1 2025:CGHC:17496-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1206 of 2015 1 - Aereniyus Tigga S/o Honariyus Tigga, Aged About 26 Years Occupation - Labourer R/o Village Ramsama, Siktatoli, Police Station Bagicha, District Jashpur Chhattisgarh (Died) (Deleted) 2 - Arvind Tigga S/o Honariyus Tigga, Aged About 24 Years, Occupation - Laborer R/o Village Ramsama, Siktatoli, Police Station Bagicha, District Jashpur Chhattisgarh ... Appellant (s) versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Bagicha, District Jashpur Chhattisgarh ... Respondent(s) For Appellant (s) : Mr. Ashish Gupta, Advocate For Respondent /State : Mr. Rahul Tamaskar, Government Advocate SHYNA AJAY Digitally signed by SHYNA AJAY Date: 2025.04.17 16:38:40 +0530 2 DIVISION BENCH Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ. Judgment on Board 16/04/2025 Deepak Kumar Tiwari, 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 11.8.2015 passed by the Sessions Judge, Sessions Division, Jashpur (CG) in Sessions Case No.11/2014, by which, the appellants have been convicted and sentenced as under :- Conviction Sentence Under Section 302 of the IPC Life imprisonment with a fine of Rs.3000/-, in default of payment of fine to further undergo RI for 4 months Under Section 450 of the IPC RI for 7 years and to pay a fine of Rs.2000/-, in default of payment of fine, to further undergo RI for 3 months. 2. Since Appellant No.1- Aereniyus Tigga has died on 26.7.2024, this Criminal Appeal preferred on his behalf, has been abated by order dated 15.4.2025. 3 3. Case of the prosecution, in short, is that Appellant No.1- Aereniyus Tigga (deceased) and the present Appellant – Arvind Tigga, both are the real brothers and their father namely Honariyus Tigga had been suffering from illness prior to the date of the incident. Both the brothers had a suspicion that Smt. Margret alias Martha (deceased) used to practice witchcraft on their father. Prior to the date of the incident, appellant/accused - Aereniyus Tigga and the present appellant extended threat to Margret that if something wrong happens to their father, they would kill her. The father of the accused died on 29.11.2023, on account of which, their suspicion became strong and in furtherance of their common intention, on 29.11.2023, at 6:30 p.m., they entered the house of Margret and assaulted her by Tangia (axe) and knife. When the deceased shouted, her husband Matiyas (not examined) reached there and found injuries on her head and neck. Further, the deceased was found sitting near the wall. Thereafter, he called one Dilip Tirkey, who, in turn, informed his wife Sunita Tirkey (not examined). Durjan Tirkey (PW-10) lodged the merg intimation vide Ex.P/14; inquest report was prepared vide Ex.P/8; spot map/crime details form was prepared vide Ex.P/18; Nazari Naksha was prepared 4 vide Ex.P/6 and thereafter, the FIR (Ex.P/15) was registered against unknown persons. 4. During investigation, the memorandum statements of accused Aereniyus Tigga - appellant No.1 (deceased) and the present appellant were recorded vide Ex.P/1 and Ex.P/3 respectively. From the memorandum statement of the present appellant, a blood stained knife was recovered and the same was sent for the FSL examination, on which, human blood was found but the origin of blood could not be ascertained as the blood was disintegrated. The FSL report was submitted vide Ex.P/25. The postmortem examination was conducted by Dr. Mithlesh Minj (PW-9), who has submitted his report vide Ex.P/19A, in which, he found eight injuries on the body of the deceased. He opined that the cause of death was due to hemorrhage shock due to multiple incised wound and the nature of death was homicidal. When a query was made in this regard, the Doctor has stated that the injuries could be caused by the seized/sharp objects. 5. In order to bring home the charges, the prosecution examined as many as 10 witnesses and exhibited 25 documents. The appellant has not examined any defence witness. 6. Statements of witnesses were recorded. Thereafter, after usual investigation, the appellant was charge-sheeted before 5 the jurisdictional criminal court and the case was committed to the Court of Sessions from where the learned Sessions Judge received the case on transfer for hearing and disposal in accordance with law. 7. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment, against which, this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. 8. Learned counsel for the appellant submits that the trial Court is absolutely unjustified in convicting the appellant for the offence under Sections 302 and 450 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that the case is based on circumstantial evidence and there is only recovery of weapon – knife, which has beem seized from the possession of the present appellant vide Property Seizure Memo (Ex.P/4). In the said Seizure Memo, there is no specimen seal appended at column No.13 and the same weapon was forwarded to the FSL and therefore, this itself becomes doubtful. He further submits that only recovery of blood stained knife cannot form the basis of conviction unless the same is corroborated with 6 the other piece of evidence. For the above submission, learned counsel would place reliance on the judgment rendered in the matter of Mustkeem alias Sirajudeen Vs. State of Rajasthan1, which was subsequently followed in the matter of Raja Naykar Vs. State of Chhattisgarh2. He lastly submits that the trial Court has erred in convicting the appellant and as such, he is entitled for acquittal. 9. Per contra, learned State Counsel would support the impugned judgment of conviction and submit that the prosecution has been able to bring home the charges beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. The appellant is not entitled for acquittal and the Appeal deserves to be dismissed. 10. Heard learned counsel for the parties and also perused the record with utmost circumspection. 11. 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 by taking into consideration the Postmortem Report (Ex.P/19A), which has been duly proved by Mithlesh Minj (PW-9), wherein, it was opined that the death was homicidal in nature. There were multiple 1 (2011) 11 SCC 724 2. (2024) 3 SCC 481 7 incised wounds and 8 injuries were found on the body of the deceased. We do not find any illegality in the said finding, as the same is neither perverse nor contrary to the record and the said finding is hereby affirmed. 12. Now, the next question would be whether the present appellant along with accused - Aereniyus Tigga (deceased), in furtherance of common intention, committed murder of deceased - Margret and he is the author of the crime in question? 13. Case of the prosecution is not based on direct evidence and it is based 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 Birdhichand Sarda v. State of Maharashtra 3 in paragraph 153 which state 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 3 (1984) 4 SCC 116 8 be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra4 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 probability the act must have been done by the accused.” 14. In the present case, the only incriminating circumstance against the present appellant found proved by the trial Court is that on his memorandum statement (Ex.P/3), a blood stained knife (Article ‘D’) has been recovered vide Property Seizure Memo (Ex.P/4). The aforesaid memorandum and seizure have been recorded by Sub Inspector - Narendra 4 (1973) 2 SCC 793 9 Kumar Tripathi (PW-7) in the presence of Dilip Ekka (PW-1) and Ajit Kumar Xalxo (PW-3). 15. Ajit Kumar Xalxo (PW-3) has not supported the prosecution case and categorically deposed that in his presence, no memorandum has been recorded based on the information provided by the present appellant. Furthermore, he stated that no seizure was also made in his presence. Even the other witness – Dilip Ekka (PW-1), in his cross-examination, admitted the fact that he is unaware of what was written in the memorandum statement as also in the seizure memo. The Police asked him to put the signatures on the above documents and he did so. 16. The Investigating Officer - Narendra Kumar Tripathi (PW-7) has not deposed whether after recording the memorandum and making recovery of weapon – knife, at the time of preparing the Property Seizure Memo-Ex.P/4, the said article was sealed in the presence of the witnesses. The said column is blank in Seizure Memo -Ex.P/4. Hence, the article, which was recovered from the appellant and forwarded to the FSL for examination, has itself becomes suspicious. Even otherwise, the law is well settled that only recovery of blood stained weapon cannot form the basis of conviction unless 10 the same is corroborated with other piece of evidence that too for an offence under Section 302 of the IPC. 17. In Raja Naykar (supra), the Supreme Court has relied upon its earlier decision rendered in the matter of Mustkeem alias Sirajudeen (supra), wherein, the following has been held in paragraphs No.25 to 27, which read as under:- “25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.” 26. If the recovery memos were prepared at the police station itself then the same would lose their sanctity as held by this Court in Varun Chaudhary v. State of Rajasthan5. 27. The scope and ambit of Section 27 were also illuminatingly stated in Pulukuri Kotayya v. King Emperor6 reproduced hereinbelow: (IA p. 77). “… it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will 5 (2011) 12 SCC 545 6 (1946-47) 74 IA 65 : AIR 1947 PC 67 11 produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. The same were thereafter restated in another judgment of this Court in Anter Singh v. State of Rajasthan7.” 18. Reverting back to the facts of the present case, in light of the afore-stated judgments, this Court is of the view that the sole circumstance of recovery of weapon cannot form the basis of conviction, particularly when, the prosecution has utterly failed to prove that the weapon which was forwarded for examination to FSL was the same, which had been used in commission of offence. Furthermore, the blood group of the blood which was found on Article ‘D’ could not be ascertained as the blood was disintegrated. 19. In the result, the Appeal is allowed. Conviction and sentence imposed on appellant – Arvind Tigga under Sections 302 & 450 of the IPC are set aside and he is acquitted of the said charges. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in 7 (2004) 3 SCC 657 12 operation for a period of 6 months in view of the provisions contained under Section 437-A of the CrPC. 20. 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 Shyna