1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1113 of 2014 Judgment Reserved on 14.10.2025 Judgment Delivered on 12.11.2025 1 - Rameshwar Sahu S/o Punit Ram Sahu Aged About 22 Years R/o G. Kebin Basti, B.M.Y. Charoda, Distt. Durg C.G., Chhattisgarh 2 - K. Jairam S/o K. Bhaskar Aged About 29 Years R/o P.P. Yard Colony, Qtr. No. 18/b, B.M.Y. Charoda, Distt. Durg C.G., District : Durg, Chhattisgarh ... Appellants versus 1 - State Of Chhattisgarh Through SHO, Police of Police Station G.R.P. Bhilai, Distt. Durg C.G. , Chhattisgarh --- Respondent For Appellants : Mr. B.P. Singh & Mr. Aditya Shrivastava, Advocates. For State : Mr. Abhishek Singh, Panel Lawyer. Hon'ble Justice Smt. Rajani Dubey & Hon'ble Justice Shri Amitendra Kishore Prasad CAV Judgment Amitendra Kishore Prasad, J. VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 1. This criminal appeal preferred by the appellants herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 14.10.2014 passed in Sessions Trial No.71/2013 by the 6th Additional Sessions Judge, Durg, District Durg, C.G., by which the appellants stand convicted & sentenced as under:- Conviction Sentence Under Section 302 read with Section 34 of Indian Penal Code (for short, ‘IPC’) Imprisonment for life and fine amount of Rs.5,000/- each and in default of payment of fine to undergo additional rigorous imprisonment for one year to each appellant Under Section 201 read with Section 34 of IPC Rigorous Imprisonment for two years and fine amount of Rs.1,000/- each and in default of payment of fine to undergo additional rigorous imprisonment for two months to each appellant Under Section 404 read with Section 34 of IPC Rigorous Imprisonment for two years and fine amount of Rs.2,000/- each and in default of payment of fine to undergo additional rigorous imprisonment for three months to each appellant (All sentences were directed to run concurrently) 2. Case of the prosecution, in brief, is that, on 12.11.2012, one Jagat Narayan Sharma / complainant informed the G.R.P. Chowki, Maroda to PW-13 Yogendra Pandey, Sub-Inspector, that a dead body of Anil Sharma (deceased) was found near the P.P. Yard, Bhilai Nursery Colony, in suspicious circumstances. Upon 3 receiving this information, the Chowki-Prabhari conducted a preliminary enquiry and a Merg Intimation was registered. During the preliminary enquiry, it was revealed that the deceased- Anil Sharma had left his house on 12.11.2012 at about 10:00 a.m., taking a Suzuki motorcycle from one Harendra Baghel, stating that he is going to his house. Thereafter, the dead body of the deceased was sent for postmortem examination, and as per the postmortem report (Ex. P/18) prepared by PW-7 Dr. P.N. Dewangan, the cause of death of the deceased was asphyxia due to airway obstruction caused by the inhalation of water resulting from antemortem drowning. Subsequently, on 20.12.2012, the nephew of the deceased namely Yogendra Pandey (PW-13) lodged a written complaint (Ex.P-10), alleging that at the time of incident, the deceased was carrying a Nokia X-6 mobile phone and was wearing a gold chain with a locket, which were missing from the spot where the body was found. He further stated that some of the friends of the deceased informed him that the deceased’s mobile phone was being used by one Gabber @ Rameshwar Sahu (appellant No. 1 herein), a resident of G. Kebin Basti. On receiving this information, the Chowki-Prabhari registered an FIR (Ex.P-24) against the accused persons and interrogated Gabber @ Rameshwar Sahu, who disclosed through his memorandum statement vide Ex.P/04 that on 12.11.2012, around noon, he was coming along with Jairam (the appellant No. 2 herein) from P.P. Yard Colony, Bhilai, and at that time, they saw 4 Anil Sharma talking on his mobile phone. The appellant No. 2/co- accused Jairam requested Anil Sharma (deceased) to lend him ₹100/- for consuming liquor, but the deceased declined to do so. Thereafter, both Jairam and Rameshwar Sahu / accused persons planned to commit his murder. According to the disclosure, they forcibly threw Anil Sharma into the canal, causing his death by drowning/asphyxia. Thereafter, appellant No.1/Rameshwar Sahu kept the mobile phone of the deceased and appellant No.2 Jairam kept the golden chain. Likewise, memorandum statement of appellant No.2 K. Jairam was also recorded vide Ex.P-12 and pursuant to their memorandum statements, the said articles were later recovered during investigation. After that, the statements of the witnesses were recorded. 3. After completion of investigation, the appellants were charge- sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellants/accused persons abjured their guilt and entered into defence by stating that they have not committed the offence. 4. The prosecution in order to bring home the offence, examined as many as 13 witnesses in support of its case and exhibited 27 documents Exs.P-1 to P-27. However, the appellants in support of their defence have neither examined any witness nor exhibited any document. 5 5. The trial Court, after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellants as mentioned in the opening paragraph of this judgment against which they have preferred the instant appeal under Section 374(2) of the CrPC. 6. Learned counsel for the appellants would submit that the impugned judgment of conviction and order of sentence passed by the learned trial Court is wholly illegal, perverse, and unsustainable in law, being based on weak and incomplete circumstantial evidence. They would further submit that the appellants have been wrongly convicted by the trial Court in the absence of sufficient and compelling evidence. They would also submit that the prosecution has utterly failed to establish a complete and unbroken chain of circumstances connecting the appellants with the alleged offence. The entire conviction rests upon the alleged memorandum and seizure, which are neither proved in accordance with law nor reliable, as the seizure was made prior to the memorandum, thereby losing evidentiary value. The medical evidence also does not support the prosecution case, as the postmortem report shows death of deceased due to asphyxia which could equally be caused by drowning, and notably, no ligature mark was found on the neck of the deceased, contradicting the theory of strangulation. Furthermore, the alleged identification of the golden chain and mobile phone is unreliable since the identification process was not properly conducted and 6 only one chain was shown, the register of the jeweller bore no signature of the appellant, and the ownership of the seized mobile was not established. There are also several material contradictions and omissions in the statements of witnesses, which have been ignored by the learned trial Court. Hence, it is submitted that the conviction under the aforesaid Sections is based on conjectures and surmises, not on legal and admissible evidence, and therefore deserves to be set aside. 7. On the other hand, learned counsel for the State/respondent, while supporting the judgment of conviction and order of sentence passed by the trial Court, would submit that the findings recorded by the trial Court are well-reasoned and based on the cogent and reliable evidence brought on record. He would further submit that the prosecution has established a complete and unbroken chain of circumstances linking the appellants to the offence in question. The memorandum and seizure were proved in accordance with law, and the sequence of their recording does not diminish their evidentiary value. The medical evidence supports death due to asphyxia consistent with strangulation, and absence of ligature marks or water in the stomach does not contradict the prosecution’s case. The identification of the golden chain and mobile phone was properly conducted and corroborated by witness testimony. Minor contradictions in witnesses statements are immaterial and do not affect the credibility of the evidence. 7 Hence, the conviction of the appellants is based on strong, admissible evidence and deserves to be upheld. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. The first question for consideration is whether the death of the deceased was homicidal in nature. 10. It is a well-settled principle that in a murder case, the primary requirement is to establish that the death was homicidal. In the present case, PW-7 Dr. P.N. Dewangan, conducted the postmortem examination of the deceased on 13.11.2012 and submitted his report as EX. P/18. According to him, the cause of death was asphyxia due to airway obstruction caused by the inhalation of water, resulting from antemortem drowning. 11. It is also a settled law that medical evidence, though crucial, cannot alone establish homicidal death. While it confirms the cause of death, the prosecution must also produce corroborative evidence linking the death to a perpetrator, including evidence of motive, opportunity, or intentional acts. In the present case, the postmortem report clearly indicates that the cause of death was asphyxia due to inhalation of water. The autopsy surgeon further admitted that no injury or wound marks were observed on the neck of the deceased. In view of these facts, it is difficult to hold that the prosecution has proved beyond reasonable doubt that the 8 death was homicidal. Considering the circumstances of the case and the evidence on record, the possibility that the deceased died due to accidental drowning cannot be ruled out. Accordingly, the learned trial court was not justified in concluding that the death of the deceased was homicidal, and we hereby set aside the said finding of the trial Court. 12. Now, the next question is whether the appellants are the authors of the crime in question. 13. PW-1 Sonu Vishwakarma has stated in his deposition that he is acquainted with accused- Rameshwar, who is his neighbor and works as a tractor driver, but he does not know accused- K. Jairam. He has further stated that during the last Diwali festival, accused- Rameshwar offered to sell him a Nokia touchscreen phone, claiming that he had won it in gambling. Thereafter, he tested the phone by inserting his SIM card but agreed to buy it only if a valid bill was provided. After keeping the phone for 1–2 days without receiving any bill, he returned it to accused- Rameshwar. He has also that later he came to know that accused- Rameshwar has been arrested in connection with a murder case. Subsequently, the police interrogated him and took his photograph. During cross-examination, he admitted that he is aware that a receipt is required before purchasing any item. He denied buying the mobile phone illegally and clarified that he only tested it with his SIM card but did not make any purchase. He also denied the suggestion that he gave a false testimony or attempted 9 to protect himself or the accused. Thus, the testimony of this witness establishes that he had limited interaction with accused- Rameshwar related to a mobile phone. He neither purchased the phone without a bill nor participated in any illegal transaction. His statement appears credible and there is no evidence to suggest that he is protecting the accused or providing false information. 14. PW-2 Smt. Manjusha Sharma, wife of the deceased- Anil Sharma, has stated that her husband/deceased was engaged in business and property dealings. On 12th November 2012, she was informed by her nephew- Rohit Sharma about her husband’s death and later she came to know that accused- Jairam and Rameshwar has murdered the deceased for money, taking his gold chain with a Hanumanji locket, ring, wallet with documents, and a Nokia touchscreen phone. In February, she identified her husband’s ornaments and mobile phone at the Tehsil Office, Bhilai and confirmed her signatures on the identification memos Ex. P/1 and Ex. P/2. However, during cross-examination, she admitted that she did not know the model number of the mobile phone her husband was carrying, and only voluntarily stated that it was a Nokia phone which she recognized. She further admitted that the police neither asked her to produce, nor did she furnish, any receipt or document regarding ownership of the mobile phone. Similarly, she did not have definite information regarding the weight of the gold chain, though she voluntarily stated it was 24- carat gold. She also admitted that the police neither requested 10 any ownership document for the gold chain, nor did she produce any such document, and she was unaware of any receipt for it. Thus, the testimony of PW-2 does not provide concrete proof of ownership or a direct link between the accused and the alleged stolen items. Her identification of the mobile phone and gold chain relies solely on memory and recognition, without any supporting documentation. The absence of specific details, such as the phone model, chain weight, or receipts, renders her claims insufficient to conclusively establish the alleged theft or to connect the accused persons to the property. Therefore, her evidence cannot be considered reliable or corroborative for the prosecution’s claims regarding the property-related aspects of the case. 15. PW-6 D. Venugopal, a witness to the seizure and memorandum, admitted during cross-examination that he had signed all the documents at the police station and at that time, the said documents were blank. He further admitted that he had signed all those documents at the behest of the police officer. He also admitted that the police officer did not inform him about any procedure at the time of obtaining his signatures. He also admitted that when the police officer showed him the towel, cloth and other articles, no other person was present except the police officer. Accordingly, this witness has turned hostile and did not support the prosecution’s case. Likewise, PW-11 Rajendra Kumar Jain @ Raju, another witness to memorandum and seizure 11 (Exs.P-12 to P-15), has also turned hostile and did not support the prosecution's case. 16. PW-12 Mahesh Sinha, Investigating Officer, admitted during cross-examination that he received the investigation diary only after one month and eight days and came to know about the murder on 20.12.2012. He further admitted that he neither seized nor produced any document establishing ownership of the seized mobile phone, nor did he verify its purchase date or usage. He also admitted that the seizure memo (Ex.P-5) does not specify from which part of the house accused- Rameshwar produced the mobile phone, nor does it mention the material of the seal used, and no sample seal was affixed. He further admitted that he does not know where or in what condition the seized gold chain was kept prior to seizure. He also admitted that in seizure memo (Ex.P-13), the deity locket attached to the gold chain is not mentioned, the seized gold chain was not weighed and the exact location in accused- Jairam’s house from which it was seized is not specified. No receipt or statement regarding ownership of the seized gold chain was obtained and the witness to Ex.P-13 was not a local resident. Thus, PW-12’s testimony demonstrates that the investigation and seizure procedures were incomplete and inadequately documented. The absence of verification of ownership, lack of proper seals, missing details regarding the location and condition of the seized items, and reliance on a non- local witness indicate that the seizure memos and recovered 12 property cannot be reliably linked to the accused. Consequently, his evidence does not support the prosecution’s case regarding ownership or recovery of the alleged stolen property. 17. Close scrutiny of the evidence reveals that the prosecution has failed to conclusively establish that the death of the deceased was homicidal in nature. The post-mortem report indicates that death occurred due to asphyxia, which, according to the medical expert, could also have resulted from drowning. There is no conclusive medical evidence suggesting strangulation or any other mode of homicidal death. The absence of ligature marks and the lack of water in the stomach further cast serious doubt on the prosecution’s theory of murder. In view of these medical uncertainties and the prosecution’s failure to prove beyond reasonable doubt that the death was homicidal, the benefit of doubt must necessarily go to the accused. 18. Furthermore, the prosecution’s case largely rests on the alleged seizure and identification of a gold chain and a mobile phone said to belong to the deceased, based on the memorandum statements of the accused persons. However, both the seizure and identification procedures suffer from serious legal infirmities. Notably, the prosecution has failed to establish ownership of the seized mobile phone and gold chain. The identification by PW-2 is based solely on memory, unsupported by any documentary evidence such as purchase receipts or proof of ownership. The gold chain was identified without following a 13 proper identification protocol, and only a single item was shown to the witness, rendering the process unreliable. Moreover, the seizure and memorandum witnesses, namely PW-6 and PW-11, turned hostile and did not support the prosecution’s version. In these circumstances, the alleged recovery of the articles becomes highly doubtful. 19. In Mohd. Aman vs. State of Rajasthan , (1997) 10 SCC 44 , the Hon’ble Supreme Court held that when the recovery of material objects is doubtful and the identification of articles has not been properly conducted, such evidence cannot form the basis of conviction. Applying this principle, the prosecution’s failure to establish proper seizure and ownership of the alleged articles renders its case untenable. The identification of the gold chain with locket and the mobile phone, purportedly belonging to the deceased, thus remains uncorroborated and unreliable. The prosecution’s inability to prove ownership or proper identification of these items creates a reasonable doubt regarding the appellants’ guilt under the aforesaid sections. 20. The Hon’ble Supreme Court in the matter of Raja Khan vs. State of Chhattisgarh reported in (2025) 3 SCC 314 has held as under:- “28. Sections 25 and 26 of the Evidence Act stipulate that confession made to a police officer is not admissible. However, Section 27 is an exception to Sections 25 and 26.and serves as a 14 proviso to both these sections [State (UT of Delhi) v. Bal Krishan]. 29. This Court is of the view that Section 27 lifts the ban, though partially. to the admissibility of confessions. The removal of the ban is not of such an extent so as to absolutely undo the object of Section 26. As such the statement whether confessional or not is allowed to be given in evidence but that portion only which distinctly relates to discovery of the fact is admissible. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the appellant-accused as to its existence (Udai Bhan v. State of U.P.5). 30. The essential ingredients of Section 27 of the Evidence Act are threefold: (i) The information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. (ii) Only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. (iii) The discovery of the facts must relate to the commission of such offence. 31………... The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render-the evidence leading to discovery of any fact admissible, the information must come from any 15 accused in custody of the police…………….Thus, what is admissible being the Information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved………. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.” 21. Further, the Hon’ble Supreme Court in the matter of Hansraj vs. State of M.P. reported in 2024 SAR OnLine (SC) 311 has held as under:- “13. This Court in the case of Ramanand alias Nandlal Bharti v. State of Uttar Pradesh' has postulated that for proving a disclosure memo recordedunder Section 27 of the Indian Evidence Act, 1872 at the instance of the accused, the Investigating Officer would be required to state about the contents of the disclosure memo and in absence thereof, the disclosure memo and the discovery of facts made in pursuance thereto would not be considered as admissible for want of proper proof.” 22. It is a settled principle of criminal jurisprudence that the prosecution must establish the chain of circumstances with cogent 16 and reliable evidence, particularly in cases based on circumstantial evidence. 23. It is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 1 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under: “153.…. (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 Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 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 1 (1984) 4 SCC 116 17 (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.” 24. Upon examining the present case in light of the aforesaid decisions of the Hon’ble Supreme Court, and after a careful appraisal of the evidence on record, this Court finds that there are significant gaps in the chain of circumstances. The evidence adduced by the prosecution falls short of the standard required by law to sustain a conviction. A majority of the prosecution witnesses have turned hostile and have not supported the prosecution version. The prosecution has also failed to establish the essential ingredients of the alleged offences. There is no direct, reliable, or corroborative evidence linking the accused persons either to the death of the deceased or to the alleged theft of property. The testimonies of the witnesses are either insufficient, inconsistent, or hostile, and the investigation suffers from material procedural irregularities. 25. It is a well-settled principle of criminal jurisprudence that suspicion, however strong, cannot take the place of proof. The prosecution must prove its case by leading cogent, credible, and trustworthy evidence, leaving no reasonable doubt consistent with the innocence of the accused. In the present case, the prosecution has wholly failed to discharge this burden. The chain of 18 circumstances being broken and incomplete, the benefit of doubt must, therefore, be extended to the appellants. 26. In view of the foregoing discussion and the evidence on record, the criminal appeal is allowed. The impugned judgment and order of conviction and sentence passed by the learned Trial Court against the accused/appellants under the aforesaid Sections are hereby set aside. The appellants are acquitted of all the charges by extending to them the benefit of doubt. 27. The appellants are reported to be on bail. Keeping in view the provision of Section 437-A of Cr.P.C., the appellants are directed to forthwith furnish personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- each with one surety each in the like amount before the trial 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. 28. Registry is directed to transmit the trial Court record along with a copy of this judgment to the concerned trial Court forthwith for information and necessary compliance. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha