1 2025:CGHC:59723-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 649 of 2016 Narendra Kumar Sharma S/o Late Banju Prasad Sharma Aged About 36 Years, Occupation Labour, R/o Village Semariya, Thana – Nandghat, Distt. Bemetara, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Police Station Nandghat, Distt. Bemetara, Chhattisgarh. ... Respondent For Appellant : Mr. Ravindra Sharma, Advocate For Respondent : Mr. H. A. P. S. Bhatia, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (09.12.2025) Sanjay K. Agrawal, J. 1. The sole appellant herein (co-accused Komal Verma & Ashwani Prasad Verma have been acquitted by the trial Court) has preferred this criminal appeal under Section 374(2) of Cr.P.C. questioning the legality, validity and BHOLA NATH KHATAI Digitally signed by BHOLA NATH KHATAI Date: 2025.12.11 10:52:39 +0530 2 correctness of the judgment of conviction and order of sentence dated 23.04.2016, passed by learned Sessions Judge, Bemetara, District Bemetara, Chhattisgarh, in Sessions Trial No.55/2014, whereby the appellant has been convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment with fine of 1,000/- and in default of ₹ payment of fine, to suffer six months additional rigorous imprisonment. 2. The case of prosecution, in short, is that between 3:30 p.m. on 16.03.2014 and 4:45 on 17.03.2014, near Pandey Tank on Mungeli-Nandgahat main road, village Kura, PS Nandghat, the appellant along with two acquitted accused, in furtherance of their common intention, committed murder of Dashrath Nishad (now deceased), thereby the offence has been committed. The matter was reported to the Police Station, Nandghat, whereupon SHO J. R. Sahare (PW-20) reached the spot and recorded Dehati Merg Intimation vide Ex.P-1 on the basis of information given by Beduram and FIR was registered vide Ex.P-32. Inquest was conducted vide Ex. P-4 and the dead body of the deceased was subjected to postmortem which was conducted by Dr. P. A. Chandan (PW-21), who proved the post-mortem report (Ex.P-33), according to which, cause of death was Hypovolemic shock due to crush injury on chest wall as well as head and death was homicidal in nature. Pursuant to the memorandum statement of appellant (Ex.P-20), one Hero Honda Passion Pro motorcycle and the blood stained clothes of appellant were seized vide Ex.P-10. The seized articles were sent for chemical examination to FSL and as per the FSL report Ex. P-42, blood was found on Articles – J & K (the shirt and full pant of appellant) and human blood was found on Article – 3 ‘H’ (dust/soil collected from the motorcycle). After completion of investigation, the appellant and two acquitted co-accused were charge - sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. 3. During the course of trial, the prosecution, in order to prove its case examined as many as 22 witnesses and exhibited 42 documents. The statements of the accused persons were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, the appellant- accused in support of his defence has not examined any witness but exhibited one document Ex.D-1. 4. Learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellant for the offence as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence. However, the trial Court, vide the impugned judgment, has acquitted co-accused Komal Verma & Ashwani Prasad Verma, of the charges levelled against them. 5. Mr. Ravindra Sharma, learned counsel for appellant, would submit that the trial Court has convicted the appellant only on the basis of the incriminating circumstances culled out in paragraph-17 of the impugned judgment, however, the said incriminating circumstances are not established at all. He would further submit that the prosecution has not been able to bring home the offence beyond reasonable doubt and the 4 appellant is entitled for acquittal on the basis of benefit of doubt. 6. Per contra, Mr. H. A. P. S. Bhatia, learned State Counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt, more particularly, the incriminating circumstances including the theory of last seen together have been fully established and therefore the trial Court has rightly convicted the appellant for the said offence, as such, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first & foremost question for consideration is whether the death of deceased Dashrath Nishad was homicidal in nature, which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex. P-33) proved by Dr. P. A. Chandan (PW-21), which in our considered opinion is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding. 9. The trial Court, in paragraph-17 of its judgment, has found 7 incriminating circumstances proved against the appellant which are as follows: 1. अभियु्ሹ नरे न््ቖ कु मारे शमा कु अभिमा बारे माकु दशरेथ भिनषाद कु साथ द खा जान । 2. माकु कु पुቔኍ कु . गंगंबाई कु ቛኋरे अभियु्ሹ नरे न््ቖ कु कुपुቬሾ& मा' घटन भिदनकु कु* खा+न जा,सा दगं द खा जान । 5 3. अभियु्ሹ नरे न््ቖ शमा कु ቛኋरे माकु दशरेथ भिनषाद कु साबाध मा' माकु दशरेथ भिनषाद कु पुरिरेवारे वाोሴ& कु* उभि2 जानकुरे न भिदयु जान । 4. अभियु*जान साቌኍ दद+रेमा कु ቛኋरे अभियु्ሹ नरे न््ቖ कु मारे शमा कु* मा*टरे सायुकुोሴ साभि4 माकु दशरेथ कु शवा कु सामा पु द खा जान । 5. घटन स्थोሴ सा अभियु्ሹ नरे न््ቖ कु घቬሾ औरे 2प्पुोሴ कु जा቎ኍ । 6. अभियु्ሹगंण सा ोሴ गंई मा मा*रे ण्डमा औरे उनकु भिनशनद 4 पुरे कु गंई जा቎ኍ कु कुयुवा4 । 7. रेज्यु न्युयुोሴभियुकु भिवाधिध भिवाሺኋन ्ቚयु*गंशोሴ सा ्ቚ቎ኍ एफ.एसा.एोሴ. रिरेपु*ट । 10. The case of prosecution is not based on direct evidence. 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 Maharashtra1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads 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 be proved” as was held by this Court in Shivaji Sahabrao 1 (1984) 4 SCC 116 6 Bobade v. State of Maharashtra2 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.” 11. Now, we consider the correctness of the aforesaid circumstances recorded by the trial Court one by one in the light of the principles of law laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra). 12. As far as the first circumstance of the theory of ‘last seen together’ is concerned, the trial Court has found it proved by relying on the statements of deceased’s wife Kunti Bai Nishad (PW-1), mother Piariya Bai Nishad (PW-2) and daughter Kumari Ganga Nishad (PW-5). The wife of the 2 (1973) 2 SCC 793 7 deceased (PW-1) has categorically stated before the Court that on the day of Holi festival, 16.03.2014, at about 3:00 p.m., while she was serving tea to a guest named Suresh from Chandergarhi, the appellant came there and suggested they go to Suresh’s house. Her husband (deceased) and mother-in-law (PW-2) refused, citing the Teej festival and family obligations. When the appellant insisted, her husband left with him, despite the fact that Narendra was drunk while her husband was sober. Later, in the evening, the appellant returned to the village alone but her husband was not with him. Her daughter Ganga Bai (PW-5) told her that the appellant had returned without the deceased. When PW- 1 asked the appellant about her husband's whereabouts, he explained that they had been in Kura village, where they sat at Narendra Das’s house, which is in Kura. He further stated that a motorcyclist had come and her husband left with the motorcyclist, saying he would return later but, her husband never came back. When they asked Suresh whether the deceased had arrived there or not, he confirmed that her husband had not come there. The next day, Police reported that her husband’s body was found near a pond in Kura. Nothing has been extracted from the cross-examination of PW-1 to hold that the appellant had not taken her husband along with him. 13. The mother of the deceased, Piariya Bai Nishad (PW-2), has stated that on the day of Holi festival, at about 3:00 p.m, the appellant took her son (deceased) with him and committed his murder. The appellant returned to village Semariya at about 5:00 p.m. but her son was not with him. She along with PW-1 & PW-5 went to the house of appellant and on being asked by PW-1, the appellant repeated that they were sitting at the house of Dayal Das of village Kura, from where 8 a motorcyclist was going towards Nandghat and the deceased left with him. When they enquired with Suresh of Chandargarhi over the phone, he told that the deceased had not come there. Nothing has been extracted from her cross- examination to hold that the appellant had not taken the deceased with him. 14. Next witness is the daughter of the deceased, Kumari Ganga Nishad (PW-5) who has stated that on the day of Holi festival, Suresh Chacha of Chandergarhi along with his family first left her house. Thereafter, her father and the appellant set off for Chandergarhi on the Sarpanch’s motorcycle. The appellant returned to the village at about 5 p.m., but her father did not come with him. While she was in the courtyard, she asked the appellant where her father was; he replied that her father had left Kura village on a motorcycle with another man. PW-5 has stated that the appellant was drunk at that time and had blood on his right hand. When she asked how the blood got on his hand, the appellant replied that it was not a blood stain, it was a stain of paint/colour. She then told her mother (PW-1) and grandmother (PW-2) that the appellant had returned alone with blood on his hand and was not giving a proper answer. Her mother and grandmother went to appellant’s house and asked where the deceased was. The appellant swore by God and said, “I am telling the truth, that the deceased got off at Kura village and left with someone.” 15. From the statements of PW-1, PW-2 & PW-5 i.e. the wife, mother and daughter of the deceased respectively, it is clear that on 16.03.2014 at about 3:30 p.m., the appellant took the deceased with him to village Chandergarhi on the Sarpanch’s motorcycle to celebrate the festival and at about 9 5 p.m. he returned to the village without the deceased, riding Sarpanch’s motorcycle which was in a scratched condition and the appellant had blood stains on his hand. From the testimony of PW-1, PW-2 & PW-5, it is clearly established that the appellant took the deceased with him and thereafter, the dead body of the deceased was found. It was incumbent upon the appellant to clearly explain in his statement recorded under Section 313 of the CrPC as to what happened to the deceased after he had taken him along, and where he went. However, no such explanation has been provided by the appellant in his 313 CrPC statement which he was required to explain, except answering the questions in negative. As such, the theory of last seen together is established beyond doubt which the trial Court has rightly held to be proved. 16. As regards other circumstances, Santkumar Dahariya (PW- 11), the Sarpanch of the village, has proved that the appellant had taken his motorcycle Hero Hond Passion Pro and later, when the police came and checked the vehicle, it was found damaged/scratched. 17. Pursuant to memorandum statement of appellant (Ex. P-20), his shirt and full pant were seized vide Ex.P-10 and according to the FSL report Ex.P-42, blood was found on them. Furthermore, the dust/soil collected from the seized motorcycle of the Sarpanch was also sent to FSL and as per the FSL report Ex.P-42, human blood was found on it (Article-H). 18. Although Daduram Dhritlahre (PW-22) has been declared hostile, he has clearly stated in his cross examination that the appellant had asked him to pull the motorcycle out of the ditch but he did not push the motorcycle. He has stated 10 that he had seen a dead body lying near a tree there. When he asked the appellant whose body it was, the appellant started the motorcycle and fled. 19. As such, the theory of ‘last seen together’ has been established from the testimony of PW-1, PW-2 & PW-5. Pursuant to the memorandum statement of the appellant, his clothes were seized and as per the FSL report Ex.P-42, blood was found on them and human blood was found in the dust/soil collected from the seized motorcycle. The motorcycle was found to be damaged/scratched belonged to the village Sarpanch. PW-22 had seen the appellant along with the motorcycle and the dead body was also lying there. The appellant has failed to explain in his 313 CrPC statement as to what happened to the deceased after he had taken him along, which he was required to explain in order to prove that he was not guilty of the offence. 20. In view of the aforesaid discussion, we find that as per the principle of ‘Panchsheel’ laid down by the Hon’ble Supreme Court in the case of Sharad Birhichand Sarda (supra), the chain of circumstances is clearly complete in which the prosecution has been able to prove the appellant guilty of the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. In that view of the matter, we do not find any merit in this appeal. 21. Accordingly, this criminal appeal stands dismissed. 22. The appellant is on bail. His bail bonds stand forfeited. He is directed to surrender forthwith before the trial Court to serve out remaining sentence. 11 23. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Khatai