1 2025:CGHC:4672-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1748 of 2019 (Arising out of impugned judgment dated 30.10.2019, passed in ST No.279/2017, by the Additional Sessions Judge (Fast Track Court), South Bastar Dantewada) • Pungari Kudami son of late Kosa Kudami, aged about 45 Years, R/o Village Metapal, Nelbhattipara, Police Station Katekalyan, District- Dantewada Chhattisgarh ...Appellant versus • State of Chhattisgarh, Through Police Station - Katekalyan, District- Dantewada Chhattisgarh ... Respondent For Appellant : Mr. Rajeev Kumar Dubey, Advocate For Respondent/State : Mr. Afroz Khan, Panel Lawyer Division Bench Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment On Board (27.01.2025) Sanjay K. Agrawal, J 1. This Criminal Appeal preferred by the accuse/appellant under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 30.10.2019 passed by the Additional Sessions Judge (Fast Track Court), South Bastar Dantewada in ST No.279/2017 by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.02.04 15:11:20 +0530 2 life and to pay a fine of Rs.100/-, in default of payment of fine to further undergo additional RI for 1 month. 2. Case of the prosecution, in brief, is that on 20.06.2017 between 7:00 and 8:00 P.M. the appellant assaulted the deceased namely, Hadma Markam by means of crowbar (sabbal) and a piece of wood on his head, as a result of which the deceased sustained grievous injuries on his head and died. Thereafter, (PW-1) Pali Markam has lodged merg intimation (Ex- P/1), pursuant to which an FIR (Ex-P/2) was registered. During investigation, statements of (PW-1) Pali Markam and (PW-2) Kumari Hidme were recorded vide Exs. P/3 and P/5 respectively. Naksha Panchayat Nama was prepared vide Ex-P/9. The dead body of the deceased was sent for postmortem examination to the CHC, Katekalyan vide Ex-P/7. Dr. A.D. Bara, has conducted postmortem on the dead body of the deceased and prepared the report Ex-P/23, wherein he has opined that the cause of death was due to brain damage and massive bleeding and the death was homicidal in nature. Pursuant to the memorandum (Ex-P/10) given by the appellant, one crowbar, one piece of wood and half t-shirt were seized vide Ex-P/11. Plain soil and blood stained soil were seized from the place of incident vide Ex-P/12. Clothes of the deceased i.e. pink colour banyan and lungi stained with blood were also seized vide Ex-P/19. The seized articles were sent to the FSL, Jagdalpur from where FSL report (Ex-P/22) was received. As per FSL report (Ex.P/22), it has been opined that stains of human blood were found on the crowbar, one piece of wood and half t-shirt, which were seized from 3 the appellant. After statements of witnesses were recorded and due investigation, the police filed charge-sheet against the appellant in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. 3. The prosecution in order to prove its case examined as many as 09 witnesses and exhibited 23 documents, whereas the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Section 302 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. 5. Mr. Rajeev Kumar Dubey, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that there is no direct evidence available against the appellant and case of the prosecution is based on circumstantial evidence. The circumstances relied upon by the learned trial Court in Para-21 of the impugned 4 judgment are based on surmises and conjunctures and there is no material available on record to connect the appellant herein with the aforesaid offences. Hence, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charge on the basis of benefit of doubt. 6. Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Sections Section 302 of IPC. Thus, the present 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 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 by taking into consideration the postmortem report (Ex.P/23), wherein it has been opined that cause of death was due to brain damage and massive bleeding and the death was homicidal in nature. Accordingly, taking into consideration the postmortem report (Ex.P/23), we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We 5 hereby affirm the said finding. 9. Now, the next question would be whether the accused-appellant herein is the author of the crime in question, which the learned trial Court has answered in affirmative on the basis of following incriminating circumstances as culled out in Para-21 of the impugned judgment: “1. मृतक के मृत्यु के समय उसकी पत्नी का गाँव के अन्य गृह में मृत्यु काय्ቅम में जाना एवं समय उसकी पु्ቔी कु मारी हिहड़मे का घर पर होना । 2. आरोपी का मृतक के पास उसके घर आना । 3. मृतक के पास से आरोपी के जाते ही सा्ቌी कु मारी हिहड़मे को उसके भाई ्ቛारा यह बताया जाना हिक उसके हिपताजी कै से हो गये । 4. तुरंत सा्ቌी कु मारी हिहड़मे ्ቛारा हिपता के पास जाकर देखने पर हिपता के कनपटी के पास एवं आँख के पास चोट आना देखना और उनकी मृत्यु हो जाना ्ሺात होना । 5. सा्ቌी पाली मरकाम अ०सा० 1 ्ቛारा उसी हिदन मृतक का शव देखना जिजसके जिसर से र्ሹ का ኚᮌाव होते देखना, मृतक की तत्काल कु छ समय पूव ही चोट से मृत्यु कारिरत होना इंहिगत करता हैं । 6. इस घटना के ठीक दुसरे हिदन अभिभयु्ሹ के ्ቚकटीकरण कथन के आधार पर अभिभयु्ሹ का हाफ टीशट, घटना में ्ቚयु्ሹ सब्बल एवं लकड़ी का गुटका उससे जब्त हिकया जाना । 7. एफ०एस०एल० ्ቚतितवेदन से ज्቎ीशुदा लकड़ी का गुटका, सब्बल और अभिभयु्ሹ के हाफ टीशट में मानव र्ሹ का पाया जाना ।” 10. Since the present case is based on circumstantial evidence, therefore, before proceeding further, 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 1 (1984) 4 SCC 116 6 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read 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 Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) 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 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.” 7 11.We shall now consider the above-quoted incriminating circumstances in light of the above-quoted principles of law laid down by their Lordships of the Supreme Court as also in light of the evidence available on record, in order to ascertain whether the appellant herein has rightly be held guilty for offence in question by the learned trial Court or not. As regards Incriminating Circumstances No.01 & 02: 12.So far as incriminating circumstances No.01 & 02 are concerned, there is no dispute that the appellant came to the house of the deceased in absence of other family members. However, though the appellant is said to have visited the house of the deceased in absence of other family members, but the same would not lead to the conclusion that it is only and only the appellant who has caused murder of the deceased and, therefore, the same cannot be treated to be incriminating circumstances in order to connect the appellant herein with the offence in question. We hereby hold accordingly. As regards Incriminating Circumstances No.03 & 04: 13.According to incriminating circumstances No.03 & 04, after the appellant left the company of the deceased, (PW-2) Kumari Hidme, who is daughter of the deceased, was being informed by her brother that his father is not well, upon which, when she saw her father (deceased), she found that her father was lying dead and injuries were also visible on her body. However, from the evidence of Ku. Hidme (PW-02), it is clearly established that she has not seen the occurrence and only on being informed by her brother, she saw her father lying dead and, further, she 8 has also not seen the appellant going away from the company of her father (deceased). Moreover, her brother, who has informed her that their father (deceased) was unwell, has not been examined by the prosecution for the reasons best known to them. As such, the incriminating circumstances No.03 & 04 is of no help to the prosecution, as the same are not established beyond reasonable doubt in order to connect the appellant herein with the offence in question. We hereby hold accordingly. As regards Incriminating Circumstance No.05: 14.The next incriminating circumstance that has been relied upon by the learned trial Court is that on the same day, Pali Markam (PW-01), who is wife of the deceased, has seen the dead-body of the deceased and injuries on his head were also present. However, Pali Markam (PW-1) has only seen the dead body of the deceased and has also seen the injuries on his head. She also saw the blood was oozing out of the injuries. But, Pali markam (PW-01) has neither seen the occurrence nor she has seen the appellant assaulting the deceased on the date and time of the offence. Further, in her statement before the Court also she nowhere states that she has seen the appellant assaulting the deceased on the date and time of the offence, indeed, she has only stated that in the night when she returned to her house, she saw that the her husband (deceased) was lying dead near the door in injured and bloodied condition. As such, the present incriminating circumstance is also of no help to the prosecution, as the 9 same would not lead to the guilt of the appellant in any manner. We hereby hold accordingly. As regards Incriminating Circumstances No.06 & 07: 15.The last incriminating circumstances that has been putfourth by the prosecution and relied upon by the learned trial Court is that pursuant to the memorandum statement of the appellant recorded vide Ex.P/10, crowbar, one piece of wood and half t-shirt were seized vide Ex.P/11 & Ex.P/12, in which, as per FSL report (Ex.P/22), stains of human blood were found. However, the Supreme Court in the matter of Raja Nayka v. State of Chhattisgarh2 by relying upon its earlier decision rendered in the matter of Mustkeen @ Sirajudeen v. State of Rajasthan3 has clearly held that sole circumstance of recovery of blood-stained article cannot form the basis of conviction unless the same is corroborated with other piece of incriminating circumstances that too for for ofence under Section 302 of IPC. Consequently, the recovery of aforesaid article is also of no help to the prosecution and cannot be relied upon to hold the appellant guilty for the offence in question that more particularly when it is also not established on record that the human blood which was found on the aforesaid articles was of the same blood group to that of the deceased. We hereby hold accordingly. 16.In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the 2 2024 SCC Online SC 67 3 (2011) 11 SCC 724 10 ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellant for offences under Sections 302 of IPC being the perpetrator/author of the crime in question in light of the incriminating circumstances culled out in Para-21 of the impugned judgment and same are liable to be set aside. 17.Accordingly, we hereby set aside the conviction so recorded and the sentence so awarded by the trial Court to the appellant vide the impugned judgment dated 30.10.2019. The appellant is acquitted of the charge under Section 302 of the IPC on the basis of benefit of doubt. The appellant is reported to be in jail, therefore, we direct that he be released from jail forthwith, if not required is any other offence/crime. 18.This criminal appeal is allowed. 19.Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as a copy of the judgment be sent to the Superintendent of Jail where the appellant is languishing for necessary information and action. sd/- sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Priyanka/s@if