1 2025:CGHC:58552-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 514 of 2017 Komal Bhimge S/o Basant Lal Bhimge, Aged About 26 Years R/o Village Badera Bahara, Kodwahi, Police Station Pendra, District Bilaspur, Chhattisgarh., Chhattisgarh --- Appellant(s) versus State of Chhattisgarh Through Police Station Gourela, District Bilaspur, Chhattisgarh., Chhattisgarh --- Respondent(s) CRA No. 515 of 2017 Basanta Yadav S/o Panch Ram Yadav, Aged About 27 Years R/o Village Majhgawan, Bazar Mohalla, Police Station Pendra, District Bilaspur, Chhattisgarh., Chhattisgarh ---Appellant(s) versus State of Chhattisgarh Through The Police Station Gourela, District Bilaspur, Chhattisgarh., Chhattisgarh --- Respondent(s) CRA No. 1147 of 2017 Shiv Kumar Naik S/o Late Govindram Naik, Aged About 35 Years R/o Village Andi, Naik Mohalla P. S. Pendra District Bilaspur Chhattisgarh., Chhattisgarh ---Appellant(s) versus BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.12.08 16:41:51 +0530 2 State of Chhattisgarh Through Police Station Gourela District Bilaspur Chhattisgarh., Chhattisgarh ---Respondent(s) (Cause-title taken from Case Information System) For Appellant(s) : Mr. Abhishek Sinha, Senior Advocate, assisted by Mr. Ghanshyam Patel, Advocate in CRA No. 1147/2017, Mr. Ashok Kumar Swarnkar, Advocate in CRA No. 514/2017 & Mr. Vijay Shankar Mishra, Advocate in CRA No. 515/2017. For Respondent/State : Mr. Shailendra Sharma, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 03 .12.2025 1. Since all the criminal appeals arise out of the same crime, they have been clubbed together, heard together, and are being decided by this common judgment. 2. Heard Mr. Abhishek Sinha, learned Senior Advocate, assisted by Mr. Ghanshyam Patel, learned counsel for the appellant in CRA No.1147 of 2017; Mr. Ashok Kumar Swarnkar, learned counsel for the appellant in CRA No. 514 of 2017; and Mr. Vijay Shankar Mishra, learned counsel for the appellant in CRA No. 515 of 2017. Also heard Mr. Shailendra Sharma, learned Panel Lawyer, appearing for the State/respondent in all the appeals. 3. These criminal appeals, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), are directed against the impugned judgment of conviction and order of sentence dated 21.03.2017 3 passed by the learned Additional Sessions Judge, Pendra Road, District Bilaspur (C.G.) in Sessions Trial No. 17 of 2016, whereby the appellants have been convicted and sentenced as under: Conviction under Section Sentence Section 302/34 of the Indian Penal Code (for short, ‘IPC’) Rigorous imprisonment (for short, ‘R.I.’) for life imprisonment and fine of Rs.500/-, in default of payment of fine, 02 months R.I. more. Section 201/34 of the IPC R.I. for 03 years and fine of Rs.200/-, in default of payment of fine, 01 month R.I. more. All the sentences run concurrently. 4. Brief facts of the case are that, on 10.03.2016, the Deputy Station Manager, South Central East Railway, Pendra Road, submitted a written report to the Station House Officer, Gaurela, stating that the dead body of an unidentified woman, approximately 32 years of age, was lying at Hari Venkatnagar Down Line, Kilometer 829/28. On the basis of this information, Gaurela Police Station registered Merg No. 0/16 under Section 174 of the Cr.P.C. The matter was thereafter taken up for investigation. 5. With regard to the unidentified female's dead body, a panchnama of the corpse, Ex.P/13, was prepared in terms of Ex.P/5 by Sub-Inspector S.B. Singh Parihar (PW-5). He also prepared an application, Ex.P/14, for conducting a postmortem examination at CHC Sanatorium, Gaurela. The 4 medical officer, Dr. Bhagwan Singh Paikra (PW-6), conducted the postmortem and issued the report, Ex.P/14A. The report indicated that the woman had died due to a head injury and that the nature of death was homicidal. Consequently, on 19.03.2016, Inspector D.S. Rajput (PW-12) registered Ex.P/22, the First Information Report (FIR), against unknown persons for an offence under Section 302 of the IPC. 6. Since the woman remained unidentified and no information regarding her family could be ascertained, the body was buried. During investigation, Bhanwar Singh Vakre (PW-2), a resident of Gudumdevri, visited the police station, viewed the photographs of the deceased, and identified her as his sister, Mankunwar. Thereafter, the villagers of Gudumdeori submitted an application before the Sub-Divisional Magistrate, Pendra Road, seeking permission to exhume the body so it could be handed over to her relatives. The SDM issued necessary directions to the Tehsildar, Pendra Road, and the Station House Officer, Gaurela, for exhumation and handing over of the body. The body was exhumed, and the deceased was identified by her brothers—Bhanwar Singh Vakre (PW-2), Lalji (PW-9), and Karan Singh. The exhumation panchnama was prepared as Ex.P/7, and the identification panchnama was prepared in the presence of Bhanwar Singh (PW-2). The body was thereafter handed over to Bhanwar Singh Vakre as per the supurdnama Ex.P/9. 7. Statements of witnesses were recorded. According to these statements, the deceased had been living as the wife of accused Shivnayak for the last five years, and on the night preceding the recovery 5 of her dead body, the accused persons had taken her from the house of Modalal Rathore. The accused were taken into custody and interrogated. Accused Shivnayak disclosed that he had killed the deceased by assaulting her with sticks and, along with the co-accused, had placed her body between the railway tracks, kept the motorcycle at the Pendra Road Railway Station stand, and concealed the sticks near a pond in village Andi. Accused Komal stated that he had hidden the motorcycle used in the offence at his house in village Baderabahra, Kodwahi. On the basis of their memorandum statements, the motorcycle and sticks were seized. The accused were arrested on 20.03.2016 and produced before the Judicial Magistrate First Class, Pendra Road, who remanded them to judicial custody. 8. After completion of investigation, the police filed a charge-sheet against the accused persons before the jurisdictional criminal court. The case was then committed to the Court of Sessions for trial, from where it was transferred to the learned Additional Sessions Judge, Pendra Road, District Bilaspur (C.G.) for trial, hearing, and disposal in accordance with law. 9. When charges under Sections 302 or 302/34 and 201 or 201/34 of the IPC were framed against the accused persons, the charges were read over and explained to them, to which they pleaded not guilty and claimed to be tried. During their examination under Section 313 of the Cr.P.C., the accused asserted that they were innocent, had been falsely implicated, and denied having committed the crime. 10. In order to prove its case, the prosecution examined 12 witnesses 6 and exhibited 32 documents. However, the defence did not examine any witness. 11. Upon appreciation of the oral and documentary evidence on record, the learned trial Court, by its judgment dated 21.03.2017, convicted the appellants for the offences punishable under Sections 302/34 and 201/34 of the IPC and sentenced them as mentioned in paragraph 03 of this judgment. The present criminal appeals have been filed challenging the said judgment of conviction and order of sentence. 12. Learned Senior Advocate appearing for the appellant in CRA No.1147 of 2017 submits that the learned trial Court, while passing the impugned judgment, has failed to appreciate that the prosecution has not proved its case beyond reasonable doubt. It is contended that the motive and intention, which are essential ingredients to establish the offence, have not been proved and are conspicuously absent. There is no direct evidence against the appellants and the entire prosecution case rests solely upon the testimonies of Modlal (PW-7) and Tirath Bai (PW-4), though their statements suffer from material contradictions and discrepancies. He would further submit that the conviction is based merely on alleged circumstantial evidence to the effect that the deceased was last seen in the company of the appellants prior to his death. However, without recording any finding as to how the complete chain of circumstances stood established, the learned trial Court has erroneously convicted the appellants. It is settled law that mere “last seen” evidence, in the absence of a complete chain of circumstances, is insufficient to sustain a conviction. Thus, the finding recorded by the learned trial Court is patently 7 illegal and contrary to the record. He further contended that the learned trial Court failed to properly appreciate the testimony of Devendra Kaushik (PW-3), an independent witness, who categorically stated that PW-7 had come in his Bolero vehicle and asked for help stating that he had quarrelled with three persons and that they were proceeding to the police station to lodge an FIR. At that stage also, PW-7 neither disclosed the names of the said three persons nor stated that those persons had forcibly taken the deceased along with them. 13. It is further contended by the learned Senior Advocate that Punidas (PW-1), who is a witness to the panchnama, memorandum and seizure, has not supported the case of the prosecution and was declared hostile. He specifically stated that all the signatures were taken on 19.03.2017 at the police station and that no seizure was effected in his presence. Similarly, Bhawar Singh (PW-2), who is the brother of the deceased, also did not support the prosecution case and was declared hostile. Thus, the conviction recorded and sentence awarded by the learned trial Court deserve to be set aside being contrary to the material available on record. 14. Learned counsel appearing for the appellants in CRA No. 514 of 2017 and CRA No. 515 of 2017 adopted the submissions advanced by the learned Senior Advocate appearing for the appellant in CRA No.1147 of 2017. 15. Per contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submitted that the prosecution has successfully proved the guilt of the appellants beyond 8 reasonable doubt by leading cogent, credible and reliable evidence. It was contended that there is sufficient material on record to clearly connect the appellants with the commission of the offence. The learned trial Court, after due and proper appreciation of both oral and documentary evidence available on record, has rightly convicted and sentenced the appellants. The findings recorded are well-reasoned and based on proper appreciation of evidence and, therefore, do not warrant any interference. Accordingly, the appeals deserve to be dismissed. 16. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove, and also perused the record with utmost circumspection. 17. The conviction of the accused–appellants is substantially based on the memorandum statements of the appellants vide Exs.P/2 and P/5, on the basis of which a stick and a motorcycle were seized at the instance of accused Shiv Kumar Nayak. 18. The first question for consideration is whether the death of the deceased was homicidal in nature. 19. The learned trial Court, after appreciating the oral as well as documentary evidence available on record—particularly relying upon the statement of Dr. Bhagwan Singh Paikra (PW-6), who conducted the post- mortem examination and submitted the report vide Ex.P/14A—has held the death to be homicidal. On examination, the following injuries were noted on the dead body: “1. There was a lacerated wound measuring 15 × 3 9 cm, extending from the forehead to the lower jaw. The brain matter was protruding, and there were signs of bleeding. Fractures were found in the bones of the forehead and the jaw. 2. A fracture was also found in the bone at the back of the head, along with crushing of the bone, and clotted blood was present in the internal area. 3. Multiple contusion marks of different types and sizes were observed on the front part of the thigh, and both legs of the deceased also had contusion marks, which appeared black in colour. 4. Numerous contusion marks of various shapes were present on the chest, back, arm, and hand of the deceased. Scratch marks were also noted on the left side of the chest and on the left arm. 5. Blistering of the skin had begun, and the genital organs of the deceased were found to be normal. No signs were found to suggest that the deceased was pregnant or that she had been subjected to sexual assault.” As per the post-mortem report Ex.P/14A, the deceased died due to severe head injuries that resulted in coma. Such injuries could have been caused by a hard and blunt object. The nature of death was homicidal, and the estimated time since death was approximately 24 to 48 hours. 20. After hearing learned counsel for the parties and considering the submissions advanced by them, we are of the considered view that the finding recorded by the learned trial Court—that the death of the deceased was homicidal in nature—is a finding of fact based on the evidence available on record. The said finding is neither perverse nor 10 contrary to the material on record. We accordingly affirm the said finding. 21. Now, the next question for consideration would be whether the murder of the deceased was committed by the accused/appellants. 22. The Investigating Officer, D.S. Rajput (PW-12), deposed that on 19.03.2016, upon receipt of the merg inquiry report and the postmortem report, he registered FIR No. 94/2016 under Section 302 of the IPC against an unknown accused, which is exhibited as Ex.P/22. On the same day, in the presence of witnesses, he conducted the identification proceedings of the photograph of the unknown deceased woman; the memo is Ex.P/1. He further stated that on 20.03.2016, accused Shivkumar Nayak was taken into custody and interrogated. The accused disclosed that a motorcycle was parked near Pendra Road Railway Station and that a wooden stick had been concealed near a pond at Danda. His memorandum statement is Ex.P/2. Pursuant to this disclosure, a black Pulsar motorcycle (Reg. No. CG-10-EP-8588) was seized from near the Railway Station under Ex.P/4, and a Tendu wood stick was recovered near the pond under Ex.P/3. On the same day, on production by accused Komal Panika, a Hero Super Splendor motorcycle (Reg. No. CG-10-20-7861) was seized under Ex.P/6. On 09.04.2016, he seized two sealed packets brought from the hospital by Constable Naveen Tarun, under Ex.P/23. He further deposed that he submitted an application (Ex.P/24) to the Tehsildar, Pendra Road, for preparation of the site map; wrote to the Medical Officer, CHC Gaurela, for examination of the deceased’s seized clothes (Ex.P/17A) and the seized stick (Ex.P/18A); arrested accused Shivkumar Nayak, Basta Yadav, and Komal Bighde, 11 preparing arrest memos Exs.P/25, P/26, and P/27; and issued arrest intimation to their relatives (Exs.P/28 to P/30). Statements of witnesses Bharva Singh, Devendra Kumar Kaushik, Modlal Rathore, and Smt. Tirath Bai were recorded during investigation. The seized articles were forwarded to the Regional Forensic Science Laboratory, Bilaspur, under Ex.P/31, and acknowledgment was received as Ex.P/32. 23. Modlal (PW-7) stated that he had known the accused persons as well as the deceased Mankunwar for nearly twenty years. On 07.02.2016, accused Shivnayak brought the deceased to his house, saying that the rented accommodation where they had been residing was under repair and that the villagers had asked him to vacate due to his relationship with the deceased. As one room in PW-7’s house was vacant, he allowed them to stay there as husband and wife. After staying for a few days, Shivnayak continued to visit the deceased regularly. PW-7 further deposed that on 15.03.2016, after returning from his nephew’s wedding, he found all three accused persons at his house along with the deceased, and they appeared intoxicated. Although the deceased requested that they leave only the next morning and PW-7 also advised the same, the accused persons took the deceased with them and left that night. 24. In cross-examination, PW-7 denied allegations that he had any illicit relationship with the deceased, that the accused had seen him in a compromising position, or that he prevented the deceased from going to the police station. He acknowledged certain omissions in his police statement but consistently maintained that the accused had taken the deceased with them that night. He also stated that he had cordial relations 12 with the deceased’s family and had earlier resided on rent at her parental home. 25. Devendra Kaushik (PW-3), an independent witness, deposed that he knew only accused Shivkumar and did not know the other accused or the deceased. On 15.03.2016, upon returning from a wedding at about 8:30 p.m., he saw his neighbour Nimma Rathore, and shortly thereafter, Modlal arrived in his Bolero vehicle calling for help. Modlal told him that two or three persons had quarrelled with him and had gone to the police station. PW-3 accompanied Modlal’s son to the Gaurela Police Station, but they did not find anyone there. Although PW-3 asked Modlal about the incident, no further details were disclosed. He denied having spoken on the phone with accused Shivnayak, denied receiving any information regarding the deceased, and disputed certain statements recorded in Ex. P-11, asserting that he did not know why the police wrote them. He rejected the suggestion that he was testifying falsely in favour of the accused. 26. Tirath Bai (PW-4), who is cited as a last-seen witness, only stated that three persons had come to the house of Modlal (PW-7). She admitted, however, that she could not recognize or identify any of those persons, including the accused. 27. Punidas (PW-1), a witness to the panchnama, memorandum, and seizure, did not support the prosecution case and was declared hostile. He specifically stated that all his signatures were obtained at the police station on 19.03.2017 and that no article was seized in his presence. Similarly, Bhanwar Singh (PW-2), the brother of the deceased, also did 13 not support the prosecution and was declared hostile. 28. Having considered the entire evidence on record, this Court finds that the prosecution has failed to establish the chain of circumstances necessary to sustain the conviction of the appellants. The case rests primarily on (i) the alleged last-seen evidence of Modlal (PW-7) and Tirath Bai (PW-4), and (ii) certain recoveries said to have been made pursuant to the memorandum statements of the accused. Both categories of evidence suffer from serious legal and factual infirmities that strike at the very root of the prosecution case. 29. The prosecution principally relied on the testimony of PW-7 to assert that on the night of 15.03.2016, the accused persons had taken the deceased Mankunwar with them. However, his testimony does not inspire confidence for the following reasons: “(i) Delay and conduct inconsistent with natural human behaviour—Although PW-7 claims to have seen the accused taking the deceased away late at night and allegedly in an intoxicated condition, he neither lodged a report nor informed any neighbour or the police. His silence until his statement was recorded by the police casts serious doubt upon the truthfulness of his version. (ii) Lack of independent corroboration—Though several persons were present at the wedding and in the locality on that evening, not a single independent witness corroborates his version. (iii) Material omissions—PW-7 admitted several significant omissions in his police statement. These omissions relate to essential aspects of the 14 prosecution case, thereby creating further doubt. (iv) Possibility of exaggeration or afterthought—PW-7 admitted having cordial relations with the deceased’s family and that he had earlier lived on rent at their house. This background cannot be overlooked while assessing the credibility of his testimony.” 30. Similarly, PW-4 Tirath Bai, who is also cited as a last-seen witness, expressly admitted that she could not identify any of the persons who had visited the house of PW-7. Her statement merely indicates that “three persons” came to the premises. She is, therefore, not a last-seen witness in the legal sense, and her testimony does not advance the prosecution case in any manner. 31. PW-3 Devendra Kaushik also does not support the last-seen theory. He only states that PW-7 sought his help after a quarrel involving two or three persons. He neither saw the accused with the deceased nor confirms any fact connecting the accused with the deceased at or near the time of occurrence. He further denied several statements attributed to him during investigation. His evidence thus does not support the prosecution in any manner. 32. In these circumstances, the so-called last-seen evidence is uncertain, uncorroborated, and wholly insufficient to establish any proximity between the accused and the deceased near the time of death. The wide, unexplained time gap between the alleged last-seen moment (15.03.2016) and the recovery of the dead body fatally weakens the prosecution case. 33. It is well settled that last-seen evidence is a weak form of evidence 15 unless the time gap is so narrow as to rule out the possibility of interference by any other person (Bodh Raj v. State of J&K, (2002) 8 SCC 45; State of Goa v. Sanjay Thakran, (2007) 3 SCC 755). 34. The alleged recoveries of the motorcycles and the wooden stick under Exs. P-3, P-4 and P-6 do not establish any nexus between the appellants and the crime: “(i) PW-1, a key seizure witness, turned hostile. He stated that all signatures were obtained at the police station and no seizure was made in his presence. (ii) Absence of scientific linkage—No scientific or forensic evidence connects the seized stick or the motorcycles with the injuries sustained by the deceased. The FSL report also does not establish any conclusive link. (iii) Recovery insufficient by itself—A mere recovery of a wooden stick or a vehicle, without proof that they were used in the commission of the offence, cannot form an incriminating circumstance.” 35. Even assuming the recoveries to be proved, recovery by itself does not establish guilt unless it forms an integral link in a complete chain of circumstances pointing to the guilt of the accused alone. In the present case, the prosecution has failed to establish any such chain. 36. PW-1 and PW-2, who were cited for memorandum, seizure, and identification, did not support the prosecution and were declared hostile. Their hostility significantly weakens the prosecution version. 37. In a case based entirely on circumstantial evidence, each 16 circumstance must be firmly proved and must point unerringly towards the guilt of the accused. As held in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the chain must be complete and must exclude every hypothesis except that of the guilt of the accused. In the present case, the prosecution has failed to establish even the basic link connecting the accused with the deceased near the time of occurrence. The circumstances are neither consistent with guilt nor inconsistent with innocence. 38. In the absence of reliable last-seen evidence, in the absence of any independent witness, in the absence of any proved motive, and in view of the hostile nature of the material witnesses, the prosecution has clearly failed to discharge its burden. Suspicion, however strong, cannot take the place of legal proof. The appellants are therefore entitled to the benefit of doubt. 39. For all the foregoing reasons, the findings of the learned trial Court convicting the appellants under Section 302/34 and 201/34 of the IPC cannot be sustained. The prosecution has failed to prove the charges beyond reasonable doubt. 40. Accordingly, the appeals are allowed. The conviction and sentence of the appellants are hereby set aside. The impugned judgment of conviction and order of sentence dated 21.03.2017 are quashed. The appellants are acquitted of all charges. 41. The appellants are presently on bail. In view of their acquittal, they are not required to surrender. However, in compliance with Section 437-A 17 of the Cr.P.C. (now Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023), their bail bonds shall remain in force for a further period of six months. 42. The Registry is directed to forthwith transmit the entire record of the trial Court along with a certified copy of this judgment to the Court concerned for information and necessary compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Brijmohan