State of Chhattisgarh v. Mulchand Lanjewar and another) by the Special Judge
Case Details
Page No.1 of 22 IN CRA-1467-2018 & CRA-1486-2018 SAIFAN KHAN Digitally signed by SAIFAN KHAN 2025:CGHC:25620-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR [Arising out of a common judgment dated 28.07.2018, passed in Sessions Case No.229 of 2014 (State of Chhattisgarh v. Mulchand Lanjewar and another) by the Special Judge/Additional Sessions Judge, Raipur, District Raipur (CG)] Criminal Appeal No. 1467 of 2018 Ravi Prakash Singh @ Raju Kushwaha, S/o Shri Surendra Singh, aged about 45 years, R/o Village Chatona, Rasda, Police Station Nagra, District - Baliya (Uttar Pradesh) --- Appellant (In Jail) Versus State of Chhattisgarh, through Police Station - Saraswati Nagar, District - Raipur (Chhattisgarh) --- Respondent [Cause-titles taken from Case Information System (CIS)] ----------------------------------------------------------------------------------------- For Appellant : Mr. Shivank Mishra, Advocate For Respondent Amicus Curiae ----------------------------------------------------------------------------------------- Mr. Arvind Dubey, Government Advocate Mr. Ashish Tiwari, Advocate : : WITH Criminal Appeal No. 1486 of 2018 Mulchand Lanjewar, S/o Pandurang Lanjewar, aged about 41 years, R/o Village Navegaon, Police Station - Dauniwada, District - Gondia (Maharashtra), at present Near Disha Collage, No.6, Gokul Nagar, Police Station- Gudiyari, District- Raipur, (Chhattisgarh) ---Appellant (In Jail) Versus State of Chhattisgarh, through District Magistrate Raipur, District Revenue and Civil- Raipur (Chhattisgarh) --- Respondent Page No.2 of 22 IN CRA-1467-2018 & CRA-1486-2018 [Cause-titles taken from Case Information System (CIS)] ----------------------------------------------------------------------------------------- For Appellant : Mr. Anand Kesharwani, Advocate For Respondent Amicus Curiae ----------------------------------------------------------------------------------------- Mr. Arvind Dubey, Government Advocate Mr. Ashish Tiwari, Advocate : : Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (19.06.2025) Sanjay K. Agrawal, J (1) Regard being had to the similitude of the questions of fact and law involved and being arising out of common impugned judgment dated 28.07.2018, on the joint request of learned counsel for the parties, these 02 criminal appeals are clubbed together, heard together and are decided by this common judgment. (2) In these 02 criminal appeals filed under Section 374(2) of Cr.P.C., total 02 accused-appellants, namely, Mulchand Lanjewar (A-1) and Ravi Prakash Singh @ Raju Kushwaha (A-2) are calling in question the legality, validity and correctness of a common impugned judgment of conviction and order of sentence dated 28.07.2018, passed in Sessions Case No.229 of 2014 (State of Chhattisgarh v. Mulchand Lanjewar and another) by the Special Judge/Additional Sessions Judge, Raipur, District Raipur (CG), whereby they have been convicted and sentenced as under: Mulchand Lanjewar (A-1): Page No.3 of 22 IN CRA-1467-2018 & CRA-1486-2018 Conviction U/s. 394/397 of IPC U/s. 302/34 of IPC Sentence Rigorous imprisonment for 10 years with fine of Rs.1,000/- and, in default of payment of fine, additional rigorous imprisonment for 01 year. Imprisonment for life with fine of Rs.1,000/- each and, in default of payment of fine, additional rigorous imprisonment for 01 year. [Both the sentences are directed to run concurrently] Ravi Prakash Singh @ Raju Kushwaha (A-2): Conviction U/s. 394/397 of IPC U/s. 302/34 of IPC U/s. 25(1)(1-b)(b) of the Arms Act, 1959 Sentence Rigorous imprisonment for 10 years with fine of Rs.1,000/- and, in default of payment of fine, additional rigorous imprisonment for 01 year. Imprisonment for life with fine of Rs.1,000/- each and, in default of payment of fine, additional rigorous imprisonment for 01 year. Rigorous imprisonment for 02 years with fine of Rs.500/- and, in default of payment of fine, additional rigorous imprisonment for 06 months. [All the sentences are directed to run concurrently] (3) The case of the prosecution, in a nutshell, is that on 13.08.2014, at about 08:00 PM, at Choubey Colony, Raipur (CG), the two appellants herein, in furtherance of their common
Facts
intention, firstly committed loot of Rs.1,70,000/- from complainant, namely, Piyush Agrawal (PW-01) on pinpoint of gun and tried to ran away from the spot and, thereafter, when complainant- Piyush Agrawal (PW-01) and one- Jitendra Yadav tried to chase the appellants, the appellants exploded bomb on Page No.4 of 22 IN CRA-1467-2018 & CRA-1486-2018 them at various places, out of which, one bomb exploded on the head of Jitendra Yadav (hereinafter referred to as the “deceased”), due to which, he died. In the said incident, complainant- Jitendra Yadav (PW-01) also suffered injuries and the incident has also been witnessed by Pranjal Sharma (PW-03). As such, the appellants are said to have committed the aforesaid offences. (4) It is further case of the prosecution that when injured- Piyush Agrawal (PW-01) reported the matter to the police, dehati nalsi (Ex.P/01) was recorded and, wheels of investigation started running, in which, nazari naksha was prepared vide Ex.P/04. Summons under Section 175 of CrPC were sent vide Ex.P/16 and inquest proceedings were also conducted vide Ex.P/17. After the death of the deceased on 14.08.2014, during the course of treatment in the hospital, merg intimation was recorded vide Ex.P/14. Thereafter, the dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. Snigndha Jain (PW-12) and vide PM report (Ex.P/25) it has been opined that the cause of death of the deceased is due to cranio-cerebral injury (an injury to the brain caused by an external force impacting the skull). FIR was also registered against the appellants vide Ex.P/46. Injured- Piyush Agrawal (PW-24) was also sent for medical examination and his MLC report is Ex.P/24. Thereafter, the accused-appellants were arrested vide Ex.P/10 & Ex.P/11 respectively and, their memorandum statements were Page No.5 of 22 IN CRA-1467-2018 & CRA-1486-2018 recorded vide Ex.P/12 & Ex.P/13 respectively. Rs.1,70,000/- and one motor-cycle was seized from appellant- Mulchand (A-1) vide Ex.P/12, whereas one country made pistol alongwith two live cartridge, one live bomb and one bag were seized from appellant- Ravi @ Raju (A-2) vide Ex.P/13. Certain other articles were also seized vide Ex.P/05 to Ex.P/09. The articles, which were seized from the spot were sent for chemical examination and FSL report is Ex.P/38. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellants 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 appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated. (5) The prosecution in order to prove its case examined as many as 20 witnesses and exhibited 48 documents, whereas the appellants/accused in support of their defence, though not examined any witness, but exhibited 03 documents. (6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellants for offences under Sections 394/397 & 302/34 of IPC and under Section 25(1)(1-b)(b) of the Arms Act, 1959 respectively and sentenced them as mentioned in Para-02 of this Page No.6 of 22 IN CRA-1467-2018 & CRA-1486-2018 judgment, against which these appeals have been preferred by the appellants-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." (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.” 4 (1984) 4 SCC 116 Page No.14 of 22 IN CRA-1467-2018 & CRA-1486-2018 (17) We shall now consider the each of the incriminating circumstances available in the present case, in light of the above- quoted principles of law laid down by their Lordships of the Supreme Court as also in light of the evidence available on record, in order to ascertain whether the appellant herein has rightly be held guilty for offence in question by the learned trial Court or not. Homicidal Death: (18) The first and foremost question is as to whether the death of the deceased was homicidal in nature or not? (19) At this stage, it would be relevant to notice the definition of 'culpable homicide' which is provided under Section 299 of IPC as under :- “299. Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” (20) Homicide is the killing of a human being by a human being. It is either lawful or unlawful. Unlawful homicide includes culpable homicide not amounting to murder under Section 299 of IPC and murder under Section 300. Halsbury classifies homicide as follows :- “The term “homicide” is used to describe the killing of a human being by a human being. Such a killing may be Page No.15 of 22 IN CRA-1467-2018 & CRA-1486-2018 lawful or it may be unlawful and criminal. Unlawful homicide includes murder, manslaughter, causing death by dangerous driving, killing in pursuance of a suicide pact, and infanticide.” (21) “Homicide”, as derived from latin, literally means the act of killing a human being. Under Section 299 of the IPC, homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either Section 302, or Section 304 of the IPC which consists of two parts. (See: Chenda @ Chanda Ram v. State of Chhattisgarh5). (22) It is well settled law that in order to convict an accused under Section 302 of the IPC, the first and foremost aspect to be proved by the prosecution is the homicidal death and if the evidence on record produced by the prosecution falls short of the proof of homicidal death, the accused cannot be convicted under Section 302 of the IPC. (See : Madho Singh v. State of Rajasthan6 and Chandrapal v. State of Chhattisgarh7). (23) Similarly, in the matter of Shobhau alias Shubhau v. State of M.P.8, it has been held by the Madhya Pradesh High Court that to prove an offence of murder the death should be homicidal 5 2014 CrLJ 172 6 (2010) 15 SCC 588 7 2022 SCC Online SC 705 8 1998 CrLJ 3934 Page No.16 of 22 IN CRA-1467-2018 & CRA-1486-2018 of which onus in a criminal trial is upon the prosecution. In the absence of legal proof of the death being homicidal, because of the serious lacuna of not obtaining the report of Anatomy Expert to prove homicidal death, the benefit will go to the accused and not to the prosecution, as this seals the fate of the prosecution and on this ground the accused cannot be held to legal criminality of the offence under Section 302 of the Indian Penal Code. (See: The State Government of M.P. v. Ramkrishna Ganpat Rao9, The State of Punjab v. Bhajan Singh10) (24) The Supreme Court, in the matter of Rupinder Singh Sandhu v. State of Punjab and others11, has held that to find a man guilty of culpable homicide, the basic fact required to be established is that the accused caused the death. In the matter of M.B. Suresh v. State of Karnataka12, it has been held that for holding an accused guilty of murder, the prosecution has first to prove that it is a culpable homicide. Culpable homicide is defined under Section 299 of the Indian Penal Code and an accused will come under the mischief of this section only when the act done by him has caused death. (25) Further, their Lordships of the Supreme Court in the matter of State of Orisha v. Banabihari Mohapatra and another 13 has 9 AIR 1954 SC 20
Arguments
(7) Mr. Shivank Mishra and Mr. Anand Kesharwani, learned counsel appearing for the respective appellants jointly submit that the learned trial Court is absolutely unjustified in convicting the appellants for the aforesaid offences, as the prosecution has failed to prove the same beyond reasonable doubt. Therefore, both the appellants are liable to be acquitted from the said charges on the basis of benefit of doubt. (8) 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 appellants for the aforesaid offences and, therefore, both the appeals are liable to be dismissed. (9) Mr. Ashish Tiwari, learned amicus curiae brought some relevant facts before this Court by submitting that: (i) the identification of the two accused persons in the instant crime that they have committed the offences in question has not been proved beyond reasonable doubt; (ii) there is nothing available on record to connect the present appellants with the offences in Page No.7 of 22 IN CRA-1467-2018 & CRA-1486-2018 question, as the death of the deceased could not be proved to be homicidal in nature. It is the case of the prosecution that appellant- Ravi Prakash @ Raju (A-2) exploded bomb on the head of the deceased, but there is no evidence on record to show that the death of the deceased occurred on account of explosion of bomb by appellant- Ravi Prakash @ Raju (A-2) for the reason that Dr. Snigndha Jain (PW-12) has nowhere stated specifically that the deceased died on account of explosion of bomb, indeed, in his Query Report (Ex.P/27) he categorically stated that there was no particle/foreign material present on the body of the deceased and it may be possible that particles were lost during surgical debridement. Though he found many wounds on the body of the deceased, but he stated that the death of the deceased occurred due to head injuries. Even, Dr. Snigndha Jain (PW-12) has not been examined on the point of said Query Report (Ex.P/27) for the reasons best known to the prosecution. As such, the death of the deceased to be homicidal in nature could not be proved by the prosecution beyond reasonable doubt, which is sine qua non for convicting an accused for offence under Section 302 of IPC; (iii) thought it is alleged by the prosecution that the looted amount of Rs.1,70,000/- has been recovered from appellant Mulchand (A-1) vide Ex.P/12, but the the witnesses to said seizure, namely, Pranjal Sharma (PW-03) [Para-19] has clearly Page No.8 of 22 IN CRA-1467-2018 & CRA-1486-2018 that the bag full of money was seized by the police from complainant- Piyush, whereas Ashutosh Verma (PW-07) has completely turned hostile, therefore, the recovery of the looted amount from the possession of appellant- Mulchand (A-1) is also not established by the prosecution. Furthermore, one country made pistol was seized from Ravi Prakash @ Raju (A-2) vide Ex.P/13, but according to Armorer Report (Ex.P/48), the said pistol was not found to be in running condition; (iv) he also submits that though it is the case of the prosecution that Pranjal Sharma (PW-03) has seen the incident, but in site map and nazari naksha (Ex.P/02 to 04), it is nowhere stated or marked that as to from which place Pranjal Sharma (PW-03) has seen the incident; (v) so far as live bomb and live cartridges, which are said to have been seized from appellant- Ravi Prakash @ Raju (A- 2) vide Ex.P/13 is concerned, there is not evidence available on record to show that the said articles were used by the appellant in any manner in the crime in question and, even the FSL report (Ex.P/38), which is positive, is with regard to the articles which were seized from the spot and, therefore, recovery of said articles is of no help to the prosecution. Hence, the prosecution has miserably failed to prove the offences beyond reasonable doubt and, therefore, the appellants are liable to be acquitted on the basis of benefit of doubt. (10) We have heard learned counsel for the parties, considered Page No.9 of 22 IN CRA-1467-2018 & CRA-1486-2018 their rival submissions made herein-above and went through the records with utmost circumspection. (11) The case of the prosecution is based on direct evidence as well as circumstantial evidence. Therefore, we shall first deal with the direct evidence and thereafter the circumstantial evidence, in order to consider whether the appellants have right been convicted by the learned trial Court on that basis or not. Direct Evidence: (12) In shape of direct evidence, the prosecution has relied upon the testimonies of injured eye-witness- Piyush Agrawal (PW-01) and eye-witness- Pranjal Sharma (PW-03). (13) Firstly, Piyush Agrawal (PW-01) in his examination-in-chief has stated at on the date and time of the offence, when he was returning to his house from shop, he was carrying Rs.1,70,000/- alongwith him in a black bag and, as soon as, he reached in front of his house, two persons came and looted the said amount of money on the pinpoint of a gun. However, as the said persons have covered their faces by cloth, they were not identifiable to him. Thereafter, immediately, as his father- Ashwani Agrawal (PW-02) and deceased- Jitendra Yadav reached to the spot, he alongwih Jitendra Yadav on a motor-cycle tried to chase the said persons and, when the said persons reached to Rohinipuram, they fell down from the vehicle. Thereafter, when the deceased tried to caught hold the said persons, the person who was sitting Page No.10 of 22 IN CRA-1467-2018 & CRA-1486-2018 on the back side of the vehicle (pillion rider) exploded bomb on the deceased and further tried to ran away from the spot, but crowed gathered therein and caught hold of them. Further, in cross-examination, Piyush Agrawal (PW-01) remained consistent in his version to the effect that since both the said persons had covered their faces, therefore, they were not identifiable to him. In his police statement also, he has stated that the said persons had covered their faces, which he has also reiterated in Para-19 of his cross-examination before the learned trial Court. Though in Para- 05 he stated that he knew appellant- Mulchand (A-1), as he used to visit his office being Transporter, but he did not know appellant- Ravi Prakash @ Raju (A-2). He has also stated that due to darkness of the evening he could not see the colour and number of the motor-cycle on which the two persons came and looted him. In para-23, he totally changed his version by stating that the bomb which was thrown by the pillion rider (A-2) did not fall upon the deceased- Jitendra. As such, from the statement of Piyush Agrawal (PW-01) it is not established that he has identified the accused persons on the date and time of the offence to be author of the crime and further, it is also not clear whether the bomb which was thrown by the pillion rider on the deceased, was actually came in contact with the deceased or not. Therefore, on the basis of the testimony of Piyush Agrawal (PW-01) it is quite clear that he could not identify the appellants herein and it could not be established that appellant- Ravi (A-2) exploded Page No.11 of 22 IN CRA-1467-2018 & CRA-1486-2018 bomb over the body of the deceased- Jitendra. Hence, it would be unsafe to rely upon the testimony of Piyush Agrawal (PW-01). (14) Similarly, Pranjal Sharma (PW-03) has stated that on the date and time of the offence he was in Gol Chowk and had seen that two persons coming from Science College Road and the pillion rider- Ravi (A-2) has fired a gunshot, but the said gunshot doesn’t hit anybody. He has also stated that he caught hold of the two accused persons and he knew the appellants (Para-01). In Para-03 of his statement he has stated that appellant- Ravi Prakash @ Raju (A-2) was driving the said vehicle and appellant- Mulchand (A-1) was sitting on the back side, which is not the case of the prosecution. Indeed, it is the case of the prosecution that appellant- Mulchand (A-1) was driving the motorcycle and appellant- Ravi Prakash (A-2) was sitting as pillion rider. Further, though he stated that he has seen two accused persons exploding bomb upon the deceased- Jitendra, but from Para-12 of his Court statement it is clear that he has not made any such statement in his police statement recorded vide Ex.D/01. Also in Para-19 he has stated that the bag full of money was seized by the police from Piyush Agrawal (PW-03) and, according to him the two appellants fired gunshot, whereas as per the documents available on record the deceased did not suffer any gunshot injury and, further, according to Ex.P/48, proved by Laxmi Narayan (PW-19), the gun, which was seized from apellant- Ravi (A-2) was not in Page No.12 of 22 IN CRA-1467-2018 & CRA-1486-2018 running condition. Even, as per site map and nazari naksha (Ex.P/02 to 04), it is nowhere stated or marked as to from which place Pranjal Sharma (PW-03) has seen the incident, which was essential in light of the decision of rendered in Shingara Singh Vs. State of Haryana and Another 1 ; Baldev Singh and Another Vs. State of M.P. 2 and Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re Vs. State of Andhra Pradesh and Others 3 In view of the above, it would be totally unsafe to rely on the testimony of Pranjal Sharma (PW-03) being eye-witness to the incident. (15) Accordingly, we are of the considered opinion that the learned trial Court is committed grave legal error in relying upon the testimonies of injured eye-witness- Piyush Agrawal (PW-01) and eye-witness- Pranjal Sharma (PW-03) to convict the appellants herein for the offences in question in shape of direct evidence. We hereby hold accordingly. Circumstantial Evidence: (16) Since the present case is also based on circumstantial evidence, therefore, before proceeding further, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad 1 (2003) 12 SCC 758 2 (2003) 9 SCC 45 3 (2021) 10 SCC 598 Page No.13 of 22 IN CRA-1467-2018 & CRA-1486-2018 Birdhichand Sarda vs. State of Maharashtra 4 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.