1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1939 of 2019 Judgment Reserved on : 09.07.2025 Judgment Delivered on : 24.07.2025 Vaishnav Bagarti S/o Dhawarno Bagarti Aged About 28 Years R/o- Village- Behraguda, Post Office And Police Station- Kokhsara, District- Kalahandi, (Odisha) ... Appellant versus State of Chhattisgarh Through- The District Magistrate, Gariyaband, District- Gariyaband, Chhattisgarh ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Roop Ram Naik, Advocate For Respondent : Mr. Ashish Shukla, Additional Advocate General Hon'ble Smt. Rajani Dubey, Judge Hon'ble Shri Amitendra Kishore Prasad, Judge C A V Judgment Per Amitendra Kishore Prasad, J. 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 11.10.2019 passed by the learned Additional Sessions Judge, Gariyaband, District Gariyaband (C.G.) in Sessions Trial No.34/2017, whereby learned Additional YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.07.25 11:37:37 +0530 2 Sessions Judge has convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced to undergo imprisonment for life and fine of Rs.2,000/-, in default of payment of fine amount, additional imprisonment for 6 months. 2. The prosecution case, in brief, is as follows: On 09.05.2016, information was received at Police Station Amlipar that one Lebano Yadav, resident of Village Kagrapara, Mudgelmal, had died under suspicious circumstances in the courtyard of his house. Upon reaching the spot, the police recorded the statement of the informant Smt. Nurpo Bai, wife of the deceased. According to the informant, she and her husband, Lebano Yadav, resided in a house constructed on their agricultural field situated in Village Mudgelmal. Her brother’s son-in-law, Vaishnav Yadav, used to occasionally visit their house. In February 2016, Vaishnav Yadav had visited and demanded a sum of Rs.5,000/-. On 08.05.2016, at about 11:00 PM, the accused Vaishnav Yadav came to their house on a motorcycle. He informed that he had already taken his dinner and would be staying at their house for the night. The deceased provided him with a cot in the courtyard, and both the deceased and the accused slept on separate cots outside the house, conversing during the night. The informant slept inside the house. At about 4:00 AM, the accused awoke the informant and stated that he was leaving, mentioning that “Bade Papa” (i.e., the deceased) was suffering from a headache. He further stated that 3 he had tied a gamchha around his head and covered him with a bed-sheet, instructing not to wake him. Before leaving, the accused made a cryptic remark to the effect that “there is one thing he will not tell her” and then departed on his motorcycle. Thereafter, the informant removed the sheet from her husband’s face and noticed that a gamchha was tied around his neck with a knot. She realized that her husband had been strangulated to death. Upon raising an alarm, her brother-in-law Chamru Yadav and his son Nakaram Yadav arrived at the scene, along with other villagers, including the Up Sarpanch Neelchad, Baldev Nagesh, Lakhan Yadav, Gabru Yadav, Devendra Yadav, Suras Yadav, Phool Singh and others. 3. Based on the said information, merg intimation (Ex.P/20) and Dehati Nalishi (Ex.P/21) were registered. A notice (Ex.P/5) was issued to the panch witnesses and Naksha Panchayatnama (Ex.P/6) was prepared. The dead body of the deceased was sent to Community Health Certre, Devbhog for postmortem examination through application (Ex.P/23), which was conducted by Dr. Anju Sonwani (PW-17) and gave its postmortem report vide Ex.P/36 and according to postmortem report (Ex.P/36), the cause of death was due to asphyxia as a result of strangulation and the nature of death is homicidal. On the basis of merg intimation, First Information Report bearing Crime No.24/2016 was registered at Police Station Amlipar against accused Vaishnav Yadav @ Bagarti 4 for the offence punishable under Section 302 of the IPC vide Ex.P/26. 4. During the course of investigation, spot map (Ex.P/24) of the place of occurrence was prepared. The gamchha, which was found tied around the neck of the deceased was seized in presence of witnesses through seizure memo (Ex.P/11). A memorandum statement of the accused (Ex.P/2) was recorded under Section 27 of the Indian Evidence Act, pursuant to which the motorcycle (HF Deluxe bearing registration No.CG 04 HQ 7387) and its original registration certificate were recovered and seized vide Ex.P/3 and Ex.P/10, respectively. Upon finding sufficient evidence, the accused was arrested vide arrest memo Ex.P/30 and information regarding the same was communicated to his family members vide Ex.P/31. The seized articles were sent for forensic examination. A complaint was forwarded to the Medical Officer, Community Health Centre Devbhog for medical opinion. To procure the Patwari map, a communication (Ex.P/32) was sent to the Tehsildar, Mainpur, and the site map (Ex.P/28) was received from the Halka Patwari. Further, to record the statements of material witnesses under Section 164 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), a request (Ex.P/37) was made to the Chief Judicial Magistrate, Gariyaband. 5. Upon conclusion of investigation, and finding a prima facie case against the accused, a charge-sheet under Section 302 of the IPC 5 was filed before the Judicial Magistrate First Class, Devbhog on 04.07.2017, which was registered as Criminal Case No.181/2017. After committal proceedings, the matter was committed to the Court of Sessions and was registered as Sessions Trial No.34/2017 on 14.07.2017. 6. In order to bring home the offence, the prosecution examined as many as 17 witnesses PW-1 to PW-17 and exhibited 37 documents Exs.P/1 to P/37. Statement of the accused / appellant was recorded under Section 313 of the Cr.P.C./ in which he denied the allegations levelled against him and abjured the guilt and pleaded innocence and false implication as also claimed to be tried. In defence, the accused neither examined any witness nor exhibited any document in support of his case. 7. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 11.10.2019 convicted the appellant for offence under Section 302 of the IPC and sentenced him as mentioned in the opening paragraph of this judgment which is sought to be challenged in this criminal appeal preferred under Section 374(2) of the Cr.P.C. by the appellant. 8. Mr. Roop Ram Naik, learned counsel for the appellant submits that the learned trial Court while passing the impugned judgment has failed to appreciate that the prosecution has not proved its case beyond reasonable doubts. The motive and intention which 6 is the essential ingredient to prove an offence under Section 302 IPC has not been proved by the prosecution and are missing. There is no direct evidence against the appellant and the entire prosecution case is based on the merg intimation recorded by the wife of the deceased namely Nurpo Bai, who subsequently died and her statement has not been recorded before the Court. , therefore, the judgment of conviction recorded and sentence awarded deserves to be set aside being contrary to the material available on record. It is contended that the evidence adduced on behalf of the prosecution is suspicious in nature and same is not safe for placing reliance that too for conviction of the appellant for commission of heinous offence of murder, as such, the impugned judgment of conviction and order of sentence dated 11.10.2019 is liable to be set aside and appellant-accused be acquitted/discharged from the said offence. Learned counsel for the appellant has placed reliance upon the judgment rendered by the Hon’ble Supreme Court in the matter of Harkirat Singh v. State of Punjab, (1997) 11 SCC 215 as well as upon the judgment rendered by this Court in the matter of Horidas Sahu v. State of Chhattisgarh passed in Criminal Appeal No.89/2013 decided on 17.11.2022, to buttress his submissions. 9. Mr. Ashish Shukla, learned Additional Advocate General appearing for the State/respondent supported the impugned judgment of conviction and order of sentence and submits that the 7 prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that there is ample evidence on record to connect the accused/appellant with the offence in question. It is contended that the learned trial Court has not committed grave legal error in convicting the appellant for offence under Section 302 of the IPC on the basis of alleged inadmissible and weak piece of evidence, such as merg intimation (Ex.P/20). It has been further contended that since the merg intimation was lodged by a witness who had last seen the appellant in the company of the deceased, it constitutes a relevant piece of evidence and even if the informant subsequently dies, the merg report remains admissible and can be relied upon as substantive evidence. As such, the judgment of conviction and sentence awarded by the learned trial Court being just and proper, needs no interference. Reliance has been placed upon the judgment rendered by the Hon’ble Supreme Court in the matter of Lalita v. Vishwanath and others passed in Criminal Appeal No.1086/2017 decided on 30.01.2025, in which, the Hon’ble Supreme Court has observed that in absence of the first informant, the police officer can prove the contents of the F.I.R. as per Section 67 of the Evidence Act. 10. 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. 8 11. The first and foremost question for consideration would be, whether death of deceased- Lebano Yadav was homicidal in nature? 12. The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr. Anju Sonwani (PW-17), who conducted postmortem, stated that the reason of death is asphyxia as a result of strangulation and the nature of death is homicidal. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Lebano Yadav was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding. 13. Now, the further question for consideration would be, whether the trial Court has rightly held that the appellant is guilty of offence and he is perpetrator of crime in question. 14. The learned trial Court has relied on the merg intimation (Ex.P/20), which was registered by police constable Rajeshwar Singh Thakur (PW-13) at the instance of Nurpo Bai (wife of the deceased, who had later died and her statement before the Court could not be recorded) alleging that she and her husband, Lebano Yadav, resided in a house constructed on their agricultural field situated in Village Mudgelmal. Her brother’s son-in-law, Vaishnav 9 Yadav, used to occasionally visit their house. In February 2016, Vaishnav Yadav had visited and demanded a sum of Rs.5,000/-. On 08.05.2016, at about 11:00 PM, the accused Vaishnav Yadav came to their house on a motorcycle. He informed that he had already taken his dinner and would be staying at their house for the night. The deceased provided him with a cot in the courtyard, and both the deceased and the accused slept on separate cots outside the house, conversing during the night. The informant slept inside the house. At about 4:00 AM, the accused awoke the informant and stated that he was leaving, mentioning that “Bade Papa” (i.e., the deceased) was suffering from a headache. He further stated that he had tied a gamchha around his head and covered him with a bed-sheet, instructing not to wake him. Before leaving, the accused made a cryptic remark to the effect that “there is one thing he will not tell her” and then departed on his motorcycle. Thereafter, the informant removed the sheet from her husband’s face and noticed that a gamchha was tied around his neck with a knot. She realized that her husband had been strangulated to death. Upon raising an alarm, her brother-in-law Chamru Yadav and his son Nakaram Yadav arrived at the scene, along with other villagers, including the Up Sarpanch Neelchad, Baldev Nagesh, Lakhan Yadav, Gabru Yadav, Devendra Yadav, Suras Yadav, Phool Singh and others. 10 15. A careful perusal of merg intimation (Ex.P/20) would show that merg intimation has been registered on the report made by Nurpo Bai (wife of the deceased) and the said information doesn’t relates to what the investigating officer himself observed and saw. It is well settled that the statement of a witness recorded by the investigators during the inquest would be within the inhibition of Section 162 Cr.P.C. The statement under Section 174 Cr.P.C. cannot be used as a substantive piece of evidence. At the most it can be used only as a previous statement to corroborate or contradict the person making it at the trial [See: Razik Ram v. Jaswant Singh Chouhan, (1975) 4 SCC 769 , Harkirat Singh v. State of Punjab, (1997) 11 SCC 215 and Suresh Rai v. State of Bihar, (2000) 4 SCC 84]. 16. Further, the statements contained in an inquest report, to the extent they relate to what the investigating officer saw and found are admissible, but any statement made therein on the basis of what the heard from others, would be hit by Section 162 Cr.P.C. [See: George v. State of Kerala, (1998) 4 SCC 605]. 17. The Supreme Court further in the matter of Rameshwar Dayal and others v. State of Uttar Pradesh, (1978) 2 SCC 518 held that the record of what the investigating officer himself observed and found, such an evidence is the direct or the primary evidence in the case and in the eye of law is the best evidence. The inquest report based on actual observation made by the investigating 11 officer would not hit by Section 162 of Cr.P.C. and the same is direct evidence admissible under Section 60 of the Indian Evidence Act, 1872 and observed by their Lordships in following para:- “ .… Note No. 4 in Ex. K-18 is not a note which is based on the information given to the Investigating Officer by the witnesses but is a memo of what he himself founded observed at the spot. Such a statement does not fall within the four-corners of section 162, Cr-P.C. III fact, documents like the inquest reports, seizure lists or the site plans consist of two parts one of which is admissible and the other is inadmissible. That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under section 162 Cr.P.C. except for the limited purpose mentioned in that section.” 18. Reverting to the facts of the present case in light of decision rendered by their Lordships of Supreme Court in the matter of Rameshwar Dayal (supra), it is quite vivid that the entire case of the prosecution is primarily based upon the merg intimation (Ex.P/20) lodged by Nurpo Bai, the wife of the deceased. In her 12 merg statement, she stated that the appellant, who is a near relative (distant son-in-law), had come to their house and was sleeping alongside the deceased, Lebano Yadav (her husband), in the courtyard. Nurpo Bai herself was also sleeping in the same courtyard. On the date of incident, i.e., 09.05.2016, in the early hours of the morning at around 4:00 A.M., the appellant allegedly woke her up and informed her that the deceased was suffering from a headache. He told her that he had tied a gamchha around the deceased's head and instructed her not to wake him up. After saying this, the appellant left the premises on his motorcycle. Later that morning, when Nurpo Bai went to check on her husband, she found that he had been strangled using a gamchha. Based on her merg intimation, First Information Report (Ex.P/26) was registered against the appellant, and investigation commenced. However, during the course of the trial, Nurpo Bai could not be examined, as she had passed away due to old age. 19. Since Nurpo Bai was the sole witness who had seen the appellant last in the company of the deceased, her non-examination seriously affects the case. In the absence of her testimony, the other circumstantial evidence, even if found to be proved, would be insufficient to sustain the conviction of the appellant. 20. The authenticity of the merg intimation lodged by Nurpo Bai was also challenged on the ground that Nurpo Bai was only conversant in Oriya, whereas the merg statement was recorded in 13 Hindi. The concerned Station House Officer stated that the merg statement was written on the basis of oral interpretation by one Girvar Yadav, who was proficient in both Oriya and Hindi. However, material discrepancies have been noted in the statement of Girvar Yadav, which casts a serious doubt on the reliability of the very foundation of the prosecution case. 21. Accordingly, the prosecution has failed to prove that the merg intimation (Ex.P/20), which was relied upon by the learned trial Court, cannot be said to be an incriminating piece of evidence put-forth by the prosecution, is inadmissible in the eye of law, it does not inspire confidence and not corroborated with any other incriminating circumstances, which were duly proved by the prosecution, as such, its a case where five golden principles to constitute the panchsheel of the proof of a case based on circumstantial evidence, as laid by their Lordships of Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, have not been established. 22. From the aforementioned facts and circumstances of the case, we are of the opinion that there is no corroborative evidence led by the prosecution to connect the appellant with the offence in question. Therefore, it would be unsafe to convict the appellant on the basis of merg intimation (Ex.P/20) registered at the instance of Nurpo Bai (wife of the deceased) and her statement has not been 14 recorded before the trial Court as she died after 06 months of the incident in question. 23. In view of the aforesaid analysis, we are of the opinion that the conviction recorded by the trial Court on the basis of merg intimation (Ex.P/20) cannot be sustained. As such, conviction and sentence imposed upon the appellant under Section 302 is liable to be quashed and is hereby quashed. 24. For the foregoing reasons, criminal appeal filed on behalf of appellant-Vaishnav Bagarti is allowed and his conviction and sentence under Section 302 of the IPC is hereby set aside. The accused/appellant is acquitted of the said charges levelled against him. He is stated to be in jail since 11.04.2017. He shall be set at liberty forthwith, if no longer required in any other criminal case. 25. Keeping in view the provisions of Section 437-A of the Cr.P.C. (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the accused-appellant, namely, Vaishnav Bagarti is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 15 26. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Yogesh