1 2025:CGHC:31828-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1514 of 2016 {Arising out of judgment dated 05.08.2015 passed in Sessions Trial No.13/2015 by the learned Sessions Judge, Kabirdham} Shivkumar @ Ballu, S/o. Shobhnath Baiga, Aged About 20 Years, R/o. Gudli, Police Station- Taregaon Jungle, District Kabirdham, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Station House Office, Police Station- Taregaon Jungle, District Kabirdham, Chhattisgarh. ... Respondent For Appellant : Ms. Meenu Banerjee, Advocate For Respondent : Mr. Amit Buxy, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (10.07.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.07.14 11:59:08 +0530 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 05.08.2015, passed by the learned Sessions Judge, Kabirdham (Kawardha) in Sessions Trial No. 13/2015, by which the sole appellant herein has been convicted for the offence under Section 302 & 201 of Indian Penal Code and sentenced as under : CONVICTION SENTENCE U/s. 302 of IPC. : Life imprisonment U/s. 201 of IPC. : Rigorous imprisonment for 7 years. Both the sentence to run concurrently 2. Case of the prosecution, in short, is that, on 16.12.2014 at village Gudli, the appellant herein assaulted Mohan Baiga (now deceased) by Sickle (हंसिया), by which he suffered grievous injuries and died and in order to screen himself from the offence, he thrown the neck towel (गमछा) used by deceased into the field; thereby the aforesaid offences have been committed. The matter was reported to the police, pursuant to which, merg intimation was registered vide 3 Ex.P-1, FIR was registered vide Ex.P-15, inquest was conducted vide Ex.P-3 and dead body of deceased Mohan Baiga was subjected to post-mortem, which was conducted by Dr. Sulbha Ahluwaliya (PW-11), who proved the post- mortem report vide Ex.P-20, in which cause of death was stated to be excessive bleeding from both eyes and asphyxia due to drowning and death was homicidal in nature. The weapon of offence i.e. Sickle (हंसिया) and neck towel (गमछा) of deceased were recovered from the spot, which were sent for chemical examination to FSL and as per the FSL report, blood was found on the Sickle (हंसिया). After due investigation, the appellant was charge-sheeted for the aforesaid offences to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offences, prosecution examined as many as 11 witnesses and exhibited 22 documents along-with FSL report and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offences under Section 302 & 201 of Indian Penal Code and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Ms. Meenu Banerjee, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt and the appellant has been convicted only on the basis of the alleged recovery of weapon of offence on which blood has been found. Therefore, the circumstances are not complete and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 6. Mr. Amit Buxy, 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 appellant for the aforesaid offences. As such, the appellant is not entitled for acquittal and the appeal deserves to be dismissed. 5 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 Mohan Baiga was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-20) proved by Dr. Sulbha Ahluwaliya (PW-11), according to which, cause of death was stated to be excessive bleeding from both eyes and asphyxia due to drowning 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 fulfilled for convicting an accused on the basis of circumstantial evidence in para 153 as under: - 1 (1984) 4 SCC 116 6 “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 (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 2 (1973) 2 SCC 793 7 show that in all human probability the act must have been done by the accused.” 10. Now, the appellant has been convicted only on the ground that Sickle (हंसिया) has been seized from the place of offence. However, Sickle (हंसिया) was not recovered pursuant to memorandum statement of the appellant, but it was recovered from the spot and in view of the decision of the Supreme Court in the matter of Boby v. State of Kerala3 since the weapon of offence was not recovered pursuant to memorandum statement of the appellant, it is of no use of the prosecution. Furthermore, no blood has been found on the neck towel (गमछा) of the deceased and there is no other piece of evidence to connect the appellant for the offence in question. As such, the appellant is entitled for acquittal on the basis of benefit of doubt. 11. Accordingly, the impugned judgment of conviction and order of sentence dated 05.08.2015 is hereby set aside. In the result, the appeal is allowed. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for the offences punishable under Sections 302 & 201 of Indian Penal Code. 12. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of 3. 2023 LiveLaw (SC) 50 8 six months in view of the provision contained in Section 437-A of the Cr.P.C. 13. 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. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ashok