1 2026:CGHC:600-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1151 of 2013 Bandhi Lal Chauhan, S/o Jageshwar Chauhan Aged About 38 Years, R/o Village Makri PS Sarangarh, District Raigarh C.G. ... Appellant versus State of Chhattisgarh, through PS Sarangarh, District Raigarh C.G. ...Respondent For Appellant : Mr. Dheerendra Pandey, Advocate For Respondent/State : Mr. Afroz Khan, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (06.01.2026) Sanjay Kumar Jaiswal, J. 1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the CrPC, the appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and SHUBHAM SINGH RAGHUVANSHI Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2026.01.09 10:37:21 +0530 2 order of sentence dated 28.10.2013 passed by the learned Additional Sessions Judge Sarangarh, District Raigarh (C.G.), in Sessions Trial No.24/2012, by which the appellant has been convicted and sentenced as under:- Conviction Sentence & Fine U/s 302 of the IPC Life imprisonment and to pay fine of ₹5,000/-; in default of payment of fine, 1 year additional SI. Prosecution story:- 2. The case projected by the prosecution and accepted by the trial Court is that on the date of incident 12/08/2012, at around 10:00 am, Babu Lal Chauhan (deceased) had gone to the Sukha Makhri forest hill above the waterfall to make liquor. He did not return home by evening, and despite searching for him, he was found dead on the hill. Upon receiving information from Prem Lal (PW-1), brother of the deceased and Karmu Chauhan, the Kotwar of Makhri village, a report was lodged at Sarangarh Police Station, and a Merg report (Exhibit P-1) was registered. The body was subjected to post-mortem examination. Dr. Amrit Rohledar (PW-14) conducted the autopsy and submitted a report (Exhibit P-10), opining that the cause of death was hemorrhagic shock due to extensive injury to the brain, and the nature of death was homicidal. During the 3 investigation, statements of witnesses were recorded, and a site map was prepared. The accused's statement was recorded, and a memorandum (Exhibit P-8) was prepared. Pursuant to his disclosure, the axe used in the crime was seized (Exhibit P-9) and sent for chemical examination. After completion of the investigation, the charge sheet was filed. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 18 witnesses and exhibited 17 documents. Statement of the appellant was also recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 4. The learned Trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant/accused for the offence as mentioned in the opening paragraph of this judgment, against which the instant appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 5. Learned counsel for the appellant submits that there is no eyewitness to the incident, and the prosecution's case relies 4 on circumstantial evidence. Siyaram (PW-3) and Nameshar Rathia (PW-11) are cited as witnesses to the "last seen theory," but their testimonies do not establish that they saw the accused and the deceased together. The motive for the crime is alleged to be the deceased's illicit relationship with the accused's wife, but the prosecution has failed to prove this fact. The seizure of the axe based on the accused's memorandum has not been corroborated by a chemical examination report, and thus, the prosecution has failed to establish a direct link between the alleged seized axe and the deceased's death. As such, the chain of circumstantial evidence is incomplete and not proved. Given these circumstances, the conviction of the accused is not sustainable in law. Therefore, the appeal may be allowed, and the impugned judgment of conviction and order of sentence may be set aside and the accused may be acquitted. 6. On the other hand, learned counsel for the State submits that the finding recorded by the Trial Court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed. 5 7. We have heard learned counsel appearing for the parties, considered their rival submission made herein above and gone through the records precisely. Discussion & Analysis:- 8. The first question, for consideration, as to whether the death of deceased was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Exhibit P-10), proved by Dr. Amrit Rohledar (PW-14), according to which, cause of death was stated to be hemorrhagic shock due to extensive injury to the brain and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. In the instant case, there is no direct evidence available on record and case of the prosecution is solely based on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 which must 1 (1984) 4 SCC 116 6 be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads as under: - “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (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 v. State of Maharashtra2 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. (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 2 (1973) 2 SCC 793 7 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." 10. The first ground for the accused's conviction is that the deceased had an illicit relationship with the accused's wife. The main witnesses on this point are the deceased's wife, Kaushalya(PW-10) and Savitri Chauhan(PW-13), who is the accused's sister-in-law. Kaushalya(PW-10) stated that she was informed by Savitri Chauhan 4 days after the incident, while bathing at the pond, that the deceased had an illicit relationship with the accused's wife, leading to the incident. However, Savitri Chauhan(PW-13) has turned hostile and did not corroborate this fact, nor did she admit to informing Kaushalya(PW-10)about it. Thus, the source of Kaushalya's information about the illicit relationship is not corroborated by Savitri Chauhan. Considering Kaushalya's(PW-10) relationship with the deceased, her testimony cannot be considered credible beyond doubt. Therefore, it is not 8 established that the deceased had an illicit relationship with the accused's wife, providing a motive for the accused to commit the crime. 11. The second important aspect is the "last seen theory", with key witnesses Siyaram (PW-3) and Nameshar (PW-11). They stated that the deceased, Babu Lal, had gone to the Makhri forest to make liquor, and they too were there for the same purpose, and the accused also arrived there. However, there is a contradiction in their statements about when they returned from the forest. Nameshar (PW-11) said he returned at 11:00 am, while Siyaram (PW-3) said he returned at 4:00 pm. Notably, Nameshar (PW-11) stated in para 8 that several people were making liquor near Babu Lal, and these witnesses admitted they never stated that they saw the accused and deceased together in the forest. According to them, the accused had consumed liquor there and was returning with them towards the village but turned back midway. There is no clear statement about where the accused went after turning back. In these circumstances, it is not established that the accused was last seen with the deceased. The evidence suggests several people were around Babu Lal besides the accused, making the "last seen theory" unproved. 9 12. The third basis for the accused's conviction is the seizure of the axe allegedly used in the crime. Investigating Officer S.I. K.K. Kenwat (PW-17) stated that on 26/08/2012, about 14 days after the incident, he recorded the accused's statement and seized a wooden-handled axe from the scene based on memorandum Exhibit P-8. The seizure witnesses are Vishikshan Rathia (PW-2) and Siyaram (PW-3). However, notably, there is no chemical examination report for the seized axe/Tangi, making it unproven that it was used to kill Babu Lal. Thus, the prosecution has failed to establish a direct link between the axe and the crime. 13. Though, the axe has been seized from the accused, but it is well settled law that disclosure alone would not automatically lead to the conclusion that offence was also committed by accused and burden lies on prosecution to establish a close link between discovery of material object and its use in commission of offence. In this regard, Their Lordships of the Supreme Court in the matter of Mustkeem Alias Sirajudeen v. State of Rajasthan3, held as under : 25. With regard to Section 27 of the Act, what is important is discovery of the material object at the 3 (2011) 11 SCC 724 10 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. 27. The scope and ambit of Section 27 were also illuminatingly stated in Pulukuri Kotayya v. King Emperor4 reproduced hereinbelow:- ".....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 4 AIR 1947 PC 67 11 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." 14. Furthermore, in the matter of Raja Naykar v. State of Chhattisgarh5 the Supreme Court has clearly held that only on the basis of sole circumstance of recovery of blood- stained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt. In that view of the matter, the appellant could not have been convicted mainly on the basis of recovery of blood stained weapon without establishing the fact that it was used for commission of offence. 5 2024 SCC OnLine SC 67 12 15. In light of the above-mentioned judgment, based on the evidence available on record, it is not proved beyond doubt that the the appellant was the author of the crime in question. Conclusion:- 16. In view of the above, the impugned judgment of conviction and order of sentence dated 28.10.2013 is set aside. The appellant stands acquitted giving him benefit of doubt from the charge framed against him for offence under Section 302 of I.P.C. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 17. In the result, this criminal appeal is allowed. 18. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Shubham