1 2025:CGHC:19864-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1706 of 2017 1 - Moharlal S/o Kalun Ram Aged About 40 Years R/o Village Koilar Tikra Amalbhitti Police Station Darima District Surguja Chhattisgarh 2 - Nansai S/o Mangal Ram Aged About 30 Years R/o Village Koilar Tikra Amalbhitti Police Station Darima District Surguja Chhattisgarh, 3 - Satpal Ram S/o Nanha Ram Aged About 35 Years R/o Village Koilar Tikra Amalbhitti Police Station Darima District Surguja Chhattisgarh. ... Appellants versus 1 - State Of Chhattisgarh Through Police Station Darima, District Surguja Chhattigarh ... Respondent(s) For Appellants : Shri Ashok Verma, Advocate. For Respondent(s) : Shri Amit Buxy, Panel Lawyer. Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (01/05/2025) Deepak Kumar Tiwari, J KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.05.02 18:59:51 +0530 2 1. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, the appellants herein have preferred this criminal appeal challenging the legality, validity and correctness of the judgment of conviction and order of sentence dated 23rd September, 2017 passed by the Additional Sessions Judge, (FTC), District Surguja (Ambikapur) in ST No.456/2011 whereby the appellants have been convicted for commission of offence under Section 302/34 of the IPC and sentenced to undergo RI for life and to pay a fine of Rs.500/-each, in default of payment of fine to further undergo additional SI for one month each. 2. Case of the prosecution, in brief, is that deceased Sundari Bai, aged about 65 years, resident of Amalbhiththi, PS Darima, District Surguja, after the death of her husband, was residing alone in her house for the last about 20-22 years. On 4th August, 2011 at about 7 am she was found dead inside her house. Her relative namely, Rajlal Ram (PW-1) has lodged the merg intimation (Ex.-P/1) at PS Darima on 4th August, 2011 at about 15.30 hours stating that his son Omprakash (not examined) has informed him that bad smell was coming from the house of the deceased, on which (PW-5) Shiva, (PW-6) Ramphal and (PW-8) Jagnandan had gone to the house of the deceased. They found that the door was not closed from inside. When they entered her house, they found that the dead body of the deceased was lying in decomposed condition and some blood stains 3 were also present on the door. Based on the aforesaid information, inquest was conducted and inquest report was prepared vide Ex.-P/3. Merg Panchnama was prepared after giving notice (Ex.- P/2) to the witnesses vide Ex.-P/3. Spot map was prepared vide Ex.-P/4. The postmortem on the dead body of the deceased was conducted by Dr. BL Kaushal (PW-2) and he gave the postmortem report vide Ex.-P/5, according to which, maggots and swelling were found all over the body; fracture of 4th, 5th & 6th ribs of right side and fracture of 3rd, 4th, 5th, 6th, 7th ribs of left side of the chest was found. In the opinion of the doctor, cause of death was haemorrhage & shock and the death is homicidal in nature. Time elapsed since death might be between 3 to 5 days. 3. FIR was registered against unknown persons on 5th August, 2011 vide Ex.-P/19. During investigation, memorandum statement of appellant No.1 – Moharlal was recorded on 6th August, 2011 wherein he disclosed that on the date of the incident i.e. 31st July, 2011, Sunday, at night about 10-11 hours, he along with other co- accused persons namely, Nansai and Satpal went to the house of the deceased for consuming liquor. When they purchased Mahua liquor from the deceased, some dispute occurred with regard to money, because of which appellant No.1-Moharlal assaulted the deceased by using grinding stone (Lodha) and with the help of other accused persons put the dead body inside the room. 4 4. On the memorandum statement (Ex.-P/8) of appellant No.1- Moharlal, grinding stone was recovered from the spot i.e. the house of the deceased vide Ex.-P/9. 5. After completion of the investigation, charge sheet was filed before the concerned Magistrate from where the case, being triable by the Sessions Court, was committed to the trial Court where the charges were framed against the appellant under Sections 302/34 of the IPC. The charges were read over and explained to the appellants, who abjured their guilt, took a plea of false implication and entreated for trial. 6. In order to bring home the charges, the prosecution has examined as many as 15 witnesses and exhibited 28 documents. Statements of the appellants were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the prosecution evidence and pleaded innocence and false implication. However, in defence, neither any witness has been examined nor any document has been relied upon. 7. After conclusion of trial, the trial Court by the impugned judgment, on appreciation of evidence available on record convicted and sentenced the appellant as mentioned in para-1 of this judgment, which led to filing of present Appeal by the appellants. 8. Shri Ashok Verma, learned counsel for the appellants would submit that in the present case, there is no direct evidence and the case of 5 the prosecution rests on the circumstantial evidence. He would further submit that the only incriminating circumstance is that on the memorandum statement of appellant No.1-Moharlal vide Ex.- P/8, a grinding stone is alleged to have been seized vide Ex.-P/9, but there is no evidence connecting the said grinding stone with the commission of the offence, as the said grinding stone was not sent to the FSL for examination and there is no FSL or Serologists’ report with respect to the said article. In the aforesaid backdrop, the appellants are entitled for acquittal by extending them benefit of doubt and the Appeal deserves to be allowed accordingly. 9. Per contra, learned State Counsel would support the impugned judgment & order and submit that the prosecution has been able to bring home the charges beyond reasonable doubt and the trial Court has rightly convicted the appellants for the offences in question on the basis of evidence available on record. The contentions raised by learned counsel for the appellants as such deserve to be rejected and the appellants are not entitled for acquittal on the basis of benefit of doubt and their Appeal is liable to be dismissed outrightly. 10. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 6 11. The first and foremost question, as to whether the death of deceased Sundari Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. BL Kaushal (PW-2) who has conducted the post-mortem on the dead body of the decesed and also proved the post-mortem report (Ex. P-5) in which cause of death has been opined to be haemorrhage & shock and the nature of death to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court, holding that the death of deceased was homicidal in nature. 12.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 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 1 (1984) 4 SCC 116 7 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 probability the act must have been done by the accused.” 13.Revering back to the facts of the present case, the only incriminating circumstance against the appellants is that pursuant to the memorandum statement (Ex.-P/8) of appellant No.1, one grinding stone was recovered from the spot vide Ex.-P/9. However, 8 witnesses to the memorandum and seizure namely, (PW-7) Dev Kumar and (PW-14) Ajju Kumar have turned hostile and not supported the case of the prosecution. Furthermore, the said article i.e. grinding stone was not sent to the FSL for examination and there is no evidence connecting the said grinding stone with the crime in question. In the absence of FSL report, it would not be safe to base conviction against the appellants only on the basis of recovery of grinding stone at the instance of appellant No.1. 14.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 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 2 (2011) 11 SCC 724 9 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 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.” 15.In that view of the matter, we are of the considered opinion that the prosecution has utterly failed to prove the charges against the appellants beyond reasonable doubt. Furthermore, recovery of grinding stone at the instance of Appellant No.1 is also of no help to the prosecution, as per section 27 of the Act, such disclosure alone would not automatically lead to the conclusion that the offence was 3 (2011) 12 SCC 545 4 (1946-47) 74 IA 65 : AIR 1947 PC 67 5 (2004) 3 SCC 657 10 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. It is well settled that 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}. 16.For the foregoing, we are of the view that the prosecution has failed to establish the chain of circumstances which should be such as to lead to an irresistible conclusion that is incompatible with the innocence of the accused, to hold that the accused/appellants were the author of the crime in question. 17. In view of the foregoing discussion and findings, we allow this Criminal Appeal. Consequently, the conviction and sentence imposed upon the appellants under Sections 302/34 of IPC are set- aside and they are acquitted of the said charges extending them the 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. 11 18.Let a certified copy of this judgment along with original record be transmitted forthwith to the trial Court. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Barve