1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1565 of 2019 Judgment Reserved on 21.08.2025 Judgment Delivered on 10.09.2025 • Lomesh Dhruv, S/o Ishwar Dhruv, aged about 24 Years, R/o Village Belora, Police Station Magarlod, District Dhamtari, Chhattisgarh. ...Appellant versus • State of Chhattisgarh, Through Police Station Magarlod, District Dhamtari, Chhattisgarh. .. Respondent For Appellant : Ms. Aditi Singhvi, Advocate For Respondent : Mr. Devesh G. Kela, Panel Lawyer. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. CAV Judgment Per, Amitendra Kishore Prasad, J. 1. This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 16.10.2019 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 passed in Sessions Trial No.21/2019 by the Additional Sessions Judge, Dhamtari, Circuit Court Kurud, District Dhamtari, C.G, by which the appellant stands convicted & sentenced as under:- Conviction Sentence Under Section 302 of Indian Penal Code (for short, ‘IPC’) Imprisonment for life and fine of Rs.1,000/-, in default of payment of fine amount to undergo additional rigorous imprisonment for six months 2. Case of the prosecution, in brief, is that on 04.02.2019 at about 07:30 p.m., complainant/PW-1- Balgovind lodged a report at Police Station Magarlod stating that he had received information on his mobile phone regarding a dead body of a man lying on the roadside near Chhathwan pond. On reaching the spot, he found a man lying dead in Mohandi Khar on the bank of the pond and his body covered with mud. The deceased was identified as Yogendra Sahu. There were visible injury marks and scratches on his body and a wound on the back of his head from which blood was oozing. On the basis of this report, Police Station Magarlod registered an FIR (Ex.P-29) against the unknown person for the offence under Section 302 of IPC. Thereafter, merg intimation vide Ex.P-1 was recorded and inquest proceedings were conducted vide Ex.P-3. Dead body of deceased- Yogendra Sahu was sent for postmortem examination which was conducted by PW-13 Dr. Uday Anand Dhruv, who have proved the postmortem report Ex.P-23. According to PW-13 Dr. Uday Anand Dhruv, the 3 cause of death of the deceased- Yogendra Sahu was smothering; the mode of death was asphyxia, and the nature of death was homicidal. 3. During investigation, accused/appellant was taken into custody vide Ex.P-14. Memorandum statement of the appellant was recorded vide Ex.P-11, pursuant to which, one Hero Honda motorcycle was seized vide Ex.P-12. Vide Ex.P-13, soil-stained clothes of appellant were seized. Vide Ex.P-14, one wooden club was seized. From the spot, soil-stained clothes of deceased, one micro-max mobile, ATM card and other articles were seized vide Ex.P-8. Vide Ex.P-9, moist soil was also seized from the spot. Seized articles were sent to FSL for chemical examination and as per FSL report, the physical properties of the soil found on the clothes in Exhibits ‘A’, ‘B’, ‘C’ and ‘E’ (E & E ) were found to be ₁ ₂ similar to the soil of Exhibit ‘D. However, the seized wooden club has not been sent to FSL for chemical examination. 4. After due investigation, appellant was charge-sheeted before the jurisdictional Criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant abjured the guilt and entered into defence by stating that he has not committed the offence and prayed for trial. 5. The prosecution in order to bring home the offence, examined as many as 14 witnesses in support of its case and exhibited 31 documents Exs.P-1 to P-31. However, the appellant in support of 4 his defence has examined none, but exhibited 8 documents i.e. Exs.D-1 to D-8. 6. The trial Court, after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment, against which, he has preferred the instant appeal under Section 374(2) of the CrPC. 7. Learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting and sentencing the appellant for the aforesaid offence as the prosecution has failed to prove the offence beyond reasonable doubt. She would further submit that the prosecution case rests entirely on circumstantial evidence; neither motive nor any discovery admissible under Section 27 of the Evidence Act has been established. The memorandum and seizure are rendered unreliable as the panch witnesses themselves turned hostile. Even assuming the seizure of a motorcycle, it fails to establish any nexus between the appellant and the homicidal death. She would also submit that crucial incriminating circumstances, including those relating to the FSL report, were not put to the appellant during his examination under Section 313 CrPC, thereby causing serious prejudice to the defence. She would also submit that while the medical evidence may confirm that the death was homicidal, but it does not connect the appellant to the commission of the offence. As such, the impugned judgment of 5 conviction and order of sentence deserves to be set aside and the appellant be acquitted of the said charge. 8. Learned counsel for the State would support the impugned judgment and submit that the prosecution has brought home the offence against the appellant and has proved the case beyond reasonable doubt and thus, the appellant has rightly been convicted and sentenced for the aforesaid offence. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. The first question for consideration would be whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-23) proved by PW-13 Dr. Uday Anand Dhruv, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11. Now, the question is whether the appellant is the perpetrator of the crime in question. 12. We will now examine the evidence presented by the prosecution one by one. PW-1 Balgovind Sahu, Sarpanch of the village, has stated that upon receiving information, he proceeded to the spot at Chhathwan pond, where he found the deceased- Yogendra Sahu, lying dead. Thereafter, he informed the police about the incident 6 and signed the documents (Exs.P-1 to P-15). However, in cross- examination, he categorically admitted that from the place of occurrence nothing was seized by the police in his presence. He further clarified that no memorandum statement of the accused/appellant was recorded before him, nor any seizure was made in his presence. Though his signatures appear on the documents Exs.P-1 to P-14, but he admitted that he had signed the documents only at the police station when he was called there, and not at the place of occurrence. He also admitted that he did not saw any injury over the person of the deceased. In this way, this witness (PW-1) has not supported the case of the prosecution and declared hostile. 13. PW-2 Smt. Sunita Bai has also not supported the case of the prosecution. She did not depose anything incriminating against the accused/appellant and was, therefore, declared hostile. Even in the cross-examination conducted by the prosecution, nothing could be elicited from her to connect the accused/appellant with the alleged offence. Her evidence, therefore, does not in any manner advance the prosecution story. 14. PW-3 Komal Singh Kanwar, witness to alleged memorandum and seizure proceedings, has admitted that he signed on the documents (Ex.P11 to P-14), but categorically denied that any such memorandum or seizure was recorded in his presence. Since he did not support the case of the prosecution, he was declared 7 hostile. Even in the cross-examination by the prosecution, nothing material could be brought out to establish that the memorandum and seizure were genuine or effected in accordance with law. 15. PW-4 Smt. Domin Bai is cited as a witness to the arrest of the accused/appellant and her signatures appear on the arrest memo (Ex.P-14). However, this witness has also not supported the prosecution case. She denied having witnessed the arrest and was, therefore, declared hostile. Even in her cross-examination by the prosecution, nothing substantive could be elicited to prove that the arrest was effected in her presence. Accordingly, the testimony of PW-4 Smt. Domin Bai does not lend any support to the prosecution case and renders the alleged arrest memo doubtful. 16. PW-5 Gopichand Dhruv, PW-6 Dharmendra Kumar Dhruv and PW-7 Jhamendra Kumar have also not supported the prosecution case. They did not depose anything against the accused/appellant and were declared hostile. Even after cross-examination by the prosecution, nothing useful could be extracted from them to corroborate the prosecution story. Accordingly, their testimonies do not assist the prosecution in proving the alleged offence. 17. PW-8 Pikeshwar is cited as a seizure witness and his signatures appear on the seizure memo (Ex.P-12). However, he has not supported the case of the prosecution and was declared hostile. In his cross-examination, he admitted that although his signatures are on the seizure memo relating to the motorcycle, but when he 8 signed the document it was only a printed proforma and nothing was written on it. He further clarified that he had signed on a blank printed proforma at the instance of the police. This testimony seriously dents the credibility of the alleged seizure, as the seizure memo loses its evidentiary value when the independent witness himself denies witnessing any seizure and states that his signature was obtained on a blank form. Thus, the evidence of PW-8 Pikeshwar not only fails to support, but also creates doubt about the genuineness of the seizure proceedings. 18. PW-9 Digeshwar Kumar Yadav has stated that he has signed the documents (Ex.P-20, summons under Section 160 of Cr.P.C.) and arrest memo (Ex.P-14). However, this witness has categorically stated that when he was merely passing by the police station, he was called inside by the police and asked to put his signature upon the said documents. He has not deposed that the contents of the memo were prepared in his presence or that he had witnessed any relevant proceedings. Accordingly, the testimony of PW-9 Digeshwar Kumar Yadav also does not inspire confidence. It rather indicates that his signatures were obtained mechanically at the police station without his witnessing any part of the proceedings. Thus, his evidence fails to corroborate the prosecution version in any manner. 19. PW-10 Dameelata Nageshia admitted that she signed the documents (Exs.P-6 spot map, Ex.P-7 Panchnama and Ex.P-21, 9 application for providing spot map), but in cross-examination, she specifically admitted that no date was mentioned in Ex.P-6, spot map. She further admitted that she had not read the contents of the documents, nor were they read over to her. She also admitted that she had signed the documents only on the instructions of the concerned police officer. Thus, the evidence of PW-10 shows that her signatures were obtained in a routine manner at the behest of the police without she having any knowledge of the proceedings. Her testimony, therefore, does not lend any credibility to the prosecution case and renders the genuineness of the documents doubtful. 20. PW-13 Dr. Uday Anand Dhruv who conducted the post-mortem examination, has stated that the death of the deceased occurred due to pressing of the nose and mouth, as a result of which, deceased was unable to breathe and consequently died. He opined that the death of deceased was homicidal in nature and had occurred about 24 hours prior to the post-mortem. In cross- examination, he admitted that the danda (wooden stick) shown to him was a common type that many people usually use, and there were no blood stains found on it. Thus, while the medical evidence of PW-13 establishes that the death was homicidal, it does not in any manner connect the seized article with the commission of the offence. The absence of blood stains on the alleged weapon (wooden stick) casts serious doubt on its evidentiary value. Thus, the testimony of PW-13, instead of lending support, further 10 weakens the prosecution version. The alleged memorandum and consequent recoveries, being unsupported by this witness, remain doubtful and cannot be safely relied upon. 21. PW-14 Sanjay Yadav, Investigating Officer, has stated that he conducted the entire investigation and thereafter submitted the charge-sheet. He has candidly admitted that there is no eye- witness to the incident and that the entire case rests upon circumstantial evidence. He further clarified that he has only recorded the statements of the witnesses as narrated by them and has not made any exaggeration in his deposition. Thus, the testimony of PW-14 establishes the formal aspect of investigation but does not by itself prove the complicity of the accused/appellant. His evidence is at best corroborative of the investigation carried out, but since almost all the material witnesses have turned hostile and the alleged seizures have not been supported, the investigation alone cannot be made the basis of conviction. 22. From the above evidence, it is apparent that the case of the prosecution rests entirely on circumstantial evidence. However, none of the circumstances relied upon have been proved in accordance with law. The alleged memorandum and seizure have not been established, as all the independent witnesses have turned hostile and have denied witnessing any such proceedings. Though a motorcycle was seized, but the seizure has not been duly supported by the witnesses, and in any case, the recovery of 11 the motorcycle alone cannot establish the guilt of the accused/appellant. Neither motive nor discovery of any incriminating article has been proved by the prosecution. Neither motive nor discovery of any incriminating article has been proved by the prosecution. 23. The Hon'ble Supreme Court in the matter of Nandu Singh vs State of Madhya Pradesh (Now Chhattisgarh) reported in (2022) 19 SCC 301 has held in para 9 which reads as under:- “9. In a case based on substantial evidence, motive assumes great significance. It is not as if motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused.” 24. Applying the above principle to the present case, it is clear that the prosecution has failed to prove that the appellant had any motive whatsoever to commit the murder of the deceased. The complete absence of motive, coupled with the failure to prove discovery or any other incriminating circumstance, seriously weakens the prosecution and weighs in favour of the accused. 12 25. It is a settled principle of criminal jurisprudence that the prosecution must establish the chain of circumstances with cogent and reliable evidence, particularly in cases based on circumstantial evidence. 26. It is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 1 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under: “153.…. (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 & Anr. v. State of Maharashtra, (1973) 2 SCC 793 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 1 (1984) 4 SCC 116 13 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.” 27. In the present case, there are missing links in the chain of circumstances, and the evidence falls short of the standard required in law. The majority of the prosecution witnesses (PW-1 to PW-10) have turned hostile and have not supported the case. The medical evidence of PW-13 Dr. Uday Anand Dhruv only proves that the death was homicidal, but does not connect the accused/appellant with the offence. The investigating officer (PW-14 Sanjay Yadav) himself admits that the case is purely circumstantial and without eyewitnesses. Besides above, though certain articles were seized from the appellant, but there is no cogent evidence to establish that these articles were either used in the commission of the offence or were last seen in the possession of the deceased or appellant in such a manner that would link the appellant directly to the crime and that no forensic 14 evidence has been produced by the prosecution to establish that the seized wooden stick belonged to the deceased. The prosecution failed to establish a chain of circumstances to prove the relevance or connection of the seized items to the alleged offence. 28. In the matter of Mustkeem @ Sirajudeen v. State of Rajasthan, reported in (2011) 11 SCC 724, the Hon’ble Supreme Court has held in paras 19 & 20 which read as under:- “19. The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was connected with the murder of deceased by the Appellants. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder. 20. In fact, the recovery of the weapons on disclosure of the Appellants itself becomes doubtful. The witness of Recovery Memo P.W.1 - Mohd. Ayub Khan was declared hostile and another witness P.W.10 - Chittar admitted that signatures were obtained on the memos and annexures at the Police Station itself. It is also pertinent to mention here that 15 P.W.1 - Mohd. Ayub Khan was residing 4 Kms. away from the place of recovery and P.W.10 - Chittar was residing 8 Kms. away from the place of recovery and were also declared hostile. Prosecution failed to establish as to why none of the local persons were called to be the witnesses. The conduct of the prosecution appears to be extremely doubtful and renders the case as concocted, to falsely implicate the Appellants.” 29. The above observations squarely apply to the facts of the present case wherein the alleged memorandum and recovery have not been proved in accordance with law, as all the independent witnesses have turned hostile and the prosecution has failed to establish a credible link between the alleged seizure and the crime. 30. This apart, it is a settled principle of law that any incriminating circumstance not put to the accused/appellant cannot be used against him, and the omission may cause serious prejudice ot the defence. In the matter of Kalicharan and others vs State of Uttar Pradesh reported in (2023) 2 SCC 583 has held in paras 26 & 27 which read as under:- “26. Such a case was not at all made out by the prosecution in the evidence before the Court. The material brought on record by the prosecution witnesses (PW-1 and PW-2) is to the effect that Harpal Singh died due to injuries sustained as a result of an attack made by accused nos.1,3 and 4 on him by sharp weapons. These material 16 circumstances brought on record against the accused on which their conviction is based were never put to the accused. What was put to the accused was not the case made out by the prosecution in the evidence. No questions are asked in the Section 313 statement about the post- mortem of the body of Harpal Singh. It is not put to the witness that the cause of death of Harpal Singh was due to haemorrhage and shock as a result of injuries caused by sharp weapons. 27. Questioning an accused under Section 313 Cr.P.C. is not an empty formality. The requirement of Section 313 Cr.P.C. is that the accused must be explained the circumstances appearing in the evidence against him so that accused can offer an explanation. After an accused is questioned under Section 313 Cr.P.C., he is entitled to take a call on the question of examining defence witnesses and leading other evidence. If the accused is not explained the important circumstances appearing against him in the evidence on which his conviction is sought to be based, the accused will not be in a position to explain the said circumstances brought on record against him. He will not be able to properly defend himself.” 31. Applying the above principle to the present case, it is evident that the vital circumstance relating to the FSL was never put to the appellant during his examination under Section 313 Cr.P.C. This omission has caused serious prejudice to the defence and 17 consequently, it would be unsafe and impermissible in law to rely upon those facets against the appellant for sustaining his conviction. 32. It is a settled principle of criminal law that suspicion, however grave it may be, cannot substitute for proof. The entire case of the prosecution is based on weak circumstantial evidence, and the chain of circumstances necessary to bring home the guilt of the accused/appellant has not been established. 33. In a very latest judgment in the matter of Padman Bibhar vs. State of Odisha reported in 2025 SCC OnLine SC 1190, the Hon’ble Supreme Court has held as under:- “6.On the basis of evidence adduced by the prosecution, the Trial Court held the appellant/accused guilty for both the charges and convicted and sentenced him as stated supra and the same has been affirmed by the High Court. 7.The Trial Court found that the evidence on 'last seen together' and recovery of weapon together with motive are the circumstances which complete the chain of circumstantial evidence and are sufficient to hold the appellant/accused guilty for commission of murder and causing disappearance of evidence. The conviction and sentence imposed by the Trial Court has been affirmed by the High Court under the impugned judgment. 22. In the case at hand also the only evidence against the appellant is of 'last seen together'. The 18 evidence of motive does not satisfy us to be an adverse circumstance against the appellant inasmuch as if the appellant has any doubt about his wife's chastity, he would have caused injury or harm to his wife rather than to wife's cousin with whom he had no animosity. Moreover, the so-called weapon of the offence i.e. the stone has not been recovered at his instance nor there is any memorandum statement of the appellant. 23. On the basis of above discussion, we are of the opinion that the nature of circumstantial evidence available against the appellant though raises doubt that he may have committed murder but the same is not so conclusive that he can be convicted only on the basis of evidence on 'last seen together'.” 34. Also, in the matter of Ram Gopal S/o. Mansharam vs. State of Madhya Pradesh reported in 2023 (5) SCC 534, the Hon’ble Supreme Court has held as under:- “5. It cannot be gainsaid that when the entire case of the prosecution hinges on the circumstantial evidence, the entire chain of circumstances has to be completely proved, which unerringly would lead to the guilt of the accused and none else. So far as the evidence on record in the present case is concerned, it emerges that it was not disputed that on 19-12-1995 at about 5 p.m., the petitioner accused had taken the deceased Pratap Singh from his house. Thereafter, the deceased and the petitioner were also seen together at the shop of 19 one Shripal at Village Arhela by the witness Vijay Singh (PW 4). It was also not disputed that on the next day morning the dead body of the deceased was found lying near one field at Village Chachiha. Hence, the death of the deceased Pratap Singh had taken place during the night hours of 19th f and 20-12-1995, and that the petitioner was lastly seen with the deceased on the previous evening. Thus, it was the petitioner alone, who knew as to what happened after the evening of 19-12-1995. 6. It may be noted that once the theory of "last seen together" was established by the prosecution, the accused was expected to offer some - explanation as to when and under what circumstances he had parted the company of the deceased. It is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. Of course, Section 106 is certainly not intended to relieve the prosecution of its duty to prove the guilt of the accused, nonetheless it is also equally settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, in view of Section 106 of the Evidence Act, such failure on the part of the accused may be used against the accused as it may provide an additional link in the chain of circumstances required to be proved against him. In the case based on circumstantial evidence, furnishing or non-furnishing of the explanation by the accused 20 would be a very crucial fact, when the theory of "last seen together" as propounded by the prosecution was proved against him.” 35. Furthermore, the Hon’ble Supreme Court in the matter of Manharan Rajwade vs. State of Chhattisgarh reported in 2024 SCC OnLine SC 1836 has held as under:- “3.The prosecution's case is based on the theory of last seen together. Consequently, the prosecution contends that the appellant had not discharged the burden on him under Section 106 of the Indian Evidence Act, 1872 (for short, "the Evidence Act"). The prosecution examined two witnesses, Sonawati (PW-1) and Hirmaniabai (PW-2). 7. For invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellant's presence at the relevant time in his house. In this case, going by the evidence of PW-1, the deceased had already died before 5:00 p.m., and the said witness stated that the appellant came back home at 7:00 p.m. There is no evidence to prove the theory of the last seen together. Therefore, the prosecution has not discharged the burden on it to prove that the appellant was last seen together with the deceased wife. Thus, Section 106 of the Evidence Act cannot be invoked to shift the burden on the appellant. 21 8. Even the appellant's answer given to question no. 27, if taken in Its entirety, does not support the prosecution. The appellant vaguely stated that he came back around 4:00-5:00p.m. when PW-1 and PW-2 were in the house and told him that the deceased was not talking and moving. Thus, he reached home after the death of his wife. The allegation was that the death was caused due to strangulation by the appellant.” 36. In view of the above precedents, laws laid down by the Hon’ble Supreme Court as well as the facts and circumstances of the case, the failure to establish a forensic link between the recovered articles and the deceased fatally weakens the prosecution’s case. The conviction cannot be sustained solely on the basis of uncorroborated recovery. The prosecution has failed to prove the appellant's guilt beyond reasonable doubt. The trial Court erred in convicting and sentencing the appellant without credible and trustworthy evidence. The chain of circumstances is broken and incomplete, thus, the benefit of doubt must be given to the appellant. 37. Accordingly, the judgment of conviction and order of sentence awarded to the appellant by the learned trial Court is hereby set aside. The criminal appeal is hereby allowed. The appellant is acquitted of the charges framed against him. 22 38. The appellant is reported to be on bail. Keeping in view the provision of Section 437-A of CR.P.C., the appellant is directed to forthwith furnish personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- with one surety in the like amount before the trial Court concerned 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 of notice thereof shall appear before the Hon’ble Supreme Court. 39. Registry is directed to transmit the lower Court record along with a copy of this judgment to the trial Court forthwith for information and necessary compliance. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha