2025:CGHC:14209-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1650 of 2019 Manesh Kumar Kumre S/o Shri Kant Kumre Aged About 24 Years R/o Vilage Bagdongri, Police Station Aundhi, District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through The Police Station Aundhi District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh ... Respondent For Appellant : Mr. R.K. Jain and Ms. Anuruddha Shrivastava, Advocates For State : Mr. Ajay Kumar Pandey, GA {Hon’ble (Smt.) Justice Rajani Dubey & Hon’ble Shri Justice Sachin Singh Rajput} Judgment on Board (25/03/2025) Per Sachin Singh Rajput, J Judgment assailed in this appeal is dated 18.10.2019 rendered in ST No. 46/2018 by 2nd Additional Sessions Judge, Rajnandgaon, District Rajnandgaon, (CG) by which the accused/appellant has been convicted under Sections 302 & 201 IPC and sentenced to undergo life Imprisonment with fine of Rs. 500/- under Section 302 and RI for 3 years with fine of Rs.200/- under Section under Section 201 IPC, plus default stipulations. 2. Facts in short: on 06.05.2018 deceased Ramesh Mandavi had gone to village Raingatola along with others to attend the marriage ceremony in the house of Rainuram Kumeti but did not return in the night. Next day at about 6 AM one Sheetal Bai (not examined) went towards the field and found Ramesh Mandavi lying in an unconscious condition. She then disclosed the same accordingly to her family members. After the family members rushed to the field, the deceased was found lying there in an unconscious condition with injuries on head, neck, face, limbs, and that his ear and nose were bleeding. Ramesh Mandavi was then taken to Mannpur Government Hospital. However, while being taken to District Hospital, Rajnandgaon, he died on the way itself. On the information given by the informant Uttam Singh Mandavi (PW-1), merg (Ex.P-1) was registered against an unknown persons followed by registration of FIR (Ex. P-2) under Section 302 IPC. Subsequently, on the basis of suspicion in the wake of earlier money related dispute, the accused/appellant was apprehended and during investigation he confessed his guilt of doing away with the deceased. Seizure of plain and blood stained soil, the club used for committing the crime and the clothes worn by the accused/appellant at the time of incident was made, statements of the witnesses were recorded and the accused was taken into custody. The dead body was sent for postmortem examination which was conducted by Dr. Girish Khobragadhe (PW-12) who gave his report Ex. P-15. After completion of investigation charge-sheet was filed for the offence punishable under Sections 302 and 201 IPC followed by framing of charge accordingly. The appellant however denied the charges and claimed trial. 3. To prove its case prosecution examined 21 witnesses in all followed by recording of statement of the accused/appellant under Section 313 CrPC where as usual he pleaded his innocence and false implication in the case. 4. Learned trial Court on the basis of material available before it convicted and sentenced the accused/appellant as described above. Hence this appeal. 5. Learned counsel for the appellant submits that the conviction slapped on the accused/ appellant is based on the circumstantial evidence as a whole but not even a single circumstance is there on the basis of which an irresistible conclusion as to the guilt of the accused/appellant can be drawn. As regards the circumstance of last seen, counsel for the appellant submits that the evidence in this regard is full of contradictions and omissions and therefore cannot be implicitly relied upon. He further submits that Sukruram Padda (PW-5), Anil Kumar Mandavi (PW-6), Sandip Kumar Mandavi (PW-7) and Kishore Kumar Mandavi (PW-8) have stated that the deceased and the accused were last seen together in the night of 06.05.2018 but Sheetal Bai (not examined) is said to have seen the deceased on the next morning at about 6 AM in the field in an unconscious condition, and thus according to the counsel for the appellant this huge time gap after the deceased being seen alive in the company of the accused renders the evidence of last seen doubtful. Discrediting the testimony of PW-5 learned counsel for the appellant submits that the statement of this witness cannot be relied upon to establish the last seen theory as his evidence is not credible. He submits that the seizure of club on the memorandum of the accused/appellant is also doubtful as one witness to it namely Jaggu Ram Padda (PW- 21) has turned hostile whereas the other one namely Ravindra Kumar Mandavi (PW- 11) has stated that the said club was not sealed in his presence. He further submits that when the recovery of club itself is doubtful, the conviction cannot entail merely on the basis of blood stains found on it. He further submits that as the prosecution has utterly failed in establishing its case beyond all reasonable doubts, the judgment impugned needs quashment by allowing the appeal. In support of his submissions, reliance is placed on the decision of the Supreme Court in the matter of Pradeep Kumar V. State of Chhattisgarh reported in (2023) 5 SCC 350, in the matter of Dharam Deo Yadav V. State of U.P. reported in (2014) 5 SCC 509, in the matter of Boby V. State of Kerala reported in (2023) 15 SCC 760 and in the matter of Salim Akhtar V. State of U.P. reported in (2003) 5 SCC 499. 6. 6. State counsel on the other hand, lends full support to the judgment impugned and submits that in view of the evidence available on record the trial Court has been fully justified in convicting and sentencing the accused/appellant as mentioned above, and no interference is required with the well founded finding. 7. Heard counsel for the parties and gone through the evidence on record. 8. Uttam Singh Mandavi (PW-1) – the brother of the deceased has stated that Ramesh Mandavi had gone to attend some marriage ceremony but did not return till the next morning. He has stated that one Sheetal Bai (not examined) came to his house and informed that Ramesh was lying in the field with bleeding wounds. On coming to know this, he along with Sheetal Bai, Madan, Jagat, Dalpat, Vinod, Vijay etc. went to the place so informed and found Ramesh lying unconscious, drenched in blood but was breathing slowly. Ambulance was called and Ramesh was then taken to Maanpur hospital but looking to his condition he was referred to District Hospital, Rajnandgaon and while being taken thereto, he died on the way. He saw injuries on back side of his head as also on the temple, apparently he was assaulted by someone with an intention to kill. According to him, he gave information to police station Maanpur (Ex.P-1) based on which FIR was registered as Ex.P-2. On being produced by him, the switched off mobile phone of the deceased was seized by the police under Ex. P-3. Inquest (Ex.P-5) was conducted in his presence which bears his signature also. He has also stated about the old 2000/- rupee note related dispute between the accused and the deceased where the accused had threatened him of eliminating of one of his brothers. In cross examination also, barring certain omissions he has stated the same thing as in the examination-in-chief. Madan Sai Mandavi (PW-2) and Arun Kumar Valdi (PW-3) have also made almost the same statement as by (PW-1). Ku. Maani Koa (PW-4) has stated that she also had been to the marriage ceremony and seen the accused also thereat. While returning next morning, she found a shirt and a mobile phone, she showed the same to the wife of Uttam Singh (PW-1) who identified the same to be of the deceased. Sukhroo Ram Padda (PW-5) has stated that after attending the marriage when he was returning home in the dead of night, on the bund the accused and the deceased were sitting, both holding the mobile. When he asked them to get home, they told him to move. Next morning when he woke up, his father infordmed him about the death of the deceased. In the cross examination, he has stated that the place where the deceased and the accused were sitting, was a public way and no tree was there. Anil Kumar Mandavi (PW-6), Sandip Kumar Mandavi (PW-7), Kishore Kumar Mandavi (PW-8) and Ravindra Kumar Mandavi (PW-11) are the witnesses who saw the deceased and the accused in the marriage ceremony and next day they came to know about his being assaulted by someone. They saw the injury on the head of the victim and then arranged for his hospitalization. 9. Dr. Mohan Tikam (PW-9) has stated that on 7.5.2018 the victim was brought to him in injured condition and on being asked from the people with him, they told that the victim was found unconscious in the field. This witness however referred the victim to District Hospital, Rajnandgaon. He noticed swelling on the left side of his head, left cheek, blood was coming out from his ear and mouth, slow breathing was there, the injury of the head was grievous in nature, apparently caused by hard and blunt object and within six hours therefrom. No fracture was noticed and the victim is opined to have suffered the injuries present on his person by fall on a stone as well. Prafulla Kumar Aneshwari (PW-10) is the Patwari who prepared spot map Ex. P-10. He has admitted that there was no light at the place of incident, and that he did not mention about any tree thereat. Dr. Girish Khobragarhe (PW-12) is the witness who conducted post mortem examination on the body of the deceased and gave his report Ex. P-15 stating that endotracheal tube was there in the mouth of the deceased, contusion on right cheek in the size of 2 x 2 cm was there, similar wound was there on the left cheek in the size of 4 x 2 cm, left mandible and left temporal region were fractured and all the injuries were ante mortem in nature. Cause of death according to this witness was cerebral hemorrhage due to head injury caused by hard and blunt object, mode of death was cardio respiratory arrest, and it was homicidal in nature. While answering the query vide Ex. P-17, he has stated that the death could be caused with the club presented before him for examination. He has stated that along with the memo, PM report, photocopy of seizure memo along with the seized club were received by him separately in a sealed condition. Rainuram Gond (PW-17) has stated that he came to know that the deceased was killed by the accused/appellant. He has stated that along with the police he too went to the spot and saw the club lying there and the victim was lying under a tree who later died. Parmila Gond (PW-16) and Jagguram Padda (PW-21) have not supported the case of the prosecution and have turned hostile. 10. Having thus gone through the evidence of the witness (PW-5) as regards the accused and the deceased being last seen together where he has stated that while returning to his village after attending the marriage in the wee hours i.e. at about 2-3 AM accused and the deceased were found sitting together on a bund and when he asked to get home, they told him move and they would come little later. The dead body was first seen by Sheetal Bai (not examined) at about 6 AM and on being informed by her, the family members of the deceased too visited the spot and found the victim lying there in an unconscious state. PW-7 who too returned from the marriage house in the night itself however has denied the factum of accused and the deceased being seen together. In this context, his statement is to be examined minutely in juxtaposition with that of PW-10, and on that being done it is apparent that they both are the relatives of the deceased and therefore his statement does not appear to be natural as the distance from where PW-5 is said to have seen them sitting together is 200 meters and thus it could hardly be possible for him to see them. According to the law holding the field as regards the last seen theory, it comes into play when the time gap, between the two points of time i.e. (i) when the deceased was seen last alive in the company of the accused and (ii) when the victim is found dead, is so small that the possibility of any other person than the accused being the perpetrator of the crime becomes impossible. If the evidence as regards last seen theory in this case is seen, it becomes difficult to positively establish that it is the accused alone who is the author of the crime in question. 11. The other circumstance relied upon by the prosecution is the seizure of club. Rainuram Gond (PW-17) has stated that the seizure of club was made from the spot. Ravindra Kumar Mandavi (PW-11) has stated that on the memorandum of the accused/appellant the seizure of club was made from the heap of garbage. The memorandum is stated to have been drawn up by the police at the house of the accused/appellant and signed by this witness. According to the evidence of investigating officer (PW-14) also the club was seized from the garbage heap at the instance of the accused/appellant. Furthermore, PW-11 and PW-14 have stated that such club is normally found with almost every villager. Thus if the evidence of PW- 11, PW-14 and PW-17 is seen in juxtaposition, there is no uniformity as regards the place from where the club was in fact seized. Secondly, if it was taken to be seized from the garbage heap, the possibility of it being the other club than the one used in the commission of crime cannot be ruled out because in villages such places situate in outlying open area accessible to all. The glaring infirmity in the evidence of the prosecution witnesses is that according to some the club was found lying near the unconscious victim whereas according to other it was in the garbage heap. The first basic infirmity in the evidence of the prosecution witnesses is that none has deposed about the exact statement made by the accused which ultimately led to the discovery of a relevant fact under Section 27 of the Evidence Act. Dealing with identical issue in the matter of Subramanya v. State of Karnataka reported in (2023) 11 SCC 255 subsequently followed in Boby V. State of Kerala reported in (2023) 15 SCC 760 it has been held by the Supreme Court as under: “76. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus: “27. How much of information received from accused may be proved.— Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 77. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act. 78. If it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all aforesaid relevant aspects of the matter.” 12. Thus the seizure made on the memorandum of the accused/appellant which according to one of the prosecution witnesses was recorded in the house of the appellant himself is not in accordance with law. Seizure of the club is rendered doubtful in view of the different version made by the witnesses – some saying it to have been made from the garbage heap and according to others from the spot where the victim was lying unconscious. Since the recovery of club itself is doubtful, on the basis of blood stains opined to have been found in it as per the FSL report (Ex. P-30), accused/appellant cannot be convicted. Further, the FSL report opines presence of blood on the endotracheal tube of the deceased received by the Laboratory on being produced by constable No. 275 namely Rakesh Rana, but that constable has not been examined by the prosecution, which creates doubt on this point. Even presuming that the club seized contained the blood matching that of the group of the deceased, this circumstance cannot be read in isolation so as to link the accused with the crime because the seizure thereof itself is doubtful. Dealing with this issue in the matter of Allarakha Habib Memon v. State of Gujrat reported in (2024) 9 SCC 546 it has been held by the Supreme Court as under: “42...We may reiterate that the testimony of the so-called eyewitneses has alreaedy been discarded above by holding the same to be doubtful. Thus, even presuming that the FSL reports (Exhibits 111-115) conclude that the blood group found on the weapons recovered at the instance of the accused matched with the blood group of the deceased, this circumstance in isolation, cannot be considered sufficient so as to link the accused with the crime.” Furthermore, no question was put to the accused while recording his statement under Section 313 CrPC as to how the blood on the club and the endotracheal tube was found and therefore in the absence of any explanation from him, this circumstance does not appear to be of any help to the case of the prosecution. 13. In view of the aforesaid factual and legal analysis, this Court is of the considered opinion that the chain of circumstances does not appear to be complete and consistent with the hypothesis of the guilt of the accused so as to sustain his conviction under Section 302 and 201 IPC. The trial Court’s conclusion as to the guilt of the accused/appellant does not appear to be based on proper appreciation of the evidence of the witnesses. It is therefore liable to be set aside. Order accordingly. 14. In the result, the appeal is allowed. Judgment impugned is set aside and the accused/appellant is acquitted of the charges levelled against him. The appellant is reported to be in jail. He bet set free forthwith if not required in any other case. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Jyotishi