1 2025:CGHC:54740-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 191 of 2017 Judgment Reserved on : 11.08.2025 Judgment Delivered on : 11.11.2025  Narayan Prasad Dhruw, S/o Late Raghuwar Prasad Dhruw, aged about 45 Years, R/o Village Kekdar, Police Station Hirri, District Bilaspur, Chhattisgarh. ... Appellant versus  State of Chhattisgarh Through The Station House Officer, Police Station Hirri, District Bilaspur, Chhattisgarh. ... Respondent For Appellant : Mr. K.K. Singh, Advocate For Respondent : Mr. Ashutosh Shukla, P.L. Hon'ble Smt. Justice Rajani Dubey & Hon'ble Shri Justice Amitendra Kishore Prasad (C A V Judgment) Per Rajani Dubey, J 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 25.11.2016 passed 2 by learned 5th Additional Sessions Judge, Bilaspur (C.G.), in S.T. No.67/2016 whereby and whereunder appellant has been held guilty for commission of offence and sentenced as described below :- CONVICTION SENTENCE Under Section 302 IPC R.I. for Life with fine of Rs.1,000/- and in default of payment of fine amount, to further undergo additional R.I. for 01 year. Under Section 201 IPC R.I. for 03 years with fine of Rs.500/- and in default of payment of fine amount to further undergo additional R.I. for 06 months. 2. The date of incident is 22.02.2016 at around 9.00 PM. The prosecution story in brief is that prior to some time of the incident, a dispute over repeated demand of due amount of vegetable of deceased Rajesh Khusro from the accused/appellant, took place in which the accused/appellant assaulted deceased Rajesh Khusro by axe and killed him. Thereafter, the body of deceased was concealed somewhere else. The information of the dead body lying near the Babul tree was given to police, who swung into action and investigated the matter. Dehati nalishi was recorded vide Ex.P-7 followed by dehati merg intimation vide Ex.P-8 and FIR (Ex.P-17) against the unknown person. Spot map was prepared by the police 3 vide Ex.p-1. Inquest on the body of deceased was prepared vide Ex.P-15 and dead body of deceased was sent for postmortem examination to Community Health Center, Bilha, District Bilaspur, where Dr. Pankaj Sahu (PW-15) conducted postmortem examination on the body of deceased and gave his report vide Ex.P-4 noticing following injuries :- (i) One spindle shaped incised would in the size of 6 cm x 2.5 cm in right carotid triangle with internal vessels exposed and clotted blood present. (ii) One incised wound in back of left ear pinna in the size of 3 x 2 cm and bone deep with clotted blood present. (iii) Multiple superficial abrasions over left elbow with clotted blood present. The autopsy surgeon opined that all the injuries were antemortem in nature caused by hard and sharp object & the cause of death of deceased was injuries leading to hemorrhagic shock and the death was homicidal in nature and mode was asphyxia. 3. During merg inquiry, after finding the evidence against the accused/appellant, his memorandum statement was recorded on 23.02.2016 vide Ex.P-9 and at his instance, one axe, one white colour gamcha and old gents underwear were seized vide seizure memo Ex.P-10. One bicycle and 4 one jeans were also seized from the accused/appellant vide Ex.P-11. Plain soil and bloodstained soil was seized from the spot vide Ex.P-12. Seized articles were sent for its chemical examination to FSL, Bilaspur vide Ex.P-22, and as per FSL report (Ex.P-24), presence of blood on soil, weapon of offence axe, gamcha, underwear, jeans pant and shirt was confirmed. 4. After filing of charge sheet against the accused-appellant under Sections 302 and 201 of IPC, the learned trial Court framed charges against the appellant accordingly, to which the accused-appellant abjured his guilt and pleaded for trial. 5. So as to hold the accused-appellant guilty, the prosecution has examined as many as 15 witnesses. Statement of the accused-appellant was also recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 6. The learned trial Court after hearing counsel for the respective parties and considering the material available on record, has convicted and sentenced the accused-appellant as mentioned in para 1 of this judgment. Hence, this appeal. 7. Learned counsel for the appellant submits that there is no eye-witness account to the occurrence and the conviction of 5 the appellants is based on circumstantial evidence but none of the circumstances from which the inference of guilt of appellant can be drawn has been proved beyond reasonable doubt and, therefore, there can be no inference that it was the appellant who committed the murder. Learned counsel further submits that there is no direct evidence against the accused-appellant to connect him with the crime in question. Learned counsel also submits that the learned trial Court has not taken into consideration the evidence available on record in its proper perspective and by this way committed grave error in appreciating those piece of evidence which are incriminatory to the appellant and discorded those piece of evidence which are favourable to the appellant, which is against the principle of criminal jurisprudence. The learned trial Court has failed to appreciate that no motive or intention alleged against the appellant for committing murder of deceased Rajesh Khusro, therefore, essential ingredients of offence under Section 302 as defined under Section 300 of IPC are not available in this case. The learned trial Court has failed to appreciate that the prosecution has not proved origin of blood group found on the axe. Learned counsel also submits that the learned trial Court has erred in convicting the appellant under Section 302 of IPC only on the basis of 6 memorandum of appellant, whereas as per provisions of Section 27 of the Evidence Act, it is a weak type of evidence and the same cannot be made basis for holding guilt of an accused under Section 302 of IPC. Learned counsel also submits that on the same set of evidence, other co-accused person has been acquitted by the learned trial Court, however, it has erred in convicting the appellant on same evidence. The independent witnesses have also not supported the case of the prosecution. There are material contradictions and omission in the case diary statement and court evidence of the prosecution witnesses, which cannot be relied upon and the same cannot be made basis for convicting the appellant. The prosecution has utterly failed to prove its case beyond all reasonable doubt. Therefore, the accused-appellant may be acquitted giving benefit of doubt. In support of his submission, learned counsel placed reliance on the decision of this Hon’ble Apex Court in the matter of Raja Khan vs. State of Chhattisgarh reported in (2025) 3 SCC 314 : 2025 SCC Online SC 260 and decision of this Court in Somaru & Ors. Vs. State of Chhattisgarh [CRA No.632/2008, judgment dated 23.06.2017]. 8. On the other hand, learned counsel for the State submits that the learned trial Court after appreciating oral and 7 documentary evidence has rightly convicted the accused- appellant and no interference is called for by this Court. The appeal has no merit and the same deserves to be dismissed. 9. We have heard learned counsel for the parties and perused the material available on record. 10. It is apparent from the record of the learned trial Court that charges under Sections 302 and 201 of IPC were framed against the appellant and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellant accordingly & sentenced him as described in para 01 of this judgment. 11. The first question which arises for consideration before this Court whether the death of deceased Rajesh Khusro was homicidal in nature or not. 12. Thanuram Maravi (PW-1) is the witness who had seen the body of deceased lying near Babul tree. He has stated that it was Maagh Pournima’s night, when he was going to plot at around 8-9 PM holding bucket of water, a stick and a torch with him. When he reached near Babul tree, he saw a person lying there, who was wearing a pink shirt. He has also stated that he thought the person lying there was Rakesh and called out, but when he went closer and looked 8 at, it was not Rakesh. After that, he moved away and went to call Ramdular, who came alone, then they looked at him with a torch, then they heard the voices of Panchram, Daua and Narayan. Thereafter, theye went to Kotwar and village Sarpanch, informed them about lying of dead body. Everyone went near the dead body then they looked at it and found that it was the dead body of deceased Rajesh Khusro. 13. Ramdular Dhruv (PW-2) is the witness whom Thanuram Maravi (PW-1) informed about the lying of dead body. He has stated that it was during the Sagar exhibition. At around 9.30 pm, Thanuram Maravi (PW-1) came and told him that a person was lying near Babul tree by the side of Daihan. After that, he went there with his maternal uncle Thanuram (PW-1) and saw that Rajesh Khusro was lying dead there. He has also stated that he heard the noise of Panchram, Daua and Narayan and then they also came and they all went to village Kotwar. They went to the side where the dead body was lying. Panchram Daua and Narayan identified the body to be that of Rajesh Khusro but he did not recognize the dad body. 14. Ramavtar Sahu (PW-3) and Panchram Markam (PW-4) both have stated that Thanuram Maravi (PW-1) informed them about lying of dead body of deceased near Babul tree. 9 Thereafter, they along with Narayan, Ramdular and Thanuram went to the spot and identified the dead body of deceased to be that of Rajesh Khusro. 15. Smt. Laxmin Khusro (PW5) is the wife of deceased Rajesh Khusro. She has stated that her husband Rajesh Khusro left the house at 6.00 pm saying that he is going outside and will return soon but he never returned. Her husband Rajesh Khusro had brought some fish at 5.30 pm and told her to cook it. The deceased left the house at 6.00 pm and she don’t know what happened thereafter. She has also stated that at around 9.00 pm, one person named Thanuram Maravi (PW-1) came and told her that someone with bleeding was lying near pond. Thereafter, she went to the spot where the person was lying but she did not see him as she felt unconscious. 16. Garima Dwivedi (PW-10) is the S.D.O.P. and at the relevant time she was posted as S.H.O. – at Police Station Hirri. She has stated that on 23.02.2016 at around 8.00 pm, complainant Ramdular Dhruv (PW-2) gave information to the effect that on 22.02.2016, when he was in his house after taking dinner, at around 9.00 pm, the Constable came to his (PW-2) house and informed that body of one person was lying near Babul tree, then he along with village Kotwar, Sarpanch went to the spot, look at him with torch and found 10 that the body which was lying there was of deceased Rajesh Khusro. There was injury on right side of his neck and blood was present all over his face. Some person has killed his brother-in-law (Jija) with sharp edged weapon. This witness has also stated that on the aforesaid information of Ramdular Dhruv (PW-2), she recorded dehati merg (Ex.P-8) and admitted her signature on ‘A to A’ part. She has also stated that on the basis of dehati merg intimation, she recorded dehati nalishi vide Ex.P-7 and admitted her signature on ‘A to A’ part thereon. She had also issued notices under Section 175 of Cr.P.C. to panch witnesses for inquest procedure vide Ex.P-6 and prepared inquest on the body of deceased vide Ex.P-15 and sent the body of deceased for postmortem examination to Community Health Center, Bilha vide Ex.P-18. 17. Dr. Pankaj Sahu (PW-15) is the autopsy surgeon who conducted postmortem examination on the body of deceased and gave his report under Ex.P-4 noticing following symptoms/injuries :- (i) Rigor mortis was present in two lower limb and left upper limb. Both mouth and eyes were opened. Right eye was hazy, clotted blood was present all over face, both nostrils and left ear. Clothes were soiled with blood stains. 11 (ii) One spindle shaped incised wound in the size of 6cm x 2.5 cm was present in right carotid triangle with internal vessels exposed and clotted blood was present. (ii) One incised wound in back of left ear pinna in the size of 3 x 2 cm into bone deep with clotted blood. (iii) Multiple superficial abrasions over left elbow with clotted blood present. (iv) All the injuries were ante mortem in nature, caused by hard and sharp object and inflicted within 12 hours. (v) Injury over right carotid triangle was fatal. The autopsy surgeon opined the cause of death of deceased due to injuries leading to hemorrhagic shock and death was homicidal in nature & the mode of death was asphyxia. 18. Nothing adverse has come in the cross-examination of Dr. Pankaj Sahu (PW-15) that would make his testimony unbelievable. The prosecution has been successful in proving this fact beyond reasonable doubt that the death of deceased was homicidal in nature. 19. The next question which arises for consideration by this Court whether it is the accused/appellant who is the perpetrator of crime. 12 20. It is apparent from the prosecution story that there is no eye witness to the incident and the prosecution story rests upon circumstantial evidence, memorandum statement of the appellant and consequent seizure thereof. 21. Ramavtar Sahu (PW-3) has stated that it was during the Sagar exhibition, he had returned home after seeing the exhibition at around 8 pm. He was sitting at home for about 10 minutes then accused/appellant Narayan and Panchram (PW-4) came to his house, then they took a coconut and went to village where singing and dancing was going on. They smoked beedis near Narayan's house where Thanuram Maravi (PW-1) shouted that someone’s body is lying, then he, accused/appellant Narayan, Panchram (PW- 4) and Ramavatar (PW-3) went near the dead body. He has also stated that a man was lying on the ground near Daihan under the Babul tree and there was a cut mark near his neck. Then they all went to call the Sarpanch and the Kotwar, who came there and all they saw with a torch that the body was of deceased Rajesh Khusro. Someone had killed him. Thereafter, the police came and interrogated the villagers. He has also stated that he, Narayan and Panchram were sitting in the shade of the accused. The police interrogated Narayan, then he confessed in front of the police that he has killed Rajesh Khusro. He has also 13 stated that when the police asked accused/appellant why he killed Rajesh Khusro, then he said that Rs.150/- of vegetable was due on deceased Rajesh Khusro and because of not paying it, he has killed him. The accused/appellant had said that he hid the tangia used in the commission of murder of deceased in a small field behind his house and kept the towel in a sack in the shade of his house. The accused had buried the clothes under bricks in his courtyard where he had killed Rajesh Khusro. The accused/appellant had killed Rajesh in his house and thrown his body near Babul tree. This witness has admitted his signature on memorandum statement (Ex.P-9) of accused/appellant. In cross-examination, this witness has admitted this suggestion of defence that when the police had come to village, all the articles were kept on table. 22. Panchram Markam (PW-5) had admitted his signature on memorandum statement (Ex.P-9) of accused/appellant and seizure memo (Ex.P-10) & has stated that the police recovered the weapon of offence axe from the backside of house of accused/appellant at his instance. This witness has admitted this suggestion of defence that when the police had come to village, all the articles were kept on table and there he made signature on the seizure memo. This witness has also admitted suggestion of defence that the 14 police had committed maarpeet with the accused/appellant. 23. The seized articles i.e. plain and bloodstained soil, axe, bloodstained clothes of deceased and accused/appellant were subjected to its chemical examination by the prosecution vide Ex.P-22, and as per FSL report (Ex.P-24), presence of blood was confirmed on soil, axe, gamcha, underwear, jeans pant and shirt (Articles – A, C, E, F, G, H1 and H2) respectively, but origin of it could not be confirmed in the FSL report. 24. Close scrutiny of the evidence and prosecution witnesses makes it clear that in the instant case, the learned trail Court convicted the accused/appellant only on the basis of his memorandum statement and consequent seizure thereof. The learned trial Court also finds that there was motive of money transaction between the accused/appellant and the deceased behind the commission crime. 25. Thanuram Maravi (PW-1) has admitted in para 5 of his cross-examination that deceased Rajesh Khusro had told accused/appellant Narayan Dhruv that he (appellant) had brought vegetables for his daughter’s wedding from deceased and the deceased was demanding his due amount of Rs.150/-, due to which a dispute had arose over this demand and deceased Rajesh Khusro was killed for this reason, but Smt. Laxmin Khusro (PW-5), wife of deceased 15 Rajesh Khusro, has admitted in para 6 of her cross- examination that her husband was vegetable vendor and he used to sell vegetable to many people on credit and if there was any dispute with anyone regarding the issue of credit, she is not aware of it. 26. Hon’ble the Apex Court in the matter of Raja Khan (supra) held in para 27 as under :- “27. This Court, in Varun Chaudhary vs. State of Rajasthan, (2011) 12 SCC 545 and Mustkeem alias Sirajudeen vs. State of Rajasthan, (2011) 11 SCC 724, has held that if the recovery memos have been prepared in the police station itself or signed by the panch witnesses in the police station, the same would lose their sanctity and cannot be relied upon by the Court to support the conviction.” 27. This court in the matter of Somaru (supra) held in para 13 and 14 as under :- “13. The other piece of evidence against the appellants is seizure of a stone at the instance of appellant No.1 but there is no FSL report or report of the expert to prove that blood was found on this article. Moreover, witnesses to the memorandum and seizure PW-5 and PW-6 have also not supported the prosecution case. As such, this circumstance has also not been proved to the hilt by the prosecution. 14. Thus, having examined the facts and 16 circumstances of the case in the light of above legal position, it will not be safe for us to hold the appellants guilty of the offence under Section 302/34 and 201 of IPC merely on the basis of evidence of last seen. Even otherwise, in absence of any positive evidence it cannot be held as to which of the three accused committed murder and the law does not permit us to assume many things which is not part of the evidence. Though the circumstances raise suspicion against the appellants but mere suspicion can not be the basis of conviction, howsoever strong it may be. Considering the over all nature and quality of evidence, we are of the opinion that the prosecution has not been able to prove its case beyond the shadow of reasonable doubt and as such, the trial Court has committed an illegality in convicting the appellants under Section 302/34 and 201 of IPC on the basis of such evidence. The appellants deserve to be acquitted of the said charge by giving them benefit of doubt.” 28. Now if the facts of the present case are seen in the light of the afore-quoted judicial pronouncements, picture which emerges is almost identical. In the instant case, it is apparent that both the memorandum and seizure witnesses (PW-3 and PW-4) have admitted that they signed on memorandum statement (Ex.P-9) of the accused/appellant and seizure memo (Ex.P-11) at the behest of police. PW-3 17 Ramavtar Sahu and PW-4 Panchram Markam both have admitted this suggestion of defence that they did not know on how many papers/documents the police had taken their signatures. They have also admitted this suggestion that they have signed all document at once. The memorandum and seizure witnesses have not stated specifically in their evidence that the seized articles were recovered in their presence, which render the memorandum and seizure doubtful. Further, the prosecution has not been able to prove that the blood found on the articles seized at the instance of accused/appellant was of human blood. The prosecution has not been able to prove the complete chain of circumstantial evidence to connect the appellant with the crime in question, and the motive behind the crime i.e. Rs.150/- of vegetables of deceased which was due on appellant, as proved by the prosecution, is not very convincing as the wife (PW-5) of deceased has stated that the deceased used to sell vegetables on credit to many people and she was not aware about any dispute/quarrel regarding the issue of credit. 29. The prosecution has not been able to produce any clinching, credible and reliable evidence against the accused/ appellant to prove his guilt beyond reasonable doubts but the learned trial Court did not appreciate all the aforesaid 18 facts discussed herein above in its true perspective and recorded perverse finding of conviction against the accused/appellant. Being so, the finding recorded by the learned trial Court is not sustainable and the accused/appellant deserves for acquittal extending him benefit of doubt. 30. In view of the aforesaid circumstances and discussion, it is not possible for us to sustain the impugned judgment and sentence. The appeal is allowed. The impugned judgment of conviction and order of sentence are set aside and the accused/appellant is acquitted of the charges levelled against him by giving benefit of doubt. 31. The accused/appellant is on bail. Keeping in view the provisions of Section 437-A Cr.P.C. (481 of the B.N.S.S.), the appellant is 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 appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 32. The Lower Court records along with copy of this judgment 19 be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge pekde The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full 11.08.2025 11.11.2025 -- 11.11.2025 Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.11.11 14:15:08 +0530