(Cr.A.No.1171/2018) 2025:CGHC:60514-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1171 of 2018 {Arising out of judgment dated 13-7-2018 in Sessions Trial No.50/2017 of the Sessions Judge, Surajpur, District Surajpur} Pavan Singh, aged about 26 years, S/o Amol Singh, R/o Village Pevri Koshampara, P.S. Ramanujnagar, District Surajpur, Chhattisgarh ... Appellant versus State of Chhattisgarh, through P.S. Ramanujnagar, District Surajpur, Chhattisgarh ... Respondent For Appellant : Mr. Shashi Bhushan Tiwari, Advocate. For Respondent : Mr. H.A.P.S. Bhatia, Panel Lawyer. Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sachin Singh Rajput, JJ. Judgment On Board (12/12/2025) Sanjay K. Agrawal, J. 1. The appellant herein has preferred this appeal under Section 374(2) of the CrPC questioning the impugned judgment of conviction and order of sentence dated 13-7-2018 passed by the Sessions Judge, Surajpur in Sessions Trial No.50/2017, by which he has been convicted under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay a fine of ₹ 500/-, in default of payment SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.12.15 14:45:31 +0530 (Cr.A.No.1171/2018) of fine to further undergo additional rigorous imprisonment for one month. 2. Case of the prosecution, in short, is that in between 5-4-2017 and 6- 4-2017 at 11 a.m., the appellant murdered Amritlal Agariya by throwing him into a pond and thereby committed the offence. Sitaram (PW-1) – father of the deceased, informed the matter to the police. Marg was registered vide Ex.P-1 and inquest was prepared vide Ex.P-8. Spot map was prepared by the Patwari vide Ex.P-15. The Investigating Officer also prepared spot map vide Ex.P-23 in shape of Crime Details Form. Dead body of the deceased was sent for autopsy to Community Health Centre, Ramanujnagar vide Ex.P-24 where Dr. S.B. Singh (PW-11) conducted autopsy vide Ex.P-12 and opined the cause of death to be asphyxia due to drowning in water and in order to ascertain the nature of death, he has collected left humerous bone and water for diatoms test which were sent to FSL, Raipur from where the report Ex.P-21 was received according to which the diatoms test report was found positive. The accused was arrested vide Ex.P-17 and his memorandum statement was recorded vide Ex.P-4 pursuant to which motorcycle was seized vide Ex.P-5. Statement of account of Amritkumar Agariya and Kawlu Singh were also seized vide Exs.P-10 & P-11. 3. Statements of witnesses were recorded under Section 161 of the CrPC and after usual investigation, the appellant was charge-sheeted for offence under Section 302 of the IPC and the case was committed to the Court of Session, Surajpur where the trial was conducted. Page 3 of 12 (Cr.A.No.1171/2018) 4. The prosecution, in order to prove the offence against the appellant, examined as many as 18 witnesses and brought on record 24 documents Exs.P-1 to P-24. The defence has neither examined any witness nor brought on record any document to support its case. 5. The trial Court after appreciating oral and documentary evidence on record, proceeded to convict the appellant for offence under Section 302 of the IPC, against which he has preferred this appeal. 6. Mr. Shashi Bhushan Tiwari, learned counsel appearing on behalf of the appellant, would submit that death of the deceased to be homicidal has not been established, theory of last seen has not been established and motive of the offence is also not established at all, therefore, the alleged false implication would have no consequence and as such, the appellant is entitled for acquittal. 7. Mr. H.A.P.S. Bhatia, learned Panel Lawyer appearing on behalf of the State/respondent, would support the impugned judgment and submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt. Therefore, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection. 9. Upon hearing learned counsel for the parties and after going through the record, following two questions arise for consideration: - (Cr.A.No.1171/2018) (1) Whether the prosecution has been able to prove the death of deceased Amritlal Agariya to be homicidal in nature? (2) Whether the appellant is the perpetrator of the crime in question? Answer to Question No.1 10. The appellant has been convicted by the trial Court for offence punishable under Section 302 of the IPC holding that death of deceased Amritlal Agariya was culpable homicide under Section 299 of the IPC which amounted to murder under Section 300 of the IPC and is punishable under Section 302 of the IPC. In order to hold an accused guilty of murder, the prosecution must firstly prove that it is a culpable homicide and accused will come under the mischief of Section 299 of the IPC only when the act done by him has caused death. 11. At this stage, it would be relevant to notice the definition of 'culpable homicide' which is provided under Section 299 of the IPC as under :- “299. Culpable homicide.–Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” 12. Homicide is the killing of a human being by a human being. It is either lawful or unlawful. Unlawful homicide includes culpable homicide not amounting to murder under Section 299 of the IPC and murder under Section 300. Halsbury classifies homicide as follows :- (Cr.A.No.1171/2018) “The term “homicide” is used to describe the killing of a human being by a human being. Such a killing may be lawful or it may be unlawful and criminal. Unlawful homicide includes murder, manslaughter, causing death by dangerous driving, killing in pursuance of a suicide pact, and infanticide.” 13. “Homicide”, as derived from latin, literally means the act of killing a human being. Under Section 299 of the IPC, homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either Section 302, or Section 304 of the IPC which consists of two parts. (See Chenda @ Chanda Ram v. State of Chhattisgarh1.) 14. In the matter of Reaz-ud-din Shaikh v. Emperor2, it has been explained by Shuarf-ud-din J, as under :- “… all murder is culpable homicide, but all culpable homicide is not murder ... subject to the five exceptions to section 300, Indian Penal Code, every act that falls within one or more of the four clauses of section 300, Indian Penal Code, is murder and also falls within the definition of culpable homicide in Section 299, Indian Penal Code. Every act that falls within any one or more of the sets of circumstances described in the five exceptions of that section, is by that fact taken out of section 300, Indian Penal Code but the act notwithstanding continues to be within section 299 and since it is not murder, it is culpable homicide not amounting to murder. Every act that falls within section 299 and does not fall within section 300, since it is not murder, is culpable homicide not amounting to murder.” 15. It is well settled law that in order to convict an accused under Section 302 of the IPC, the first and foremost aspect to be proved by the 1 2014 CrLJ 172 2 (1910) 11 CrLJ 295 : HS Gaur Penal Law of India, 10th Edn. Vol. 3, pp 2214-2235 (Cr.A.No.1171/2018) prosecution is the homicidal death and if the evidence on record produced by the prosecution falls short of the proof of homicidal death, the accused cannot be convicted under Section 302 of the IPC. (See Madho Singh v. State of Rajasthan3 and Chandrapal v. State of Chhattisgarh4.) 16. Similarly, in the matter of Shobhau alias Shubhau v. State of M.P.5, it has been held by the Madhya Pradesh High Court that to prove an offence of murder the death should be homicidal of which onus in a criminal trial is upon the prosecution. In the absence of legal proof of the death being homicidal, because of the serious lacuna of not obtaining the report of Anatomy Expert to prove homicidal death, the benefit will go to the accused and not to the prosecution, as this seals the fate of the prosecution and on this ground the accused cannot be held to legal criminality of the offence under Section 302 of the Indian Penal Code. (See The State Government of M.P. v. Ramkrishna Ganpat Rao6 and The State of Punjab v. Bhajan Singh7.) 17. The Supreme Court, in the matter of Rupinder Singh Sandhu v. State of Punjab and others8, has held that to find a man guilty of culpable homicide, the basic fact required to be established is that the accused caused the death. In the matter of M.B. Suresh v. 3 (2010) 15 SCC 588 4 2022 SCC Online SC 705 5 1998 CrLJ 3934 6 AIR 1954 SC 20 7 AIR 1975 SC 258 8 (2018) 16 SCC 475 (Cr.A.No.1171/2018) State of Karnataka9, it has been held that for holding an accused guilty of murder, the prosecution has first to prove that it is a culpable homicide. Culpable homicide is defined under Section 299 of the Indian Penal Code and an accused will come under the mischief of this section only when the act done by him has caused death. 18. In this case, as per the statement of Dr. S.B. Singh (PW-11), deceased Amritlal Agariya died on account of asphyxia due to drowning in water. Dr. S.B. Singh (PW-11) has further stated that in order to find out the nature of death, left humerous bone of the deceased was collected and it was subjected to diatom test at FSL, Raipur. Furthermore, in the cross-examination, it has been pointed out that no internal injury on the body of the deceased was found and on internal examination, in both the lungs, blood and water were found mixed. The trial Court instead of holding an inquiry to find out as to whether the death of the deceased was homicidal, has presumed in paragraph 20 of the judgment that since the depth of the water in the pond where the dead body of the deceased was found i.e. kudarinakha talab, was only 2-3 ft., the deceased was not likely to drown, therefore, some person must have sat over him and since he died in abnormal circumstances and he was also not intoxicated, it is presumed that he has been murdered by somebody by throwing him in the pond and as such, the death was homicidal. In our considered opinion, the prosecution has failed to establish that the death of the 9 (2014) 4 SCC 31 (Cr.A.No.1171/2018) deceased was homicidal in nature. In order to convict an accused under Section 302 of the IPC, the first and foremost aspect to be proved by the prosecution is the homicidal death which the prosecution has miserably failed as since the deceased died on account of drowning which may be homicidal or it can be accidental also. The prosecution has not been able to prove affirmatively that the death of the deceased was homicidal in nature and the trial Court has presumed that the death was homicidal in nature, however, the same could not be proved by leading clinching evidence. In that view of the matter, the finding of the trial Court that the death of the deceased was homicidal in nature, is hereby set aside. Answer to Question No.2 19. The second question is, whether the appellant was the perpetrator of the crime in question in respect of which the trial Court has held that the motive of the offence has been established and theory of last seen is also established by the evidence of Chanda (PW-9) & Pati Ram (PW-13) and that false explanation would be taken as one of the incriminating circumstances. Motive of the Offence 20.The trial Court has held that deceased Amritlal Agariya received ₹ 48,000/- under Pradhan Mantri Awas Yojana out of which ₹ 40,000/- has been taken by the appellant and demand draft was prepared to pay the installment of tractor, however, the appellant did not want to return back the money to the deceased and for that he (Cr.A.No.1171/2018) has murdered the deceased. The trial Court has found this fact established, but the evidence available on record is otherwise. 21. Jitendra Pratap Singh (PW-10), who is Branch Manager of Chhattisgarh Rajya Gramin Bank, Branch Ramanujnagar where deceased Amritlal Agariya was having bank account, has clearly stated in his statement before the Court that on 17-2-2017, ₹ 48,000/- was deposited by the Government under Pradhan Mantri Awas Yojana and ₹ 80/- was also added as interest on 28-2-2017. He has further stated that on 23-3-2017, ₹ 40,000/- was transferred from the account of Amritlal Agariya to the account of Kawlu Singh (PW-12) and on 30-3-2017, the deceased himself has withdrawn ₹ 6,000/- from his account and thus, after withdrawal on 30-3-2017, ₹ 3,823/- was the remaining balance amount left in the account of the deceased. The statement of account of deceased Amritlal Agariya is Ex.P-10 and the statement of account of Kawlu Singh (PW-12) is Ex.P-11. In his cross-examination, he has clearly admitted that at the request of Amritlal Agariya, the bank has transferred ₹ 40,000/- from his account in the account of Kawlu Singh for the purpose of purchasing some material for house construction which he has informed to the bank authorities on being asked. 22. As such, the story of the prosecution that the appellant has taken ₹ 40,000/- from the account of the deceased is not established and it is contrary to the record. In this regard, the statement of Kawlu Singh (PW-12) is worthy of taking note. He has stated in his statement before the Court that the appellant has informed him over telephone (Cr.A.No.1171/2018) that ₹ 40,000/- have been deposited in the appellant's account and thereafter, he has got prepared demand draft of ₹ 32,512/- in favour of Mahindra Company. This statement appears to be based on the evidence available on record. Therefore, the motive projected by the prosecution and found established by the trial Court is not at all established and the finding in this regard is perverse. We are not inclined to hold that motive of the offence is established. Last seen together 23. Now, the next piece of evidence is last seen together. The theory of last seen together has been found proved by the trial Court on the basis of the statements of Chanda (PW-9) & Pati Ram (PW-13). 24. The date of offence was in between 5-4-2017 and 6-4-2017, and dead body of the deceased was recovered on 6-4-2017 at 1.45 p.m., whereas according to Chanda (PW-9) (paragraph 3), he has seen the appellant and the deceased two days prior to the date of incident. He has been declared hostile. Since he has seen the appellant and the deceased together two days prior to the date of incident and he has also been declared hostile, his evidence is of no use to the prosecution. 25. The next witness of last seen together is Pati Ram (PW-13). He has seen the appellant and the deceased together on 5-4-2017 at 11 a.m. and the dead body was found on 6-4-2017 at 1.45 p.m. vide marg Ex.P-1 with a delay of 26 hours. As such, the appellant and the deceased were seen together alive on 5-4-2017 at 11 a.m., whereas the (Cr.A.No.1171/2018) dead body was recovered on 6-4-2017 at 1.45 p.m. which has a gap of more than 26 hours. Thus, there is considerable time gap between last seen together of the deceased and the appellant and recovery of dead body of the deceased, therefore, in absence of corroboration from other material particulars, the appellant cannot be convicted solely on the basis of evidence of last seen together and as such, it cannot be held that the appellant is the author of the crime in light of the decision of the Supreme Court in the matter of Navneethakrishnan v. State by Inspector of Police10 (paragraph 18), as nothing has been brought on record in shape of corroboration and similarly, false explanation, if any, would be of no consequence at all. In absence of proof of homicidal death, the appellant cannot be convicted merely on the basis of last seen together which is also not established. In that view of the matter, the appellant is entitled for acquittal on the basis of benefit of doubt. 26. Accordingly, we set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 13-7-2018. The appellant is acquitted of the charge under Section 302 of the IPC. He is on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. 27. The appeal stands allowed. 10 (2018) 16 SCC 161 (Cr.A.No.1171/2018) 28.Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge Soma