1 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1762 of 2019 Judgment Reserved on 09.07.2025 Judgment Delivered on 23.07.2025 1 - Santosh Singh S/o Samay Lal Gond Aged About 19 Years R/o Village Putadand, Police Station - Manendragarh, District (Revenue And Civil) - Koriya Chhattigarh....(In Jail), District : Koriya (Baikunthpur), Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh Through District Magistrate Baikunthpur , District (Revenue And Civil ) - Baikunthpur Chhattisgarh , Police Station Manendragarh Chhattisgarh., District : Koriya (Baikunthpur), Chhattisgarh ... Respondent For Appellant : Mr. Anand Kesharwani, Advocate For Respondent/State : Mrs. M. Asha, P.L. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. CAV Judgment Per, Amitendra Kishore Prasad, J. VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 1. In this appeal filed under Section 374(2) Cr.P.C., the appellant has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 16.10.2015 passed by the Additional Sessions Judge (Fast Track) Baikunthpur, District Koriya, C.G. in Sessions Case No.97/2013, whereby and whereunder, the appellant stands convicted for the offence under Sections 377 of Indian Penal Code (in short, ‘IPC’) and Section 3 read with Section 4 of Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and Section 302 of IPC and considering the provisions of Section 42 of the POCSO Act, appellant has been sentenced as under:- Conviction for committing murder of Manohar Rathiya Sentence Under Section 377 of Indian Penal Code (for short, ‘IPC’) & Section 03 read with Section 04 of POCSO Act Jointly 10 years Rigorous Imprisonment and a fine of Rs.500/-, in default of payment of fine amount to undergo 03 months’ simple imprisonment. Under Section 302 of IPC Imprisonment for life and a fine of Rs.500/-, in default of payment of fine amount to undergo 03 months’ simple imprisonment. (All sentences were directed to run concurrently) 2. Case of the prosecution, in brief, is that on 07.08.2013, at about 12:00 a.m., the deceased (child) was grazing his cattle near Rangtewa Nala and one Kanta and PW-3 Nandau were also 3 grazing their cattle nearby. After ploughing his field, the appellant reached Rangtewa Nala and told the deceased that they would go for bird hunting and took him into the jungle, where he committed unnatural sex with him. Under the apprehension that the deceased would inform others, he cut the deceased’s throat and hid the axe in a room in his house. The next morning, he fled to his in-laws' house. The said incident was reported to the uncle of the deceased PW-4 Sugriw by PW-3 Nandau, brother of the deceased and upon receiving the information, PW-4 Sugriw lodged an FIR against the appellant vide Ex.P/05. Thereafter, merg intimation vide Ex.P/04 were recorded, inquest proceedings were conducted vide Ex.P/07 and dead body of deceased was sent for postmortem examination which was conducted by PW-1 Dr. D.K. Singh who has proved the postmortem report Ex.P/01. According to PW-1 Dr. D.K. Singh, cause of death of deceased was excessive bleeding and shock and the severe cut wound in the throat which cut the windpipe, food pipe and spine etc. and mode of death of deceased was homicidal in nature. During investigation, spot map was prepared vide Ex.P-9 and appellant was taken into custody vide Ex.P-19 Memorandum statement of the appellant was recorded vide Ex.P-16, consequent to which, axe was seized vide Ex.P-17. Seized articles were sent to FSL for chemical examination and as per FSL report vide Ex.P-23, no blood, much less, human blood has been found on the seized axe. 4 3. 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 his guilt and entered into defence by stating that he has not committed the offence. 4. The prosecution in order to bring home the offence, examined as many as 12 witnesses in support of its case and exhibited 23 documents Exs.P-1 to P-23 and Articles A, B and G-1. However, the appellant in support of their defence has examined none and not exhibited any document. 5. 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. 6. Learned counsel for the appellant would submit that the prosecution has completely failed to prove the guilt of the appellant beyond reasonable doubt. He would further submit there is no eye-witness to the alleged incident of carnal intercourse or murder and therefore, the entire case rests solely on circumstantial evidence. He would also submit that for a conviction to be based on circumstantial evidence, the chain of circumstances must be so complete as to unerringly point towards the guilt of the accused and exclude every other 5 hypothesis of innocence. He has relied on the landmark judgment of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, highlighting that all five golden principles for circumstantial evidence are not considered in this case. While acknowledging the doctor's finding of a "sign of sexual anal injury," learned counsel argued that this evidence, in itself, does not conclusively prove that it was the appellant who committed the carnal intercourse. In the absence of specific forensic evidence like semen or DNA linking the appellant to the deceased's body, the medical finding, while establishing that sexual assault occurred, does not establish the identity of the perpetrator. He reiterated the importance of medical evidence for corroboration, as laid down in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, but stressed that such corroboration must link the accused to the act. He would also contend that crucially, the FSL report explicitly states that it did not suggest human blood on the seized axe and this finding is fatal to any attempt by the prosecution to link the appellant to the murder weapon and thereby to the act of murder itself. This completely separate a vital forensic link between the appellant, the alleged weapon, and the crime. In the absence of any blood, semen, or other biological material linking the appellant to the incident, the prosecution has no scientific basis to connect him to either the carnal intercourse or the murder. He would next contend that even if the axe was recovered pursuant to a disclosure statement made by the 6 appellant, such recovery is of no evidentiary value when the FSL report conclusively shows no human blood on it, thereby indicating no connection to the crime. Learned counsel specifically cited Balwan Singh v. State of Haryana, (2018) 7 SCC 634, where the Hon'ble Supreme Court held that a discovery statement under Section 27 of the Evidence Act leading to the recovery of an article is of no evidentiary value if the article is not proved to be connected with the crime. With no eye- witness, medical evidence not conclusively identifying the perpetrator of sexual assault, and a complete absence of any forensic link (especially human blood on the alleged murder weapon), there is absolutely no evidence, direct or circumstantial, to connect the appellant to the commission of the alleged offences. As such, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellants be acquitted of the said charges. 7. 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 offences. 8. 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. 7 9. The first question, is as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-1) proved by Dr. D.K. Singh (PW-1) who has conducted postmortem and has clearly opined that the cause of death of deceased was excessive bleeding and shock and the severe cut wound in the throat and the nature of death was homicidal. Thus, we are of the considered opinion that learned trial Court has rightly held the death of deceased to be homicidal in nature which is a correct finding of the fact and we hereby affirm the finding recorded by the trial Court. 10. Now, the question would be whether the appellant is the author of the crime in question? 11. The present case is solely dependent on circumstantial evidence, as there is no eye-witness to the incident. 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 (supra) 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 8 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 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. 12. Now, we shall consider the evidence available on record. PW-3 Nandau, minor brother of the deceased, who is said to the eye- witness to the incident. According to this witness (PW-3), he has seen the incident. He has stated that on the date of incident, appellant came to the place where deceased and he and his brother were grazing their cattle and told the deceased to go along with him for bird hunting in the nearby Mada (the place between the two rocks) and took the deceased along with him where the appellant after removing the clothes of the deceased and slept over him. When the deceased started crying, the accused/appellant, who was holding an axe, has assaulted the deceased on his neck. 9 Though this witness has posed himself to be an eye-witness to the incident, but, in his statement recorded under Section 161 of Cr.P.C. (Ex.D-1), the same statement has not been mentioned. During cross examination, when this question was asked to him, then he told that he has stated about the same to police, but he does not know the reason as to why the police has not recorded the same in his statement. From the testimony of this witness and document (Exhibit D-1), it seems he is not a direct eye-witness to the incident. Instead, it appears he only saw the appellant and the deceased together for the last time. Furthermore, PW-4 Sugriw & PW-5 Budhlal have also not stated specifically anything about the incident. Thus, the testimonies of the above witnesses do not support the case of the prosecution. 13. This apart, the medical evidence adduced through the post- mortem report (Ex.P-1) and the testimony of Dr. D.K. Singh (PW-1), indicating a sign of sexual anal injury, does indeed suggest that a sexual assault occurred. This provides medical corroboration for the fact of sexual assault. The Supreme Court in State of Punjab v. Gurmit Singh (Supra) emphasized the significance of medical evidence. However, while the medical finding confirms that an assault took place, it does not, by itself, conclusively establish the identity of the perpetrator. For the conviction of the appellant for sexual assault, the prosecution needed to link him to this act, however, this crucial link is missing. That apart, FSL report (Ex.P- 23) is silent on the presence of semen or any other biological 10 material that could identify the appellant as the assailant. Thus, while the crime of sexual assault appears to have occurred, the evidence does not establish beyond a reasonable doubt that it was the appellant who committed it. Moreover, the FSL report (Ex.P-23) did not suggest human blood on the seized axe. This is a critical deficiency that directly impacts the prosecution's ability to link the appellant to the murder weapon and, by extension, to the act of murder itself. In the absence of an eye-witness, and with medical evidence primarily establishing the fact of sexual assault without directly identifying the perpetrator, the lack of any forensic link (like human blood) connecting the appellant to the alleged murder weapon makes it impossible to build a complete chain of circumstances. 14. Furthermore, any alleged recovery of the axe, even if made pursuant to a disclosure statement by the appellant, becomes meaningless in the absence of a forensic connection to the crime. The principle laid down by the Supreme Court in Balwan Singh (supra), is directly applicable here. In that case, it was held that if the articles recovered pursuant to a disclosure statement under Section 27 of the Evidence Act are not found to be connected with the crime, the discovery statement itself would be of no evidentiary value. Here, with the FSL report (Ex.P-23) conclusively negating any connection through human blood on the axe, any such recovery is rendered inconsequential for establishing guilt. 11 15. The circumstances relied upon by the prosecution are not "fully established" and do not form a "chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused," as mandated by Sharad Birdhichand Sarda (Supra). The medical evidence confirms a sexual assault, but not the identity of the assailant. The FSL report (Ex.P-23) utterly fails to provide any forensic link, especially regarding the murder weapon. Suspicion, however grave, cannot take the place of proof. 16. In the present scenario, there remains a significant void in incriminating evidence that directly links the appellant to either the sexual assault or the murder. To sustain a conviction in such circumstances would be a travesty of justice and would violate the fundamental principles of criminal law. 17. It is further held by the Hon’ble Supreme Court in Sujit Biswas vs. State of Assam, AIR 2013 SC 3817 that the suspicion, howsoever strong, cannot substitute the proof and conviction is not permissible only on the basis of the suspicion. It is held thus in para 6:- "6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" 12 and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of M.P., (1952) 2 SCC 71, State v. Mahender Singh Dahiya (2011) 3 SCC 109 and Ramesh Harijan v. State of U.P. (2012) 5 SCC 777." 13 18. Also, the Hon’ble Supreme Court in Kanhaiya Lal vs. State of Rajasthan reported in (2014) 4 SCC 715 has held that evidence on 'last seen together' is a weak piece of evidence and conviction only on the basis of 'last seen together' without there being any other corroborative evidence against the accused, is not sufficient to convict the accused for an offence under Section 302 IPC. The following passage from the judgment in paras 12 and 15 can be profitably referred: “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. 15. The theory of last seen-the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation 14 bears great similarity to that in Madho Singh v. State of Rajasthan, (2010) 15 SCC 588". 19. Similarly, the Hon’ble Apex Court in Rambraksh @ Jalim vs. State of Chhattisgarh reported in (2016) 12 SCC 251 has reiterated above legal position in the following words in paras 12 and 13: "12. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the timegap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused. 13. In a similar fact situation this Court in Krishnan v. State of T.N. (2014) 12 SCC 279 held as follows: (SCC pp. 284-85, paras 21- 24) "21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar 15 (1994) Supp (2) SCC 372 this Court held as follows: (SCC p. 385, para 31) '31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.' 22. This Court in Bodhraj v. State of J&K, (2002) 8 SCC 45 held that: (SCC p. 63, para 31) 31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.' It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the 16 accused and the deceased were last seen together. 23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4- 2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased. 24. In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, this Court held that in the absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed." 20. The above-discussed matters of Sharad Birdhichand Sarda (supra), Sujit Biswas (supra), Kanhaiya Lal (supra) and Rambraksh @ Jalim (supra) have also been discussed in a very recent judgment of the Hon’ble Supreme Court in the matter of Padman Bibhar vs. State of Odisha reported in 2025 SCC OnLine SC 1190, wherein the Hon’ble Supreme Court has held that in criminal law, for a conviction based on circumstantial evidence, the circumstances 17 leading to guilt must be fully established, not merely "may be" proved, as there's a significant legal distinction between "may be" and "must be," separating vague conjectures from sure conclusions. The established facts must be consistent only with the hypothesis of the accused's guilt and should exclude every other possible hypothesis of innocence. Furthermore, the circumstances should be of a conclusive nature and tendency, forming a complete chain of evidence that leaves no reasonable ground for a conclusion consistent with the accused's innocence, thereby showing that in all human probability, the act must have been done by the accused. It is further held that the suspicion, however grave, cannot substitute proof, and courts have a duty to prevent mere conjectures from taking the place of legal proof, requiring clear, cogent, and unimpeachable evidence to bridge the mental distance between "may be true" and "must be true." In cases where this distance isn't covered, the benefit of the doubt must be given to the accused, understanding that a reasonable doubt is a fair doubt based on reason and common sense. Further, regarding the "last seen together" theory, it does not by itself necessarily lead to an inference of guilt; there must be something more establishing connectivity between the accused and the crime. Mere non- explanation by the appellant cannot, by itself, prove guilt, especially when other factors like the absence of a motive or a cordial relationship between the accused and the deceased exist. A conviction cannot be based solely on the last seen together 18 circumstance. This theory is typically relevant when the time gap between the accused and deceased being last seen alive and the deceased being found dead is so small that the possibility of any other perpetrator becomes impossible. However, even then, the prosecution must complete the chain of circumstances to establish guilt, as the last seen together circumstance alone is insufficient for a conviction. 21. Based on the foregoing analysis, we find that while the act of sexual assault on the deceased/child is indicated by medical evidence, the prosecution has miserably failed to establish the identity of the appellant as the perpetrator of the crime in question, beyond any reasonable doubt. The foundational pillars of the prosecution's case against this appellant are unsupported by credible evidence, whether direct, medical (in terms of linkage), or forensic, particularly the lack of connection of the alleged murder weapon to the crime. The trial Court erred in convicting 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. 22. Accordingly, the appeal filed by the appellant is allowed and the judgment and order of conviction dated 16.10.2015 passed by the Additional Sessions Judge (Fast Track) Baikunthpur, District Koriya in Sessions Trial No. 97/2013 is hereby set- aside. The appellant os 19 acquitted of the charges leveled against him and he shall be released forthwith unless wanted in any other case. 23. In compliance with Section 437-A of Cr.P.C., the appellant is directed to furnish a personal bond of ₹25,000/- with two sureties of the like amount before the concerned court. The bond shall be effective for six months and include an undertaking that in case of filing a Special Leave Petition or grant of leave against this judgment, the appellant will appear before the Supreme Court upon receipt of notice. 24. 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 20