1 CRA Nos.1101/2024 & 1172/2024 2025:CGHC:54098-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1101 of 2024 Daya Shankar Tiwari S/o Kumud Tiwari Aged About 35 Years R/o Near Ratneshwari Durga Mandir Ratnabandha Dhamtari, Dist. Dhamtari Chhattisgrh. --- Appellant versus State Of Chhattisgarh Through- Station House Officer, P.S. Sihawa, Dist. Dhamtari ( C.G.). --- Respondent CRA No. 1172 of 2024 1. Nootan Dhruw S/o Shivmani Dhruw Aged About 22 Years R/o Village Dargahan, Police Station-Charama, District- Kanker, Chhattisgarh. 2 - Imamuddin Khan S/o Faqruddin Khan Aged About 26 Years R/o Bazar Para Ward No. 8, Village Charama, Police Station- Charama, District-Kanker (C.G.) At Present R/o Bazar Para Koliyari, Police Station Arjuni, District- Dhamtari, Chhattisgarh. ---Appellants Versus State of Chhattisgarh Through The Station House Officer, Police Station-Sihawa, District- Dhamtari, Chhattisgarh. ---- Respondent For Respective Appellants : Mr. Ajay Ayachi and Mr. Mukesh Shrivastava, Advocates. For Respondent/State : Mr. Shashank Thakur, Dy.A.G. AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.11.07 14:32:27 +0530 2 CRA Nos.1101/2024 & 1172/2024 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Bibhu Datta Guru, Judge 06.11.2025 Since both the appeals arising out of same sessions trial, therefore, they are being considered and decided by this common order. Challenge in these appeals is to the judgment of conviction and order of sentence dated 30-05-2024 passed by the learned Additional Sessions Judge (FTC), Dhamtari, in Sessions Case No.38/2022 whereby learned Court below convicted and sentenced the appellant as under:- Conviction Sentence Section 302, 34 IPC (twice for committing murder of Tarun Yadav & Yugal Kishore Dewangan) R.I. for life and fine of Rs.1000/-, in default of fine, R.I. for six months each Section 201 IPC R.I. for 7 years and fine of Rs.500, in default of fine, 3 months R.I. each Both the sentences are directed to concurrently. 1. Case of the prosecution, in brief, is that on 25.05.2022, between 18:00 hrs to 21:00 hrs, in furtherance of common intention, due to dispute over distribution of stolen money, they committed murder of deceased/Yugal Kishor alias Chhotu Devangan, by strangulating him and with a knife, 3 CRA Nos.1101/2024 & 1172/2024 causing fatal injury and also by assaulting another deceased/Tarun Yadav with a sharp knife and iron rod. On the said date, in furtherance of common intention, they took the body of deceased/Yugal Kishor Devangan to Mahanadi in Amethi, buried it in the sand, hid it and disposed of the deceased's body. The accused, by common intention, also hid the body of Tarun Yadav under the Chipli Para Nagari Road bridge, village Sonamagar. Thereafter, Dehati merg nalishi was registered vide Ex.P-24. During investigation, Naksha Panchayatnama was prepared vide Ex.P-4. Crime details from was prepared vide Ex.P-25. Memorandum statements of accused persons were recorded vide Ex.P/5, P/9 and P/13. On the basis of their statements, weapon i.e. knife used in the crime was seized and the same was sent to chemical examination. The dead-body of deceased were sent for postmortem examination and in the postmortem examination report of deceased Tarun, the doctor opined that the cause of death was exclusive bleeding due to stab wound caused by sharp edged object and nature of death was homicidal. In the postmortem examination report of deceased Yugal, the cause of death was Asphyxia due to throttling and the nature of death was homicidal. After completing the investigation, the final report was prepared. 2. In course of trial the prosecution examined as many as 20 4 CRA Nos.1101/2024 & 1172/2024 witnesses and exhibited 62 documents. The accused persons abjured their guilt; pleaded innocence; and false implication. 3. The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellants herein for the aforementioned offence and sentenced them as mentioned herein-above against which these appeals have been preferred by the appellants- accused herein questioning the impugned judgment of conviction and order of sentence. 4. Learned counsel appearing for the appellants would submit that there is absolutely no evidence against the appellants conclusively connecting them with the commission of crime. He submits that the conviction of the appellants is based on the basis of memorandum statement and there is no direct evidence against them. Learned counsel would further submit that the circumstantial evidence does not complete the chain nor an inference of guilt can be drawn on the basis of such evidence as has been brought on record by the prosecution. Memorandum statement of appellants is not a material piece of evidence. There is no eye witness in the case and no one has seen the appellants soon before the incident. Apart from that, no blood was found on knife, which was seized from the appellants, as per memorandum. 5 CRA Nos.1101/2024 & 1172/2024 Learned counsel further submits that the feature and ingredients of Section 302 of the IPC is not available in the present case. Hence, the present appeals deserve to be allowed. 5. 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. The learned trial Court has rightly convicted the appellants for the aforesaid offence, thus, the present appeals deserve to be dismissed. 6. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 7. The first and foremost question is as to whether the death of both the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record and particularly considering the postmortem report of deceased Yugal (Ex.P/35) which is duly proved by the evidence of Dr. Tejas Shah (PW-15) and postmortem report of deceased Tarun Ex.P-27 which is duly proved by the evidence of Dr. D.N. Som PW-12. Accordingly, taking into 6 CRA Nos.1101/2024 & 1172/2024 consideration the postmortem reports of both the deceased and the statements of Doctors that the nature of death of both the deceased was homicidal in nature, we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased persons was homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirmed the said finding. 8. As per the postmortem report of Yugal (Ex.P/35), following injuries were found:- “ Body was stiff. He was not wearing any clothing. His body was covered in sand because he had been buried in it. The skin was peeling off completely, as liquefaction necrosis had set in. Both eyes were protruding, the pupils were dilated and fixed. There was a ligature mark on his neck, measuring 33 cm in circumference and 7 cm in width. A penetrating wound was located on the left side of his chest, below the middle of the clavicle. Opinion: The cause of death of the deceased was asphyxia due to throttling and penetrating injury to the left lung. The nature of death was homicidal 9. As per the postmortem report of Tarun (Ex.P/27), following 7 CRA Nos.1101/2024 & 1172/2024 injuries were found:- “Stiffness was present throughout the body. Injuries were visible on the body, which were described as follows: Ten stab or sharp-edged wounds on the front, oval in shape with regular margins, measuring approximately 2 x 1/2 x 6 cm, and stained with blood on the chest. There were one to four stab or sharp-edged wounds on the right chest, extending from the center to the left side. Wounds numbered five and six, and wounds numbered two and three, were located between the intervening bones. Wound number seven was above the nipple on the left side. Wound number eight and nine were located between the intervening bones of the fourth and fifth bones of the right side of the chest, and wound number ten was located on the upper abdomen on the left side of the chest. The eleventh wound was on the left side behind the chest and the blood-clotted wound was on the right side above the waist, its size was 3 x 1 cm. Opinion: The cause of death of the deceased was excessive bleeding which could have been caused by a sharp or pointed weapon on a vital organ of the body and the nature of death was homicidal. 8 CRA Nos.1101/2024 & 1172/2024 10. The next question would be whether the accused-appellants herein are the author of the crime in question ? 11.PW-3 Khileshwari, mother of deceased-Yugal, stated in her evidence that the incident took place in May 2022. That day, she had gone to work, but she returned home around 1:30 p.m. Yugal Kishore was at home. Yugal Kishore used to go to work with her. He told her that he had to go to work with Tarun Yadav. The accused persons, had deceived her son and called him. At that time, Tarun and Yugal Kishore were at home. The accused had called them from outside on the phone. Tarun and Yugal Kishore left home around 1:30 p.m., and after that, they never returned. In cross-examination, she categorically stated that her son did not have a mobile phone, the call came on the mobile of Tarun Yadav. She further stated that after receiving the phone call, she does not know how long her son and Tarun stayed out, with whom they went, or where they went. After that, she went back to work. 12.PW-2 Manish Kumar Yadav, stated in his evidence that he knows Tarun; he was the son of my elder uncle. she does not know the Tarun’s friends. He does not know anything about the incident. He further stated that the police carried out the documentation procedures. The identification memo is Exhibit P-01, bearing his signature on part B to B. The 9 CRA Nos.1101/2024 & 1172/2024 police conducted the inquest proceedings and issued a notice, which is Exhibit P-03, containing his signature on part A to A. During the proceedings, a site map (Panchayatnama map) was prepared, which is Exhibit P-04, bearing his signature on part A to A. After the post-mortem examination, the body was handed over to his elder uncle for burial/shrouding, as recorded in Exhibit P-02, which also bears his signature on part B to B. The police did not record the statement of the accused Nutan in his presence, but the memorandum statement of accused Nutan is Exhibit P-05, which bears his signature on part A to A. In cross- examination, he categorically stated that his signatures appear on Exhibits P-01 to P-10 and P-12 to P-18, which he signed at Sihawa Police Station. The signature on part A to A of Exhibit P-11 (seizure memo) is not his signature. He did not read those documents before signing them, so he does not know what the police had written in them. He did not give any statement to the police. 13.PW-6, Vijay Kumar Sinha, stated in his evidence that dehati nalsi (Exhibit P-24) does not bear his signature on part A to A. Today, he does not remember whether the police prepared a map of the crime scene or not. The map (Exhibit P-25) bears his signature on part A to A. When he arrived, the police had come to the crime scene and issued a notice 10 CRA Nos.1101/2024 & 1172/2024 during the proceedings, which is Exhibit P-22, bearing his signature on part B to B. The police conducted the site map (Panchayatnama) procedure at the spot, but his signature does not appear on part B to B of Exhibit P-23. The police questioned him and recorded his statement. The police did not seize any items from the crime scene in his presence; the seizure memo is Exhibit P-26, bearing my signature on part A to A. In cross-examination, he did not inform the village Kotwar (village officer) about the incident and he does not know which person was lying near his centring wood and where he was from. He admits that his signature does not appear on part A to A of Exhibit P-24, and that the dehati nalsi was not recorded by the police according to my instructions. It is also correct to say that the sketch map (Exhibit P-25) was not made according to his instructions, and that the police did not prepare the sketch map in his presence. 14. Admittedly, there is no ocular version of the crime except the memorandum statement of the appellants, as no witness has seen the appellants committing the crime. Case of the prosecution, therefore, rests on circumstantial evidence. The principle as to when an accused can be convicted on the basis of circumstantial evidence has been propounded by the Supreme Court in the celebrated case of Sharad 11 CRA Nos.1101/2024 & 1172/2024 Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, wherein it has underlined the conditions, which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-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 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 12 CRA Nos.1101/2024 & 1172/2024 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.” 15.In a judgment in Nathiya Vs. State represented by Inspector of Police, Bagayam Police Station, Vellore, (2016) 10 SCC 298, the Supreme Court has reiterated the above principles. 16.In Jonh Pandian v State, Represented by Inspector of Police, Tamil Nadu, (2010) 14 SCC 129 the Supreme Court has held that all means adopted and illegal acts done must be proved to be done in furtherance of the object of conspiracy hatched. A systematic role played by each 13 CRA Nos.1101/2024 & 1172/2024 accused has to be highlighted. Similarly each one of the circumstances should be proved beyond reasonable doubt and such circumstances proved must form a chain of events from which the only irresistible conclusion is about the guilt of the accused which can be safely drawn and no other hypothesis of the guilt is possible. Since the evidence of conspiracy is very hard to find and the prosecution would always have great difficulty in proving the conspiracy and, therefore, the conspiracy has to be inferred from circumstantial evidence, but the circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. 17.Similar proposition has been laid down by the Supreme Court in Sherimon v State of Kerala, (2011) 10 SCC 768 and held thus in paras 17 & 18 : 17. The gist of the offence of conspiracy is the agreement between two and more persons to do or cause to be done an illegal act or a legal act by illegal means. There must be meeting of minds resulting in an ultimate decision taken by the conspirators regarding commission of the crime. In this case, no such evidence has come on record. PW-5 Biju, the employee of City Auto Finance at Moovattupuzha was the only witness examined by the prosecution to prove the alleged meeting between the appellant and the other accused. He has turned hostile. Therefore, there is nothing 14 CRA Nos.1101/2024 & 1172/2024 on record to establish meeting of minds between the appellant and the other accused. 18.Assuming that the appellant had produced certain documents pertaining to the said auto rickshaw, it cannot be concluded on the basis thereof that he had entered into a conspiracy with A-1 to A-3 to repossess the said auto rickshaw because the loan amount was not repaid and in pursuance thereof A-1 to A-3 murdered the driver of the said auto rickshaw. The evidence on record is totally inadequate to come to such a conclusion. It is, therefore, not possible to sustain the impugned judgment. 18.In the case at hand, the case of the prosecution is based on circumstantial evidence, as there is no ocular version of the crime. Except the memorandum statements, there is no other evidence against the appellants. Allegation against the appellants is that the appellants have murdered both the deceased with regard to distribution of stolen money. It is manifest that both the deceased too have worked with the appellants and used to stole things and after selling those articles, they distributed the money themselves. But, there is no direct evidence in the case, which goes to show that the appellants have stolen any particular things and due to which, dispute occurred between them with respect to distribution of money and they murdered both the deceased. Apart from that, as per the FSL report, no blood was found on the knife. 19.PW-3 Khileshwari, mother of deceased-Yugal categorically 15 CRA Nos.1101/2024 & 1172/2024 stated in her cross-examination that her son did not have a mobile phone, the call came on the mobile of Tarun Yadav. She further stated that after receiving the phone call, she does not know how long her son and Tarun stayed out, with whom they went, or where they went, indicating a lack of direct evidence linking the appellants to any alleged conspiracy or premeditated action. Similarly, PW-2 Manish Kumar Yadav categorically stated in cross-examination that the signature on part A to A of Exhibit P-11 (seizure memo) is not his signature. He did not read those documents before signing them, so he does not know what the police had written in them. He did not give any statement to the police, which calling into question the authenticity and reliability of the alleged procedural evidence 20.Only on the basis of memorandum statement, the appellants have been implicated in this case. No eyewitness in the case. Thus, this evidence i.e. memorandum statement and recovery of knife, in which, no blood was found, alone is not sufficient to establish that the appellants were the author of crime and murdered both the deceased. There is absolutely no evidence against the appellants, there is no other evidence of conclusive nature by which their guilt of committing murder of both the deceased can be proved. In the state of evidence on record, the appellants are entitled 16 CRA Nos.1101/2024 & 1172/2024 for the benefit of doubt. 21.Accordingly, conviction and sentence imposed on all the appellants are hereby set aside and they are acquitted of the said charges. 22.In the result, both the appeals are allowed. The appellants are in jail. They be released forthwith if not required in any other case. 23.Keeping in view the provisions of Section 437-A Cr.P.C., the appellants are directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety 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 appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 24.The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. SD/- SD/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Gowri/Amardeep