1 2025:CGHC:1648-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 299 of 2021 Rajesh Sahu S/o Santosh Sahu Aged About 21 Years R/o Village Dhardeai, Police Station Pathariya, District Mungeli Chhattisgarh ...Appellant versus State Of Chhattisgarh Through Police Station Pathariya, District Mungeli Chhattisgarh ... Respondent For Appellant : Mr.J.A.Lohani and Mr.B.M.Roy, Advocates For Respondent(s) : Mr.Swajit Obeja, Panel Lawyer Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, CJ 10/01/2025 1. This criminal appeal arises out of the judgment of conviction and order of sentence dated 27.02.2021 passed by the Special Judge (POCSO Act), Mungeli, District Mungeli in Special Sessions Case No.12/2018, whereby the appellant has been convicted and sentenced in the following manner : BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.01.14 14:54:54 +0530 2 Sl. No. Conviction Sentence 1. Under Section 302 of the Indian Penal Code RI for life and fine of Rs.5000/-, in default of payment of fine to further undergo RI for three months. 2. Under Section 6 of the Protection of Children from Sexual Offences Act, 2012 RI for life and fine of Rs.5000/-, in default of payment of fine to further undergo RI for three months. 2. The prosecution story, in brief, is that on 14.01.2018 at 6 P.M. the entire family of complainant Sanat Kumar Bargah had gone to listen to Navdha Ramayan being held in the village and between 7:00 to 7:30 P.M., a procession of water left from the place of Navdha Ramayan towards Dhardei pond in which his niece/prosecutrix, his elder sister Priyanka, Chanchal and Poonam all of them had gone in Jalyatra together, there his niece/prosecutrix told her elder sister Priyanka that she was going to fresh and left the place. After that, when all the family members gathered at home at 9:00 P.M., his niece / prosecutrix had not returned home. Then all the family members searched for her in the village and the neighbourhood but could not find her anywhere. During search, they got information that the boy named Rajesh Sahu was also not present in the village. After some time, the complainant and Pradeep, Ashok, Vishram went to the house of accused Rajesh Sahu where they asked him and he gave vague answers. Rajesh Sahu also had small pieces of paravat stuck on his head. When they got suspicious, they started looking for 3 his niece/prosecutrix in all barn (kothar) of the village. Then when they looked inside Balram’s barn (kother) near paravat with a torch, they saw the dead body of his niece/prosecutrix lying in a injured condition, a wound was visible on the head, blood was spread all around, a big stone was lying beside the body which had blood stains on it. His niece/prosecutrix underwear was lying nearby at a distance of 20-25 meters, there were marks of dragging. At around 1 A.M. in the night the complainant along with other people again went to the house of accused Rajesh Sahu and inquired about where she had gone when allowance for loss had to be made at Navdha Ramayan, accused Rajesh Sahu told that near Navdha Ramayan place someone hit him on the neck and he fell unconscious. He told that her mouth was tied and he was thrown in barn of his house, whereas none of the thousands of people present in Navdha Ramayan saw her being assaulted, he is telling false story due to fear. He has full suspicion that his niece/prosecutrix was taken to the barn (kother) from near the pond to rape her and there he killed her by assaulting her on the head with a stone. On the information of uncle of the prosecutrix namely Sanat Kumar Bargah, the police of Police Station Pathariya has registered the merg intimation No.07/2018 vide Ex.P-2 and thereafter the FIR was registered in Crime No.24/2018 for offence under Section 302 of the IPC vide Ex.P-1. Spot map was prepared by the investigating officer vide Ex.P-3. Patwari also prepared spot map vide Ex.P-4. Memorandum statement of the appellant was recorded vide Ex.P-5. Jacket and parawat were seized 4 from the appellant vide Ex.P-6. Gamcha was seized vide Ex.P-7. The appellant was arrested on 17.01.2018 vide Ex.P-8. Inquest over the dead body of the deceased was prepared vide Ex.P/12. Dakhil kharij register in which date of birth of the deceased was mentioned as 04.08.2004 was seized vide Ex.P-13. Certified copy of dakhil kharij register was seized vide Ex.P-14 (C2). Bloodstained soil, plain soil, one 6 ½ stone stains with blood, a piece of paddy straw stuck to the head of the deceased and one ladies underwear were seized from the spot vide Ex.P-16. One slipper was seized vide Ex.P-17. Dead body of the deceased was sent for autopsy to Community Health Centre, Sargaon vide Ex.P-19 where Dr.Jayant Toppo (PW- 15) conducted autopsy vide Ex.P-20 and found following symptoms and injuries; 1. Lacerated wound 7 cm x 2 cm x muscle deep left side of occipito temporal region of scalp with blood clot present red in colour. 2. Fracture temporal bone left side, left ear bleeding present. 3. Abrasion 8 cm x 7 cm on right side of face with blood clot present, red in colour. 4. Abrasion 3 cm x 3 cm on left side of forehead with blood clot present red in colour. 5. Abrasion 9 cm x 7 cm right side anterior aspect thigh. 6. Abrasion 5 cm x 3 cm on left side below the knee joint with blood clot present red in colour. Genital Examination: 1. Axillary hair – absent, Pubic hair – absent, secondary sexual organ not well developed 5 2. Diffuse swelling labia majora, labia minora, 3. Hymen tear present – Posteriorly 4. Lacerated wound ½ cm x ¼ cm x muscle deep at 6’o clock position, clotted blood present in the wound. 3 vaginal slide & 2 swab prepared, it is sealed, packed & handed over to the same constable & advised sent to forensic lab for chemical examination. The doctor has opined that cause of death is head injury leads to coma & death. Death was homicidal in nature. Query was made relating to stone vide Ex.P-21. The doctor has answered that (1) mentioned injury report of PM done of deceased on 15.1.18 can be caused by the type of stone brought, (2) Red colour blood like stains present on the three positions on stone. It is encircled and advised the incharge to send it to forensic lab for determination of human blood. Accused Rajesh Sahu was sent for medical examination to the Community Health Center, Pathriya, where Dr.Mahendra Jayaswal (PW-19) examined him and opined that Rajesh Sahu having no any evidence that prove he is unable to doing sexual intercourse vide Ex.P-26. 3. Statements of the witnesses were recorded under Sections 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) and after completion of investigation, charge sheet was filed in the Court of Special Judge (POCSO), Mungeli. 4. Learned Special Judge framed the charges for offences under Sections 376 & 302 of the IPC and Section 5(I) of the POCSO Act against the appellant. Moreover, the appellant denied the charge and face trial. 6 5. In order to prove the guilty of the accused/appellant, the prosecution has examined as many as 21 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and claimed innocence and false implication in the crime in question and wants to examine Firan Yadav in his defence. 6. After affording an opportunity of hearing to the parties, learned Special Judge has convicted and sentenced the appellant as mentioned in opening paragraph of this judgment. 7. Learned counsel for the appellant vehemently argued that although this is unfortunate murder after committing rape of the deceased, but only on account of unfortunate rape and murder, liability could not be fastened upon the appellant without any admissible and legal evidence. In case of charge of rape and murder, heavy duty is cast upon the prosecution for strict proof of the offence beyond all shadow of doubt. In the present case, as per evidence of the prosecution witnesses, rape and murder of the deceased is not substantially disputed. The prosecution has tried to connect the appellant in the crime in question on the basis of evidence of Raju Bargah (PW-2) and Deviprasad Kaushik (PW-3) who have claimed themselves as last seen witnesses. The conduct of the witnesses is suspicious and is not worth of credence for convicting the appellant for commission of heinous offence of rape and murder. Suspicion, however strong it may be, cannot take the place of legal proof. He further submits that there is no direct evidence in this case against the appellant, therefore, the appellant must be acquitted from the charge under Section 7 302 of the IPC and Section 6 of the POCSO Act. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be quashed. 8. On the other hand, learned State counsel supported the judgment impugned and argued that the appellant committed rape with a girl below the age of 18 years and after committing rape the appellant brutally murdered her and looking to the seriousness of the crime, the appellant is not entitled for any sympathy. He further argued that the prosecution has proved that the prosecution has proved that the prosecutrix was below 18 years of age at the time of incident and the same is fortified by Ex.P-14 i.e. School Dakhil Kharij register wherein the date of birth of the prosecutrix was mentioned as 4.8.2004, which makes it clear that the prosecutrix was below 18 years of age at the time of incident and as per opinion of Dr.Jayant Toppo (PW-15), it has been revealed vide report Ex.P-21 that sexual intercourse has been done with the prosecutrix. Therefore, looking to the heinous as well as brutal act of the appellant, the learned Special Judge has rightly convicted and sentenced the appellant, which warrants no interference by this Court. 9. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 10.In the present case, homicidal death as a result of ante-mortem fatal injuries of the deceased has not been substantially disputed by the appellant, on the other hand, otherwise also established by the evidence of Dr.Jayant Toppo (PW-15) and autopsy report Ex.P/20 which reveals 8 that five injuries were found over the body of the deceased and death was homicidal in nature. The prosecution has also adduced evidence of commission of rape before death of the deceased. Ex.P/20 shows the injury over private part of the deceased. Dr.Jayant Toppo (PW-15) has opined that sexual intercourse had been done to the deceased before her death. 11.It is the case of no direct evidence, rather conviction is based on circumstantial evidence. 12.We may also make a reference to a decision of the Supreme Court in C. Chenga Reddy and Ors. v. State of A.P., (1996) 10 SCC 193, wherein it has been observed thus: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”. 13. In Padala Veera Reddy v. State of A.P. and Ors., AIR 1990 SC 79, it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 9 (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 14. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out by the Supreme Court that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 15. Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or 10 circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted”. 16. Five golden principles which constitute Panchseel of proof of case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 which state 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 11 show that in all human probability the act must have been done by the accused.” 17. The Supreme Court in the matter of Suresh and Another v State of Haryana, (2018) 18 SCC 654 has observed that cases of circumstantial evidence, the courts are called upon to make inferences from the available evidence, which may lead to the accused's guilt. The court at paras 41 and 42 has observed thus : “41. The aforesaid tests are aptly referred as Panchsheel of proof in Circumstantial Cases (refer to Prakash v. State of Rajasthan). The expectation is that the prosecution case should reflect careful portrayal of the factual circumstances and inferences thereof and their compatibility with a singular hypothesis wherein all the intermediate facts and the case itself are proved beyond reasonable doubt. 42. Circumstantial evidence are those facts, which the court may infer further. There is a stark contrast between direct evidence and circumstantial evidence. In cases of circumstantial evidence, the courts are called upon to make inferences from the available evidence, which may lead to the accused's guilt. In majority of cases, the inference of guilt is usually drawn by establishing the case from its initiation to the point of commission wherein each factual link is ultimately based on evidence of a fact or an inference thereof. Therefore, the courts have to identify the facts in the first place so as to fit the case within the parameters of “chain link theory” and then see whether the case is made out beyond reasonable doubt. In India we have for a long time followed the “chain link theory” since Hanumant case, which of course needs to be followed herein also.” 12 18. The Supreme Court in the matter of Sailendra Rajdev Pasvan and Others vs. State of Gujarat Etc., AIR 2020 SC 180 observed that in a case of circumstantial evidence, law postulates two-fold requirements. Firstly, that every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt and secondly, all the circumstances must be consistent pointing out only towards the guilt of the accused. We need not burden this judgment by referring to other judgments as the above principles have been consistently followed and approved by this Court time and again. 19. The question for consideration would be, whether the Special Judge has rightly held that the appellant is author of the crime by relying upon the following circumstances:- (i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P-20) of Dr.Jayant Toppo, who conducted autopsy. (ii) As per the case of the prosecution, the fact of death of the deceased was within the knowledge of the appellant, however, there was no any explanation given by the appellant in his statement under Section 313 of the CrPC. Thus, burden of proof was on the appellant to explain such circumstance, which he failed to explain. (iii) During search of the deceased, it came to know that the boy named Rajesh Sahu was also not present in the village 13 and after sometime, the complainant, Pradeep, Ashok and Vishram went to the house of accused Rajesh Sahu where they questioned him and he gave vague answers. Rajesh Sahu also had small pieces of paravat stuck on his head. (iv) At about 1 A.M. at night the complainant along with other people again went to the house of accused Rajesh Sahu and inquired about where he had gone, when allowance for loss had to be made at Navdha Ramayan, accused Rajesh Sahu told that near Navdha Ramayan place someone hit him on the neck and he fell unconscious. He said that his mouth was tied and he was thrown in the barn (kother) of the house, whereas none among the thousands present at Navdha Ramayan saw him being beaten up. 20. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused ‘must be’ and not merely ‘may be’ proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every 14 possible hypothesis except the one to be proved. It has been held that 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 probabilities the act must have been done by the accused. 21. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. 22. On a perusal of the judgment of the Trial Judge, it would reveal that the main circumstance on which the Trial Judge found the appellant guilty of the crime is the recovery of stone stains with blood. Query was made relating to stone recovered from the spot vide Ex.P-21 and the doctor has answered that mentioned injury report of PM done of deceased on 15.1.18 can be caused by the type of stone brought and red colour blood like stains present on the three positions on stone. It is encircled and advised the incharge to send it to forensic lab for determination of human blood. 23. At this stage, it would be appropriate to notice Section 27 of the In- dian Evidence Act, 1872, which states as under: - “27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a 15 confession or not, as relates distinctly to the fact thereby discovered, may be proved.” Obje 24. Section 27 of the Indian Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered. 25. The Supreme Court in the matter of Asar Mohammad and others v. State of U.P., AIR 2018 SC 5264 with reference to the word “fact” employed in Section 27 of the Evidence Act has held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67 observed as under: - “13. It is a settled legal position that the facts need not be self- probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the 16 case of Vasanta Sampat Dupare v. State of Maharashtra1, in particular, paragraphs 23 to 29 thereof. The same read thus: “23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor (supra) has held thus: (IA p. 77) “… it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. xxx xxx xxx xxx xxx xxx xxx xxx xxx” 26. The Supreme Court in the matter of Perumal Raja alias Perumal v. State, Rep. By Inspector of Police, 2024 SCC OnLine SC 12 has defined the ‘custody’. It held that the expression “custody” under Section 27 of the Evidence Act does not mean formal custody. It 1 (2015) 1 SCC 253 17 includes any kind of restriction, restraint or even surveillance by the police. Even if the accused was not formally arrested at the time of giving information, the accused ought to be deemed, for all practical purposes, in the custody of the police. 27. The Supreme Court in the matter of Boby v State of Kerala, 2023 SCC OnLine SC 50 held that 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. Section 27 puts a bar to use the confessional statement, but the fact that discovery and information which proved to reliable would be a circumstantial evidence. 28. In the present case, while putting question No.134 to the accused under Section 313 “D;k vkidks cpko esa lk{; nsuk gS”, the accused has stated that “gka fQju ;kno vk0 vuqt ;kno xzke iFkfj;k ftyk eqaxsyh (N-x-)”, but the accused has not examined any defence witness in his support. Perusal of ordersheet of the trial Court dated 11.02.2021 goes to show that the accused was cross-examined by preparing a statement of charge under Section 313 CrPC. The accused claimed that he was innocent and that he was being falsely implicated. The accused expressed his desire to give defence evidence. Hence, the case was 18 fixed for defence evidence. On 19.02.2021 the trial Court recorded that the case is fixed today for defence evidence. Defence witness absent. The accused lawyer expressed his desire not to give defence evidence. Hence, the opportunity for defence witness is closed. 29. From the evidence adduced by the prosecution, it is clear that Homicidal death was proved by the prosecution as per postmortem report (Ex.P-20) of Dr.Jayant Toppo who conducted autopsy. During search of the deceased, it came to know that the boy named Rajesh Sahu was also not present in the village and after sometime, the complainant, Pradeep, Ashok and Vishram went to the house of accused Rajesh Sahu where they questioned him and he gave vague answers. Rajesh Sahu also had small pieces of paravat stuck on his head and at about 1 A.M. at night the complainant along with other people again went to the house of accused Rajesh Sahu and inquired about where he had gone, when allowance for loss had to be made at Navdha Ramayan, accused Rajesh Sahu told that near Navdha Ramayan place someone hit him on the neck and he fell unconscious. He said that his mouth was tied and he was thrown in the barn (kother) of the house, whereas none among the thousands present at Navdha Ramayan saw him being beaten up. There is no evidence which shows even the slightest possibility that the incident could have been caused by any other person. There is no evidence which shows that the deceased could have been murdered by any person other than the accused. Therefore, it is found that in the present case, the links of circumstantial evidence have been 19 connected with each other in such a way that it leads to the conclusion of direct conviction of the accused and there is no possibility of the incident being committed by any other person. Therefore, on the basis of the above circumstantial evidence, this fact is proved beyond reasonable doubt that accused Rajesh Sahu firstly committed rape and thereafter committed murder of the deceased. 30. Applying the aforesaid well settled principles of law and taking into consideration the facts in totality and considering the facts and circumstances of the case, in our considered view, the prosecution was able to establish the guilt of the accused beyond reasonable doubt. The impugned judgment of conviction and order of sentence is just and proper warranting no interference of this Court. 31. In the result, the criminal appeal being devoid of merit is liable to be and is hereby dismissed. 32. It is stated at the Bar that the the appellant is in jail, he shall serve out the sentence as ordered by the learned trial Court. 33. The trial court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. 34. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an 20 appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Bablu