1 2025:CGHC:24397-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 447 of 2016 1 - Ghasi Bargah S/o Nanhu Bargah Aged About 65 Years R/o Village Ayyari Chulhakona, P.S. Shankargarh, District Balrampur-Ramanujganj Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through P.S. Shankargarh, District Balrampur- Ramanujganj Civil District Surguja Chhattisgarh. ... Respondent(s) For Appellant : Shri FS Khare, Advocate. For Respondent(s) : Shri Ashutosh Shukla, Panel Lawyer. Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (16/06/2025) Deepak Kumar Tiwari, J 1. This Criminal Appeal preferred by the accused/appellant under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and sentence dated 27.10.2015 passed by the Additional Judge to the Court of Additional Sessions Judge, KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.06.17 14:39:34 +0530 2 Ramanujganj, District Surguja in ST No.10/2014 by which the appellant has been convicted under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine to further undergo additional RI for one month. 2. Case of the prosecution, in brief, is that on 13th December, 2013, at about 11 pm the accused/appellant in furtherance of his common intention along with co-accused Jagtu (acquitted by the trial Court) committed murder of Sunil @ Dilbar Bargah, who is the step son of the present appellant and his mother Milo Bai (PW13) is alleged to be eyewitness to the incident. Further case of the prosecution is that in the night of fateful incident i.e. on 13th December, 2013, the deceased asked for meal to his wife (PW-1) Mahanti. Since his wife has not prepared the meal, the deceased raised quarrel with his wife and asked about his mother (PW-13) Milo Bai. Wife of the deceased told that his mother Milo Bai (PW- 13) and his father i.e. the appellant have gone to the barn (Khalihan) for protection of the crop. Therefore, the deceased had also gone there in the night at about 11 pm and demanded food from his mother, on which his mother has informed that “Thirteenth Day” ceremony has been organized in the house of one person in the village and all the other family members have taken their food in the house of said person and, therefore, he should also go there to take food. Co-accused Jagtu seeing the said quarrel brought the club, started abusing the deceased in 3 filthy language, threatened to kill him and also assaulted on his leg 3-4 times, as a result of which he fell down. The present appellant snatched the club from the co-accused and started assaulting several times. The deceased became unconscious. Thereafter the appellant shifted the deceased to a place meant for storing hay stack owned by Moharsai. The said incident was witnessed by mother of the deceased namely, Milo Bai (PW-13). She also tried to rescue her son but the appellant has threatened her to kill and asked her not to disclose the incident to anyone. On the next day morning Milo Bai (PW-13) informed the incident to Moharsai (PW-7) and Chandan Kanwar. 3. On the basis of information given by Milo Bai (PW-13), the FIR was registered on 14th December, 2013 at PS Shankargarh, District Balrampur. Crime details form was prepared vide Ex.-P/10. The Patwari has prepared the Nazri Naksha vide Ex.- P/7. On the basis of memorandum statement of the appellant (Ex.-P/11), the club which was used for committing the crime was seized vide Ex.-P/12. Postmortem was conducted by Dr. Shashikala Toppo (PW-8) who gave her report vide Ex-P/14. 4. Statements of the witnesses were recorded. After completion of the investigation, charge sheet was filed before the jurisdictional criminal Court, which in turn committed the case to the Court of Sessions for trial, in which the appellant abjured his guilt and claimed to be tried. 4 5. In order to bring home the charges, the prosecution examined as many as 13 witnesses and exhibited 22 documents. In the statement recorded under Section 313 of the CrPC, the appellant has stated that he has been falsely implicated and he did not adduce any defence evidence. 6. The learned trial Court after appreciating the oral and documentary evidence available on record convicted and sentenced the appellant as mentioned above against which this Appeal has been preferred by the appellant. 7. Learned counsel for the appellants would submit that the trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the sole eyewitness namely, Milo Bai (PW-13) has turned hostile and not supported the case of the prosecution. The club was allegedly seized from the possession of the appellant, however, there is no FSL or Serologist’s report to connect the appellant with the crime in question. Mere recovery of the weapon i.e. club cannot form the basis for conviction unless the same is corroborated by any other evidence that too for offence under Section 302 of the IPC and, therefore, he deserves to be acquitted. Reliance is placed in the matters of Mustkeem alias Sirajudeen Vs. State of Rajasthan {(2011) 11 SCC 724} and Raja Naykar Vs. State of Chhattisgarh {2024 SCC OnLine SC 67}. 8. Per contra, learned State Counsel would support the impugned judgment of conviction and submit that the trial Court is absolutely 5 justified in convicting the appellant for offence under Section 302 of the IPC. The appellant is not entitled for acquittal and the Appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions and have gone through the records with utmost circumspection. 10. The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative relying on the postmortem report of Ex.-P/14 which is proved by (PW-8) Dr. Shashikala Toppo, stating that the death was homicidal in nature, and we do not find any illegality in the said finding, as the same is neither perverse nor contrary to the record. 11. Now the next question would be whether the accused/appellant herein is the author of the crime in question. 12. The present case is based on eyewitness account rendered by (PW-13) Milo Bai, who has deposed that when she was at barn (Khalihan) in the night hours, her son i.e. the deceased reached there and asked for the food. She admits that her husband i.e. the present appellant was also with her. But this witness has completely turned hostile and not supported the case of the prosecution that in her presence the appellant or co-accused Jagtu, (acquitted by the trial Court) in any manner, has caused injury to the deceased by using club. In cross-examination she admits that the deceased used to drink heavily. 6 13. The trial Court has also not relied upon this witness in its judgment at para-27 and based conviction only on the basis of memorandum statement of the appellant recorded during trial vide Ex.-P/11, pursuant to which club was seized vide Ex.-P/12. 14. (PW-7) Mohar Sai in examination-in-chief has stated that in pursuance of the memorandum statement of the appellant, he has produced the club which he had hidden after the incident in the heap of hay. Though this witness has turned hostile, however, he would depose that the proceeding of memorandum and seizure has been conducted in the morning at about 9.30 hours. 15. Perusal of memorandum (Ex.-P/11) and seizure (Ex.-P/12) would show that the aforesaid proceeding was done in the evening at about 16.10 hours. The other witness i.e. (PW-11) Bandhan has not supported the case of the prosecution and he has turned hostile. However, he has stated that the club was seized by the police from possession of the appellant in his presence but he is not aware as to from where the appellant has brought the said club. In the seizure memo (Ex.-P/12), the IO namely, Manoj Upadhyay (PW-10) has not affixed any specimen of seal in the presence of witnesses. 16. Furthermore, there is no FSL or Serologist’s report on record to connect the appellant with the crime in question. Even otherwise, the appellant could not have been convicted only on the basis of recovery of club for offence under Section 302 of the IPC in the light of decision of the Supreme Court in the matter of Raja 7 Naykar and Musteem alias Sirajudeen (Supra) wherein their Lordships of the Supreme Court have clearly held that sole circumstance of recovery of bloodstained weapon cannot form the basis of conviction unless the same is corroborated with other piece of incriminating circumstances that too for the offence under Section 302 of the IPC. 17. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant under Section 302 of the IPC are set aside and he is acquitted of the said charge by extending benefit of doubt. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant 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. 18. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Barve