1 2026:CGHC:3778-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 634 of 2017 Tika Ram Nishad @ Tikam S/o Chait Ram Nishad, Aged About 22 Years R/o Village Atariya, Kukurmuda, Police Station Khairagarh, District Rajnandgaon, Chhattisgarh. ---Appellant Versus State Of Chhattisgarh Through Police Of Police Station Kharsia, District Raigarh, Chhattisgarh. ---Respondent For Appellant :- Mr. Govind Dewangan, Advocate For State :- Mr. H.A.P.S. Bhatia, Panel Lawyer Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 22/01/2026 Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the impugned judgment of conviction and order of sentence dated 27/02/2017 passed by learned 5th Additional 2 Sessions Judge, Raigarh in Sessions Case No. 124/2016 whereby he has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs. 2000/-, in default of payment of fine, further R.I. for 5 months. 2. Case of the prosecution, in brief, is that in the intervening night of 27-28/07/2016, the appellant herein assaulted Santosh Nishad, while he was sleeping in Truck bearing Registration No. CG 13 LA 4893, with a jackrod and caused his death and thereby, committed the aforesaid offence. 3. Further case of the prosecution is that Santkumar Yadav (P.W.-3), working at Jaibaba Transport Company, reported about the incident at Police Station Kharsiya pursuant to which zero dehati nalishi was registered vide Ex. P/30 and zero merg intimation was registered vide Ex. P/31. Thereafter, on 28/07/2016, merg intimation No. 64/16 was registered vide Ex. P/25. Nazri naksha was prepared vide Ex. P/3 and inquest was conducted vide Ex. P/5. First information report was registered against the appellant vide Ex. P/26. The dead body of deceased Santosh Nishad was subjected to postmortem which was conducted by Dr. Sajan Kumar Agrawal (P.W.-11) and as per the postmortem report (Ex. P/21), cause of death is said to be coma and shock due to injury over neck and brain and nature of death is said to be homicidal. Memorandum statement of the appellant was recorded 3 vide Ex. P/6 and his blood-stained shirt was seized vide Ex. P/7. Jackrod and a blood-stained towel were seized from the Trailer vide Ex. P/11. Though the seized articles were sent for forensic examination, but no FSL report has been brought on record. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 17 witnesses and brought on record 38 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence and only brought one document on record. 5. Learned trial Court, after appreciation of oral and documentary evidence on record, finding the appellant to be author of crime in question, proceeded to convict him for offence punishable under Section 302 of IPC and sentenced him as aforesaid. 6. Mr. Govind Dewangan, learned counsel for the appellant would submit that the appellant has been convicted on extremely doubtful evidence of last seen together and except that, there is no other evidence on record to involve the appellant in the alleged commission of offence. He would further submit that the evidence of Khem Kumar 4 Sahu (P.W.-5) is that the deceased had come to purchase eatables in the dhaaba and he claims to have seen the appellant sitting inside the Truck parked about 60-70 feets away and the appellant and the deceased consuming liqour near the water tank about 80-90 feets away in the night, but thereafter, as per the evidence of Devram Yadav (P.W.-8), the deceased had come for loading the Truck in the plant and had left the plant with loaded Truck and there is nothing in the evidence of Devram Yadav (P.W.-8) that at that time, the appellant was also sitting with the deceased. Therefore, even though there is no specific evidence of last seen, the trail Court has convicted the appellant for the offence in question only on suspicion, which is absolutely illegal and bad in law. As such, the appellant is entitled to acquittal. 7. Per contra, Mr. H.A.P.S. Bhatia, learned State counsel would support the impugned judgment and submit that the evidence of Khem Kumar Sahu (P.W.-5) shows that at about 11 PM in the night, appellant and deceased were together and after consuming liqour, they left the dhaba and thereafter, the deceased was found dead on the road at about 70-80 kms away from the power plant and the appellant has failed to explain as to when he left the company of the deceased, as such, the trial Court has rightly convicted the appellant for the offence in question and the instant appeal is liable to be dismissed. 5 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first question for consideration would be whether the death of deceased Santosh Nishad is homicidal in nature ? 10. Learned trial Court has answered this question in affirmative and held the death of Santosh Nishad to be homicidal in nature relying upon the expert medical opinion of Dr. Sajan Kumar Agrawal (P.W.-11) who has proved postmortem report (Ex. P/21) in which cause of death is said to be coma and shock due to injury over neck and brain and nature of death is said to be homicidal. Considering the postmortem report (Ex. P/21) as well as the statement of Dr. Sajan Kumar Agrawal (P.W.-11) and looking to the injuries suffered by the deceased on his neck and head, we are of the considered opinion that the trial Court has rightly recorded the finding that death of deceased Santosh Nishad is homicidal in nature. We hereby affirm the said finding recorded by the trial Court. 11. The next question for consideration would be whether the appellant is the author of the crime in question ? 12. There in no direct evidence available on record and the instant case is based on circumstantial evidence. The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 has laid down the five 1 (1984) 4 SCC 116 6 golden principles that constitute the panchsheel of the proof of a case based on circumstantial evidence, which state 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. XXX XXX XXX (2) the facts so established should be consistent only with the hypothesis of 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 prove, 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.” 13. The trial Court has found the following incriminating circumstances established and has culled them out in paragraph 78 of the impugned judgment, which states as under :- “78. हााሴकी व्ቔ मान ्ቚकीरण मा कीई ्ቚत्य्ቌदቦኍ साቌኚय उपाሴ्ቓ नहा, परन््ቔ इसा साबंध मा अभि%यजन साቌኚय पर विवचार कीरन) पर, ्ቚकीरण मा विव्ቕमान अभि%यजकी ቛኋर ्ቚस््ቔ्ቔ उपयक््ቔ वቓኌण/्ቔ परिरቝኌ2वि्ቔय3 की ्ቚमाभिण्ቔ कीरन) मा असाफाሴ रहा हा5 - ” > अभि%यजन साቌኚय सा) यहा ्ቔथ्य 2विप्ቔ हा5 की दु्ቈ टन दिदनकी की मा;्ቔकी सा्ቔष विनषद की ኋ᭑सापट र आቦኍ्ቔष ቦኍमा (अ.सा. 10) की ኋ᭑)ाሴर ्ቅ. सा@ज@ 13 - एाሴए -4893 की चााሴकी था और दु्ቈ टन की दिदनकी 28.07.16 की र्ቔ मा र)ाሴव) र5की पइट खरसिसाय मा कीयाሴ ाሴड कीरन) गय था | > दिदनकी 27 एव 27 जाሴई 2016 की माध्य रविI 12.00 बंज) सा) 1.45 बंज) ्ቔकी मा;्ቔकी सा्ቔष विनषद की उक््ቔ वहान मा ቑኋईवर चााሴकी हाकीर माKजLद रहान और उक््ቔ वहान की चााሴय जन, उक््ቔ वहान की चााሴय जकीर र)की पइट खरसिसाय मा जकीर कीयाሴ ाሴड कीरन और 7 उसाकी) बंद उसा पइट सा) श्यमाज@ धरमाकीट पर आकीर वहान खड़े) विकीय) जन) की माध्य अवधिध मा उसा) ज@विव्ቔ द)ख गय और अगाሴ@ साबंहा 5- 5:30 बंज) जबं उक््ቔ धरमाकीट की) कीमा चारिरय3 ቛኋर उसा) उठान) की) सिाሴए आवज ाሴगय@ गई, ्ቔबं उक््ቔ वहान की) इसा ቑኋइवर सा्ቔष विनषद य खाሴसा@ ቛኋर उ्ቈर नहा दिदय और दरवज नहा खाሴन) पर सा्ቔकी मार की साLचान दिदय गय और सा्ቔ की मार की) आन) की) बंद जबं उसाकी) ቛኋर उक््ቔ ኋ᭑की की) अदर जकीर द)ख गय, ्ቔ मा;्ቔकी सा्ቔष विनषद मा;्ቔ अव2 मा पय गय | > अभि%यजन की) उपरक््ቔ सा्ቌ@ की; ष्ण, मानL उ्኎ द)व)न््ቖ, सा्ቔ की मार की) उपरक््ቔ साቌኚय विवቨኔ)षण सा) यहा 2विप्ቔ हा5 की दिदनकी 28-07-2016 की साबंहा 5-5:30 बंज) मा;्ቔकी सा्ቔष विनषद की ቦኍव ኋ᭑)ाሴर ्ቅ. सा@ज@ 13 - एाሴए - 4893 की) अदर पय गय था, जिजसाकी) ቦኍर@र पर चा3ट की) विनቦኍन था) | > सिचाविकीत्साकी की) साቌኚय सा) %@ इसा ्ቔथ्य की पधिW हा्ቔ@ हा5 की मा;्ቔकी सा्ቔष विनषद की) ቦኍर@र पर हात्य पLव की) चा3ट की) विनቦኍन था) और उसाकी मा;त्य की ्ቚकी; वि्ቔ आपरधिधकी मानव वध हात्य हान) की %@ विनष्कीष सिचाविकीत्साकी न) अपन) साቌኚय मा दिदय हा5 | > इसा@ ्ቚकीर अन्व)षण की) साቌኚय सा) यहा ्ቢW हा5 की ्ቈटन की) पቐኋ्ቔ साLचान धिमााሴन) पर उसा@ दिदनकी 28-07-16 की ्ቈटन2ाሴ सा) ኋ᭑)ाሴर ्ቅ. सा@ज@ 13 - एाሴए - 4893 की सा@ट मा पड़े) ्ቚप@. 10 की) जप््ቔ@ पIकी की) अनसार मा;्ቔकी सा्ቔष विनषद की) ቦኍव की जप््ቔ@ की व[ उसा@ सामाय उसा@ ्ቈटन2ाሴ सा) ्ቚप@. 11 जप््ቔ@ पIकी की) अनसार ज5कीर\ड, एकी टव)ाሴ व मा;्ቔकी की) कीपड) आदिद की जप््ቔ@ गवहा3 की) सामा्ቌ की गई माग जचा व विवव)चान की) दKरन मा;्ቔकी सा्ቔष की) ቦኍव पचाय्ቔनमा कीय वहा@, ቦኍव पर@्ቌण कीय वहा@, ्ቈटन 2ाሴ की नቋኋ ्ቔ5यर विकीय गय | विवव)चान की) दKरन विवव)चाकी ቛኋर ्ቈटन की) अगाሴ) दिदन उसाकी उसाकी) व मा;्ቔकी की) ग;हा ቇኋमा की की रमाड़े थान ख5रगढ़ जिजाሴ रजनदगव मा उसाकी) स्वय की) ्ቈर सा) बंरमादग@ पचानमा की) आधर पर अभि%र्ቌ मा सिाሴय जन ्ቔथा आरप@ की) दज मा)मारण्डमा कीथान और उसाकी साLचान पर सा) उसाकी) ቦኍर@र सा) रक््ቔ की) रग ज5सा) दग साविहा्ቔ उ्ቔर कीर उसाकी) ቛኋर प)ቦኍ कीरन) पर उक््ቔ कीमा@ज की जप््ቔ@ की कीय वहा@ की) साबंध मा विवव)चाकी की साቌኚय साLቌኚमा विवरध%ष की) साथा अखविड्ቔ रहा हा5| > आरप@ की ्ቈटन की) उपर्ቔ ्ቈटन2ाሴ सा) फरर हान) की) उसाकी आचारण धर 8 साቌኚय अधिधविनयमा की) ्ቔहा्ቔ आरप@ की) दष@ हान) की विनቖኌद/W कीर्ቔ हा5 | > आरप@ ቛኋर अन्यI उपቝኌ2वि्ቔ की धिमाथ्य अभि%वकी सिाሴय जन, ज स्वय मा अपरध कीरिर्ቔ कीरन) की) सिाሴय) आरप@ की साबं቏ኌc्ቔ कीर्ቔ) हुय) एकी अवि्ቔरिरक््ቔ कीड़े@ हा5| > सा्ቌ@ आቦኍ्ቔष, की; ष्ण व सार)ቦኍ की) कीथान सा) मा;्ቔकी सा्ቔष विनषद की) साथा ्ቈटन की) पचा माहा की) पLव सा) मा;्ቔकी की) साथा हा)ल्पर की) रूप खाሴसा@ की कीमा कीरन बं्ቔय गय हा5 | सा्ቌ@ आቦኍ्ቔष की) कीथान की) अनसार उक््ቔ ኋ᭑)ाሴर सा@ज@ 13 - एाሴए - 4893 की) खाሴसा@ की) रूप मा आरप@ टgकीमा उ्኎ टgकीरमा कीय र्ቔ रहान) की कीथान बंचाव प्ቌ ቛኋर खविड्ቔ नहा विकीय गय हा5 और ्ቈटन दिदनकी की अवकीቦኍ पर हान) की बंचाव नहा सिाሴय गय हा5 और अभि%यजन साቌኚय सा) %@ ्ቈटन दिदनकी य उसाकी) पLव सा) आरप@ की अवकीቦኍ हान कीसिथा्ቔ नहा विकीय गय हा5 | ्ቈटन दिदनकी 27-07-2016 एव दिदनकी 28-07-16 की माध्य रविI मा ኋ᭑)ाሴर ्ቅ. 13 - एाሴए - 4893 मा आरप@ की मा;्ቔकी सा्ቔष विनषद की) साथा अवि्ቔमा बंर एकी साथा द)ख गय था | ्ቔत्साबंध मा अभि%यजन ቛኋर न्ययदृW्ቔ रविलाला लाቌኚमैयाह बनामै आं्቗ ्ቚदेश रज्या, 2014 (1) CCSC, 56 (SC) की) अवाሴबं सिाሴय हा5, जिजसामा मानन@य उ्ሴ्ቔमा न्ययाሴय न) यहा अवधरिर्ቔ विकीय हा5 की ऐसा) मामााሴ3 मा, जहाk अभि%यक््ቔ की अवि्ቔमा 8 बंर मा;्ቔकी आरप@ की) साथा द)ख गय हा, आरप@ की उन परिरቝኌ2वि्ቔय3 की ्ቢW कीरन) की की्ቈ ्ቤ हा ज्ቔ हा5, जिजनकी) अध@न प@विड़े्ቔ की मा;त्य हुई था@ | 14. So far as the first three circumstances recorded by the trial Court are concerned, they are correct finding of facts based on evidence available on record and they have not been disputed by learned counsel for the appellant. So far as the nature of death of deceased Santosh Nishad is concerned, we have already discussed above that the trial Court has rightly held the death of the deceased to be homicidal in nature. Memorandum and Seizure :- 15. The next incriminating circumstance that has been recorded by the trial Court is that pursuant to memorandum statement of the appellant vide Ex. P/6, seizure of his blood-stained shirt has been made vide Ex. P/7 and seizure of jackrod has been made vide Ex. P/11. However, though the seized articles were subjected to forensic examination but the FSL report has not been brought on record for the reasons best known to prosecution, thus, seizure of the aforesaid articles would of no use to the prosecution. Subsequent conduct under Section 8 of the Evidence Act :- 16. It is the case of the prosecution that immediately after the incident, appellant is said to have absconded from the spot, as such, his conduct is relevant for proving his guilt 9 under Section 8 of the Evidence Act. However, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. The act is a relevant piece of evidence to be considered along with other evidence, but its value would depend upon the circumstances of each case. Normally, evidence for sustaining a conviction can scarcely be held as a determining link in completing the chain of circumstantial evidence, which must admit of no other hypothesis than that of the guilt of the accused. (See: Matru v. State of Uttar Pradesh2) 17. The absconding by itself is not conclusive of either guilt or guilty conscience (See: Rahman v. State of Uttar Pradesh3). Absconding may lend weight to other evidence establishing the guilt of an accused, but by itself, is hardly any evidence of guilt. Absconding is a weak link in the chain of circumstances and is not conclusive either of the guilt or guilty conscience. Plea of Alibi :- 18. The plea of alibi, though has been taken by the appellant but it has not been established by him and it has thus been taken by the prosecution as an additional link to the chain of circumstances, however, false plea of alibi, if any, would only be an additional link to the chain of circumstances if the prosecution has been able to bring home the offence beyond reasonable doubt, which they 2 AIR 1971 SC 1050 3 AIR 1972 SC 110 10 have failed to do till now in the instant case, as such, false plea of alibi, if any, would not be sufficient to implicate the appellant for any offence that too, for a serious offence under Section 302 of IPC. Theory of Last Seen Together :- 19. The last and final incriminating circumstance recorded by the trial Court is that appellant was last seen together with the deceased on the date of offence by Krishna Singh (P.W.-2), Khemkumar Sahu (P.W.-5), Ashutosh Sharma (P.W.-10) and Suresh Nishad (P.W.-15). 20. A careful statement of Krishna Singh (P.W.-2) would show that he has only stated that at the time of the incident, helper/khalasi was not present in the Truck and he was informed by Sant Kumar (P.W.-3) that the helper has absconded. This witness has not stated anything about the appellant having been seen together with the deceased on the date of the incident. 21. Similarly, Sant Kumar (P.W.-3), who works at Jai Baba Baijnath Transport Company, has stated that he does not as to who was working as a helper in the Truck on the date of offence as their Transport Company does not employ helpers in the Trucks. 22. Khemkumar Sahu (P.W.-5), who is the owner of Abhilasha dhaba, has stated in his examination-in-chief that on the date of offence, deceased Santosh Nishad came to his dhaba to buy eatables and thereafter, he along with the 11 appellant went a bit far and consumed liqour, however, in the cross-examination, he has admitted that the deceased and the appellant were at a distance of 80-90 feet. He has further admitted that in his statement under Section 161 of CrPC, though he had mentioned that helper was present along with the deceased but he had not named the appellant to be the helper. As such, there is omission in his statement under Section 161 of CrPC, therefore, this witness cannot be held to be reputable to establish the theory of last seen together. 23. Ashutosh Sharma (P.W.-10), who is the owner of the transport company, has stated that deceased was working in his company as Driver and he has clearly stated that he does not know as to who was working as a helper on the date of the offence. After being declared hostile and being subjected to leading questions in paragraph 4, he has stated that for five months, appellant was working as a helper in the Truck, however, in his cross-examination in paragraph 9, he has again stated that it was not within his knowledge that the appellant used to work as a helper and he has never before seen the appellant. 24. Suresh Nishad (P.W.-15), brother of deceased Santosh Nishad, has though stated in paragraph 4 of his statement that appellant used to work as helper in the Truck which was being driven by his brother, however, in cross- examination in paragraph 11, he has admitted that he has not seen the appellant working as helper in the Truck with 12 his brother and appellant’s brother Gautam Nishad had told him about the said fact that appellant worked as a helper in the Truck with the deceased. 25. Thus, the theory of last seen together has not at all been established from the statements of the aforesaid witnesses and the trial Court is absolutely unjustified in holding that theory of last seen together has been found established. Even otherwise, though the evidence of last seen together could point to the guilt of the accused, but this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration, as has been held by the Supreme Court in the matter of Navneethakrishnan v. State of Inspector of Police4. 26. In sum and substance, we are of the considered opinion that the prosecution has miserably failed to bring home the offence in question beyond reasonable doubt as the five golden principles that constitute the panchsheel of the proof of a case based on circumstantial evidence as held by the Supreme Court in Sharad Birdhichand Sarda (supra) has not at all been established. As such, the trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 of the IPC. The impugned judgment of conviction and order of sentence is hereby set aside on the basis of benefit of doubt. The appellant is acquitted of the charges levelled against him. 4 (2018) 16 SCC 161 13 Since he is already on bail, he need not surrender, however, his bail bonds shall remain in operation for a period of six months in view of qthe provision contained under Section 437-A of CrPC. 27. Accordingly, this criminal appeal stands allowed. Sd/- Sd/- (Sanjay K. Agrawal) (Arvind Kumar Verma) Judge Judge Harneet