1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 565 of 2015 Judgment Reserved on 28.10.2025 Judgment Delivered on 18.11.2025 1 - Bhagwat Prasad @ Bhagwan Singh Kanwar S/o Late Ram Singh Kanwar Aged About 35 Years R/o Masan, Thana Urga, District Korba, Chhattisgarh, Chhattisgarh ... Appellant versus 1 - The State Of Chhattisgarh S/o Through Police Station Urga, District Korba, Chhattisgarh, Chhattisgarh ... Respondent For Appellant : Mr. Parag Kotecha, Advocate For Respondent : Mr. Vivek Mishra, P.L. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. CAV Judgment Per, Amitendra Kishore Prasad, J. 1. This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 29.04.2015 passed in Sessions Trial No.92/2014 by the Second Additional 2 Sessions Judge, District Korba, C.G. by which the appellant stands convicted & sentenced as under:- Conviction Sentence Under Section 302 of Indian Penal Code (for short, ‘IPC’) Imprisonment for life and fine of Rs.1,000/-, in default of payment of fine amount to undergo additional rigorous imprisonment for six months 2. Case of the prosecution, in brief, is that on 29.06.2014 at about 6:30 PM, accused Bhagwat Prasad and his elder brother Shivnath (hereinafter called as ‘deceased’) had a dispute over ploughing their agricultural field situated at Limbhatha Khar, Village Masan. During the altercation, the accused/appellant allegedly broke a branch of a Parsa tree and assaulted deceased- Shivnath on his head, face and left temple, due to which, deceased fell down and started bleeding. The incident was allegedly witnessed by Sitaram Kanwar (PW-2), the tractor driver and some nearby villagers. After that, deceased- Shivnath was taken to the District Hospital, Korba, where he was declared dead. On the report lodged by the accused/appellant himself, FIR (Ex.P-19) was registered at Police Station Urga against the appellant. Thereafter, merg intimation vide Ex.P-18 was recorded and inquest proceedings were conducted vide Ex.P-4. Dead body of deceased- Shivnath was sent for postmortem examination 3 which was conducted by PW-9 Dr. P.P. Singh, who have proved the postmortem report Ex.P-1. According to PW-9 Dr. P. P. Singh, the cause of death of the deceased, Shivnath, was haemorrhagic shock due to excessive bleeding following trauma to the abdominal organs. During investigation, appellant was arrested vide Ex.P-23. Memorandum statement of the appellant was recorded vide Ex.P-9, but no seizure was made from him. From the spot, plain and blood stained soil & branches of parsa tree were seized vide Exs.P-10 & P-11. Vide Ex.P-25 clothes of deceased were seized. However, the seized articles were not sent to FSL for chemical examination. 3. After due investigation, appellant was 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 appellant abjured the guilt and entered into defence by stating that he has not committed the offence. 4. The prosecution in order to bring home the offence, examined as many as 11 witnesses in support of its case and exhibited 24 documents Exs.P-1 to P-21 as well as Article A-1 to A-6. However, the appellant in support of his defence has examined none and not exhibited any document. 5. The trial Court, after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant as mentioned in the 4 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 appellant would submit that the learned trial Court is absolutely unjustified in convicting and sentencing the appellants for the aforesaid offences as the prosecution has failed to prove the offences beyond reasonable doubt. He would further submit that there is no cogent and clinching evidence available on record to connect the appellant with the crime in question. He would also submit that PW-2 Sitaram Kanwar, projected as the eye-witness, has not supported the prosecution case and that PW-7 Chandraprakash, the tractor driver and another important witness, has turned also completely hostile. He has not supported any part of the prosecution version relating to the assault. He would also submit that the so-called branch of the Parsa tree allegedly used for assault was never recovered. No incriminating article was found from the appellant. He would also submit that no FSL report has been brought on record. There is nothing to connect the appellant with the injuries sustained by the deceased. He would further contend that PW-5 Sumitra Bai, mother of the deceased, clearly stated that there was no enmity between the appellant and the deceased and their relations were cordial. Thus, even motive is not established. In the absence of any direct evidence, recovery, motive, or scientific corroboration, the prosecution case is based solely on conjectures and suspicion, which cannot take the place of proof. As such, the 5 impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the said charges. 7. Learned counsel for the State would support the impugned judgment and submit that the prosecution has brought home the offence against the appellant and has proved the case beyond reasonable doubt and thus, the appellant has rightly been convicted and sentenced for the aforesaid offence. 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 would be whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem reports (Ex.P-1) proved by PW-9 Dr. P.P. Singh, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 10. Now, the question would be whether the appellant is the author of the crime in question? 11. PW-2 Sitaram Kanwar, who has been projected by the prosecution as an eyewitness to the incident, has not supported the prosecution case on material particulars. In his cross- examination, he admitted that the place of occurrence was an 6 agricultural field with no lighting arrangements and that it was dark in the evening, making visibility poor. He further admitted that the area had dense bushes and large farm embankments, due to which nothing could be seen from a distance. He also stated that he was standing on the road when he merely heard a voice from the field asking who was there, and only after recognizing the voice of Chandra (PW-7), he moved towards the spot. He categorically admitted that when he reached the place of occurrence, he saw the deceased- Shivnath, lying unconscious, and by that time, even Bablu (PW-8) had already reached there. All three of them only attempted to give water to the injured. Thus, by his own admission, he did not witness any assault by the appellant. The witness further admitted that the deceased, Shivnath, was the village Secretary, a habitual drinker, and that he used to quarrel with people under the influence of alcohol. He also admitted that Shivnath had disputes with many persons due to his drinking habits. These admissions clearly show that PW-2 Sitaram Kanwar is not an eye-witness to the incident and his testimony does not support the prosecution version of the assault. On the contrary, his evidence creates serious doubt about the prosecution story and fails to connect the accused with the alleged offence. 12. In addition to this, PW-7 Chandraprakash and PW-8 Panchoram @ Bablu, who were allegedly present with the accused/appellant at the time of the incident, have also turned 7 hostile and not supported the prosecution case. Their hostility further weakens the evidentiary foundation of the prosecution’s version. 13. Accordingly, when PW-2 Sitaram Kanwar, PW-7 Chandra Prakash and PW-8 Panchoram @ Bablu have not supported the prosecution case and in the absence of any reliable eyewitness account, the prosecution version appears doubtful and stands uncorroborated by credible evidence. 14. PW-5 Smt. Sumitra Bai, the mother of the deceased, also stated that there was no enmity between the appellant and the deceased and that their relations were cordial. This statement rules out the possibility of any motive, thereby further weakening the prosecution’s case. 15. Thus, from the above evidence, it is quite clear that the prosecution has failed to prove its case beyond reasonable doubt. The main witnesses, PW-2, PW-7, and PW-8, did not support the prosecution, and there is no reliable eyewitness to the incident. PW-5, the mother of the deceased, also stated that there was no enmity between the appellant and the deceased. In the absence of motive and credible evidence, the prosecution story appears doubtful. Moreover, no seizure has been made from the appellant, and the alleged branch of the Parsa tree, said to be the weapon of offence, has not been recovered from his possession. The failure to recover the alleged weapon creates a 8 significant gap in the prosecution case. In addition, no FSL report has been placed on record. The absence of forensic corroboration, coupled with the lack of recovery, further weakens the evidentiary foundation of the prosecution case. 16. The Hon’ble Supreme Court in the matter of Raja Khan (Supra) has held as under:- “21He stated that the prosecution had failed to establish motive on the part of the appellant-accused to commit the offence as there was no evidence or record to show the amount of money that the appellant- accused had borrowed from the deceased. According to him, the prosecution had failed to produce any other evidence to prove the inimical relationship between the deceased and the appellant-accused except the testimony of PW 2, who vaguely deposed before the trial court that the deceased had many enemies, but did not mention the name of the appellant-accused as one of them and the testimony of PW 15 pertaining to earlier scuffle of the deceased with the appellant-accused was not reliable as she failed to state the same to police in her statement (Ext. D/2). Arguments on behalf of the respondent State 22. Per contra, Mr Prafful Bharat, learned Senior Counsel appearing on behalf of the respondent State stated that the recovery 9 of the stone which was used for commission of crime had been made at the instance of the appellant-accused. According to the disclosure statement (Ext. P-23) of the appellant-accused, the stone was thrown by him in the Kachna pond and PW 22, who is the witness to the memorandum, statement and seizure memo (Ext. P-25), had duly supported the same. As per the FSL Report (Ext. P-39), human blood was found on the seized stone. 23. He further stated that on the basis of the disclosure statement of the appellant- accused, two gold chains belonging to the deceased were also seized at the instance of the appellant-accused from the roof of the house of the appellant-accused, which had been duly proved by PW 22. Additionally, he pointed out that the seized gold chains were identified by PW 2 vide memo of identification (Ext. P-10) which had been duly proved by Gopi Sahu (PW6). 30. The essential ingredients of Section 27 of the Evidence Act are threefold: (1) 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. 10 (iii) The discovery of the facts must relate to the commission of such offence. 31. The question as to whether evidence relating to recovery is sufficient to fasten guilt on the accused was considered by this Court in Bodhraj v. State of J&K, wherein it has been held as under: (SCC pp. 58-59, para 18) "18. ... Section 27 of the Indian Evidence Act, 1872 (in short "the Evidence Act") is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in State (UT of Delhi) v. Bal Krishan and Mohd. Inayatullah v. State of Maharashtra². The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the Information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an 11 object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. 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 accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible 12 under Section 27 is the one which is the information leading to discovery. 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. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. The decision of the Privy Council in Pulukuri Kotayya v. King-Emperor is the most-quoted authority of supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object 13 was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu².] No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. 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." (emphasis supplied) 38. This Court in Varun Chaudhary v. State of Rajasthan and Mustkeem v. State of Rajasthan, has held that if the recovery memos have been prepared in the police station itself or signed by the panch witnesses in the police station, the same would lose their sanctity and cannot be relied upon by the Court to support the conviction. 41. This Court is of the view that the courts below were not justified in disregarding the glaring inconsistencies with respect to the recoveries made by the police pursuant to the alleged disclosure made by the 14 appellant-accused. Consequently, the manner of recovery and preparation of seizure memos raises grave doubts about the version of disclosure and recovery put forth by the prosecution. 43. Keeping in view the aforesaid, this Court is of the opinion that the prosecution has failed to prove the chain of circumstances leading to the guilt of the accused, beyond reasonable doubt.” 17. The Hon'ble Supreme Court in the matter of Nandu Singh vs. State of Madhya Pradesh (Now Chhattisgarh) reported in (2022) 19 SCC 301 has held in para 9 which reads as under:- “9.In a case based on substantial evidence, motive assumes great significance. It is not as if motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused.” 18. It is a settled principle of criminal jurisprudence that the prosecution must establish the chain of circumstances with cogent and reliable evidence, particularly in cases based on circumstantial evidence. 15 19. It is a settled principle of criminal law that suspicion, howsoever grave it may be, cannot substitute for proof. The entire case of the prosecution is based on weak circumstantial evidence, and the chain of circumstances necessary to bring home the guilt of the accused has not been established. 20. It is a well settled principle of criminal jurisprudence that the prosecution must establish the chain of circumstances with cogent and reliable evidence, particularly in cases based on circumstantial evidence. 21. 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." 1 (1984) 4 SCC 116 16 (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.” 22. In the present case, in view of the key witnesses turning hostile, the failure to recover the alleged weapon, the absence of any enmity between the appellant and the deceased, and the non- availability of any forensic evidence on record, and further the laws laid down by the Hon’ble Supreme Court, the prosecution has manifestly failed to establish its case beyond reasonable doubt. It is a well-settled principle of criminal law that suspicion, however grave, cannot take the place of proof. The entire prosecution case is founded on weak circumstantial evidence, and the chain of circumstances necessary to establish the guilt of the accused has not been satisfactorily proved. In these circumstances, the appellant is entitled to the benefit of doubt and deserves to be acquitted of the charge leveled against him. 17 23. Accordingly, the appeal is allowed and the judgment of conviction and order of sentence passed by the trial Court is hereby set- aside. The appellant is acquitted of the charge under Section 302 of IPC on the basis of benefit of doubt. 24. 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. 25. Registry is directed to transmit the lower 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