CrPC. Thus, burden of proof was on the appellant to explain such circumstance, which he failed to explain. 23. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused ‘must be’ and not merely ‘may 13 be’ proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that 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 probabilities the act must have been done by the accused. 24. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. 25. Rakesh Dewangan (PW-6) has stated in para 2 of his evidence before the trial Court that he knew deceased Pooja Dewangan who was his sister-in-law and who died about 11 months age. They have a family WhatsApp group in which appellant Devnarayan Dewangan had sent a message on the night of the incident that his wife Pooja Dewangan had an illicit relationship with her father-in- law. The said message was sent at about 2-3 o’clock in the night. In 14 para 3, he has stated that after the appellant sent the above message in the above family WhatsApp group, he replied that such messages should not be sent in the family group. At around 5-6 in the morning, his brother-in-law Shrikant Dewangan informed him on his mobile that both Poja Dewangan and Devnarayan Dewangan were missing from home since night, then he and his wife Pratibha Dewangan left for village Navagaon after 10-15 minutes. In para 23 of his cross-examination, he has admitted that the police did not take a printout of the WhatsApp messages in his presence. He has also admitted that the seizure panchnama was not prepared by taking out the WhatsApp messages in his presence. The witness himself says that the WhatsApp messages were given through the mobile’s Whatsapp. 26. If this Court examine the statement of Shrikant Dewangan (PW-1), he has told that appellant Devnarayan Dewangan is his brother-in- law and Pooja Dewangan is his sister. On 03.11.2020 at about 8 A.M. Golu @ Yogesh Dewangan (brother of the appellant) called him and told that there was an argument between his brother-in-law and Pooja Dewangan around 11-12 in the night, then Devnarayan took a stone and chased Pooja Dewangan and her family members and Pooja Dewangan did not return home in the night, they were searching for Pooja Dewangan. On receiving the information, Shrikant Dewangan informed other members of his family about this fact. 15 27. Suraj Kumar Dewangan (PW-4) has stated that Shrikant Dewangan is his brother-in-law and he i.e. Suraj Kumar Dewangan, is also a member of ‘We Are Family’ group in which Shrikant Dewangan is the admn. A message came in the same group at about 2.30 in the night which he did not see at that time. When he saw it in the morning, it was written in the message that Pooja Dewangan has an illicit relationship with the family. The said message was in English and was sent by Devnarayan Dewangan. 28. Dr.Rinky Baghel (PW-19) as per Ex.P-34 in response to the query raised, it has been opined that the injury on the body of the deceased could have been caused by the key of the seized Maruti Van. This key was seized in a bent state which was also found bent by the doctor during examination. Investigating officer Shanta Lakda (PW-18) during the statement when the seized keys of the Maruti Van were shown to her from the store room, she accepted seizing it under Article 4. 29. Thus, with the above discussion of evidence, the prosecution has been succeeded in proving that deceased Pooja Dewangan was murdered. This act of murder was committed by causing injury to the head of the deceased. Just as nail marks were found on the neck of the deceased, fractures and scratches were found on the temporal bone, about which the doctor has given the opinion that the said injuries could have been caused by hard and blunt weapons. The prosecution has proved that injury was caused by a 16 stone and key of the vehicle, both these items have been seized. The seizure process has also been proved. 30. The prosecution has also proved that the appellant had a dispute with his family members and his wife Pooja Dewangan on the date of the incident. This statement has been made by his brother Yogesh Dewangan. Satisfactory evidence has been presented on record by the prosecution to conclude that the appellant was last seen with the deceased. Even though the appellant’s brother, sister-in-law and mother have concealed the facts to save him, the innocence of the appellant cannot be concluded from their statements because the statements of the appellant’s family members have not in any way established the fact that the appellant did not come out of his house on the date of the incident, nor has any reaction or explanation been received from the accused as to when and through whom he came to know about such a serious incident as the murder of his wife and where he was at that time. There is no explanation as to how the clothes of the appellant, which were seized from his house after being presented by his mother Veena Dewangan, had human blood on them. 31. On the contrary, there is evidence to conclude that the appellant, in a state of irrigation arising out of his illness or due to some other reason quarreled with his wife and when his wife Pooja Dewangan ran out of the house to save herself, the appellant followed her and killed her by hitting her on the head. Later, he came back and informed his family members about his act and till that time his 17 family members also informed the deceased’s maternal family about the incident in the same manner. 32. The appellant in question No.178 put to him under Section 313 of the CrPC has answered that he is innocent, h has not killed his wife. He had a good relationship with his wife. He has been falsely implicated in this case. He was ill and had Corona at that time, but no evidence or documentary proof has been shown that at the time of incident, he was CORONA positive and isolated in another room and his wife has been murdered by someone else. 33. Applying the aforesaid well settled principles of law and taking into the facts in totality and considering the facts and circumstances of the case, in our considered view the prosecution was able to establish the guilt of the appellant beyond reasonable doubt. Learned trial Court has observed all incriminating circumstances against the appellant, which connect him with the instant crime and chain of circumstances are fully linked and completed with each other. Thus, the prosecution has proved its case beyond reasonable doubt and the judgment of the trial Court is just and proper and does not call for any interference by this Court. The impugned judgment of conviction and order of sentence is just and proper warranting no interference of this Court. As such, the judgment relied upon by learned counsel for the appellant i.e. Darshan Singh (supra) is distinguishable to the facts of the present case. 18 34. In the result, the appeal being devoid of merit is liable to be and is hereby dismissed. 35. It is stated at the Bar that the the appellant is in jail, he shall serve out the sentence as ordered by the learned trial Court. 36. The trial court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. 37. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Bablu