Vivek Kumar Pandey v. State Of Chhattisgarh Through Station In Charge, Police Station Janakpur

Judgment

24/11/2025

#1. This appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 18/08/2023 passed in Sessions 2 CRA No. 1779 of 2023 Trial No. 41/2019 by the learned II Additional Sessions Judge, Manendragarh, Distt. Korea (C.G.), whereby the appellant has been convicted under Section 302 of the Indian Penal Code (henceforth ‘the IPC’) and sentenced to undergo life imprisonment and fine of Rs. 1000/-, with default stipulation.

The facts of the case, in brief, are on 28.03.2019 at about 6:30 a.m., the complainant Prakash Narayan Gupta brought his daughter, Pragya Gupta (henceforth ‘the Deceased’), to Jankpur for her college examination. After the examination, at around 10:30 a.m., the Deceased spoke to her mother, and thereafter went with her friends Poonam and Najreen to a hotel where they ate samosas; she then visited “Sifa Mobile” shop to submit her mobile phone for repair and subsequently went elsewhere. When the Deceased did not return home till 6:00 p.m., her family members searched for her among relatives, and on not finding her, her father lodged a missing person report at Police Station Jankpur at 20:10 hours, leading to registration of Missing Person No. 13/2019 in Rojnamcha Sanha No. 47. On 30.03.2019, information was received that the body of a girl was found hanging with a black scarf from a branch of a Sarai tree near Phooljhar Nala Sangam, with her knees touching the ground. Upon this information given by Prakash Narayan Gupta, Merg Intimation No. 07/2019 under Section 174 CrPC was registered and enquiry was undertaken. A spot map was prepared, articles lying at the spot were seized, inquest was conducted, and the body was sent for postmortem. At the scene, deceased sandal, purse, handkerchief, and a 3 CRA No. 1779 of 2023 scattered scale were found, along with a pair of blue-grey Nike sports shoes. During this time, Deepak Gupta informed that accused Vivek Pandey had been wearing similar blue-grey sports shoes on 28.03.2019. The postmortem report opined the death to be homicidal. During the merg enquiry, evidence surfaced indicating that the Deceased had been murdered by the appelalnt, upon which Crime No. 41/2019 under Section 302 IPC was registered on 30.03.2019 at 20:10 hours. During investigation, certain property was seized on the basis of the memorandum of the accused, and the CDR of the mobile phones of the Deceased and the accused were obtained. Finding sufficient material showing the involvement of the appellant, he was arrested on 31.03.2019 at 17:30 hours Upon completion of the investigation, a charge-sheet was filed on

18.06.2019. Charge under Section 302 IPC was framed against the accused, who denied the accusation and claimed false implication. His statement under Section 313 CrPC was recorded, wherein he reiterated his innocence. Although the accused expressed his desire to adduce defence evidence, no defence witness was examined. In order to bring home the charges, the prosecution examined as many as 19 witnesses in its support.

#3. After appreciation of the evidence available on record, the learned trial Court convicted the accused/appellant and sentenced him as mentioned in paragraph one. of the judgment. Hence, this appeal. 4 CRA No. 1779 of 2023

#4. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case and that there is no convincing or cogent evidence to establish that the Deceased had ever accompanied the appellant on the date of the alleged incident. He submits that the prosecution has failed to prove the ‘last-seen’ circumstance, as none of the material witnesses namely Poonam Yadav (PW-1), Nazreen Bano (PW-4), or Deepak Gupta (PW-6) have stated before the Court that the appellant came to meet the Deceased on 28.03.2019 or that the Deceased left the hotel or the mobile shop in his company. It is urged that the entire prosecution case rests on conjectures and assumptions without any substantive evidence connecting the appellant to the Deceased’s movements on that day. He would further submit that even the alleged recovery of a pair of Nike sports shoes fails to advance the prosecution case. The shoes were not seized from the possession of the appellant, and there is no reliable evidence that they belonged to him. The prosecution has not produced any independent witness or any documentary proof, such as purchase receipt or ownership link, to show that the shoes were owned or worn by the appellant. More significantly, Deepak Gupta (PW- 6), who is purported to have identified the shoes as belonging to the appellant, has not supported the prosecution on this aspect and has stated nothing in Court regarding such identification. Thus, the alleged recovery is wholly doubtful, inadmissible as incriminating evidence, and cannot form the basis of presuming the appellant’s presence at the scene. It is also argued that the prosecution has failed to establish any motive, 5 CRA No. 1779 of 2023 prior enmity, or circumstance pointing towards the guilt of the appellant. The investigation, according to the learned counsel, has been conducted in a perfunctory manner, and the appellant has been implicated merely on suspicion in the absence of any direct evidence, reliable circumstantial evidence, or any forensic material connecting him with the death of the Deceased. Hence, the appellant is entitled to benefit of doubt.

#5. Learned State Counsel submits that the conviction is well-founded on the circumstantial evidence proved by the prosecution. It is contended that the Deceased was last seen with the appellant after collecting her repaired mobile phone, as supported by PW-1, PW-4, and PW-6, and the recovery of the blue-grey Nike shoes from the spot is an incriminating circumstance for which the appellant has offered no explanation. The postmortem report indicates homicidal death, and the appellant has not produced any defence evidence. It is therefore submitted that the findings of the trial Court call for no interference.

#6. We have heard learned counsel for the parties and perused the entire record with due care.

#7. PW-14, Dr. Manju Ekka, stated that in the year 2017 she was posted as a Medical Officer at the Community Health Centre, Manendragarh. On

30.03.2019, while she was serving at Manendragarh, she received a notice to conduct the postmortem of the deceased, Pragya Gupta, aged about 18 years, at the Community Health Centre, Janakpur. Since the deceased was a young woman, the BMO directed that a team of doctors 6 CRA No. 1779 of 2023 be constituted. Accordingly, she proceeded to Janakpur and, along with Dr. Kripa Shankar Paikra and Dr. Rajiv Gupta, conducted the postmortem. She stated that Constable Shambhu Singh Tekam brought the inquest and related papers on 30.03.2019, and the postmortem commenced at about 2:30 p.m. The body was identified by Prakash Narayan Gupta, Kamlesh Gupta, and Vivek Gupta. On external examination, the body was that of a young female dressed in a red kurti with black lines and blue jeans. Various insects were present on several parts of the body. Both hands and legs were partially flexed, and yellow soil was present on both knees. The eyes were closed, the mouth was half-open, the upper lip was swollen, and the pupils were dilated and fixed. This witness further stated that peeling of the skin was noticed at several places. A black scarf was found tied around the neck, with the knot situated on the left side. Rigor mortis was absent, and the body emitted a decomposed odour. Sub-conjunctival hemorrhage was noted in the left eye, and dried blood was present around the nostrils and mouth. A ligature mark measuring approximately 3–4 cm in width and about 20 cm in length was present, starting 2 cm below the angle of the mandible on the right side, passing across the back of the neck along the hairline and ending near the mastoid region. There was no vital reaction on the ligature mark, indicating that it was a postmortem hanging. She further deposed that eight other ante-mortem injuries were found, including abrasions on the forehead, around the mouth, the upper lip, right eyebrow, right arm, knuckles, both knees, right thigh, and an 7 CRA No. 1779 of 2023 abrasion beneath the ligature mark at the back of the neck. On internal examination, she found the physique of the deceased to be average. The skull, vertebrae, brain, and spinal cord were normal. The lungs were congested, the right atrium of the heart was filled with blood, and the major vessels were congested. Layer-by-layer dissection of the neck revealed haemorrhage in the lateral parts of the neck. The stomach was empty, and the intestines contained fluid, gas, and fecal matter. The liver, spleen, and kidneys were congested. The bladder and uterus were empty. External genitalia were normal. After the autopsy, the ligature material (black scarf) and the jeans of the deceased were sealed and handed over to the constable. Viscera samples including stomach, intestines, liver, spleen, kidneys, blood preservative, vaginal swabs, rectal swab, nail scrapings, and soil samples were also preserved, sealed, and sent for forensic examination. This witness in her opinion, based on the complete postmortem findings, the cause of death was asphyxia, which could have resulted from smothering or mugging (pressure applied to the neck by hand, elbow, or leg). The death was therefore homicidal in nature. The duration of death was assessed to be more than 36 hours. She proved the postmortem report as Exhibit P-30.

#8. The postmortem report is Ex.P/30. According to the report, eight injuries were found which are as follows i. ii. Abrasion over left forehead, in the size of 3 X 3 Cm. Multiple small abrasion over and around mouth 8 CRA No. 1779 of 2023 (ranging from width 1 X 2 cm, length 1 X 2 cm). iii. Lacerated wound inside of lower lip about 3 X 1 X 1 Cm. iv. v. Contusion over left eyelid. Contusion over whole right hand with a lacerated wound over knuckles about 4 X 2 cm X bone deep. vi. vii. Abrasion over below knee both about 3 X 3 cm. Abrasion over right thigh about 4 X 4 cm. viii. Abrasion over posterior mode below ligature mark in the size 2 X 2 cm. All the aforesaid injuries were ante-mortem in nature.

#9. From the postmortem report (Ex.P/30) and the testimony of Dr. Manju Ekka (PW-14), it is evident that the deceased sustained multiple injuries and that her death was homicidal in nature. The trial Court rightly recorded this finding after considering both oral and documentary evidence, and the same cannot be termed perverse or contrary to record.

#10. Ku. Poonam Yadav (PW1) deposed that in the month of March, 2019, there was a hindi paper of her, her friend (deceased) and Naazreen at Govt. College, Janakpur. After the examination, they went to the mobile shop for getting the repair mobile phone of the Deceased. Thereafter, they went to a hotel, where they ate snacks. Subsequently, this witnesses went to her house and she has no knowledge about the incident. At this stage, this witness has been declared hostile as she has not supported the case of the prosecution. Nazreen (PW4) also turned hostile and she categorically stated that she has no knowledge about the incident and even she does not know the Deceased and the accused. 9 CRA No. 1779 of 2023

#11. Deepak Gupta (PW6), who is the witness of identification proceeding (Ex.P/11), deposed that on the date of incident, he was in his shop and the Deceased has come to his shop and left her mobile for repairing. After 2-3 hours, the deceased came to his shop and asked for mobile by saying not to get repaired her mobile and subsequently went from there after taking her mobile phone. This witness deposed that after 2-3 days, the Deceased has been killed. In para 2, this witness has admitted that the identification proceeding of shoes was not done in his presence, however, Ex.P/11 bears his signature. He only stated that the police personnel had interrogated him and apart from this, he has no knowledge about the incident. This witness has later been declared hostile.

#12. Prakash Narayan Gupta (PW-2), father of the deceased, deposed that on

28.03.2019, the deceased had her Hindi examination at Government College, Janakpur. At about 6:00 a.m., he dropped her at the college and instructed her to bring along the admit card of his younger daughter. At about 10:30 a.m., she called him and informed that she had not brought the admit card of her sister on which this witness asked her to come home. PW-2 stated that thereafter he and other family members went to Village Lurghoti for a programme, and from there they made several calls to the deceased, but her phone remained out of coverage. His wife then contacted Poonam (PW-1), who informed that after the examination they had gone to Deepak’s shop for repair of the deceased’s mobile phone, and thereafter to Soni Hotel for snacks, where the appellant had 10 CRA No. 1779 of 2023 arrived. PW-1 further stated that the appellant went to Deepak’s shop to collect the phone but, on being refused, returned to the hotel, where the appellant seated the deceased on his motorcycle, again proceeded to Deepak’s shop, collected the repaired phone, and left with the deceased from his shop. PW-2 stated that on the next day, after returning from the village, they made inquiries from Deepak, and upon failing to trace the deceased, lodged the report.

#13. The FSL report (Ex. P/68) reflects that Article–H, i.e., the vaginal swab of the deceased collected on 30.03.2019, as well as the semen slide of the appellant prepared on 16.05.2019, were both found to contain human spermatozoa.

#14. The present case rests entirely on circumstantial evidence, and it is well- settled that in such cases the circumstances relied upon by the prosecution must be fully proved and must form a complete and unbroken chain pointing only to the guilt of the accused, ruling out any hypothesis consistent with his innocence. If any link in the chain is missing or weak, the accused is entitled to benefit of doubt.

#15. In a case dependent on circumstantial evidence, the law is well settled that the chain of circumstances must be complete, conclusive, and exclude every hypothesis consistent with innocence (Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622). Here, the chain is broken at multiple points: absence of eyewitnesses, hostile testimony from key relatives, unreliable extra-judicial confession, doubtful recovery, and no conclusive forensic link. 11 CRA No. 1779 of 2023

#16. The Supreme Court in the matter of Jagroop Singh Vs. State of Punjab {(2012) 11 SCC 768} has held thus in paragraphs 12, 13, 14 & 15 which is reproduced hereunder:- “12.In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] a three-Judge Bench has laid down five golden principles which constitute the “panchsheel” in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra [1973 2 SCC 793], it was opined that 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. Thereafter, the Bench proceeded to lay down that 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; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that 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. In Padala Veera Reddy v. State of Andhra Pradesh and others [1989 Supp (2) SCC 706], this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: “10.........(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain 12 CRA No. 1779 of 2023 conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” A similar view has been reiterated in Ramreddy Rajesh Khanna Reddy and another v. State of A.P.[(2006) 10 SCC 172].

#14. In Balwinder Singh v. State of Punjab [1995 Supp(4) SCC 259], it has been laid down: “4. ........that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof.”

#15. In Harishchandra Ladaku Thange v. State of Maharashtra [(2007) 11 SCC 436], while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasised that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the 13 CRA No. 1779 of 2023 innocence of the accused or the guilt of any other person and further the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.”

#17. Further the Supreme Court in the matter of Pradeep Kumar Vs. State of Chhattisgarh {(2023) 5 SCC 350} has observed thus in para 27:-

#27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to accused must be adopted.

#18. When the case is entirely based upon the circumstantial evidence, the chain of such circumstantial evidence in all probabilities 'must' indicate towards guilt of accused and circumstances 'must be' and not 'may be' lead towards guilt of accused.

#19. In the present matter, the prosecution has attempted to rely upon the ‘last-seen’ circumstance. However, the material witnesses, namely Poonam Yadav (PW-1), Nazreen Bano (PW-4), and Deepak Gupta (PW- 6), all turned hostile and did not support the prosecution version. PW-1 and PW-4 categorically stated that they have no knowledge of the incident and did not depose that the appellant ever met the deceased on

28.03.2019 or left with her after the examination. PW-6 also did not support the alleged fact that the appellant had come to his shop or that 14 CRA No. 1779 of 2023 the deceased had left in the company of the appellant. In the absence of any consistent or credible testimony, the ‘last-seen’ circumstance is not proved.

#20. The trial Court placed reliance on an alleged identification of a pair of Nike shoes said to be worn by the appellant on the date of incident. However, the said shoes were not seized from the possession of the appellant. No evidence has been led to establish ownership of the shoes through any witness, receipt, or independent material. Deepak Gupta (PW-6), the sole witness linked to the alleged identification, has specifically denied that any such identification was made before him. In absence of any reliable evidence connecting the shoes to the appellant, this circumstance loses all probative value.

#21. The prosecution also failed to establish any motive for the commission of the offence. There is no evidence of prior enmity, quarrel, threat, or any relationship strain between the appellant and the deceased. In a case based purely on circumstantial evidence, absence of motive becomes a significant missing link, particularly when other circumstances are weak or doubtful.

#22. The FSL report (Ex. P/68) also does not advance the prosecution case. Though spermatozoa were detected both on the vaginal swab of the deceased and on the semen slide prepared from the appellant’s sample, the report does not indicate that the biological material from the two sources was compared or matched. No DNA profiling report has been produced to establish that the spermatozoa found on the vaginal swab 15 CRA No. 1779 of 2023 originated from the appellant. Moreover, the appellant’s sample was collected on 16.05.2019, nearly one and a half months after the incident, and the presence of spermatozoa on his semen slide is a normal physiological finding and has no nexus with the alleged occurrence. Thus, in the absence of any DNA correlation, the forensic evidence fails to establish any connection between the appellant and the alleged offence.

#23. The memorandum statement of the appellant (Ex. P/15), wherein he allegedly narrated the events and claimed to have taken the deceased to a forest, cannot be treated as substantive evidence. It is settled law that a memorandum under Section 27 of the Evidence Act is admissible only to the limited extent of discovery of facts. The prosecution has not proved that any incriminating material was discovered as a consequence of the information given by the appellant. Therefore, the alleged confessionary narrative in the memorandum is inadmissible and cannot be relied upon.

#24. There is no eyewitness to the alleged incident, no CCTV footage, no call-location data proving presence of the appellant with the deceased, and no independent witness supporting the prosecution theory. The entire case is based on suspicion and uncorroborated assumptions. Suspicion, however strong, cannot substitute proof.

#25. In view of the foregoing, it is evident that the prosecution has failed to establish a complete chain of circumstances pointing unerringly towards the guilt of the appellant. The essential links relating to motive, last-seen evidence, recovery, and forensic connection are either unproved or 16 CRA No. 1779 of 2023 wholly unreliable. The findings recorded by the trial Court, therefore, suffer from serious infirmities and cannot be sustained.

#26. Consequently, giving the appellant the benefit of doubt, the conviction recorded under Section 302 IPC is set aside, and the appellant is acquitted of all charges.

#27. Accordingly, the Criminal Appeal is allowed. The appellant is reported to be in jail. He be released forthwith if not required in any other cases.

#28. Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, 1973 (Now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Proceure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

#29. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Rahul/Amardeep