State of Chhattisgarh v. Sannu and
Case Details
Page No.1 of 12 IN CRA-539-2015 SAIFAN KHAN Digitally signed by SAIFAN KHAN HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 539 of 2015 2025:CGHC:34433-DB NAFR [Arising out of impugned judgment dated 13.12.2014, passed in Sessions Trial No.97 of 2014 (State of Chhattisgarh v. Sannu and 02 others) by the 3rd Additional Sessions Judge, Jagdalpur (CG)] 1 – Sannu, S/o Budhu Madiya, aged about 24 years, R/o Koyaki Marapara, Village Dilmili Police Station Kodenar Revenue and Civil District Bastar, (Chhattisgarh) 2 - Lakhamo (Abated) as per Court Order Dated 07-05-2025 ... Appellant (On Bail) Versus State of Chhattisgarh, through Police Station Kodenar, District Bastar (Chhattisgarh) [Cause-title taken from Case Information System (CIS)] ... Respondent ---------------------------------------------------------------------------------------------- For Appellant For Respondent ---------------------------------------------------------------------------------------------- : Mr. P.K. Tulsyan, Advocate : Mr. Amit Buxy, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board (21.07.2025) Sanjay K. Agrawal, J (1) This criminal appeal preferred by the appellant/accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 13.12.2014, passed in Sessions Trial No.97 of 2014 (State of Chhattisgarh v. Sannu and 02 others) by Page No.2 of 12 IN CRA-539-2015 the 3rd Additional Sessions Judge, Jagdalpur (CG), whereby he have been convicted for offence under Section 302 read with Section 34 of IPC and sentenced to undergo imprisonment for life with fine of Rs.200/- and, in default of payment of fine, additional rigorous imprisonment for 02 months. (2) The case of the prosecution, in a nutshell, is that on 26.06.2014, at about 11-12 PM in the night, at Village Koikimari Para (Dilmili), in
Facts
the fields of Lakhamu (PW-08), the appellant herein alongwith other accused persons firstly shared common intention of killing one Dasidevi (herein after referred to as the “deceased”) and, in furtherance thereof, assaulted the deceased by means of axe on his head, cut his private part by knife, due to which he died and, thereby, the appellant is said to have committed the aforesaid offence. (3) It is further case of the prosecution that the appellant and the deceased were close relative and, on account of some land dispute, previous enmity existed between them, therefore, on the date of incident the appellant alongwith other co-accused persons, caused death of the deceased while he was returning to his village and brought the dead-body of the deceased to his house, which incident was witnessed by Lakhamu (PW-08,) in whose fields the incident took place and Butalo (PW-13) i.e. wife of the deceased. Thereafter, when the incident was reported to the police on the next day, FIR (Ex.P/01) and merg intimation (Ex.P/02) was registered and wheels of Page No.3 of 12 IN CRA-539-2015 investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/15 and inquest proceedings were also conducted vide Ex.P/10. The dead-body of the deceased was sent for postmortem examination and in the postmortem report (Ex.P/30), conducted by Dr. D.P. Bhardwaj (PW-11), it has been opined that the cause of death of the deceased is excessive external and internal bleeding, due to hypovolemic shock and cardiopulmonary failure and nature of death is homicidal. Spot map was prepared vide Ex.P/32. The accused-appellant was arrested vide Ex.P/22. Axe and knife has also been seized vide Ex.P/04 from the spot. Further, clothes of the deceased were also seized vide Ex.P/13. The aforesaid seized articles were sent for chemical examination and, as per FSL report (Ex.P/27), it has been opined that stains of bloods were found only on the clothes of the deceased, whereas no stains of blood were found on the axe and knife seized vide Ex.P/04. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant and other accused persons in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured their guilt and entered into defence by stating that they are innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 14 witnesses and exhibited 34 documents, whereas the Page No.4 of 12 IN CRA-539-2015 appellants/accused in support of their defence, have neither examined any witness nor exhibited any document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant herein for offences under Section 302/34 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.
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 Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 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." 1 (1984) 4 SCC 116 Page No.8 of 12 IN CRA-539-2015 (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) We shall now consider each of the above-stated incriminating circumstance in light of the aforesaid five golden principles and evidence available on record one by one in order to adjudged whether the appellant herein has rightly been convicted or not. As regards incriminating circumstances No.1 & 2: (14) So far as first two incriminating circumstances are concerned, it is the case of the prosecution that the appellant and the deceased both were close relative and between them a land dispute existed. However, there is no documentary evidence available on record to substantiate the said fact that there exists some land dispute between the appellant and the deceased. Except the self-serving statement of Butalo (PW-13), who is the wife of the deceased that there was a dispute between the appellant and the deceased with regard to land, there is no other evidence available on record Page No.9 of 12 IN CRA-539-2015 establish the said fact. As such, it would unsafe and risky to hold that on account of some land dispute/previous enmity the appellant has caused murder of the deceased. We hereby hold accordingly. As regards incriminating circumstances No.3 & 4: (15) This incriminating circumstance deals with the nature of death of the deceased to be homicidal, which we have already discussed in above Para-09 and, therefore, need not be considered again. As regards incriminating circumstances No.5: (16) In this circumstance, it has been mentioned that the soil, which was seized from the spot, was sent to chemical examination, whereby stains of blood was found in it according to FSL report. However, this cannot be treated to be an incriminating circumstance against the appellant, as the said soil was not seized from the possession of the appellant, indeed, it was seized from the spot. It is held accordingly. As regards incriminating circumstances No.6, 7 & 8: (17) It is also the case of the prosecution that after the incident, the appellant brought the dead-body of the deceased into his house, which has been seen by Butalo (PW-13). However, Butalo (PW-13) in Para- 25 of her statement has clearly admitted that she has not seen the appellant bringing the dead-body of her husband (deceased) into her house. Indeed, she specifically stated that on the date of offence, as it was night hours, she was sleeping in her house alongwith her son after having dinner As such, from the statement of Butalo (PW-13) it Page No.10 of 12 IN CRA-539-2015 is not established that after the incident, the appellant brought the dead-body of the deceased into his house. We hereby hold accordingly. As regards incriminating circumstance No.9: (18) It is stated that the appellant failed to give explanation with regard to the above incriminating circumstances while recording his statement under Section 313 of CrPC, but in view of above findings arrived at by us, since none of the above discussed incriminating circumstance have been proved against the appellant, therefore, it cannot be presumed that the appellant has to give explanation with regard to the same in his statement recorded under Section 313 of CrPC more particularly when the appellant has denied all the incriminating circumstances questioned against him. We hereby hold accordingly. As regards incriminating circumstances No.10 & 11: (19) So far as last two circumstances are concerned, the same relates to convening of village meeting after the incident and lodging of FIR and merg by the Kotwar of the Village and handing over the axe and knife, found from the spot, to the police. However, it is not the case of the prosecution that the said axe and knife has been seized pursuant to the memorandum statement of the appellant or it has been found in the possession of the appellant herein. Therefore, in light of the decision of Boby v. State of Kerala 2 the recovery of said axe and knife 2 2023 LiveLaw (SC) 50 Page No.11 of 12 IN CRA-539-2015 is of no help to the prosecution. So far convening of village meeting after the incident is concerned, it is quite obvious that in village area these types of meeting is usually convened after any incident and, thereafter, the matter used to be reported to the police by way of lodging merg and FIR and, as such, the same cannot be treated to be an incriminating circumstance against the appellant to hold him guilty for the offence in quseetion. We hereby hold accordingly. (20) In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellant for offence under Section 302/34 of IPC being the author of the crime in question in light of above-mentioned incriminating circumstances and same is liable to be set aside. (21) Accordingly, the conviction and sentence of the appellant for offence punishable under Section 302/34 of IPC, as imposed upon him by the learned trial Court, are hereby set aside. He is acquitted of the said charges on the basis of benefit of doubt. Since the appellant is reported to be on bail, therefore, he need not to surrender. However, his bail bonds shall remain in operation for a further period of 06 months in view of provision contained under Section 437-A of CrPC. Page No.12 of 12 IN CRA-539-2015 (22) This criminal appeal is allowed. (23) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) Judge Judge (Sachin Singh Rajput) s@if
Arguments
(6) Mr. P.K. Tulsyan, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302/34 of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that Lakhamu (PW-08) and Butalo (PW- 13), who have allegedly seen the incident of appellant assaulting the deceased and causing his murder and bringing the dead-body of the deceased into his house, has completely turned hostile and not at all supported the case of the prosecution. Even otherwise, the incriminating circumstances that has been culled out in Para-36 of the impugned judgment are established beyond reasonable doubt and, therefore, the appellant is entitled for acquittal. Hence, in view of aforesaid illegalities and perversity in the impugned judgment, the present appeal deserves to be allowed and the appellant is liable to be Page No.5 of 12 IN CRA-539-2015 acquitted of the said charge on the basis of benefit of doubt. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. In view of statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offences under Section 302/34 of IPC and, therefore, the present appeal deserves to be dismissed. (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 and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/30), wherein it has been opined that cause of death of the deceased is excessive external and internal bleeding, due to hypovolemic shock and cardiopulmonary failure and nature of death is homicidal, which is duly proved by the statement of Dr. D.P. Bhardwaj (PW-11). Accordingly, taking into consideration the postmortem report (Ex.P/30) and the statement of Dr. D.P. Bhardwaj (PW-11), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the Page No.6 of 12 IN CRA-539-2015 deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. (10) Now, the next question would be whether the accused-appellant herein are the author of the crime or not? (11) In the case at hand, though it is the case of the prosecution that Lakhamu (PW-08) is the eye-witness to the incident, however, a careful perusal of the evidence of Lakhamu (PW-08) would show that he has turned hostile and not supported the case of the prosecution at all, which the learned trial Court has also mentioned in the impugned judgment. As such, the present case is not based on direct evidence, indeed, it is based on circumstantial evidence as culled out in Para-36 of the impugned judgment, which reads as under: “1- आरो(cid:3)पी(cid:5)गण मृ(cid:9)तक क(cid:12) रिरोश्त(cid:12) मृ(cid:15) नि(cid:17)कट सं(cid:20)बं(cid:20)धी(cid:5) ैሻ(cid:24) । आरो(cid:3)पी(cid:5)गण एवं(cid:20) मृ(cid:9)तक क(cid:12) मृध्य जमृ(cid:5)(cid:17) क(cid:31) बं(cid:20)टवं(cid:31)रो(cid:31) हुआ था(cid:31), जिजसंमृ(cid:15) 2- मृ(cid:9)तक (cid:17)(cid:12) ज्य(cid:31)दा(cid:31) जमृ(cid:5)(cid:17) क(cid:31) निैሻस्सं(cid:31) लि’य(cid:31) था(cid:31) । 3- मृ(cid:9)तक क( मृ(cid:9)त्य* ैሻत्य(cid:31)त्मृक ्ቚक(cid:9) नित क( था(cid:5) । लि,निकत्संक ቛኋ(cid:31)रो(cid:31), 4- आ(cid:17)(cid:31) बंत(cid:31)य(cid:31) ैሻ2। मृ(cid:9)तक क(cid:3) क(cid:31)रिरोत ,(cid:3)ट(cid:15) जब्तशु*दा(cid:31) ट(cid:20)निगय(cid:31) एवं(cid:20) छू1 रो(cid:5) सं(cid:12) ज3दारो(cid:31) बं(cid:31)़ቡ(cid:5) ቝኌ6त घट(cid:17)(cid:31) 6’ सं(cid:12) उठा(cid:31)य(cid:5) गय(cid:5) मिमृሾኍ< मृ(cid:15) एफ०एसं०ए’० 5- रिरोपी(cid:3)ट? मृ(cid:15) रोक्त ैሻ(cid:3)(cid:17)(cid:31) बंत(cid:31)य(cid:31) गय(cid:31) । दुቝኋ(cid:31)?ग्यपी1ण? घट(cid:17)(cid:31) रो(cid:31)ቔኍ(cid:5) क(cid:3) आरो(cid:3)पी(cid:5) क(cid:31) शुवं ज3दारो(cid:31) बं(cid:31)़ቡ(cid:5) खे(cid:12)त सं(cid:12) बंFसं 6- क(cid:12) डो(cid:3)’(cid:12) मृ(cid:15) ’(cid:31)करो मृ(cid:9)तक क(cid:12) घरो क(cid:12) ऑग(cid:17) मृ(cid:15) रोखे दिदाय(cid:31) गय(cid:31) था(cid:31) । मृ(cid:9)नितक(cid:31) क( पीत्(cid:17)(cid:5) क(cid:12) ቛኋ(cid:31)रो(cid:31) रो(cid:31)ቔኍ(cid:5) मृ(cid:15) आरो(cid:3)पी(cid:5) गण ቛኋ(cid:31)रो(cid:31) मृ(cid:9)तक क(cid:3) बंFसं क(cid:12) 7- डो(cid:3)’(cid:12) मृ(cid:15) ’(cid:31)करो उसंक(cid:12) घरो क(cid:12) सं(cid:31)मृ(cid:17)(cid:12) रोखे(cid:17)(cid:31) दा(cid:12)खे(cid:31) ज(cid:31)(cid:17)(cid:31) बंत(cid:31)य(cid:31) ैሻ2। रोक्तरो(cid:20)जिजत बंFसं क(cid:31) डो(cid:3)’(cid:31) घट(cid:17)(cid:31) क(cid:12) दूसंरो(cid:12) 8- दिदा(cid:17) निवंवं(cid:12),(cid:17)(cid:31) क(cid:12) दाKरो(cid:31)(cid:17) गवं(cid:31)ैሻ3 क(cid:12) संमृ्ቌ पी*लि’सं ቛኋ(cid:31)रो(cid:31) मृ(cid:9)तक क(cid:12) घरो क(cid:12) आMग(cid:17) सं(cid:12) ैሻ(cid:5) जब्त निकय(cid:31) गय(cid:31) था(cid:31) । Page No.7 of 12 IN CRA-539-2015 9- आरो(cid:3)पी(cid:5)गण ቛኋ(cid:31)रो(cid:31) उपीय* कथा(cid:17) अ(cid:20)तग?त धी(cid:31)रो(cid:31) 313 ?क्त इसं पीरिरोቝኌ6नित क(cid:12) सं(cid:20)बं(cid:20)धी मृ(cid:15) अपी(cid:17)(cid:12) अभिቝኋय*क्त मृ(cid:15) क(cid:3)ई ्ቢቖኍ(cid:5)करोण करो(cid:17)(cid:12) मृ(cid:15) निवंफ’ रोैሻ(cid:12) ैሻ(cid:24) । जिजम्मृ(cid:12)दा(cid:31)रो पीदा(cid:31)मिधीक(cid:31)रिरोय3 क(cid:3)टवं(cid:31)रो, 10- दुቝኋ(cid:31)?ग्यपी1ण? घट(cid:17)(cid:31) दा(cid:12)रो रो(cid:31)ቔኍ(cid:5) घदिटत हुई था(cid:5) तथा(cid:31) उसंक(cid:12) दूसंरो(cid:12) दिदा(cid:17) पी1वं(cid:31)?्ቡ मृ(cid:15) ग(cid:31)Mवं वं(cid:31)’3 ቛኋ(cid:31)रो(cid:31) मिमृिሡटVग आय(cid:3)जिजत क( गय(cid:5) था(cid:5) तथा(cid:31) मिमृिሡटVग क(cid:12) पीቐኋ(cid:31)तX ैሻ(cid:5) संरोपी(cid:20), एवं(cid:20) अन्य ्ቤቝኌक्तय3 ቛኋ(cid:31)रो(cid:31) ग(cid:31)Mवं क(cid:12) क(cid:3)़ቡ(cid:12)(cid:17)(cid:31)रो था(cid:31)(cid:17)(cid:12) मृ(cid:15) ज(cid:31)करो आरो(cid:3)पी(cid:5)गण संቐ1 ’खेमृ1, निपीसं(cid:3), 15 निक0मृ(cid:5)0 दूरो, निवंरू्ቍ (cid:17)(cid:31)मृजदा ्ቚथामृ सं1,(cid:17)(cid:31) ्ቚनितवं(cid:12)दा(cid:17) एवं(cid:20) मृग? इण्ट<मृ(cid:12)शु(cid:17) दाज? आयत1 क(cid:12) करो(cid:31)य(cid:31) गय(cid:31) । — गFवं क(cid:12) क(cid:3)टवं(cid:31)रो ቛኋ(cid:31)रो(cid:31) ैሻ(cid:5) बंतKरो ्ቚ(cid:31)था‘ एफ0आई0आरो0 दाज? करो(cid:31)(cid:17)(cid:12) क(cid:12) ट(cid:20)निगय(cid:31) एवं(cid:20) छू1 रो(cid:5) क(cid:3) पी*लि’सं क(cid:3) ्ቚस्त*त निकय(cid:12) ज(cid:31)(cid:17)(cid:12) पीरो 11- सं(cid:31)था ैሻ(cid:5) सं(cid:31)था ैሻलिथाय(cid:31)रो- ” पी*लि’सं ቛኋ(cid:31)रो(cid:31) जब्त निकय(cid:31) गय(cid:31) था(cid:31) । (12) Since, the present case is based on above-stated circumstantial evidence, therefore, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 1 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under: “153. …. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.