1 2025:CGHC:28987-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 359 of 2024 Mahesh Ram Manjhi S/o Mani Ram Manjhi Aged About 26 Years Resident Of Village- Narmadapur, Bihipara, P.S.-Kamleshwarpur, District-Sarguja, C.G. --- Appellant versus State of Chhattisgarh Through Police Station- Kamleshwarpur, Dist. Sarguja, C.G. --- Respondent CRA No. 506 of 2024 Srikumar Manjhi S/o Karlu Manjhi Aged About 25 Years R/o Village Narmadapur (Bihipara) P.S. Kamleshwarpur, District : Surguja (Ambikapur), Chhattisgarh --- Appellant Versus State of Chhattisgarh Through Station House Officer, P.S. Kamleshwarpur, District : Surguja (Ambikapur), Chhattisgarh --- Respondent ________________________________________________________ For Appellant in CRA 359/2024 : Mr. Sunil Tripathi, Advocate For Appellant in CRA 506/2024 : Mr. Barun Chakraborty, Advocate For Respondent/State : Mr. Sangharsh Pandey, G.A. ________________________________________________________ Hon'ble Mr. Ramesh Sinha, Chief Justice Hon’ble M r. Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha, Chief Justice 30.06.2025 1. Since both the above-captioned appeals arise out of a common factual matrix and common judgment, this Court is disposing of both these appeals by a common judgment. ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 2. Both these Criminal Appeals have been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) against the impugned judgment of conviction and order of sentence dated 17.01.2024 passed by the learned Second Additional Sessions Judge Ambikapur, District- Surguja (C.G.) in Sessions Trial No.56/2019, by which appellant – Srikumar Manji (CRA No. 506 of 2024) has been convicted under Section 302 and 201 of IPC and sentenced to undergo life imprisonment and to pay fine of Rs. 1,000/- and RI for 5 years and to pay fine of Rs. 1,000/-, in default of payment of fine, additional RI for two-two months for each sentences with a direction to run both the sentences concurrently, however, appellant – Mahesh Ram Manjhi (CRA No. 359 of 2024) has been convicted under Section 201 of IPC and sentenced to undergo RI for 5 years and to pay fine of Rs. 1,000/-, in default of payment of fine, additional RI for two months. 3. The prosecution case in brief is that Balmiki Manjhi used to do exorcism in the village. On the evening of 20.03.2019, accused Shrikumar Manjhi took Balmiki Manjhi with him on the pretext of exorcising his wife. But Balmiki Manjhi did not return home at night, then the next day his family members started searching for him but Balmiki Manjhi was not found. On 22.03.2019, it was found that the body of Balmiki Manjhi was found lying nearby the Besharam bush near Narmadapur Patranala. Then the family members of the deceased Balmiki Manjhi and other people of the village went there 3 and saw, then it was known that the body was that of Balmiki Manjhi, there were marks of injuries on his head, someone had killed him and hidden it in the Besharam bushes. On receiving the information of this incident, the police of Kamleshwarpur police station came to the place on 22.03.2019 where the body of deceased Balmiki Manjhi was lying. There they interrogated the son of the deceased Balmiki Manjhi, Bihari Ram Manjhi (PW-1) and recorded the rural notice Ex.P-1 and Ex.P-2. Inquest over the dead body was was prepared vide Ex.P-4 in front of the witnesses. At the same time, the site map Ex.P-6 was prepared there. On 22.03.2019 itself, a site map of the place and its surroundings was prepared by going to the house of accused Mahesh Kumar Manjhi vide Ex.P-5. The seizure sheet of the blood-soaked soil and plain soil near the place where Balmiki Manjhi was killed was prepared vide Ex.P-12. For conducting the post-mortem of the body of the deceased Balmiki Manjhi, his body was sent through constable Ramji Khalkho (PW 9) to Community Health Centre, Narmadapur, wherein Dr. Subhmit Dalal (PW-5) conducted post-mortem of that body vide Ex.P-10 and found following injuries :- (i) There was a contusion measuring 5x4 cm on the centre of forehead and middle part of the head due to which the skin colour had become black and brown. (ii) Deep hole in left temporal region measuring 2.5x2.5x4 cm. 4 (iii) On opening the left temporal region, clotted blood was present. The bones inside the left and right side of the forehead and inside the left and right ear and the bones in the middle of the skull were broken. (iv) The brain was torn apart. (v) Blood clot was present in the front and middle part of the brain. (vi) The abrasion mark on the right hand was 5x3 cm in size. (vii) The abrasion mark on the right knee of the deceased was of the size 3x3 cm. (viii) There was a 6x3 cm size abrasion mark on the left heel. (ix) There was no lump or mark on the neck. 4. According to the opinion of the doctor mode of death was coma due to grievous injury on frontal, parietal & temporal region of head leading to cardiopulmonary arrest and it was homicidal in nature. 5. In relation to that incident, on 22.03.2019 itself, intimation case number 6/2019 (Ex.P-22) was registered by going to the police station. On the same date, First Information Report (Ex.P-23) was registered against the accused/appellants under Sections 302, 201 & 34 of the IPC. 6. During the investigation on 23.03.2019, while questioning the accused Srikumar Manjhi about the incident in village Narmadapur 5 in front of witnesses, his memorandum statement Ex.P-7 was recorded as per his statement and on the basis of that memorandum statement, on the indication of accused Srikumar Manjhi, an iron pickaxe with a handle and an iron hammer with a handle were seized from the house of accused Mahesh Ram in village Narmadapur and in front of the same witnesses, his full sleeve shirt which had blood on it was seized when he has produced the same from his house and property seizure sheet Ex.P-8 was prepared in this regard. Statements of the witnesses were recorded under Section 161 Cr.P.C.. Accused Srikumar Manjhi, Mahesh Ram Manjhi, Nansai Manjhi and Ramprasad Manjhi were arrested for the offences under Section 302, 201, 34 IPC as per arrest sheet exhibits P-11, 12, 13 and 14 respectively. During investigation, the axe, hammer and shirt of accused Srikumar Manjhi were seized and sent to Primary Health Center Kamleshwarpur District Surguja by writing an application Ex.P-15A for testing and providing the report, from where after testing, the test report was provided as per Ex.P-15. A map of the place of incident was prepared by the concerned Patwari vide Ex.P-16. On 01.06.2019, when lungi of deceased Balmiki Manjhi from CHC Narmadapur was brought in sealed packet and presented in the police station, it was seized and property seizure sheet Ex.P-21 was prepared. The seized property in the case were sent for chemical testing to Regional Forensic Science Laboratory, Ambikapur through concerned Superintendent of Police vide Ex.P25 and receipt of the same was obtained vide Ex.P-26 and 6 FSL report was obtained vide C-1. After completion of other formalities of investigation, a charge sheet was presented against these accused in the Court of Judicial Magistrate First Class, Sitapur District Surguja under Section 302, 201, 34 IPC from where the case was committed to the Court of Sessions and ultimately, the Second Additional Sessions Judge Ambikapur, received the case on transfer for hearing and disposal in accordance with law. 7. Against accused Srikumar Manjhi, chargesheet was framed under Sections 302, 201 of IPC and against accused Mahesh Ram Manjhi, Nansai Manjhi, Ram Prasad Manjhi under Section 201 of IPC and when the chargesheet was read out to them, they denied having committed the offence and demanded trial. 8. When the accused were examined under Section 313 Cr. P.C., they stated that they were innocent and that they were falsely implicated out of malice. No witness was examined in their defence on behalf of the accused. 9. So as to prove the complicity of the accused/appellants in the crime in question, statements of Bihari Ram Manjhi (PW-1), Hiralal Manjhi (PW-2), Chandu (PW-3), Sukhanram (PW-4), Dr. Shubhmeet Dalal (PW-5), Patwari Gaurav Kumar Gupta (PW-6), Dharampal Manjhi (PW-7), Dinu (PW-8), Constable Ramji Khalkho (PW-9), Constable Devdatt Singh (PW-10), Inspector Sudhir Minj (PW-11), Inspector Yugal Kishore Nag (PW-12), Virendra Manjhi (PW-13), Ramratan 7 (PW-14), Kripal Manjhi (PW-15), Head Constable Sujeet Kumar Pal (PW-16), Constable Xavier Barwa (PW-17) have been recorded on behalf of the prosecution. Beside said ocular evidence, prosecution has also produced certain documents Exs. P-1 to P-26 and C-1 in support of their case. 10. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 17.01.2024, acquitted the accused Nansai Manjhi, Ram Prasad Manjhi, however, convicted and sentenced the accused/appellants in the manner mentioned in the opening paragraph of this judgment, against which these appeals under Section 374(2) of the CrPC have been preferred calling in question the impugned judgment. 11. Mr. Sunil Tripathi, learned counsel for appellant – Mahesh Ram Manjhi in CRA No. 359 of 2024 vehemently argued that the conviction of the appellant is totally erroneous and against the evidence presented in the case. He further submitted that the learned trial Court has convicted the present appellant only for the reason that the evidence of crime is found outside the house of the appellant. He also submitted that the FSL report submitted does not support the fact that the blood found in the seized weapon is of the deceased. He contended that neither the memorandum nor the seizure of the incriminating articles have been established before the trial Court. The prosecution has failed to establish the ingredients of the offence that is made 8 under Section 201 of IPC and also the prosecution has failed to establish that the recovery of the incriminating articles which reveals that the appellant has committed the offence of disappearance of evidence is of the above mentioned offence. He further contended that the prosecution has also failed to establish the chain of circumstances with regard to the commission of offence and the conviction of the appellant is based on conjecture and surmises because there is no eye witness and the entire allegation is made based on the hearsay evidence, the prosecution has not proved the case against the present appellant beyond all the reasonable doubt. Hence, the appellant is entitled for acquittal. 12. Mr. Barun Kumar Chakraborty, learned counsel for appellant – Srikumar Manjhi in CRA No. 506 of 2024 vehemently argued that the learned trial Court has not properly appreciated the facts and evidence available on record while passing the impugned order. He further argued that the prosecution has also failed to establish the chain of circumstances with regard to the commission of offence and the conviction of the appellant is based on conjecture and surmises because there is no eye witness and the entire allegation is made based on the hearsay evidence, the prosecution has not proved the case against the present appellant beyond all the reasonable doubt. There are material contradictions and omissions in the case diary statement and court deposition of prosecution witnesses, which cannot be 9 relied upon and the same cannot be made basis for conviction of the appellant. Hence, the appellant is entitled for acquittal. 13. On the other hand, learned State counsel supports the impugned judgment and submitted that the prosecution has proved its case beyond reasonable doubts by way of oral as well as documentary evidence and the chain of circumstances has already been completed. The deceased Balmiki Manjhi was lastly seen with the accused/appellant Srikumar Manjhi soon before his death and the recovery of incriminating articles at the instance of accused has been seized from the house of the co-accused Mahesh Ram Manjhi, therefore, looking to the seriousness of crime, the appellants are not at all entitled for any sympathy by this Court, and hence, both the appeals deserve to be dismissed. 14. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 15. Conviction of the accused Srikumar Manjhi is substantially based on the circumstantial evidence, recovery of an iron pickaxe with a handle and an iron hammer with a handle and full sleeve shirt containing blood on it and last seen theory as stated by Bihari Ram Manjhi (PW-1), Chandu (PW-3) and Virendra Manjhi (PW-13). 16. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased was homicidal in nature ? 10 17. The trial Court, relying upon the statement of Dr. Subhmit Dalal (PW-5), who has conducted postmortem over the body of deceased and given his report vide Ex.P-10, came to the conclusion that death of deceased Balmiki Manjhi was homicidal in nature. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellants. We hereby affirm the said finding. 18. The trial Court has further relied upon memorandum statement of accused Srikumar Manjji (Ex.P-7) and recovery of an iron pickaxe with a handle and an iron hammer with a handle at his instance from the house of co-accused Mahesh Ram Manjhi and recovery of full sleeve shirt containing blood on it at the instance of accused Srikumar Manjhi, which was seized from his house vide seizure memo Ex.P-8. Though in Article - D i.e. (Hammer with a handle), human blood was found, but as the test report of the same was inconclusive, hence the blood group result could not have been ascertained, whereas bloodstains found in Article - A (bloodstained soil), Article – C (iron pickaxe with a handle), Article – E (shirt of accused Srikumar Manjhi) and Article F – (Lungi worn by deceased) were disintegrated, hence, the result for human species was found to be negative. 19. At this stage, pertinent decision of the Supreme Court on this point in the matter of Balwan Singh v. State of Chhattisgarh 11 and another1 may be noticed herein, in which the Supreme Court has summarized the law on this point after taking into the decision of the Supreme Court (Constitution Bench) in the matter of Raghav Prapanna Tripathi v. State of U.P.2. In Raghav Prapanna Tripathi (supra), the Constitution Bench of the Supreme Court has held that in case the prosecution needed to prove that the bloodstains found on the earth or the weapons were of a human origin and were of the same blood group as that of the accused. 20. The aforesaid decision of the Supreme Court i.e. Raghav Prapanna Tripathi (supra) was followed in Balwan Singh (supra) in which it was observed as under:- “23. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match.” 21. Thereafter, the Supreme Court in Balwan Singh (supra) relying upon the fact that the prosecution has failed to prove that the blood was of human origin declined to rely upon the aspect of recovery of the weapons from the accused therein. It was observed as under:- 1 (2019) 7 SCC 781 2 AIR 1963 SC 74 12 “24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.” 22. Reverting to the facts of the present case as the prosecution has failed to prove that the blood found in Article - A (bloodstained soil), Article – C (iron pickaxe with a handle), Article – E (shirt of accused Srikumar Manjhi) and Article F - (Lungi worn by deceased) was of human blood. Moreover, in Article - D (Hammer with a handle), though human blood was found, but as the test report of the same was inconclusive, hence the blood group result could not have been ascertained. As such, these circumstances cannot be held to be found proved against the accused / appellant, whereas it has been taken as an adverse circumstance and incriminating evidence by the trial Court. 23. Now, the question for consideration would be whether the trial Court is justified in convicting the appellant Srikumar Manjhi only on the basis of theory of 'last seen together' finding it to be duly established ? 24. The trial Court has relied upon that the deceased was lastly seen along with accused - Srikumar Manjhi going to the house of co- accused Mahesh Ram Manji, which has been proved by Bihari 13 Ram Manjhi (PW-1), Hiralal Manjhi (PW-2) Chandu (PW-3) and Virendra Manjhi (PW-13). 25. Bihari Ram Manjhi (PW-1) has though stated in para 02 of his examination-in-chief that at around 6-7 pm in the evening, his father Balmiki Manjhi was called by accused Shrikumar Manjhi and taken to the house of accused Mahesh Kumar Manjhi and his father did not come home at night, but in para 9 of his cross- examination, he has specifically admitted that when Srikumar called his father and took him away, he was not at home and he further admitted that he did not see his father being called and taken away by the accused Srikumar Manjhi. 26. Hiralal Manjhi (PW-2), who is son of witness Bihari Ram Manjhi (PW-1), has specifically stated that his father Bihari Ram Manjhi (PW-1) and brother Chandu (PW-3) had told him that accused Srikumar called his grandfather Balmiki (deceased) and took him to Mahesh’s house, wherein they have killed him together. 27. Chandu (PW-3), who is son of witness Bihari Ram Manjhi (PW-1), though has stated in paragraph 2 of his examination-in-chief that on 20.03.2019 at 7-8 pm, Srikumar Manjhi called his grandfather Balmiki (deceased) to exorcise his wife, but in paragraph 5 of his cross-examination, he has admitted that his father Bihari had told him that Srikumar had taken his grandfather Balmiki to his house for exorcism. 28. After declaring the witness Birendra Manjhi (PW-13) as hostile witness, when leading questions were put him, though he has 14 stated that it is correct to say that his grandfather Balmiki Manjhi (deceased) was taken to his house by Srikumar Manjhi of the village to exorcise his wife, but his cross-examination, this witness has admitted that he do not know whether Srikumar Manji had called Balmiki and took him away or not. 29. The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 3 has clearly laid down the factors to be taken into account in adjudication of cases of circumstantial evidence, which states as under :- “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (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.” 30. In the matter of Arjun Marik v. State of Bihar4, it has been held by their Lordships of the Supreme Court have held that conviction cannot be made solely on the basis of theory of 'last seen together' and observed in paragraph 31 as under :- 3 (1984) 4 SCC 116 4 1994 Supp (2) SCC 372 15 “31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount tothough a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.” 31. Likewise in the matter of State of Goa v. Sanjay Thakran 5 the Supreme Court has held that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was observed in paragraph 34 as under :- “34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility 5 (2007) 3 SCC 755 16 of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. ” 32. Similarly in the matter of Kanhaiya L al v. State of Rajasthan 6 , their Lordships of the Supreme Court have clearly held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the appellant. It has been held in paragraphs 15 and 16 as under :- “15. The theory of last seen – the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may 6 (2014) 4 SCC 715 17 be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan7. 16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise.” 33. Finally in the matter of Anjan Kumar Sarma v. State of Assam 8 their Lordships of the Supreme Court have clearly held that in a case where other links have been satisfactorily made out and circumstances point to guilt of accused, circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction. 34. Reverting to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court particularly in the matter of Anjan Kumar Sarma (supra), it is quite established that the prosecution has failed to prove that accused Srikumar Manjhi and the deceased Balmiki Manji both were lastly seen together and no other connecting links have been satisfactorily made out and no other incriminating circumstance which leads to the 7 (2010) 15 SCC 588 8 (2017) 14 SCC 359 18 hypothesis of guilt against the appellant have been proved. As such, we are of the considered opinion that the trial Court is absolutely unjustified in convicting the appellant Srikumar Manjhi for offence under Section 302 & 201 of the IPC as it would be unsafe to rest conviction only on the theory of 'last seen together'. 35. So far as conviction of the accused/appellant Mahesh Ram Manjhi under Section 201 of IPC is concerned, as the last seen together of accused Srikumar Manjhi and the deceased Balmiki Manji has been duly proved by the prosecution, as such, we are of the considered opinion that the trial Court is absolutely unjustified in convicting the appellant Mahesh Ram Manjhi for offence under Section 201 of the IPC. 36. Accordingly, both the criminal appeals are allowed and the impugned judgment dated 17.01.2024 passed by the learned trial Court in ST No. 56/2019 is hereby quashed. 37. It is stated that accused/appellant Mahesh Ram Manjhi 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. 38. Appellant – Srikumar Manjhi is reported to be in jail. He be released forthwith if not required in any other case. 39. Keeping in view the provisions of section 437-A of Cr.P.C., appellant – Srikumar Manjhi is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of some of Rs. 25,000/- with one reliable 19 surety in the like amount before the 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 appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 40. The trial court records along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra