Bhatgaon, Thana Parpodi, District Bemetara Chhattisgarh v. State Of Chhattisgarh Through Station House Officer, Police Stati
Case Details
1 2025:CGHC:32891-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 256 of 2018 Keshav Singh Rajput S/o Bhuwan Singh Rajput Aged About 36 Years R/o Village Bhatgaon, Thana Parpodi, District Bemetara Chhattisgarh, ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Parpodi, District Bemetara Chhattisgarh, ... Respondent For Appellant For Respondent : : Mr. M. P. S. Bhatia, Advocate Mr. Rahul Tamaskar, G. A. Hon’ble Shri Justice Sanjay K. Agrawal, Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board Sachin Singh Rajput, J. 15/07/2025 1. The instant appeal has been filed under Section 374 (2) of Code of Criminal Procedure, 1973 (for short “CrPC”) assailing the legality, validity and judicial propriety of the judgment impugned dated 04.01.2018 passed by the Sessions Judge, Bemetara (CG) in Session Trial No.79/2016. By the impugned judgment, the appellant has been convicted and sentenced in the following manner:- 2 Conviction Sentence U/s 302 of Indian Imprisonment for life and fine of Penal Code Rs.100/- in default of payment of fine, further three months R.I. U/s 449 of Indian Imprisonment for life and fine of Penal Code Rs.100/- in default of payment of fine, further three months R.I. Both the sentences run concurrently
Facts
2. Facts leading to the disposal of this appeal in brief are that the first wife of the deceased Latkhor Nirmalkar was Girja Bai who had 5 daughters. The deceased had married Rukhmani Nirmalkar. On the date of incident i.e. 01.08.2016 Rukhmani and Girja Bai went to Kamkavada Khar at 6:00 am to earn their livelihood as laborers. Both the children of Rukhmani went to school at around 10:00 am. When Rukmani came back home alone at 1:00 pm, she saw that the door of her house was bolted from inside. She called out to her husband (deceased) but he did not respond. Then Rukmani asked her neighbor boy Lalla Rajput to open the door with the help of thin stick and when she went inside, her husband (deceased) was lying on the bed and blood was oozing from his head. There were three deep wounds on his head, back side of the right ear and above the ear. The accused who was neighbor, often used to abuse the deceased and Rukmani saying that they had raised a wall joining his roof and house, some day he would kill them. The walls of the roof the accused and the deceased are joined to each other. At the time of the incident, they saw that the door of the second floor of the deceased’s roof was open, which made them fully suspicious that the accused/ appellant had entered their house and killed the deceased by hitting him on the head with a sharp weapon like Tangiya. During investigation spot map was prepared and postmortem of dead body was done. On the day of incident itself, Crime No.80/16 was registered in Police Station Parpodi and the accused/appellant was taken into custody on 02.08.2016 and on the basis of his memorandum, the Tangiya used in the crime was seized, blood stained clothes were seized and seized articles were sent for chemical examination to Forensic Science Laboratory and the statements of the witnesses were recorded. After due 3 investigation, charge-sheet was filed. The appellant was charged for an offence punishable under Sections 449 & 302 of IPC, but he denied the charge and claimed trial. 3. In order to prove its case, the prosecution examined as many as 15 witnesses. Statement of the appellant under Section 313 CrPC was also recorded in which he pleaded his innocence and false implication in the case. 4. By the judgment impugned learned trial Court has held the accused/appellant guilty and imposed the sentence as described above which is challenged before this Court by the appellant.
Legal Reasoning
proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (AIR 1973 2622) 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, 5 (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. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 9. Therefore, in light of the above golden principle to sustain conviction in cases based on circumstantial evidence, this Court requires to analyze the evidence to see as to whether the prosecution was able to prove the case against the appellant beyond all reasonable doubts. 10. First question which comes for determination before this Court is as to whether the death of the deceased was homicidal in nature or not. This question, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/16) proved by Dr. A.K. Verma (PW-10), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 11. Now, the question for consideration would be whether the appellant is the author of crime in question ? 12. The learned trial Court has relied upon the following circumstances to hold conviction against the appellant:- (I) the deceased and the accused are neighbors and their houses are adjoining to each other. From other three directions no person could make an entry as only the roof top 6 of the appellant is adjoining. Therefore, any person could come to the house of the deceased by getting over to his roof top and then using the staircase. (ii) The deceased had constructed a room and the wall on his roof top and on account of the roof top of accused and the deceased being adjoined to each other and on account of construction of the wall, some dispute was going on between the accused and the deceased. (iii) Prior to the incident the deceased used to quarrel and abused the accused and just prior to the incident the accused has threatened the deceased of being done away with. (iv) On the disclosure statement of the accused a blood stained axe used for commission of crime was seized. (v) On the disclosure statement of accused, the clothes worn by the accused at the time of incident stained with blood were seized. (vi) Human blood was found on the axe and the clothes of the accused so seized. 13. First circumstance relied upon the learned trial Court is that the house of the deceased is only accessible through the roof of which is adjacent to the roof of the appellant. Second and third circumstances are related to motive. It has been held that on account of construction of wall on the roof there was a quarrel between the deceased and the appellant. The appellant has threatened the deceased to kill him. So far as first circumstance is concerned, the prosecution witnesses have stated that the house of the deceased could be accessed without opening the door from the roof of the appellant. However, this circumstance is interlinked with second and third circumstance as the prosecution has projected its case that as there was quarrel between the deceased and appellant on account of construction of wall on the roof hence the appellant entered the house through the roof and committed the murder of the deceased. This motive, the prosecution has tried to establish before the learned trial Court. 14. As regard motive, Duklha Nirmalkar (PW-1) stated that he is not aware about the 7 relationship between appellant and his brother (deceased). He shows his ignorance with regard to quarrel on account of construction of a room & wall on the roof of deceased’s house. He is unaware of threatening to kill given by the appellant to deceased. Similar statement is given by Kapil Nirmalkar (PW-2) who is another brother of deceased. Girija Bai Nirmalkar (PW-3) is the wife of deceased who has stated that no quarrel was there between the deceased and appellant on account of roof related dispute or threatening to kill by the appellant. She stated that the report was lodged based on suspicion. Vishnu Nirmalkar (PW-4) is the son of the deceased has stated that before the incident, appellant has filthily abused his father (deceased) and mother. He also deposed that appellant used to threaten his father to kill. However, in cross examination he admits that he came to Court with Goswami Advocate and that he had taught him to give the statement. He denied that he is giving statement on the saying of advocate. From these evidence brought by the prosecution when the family members are not certain with regard to dispute/ quarrel between the deceased and the appellant on account of roof dispute, in the opinion of this Court, circumstance of motive, dispute between the appellant and deceased on account of construction of room and wall on the roof of house of deceased has not been established by the prosecution beyond reasonable doubt. Even otherwise the suspicion howsoever strong it is, cannot take the place of proof. 15. The fourth, fifth & sixth circumstances relied by the learned trial Court are recovery of blood stained tangi (axe) and blood stained clothes that too the blood was found to be human blood. In order to prove the recovery of these articles on the strength of memorandum statement of appellant, the prosecution examined Suraj Mandal Sahu (PW-5). He stated that police has not interrogated the appellant in his presence. He admits his signature on memorandum (Ex.P-8). He further deposed that police has prepared the seizure of blood stained tangi (Axe) (Ex.P-9). The clothes were recovered from the house of appellant vide Ex.P-10 stained with blood. This witness was declared hostile. In examination by prosecution he denied that police has 8 recorded the memorandum of appellant before him in Parpodi Police Station. Then he admits that appellant has disclosed the place where the axe and clothes were concealed. Thereafter he admits the recovery of these articles at the instance of appellant. In cross examination he admits at the time of seizure of tangi (axe) appellant was present in the police station. He himself stated that at the instance of appellant they have brought out the tangi (axe). Similar statement is given with regard to recovery of clothes of appellant. He admits that no seizure was made from the appellant. He stated that on the saying of appellant police has found the tangi (axe) and clothes. Another witness of seizure of tangi (axe) and clothes is Dinesh Singh Markam (PW-8). In examination in chief he supports the case of prosecution with regard to recovery of articles. In cross examination he admits that tangi (axe) & clothes were not taken out by the appellant. From the evidence with regard to recovery of tangi (axe) and clothes it appears that the same was not taken out by the appellant. Rather it was found out by the witnesses with police. Arguendo, if it is assumed that the articles were recovered at the instance of appellant ipso facto not sufficient to hold him guilty until and unless it is proved beyond reasonable doubt that the same was used for commission of offence. 16. 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 between discovery of material object and its use in commission of offence and it has been held by their Lordships of the Supreme Court in the matter of Mustkeem Alias Sirajudeen v. State of Rajasthan reported in (2011) 11 SCC 724 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 9 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 Emperor reported in AIR 1947 PC 67 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 he 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." 17. Furthermore, in the matter of Raja Naykar v. State of Chhattisgarh reported in 2024 SCC Online SC 675 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 trial Court is absolutely unjustified in convicting the appellant for the offence in question, as the chain of circumstances is not complete as enumerated in Sharad Birdhichand Sarda (supra) and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt. 18. Accordingly, the impugned judgment of conviction and order of sentence dated
Arguments
5. Learned counsel for the appellant submits that the findings recorded by the trial Court convicting the accused/appellant for the offences as referred to above, being not based on just and proper appreciation of the evidence of the witnesses cannot be made to stand and are liable to be set aside. He submits that learned trial Court has failed to consider contradiction and omission in the evidence of the witnesses examined by the prosecution and thus has committed an error of law while holding the accused/appellant guilty. He submits that the prosecution has not been able to prove by adducing cogent and clinching evidence that it is the appellant who is the author of crime. He further submits that the conviction is based on circumstantial evidence, the chain of circumstances is not complete. He submits that the testimony of the witnesses does not inspire confidence and conviction cannot sustain on such testimony. In sum and substance he submits that the prosecution was not able to bring home the guilt of the accused/appellant beyond reasonable doubt and the appellant may be acquitted from all charges. 6. Learned State counsel supports the judgment impugned and submits that the findings of conviction and sentence of the appellant recorded by the trial Court are based on due appreciation of the record and therefore, no interference therewith is required in this appeal. He further submits that the prosecution has duly proved the guilt of the 4 appellant by leading prudent and cogent evidence. Prosecution on the basis of statement of witnesses able to prove the guilt of the appellant beyond reasonable doubt. Looking to the overt act and the manner in which the offence was committed, the appellant does not deserve any leniency. The judgment impugned is fully justified and the appeal is liable to be dismissed. 7. Heard counsel for the parties and perused the material available on record with great care and caution. 8. Law with regard to the circumstantial evidence is well settled. In the case of Sharad Birdhichand Sarada Vs. State of Maharashtra reported in AIR 1984 SC 1622 it has been held by the Hon’ble Supreme Court as under:- “152. 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
Decision
04.01.2018 is hereby set aside. In the result, the appeal is allowed. The appellant 10 stands acquitted from the charges framed against him for the offences punishable under Sections 302 & 449 of Indian Penal Code giving him benefit of doubt. 19. 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. Sd/- Sd/- (Sanjay K. Agrawal) Judge Judge (Sachin Singh Rajput) PARUL MITTAL Digitally signed by PARUL MITTAL Date: 2025.07.25 17:30:26 +0530 Parul