1 2025:CGHC:58845-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1755 of 2019 1 - Kamlesh Mali @ Mundul S/o Resham Marar, Aged About 28 Years, R/o Village- Tilaimuda, Police Station- Sarangarh, District- Raigarh, Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Sarangarh, District- Raigarh, Chhattisgarh ... Respondent For Appellant : Mr. Vipin Singh, Advocate For Respondent/State : Mr. Pankaj Singh, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (04.12.2025) Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of Cr.P.C. has been preferred calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 13.05.2019, passed by learned Additional BHOLA NATH KHATAI Digitally signed by BHOLA NATH KHATAI Date: 2025.12.05 18:10:50 +0530 2 Sessions Judge, Sarangarh, District Raigarh (C.G.) in Sessions Trial No.06/2018, whereby the appellant herein 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 on 02.03.2018 at about 7:00 a.m., in village Tilaimuda, Police Station – Sarangarh, District Raigarh, the appellant herein assaulted Munchu Nishad (now deceased) by bamboo stick, due to which he suffered grievous injuries and died. The matter was reported to the Police by Jaganathiya Nishad (PW-4), pursuant to which, Merg Intimation was recorded vide Ex.P- 9 and FIR was registered vide Ex.P-4. Inquest was conducted vide Ex.P-10 and dead body of the deceased was subjected to post-mortem, which was conducted by Dr. Sunil Kumar Patel (PW-11), who proved the post-mortem report Ex. P-15, according to which, cause of death was hemorrhagic shock due to head injury and death was homicidal in nature. Pursuant to memorandum statement of appellant (Ex. P-6), a bamboo stick was seized vide Ex. P-7 which was sent for chemical examination to FSL along with other seized articles. As per FSL report Ex. P-21, blood was found on the said stick. After due investigation, appellant was charge- sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law. 3. During the course of trial, in order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 21 documents. The appellant-accused in support of his defence has neither examined any witness nor 3 exhibited any document. The statement of appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellant herein as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred by the appellant questioning the legality, validity and correctness of the impugned judgment. 5. Mr. Vipin Singh, learned counsel for appellant would submit that there is no direct evidence against the appellant and the appellant has been convicted solely on the basis that blood was found on the stick seized pursuant to the memorandum statement of appellant. He would further submit that the prosecution has not been able to bring home the offence beyond reasonable doubt, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. 6. Mr. Pankaj Singh, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. 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 gone through the records with utmost circumspection. 8. The case of prosecution is not based on any direct evidence. As per the prosecution case, the direct evidence is the 4 mother of appellant, Padma Marar, but she has neither been cited as an eye witness nor has she been examined, for the reason best known to the prosecution. The case of prosecution is based solely on one incriminating circumstance that blood was found on the stick which was seized vide Ex.P-7 pursuant to the memorandum statement of the appellant (Ex.P-6). No other incriminating circumstance has been found. 9. However, it is well settled principle of law that discovery of object at the disclosure of accused alone would not automatically lead to the conclusion that the offence was also committed by the accused and the burden lies on the prosecution to establish a close link between discovery of object and its use in the commission of offence. In this regard, the Hon’ble Supreme Court in the matter of Mustkeem alias Sirajudeen v. State of Rajasthan1, in paragraph - 25 observed 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 objects 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. 10. Reverting to the facts of the present case, in light of the aforesaid principle of law laid down by their Lordships of the Supreme Court, it is clear that the recovery of stick pursuant to the memorandum statement of the appellant has been proved. But, there is no evidence on record to hold 1 (2011) 11 SCC 724 5 that the said stick was used by the appellant in commission of the offence. Mere recovery of stick pursuant to the memorandum statement of the appellant cannot lead to the conclusion that the appellant has committed the said offence. Even otherwise, as per the principle of law laid down in the case of Mustkeem (supra), which has been followed in the matter of Raja Naykar v. State of Chhattisgarh2, the finding of blood stain on the seized article is one of the circumstances, on the sole basis of which, the accused cannot be convicted for the offence under Section 302 of IPC. 11. In that view of the matter, we are unable to sustain the conviction of the appellant for the aforesaid offence. Accordingly, the impugned judgment convicting and sentencing the appellant for offence under Section 302 of IPC is hereby set aside/quashed on the basis of benefit of doubt and the appellant is acquitted of the said charge. The appellant is on bail. He need not surrender in this case. However, his bail bond shall remain in force for a period of six months in view of the provisions contained in Section 437A of the CrPC. 12. This criminal appeal, accordingly, stands allowed. 13. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any. S Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Khatai Judge Judge 2 (2024) SCC Online SC 67