Raigarh, Chhattisgarh v. State Of Chhattisgarh, Through
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.03.29 11:47:36 +0530 2025:CGHC:15001-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 108 of 2015 {Arising out of judgment dated 07.02.2014 passed in Sessions Trial No.35/2013 by the learned First Additional Sessions Judge, Raigarh} Gend Singh Manjhwar, S/o. Devi Singh, Aged About 25 Years, Occupation- Labour, R/o. Batura Kachhar, Police Station- Gharghoda, Civil And Revenue District- Raigarh, Chhattisgarh ... Appellant versus State Of Chhattisgarh, Through- Station House Officer, Police Station- Gharghoda, Raigarh, District- Raigarh, Chhattisgarh ... Respondent (Cause Title taken from Case Information System) For Appellant
Legal Reasoning
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. The case of the prosecution is not based on direct evidence, it is 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 Maharashtra 1 , which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 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. 1 (1984) 4 SCC 116 6 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 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. Now, the incriminating circumstances found to be established by the trial Court for convicting the appellant is that pursuant 2 (1973) 2 SCC 793 7 to memorandum statement of the appellant, blood stained knife was seized on which human blood of “B” group was found as per the FSL report (Ex.P-23). The memorandum statement of the appellant has been recorded on 03.01.2013 and seizure witness is Sardar Singh (PW-3), who only stated that he has signed in the memorandum statement (Ex.P-7) from A to A, in which the appellant has admitted his guilt that he has assaulted Ganda Singh and he did not state any other things. Sardar Singh (PW-3) was declared hostile and on leading question, he has partly supported the case of the prosecution. Furthermore, though pursuant to memorandum statement of the appellant, blood stained knife was recovered on 03.01.2013, which was sent for chemical examination to FSL on 24.01.2013, but there is no evidence on record to show that whether it was kept in safe custody or not from 03.01.2023 to 24.01.2013, as the chances of manipulation and fabrication cannot be ruled out. 11. Furthermore, though the blood stained knife has been seized pursuant to memorandum statement of the appellant, but it is well settled law that disclosure alone would not automatically lead to conclusion that offence was also committed by accused and burden lies on prosecution to establish a close link 8 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 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 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 3 (2011) 11 SCC 724 4 AIR 1947 PC 67 9 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." 12. Furthermore, in the matter of Raja Naykar v. State of Chhattisgarh 5 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, as the weapon was recovered on 03.01.2023 and sent for chemical examination to FSL on 24.01.2023 and there is no document on record to hold that it was kept in safe custody. As such, the appellant is entitled for acquittal on the basis of benefit of doubt. 13.
Arguments
: Mr. Manoj Kumar Chouhan, Advocate For Respondent : Mr. H.A.P.S.Bhatia, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal 2 Judgment on Board (28.03.2025) Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 07.02.2014, passed by the learned First Additional Sessions Judge, Raigarh, in Sessions Trial No.35/2013, by which, the sole appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.5000/-, in default of payment of fine, 1 year additional rigorous imprisonment. 2. Case of the prosecution, in brief, is that on 01.01.2013 at 1:00 A.M. at village Baturakachhar, the appellant herein assaulted Ganda Singh (now deceased) by knife, by which he suffered grievous injuries and died; thereby, the offence has been committed. The matter was reported to the police, pursuant to which, Merg Intimation was registered vide Ex.P-1, FIR was registered vide Ex.P-2, Inquest was conducted vide Ex.P-14 and dead body of deceased Ganda Singh was subjected to post-mortem, which was conducted by Dr. P.L.Bodalkar (PW- 6), who proved the post-mortem report vide Ex.P-11, 3 according to which, cause of death was stated to be shock as a result of huge external bleeding and death was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P-7), knife and clothes of appellant were seized vide Ex. P-8, which were sent for chemical examination to FSL and as per the FSL report (Ex.P-23), human blood was found on the seized knife and clothes. After due investigation, the appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 7 witnesses and exhibited 23 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced him for life 4 imprisonment against which the present appeal has been preferred. 5. Mr. Manoj Kumar Jaiswal, learned counsel for the appellant, would submit that only on the basis of recovery pursuant to memorandum statement of the appellant, he has been convicted and since there is delay in sending the seized articles to FSL for chemical examination, the chances of fabrication and manipulation cannot be ruled out. Therefore, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 6. Mr. H.A.P.S.Bhatia, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and, as such, the appellant is not entitled for acquittal and the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question, for consideration, as to whether the death of deceased was homicidal in nature has been answered by 5 the trial Court in affirmative relying upon the post-mortem report Ex.P-11, proved by Dr. P.L.Bodalkar (PW-6), according to which, cause of death was stated to be shock as a result of huge external bleeding and death was homicidal in nature,
Decision
In view of the above, the impugned judgment of conviction and order of sentence dated 07.02.2014 is set aside. The appellant stands acquitted giving him benefit of doubt from 5 2024 SCC Online SC 67 10 14. 15. the charge framed against him for the 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. In the result, this criminal appeal is allowed. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence. Sd/- (Sanjay K. Agrawal) Judge Sd/- (Sanjay Kumar Jaiswal) Judge Ashok