1 2025:CGHC:636-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1807 of 2019 {Arising out of judgment dated 29.10.2014 passed in Sessions Trial No.121/2014 by the learned Second Additional Sessions Judge, Raigarh} Balak Ram Nagwanshi, S/o. Chandro Nagwanshi, Aged About 40 Years, R/o. Putukachhar, Dhoura Bhata, Police Station Dharamjaigarh, District Raigarh, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Police Station Dharamjaigarh, District Raigarh, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellant : Mrs. Laxmin Tondey, Advocate on behalf of Mrs. Ranjana Jaiswal, Advocate For Respondent : Mr. Sharad Mishra, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (06.01.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.01.08 11:02:54 +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 dated 29.10.2014, passed by the learned Second Additional Sessions Judge, Raigarh, in Sessions Trial No.121/2014, by which, the sole appellant has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.5000/-, in default of payment of fine amount, 5 months additional rigorous imprisonment. 2. Case of the prosecution, in short, is that in between 24.02.2014 at 9:00 A.M. to 25.02.2014 at 9:00 A.M. at village Putukachhar, Police Station Dharamjaigarh, District Raigarh, the appellant herein assaulted Guruwaru Ram Raut by axe, by which, he suffered grievous injuries and died; thereby, the aforesaid offence has been committed. Dehati Nalsi was registered vide Ex.P-1, Merg Intimation was registered vide Ex.P-2, FIR was registered vide Ex.P-13, Inquest was conducted vide Ex.P-8 and dead body of deceased Guruwaru Ram Raut was subjected to post- mortem, which was conducted by Dr. B.L.Bhagat (PW-6), who proved the post-mortem report vide Ex.P-10, according to which, cause of death was stated to be syncope as a 3 result of severe bleeding and death was homicidal in nature. Pursuant to memorandum statement of the appellant vide Ex.P-5, axe has been seized vide Ex.P-6, which was sent for chemical examination to FSL, but the FSL report has not been brought on record. After due investigation, the appellant was charge-sheeted for the aforesaid offence 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 offence, prosecution examined as many as 7 witnesses and exhibited 21 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the document Ex.D-1. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced him to undergo life imprisonment, against which the present appeal has been preferred. 5. Mrs. Laxmin Tondey, learned counsel appearing for the appellant, would submit that the prosecution has not been 4 able to bring home the offence beyond reasonable doubt and the incriminating circumstances found proved by the trial Court in 12 of its judgment is not established at all, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 6. Mr. Sharad Mishra, learned State counsel would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. and, as such, the appeal deserves to be dismissed. 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 Guruwaru Ram Raut was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-10), proved by Dr. B.L.Bhagat (PW-6), according to which, cause of death was stated to be syncope as a result of severe bleeding 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 5 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 paragraph 153 as under: - “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: 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 6 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 show that in all human probability the act must have been done by the accused.” 10. The trial Court in paragraph 12 of the impugned judgment has recorded the following four incriminating circumstances to base the conviction, which states as under : “12. izdj.k esa vc ;g ns[kk tkuk gS fd D;k e`rd dks vkbZ mDr pksaVs vfHk;qDr }kjk dkfjr dh xbZ FkhA vfHk;kstu dk ;g izdj.k p{kqn’khZ lk{kh ij vk/kkfjr ugha gS vfirq ifjfLFkfr tU; lk{; ij vk/kkfjr gSA vfHk;kstu us vfHk;qDr ckyd jke ds fo:) fuEu ifjfLFkfr;ksa dks crk;k gSA igyk& e`rd dk vkjksih dh iRuh dk >kM+ Qwad ls bZykt djuk ,oa bZykt ds nkSjku vkjksih dh 7 iRuh dh e`R;q gksukA nwljk& /kkjk 27 lk{; vfk/kfu;e ds rgr vfHk;qDr }kjk Kkiu nsukA rhljk& Kkiu ds vuqlkj vfHk;qDr ls dqYgkM+h dh tIrh fd;k tkukA pkSaFkk& vfHk;qDr dk Lora= lkf{k;ksa ds le{k vius d`R; dks Lohdkj djuk ,oa mldh iRuh dh e`R;q gksus ds dkj.k e`rd ls jaft’k j[kukA” 11. The first incriminating circumstance is that the deceased has treated the appellant’s wife and during the course of treatment, appellant’s wife died and, as such, the appellant had a grudge that on account of improper treatment his wife has died. However, on the basis of statement of Smt. Aasmati (PW-1), this cannot be held to be the motive of offence and also cannot be held to be incriminating circumstance, as the trial Court did not record a finding that, on account of which, the relationship between appellant and deceased had become strained and on that account, the appellant had motive to commit the offence that too the offence of murder. 12. The next incriminating circumstance that has been found proved by the trial Court is that pursuant to memorandum statement of the appellant, axe has been recovered. However, the memorandum statement has been recorded in presence of Sadhuram (PW-5), but a careful perusal of statement of Sadhuram (PW-5) would show that PW-5 has only stated that at the instance of appellant, axe has been 8 recovered. Though seizure has been proved but whether the appellant has made memorandum statement has not been established. Furthermore, the seized weapon was sent for chemical examination to FSL, but the FSL report has not been brought on record to hold that it was stained with human blood with specific blood group. 13. It is well settled law that disclosure alone would not automatically lead to conclusion that offence was also committed by accused and burden lies on prosecution to establish a close link between discovery of material object and its use in commission of offence and it has been held by their Lordships of the Supreme Court in the matter of Mustkeem Alias Sirajudeen v. State of Rajasthan 3, as under : 25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. 3 (2011) 11 SCC 724 9 27. The scope and ambit of Section 27 were also illuminatingly stated in Pulukuri Kotayya v . King Emperor 4 reproduced hereinbelow:- 14. "...it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 15. As such, recovery of the weapon pursuant to memorandum statement of the appellant has not been established and even the prosecution has failed to prove the memorandum statement given by the appellant and recovery of axe pursuant thereto and, as such, it has also not been proved that it was used for commission of offence in question. 4 AIR 1947 PC 67 10 16. The last incriminating circumstance which has been found proved by the trial Court is that the appellant has given extra judicial confession before the villagers including Gowardhan, Sadhuram (PW-5), Pradhan Ram, Annu Lal & Raju. However, a careful perusal of the statement of Sadhuram (PW-5) would show that such statement was made by the appellant in presence of police, which is clear from para 2 of the statement of PW-5. As such, such extra judicial confession is inadmissible in view of Section 25 of the Indian Evidence Act and no other incriminating circumstances have been found proved. In that view of the matter, the appellant is entitled for acquittal on the basis of benefit of doubt. 17. In view of the above discussion, we are unable to maintain the conviction of the appellant for offence under Section 302 of I.P.C. and accordingly, the impugned judgment of conviction and order of sentence dated 29.10.2014 is hereby set aside and the appellant stands acquitted of the offence under Section 302 of I.P.C. extending him the benefit of doubt. The appellant is stated to be in jail since 25.20.2014, he is directed to be released forthwith from jail, unless his detention is required in connection with any other offence. 11 18. In the result, the appeal is allowed. 19. 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. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok