1 2025:CGHC:33701-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No.1514 of 2019 Judgment reserved on : 21.04.2025 Judgment delivered on : 17.07.2025 1 - Mohammad Afjal Khan @ Monu Khan S/o Maqbul Rainy Aged About 26 Years R/o Yusufpur, Darji Mohalla, Police Station Nawapura Mode, District Gajipur, Uttar Pradesh. Presently Residing At Village Chandandih (Tatibandh), Police Station Amanaka, Raipur, District Raipur, Chhattisgarh Appellant versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Dugli, District Dhamtari, Chhattisgarh Respondent(s) For Appellant : Ms. Nirupama Bajpai, Advocate For Respondent(s) : Mr. Anurag Tripathi, PL Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Sachin Singh Rajput C A V Judgment Per Rajani Dubey J. 1. The present appeal is directed against the judgment of conviction and order of sentence dated 03.07.2019 passed by the learned Special Judge, Scheduled Castes and Scheduled Digitally signed by RAMAKANT NIRALA 2 Tribes (Prevention of Atrocities) Act, District Dhamtari (C.G.) in Special ST (SC/ST Act) No.104/2018, whereby the appellant has been convicted under Section 302 of IPC and sentenced to undergo life improvement with default stipulations. 2. The prosecution case, in brief, is that on 25.04.2018 one Kewal Sai Netam lodged the report to the police of Police Station Dugli alleging that when he was in the village at that time one Maniram informed that a dead body of women was found at Tultuli canal, Palwadi and thereafter the persons went there and saw the dead body and thereafter the dead body was identified and the police started the investigation. In the investigation it was found that on 18.04.2018 the deceased left the house at about 9:30 and informed her family members that she was going to the house of her friend i.e. Ku. Sevti Diwan and thereafter the deceased traveled in a jeep and came to Dugli and from Dugli she again travel in a bus and was going towards Dhamtari and the deceased talk to the appellant and at bus stand Kukrel the deceased went in the motorcycle of appellant. During invenstigation, it was found that the appellant established physical relation with the deceased and thereafter committed murder of her. After investigation police registered case against the accused and he was arrested and charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned 3 in para 1 of the judgment. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. The learned trial court has convicted the appellant on the basis of call details and last seen together but prosecution has failed to establish the connectivity of last seen theory as well as the call details for the commission of the alleged offence. As per the prosecution itself, the appellant was having affair with the deceased, as such frequent calls were made to each other. The mobile from which the appellant used to talk frequently with the deceased is also not in the name of appellant, but the learned Trial Court has not considered these aspects of the matter. Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matters of Ballu @ Balram @ Balmukund and another vs The State of Madhya Pradesh, reported in (2024) 4 SCR 48 and Ravishankar Tandon vs State of Chhattisgarh, reported in (2024) SCR 558. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal deserves to be 4 dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 376 & 302 of IPC and Section (3) (2) (v) of the provisions of the SC/ST (Prevention of Atrocities) Act against the appellant and after appreciation of oral and documentary evidence, the learned Trial Court acquitted the appellant under Sections 376 of IPC and Section (3) (2) (v) of the provisions of the SC/ST (Prevention of Atrocities) Act and convicted the appellant under Section 302 of IPC, as mentioned in para 1 of the judgment. 7. The first question for consideration is that whether the death of the deceased was homicidal in nature or not? 8. Inspector S. L. Sinha (PW-25) stated that the complainant Kewal Ram informed about the murder of his sister Kumari Tikeshwari as per merg intimation No.5/2018, which is Ex-P/25. Kewal Ram (PW-17) stated that his sister went to Hyderabad with his friend Sevti and after one week, she came there and thereafter by saying that she is going to the house of Sevti, she went away and after 5-6 days, he came to know that her sister has been murdered. He admitted his signatures on merg intimation (Ex-P/25) and memo (Ex-P/26). The Inspector S. L. Sinha (PW- 25) stated that he issued notice for inquest to the witnesses Kewal Ram, Maniram Markam, Prahlad Netam, Asharam Netam, 5 Ramdas Suryawanshi vide Ex-P/2 and before witnesses, he prepared inquest memo of the deceased Tikeshwari, which is Ex- P/3 and thereafter he registered FIR (Ex-P/36) under Sections 302 & 376 of IPC. 9. Dr. Shivnarayan Manjhi (PW-15) conducted the postmortem of the deceased and he discussed the internal and external injuries which are as under:- “ आंतरिक पक्षण- आंतरिक पक्षण में में ने पया किक सि क चमेंडी क खोलने प लल ग क ईकईमेंसि 08 गण 06 . में आंडी आंक क चट क किनेशाने में जू"द थे जू सि क प%ष्ठ क ऑक्सि)पटल भाग प में जू"द थे। याह चट में%त्या प"र्व/ क थे तथे प्रक% कित क मेंन्या अनेकमें में में%त्या करित कने क सिलए पया/प्त नेह5 थे। खोपडी. कपल, कशारूक बुत थे। मेंस्ति9तष्क क झि<ल्ल बुत थे। मेंस्ति9तष्क एर्व मेंरूज्जू" डीने क कण ग्रेई एर्व किपलकिपल ह चक थे। र्वक्ष र्वल भाग में पल बुत थे। पद कमेंल9र्व मेंलयामें ह चक थे। कठ एर्व 9र्वशा नेल में ड़ने क कण भा तल पदथे/ में जू"द थे। दनेB फे फेडी डीने क कण भा- कल ग क ह गया थे तथे आंतरिक चनेए किर्वदDण/ ह चक थे। बुह्य पक्षण- बुह्य पक्षण कने प में ने पया किक शार्व एक मेंकिहल क थे जू ड़ने क अकितमें अर्वस्था में थे। में%कितक क शार्व प ह ग क लर्व, ह ग लकिग, ब्रा, अडी किर्वया में जू"द थे। में%कितक क दकिहने अग्रे भाजू में टDआंई क या" (टDक) गदने में जू"द थे। में%कितक क शा प लगभाग 03 .में आंक र्वल कडी में जू"द थे। आंखो ड़ने क कण अद ध हुई थे तथे किपचक गया थे। मेंह खोल हुआं थे तथे आंतरिक भाग प कडी में जू"द थे। में%कितक क उप दत दिदखोई द ह थे। जूफे अद क तफे थे। शा मेंम्मेंकिफेक शाने क 9टजू प थे। में%कितक क बुए हथे कलई क प में जू"द नेह5 थे। में%कितक क दBनेB पM ऐकल ज्र्वईंट क प में जू"द नेह5 थे तथे हकिQया दिदखो ह थे एर्व हकिडीडीया में जूनेर्व क कटने क किनेशाने में जू"द थे।" He opined the death of deceased ‘due to neck compression and gave his report vide Ex-P/22. He also stated that as per Ex-P/23, he answered the query of Investigating Officer, which are as under:- “1. )या में%कितक क गल क दबुने में%त्या ह कत हM ? उत्तर - हॉ. मृति का का गले का दबाने से मृत्यु हॉ सेका हॉ। 2. क्यु मृत्तित्तका का गले मृ चुन्नी (कापडा) बा"धा हॉ$आ था, गले बा"धाने से मृत्यु हॉ सेका हॉ क्यु ? उत्तर हॉ', मृति का का गले मृ चुन्नी (कापडा) बा"धा हॉ$आ था एवं" गले बा"धाने से 6 मृत्यु हॉ सेका हॉ।" In the cross-examination, he also admitted that he found teeth and bone marks on the body of the deceased. 10. It is clear from the statement of Dr. Shivnarayan Manjhi (PW-15) that he found injuries on the neck and head of the deceased, however he has not clearly stated that nature of death is homicidal but looking to the injuries found on the body of the deceased, it is clear that the nature of death is homicidal in nature. In the cross-examination, no question was asked by the defence regarding nature of death of the deceased so the prosecution has proved this fact beyond reasonable doubt that the death of the deceased was homicidal in nature. 11. Now the second question we have to examine that whether the accused is the author of this crime or not? 12. The learned Trial Court has convicted the appellant on the basis of (i) last seen together (ii) Memorandum and seizure, (iii) call details/data of deceased and accused mobile phones. 13. PW-19 - Jaswant Kunjam stated that on the date of incident, he saw deceased at bus stand. At that time a wheatish skinned boy came there and took the deceased on his motorcycle and went away. When it was asked to him that whether the accused present in the Court is the same boy or not, then he replied that he is the same boy. In the cross-examination, he admitted that he does not know that boy prior to the incident and another boy can 7 be of the same physique. He also admitted that when he came to know about the death of deceased, then he did not go to the police station to tell that he had seen the deceased with some other boy. 14. Ku. Sevati Diwan (PW-24) stated that she had gone to Raipur along with deceased Tikeshwari, where the accused came and did conversation for 10-15 minutes, thereafter she and deceased went Rajasthan, where they stayed together and worked there for 6 months and during this time, the deceased used to talk with the accused. Thereafter they went to Hyederabad for work and stayed there for 1-2 months and there also the deceased used to talk to the accused. In para 7, she stated that in April month, she came to her village for attending the marriage. The prosecution declared her hostile and cross-examined her then she admitted this suggestion of the prosecution that the deceased Tikeshwari used to talk with the accused on his mobile number i.e. 9009260197. In the cross-examination in para 9, she admitted that after meeting of the accused and deceased in the year 2017 at Railway Station, she did not see the accused meeting with the deceased. 15. As per memorandum of the accused, one mobile and SIM was seized from the house of the accused. As per seizure memo (Ex- P/6) one mobile battery was seized. As per seizure memo (Ex- P/7) one motorcycle was seized and as per seizure memo (Ex- P/8), one underwear was seized. 8 16. Shri Vibhor Rastogi (PW-26), nodal officer in cellular mobile company, stated that as per letter of SP, he gave call details of mobile number Nos.8185084929, 9009260197 & 7745967045 from 01.04.2018 to 25.05.2018 as per Ex-P/34. In para 10 of his cross-examination, he admitted this suggestion of defence that as per Ex-P/34 all 3 mobile numbers are not registered in the name of the appellant. 17. The Investigating Officer S. L. Sinha (PW-25) admitted in the cross-examination that as per memorandum statement (Ex-P/4), no scarf (chunri) was recovered. He also admitted that no document showing that the seized battery belongs to the deceased was seized by him. He also admitted that he did not take fingerprint of the accused and neck marks of the deceased and the same were not sent to expert. 18. The Hon’ble Apex Court in the matter of Ravishankar Tandon (supra) held in paras 8, 9 & 10 as under:- “8. Undoubtedly, the prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra1, wherein this Court held thus: “152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 9 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] : “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 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 Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “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 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. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 9. 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 held that it is a primary principle that the accused ‘must be’ and not merely ‘may 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. 10. It is settled law that 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.” 19. The Hon’ble Apex Court in the matter of Chandrapal vs State of Chhattisgarh, reported in ILR 2022 CG 1473, held in para 7 as under:- “7. At the outset, it may be stated that undisputedly the entire case of the prosecution rested on the circumstantial evidence, as there was no eye witness to the alleged incident. The law on the appreciation of circumstantial evidence is also well settled. The 11 circumstances concerned “must or should be” established and not “may be” established, as held in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra1. The accused “must be” and not merely “may be” guilty before a court can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures. The entire chain of circumstances on which the conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground for the conclusion consistent with the innocence of the accused. The five golden principles enumerated in case of Sharad Birdhichand Sarda Vs. State of Maharashtra2 laid down in para 152 may be reproduced herein for ready reference: “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 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 Maharashtra [(1973) 2 SCC 793 : 1973 1 (1973) 2 SCC 793 2 (1984) 4 SCC 116 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] “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 12 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.” 20. In light of the above, it is clear that only PW-19 Jaswant Kunjam stated that he saw one boy with the deceased, whom he identified as the accused but he also admitted in his cross- examination that he does not know that boy prior to the incident and another boy can be of the same physique. He also admitted that when he came to know about the death of deceased, then he did not go to the police station to tell that he had seen the deceased with some other boy, as such the evidence of this witness is not reliable. 21. PW-24 Sevati, friend of deceased, stated that the deceased was in love affair with the accused, but she also admitted that after 2017, she never saw the accused with the deceased Tikeshwari. As per memorandum of the accused, one battery and SIM was recovered but the prosecution has failed to prove this fact that this battery and SIM which was seized as per memorandum of the accused was the battery of deceased’s mobile. PW-26 Vibhor Rastogi also admitted that in Ex-P/34, all 3 mobiles were not issued in the name of the accused and it is also clear from Ex- P/46, 47 and Article-A/1 that they all were issued in the name of Bhagwati Diwan and Shrawan Patel, but it is clear that the prosecution has failed to prove this fact that seized battery and mobiles were related to the crime in question in any manner and 13 as per memorandum of the accused, deceased’s mobile phone’s battery was also seized, but the prosecution has failed to prove this fact that on the date of incident, the prosecutrix and the accused talked to each other. 22. It is settled law that 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. 23. In light of the above guidelines of the Hon’ble Apex Court and considering the facts and circumstances of the case and the evidence adduced by the prosecution witnesses, it is clear that the prosecution has utterly failed to prove its case beyond reasonable doubt against the appellant. 24. Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges under Section 302 of IPC. 25. The appellant is in jail. He be released forthwith if he is not required to be detained in any other offence. 26. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt 14 of notice thereof, shall appear before the Hon’ble Supreme Court. 27. 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. Sd/- Sd/- Rajani Dubey Sachin Singh Rajput Judge Judge Nirala