1 2025:CGHC:29696-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1509 of 2018 {Arising out of judgment dated 31.08.2018 passed in Sessions Trial No.16/2018 by the learned Sessions Judge, Jashpur} 1 - Umesh Bhagat, S/o. Sanak Sai, Aged About 24 Years, R/o. Kevtindand, Bataikela, Police Station- Kansabel, District- Jashpur, Chhattisgarh. 2 - Kishore Bhagat, S/o. Majhi Bhagat, Aged About 45 Years, R/o. Kevtindand, Bataikela, Police Station- Kansabel, District- Jashpur, Chhattisgarh. 3 - Jubel Tigga, S/o. Doyo Ram, Aged About 50 Years, R/o. Kevtindand, Bataikela, Police Station- Kansabel, District- Jashpur, Chhattisgarh. ... Appellants versus State Of Chhattisgarh, Through The Station House Officer, Police Station- Kansabel, District- Jashpur, Chhattisgarh ... Respondent For Appellants : Mr. Sanjeev Kumar Sahu, Advocate For Respondent : Mr. Rahul Tamaskar, Govt. Advocate ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.07.09 10:22:54 +0530 2 (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (02.07.2025) Sanjay K. Agrawal, J. 1. The three appellants herein : Umesh Bhagat (A-1), Kishore Bhagat (A-2) and Jubel Tigga (A-3) have preferred this criminal appeal under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 31.08.2018, passed by the learned Sessions Judge, Jashpur, in Sessions Trial No.16/2018, by which they have been convicted and sentenced as under : CONVICTION SENTENCE U/s. 449 of I.P.C. : Imprisonment for life and fine of Rs.1000/-, in default of payment of fine, 3 months’ additional rigorous imprison- ment. U/s.302/120-B of I.P.C. : Imprisonment for life and fine of Rs.1000/-, in default of payment of fine, 3 month’s additional rigorous imprison- ment. (For deceased Safiya) 3 U/s.302/120-B of I.P.C. : Imprisonment for life and fine of Rs.1000/-, in default of payment of fine, 3 month’s additional rigorous imprison- ment. (For deceased Akash) U/s.120-B of I.P.C. read with Section. 302 of I.P.C. : Imprisonment for life and fine of Rs.1000/-, in default of payment of fine, 3 month’s additional rigorous imprison- ment. (For conspiracy for committing murder of deceased Safiya) U/s.397/120-B of I.P.C. : Imprisonment for life and fine of Rs.1000/-, in default of payment of fine, 3 month’s additional rigorous imprison- ment. (For conspiracy for committing murder of deceased Safiya) All the sentences to run concurrently. 2. Case of the prosecution, in short, is that Dayo had one daughter Safiya (Deceased No.1) and Jubel (A-3) was his son from second wife. Safiya (Deceased No.1) had one son Rajkumar and one daughter Anjalina (PW-1) and Akash (Deceased No.2) was grandson of Safiya and son of Rajkumar; whereas Umesh Bhagat (A-1) is son-in-law of Jubel (A-3). Further case of the prosecution, in brief, is that, on 4 03.12.2017, at 7:00 P.M. at Kevtindand, Bataikela, Police Station- Kansabel, District- Jashpur, all the three appellants, in furtherance of their common intention, trespassed into the house of Safiya (Deceased No.1) and conspiring together to cause death of Safiya on account of the fact that she was playing witchcraft and thereafter, they committed murder of Safiya (Deceased No.1) and her grandson Akash (Deceased No.2). Thereafter, in furtherance of common intention, the appellants herein looted the amount of Rs.10,150/-, land documents such as B-1, Naksha, Rin-pustika along-with Bank pass-books. Thereby, the aforesaid offences have been committed. The matter was reported to the police, pursuant to which, Merg Intimation was registered vide Ex.P-1 & Ex.P-2, FIR was registered vide Ex.P-3, Inquest was conducted vide Ex.P-7 & Ex.P-8 and dead body of deceased Akash & Safiya were subjected to post-mortem, which was conducted by Dr. Y.K. Toppo (PW-4) who proved the post-mortem report vide Ex.P-21 & Ex.P-22, in which, cause of death was stated to be severe hemorrhage and shock resulting by injury No.1 and death was homicidal in nature. Pursuant to memorandum statement of Kishore Bhagat- A-2 (Ex.P-9), bloodstained knife was seized vide Ex.P-10 and pursuant to memorandum 5 statement of Umesh Bhagat- A-1 (Ex.P-14), B-1, Bhoo-adhikar & Rin-pustika, Bank Pass-books and cash of Rs.10,150/- along-with clothes were recovered vide Ex.P-15. The seized articles were sent for chemical examination to FSL and as per the FSL report (Ex.P-35), human blood of O+ group was found on the seized articles and weapon of offence i.e. knife. After due investigation, the appellants were charge-sheeted for the aforesaid offences before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated. 3. In order to bring home the offences, prosecution examined as many as 10 witnesses and exhibited 37 documents and the appellants-accused in support of their defence have examined only 2 witness and exhibited the document Ex.D-1. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants herein for the aforesaid offences as mentioned in the opening paragraph of 6 this judgment against which the present appeal has been preferred. 5. Mr. Sanjeev Kumar Sahu, learned counsel for the appellants, would submit that the prosecution has not been able to bring home the offences beyond reasonable doubt, therefore, the appellants are entitled for acquittal. He would further submit that the conviction of the appellants are founded on weak and doubtful circumstantial evidence of recovery of blood stained knife alleged to be used for killing deceased Safiya and Akash and recovery of stolen property documents, whereas the evidence of independent witnesses of memorandum and seizure Samarjeet Chand (PW-3) and Safiulla (PW-7) is not coherent and there are contradictions raising doubt. He would submit that the FSL report regarding presence of blood of particular group and origin in the clothes of the appellant Umesh Bhagat and knife alleged to be seized at the instance of Kishore Bhagat is also doubtful. He would again submit that so far as appellant Jubel Tigga (A-3) is concerned, except his name mentioned in the memorandum, no evidence has been collected against him to involve him in commission of offence and therefore, it is a case of no evidence against appellant 7 (A-3). As such, the appellants are entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be dismissed. 6. On the other hand, Mr. Rahul Tamaskar, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted the appellants for the aforesaid offences. He would further submit that memorandum of appellant Kishore (A-2) and appellant Umesh (A-1) were recorded in which they disclosed that both of them along with Jubel (A-3) entered into the house of the deceased and committed murder of Safiya and Akash and thereafter, they looted Rin Pustika and other documents, which were kept in the premises of Umesh and the knife was also hided at a particular place and on the basis of the memorandum statement, the aforesaid articles were seized. The clothes, knife and articles seized were found to be stained with human blood of particular group and origin. As such, the appellants are not entitled for acquittal and the appeal deserves to be dismissed. 8 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Safiya & Akash was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-22 & Ex.P-21) proved by Dr. Y.K.Toppo (PW-4), according to which, cause of death was stated to be severe hemorrhage and shock resulting by injury No.1 and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. The case of the prosecution is not based on direct evidence, it is based 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 v. State of Maharashtra 1 , which must be 1 (1984) 4 SCC 116 9 fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 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. State of Maharashtra2 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 2 (1973) 2 SCC 793 10 (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.” 10. The trial Court has culled out the following incriminating circumstances, which have been cataloged by the trial Court in paragraph No.9 of its judgment. “(1). e`rdx.k lfQ;k vkSj vkdk’k dh e`R;q vkijkf/kd ekuo o/k Lo:i dh gSA (2). vfHk;qDr mes’k dh fu’kkunsgh ij mlds vkf/kiR; ls e`rdk lfQ;k ds firk Mks;ks dh tehu ds dkxtkr lfgr o`)k isa’ku] iksLV vkWfQl] ,l-ch-vkbZ- vkfn ds iklcqd o 10]150 :- dh cjkenxh gqbZ gSA (3). vfHk;qDr fd’kksj dh fu’kkunsgh ij mlds vkf/kiR; ls vks CyMxzqi okys [kwu yxs pkdw dh cjkenxh gqbZ gSA (4). vfHk;qDr mes’k ls cjken diM+ksa esa o ?kVukLFky ls cjken feV~Vh esa Hkh vks CyMxzqi dk ekuo jDr ik;k x;k gSA (5). vfHk;qDr tqosy e`rdk lfQ;k dh iSr`d laifRr esa gd ikus dk ykyp j[krk FkkA”” 11. The trial Court, after appreciating the oral and documentary evidence on record, found the aforesaid incriminating circumstances proved and proceeded to convict the appellant for the aforesaid offences. We will discuss each of the 11 incriminating circumstances one by one to judge the correctness of the judgment and order passed by the trial Court. (i). We have already held the first incriminating circumstance that the death of Safiya (deceased No.1) and Akash (deceased No.2) was homicidal in nature in the aforesaid paragraph. As such it has already been answered by us in preceding paragraph. (ii). The second & fourth incriminating circumstances that pursuant to memorandum statement of Umesh (A-1), Safiya’s father’s land documents, pass-books of pension, post-office & SBI etc. and Rs.10,150/- along-with clothes were recovered, which have been proved by Samarjeet Chand (PW-3) and Safiulla (PW-7), they have clearly supported the case of the prosecution that pursuant to memorandum statement of Umesh Bhagat (A-1), the offending articles were recovered from his possession. Safiulla (PW-7), in paragraph 28 of his statement, has clearly refuted the suggestion that no such recovery was made from the possession Umesh Bhagat (A-1). As such, this witness has clearly supported the case of the prosecution. Furthermore, Samarjeet Chand (PW-3) though 12 has been declared hostile, but on leading question being asked, he has clearly admitted the fact that land documents, pass-books and money in question were seized from the possession of Umesh Bhagat (A-1). As such, recovery of the aforesaid articles is clearly established by the prosecution and it was also proved that on the clothes seized from Umesh Bhagat (A-1) and on the soil recovered from the place of incident, human blood group of O+ was found. Since the cash and property title papers of Doyo (Father of Safiya) was recovered from the possession of Umesh Bhagat (A-1), it would be appropriate to notice Illustration (a) to Section 114 of the Indian Evidence Act, 1872, which states as under : - “114. Court may presume existence of certain facts. —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume— (a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;” 13 12. In the matter of Tulsiram Kanu v. The State3, while considering Illustration (a) appended to Section 114 of the Evidence Act, their Lordships of the Supreme Court have held that the presumption permitted to be drawn under Section 114, illustration (a), Evidence Act, has to be read along with the important time-factor. If ornaments or things of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. Their Lordships observed in paragraph 7 as under: - “7. Apart from this confession, the judgment of the High Court is based on the identification of the gold ornaments. The Sessions Judge recognised that if the ornaments had been proved to have been the property of the deceased it would have been possible to infer that the accused was the person who committed the murder and robbed the murdered man. In our opinion, this reasoning, under the circumstances of the case, is unsound. The alleged murder took place on 28-5-1949 and assuming that the ornaments were traced to the accused at the end of October 1949, no legitimate inference could be drawn about the appellant being the murderer of the deceased. The important factor which appear to have been overlooked is that five months had elapsed between the date of the alleged murder and the tracing of the ornaments. The presumption permitted to be drawn under S. 114, illu. (a), Evidence Act, has 3 AIR 1954 SC 1 14 to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. The criticism applied equally to the reasoning of the High Court for its conclusion.” 13. Thereafter, in the matter of Wasim Khan v. The State of Uttar Pradesh4, the Supreme Court posed a question for consideration, whether the evidence in the case establishes that the appellant murdered and robbed Ram Dularey and their Lordships answered the question that recent and unexplained possession of stolen articles can well be taken to be presumptive evidence of the charge of murder as well as robbery. 14. Thereafter, in the matter of Alisher v. State of Uttar Pradesh5, it has been held by their Lordships of the Supreme Court that illustration (a) to Section 114 of the Evidence Act makes it plain that the time factor has a material bearing and the Court must keep it in view before it can draw the presumption in accordance with the illustration. It was further held that the presumption can be raised if a person is found to be in 4 AIR 1956 SC 400 5 (1974) 4 SCC 254 15 possession of stolen goods soon after the theft. If, however, a long period elapses between the date of the theft and the date on which a person is found to be in possession of the stolen articles, the Court would not be justified in drawing the presumption in accordance with illustration (a) to Section 114. It was also held that the question as to how much period should elapse after the theft in order to rule out the presumption under illustration (a) would depend on the nature of the stolen article and the facts of each case. 15. In the matter of Baiju alias Bharosa v. State of Madhya Pradesh6, the Supreme Court following the decisions in Wasim Khan (supra) and Alisher (supra) and while dealing with the presumption to be drawn under illustration (a) to Section 114 of the Evidence Act has held that it is a matter which depends on the evidence and circumstances of each case. Further, their Lordships pointed out the following factors in order to attract illustration (a) to Section 114 of the Evidence Act: - 1. The nature of the stolen article, 2. the manner of its acquisition by the accused, 3. the nature of the evidence about its identification, 6 (1978) 1 SCC 588 16 4. the manner in which it was dealt with by the accused, 5. the place and circumstances of its recovery, 6. the length of the intervening period, and 7. the ability or otherwise of the accused to explain his possession, are factors which have to be taken into consideration in arriving at a decision. 16. Thereafter, in the matter of Gulab Chand v. State of M.P.7, following the decision of the Supreme Court in Tulsiram Kanu (supra), their Lordships have held that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act has to be read along with the “important time factor” and if the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted, but if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case. 17. Similarly, in the matter of George v. State of Kerala8, relying upon the earlier decision in Baiju (supra), the Supreme Court 7 (1995) 3 SCC 574 8 (2002) 4 SCC 475 17 while dealing with the phrase “soon after” employed in illustration (a) to Section 114 of the Evidence Act held as under: - “7. …The possession of the articles which had been duly identified by the witnesses as belonging to the deceased were found in his possession within less than 24 hours of the incident. It would lead to inference under Section 114(a) of the Evidence Act that the appellant has himself committed the robbery, an offence punishable under Section 392 IPC. According to the statement of PWs 10, 12 and 13 the deceased had been saying “take whatever you want, leave me alone”, which shows that he must have been under some apprehension or threat thereof.” 18. Reverting to the facts of the present case in light of aforesaid principle of law laid down by their Lordships of Supreme Court to invoke illustration (a) to Section 114 of the Evidence Act, it is quite vivid that incident is of 03.12.2017 at 7:00 P.M. and immediately thereafter accused-appellants were suspected and Umesh (A-1) was taken into custody on 06.12.2017 at 03:30 P.M. and pursuant to his memorandum statement, property title papers, pass-books of pension, post-office & SBI along-with cash of Rs.10,150/- belonging to Safiya (D-1) and her father Doyo were recovered. Thereafter. Thereafter. Umesh (A-1) could not explain as to how and in what circumstance the documents and cash belonging to Safiya (D-1) and her father 18 came to his possession satisfying the requirement of important time factor envisaged by the Supreme Court in Tulsiram Kanu (supra) to invoke illustration (a) to Section 114 of the Evidence Act. (iii). The third incriminating circumstance found proved by the trial Court is that pursuant to memorandum statement of Kishore Bhagat (A-2), blood-stained knife was seized, which has been supported by the seizure witnesses Samarjeet (PW-3) and Safiulla (PW-7), in which O+ blood group was found as per FSL report (Ex.P-35), which clearly indicates the involvement of Kishore (A-2) for the offence in question. As such, the conviction of Umesh Bhagat (A-1) and Kishore Bhagat (A-2) is fully justified. (iv). The fifth incriminating circumstance found proved by the trial Court is that Jubel (A-3) was having greed in getting right on the ancestral property of deceased Safiya, which is the only allegation against him. However, there is no evidence against the respondent No.3 except the motive, which has been found proved by the trial Court. It is well settled law that motive may be an important circumstance in a case based on circumstantial evidence, but it cannot take place of conclusive 19 proof. [See: Sampath Kumar v. Inspector of Police, Krishnagiri 9 ]. In a recent decision rendered in the matter of Mahendra Singh vs. State of M.P. 10 their Lordships of Supreme Court reiterated the law on the point stating that merely because motive is established, solely on that basis accused cannot be convicted under Section 302 of IPC. Accordingly, Jubel (A-3) is entitled for acquittal, as there is no evidence available against him and furthermore, nothing was recovered from his possession except the motive of offence. 19. In view of the foregoing analysis, we are of the considered opinion that the appeal in respect of Umesh Bhagat (A-1) and Kishore Bhagat (A-2) is liable to be and hereby dismissed and appeal on behalf of Jubel Tigga (A-3) is allowed. Accordingly, the impugned judgment of conviction and order of sentence dated 31.08.2018 is hereby set aside in respect of Jubel Tigga (A-3). Consequently, Jubel Tigga (A-3) stands acquitted giving him benefit of doubt from the charges framed against him for the aforesaid offences. He is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 9 (2012) 4 SCC 124 10 (2022) 7 SCC 157 20 20. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. 21. The Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants Umesh Bhagat (A-1) and Kishore Bhagat (A-2) are undergoing their jail term, informing them by providing a copy of this judgment that they are at liberty to assail the present judgment passed by this Court by preferring an appeal under Article 136 of the Constitution of India 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/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ashok