1 2025:CGHC:15871-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1037 of 2016 1 - Babulal Chandra S/o Ramcharan Chandra Aged About 38 Years R/o Village - Bhothidih, Police Station - Jaijaipur, District Janjgir - Champa Chhattisgarh Present R/o 10th Armed Regiment, Suratgarh, District - Suratgarh Gujrat, 2 - Bhagwat Chandra S/o Ramcharan Chandra Aged About 40 Years R/o. Village - Bhothidih, Police Station - Jaijaipur, District Janjgir - Champa Chhattisgarh Present R/o Dhimrapur, District Raigarh Chhattisgarh ... Appellants versus 1 - State Of Chhattisgarh Through Police Station - Janjgir, District - Janjgir - Champa Chhattisgarh ... Respondent(s) For Appellants : Shri Manoj Paranjpe, Advocate. For Respondent(s) : Shri Arvind Dubey, Govt. Advocate. Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (04/04/2025) KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.04.07 18:14:07 +0530 2 Sanjay K. Agrawal, J 1. This Criminal Appeal preferred by the accused/appellants under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and sentence dated 29.7.2016 passed by the 2nd Additional Sessions Judge, Janjgir, District Janjgir Champa in ST No.42/2016 by which the appellants have been convicted and sentenced as under:- Conviction Sentence Under Section 120-B of the IPC RI for life with a fine of Rs.5,000/-, in default of payment of fine to further undergo RI for 6 months Under Section 302/34 of the IPC RI for life with a fine of Rs.5,000/-in default of payment of fine to further undergo RI for 6 months. 2. Case of the prosecution, in brief, is that in the intervening night of 8th / 9th November, 2015, the two appellants in furtherance of their common intention committed murder of Urmila, who is the wife of appellant No.1 Babulal. It is an admitted position that both the appellants are real brothers. Merg intimation (Ex.-P/2) was lodged by Ajay Chandra (PW-2), who is the brother of the deceased, stating that his elder sister was married with appellant No.1-Babulal. The said appellant was working with Indian Army and they were having 3 children. His sister was residing at Janjgir with her children for the purposes of studies in a rented premises. On 9.11.2015, at 9 am, one Dinesh Chandra informed him that his sister has been found in 3 dead condition at her home. Thereafter inquest (Ex.-P/4) was prepared and the FIR (Ex.-P/16) was registered against unknown persons. The dead body of the deceased was sent for postmortem examination which was conducted by Dr. R.S. Sidar (PW-9) and he gave his report Ex.-P/8 opining that the cause of death is throttling, the mode of death is asphyxia and the death is homicidal in nature. 3. Pursuant to the memorandum statement of appellant No.1, shirt was seized vide Ex.-P/12 and pursuant to the memorandum statement of appellant No.2, one Nokia mobile and one Maruti Ertiga Car, white coloured, were seized vide Ex.-P/14. After due investigation, the appellants were prosecuted for the aforesaid offences. 4. In order to bring home the charges, the prosecution examined as many as 16 witnesses and exhibited 21 documents. 5. The learned trial Court after appreciating the oral and documentary evidence available on record convicted and sentenced the appellants as mentioned above against which this Appeal has been preferred by the appellants. 6. Learned counsel for the appellants would submit that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. So far as appellant No.2 is concerned, it is a case of no evidence and he has been falsely 4 implicated in the crime in question and, therefore, he deserves to be acquitted. 7. Per contra, learned State Counsel would support the impugned judgment of conviction and submit that the trial Court is absolutely justified in convicting the appellants for offence under Section 302/34 & 120-B of the IPC. The two appellants are not entitled for acquittal and the Appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions and have gone through the records with utmost circumspection. 9. The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative relying on the postmortem report of Ex.-P/8 which is proved by (PW-9) Dr. R.S. Sidar, stating that the death was homicidal in nature, and we do not find any illegality in the said finding, as the same is neither perverse nor contrary to the record. 10. Now the next question would be whether the accused/appellants herein are the author of the crime in question. 11. In the present case, there is no direct evidence and the case of the prosecution rests on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad 5 Birdhichand Sarda Vs. State of Maharashtra1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-152 as under:- “152.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 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 1 (1984) 4 SCC 116 6 probability the act must have been done by the accused.” 12. In the present case, the trial Court has relied upon the following circumstances against the appellants for basing conviction:- (i) After the marriage, there used to be a quarrel between the appellant No.1 – Babulal and the deceased concerning divorce and appellant No.1 used to harass her because of which she started residing separately along with 3 children. (ii) On the date of the incident, the appellant No.1 was seen at village Nandeli, (80 km away from the place of incident), which was informed to (PW-2) Ajay Chandra by one Saukhilal Chandra (not examined). (iii) Pursuant to the memorandum of appellant No.1, shirt was seized vide Ex.-P/12. (iv) As per call details (Ex.-P/21), appellant No.1 was in touch with the deceased. (v) The appellant No.1 did not participate in the funeral and other rituals of the deceased. 13. We shall consider the aforesaid incriminating circumstances found proved by the trial Court one by one to find out whether the learned trial Court is justified in convicting the appellants for the offence under Section 302/34 & 120-B of the IPC. 14. As regards the first circumstance, the dispute between the appellant No.1 and the deceased has been established by (PW-2) Ajay Chandra, (PW-5) Smt. Kamlesh Devi Chandra, (PW-10) Sanjay Kumar and (PW-12) Gorelal. Because of the quarrel, the deceased was living separately at Janjgir where the incident has taken place. 7 As such, the said circumstance has been found proved by the trial Court, which is correct finding of fact. 15. As regards the second circumstance recorded by the trial Court, it is not in dispute that appellant No.1 Babulal, though was working at Suratgarh, was on leave from 7.9.2015 to 17.11.2015, however, as per the evidence of (PW-2) Ajay Chandra, one Saukhilal Chandra has informed him that he has seen the appellant No.1 Babulal at village Nandeli, which is 80 km away from the place of the incident. However, it is not the case of the prosecution that the two appellants were seen at the place of the incident, but (PW-2) Ajay Chandra has made a statement before the Court that he was informed by Saukhilal that appellant No.1 – Babulal was seen at village Nandeli, whereas the said Saukhilal Chandra has not been examined by the prosecution for the reasons best known to them. Even otherwise, it is not a case where the two appellants were seen immediately before the incident or at the place of incident where by the deceased was murdered by throttling. Merely because appellant No.1 remained on leave from 7.9.2015 to 17.11.2015 and he was seen by one Saukhilal Chandra, who was not examined by the prosecution, the last seen theory cannot be held to be established by the prosecution. We hereby reject the said theory. In this regard, the Supreme Court in the matter of State of UP Vs. Satish2 has clearly held that the last-seen theory comes into play where the time-gap 2 (2005) 3 SCC 114 8 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. If the gap between the time of last seen and the deceased found dead is long, then the possibility of other person coming in between cannot be ruled out. 16. As regards third circumstance, shirt which was seized in pursuance of the memorandum of appellant No.1, was not sent for forensic examination nor any expert’s report was submitted. Furthermore, shirt is not of unique quality which could be found in the local market. As such, mere recovery of shirt at the instance of appellant No.1 is not sufficient to connect him with crime in question. 17. As regards the fourth circumstance, the call details has been obtained and proved by (PW-16) Krishna Kumar Sahu, who was posted as In-charge, Cyber Cell. However, no mandatory certificate under Section 65-B of the Indian Evidence Act has been brought on record, which was condition precedent in view of the judgment of the Supreme Court in the matter of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal3 in which their Lordships resolving the dispute and the conflict raised in the matters of Shafhi Mohammad v. State of Himachal Pradesh4 and Anvar P.V. Versus P.K. Basheer5 have clearly held that production of 3 (2021) 7 SCC 1 4 (2018) 2 SCC 801 5 (2014) 10 SCC 473 9 certificate under Section 65B of the Evidence Act is mandatory only in case of secondary evidence where primary evidence is not laid or original is not produced. Their Lordships further held that the certificate required under Section 65B(4) of the Evidence Act is a condition precedent to the admissibility of secondary evidence by way of electronic evidence as laid down in Anvar P.V. (supra) and incorrectly clarified in Shafhi Mohammad (supra). It was held as under: - “61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor6, which has been followed in a number of the judgments of this Court, can also be applied. Section 65- B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65- B(4) otiose.” Their Lordships also held that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced and this can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and / or operated by 6 (1875) LR 1 Ch D 426 10 him. The reference was answered in paragraphs 73.1., 73.2. and 73.3. as under: - “73.1. Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno7, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad (supra) and the judgment dated 3-4-2018 reported as Shafhi Mohd. v. State of H.P.8, do not lay down the law correctly and are therefore overruled. 73.2. The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). The last sentence in para 24 in Anvar P.V. (supra) which reads as “… if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act …” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act, …”. With this clarification, the law stated in para 24 of Anvar P.V. (supra) does not need to be revisited. 73.3. The general directions issued in para 64 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in 7 (2015) 7 SCC 178: (2015) 3 SCC (Cri) 54 8 (2018) 5 SCC 311 : (2018) 2 SCC (Cri) 704 11 all proceedings, till rules and directions under Section 67-C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.” 18. The appellant No.1 is said to be using Mobile No.8007760756, however, no document has been brought on record to hold that the said mobile number along with IMEI number was issued to the appellant No.1. Moreover, no question was put to appellant No.1 in his examination under Section 313 of the CrPC in this regard. In the circumstances, we are of the opinion that the prosecution has failed to prove this circumstance against the appellant No.1. 19. As regards the last circumstance that the appellant No.1 did not participate in the funeral and other rituals of the deceased, in the matter of Subramanya V. State of Karnataka9, the Supreme Court has clearly held that subsequent conduct of the accused may be relevant fact under Section 8 of the Evidence Act, but it cannot form basis for conviction that too for offence of murder and observed in para 95 as under :- “95.In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are 9 2022 SCC OnLine SC 1400 12 trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.” 20. In view of the principles of law laid down by their Lordships of the Supreme Court in the matter of Subramanya (supra), we are of the opinion that only on the basis of subsequent conduct the appellant No.1 could not be convicted in absence of other corroborative piece of evidence that too for offence under Section 302 of the IPC. 21. In that view of the matter, we are of the considered opinion that though the relationship between the appellant No.1 and the deceased has been proved by the prosecution, however, theory of last seen is not established at all and recovery of Shirt pursuant to the memorandum of appellant No.1, in the absence of any forensic evidence, is of no use to the prosecution. Further, subsequent conduct of the accused may be relevant fact under Section 8 of the Evidence Act, but it cannot form basis for conviction that too for offence of murder, in the light of decision of the Supreme Court in the matter of Subramanya (Supra). Thus, the Appellant No.1 is entitled for acquittal by extending benefit of doubt whereas the appellant No.2 is entitled for clean acquittal. 22. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellants under Section 302/34 & 120-B of the IPC are set aside and they are acquitted of the said charges. It is made 13 clear that appellant No.1 is being acquitted by extending benefit of doubt. The appellants are on bail. They need not surrender. The bail bonds furnished by the appellants shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. 23. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Barve