(Ari sing out of judgment dated 14.05.2019 passed in Sessions Trial No.02/2019 by the v. State of Chhattisgarh through the Station House
Case Details
1 CRA No. 1089 of 2019 ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.02.04 11:00:46 +0530 2025:CGHC:5259-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1089 of 2019 (Ari sing out of judgment dated 14.05.2019 passed in Sessions Trial No.02/2019 by the Sessions Judge, ) Ambikapur, District Surguja, Chhattisgarh. Anup @ Bigan Manjhi S/o Shyamsai Manjhi, aged about 20 years, Occupation-Cultivator/labour, R/o Village Kaljiva, Dumardugu, Police Station-Kamleshwarpur, District- Surguja, Chhattisgarh. ... Appellant versus State of Chhattisgarh through the Station House Officer, Police Station - Sitapur, District - Surguja, Chhattisgarh. ... Respondent For Appellant :- Ms. Meenu Banerjee, Advocate/Panel Lawyer, appointed by High Court Legal Services Committee. For State-Respondent :- Mr. Pankaj Singh, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (29.01.2025) 2 CRA No. 1089 of 2019 Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellant-accused, is to the legality, validity and correctness of the judgment dated 14.05.2019 passed by the Sessions Judge, Ambikapur, District Surguja, Chhattisgarh, in Sessions
Facts
Trial No. 02/2019 by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of ₹ 500/-; in default of payment of fine amount to undergo additional rigorous imprisonment for six months. Prosecution story:- 2. In the intervening night of 28.08.2018 & 29.08.2018 at village Sontarai, Khaalpara, Police Station – Sitapur, District – Surguja, Chhattisgarh, the appellant assaulted his wife Karamvati with axe by which she suffered grievous injuries and died and thereby committed the offence as mentioned in the opening paragraph of the judgment. 3. It is further case of the prosecution that Raghunath (PW-1), father of the deceased, reported the matter to the police that his daughter (deceased) came to his house along with the appellant three days prior to Rakshabandhan. On 3 CRA No. 1089 of 2019 28.08.2018, the appellant and the deceased both had gone to the house of Devnath (PW-2), elder brother of PW-1, for dinner and on the same day, in the night at about 10:00 pm, both came back to his (PW-1) house and went to sleep in separate room. On the next day i.e. 29.08.2018, in the morning at about 7:00 am, when Sachin (PW-3), son of PW- 1, entered into the room of the appellant and the deceased to give them tea, he saw the dead body of his sister (deceased) lying on the floor, thereafter he (PW-3) informed him (PW-1) who also reached to the spot and saw the dead body of his daughter lying on the floor and appellant was not present in the room, pursuant to which merg intimation was registered vide Ex.P/1 and FIR was registered vide Exs.P/2 & P/2B. Crime detail form was prepared vide Ex.P/3. Spot map and Panchnama were prepared vide Exs.P/10A & P/10B, respectively. Wheels of investigation started running and the appellant was arrested. Inquest proceedings (Ex.P/5) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/11) proved by Dr. Amosh Kindo (PW-5) mode of death was syncope due to grievous neck injury lead to death due to failure of funcition of the heart resulting in hypoperfusion and hypoxia of the brain 4 CRA No. 1089 of 2019 because of heamorrhage and homicidal in nature. Pursuant to memorandum statement of the appellant weapon of offence i.e. axe and his clothes were seized. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/19) on the soil which was seized from the spot; on the weapon of offence i.e. axe & on the jeans of the appellant, which were seized pursuant to memorandum statement of the appellant human blood of group “A” was found and on the blanket (article C), seized from the spot, and blouse of the deceased (article F) human blood was found and as per query report (Ex.P/12) proved by Dr. Amosh Kindo (PW-5) the injuries which were found over the body of the deceased could be caused by the said seized axe. 4. After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 7 witnesses and exhibited 20 documents, whereas, the appellant in defence has neither examined any witness nor 5 CRA No. 1089 of 2019 exhibited any document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:-
Legal Reasoning
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 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.” 13. The trial Court has culled out the following incriminating circumstances in paragraph No. 14 of its judgment, which state as under:- “14. अभि(cid:3)यो(cid:5)जन की(cid:9) ओर से(cid:13) इसे ्ቚकीरण ेሰ(cid:18) आर(cid:5)पी(cid:21) पीर आर(cid:5)भिपीत उपीर(cid:5)्ሹन(cid:25)से(cid:26)र अपीर(cid:26)ध की(cid:13) से(cid:28)बं(cid:28)ध ेሰ(cid:18) ज(cid:5) पीरिरቝኌ !भितयो(cid:26)(cid:28) बंत(cid:26)ई गई ैሻ%, वे(cid:13) भिनम्न(cid:26)न(cid:25)से(cid:26)र ैሻ%- घटन(cid:26) भि+न(cid:26)(cid:28)की की(cid:13) र(cid:26)भि, ेሰ(cid:18) ेሰ-भितकी(cid:26) कीरेሰवेत(cid:21) वे आर(cid:5)पी(cid:21) की(cid:5) (ए) घटन(cid:26) !ल वे(cid:26)ल(cid:13) कीेሰर(cid:13) ेሰ(cid:18) से(cid:26)!- से(cid:26)! से(cid:5)(cid:13)न(cid:26) त!(cid:26) से(cid:25)बंैሻ घटन(cid:26) !ल वे(cid:26)ल(cid:13) कीेሰर(cid:13) से(cid:13) ेሰ-भितकी(cid:26) की(cid:9) ल(cid:26)श की(cid:5) चो(cid:5)भिटल ैሻ(cid:26)लत ेሰ(cid:18) बंर(cid:26)ेሰ+ भिकीयो(cid:26) ज(cid:26)न(cid:26) वे तत्से(cid:28)बं(cid:28)ध ेሰ(cid:18) आर(cid:5)पी(cid:21) ቛኋ(cid:26)र(cid:26) की(cid:5)ई पीቖኍ(cid:21)कीरण नैሻ4 भि+यो(cid:26) ज(cid:26)न(cid:26)। 2 (1973) 2 SCC 793 9 CRA No. 1089 of 2019 (बं(cid:21)) घटन(cid:26) की(cid:13) बं(cid:26)+ घटन(cid:26) !ल से(cid:13) आर(cid:5)पी(cid:21) की(cid:26) फर(cid:26)र ैሻ(cid:5) ज(cid:26)न(cid:26)। (से(cid:21)) आर(cid:5)पी(cid:21) की(cid:13) ेሰ(cid:13)ेሰ(cid:5)र(cid:13)ण्डेሰ बंयो(cid:26)न की(cid:13) आध(cid:26)र पीर आर(cid:5)पी(cid:21) से(cid:13) घटन(cid:26) ेሰ(cid:18) ्ቚयो(cid:25)्ሹ ट(cid:26)(cid:28)ग(cid:21) की(cid:9) जब्त(cid:21) भिकीयो(cid:26) ज(cid:26)न(cid:26) त!(cid:26) आर(cid:5)पी(cid:21) से(cid:13) घटन(cid:26) की(cid:13) सेेሰयो पीैሻन(cid:13) ज4से पी(cid:18)ट वे ट(cid:26)(cid:28)ग(cid:21) ेሰ(cid:18) एकी ैሻ(cid:21) सेेሰ:ैሻ की(cid:26) र्ሹ पी(cid:26)यो(cid:26) ज(cid:26)न(cid:26)।" 14. First incriminating circumstance :- In the case at hand, the trial Court has proceeded to convict the appellant for the offence under Section 302 of the IPC on the basis of theory of last seen together as they were together lastly seen by Raghunath (PW-1), father of the deceased, & Sachin (PW-3), brother of the deceased, and also invoked Section 106 of the IEA to base the conviction of the appellant as the appellant and the deceased only two inmates were in the room in question on the date and time of offence, therefore, the appellant is required to explain as to how and under what circumstances his wife died, which he failed. As per the statement of Raghunath (PW-1) on 28.08.2018, the appellant and the deceased both had gone to the house of Devnath (PW-2), elder brother of PW-1, to have dinner and after that in the night at about 10:00 pm they came to his (PW-1) house and went to sleep in the room and on the next day i.e. 29.08.2018 in the morning at about 7:00 am when his son (PW-3) went to the room of the appellant and the deceased to give them tea, he (PW-3) saw his sister lying dead on the floor, thereafter, he called him 10 CRA No. 1089 of 2019 (PW-1) and he also saw her daughter lying dead on the floor and the appellant was not present as he had absconded. Similarly, Sachin (PW-3), brother of the deceased, has clearly stated that on 28.08.2018, the appellant and the deceased both had gone to the house of Devnath (PW-2) to have dinner and after having dinner, in the night at about 10:00 pm, they came to the house and went to sleep in separate room and on the next day i.e. 29.08.2018 in the morning at about 7:00 am, when he (PW-3) went to the room of the appellant and the deceased to give tea, he (PW- 3) saw his sister lying dead on the floor and the appellant was not present as he had absconded. Devnath (PW-2) in his statement before the Court has admitted the fact that on 28.08.2018, the appellant and the deceased, both came to his house and had dinner and thereafter, they went to the house of Raghunath (PW-1). They have been subjected to some extent of cross-examination, but nothing has been extracted to hold that they have not seen the appellant and the deceased together lastly and the appellant was not present on the date and time of offence. As such, from the statements of Raghunath (PW-1), Devnath (PW-2) and Sachin (PW-3) theory of last seen is clearly established as they had seen the appellant in the night of 28.08.2018, 11 CRA No. 1089 of 2019 along with his wife Karamvati (deceased) in the house of Raghunath (PW-1) when they were going to sleep in the room in question and on the next day i.e. 29.08.2018, in the morning, the dead body of the deceased was found. The said finding recorded by the trial Court is correct finding of fact based on evidence available on record and we hereby affirm the said finding. 15. Now, the question for consideration is whether the trial Court has rightly invoked Section 106 of the IEA to base the conviction of the appellant for offence under Section 302 of the IPC ? 16. At this stage, it would be appropriate to notice the relevant judgments with regard to Section 106 of the IEA. 17. In the matter of Anees v. The State Govt. of NCT3, their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the IEA, have held in paragraphs 47 to 55 as under:- “47. But Section 106 of the Evidence Act has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only to the accused but also to others, if they happened to be present when it took place. The 3 2024 SCC Online SC 757 12 CRA No. 1089 of 2019 intention underlying the act or conduct of any individual is seldom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived. Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under illustration (a) to this section, it may be assumed that he had that intention, unless he proves the contrary. 48. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence, which if believed by the court, would convince them of the accused's guilt beyond a reasonable doubt, the accused, if in a position, should go forward with counter-vailing evidence, if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might arise therefrom. Although not legally required to produce evidence on his own behalf, the accused may, therefore, as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution [See: Balvir Singh v. State of Uttarakhand, 2023 SCC OnLine 1261] ” (foundational facts) ii. What is “ in the context of Section 106 of the Evidence Act? prima facie case 49. The Latin expression prima facie means “at first 13 CRA No. 1089 of 2019 sight”, “at first view”, or “based on first impression”. According to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the case or charges against the defendant. If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties. 50. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused. 51. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. 52. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in State of W.B. v. Mir Mohammad and ors. (2000) 8 SCC 382, wherein this Court has observed in paras 36 and 37 respectively as under: “36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn 14 CRA No. 1089 of 2019 regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.” (Emphasis supplied) 53. We should also look into the decision of this Court in the case of Ram Gulam Chaudhary & Ors. v. State of Bihar, (2001) 8 SCC 311, wherein this Court made the following observations in paragraph 24 as under: “24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said “he is still alive and should be killed”. The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a 15 CRA No. 1089 of 2019 different inference. We, therefore, see no substance in this submission of Mr. Mishra.” (Emphasis supplied) 54. Cases are frequently coming before the courts where the husband, due to strained marital relations and doubt as regards the character, has gone to the extent of killing his wife. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, like in the case at hand, even if he is a witness of the crime, would come forward to depose against another family member. 55. If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at a time and in the circumstances of his choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused. It is to resolve such a situation that Section 106 of the Evidence Act exists in the statute book. In the case of Trimukh Maroti Kirkan (supra), this Court observed that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. The Court proceeded to observe that a Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character, which is almost impossible to be led, or at any rate, extremely difficult to be led. The duty on the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case.” 18. In the foregoing paragraphs, we have already discussed and found proved the theory of last seen together. Coming to the facts of the present, in light of the principles of law laid down by their Lordships of the Supreme Court in the above stated judgments, it is quite vivid that the deceased 16 CRA No. 1089 of 2019 was the wife of the appellant and they went to the house of Raghunath (PW-1), father of the deceased, on the occasion of Rakshabandhan. Further as per the statements of Raghunath (PW-1) and Sachin (PW-3), on 28.08.2018, they had seen the appellant along with the deceased in the night while they were going to sleep in the room in question and on the next day 29.08.2018 in the morning at about 7:00 am Karamvati was found dead. As such, the appellat was the only person who was present with the deceased on the date and time of offence, therefore, the appellant is required to explain as to how and under what circumstances his wife Karamvati died, which he failed to explain while recording his statement under Section 313 of the CrPC. Hence, the trial Court has rightly invoked Section 106 of the IEA to base the conviction of the appellant for offence under Section 302 of the IPC and we hereby affirm the said finding of the trial Court. 19. Second incriminating circumstance i.e. subsequent conduct of the appellant:- In this regard the trial Court has clearly recorded a finding in paragraph No. 22 of its judgment that on 29.08.2018, the appellant absconded from the spot after committing the offece on the basis of the 17 CRA No. 1089 of 2019 statements of Raghunath (PW-1), Sachin (PW-3) & Devnath (PW-2). As per the statement of Raghunath (PW-1), when his son Sachin (PW-3) informed him about the incident, he immeditately reached to the spot, room in which the appellant and the deceased were sleeping, and saw the dead body of her daughter and the appellant was not present in the room as he had absconded. The aforesaid statement of Raghunath (PW-3) supported by the statement of Sachin (PW-3) who in his statement before the Court has clearly stated that on 29.08.2018, in the morning at about 7:00, when he entered into the room of the appellant and the deceased to give them tea, he saw his sister Karamvati lying dead on the floor and the appellant was not present as he had absconded. Similarly, Devnath (PW-2), elder brother of PW-1, in his statement before the Court has stated that when he reached to the spot he saw the dead body of the deceased and the appellant was not present as he had already absconded. He (PW-2) further stated that on being informed that the appellant is absconding, villagers caught the appellant, 5 km to 6 km far from the house his house and handed over him to the police. They (PW-1, PW- 2 & PW-3) have been subjected to lenghty cross examination, but nothing has been extracted to hold that 18 CRA No. 1089 of 2019 they have falsely implicated the appellant in crime in question. As such, the trial Court has rightly taken the above-stated fact i.e. subsequent conduct of the appellant, as one of incriminating circumstances to base the conviction of the appellant. 20. Last incriminating circumstance :- The trial Court has found that pursuant to memorandum statement of the appellant (Ex.P/8), blood stained weapon of offence i.e. axe & blood stained clothes of the appellant were seized vide Ex.P/9. Moreover, in the query report (Ex.P/12) proved by Dr. Amosh Kindo (PW-5), it has been opined that the injuries caused over the body of the deceased could be caused by the said seized axe. Even otherwise, in corroboration, the trial Court has found proved that in the chemical analysis of the seized articles [FSL report (Ex.P/19)] human blood of group ‘A’ was found on the axe & jeans of the appellant, both were seized pursuant to memorandum statement of the appellant, and also on the soil human blood of group ‘A’ was found and on the blanket and blouse of the deceased also human blood was found. As such, the seizure of the aforesaid incriminating articles pursuant to the memorandum statement of the appellant, 19 CRA No. 1089 of 2019 on which human blood of group ‘A’ has been found in the FSL report, also connects the appellant with the commission of the crime and, therefore, the finding of the trial Court in this regard also a correct finding of fact based on evidence available on record and we hereby also affirm the said finding of the trial Court. Conclusion:- 21. In view of the aforesaid discussion and analysis, firstly the nature of death of deceased to be homicidal in nature has been duly found to be established from the evidence of Medical Officer, Dr. Amosh Kindo (PW-5). The theory of last-seen together on the basis of the statements of Raghunath (PW-1), Devnath (PW-2) and Sachin (PW-3) has also been found to be established beyond doubt and as such Section 106 of the IEA is squarely attracted in the instant case. Similarly, on the incriminating articles i.e. axe (weapon of offence), jeans of the appellant and soil, human blood of group ‘A’ was found and on the clothe (blouse) of the deceased & blanket human blood was found in the FSL report (Ex. P-19) which also establishes the involvement of the appellant in the crime in question in shape of corroboration of the other incriminating circumstance which have been found proved and established. As such, in 20 CRA No. 1089 of 2019 our considered opinion, the prosecution has discharged its primary burden of proving its case and also completed the chain of circumstances in light of decision of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra). 22. In that view of the matter, we do not find any merit in the instant appeal, it deserves to be and is accordingly, dismissed. 23. The Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal under Article 136 of the Constitution of India 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/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit
Arguments
7. Ms. Meenu Banerjee, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence in question by invoking Section 106 of the Indian Evidence Act, 1872 (for short ‘IEA’). She would also submit that the prosecution has failed to bring home the offence as the theory of last seen together has not been established, as such, the appeal deserves to be allowed and the appellant is entitled for acquittal on the basis of benefit of doubt. 6 CRA No. 1089 of 2019 8. On the other hand, Mr. Pankaj Singyh, learned State counsel, would support the impugned judgment and submit that prosecution has been able to prove the offence beyond reasonable doubt. He would further submit that last seen has been found established and the trial Court has rightly invoked Section 106 of the IEA to base the conviction of the appellant as it is the appellant who was present in the room along with the deceased and he has also failed to exaplian in his statement recorded under Section 313 of the CrPC as to how and under what circumstances his wife died. Even otherwise, the subsequent conduct of the appellant is also a relevant fact to base the conviction of the appellant as he absconded from the spot, therefore, the trial Court has rightly convicted the appellant for the aforesaid offence. Thus, the instant appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely. Discussion & Analysis :- 10. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial 7 CRA No. 1089 of 2019 Court in affirmative relying upon the postmortem report (Ex.P/8) proved by Dr. Amosh Kindo (PW-5), 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 has assaulted the deceased? 12. The case of the prosecution is based on the circumstantial evidence and the trial Court has found incriminating circumstances established. The five golden principles which constitute 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 in paragraph 153 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. 1 (1984) 4 SCC 116 8 CRA No. 1089 of 2019 Sahabrao Bobade v.