Obhan Sahu S/o Lt Dayaram Sahu Aged About 66 Years R/o Bajrang Para, Utai v. State of Chhattisgarh Through SHO PS Patan/AJK Durg Chhattisgarh
Case Details
ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.03.25 10:29:28 +0530 1 2025:CGHC:14018-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2304 of 2023 Obhan Sahu S/o Lt Dayaram Sahu Aged About 66 Years R/o Bajrang Para, Utai Tehsil And District Durg Chhattisgarh. --- Appellant Versus State of Chhattisgarh Through SHO PS Patan/AJK Durg Chhattisgarh. --- Respondent CRA No. 1634 of 2023 Umesh Sahu S/o Obhan Sahu Aged About 31 Years R/o Bajrangpara, Utai, P.S. Utai Tehsil And District Durg Chhattisgarh. --- Appellant Versus State Of Chhattisgarh Through SHO PS Patan/AJK Durg Chhattisgarh. --- Respondent (Cause-title taken from Case Information System) For Appellants : Mr. Anmol Sharma, Advocate For State/Respondent : Mr. Sangharsh Pandey, Government Advocate 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 24.03.2025 1. Heard Mr. Anmol Sharma, learned counsel for the appellants in both the appeals. Also heard Mr. Sangharsh Pandey, learned Government Advocate, appearing for the State/respondent. 2. Regard being had to the similitude of the questions of facts and law involved being arising out of a common crime vide impugned judgment dated 21.07.2023 passed by the Special Judge under Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989, Durg, Chhattisgarh in Special Case No.07/2020, these appeals have been clubbed together, heard together and are being decided by this common judgment. 3. Appellant-Obhan Sahu (A-1) has preferred CRA No.2304/2023 and appellant-Umesh Sahu has preferred CRA No.1634/2023 under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) questioning the impugned judgment dated 21.07.2023 passed by the Special Judge under Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989, Durg, Chhattisgarh in Special Case No.07/2020, by which they have been convicted and sentenced as under :- 3 A ppellant-Obhan Sahu Conviction Sentence Under Section 302 of : Life imprisonment and fine of Indian Penal Code, 1860 Rs.1,000/-, in default of payment of fine amount, additional rigorous imprisonment for 6 months. Under Section 342 of : Rigorous imprisonment for 1 year Indian Penal Code, 1860 and fine of Rs.1,000/-, in default of payment of fine amount, additional rigorous imprisonment for 6 months. Under Section 376(2)(n) : Life imprisonment for 1 year and of Indian Penal Code, fine of Rs.1,000/-, in default of 1860 payment of fine amount, additional rigorous imprisonment for 6 months. Under Section 404 of : Rigorous imprisonment for 3 Indian Penal Code, 1860 years and fine of Rs.1,000/-, in default of payment of fine amount, additional rigorous imprisonment for 6 months. Under Section 201 of : Rigorous imprisonment for 5 Indian Penal Code, 1860 years and fine of Rs.1,000/-, in default of payment of fine amount, additional rigorous imprisonment for 6 months. Appellant-Umesh Sahu Conviction Sentence Under Section 404 of : Rigorous imprisonment for 3 Indian Penal Code, 1860 years and fine of Rs.1,000/-, in 4 default of payment of fine amount, additional rigorous imprisonment for 6 months. Under Section 201 of : Rigorous imprisonment for 5 Indian Penal Code, 1860 years and fine of Rs.1,000/-, in default of payment of fine amount, additional rigorous imprisonment for 6 months. 4. Case of the prosecution is that accused Obhan Sahu has committed offence of sexual assault with the deceased prosecutrix from 2017 to 26.06.2020 and thereafter, on 26.06.2022-27.06.2020 at around 12 noon, used nylon rope to strangulate her removed her jwellary and in order to escape, he has called his son, who is co- accused namely Umesh Sahu for disposing the body from the place of incident and thereby destroying evidence of the incident. Both the appellants have thrown the body in a canal in a rag using their car and since the deceased belongs to Scheduled Castes / Scheduled Tribe community, the charges of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was also added and later, acquitted from the same. 5. The brief description of the prosecution story is as follows : A report of untimely and accidental death was lodged by Kumar Thakur (PW-1) at Police Station Patan, District Durg (C.G.) to the effect that, he was going to Khorpa Nala for culvert construction since two weeks back, then on 28.06.2020 at 6.00 AM when he went to take bath in the 5 drain, he saw something tied in a jute sack in water on the left side of the culvert, in which flies were buzzing, then along with Tarun Kumar of Khorpa Nala, he pulled the jute sack to the shore, a pink coloured saree was visible in the sack that was tied in it and foul smell was coming from the jute sack. It appeared to be the dead body of an unknown woman whose age would be around 35 years. 6. On the above information given by the informant, the case was
Facts
registered as FIR No.27/2020 vide Ex.P/1 by the investigating officer of the case, (PW-19) Inspector Shivanand Tiwari. After the FIR was registered, information was sent to senior officers through mobile, Control Room Durg, Dog Squad Scene of Crime Incharge Pankaj Tamrakar and Videographer Vinod Verma were informed through mobile and sent to the spot along with the staff. On 28.06.2020 at about 9.30 AM, he prepared a site map of the incident vide Ex.P/2 as per the information given by the complainant. The incident spot is Khorpa Nala situated on Sonpur Road from Patan, in which the dead body of the deceased was recovered in a jute sack on the left side. During the investigation, the investigating officer prepared the spot panchnama (Ex.P/3) in the presence of the informant. Notice under Section 175 of the Cr.P.C. was given to the witnesses vide Ex.P/7 and naksha panchayatnama was prepared vide Ex.P/8 of the dead body of the deceased in the presence of witnesses. According to the opinion of the Panchans, the body of the deceased was sent for postmortem to the Community Health Centre, Patan through Constable No. 394 Deepak Goswami, after preparing postmortem application form vide Ex.P/39A. 6 7. After the above proceedings, the Investigation Officer produced from the spot of incident in front of witnesses as well as a jute bag in which the dead body of the deceased was kept, containing blood stains at many places, a pink coloured saree containing blood stains at many places, a square red and black coloured piece of Gamchha, a navy blue coloured blouse with embroidery on the sleeve, 14 glass bangles worn in both the hands of the deceased, one market ring, one gold like nose pin, one yellow coloured nylon rope which was tied in the jute sack, one plastic packing rope and seized these and prepared seizure memo Ex.P/05 and afterpost mortem of the deceased, Constable 394, Deepak Goswami recovered from CHC Patan, a green coloured petticoat worn by the deceased at the time of the incident, containing blood like stains at many places and 2 vaginal slides in a sealed packet, one long bone, Tibia Bone of the deceased. On presenting small intestine and large intestine, lungs, liver, spleen, kidney and salt solution in separate sealed packets, seizure memo Ex.P/5A was prepared in front of witnesses. After the above action, the deceased could not be identified by the investigating officer and he got the body kept safely in the Community Health Center Patan and received a short PM report from Dr. Ajay Thakur who conducted the postmortem, according to which, the deceased died due to strangulation and assault causing injuries to the ears, chest, throat, nose and face and for identification of the deceased, he uploaded the photo of the deceased on RM and Whatsapp groups and social media and formed separate teams for all the police station in-charges of the District and in the 7 bordering Districts to trace the missing person. On the same date, the investigation officer registered crime No.94/2020 for the offence punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (for short, “IPC”) on 28.06.2020 vide Ex.P/44 against the unknown accused on the basis of inquest. On 29.06.2020, he requested the Chief Executive Officer to provide employees for the burial of the dead body. The complaint Ex.P/45 was prepared and sent to the Officer, Nagar Panchayat Patan and on 29.06.2020 at about 4.30 PM, the Panchnama (Ex.P/26) for the burial of the deceased was prepared in front of witnesses at Atari Muktidham Patan. Thereafter, on 29.06.2020, the Investigating Officer prepared an advertisement vide Ex.P/46 for the identification of the deceased along with the photographs of the dead body of the deceased. On 01.07.2020, after seeing the advertisement of the deceased, the family members of the deceased were present at Patan police station and after seeing the photograph of the deceased and the items recovered from near the dead body, the deceased was identified, then the identification panchnama was prepared vide Ex.P/20 and the son-in-law of the deceased, Dilip Deshlahra and the daughter of the deceased stated in their statements that the deceased had gone from home for the last time with accused Obhan Sahu, then on the basis of suspicion, the accused Obhan Sahu and his son were taken into custody on 02.07.2020 and brought to Utai police station. 8. A notice under Section 160 of the Cr.P.C. was prepared and sent to the witnesses vide Ex.P/25, Ex.P/25A and Ex.P/27 respectively. The accused were interrogated in front of the witnesses at the Utai police 8 station and their memorandum statements were recorded vide Ex.P/10 and Ex.P/11, respectively. After interrogation of the accused by the Investigation Officer, on the indication of accused Obhan Sahu, 80 notes of Rs.500/- each, totaling Rs.40,000/- were recovered under the mattress of the cot in the house of accused Obhan Sahu, a blue coloured undergarment with a string worn at the time of the incident containing semen stains at many places on the front portion, a black coloured full pant and striped full shirt, an iron rod, a nylon rope of 61 inches length kept in the corner of the house, a yellow coloured nylon rope of 132 inches length, two pieces of white coloured plastic rope of 37 inches and 35 inches length respectively, four pieces of empty quarters kept on the railing of the house which had an alcohol-like odor, a white coloured designed used bed sheet on which muddy stains were visible at many places, possibly resembling semen, and on the indication of the accused, a pit was dug beside the house and a square piece of red and black gamchha was found in a plastic membrane, inside which two pieces of silver footrest of the deceased on which Vimal was written and the Aadhar card of the deceased, 08 pieces of red coloured glass bangles, one used old slipper and a Micromax mobile phone with Idea and Airtel SIM card inserted in it, which were presented by the accused from his pocket, were sealed separately and seized vide seizure memo Ex.P/12and the place of incident, accused Obhan Sahu's rented house in Nevai, whose map was prepared in the presence of witnesses as per the information given by accused Obhan Sahu vide Ex.P/32. 9 9. Further in the course of investigation, on the indication of the accused by the investigating officer, a black colour Platina motorcycle bearing registration No.CG 07 BR 1310 used worth twenty thousand rupees was seized vide seizure memo Ex.P/14. After the above action, the Investigating Officer on the indication of accused Umesh Kumar Sahu, a white colour Omni van bearing registration No. CG 07 AG 9557 was recovered from the house at village Utai, in whose dicky there were black coloured mat having blood like stains, old used cost around three lakh rupees, on being taken out from the bed in the house, an old used Samsung mobile with Jio company sim and a black colour Micromax company mobile in which SIM was not installed were seized vide seizure Ex.P/13. On 02.07.2020, in relation to how accused Obhan Sahu raped and murdered the deceased from 26.06.2020 to 28.06.2020 and then threw the dead body in Khorpa Nala Patan along with his son, a spot panchanama and sketch were prepared vide Ex.P/16 and Ex.P/17 in front of the accused and witnesses, videographer, FSL scientist and on being presented by photographer Vinod Verma, an HP company 08 GB memory card was also seized. A pen drive containing the video and photographs of the incident site Khorpa Nala and the seizure proceedings which were seen on the computer and recorded by the witnesses and seizure memo (Ex.P/17A) was prepared and on the basis of interrogation of the accused and other evidence, Sections 342, 376 2)(d), 404 and 34 of the IPC were added in the case. The accused were arrested in the presence of witnesses vide arrest memo Ex.P/19 and Ex.P/20, respectively and information about their arrest was given to the family of the accused 10 vide Ex.P/20. 10. For the examination of accused Obhan regarding his ability to have sex, a medical examination form was prepared and he was examined at the Government Hospital, Patan. The deceased's son-in- law and the family of the deceased had reached to Patan police station and they identified the deceased by looking at her photographs and the seized items, after which the identification panchnama was prepared vide Ex.P/9. 11. On 13.07.2020 vide Letter No. 471/2020, the seized items were sent to the State Forensic Science Laboratory, Raipur for chemical testing through the Superintendent of Police, Durg vide Ex.P/49, Ex.P/50 and Ex.P/50A and as the scrutiny of Ex.P/49 was conducted by the State Forensic Science Laboratory, Raipur, it was again sent to the State Forensic Science Laboratory, Raipur through the Superintendent of Police, Durg after completing the scrutiny by Letter No. 471A/2020, 471B/2020, 471C/2020 dated 15.07.2020 which is Ex.P/51, Ex.P/52 and Ex.P/52A, whose acknowledgement is Ex.P/51A, Ex./P52B and Ex.P/52C. On 10.08.2020, the long bone of the deceased was sent to the State Forensic Science Laboratory, Raipur through the Superintendent of Police, Durg in a sealed packet vide Ex.P/53 for generating the DNA test profile of the deceased's long bone and giving the time limit, whose acknowledgement is Ex.P/53A. On 04.09.2020, a report Ex.P/54 was sent by the State Forensic Science Laboratory, 11 Raipur and the test report sent by the State Forensic Science Laboratory, Raipur to the Superintendent of Police, Durg on 09.09.2020 is Ex.P/55, whose covering letter is Ex.P/55A. 12. During the investigation, on 10.09.2020 vide Letter No.107/2020 was sent by the State Forensic Science Laboratory, Raipur to the Superintendent of Police, Durg and in this regard, the test report is Ex.P/56, whose covering letter is Ex.P/56A. On 14.09.2020, the State Forensic Science Laboratory, Raipur sent letter No.191/2020 (Ex.P/57) to the Superintendent of Police, Durg, and sent the blood sample of the deceased's parents after duly collecting it. For the DNA test of the deceased, consent (Ex.P/58 and Ex.P/59) of the deceased's parents were obtained and a report was sent to the SDM, Patan and BMO and a written complaint (Ex.P/60) was prepared and sent for permission to take blood sample. The investigating officer appointed a doctor for DNA and provided a complete kit for DNA sampling and sent the complaint (Ex.P/61) and the Sub-Divisional Magistrate, Patan directed the Block Medical Officer to appoint a doctor vide Ex.P/62. Blood sample of deceased's parents was taken for DNA as per Ex.P/63 and Ex.P/64 and blood of deceased's parents was collected and sent for chemical test for DNA as per letter No.688/2020 dated 21/09/2020 of Superintendent of Police, Durg to State Forensic Science Laboratory, Raipur vide Ex.P/66, acknowledgment of which is Ex.P/66A. Thereafter, notice under Section 91 of the Cr.P.C. was prepared vide Ex.P/21 to Ex.P/22B and sent to the daughter of the accused to submit the documents of the seized vehicle, motorcycle and Omni van and on 25.09.2020, 12 Lileshwari Sahu, daughter of accused Obhan Sahu, produced a white colour Omni van, bearing registration No. CG 07 AJ 9557 and motorcycle bearing registration No. CG 07 BR 1310 were seized before the witnesses vide Ex.P/38. After the above action, on 25.09.2020 the Investigating Officer sent a notice to the family members of the deceased vide Ex.P/30 and thereafter, on 26.09.2020, caste certificate issued by the Sarpanch of Village Somani of the daughter of the deceased, which is Article A, and the Panchnama which was on the letter pad of Village Sarpanch Somani, in which the name and caste of the deceased is written, which is Ex.P/24, were seized vide seizure memo Ex.P/15 and a complaint (Ex.P/68) was prepared and sent to the Tehsildar Rajnandgaon for making the caste certificate of the deceased. 13. After the above proceedings, notice was sent to photographer Vinod Verma to prepare (Ex.P/69) and provide photos and videos of all proceedings of the case through CD or pen drive. Then Vinod Verma's certificate under Section 65B was sent in relation to the pen drive prepared by Vinod Kumar Verma. During the investigation, the Investigating Officer wrote a written complaint to the Sub-Divisional Magistrate, Patan to get the seized items of the deceased identified. The Investigating Officer issued a notice to the daughter of the deceased to appear for the identification proceedings vide Ex.P/27 and a written complaint (Ex.P/71) was prepared and sent to Cyber Cell, Durg for providing CDR and CAF of the mobile numbers of the deceased and the accused and tower location from 26.06.2020 to 13 27.06.2020. CAF of accused Obhan Sahu vide Ex.P/72 and Ex.P/72A were presented by Cyber Cell Durg and CDR and tower location of accused Obhan Sahu was given vide Ex.P/72B and Ex.P/72C. CAF of the deceased is Ex.P/P73 and CDR and tower location is Ex.P/73A. The CDR and CAF sent by Cyber Cell have been verified and signed by the investigating officer on each page. The Investigating Officer analysed the mobile numbers of the accused and the deceased and made a report vide Ex.P/73B and prepared a notice (Ex.P/74) for the deceased's parents to appear for collecting blood sample for DNA testing. 14. During the investigation, the Investigating Officer prepared a notice for appearance of the accused's daughter for collecting blood sample for DNA test vide Ex.P/37 and during the investigation, statements of the applicant/informant Kumar Thakur alias Nirmal Thakur, Harish Kumar Verma, Murali Verma, Pramod Kumar, Manish Verma, Monika Pendriya, son-in-law of the deceased, nephews of the deceased, mother of the deceased, son and daughter of the deceased, Nagesh Markandeya, Ashok Sahu, Nirmala Sahu, Lalchand Yadav, Shivmaya Prasad, Vishal Soni, Rupesh Lahri, Mrs. Lata Yadav, Santosh Yadav, Ashwani Bandhe, Ganesh Ram Dahriya, Devkumar Das, Kanhaiyalal Markandeya were recorded as per their statements and after examination of the seized items by the Forensic Science Laboratory, Raipur, a report was sought vide Ex.P/75, whose covering letter is Ex.P/75A. Thereafter, a complaint (Ex.P/76) was sent to the Tehsildar Patan for seeking a site map of the incident and DNA was 14 obtained by the State Forensic Science Laboratory, Raipur and a report (Ex.P/77) was sent, whose covering letter is Ex.P/77A. As the deceased belonged to the caste Satnami i.e. Scheduled Caste category, Section 3 (2) (v) of the Atrocities Act was added in the case and the diary of the case was sent to the Deputy Superintendent of Police, Ajaak for further investigation, who, after completion of the remaining investigation in the case, prepared charge-sheet No.105/2020 for the offence punishable under Sections 302, 201, 376 (2)(d), 342, 404, 34 IPC and Sections 3(2)(v) of the Atrocities Act against the accused persons. On the basis of documents submitted, charges have been framed against accused Obhan Sahu under Sections 342, 376(2) (d), 302, 404, 201 of the IPC and Section 3(2)(v) of the Atrocities Act, 1989 and charges have been framed against accused Umesh Sahu under Sections 201 and 404 of the IPC. 15. Thereafter, statements of witnesses were recorded under Section 161 of Cr.P.C. and, after due investigation, the police filed charge-sheet in the concerned jurisdictional Court and, thereafter, the case was committed to the Court of Sessions for trial in accordance with law, from where the learned Special Judge under Atrocities Act, Durg, District Durg (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. The trial Court has framed charges against the appellants and proceeded on trial. The appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated in the crime in question. 15 16. The prosecution in order to prove its case examined as many as 19 witnesses as PW-1 to PW-19 and exhibited 77 documents vide Ex.P/1 to Ex.P/77A as also the Article A, whereas the appellants- accused in support of their defence have not examined any witness, but exhibited 6 documents as Ex.D/1 to Ex.D/6. 17. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 21.07.2023 convicted and sentenced the appellants in the manner mentioned in the second paragraph of this judgment, against which these appeals under Section 374(2) of the Cr.P.C. have been preferred by them calling in question the impugned judgment.
Legal Reasoning
last seen together. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. The conduct of the accused and the fact of last seen together plus other circumstances have to be looked into. Normally, last seen theory comes into play when the time gap, between the point of time when the accused and the 28 deceased were seen last alive and when the deceased is found dead, is so small that the possibility of any person other than the accused being the perpetrator of the crime becomes impossible. It will be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. However, if the prosecution, on the basis of reliable evidence, establishes that the missing person was seen in the company of the accused and was never seen thereafter, it is obligatory on the part of the accused to explain the circumstances in which the missing person and the accused parted company. [See Dharam Deo Yadav v. State of Uttar Pradesh, (2014) 5 SCC 509]. 38. So far as, the involvement of the appellants in the offence in question are concerned, the case of the prosecution is based on circumstantial evidence i.e. last seen theory and recovery of the death body on the instance of accused -Obhan Sahu. The requirement to prove the case against the accused on the basis of circumstantial evidence has been settled by the Hon’ble Supreme Court in various judgments. In the matter of Ravindra Singh Vs. State of Punjab, 2022 (7) SCC 581 has held in para 10 as under:- “10. The conviction of A2 is based only upon circumstantial evidence. Hence, in order to sustain a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent. This court has consistently held in a long line of cases [See Hukam Singh v. State of Rajasthan AIR (1977 SC 29 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa Krishnappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh @ Dalbir Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890)) 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 innocence of the accused. 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. 10.1. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt. 10.2. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed that: "21. In a case based on circumstantial 30 evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....". 39. In the matter of para Surendra Kumar and Another Vs. State of Uttar Pradesh, 2021 (20) SCC 430, the Hon'ble supreme Court has held in 11 and 12 as under:- "11. As the case against the appellants is entirely based on circumstantial evidence, it is necessary to determine whether the available evidence lead only to the conclusion of guilt and exclude all contrary hypothesis. The enunciation on the law of circumstantial evidence stood the test of time since Hanumant Vs. State of Madhya Pradesh1 where Mahajan J., has written as under:- "10............It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with 31 the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.........… 12. The nature, character and essential proof required in criminal cases was discussed in detail by Fazal Ali J in Sharad Birdhichand Sarda vs. State of Maharashtra2 and the proposition of law culled out on circumstantial evidence was approved in many subsequent judgments and was recently reiterated by Krishna Murari J., writing the opinion for a three Judges Bench in Shailendra 1 AIR 1952 SC 343 2 (1984) 4 SCC 116 Rajdev Pasvan & Ors. Vs. State of Gujarat & Ors. 3 where it was succinctly laid down as under:- "17. It is well settled by now that in a case based on circumstantial evidence the courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest 32 suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused." 40. In the matter of Digambar Vaishnav and Another Vs. State of Chhattisgarh, 2019 (4) SCC 522, the Hon'ble supreme Court has held:- "14. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt. 15. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, 33 there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. 16. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied: i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and iii.) 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 it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 17. In Varkey Joseph v. State of Kerala, 1993 Suppl (3) SCC 745, this Court has held that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution 34 has to travel all the way to prove its case beyond reasonable doubt. 18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under: "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be proved, and something that "will be proved. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence pro-duced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure con- clusions to be arrived at, on the touchstone of dis- passionate judicial scrutiny, based upon a complete and comprehensive 35 appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so de- mand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense". 41. The Supreme Court in case of Madhu Vs. State of Kerala, 2012 (2) SCC 399 has held in paragraph 5 as under:- "5. The care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to the benefit of doubt." 42. In view of the aforesaid law laid down by the Hon’ble Supreme Court we again examined the evidence available on record against the appellants. 36 43. The prosecution has examined Dilip Deshlahare (PW-4), who is the witness of seizure, has stated that accused Obhan Sahu told the police during his statement that on 26.06.2020, he took the deceased, Kanchan Bai to his rented house at Nevai after deceiving her and committed forceful sexual intercourse three times after making her drink alcohol. Accused Obhan Sahu further stated that after killing Kanchan Bai, he and his son i.e. accused Umesh Sahu, put her body in a sack and threw it in Khorpna Nala. He also mentioned that Kanchan Bai's Aadhar card, a pair of slippers, and a footpad were recovered from under the cot in his Nevai house and were hidden in a plastic sheet. Additionally, Kanchan Bai's mobile phone was switched off and kept by accused Umesh Sahu. He further stated that accused Obhan Sahu told the police that he had kept the items used in the crime, including a black rope, a suja, a nylon rope, a white plastic rope, the bed sheet on which Kanchan Bai was laid, Rs.40,000/- given to Kanchan Bai, two empty bottles of Goa liquor, and his motorcycle, CG-07/BR-0-1310, at his Nevai house. The accused Umesh Sahu also made a statement to the police, stating that his father, accused Obhan Sahu, had called him to dispose of Kanchan Bai's body and that he had helped his father in the crime. 44. Likewise, Sanju Deshlahare (PW-5) is also the seizure witness, has stated in his evidence that accused Obhan Sahu had taken Kanchan Bai to his house and had killed her after raping her. He further stated that accused Obhan Sahu had confessed to the crime during police interrogation. According to this witness, during police 37 interrogation, accused Obhan Sahu stated that he had hidden Kanchan Bai's Aadhar card, footpad, necklace, bangles, and slippers by digging a pit in his rented house in Nevai and had asked the police to recover them. After interrogation, the police along with accused Obhan Sahu, went to his house in Nevai, where he handed over the items, including the Aadhar card, footpad, necklace, bangles, and slippers, which were seized by the police and documented in the seizure memo. He also stated that the police had also recovered a mobile phone and Rs.40,000/- in cash from accused Obhan Sahu's house, as per his statement. The body of the deceased, Kanchan Bai, was found in Khorpna Nala, which was identified by her brother-in-law. 45. In cross-examination, Dilip Deshlahare (PW-4) denied that the police did not interrogate the accused in his presence or that the accused did not make any statements in his presence. Likewise, Sanju Deshlahare (PW-5) has stated that accused Obhan Sahu had taken Kanchan Bai to his house and killed her after raping her. 46. The witness of last seen, i.e. Takeshwari Bai (PW-9), who is daughter of deceased Kanchan Bai has turned hostile as she has not supported the case of the prosecution. Neel Kamal Banjare (PW-10), who is son of the deceased Kanchan Bai has stated that his mother had gone to work with accused Obhan Sahu and did not return. He tried calling her, but her phone was switched off. Later, his brother-in- law and sister went to the police station and identified his mother's body from a photo sent by the police via WhatsApp. 38 47. Ashok Sahu (PW-11) stated in his evidence that he owns a four- room house and a barn near the Nevai liquor shop. He rented one room to accused Obhan Sahu in 2017 for Rs.800/-. In July 2020, police visited his house in Nevai, and he found out that a large crowd had gathered due to the murder of a woman. The police searched accused Obhan Sahu's room, which was locked, and found evidence related to the crime. 48. In the light of these guiding principles, we will have to examine the present case. 49. On a perusal of the judgment of the trial Court, it would reveal that the main circumstance on which the trial Judge found the appellant- Obhan Sahu guilty of the crime is the recovery of various articles at his instance. The trial Court has further found that on the basis of memorandum statement of the appellant, several articles including the dead body of deceased Kanchan Bai Banjare has been seized. 50. The motive attributed to the appellants by the prosecution is that appellant-Obhan Sahu has committed the offence of sexual assault with the deceased Kanchan Bai Banjare from 2017 to 2020 and thereafter, on 26.06.2022-27.06.2022, he used nylon rope to strangulate her, removed her jewellery and in order to escape the dead body of deceased, he called his son namely Umesh Sahu and disposed the dead body of deceased from the place of incident. 51. At this stage, it would be appropriate to notice Section 27 of the Indian Evidence Act, 1872, which states as under: - 39 “27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 52. ObjeSection 27 of the Indian Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered. 53. The Supreme Court in the matter of Perumal Raja alias Perumal v. State, Rep. By Inspector of Police, 2024 SCC OnLine SC 12 has defined the ‘custody’. It held that the expression “custody” under Section 27 of the Evidence Act does not mean formal custody. It includes any kind of restriction, restraint or even surveillance by the police. Even if the accused was not formally arrested at the time of giving information, the accused ought to be deemed, for all practical purposes, in the custody of the police. 54. The Supreme Court in the matter of Boby v State of Kerala, 2023 SCC OnLine SC 50 held that the basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be 40 confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. Section 27 puts a bar to use the confessional statement, but the fact that discovery and information which proved to reliable would be a circumstantial evidence. 55. After considering all the above prove facts and circumstances, the prosecution has proved the following circumstantial facts beyond doubt:- “(i) On 06.06.2022-27.06.2022, the appellant-Obhan Sahu took the prosecutrix, made her to drank liquor and committed forceful sexual intercourse three times and thereafter, used a nylon rope to strangulate her removed her jewelry. (ii) On the same day, in order to escape, he has called his son, who is co-accused namely Umesh Sahu for disposing the body from the place of incident i.e. thrown the body in a canal in a rag using their car. (iii) On 28.06.2020, at about 6.00 AM, the dead body of deceased was found near Khorpa Nala. (iv) According to the doctor’s report, the nature of death was homicidal due to asphyxia as a result of sign of neck compression and the body was early entry to late stage of decomposition and the duration of death within 2-3 days prior to postmortem. 41 (v) Omni van bearing registration No. CG 07 AG 9557, in which both the accused took the dead body of the deceased has contained the blood stains, and according to the FSL report, blood was found on it. (vi) No defence story of the appellants is established. There is no satisfactory explanation from the appellant-Obhan Sahu as to how Kanchan Bai Banjare died.” 56. Therefore, on the basis of the aforesaid circumstantial evidence, this Court finds only one fact proved that the appellant-Obhan Sahu committed culpable homicide on the death of Kanchan Bai Banjare by consuming her alcohol, committing forceful sexual intercourse and thereafter, by strangulating her by a nylon rope. 57. As far as the question of the appellant-Obhan Sahu causing the murder of Kanchan Bai Banjare is concerned, there is no direct motive for committing the crime, but the appellant-Obhan Sahu caused the death of Kanchan Bai Banjare by strangulating her neck and then, thrown her dead body in the canal of Khopra Nala, this fact proves that the appellant-Obhan Sahu had the intention to cause death of Kanchan Bai Banjare and the bodily injury caused by him was sufficient to cause death in the ordinary course of nature. Therefore, the Court also finds it proved that the appellant-Obhan Sahu has caused murder of deceased Kanchan Bai Banjare. 58. Applying the aforesaid well settled principles of law and taking into 42 the facts in totality and considering the facts and circumstances of the case, in our considered view the prosecution was able to establish the guilt of the appellant beyond reasonable doubt. Learned trial Court has observed all incriminating circumstances against the appellant-Obhan Sahu, which connect him with the instant crime and chain of circumstances are fully linked and completed with each other. Thus, the prosecution has proved its case beyond reasonable doubt and the judgment of the trial Court is just and proper and does not call for any interference by this Court. The impugned judgment of conviction and order of sentence is just and proper warranting no interference of this Court. 59. Insofar the appellant-Umesh Sahu is concerned, he is convicted only for the offence punishable under Sections 404 and 201 of the IPC for dishonestly misappropriating the mobile phone of the deceased as also for concealing the dead body of the deceased, it is reflected from the record that there is no allegation against him that he has committed murder of the deceased namely Kanchan Bai Banjare. It has been further reflected that one Maruti Omni Van has been seized from the appellant from which the dead body of the deceased was said to have been concealed and used in concealment of the dead body of the deceased, but the said vehicle was also accessible to the main accused, i.e. Obhan Sahu as well as the mobile phone of the deceased has been recovered from the present appellant, but the said seizure is doubtful and no other evidence to connect the present appellant in the crime of question. 43 60.
Arguments
18. Mr. Anmol Sharma, learned counsel for the appellantd submits that the learned trial Court is absolutely unjustified in convicting the appellants for the aforementioned offences as the learned trial Court has not proved the offence beyond reasonable doubt. He further submits that the memorandum and seizure witnesses, namely Dilip Deshlahre (PW-4) has turned hostile and Sanju Deshlahre (PW-5) are interested witnesses as they are relative of the deceased as Dilip Deshlahre (PW-4) is Son-in-law and Sanju Deshlahre (PW-5) is nephew of the deceased and further, no independent witnesses has been examined by the prosecution. It has been contended that the recovery of article has been from outside the house of the appellant i.e. open place and it was rented house which belonged to Ashok Sahu (PW-11), who has specifically stated in paragraph-13 that he rented the 16 place only for period of four months in the year 2017. It has been further contended that insofar as the allegation with respect to forceful sexual intercourse is concerned, the same has not been proved by the prosecution because in the MLC (Ex.P/39), no where has been mentioned about the signs of sexual assault as also the clothes were sent for its chemical examination and according to the FSL report (EX.P/54), the same has been found to be negative. It has been argued that the theory of last seen has not been proved adequately by the prosecution as there is no last seen evidence with the close proximity of time of the death of the deceased and the witness of last seen i.e. Neelkamal Banjare (PW-10), who is son of deceased has stated in paragraphs-10 and 12 of his statement that from 26.06.2020 to 01.07.2020, he has not told about the last seen to any one and it is only after recovery of dead body, he has stated the same. It has been further argued that during the period of incident, there was lock down because of COVID-19 and the dead body of the deceased was not recovered at the instance of the appellants, but it was recovered from an open place and on the information given by Kumar Thakur (PW-1), merg intimation (Ex.P/1), was lodged. It has been submitted that the appellant Obhan Sahu has been implicated in the present case only because of the fact the he has given loan to the deceased of Rs.10,000/- and has not returned back which has been informed by the appellant Obhan Sahu to her son-in-law Dilip Deshlahre as per his own 161 Cr.P.C. statement. It has been further submitted that the prosecution case is based on circumstantial evidence and the chain of circumstances are missing as 17 the prosecution has failed to prove the case against the appellants beyond reasonable doubt. Thus, the conviction of the appellants is unsustainable, inadmissible and bad in law. It has been contended that even if the entire case is taken at its face value, the case would not travel beyond Section 304 Part-I or 304 Part-II of the IPC, as such, the impugned judgment of conviction is liable to be set aside and appellants be acquitted/discharged from the said offence. 19. Mr. Anmol Sharma, learned counsel for the appellant further submits that the appellant-Umesh Sahu in CRA No.1634/2023 submits that the appellant is innocent and has been falsely implicated in the crime in question. He further submits that in the present case, the appellant-Umesh Sahu has been roped in the offence under Section 404 and 201 of IPC to dishonestly misappropriate mobile phone of the deceased and also for concealing the dead-body of the deceased allegedly. It has been contended that there is no allegation against him that he has committed murder of the deceased namely Kanchan Bai Banjare. One Maruti Omni Van has been seized from the appellant from which the dead-body of the deceased was said to have been concealed and used in concealment of the dead body of the deceased but the said vehicle was also accessible to the main accused who is the father of the appellant. He would further submit that the mobile phone of the deceased has been recovered from the present appellant, but the said seizure is doubtful and no other evidence to connect the present appellant in the crime of question. As such, the appeal be allowed and the appellant be acquitted of the charges levelled against him. 18 20. Per-contra, Mr. Sakib Ahmed, learned Panel Lawyer appearing for the State supported the impugned judgment of conviction and order of sentence and submitted that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that the conviction of the appellants / accused is based on evidence of last seen together and circumstantial evidence. It has been contended that the prosecution during investigation recorded the statements of the prosecution witnesses, in which they have categorically deposed in their statements regarding conduct and commission of offence by the accused / appellants, which is concurrent evidence against the accused / appellants. It has been further contended that learned trial Court has come to the conclusion regarding involvement of the accused / appellants in the crime in question under the concluding paragraphs of the judgment, in which the the learned trial Court has observed all incriminating circumstances against the accused / appellants, which connect them with the instant crime and chain of circumstances are fully linked and completed with each other. Thus, the prosecution has proved its case beyond reasonable doubt and the judgment of the trial Court is just and proper and does not call for any interference by this Court and as such, criminal appeals deserve to be dismissed. 21. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection. 19 22. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 23. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased- Kanchan Bai Banjare was homicidal in nature ? 24. The learned trial Court, relying upon the statement of Dr. Ajay Thakur (not examined), who has conducted postmortem on the body of deceased vide Ex.P/39, has clearly come to the conclusion that the death of the deceased was homicidal due to asphyxia as a result of sign of neck compression and the body was early entry to late stage of decomposition and the duration of death within 2-3 days prior to postmortem. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellants. We hereby affirm the said finding. 25. It is the case of no direct evidence, rather conviction is based on circumstantial evidence. 26. We may also make a reference to a decision of the Supreme Court in C. Chenga Reddy and Ors. v. State of A.P., (1996) 10 SCC 193, wherein it has been observed thus:- “In a case based on circumstantial evidence, the settled law is that the circumstances from 20 which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”. 27. In Padala Veera Reddy v. State of A.P. and Ors., AIR 1990 SC 79, it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:- “(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 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 21 but should be inconsistent with his innocence.” 28. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out by the Supreme Court that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 29. Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted”. 30. Five golden principles which constitute Panchseel of proof of case 22 based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 which state as under :- “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (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.” 31. The Supreme Court in the matter of Sailendra Rajdev Pasvan and Others vs. State of Gujarat Etc., AIR 2020 SC 180 observed that in a case of circumstantial evidence, law postulates two-fold requirements. Firstly, that every link in the chain of circumstances 23 necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt and secondly, all the circumstances must be consistent pointing out only towards the guilt of the accused. We need not burden this judgment by referring to other judgments as the above principles have been consistently followed and approved by this Court time and again. 32. The Supreme Court in the matter of Suresh and Another v State of Haryana, (2018) 18 SCC 654 has observed that cases of circumstantial evidence, the courts are called upon to make inferences from the available evidence, which may lead to the accused's guilt. The court at paras 41 and 42 has observed thus :- “41. The aforesaid tests are aptly referred as Panchsheel of proof in Circumstantial Cases (refer to Prakash v. State of Rajasthan). The expectation is that the prosecution case should reflect careful portrayal of the factual circumstances and inferences thereof and their compatibility with a singular hypothesis wherein all the intermediate facts and the case itself are proved beyond reasonable doubt. 42. Circumstantial evidence are those facts, which the court may infer further. There is a stark contrast between direct evidence and circumstantial evidence. In cases of circumstantial evidence, the courts are called upon to make inferences from the available evidence, which may lead to the accused's guilt. In majority of cases, the inference of 24 guilt is usually drawn by establishing the case from its initiation to the point of commission wherein each factual link is ultimately based on evidence of a fact or an inference thereof. Therefore, the courts have to identify the facts in the first place so as to fit the case within the parameters of “chain link theory” and then see whether the case is made out beyond reasonable doubt. In India we have for a long time followed the “chain link theory” since Hanumant case, which of course needs to be followed herein also.” 33. In the present case, the prosecution has proved the following circumstantial evidence against the appellant:- (1)- क्या आरोपी ओभान साहू ने दि(cid:18)नांक 26.06.2020 को थाना उतई ቝኌ(cid:26)थत आवासपारा सोमनी के अपने घर में कं चन बाई बंजारे (मृतितका) को (cid:18)ोषपूव&क परिररोति(त दिकया? (2)- क्या आरोपी ओभान साहू ने वष& 2017 से दि(cid:18)नांक 26.06.2020 तक थाना पाटन के ्ቌे्ቔाति(कार के अंत्ቇ&त कं चन बाई बंजारे को रुपये का लालच (cid:18)ेकर उसकी सहमतित के दिबना उसके साथ बार-बार बलात्कार का अपरा( कारिरत दिकया? (3)- क्या घटना दि(cid:18)नांक को कं चन बाई बंजारे की हुई मृत्यु आपराति(क मानवव( ्ቚकृ तित की है? (4) क्या आरोपी ओभान साहू ने घटना दि(cid:18)नांक को साशय व ्ሺानपूव&क कं चन बाई बंजारे की नायलोन र(cid:26)सी से ्ቇला घोंटकर उसकी मृत्यु कारिरत कर हत्या का अपरा( कारिरत दिकया? 25 (5) क्या आरोपी ओभान साहू ने मृतितका की (cid:18)ो न्ቇ चां(cid:18)ी की पैर प्ሾी बेईमानी से दिवदिनयो्ቇ दिकया? (6) क्या आरोपी ओभान साहू ने कं चन बाई की हत्या के प्ቐात् (cid:26)वयं को वै( (cid:18)ंड से ्ቚतितच्छादि(cid:18)त करने के आशय से लाश को एक बोरा में सीलकर दि(cid:18)नांक 27.06.2020 को अपने बेटे के साथ दिमलकर अपनी कार ्ቅमांक-सी.जी.07- ए.जे.-9557 में लाश को खोरपा नाला के पास फें क दि(cid:18)या एवं मृतितका के मोबाईल सीम को भी रा(cid:26)ते में तोडकर फें क दि(cid:18)या एवं साቌኚय का दिवलोप दिकया? (7) क्या आरोपी ओभान साहू ने मृतितका के साथ उसकी इच्छा के दिवरू्ቍ बलात्कार का अपरा( यह जानते हुए दिक, (cid:26)वयं अनुसूतिचत जातित या अनुसूतिचत जनजातित से भिभ्ቐ व्यदिH है एवं मृतितका अनुसूतिचत जातित की मदिहला है, के साथ साशय (cid:18)स वष& या उससे अति(क की अवति( के कारावास से (cid:18)ंडनीय अपरा( कारिरत दिकया? (8) क्या आरोपी उमेश साहू ने दि(cid:18)नांक 27.06.2020 को अपने घर नेवई, थाना पाटन ्ቌे्ቔाति(कार में यह जानते हुये दिक, कं चन बाई बंजारे की हत्या की ्ቇई है, जो भारतीय (cid:18)ंड संदिहता, 1860 की (ारा 302 के अंत्ቇ&त (cid:18)ंडनीय है, उH अपरा( दिकये जाने के प्ቐात आरोपी ओभान साहू के साथ दिमलकर पर(cid:26)पर सहमतित व्(cid:18)ारा कं चन बाई बंजारे के शव को ओमनी कार ्ቅमांक-सी.जी.07-ए.जे.-9557 में भरकर कार में डाला और साቌኚय को भिछपाने के लिलये लाश को खोरपा नाला के पास फें क दि(cid:18)या एवं मृतितका के मोबाईल सीम को भी तोडकर रा(cid:26)ते में फें क दि(cid:18)या, उH दिवलोप आरोपी ने अन्य आरोपी ओभान साहू जो उसका दिपता है, को वै( (cid:18)ंड से ्ቚतितच्छादि(cid:18)त दिकये जाने के आशय से दिकया? 26 (9) क्या आरोपी उमेश साहू ने कं चन बाई बंजारे का काले रं्ቇ का माइ्ቅोमैक्स कं पनी का मोबाईल मॉडल एक्स.704 का बेईमानी से दिवदिनयो्ቇ यह जानते हुये दिक, उH संपलिM कं चन बाई बंजारे के कब्जे में उसकी मृत्यु के समय थी?” 34. The next question for consideration would be, whether the trial Court has rightly held that the appellant-Obhan Sahu are author of the crime by relying upon the following circumstances:- “(i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P/39) of Dr. Ajay Thakur (not examined) who conducted autopsy. (ii) As per the case of the prosecution, the fact of death of deceased Kanchan Bai Banjare was within the knowledge of the appellant-Obhan Sahu, however, there was no any explanation given by the appellant in his statement under Section 313 of the CrPC. Thus, burden of proof was on the appellant- Obhan Sahu to explain such circumstance, which he failed to explain.” 35. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused ‘must be’ and not merely ‘may be’ proved guilty before a court can convict the accused. It has been held that 27 there is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held 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 probabilities the act must have been done by the accused. 36. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. 37. In the present case, the trial Court has found proved the theory of
Decision
In view of the above, we are of the considered opinion that there are various components which are missing from the chain of circumstantial evidence and therefore, the appellant-Umesh Sahu is entitled for benefit of doubt and thereby by giving him benefit of doubt, he is acquitted for the charges levelled against him for the offence punishable under Sections 404 and 201 of the IPC. 61. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant-Umesh Sahu and the appellant-Umesh Sahu is entitled for benefit of doubt. 62. In the result, CRA No.1634/2023 filed on behalf of appellant- Umesh Sahu is allowed. The impugned judgment of conviction and order of sentence dated 21.07.2023 insofar as it relates to appellant- Umesh Sahu is set aside. The appellant-Umesh Sahu is acquitted from all the charges leveled against him. The appellant is stated to be on bail. His bail bond and sureties shall stand discharged. 63. Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, 1973 (now Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023), the appellant-Umesh Sahu is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety 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 44 of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 64. In the result, CRA No.2304/2023 filed by the accused Obhan Sahu being devoid of merit, is liable to be and is hereby dismissed. 65. It is stated at the Bar that the appellant-Obhan Sahu is in jail, he shall serve out the sentence as ordered by the learned trial Court. 66. The Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant-Obhan Sahu is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 67. Let a certified copy of this judgment along with the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Anu