1 2025:CGHC:55616-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 165 of 2019 Visheshar Patle @ Bodo, S/o Salikram Patle, aged about 46 years, Caste Satnami, R/o Village Silpahari, P. S. Sirgitti, District Bilaspur Chhattisgarh ... Appellant versus State of Chhattisgarh, Through Station House Officer, Police Station Sirgitti, District Bilaspur Chhattisgarh --- Respondent/State For Appellant : Mr. Rishi Rahul Soni, Advocate For Respondent/State : Mr. Ashish Shukla, Dy. A.G. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (14.11.2025) Sanjay Kumar Jaiswal, J. 1. Invoking criminal jurisdiction of this Court under Section 374(2) of the CrPC, the appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 26.09.2018 passed by learned Session SHUBHAM SINGH RAGHUVANSHI Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.11.18 17:44:46 +0530 2 Judge, Bilaspur, District Bilaspur (C.G.), in Session Trial No.105/2017, by which the appellant has been convicted and sentenced as under:- Conviction Sentence & Fine U/s 302 of the IPC Rigorous imprisonment for live and to pay fine of ₹1,000/-; in default of payment of fine, additional RI for 6 months 2. The prosecution case in brief is that the deceased, Birasbai, was mentally retarded. After her husband's death a few years after their marriage, she lived with her nephews, Parmanand Kewat (PW-3) and Parameshwar Kewat (PW-10), in the village of Lawar, under the jurisdiction of Masturi police station. Appellant Visheshwar Patle @ Bodo, a resident of the village of Silpahari, under the jurisdiction of Sirgitti police station, was a beggar. On 13.05.2017, the appellant visited the homes and neighborhoods of the deceased's nephews to beg. Around 9:00-9:30 a.m., Birasbai left her home with a white bucket to bathe in the pond and never returned. After a search, two days later, on 15.05.2017, her body was found, nearly naked, in dilapidated building of the Community Sub-Health Center in the village of Silpahari. Her nephew's daughter-in-law, Mrs. Purnima (PW-5), and other members of the women's 3 committee saw the body and informed the family. Based on information provided by Parmanand Kewat (PW-3), a morgue was registered at the police station vide Exhibit P- 7, and a panchnama was prepared. Doctor P.C. Banerjee (PW-13) examined the body and submitted a report vide Exhibit P-15, stating the cause of death was homicidal. The police conducted enquiry and registered a First Information Report. The investigation revealed that Dadulal Kewat (PW- 4) had last seen the deceased leaving with the appellant on 13/05/2017. The deceased's nephews’ children also saw them leaving and informed the family. Further, when a search was conducted for the accused/appellant, a white bucket, allegedly taken by the deceased, was found at his home. Upon questioning, the accused fled. During the investigation, based on the accused's memorandum statement (Exhibit P-9), a stick was seized from him vide Exhibit P-10. It was sent for chemical testing. Statements of witnesses were recorded. A scene map was prepared, and after completing the investigation, a charge sheet was filed. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 15 witnesses and exhibited 24 documents. Statement of the appellant was also recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 4 4. After hearing both the parties, the trial Court passed the impugned judgment of conviction and order of sentence. 5. Learned counsel for the appellant submits that there is no direct evidence of the incident. The case against the appellant is based on circumstantial evidence, but the circumstantial evidence presented by the prosecution is neither substantiated nor complete enough to connect all the links and establish the appellant's guilt. The witness, Dadulal Kewat (PW-4), who stated that he last saw the deceased and the appellant together, did not name the appellant in his police statement. The other children who claimed to have seen them were not examined. Based on the appellant's memorandum statement, no blood was found on the stick. Thus, no connection between the stick and the incident has been established. The alleged bucket has also not been seized, and the investigating officer has admitted that the type of bucket described is easy available in the market. Thus, the alleged connection of the deceased's bucket with the accused has not been established, and the prosecution has failed to prove its case against the appellant due to the lack of completeness of the circumstantial evidence. Nevertheless, the trial Court failed to properly evaluate the evidence and passed the order of conviction and sentence, which is not sustainable. 5 Therefore, the appeal may be allowed, the impugned judgment may be set aside, and the appellant may be acquitted of the charge levelled against him. 6. On the other hand, learned counsel for the State submits that the finding recorded by the Trial Court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed. 7. We have heard learned counsel appearing for the parties and perused the record with utmost circumspection. 8. The trial Court, on the basis of post-mortem report (Exhibit P-18) proved by doctor P.C. Banerjee (PW-13) and other evidence, found it to be proved that the death of Birasbai was homicidal, which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 9. The prosecution case against the appellant is not based on 6 direct evidence but on circumstantial evidence. 10. The Hon’ble Supreme Court in the matter of Padman Bibhar Vs. State of Odisha reported in 2025 SCC OnLine SC 1190 in paragraphs 10 to 12 held as under:- “10. It is settled law that in a case based on circumstantial evidence, the prosecution is obliged to prove each circumstance, taken cumulatively to form a chain so complete that there is no escape from the conclusion that within all human probabilities, committed by the accused and none else. Further, the facts so proved should unerringly point towards the guilt of the accused. 11. This Court in Ramanand v. State of Himachal Pradesh reported in (1981) 1 SCC 511 has held that 'perfect proof is seldom to be had in this imperfect world and absolute certainty is a myth'. 12. This Court in a celebrated judgment in Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has set down the golden rules in the cases basing circumstantial evidence which is to be proved by the prosecution. (i.) That chain of evidence is complete; (ii) Circumstances relied upon by prosecution should be conclusive in nature; (iii) Fact established should be consistent only with the hypothesis of the guilt of accused; (iv) Circumstances relied upon should only be consistent with the guilt of the accused; (v) Circumstances relied upon should exclude every possible hypothesis except the one to be proved.” 11. In the matter of Navaneethakrishnan v. State by Inspector of Police reported in (2018) 16 SCC 161 the Supreme Court has held that though the evidence of last seen together could point to the guilt of the accused, but 7 this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration. 12. The trial Court found the first and primary circumstantial evidence for the appellant's conviction to be that the deceased was last seen with the appellant. The key witness in this case is Dadulal Kewat (PW-4). This witness stated in his Court statement that while grazing buffaloes near the river, he saw Birasbai, along with the appellant, walking across the river towards Silpahari and Ghuma villages. However, when confronted with his police statement (Exhibit D-1) during cross-examination, it was found that he did not mention the appellant's name in his police statement recorded under Section 161 of the Code of Criminal Procedure. Thus, if he had recognized the appellant, he would have stated that he had seen the deceased with the appellant. However, since he did not mention the appellant's name in his police statement, it is doubtful whether he saw the deceased with the appellant. Dadulal, as well as Sub-Inspector Rahul Tiwari (PW-15), the investigating officer, admitted that no test identification parade was conducted. At this stage, it is not proved beyond a reasonable doubt that Dadulal last saw the deceased with the appellant. 8 13. In this regard, the testimony of the deceased's nephew, Parmanand Kewat (PW-3), Mrs. Purnima (PW-5), Parmeshwar Kewat (PW-10), and his wife, Mrs. Santabai (PW-6), is also significant. They, based on information provided by others, stated that the appellant had come to their village home that day to beg. However, based on their statements, it cannot be concluded that the appellant had taken the deceased with him. These witnesses also stated that the children, Shweta and Suhana, had told them that the appellant had taken the deceased with him. However, Shweta and Suhana have neither been called witnesses nor examined by the prosecution. Thus, it has not been established beyond a reasonable doubt that the deceased was last seen with the appellant. 14. It is also important to note that the body of Birasbai was found by the witnesses in the dilapidated building of the Community Sub-Health Centre at Silpahari on 15/05/2017 at about 9-10 am, whereas she was last reported to have been seen with the appellant on 13/05/2017 at about 9-10 am, i.e., there was a gap of 48 hours between the last time she was seen and the discovery of her body. Even if it is admitted that the accused was last seen with the appellant, the gap of 48 hours is still a long time. 9 15. In the matter of State of Goa v. Sanjay Thakran and another reported in (2007) 3 SCC 755 their Lordships of the Supreme Court found that there was considerable time gap of approximately 8½ hours when the deceased was last seen alive with the accused persons and their Lordships held that there being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused. 16. It has been further held by Hon’ble Supreme Court in the matter of Padman Bibhar (Supra) in paragraph 22 as under:- “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 accused and the deceased were last seen together” 17. On consideration of the evidence in the light of the above judgment, this Court finds that the prosecution has failed to prove beyond reasonable doubt that the appellant was the last person seen with the deceased and even on the basis of the time gap, it cannot be presumed that the 10 appellant was involved in the death of Birasbai. 18. The second major basis for the appellant's conviction is that the investigating officer Sub-Inspector S.K. Baghel (PW-14), recorded the appellant's statement and, on the basis of memorandum (Exhibit P-9), stated that he had seized a wooden stick (Exhibit P-10) after finding it from a tree next to the dilapidated building of the Community Sub-Health Center in village Silpahari, on the indication of the appellant. The witnesses to this memorandum and seizure are Ravikumar Dhiraj (PW-7) and Shamsher Singh (PW-8). They were initially declared hostile, but on the suggestion of the prosecution, they admitted the above investigation proceeding. However, it is noteworthy that according to the FSL report (Exhibit P-24) of the Regional Forensic Science Laboratory, Bilaspur, no blood was found on the said stick. Thus, the prosecution has failed to establish any connection between the said seized stick and the death of deceased Birasbai, hence the said ground for conviction of the appellant is also found to be unproven. 19. The third basis for the appellant's conviction was that the deceased's family members had seen the white bucket with which the deceased had left her home to bathe at the river. The testimony of the deceased's nephew, Mrs. 11 Purnima (PW-5), is significant in this regard. She stated that when they went to the appellant's house, he was fetching water from the front tap in the same white bucket. When they stopped him and asked if the bucket belonged to Birasbai, the appellant stated that he had not brought Birasbai's bucket and, after an argument, he fled away. It is noteworthy that the alleged white bucket has not been seized, and the Investigating Officer Rahul Tiwari (PW-15), admitted that he had not conducted any investigation regarding the bucket. Mrs. Purnima (PW-5) also admitted in cross-examination that the bucket she described was made of ordinary plastic, and the witnesses' statements also indicated that such buckets were commonly available in the market. The deceased's nephew, Parmanand Kewat (PW-3), in cross-examination described the bucket as resembling an ordinary paint can, sometimes referring to it as a bucket and sometimes as a paint cane. Thus, there is no clarity about the object, nor has any investigation been conducted to establish the appellant's connection to the deceased's death. 20. As far as the appellant's escape during the interrogation is concerned, his conduct cannot be allowed to conclude that he is guilty in this case. Because if several people accuse a person of a serious crime such as murder, he will inevitably 12 be left alone and flee. He cannot be convicted merely on the basis of his escape. 21. In view of the aforesaid discussion and in light of the above referred judgments, the appeal preferred by the Appellant is allowed and the impugned judgment of conviction and order of sentence is hereby set aside and the Appellant is acquitted. 22. The Appellant is on bail. He need not to surrender in this case. However, his bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C. 23. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court forthwith, for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Shubham