Nafr High Court
Case Details
1 CRA No. 2042 of 2024 K GOWRI SANKARA RAO Digitally signed by K GOWRI SANKARA RAO Date: 2025.06.13 19:20:57 +0530 2025:CGHC:24011-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2042 of 2024 1 - Shiv Kumar Bhoy S/o Bana Bhoy Aged About 40 Years Occupation Agriculture Village Lohakhan, P.S. Pusour, District Raigarh Chhattisgarh. 2 - Jitendra Bhoy S/o Bana Bhoy Aged About 40 Years Occupation Agriculture Village Lohakhan, P.S. Pusour District Raigarh Chhattisgarh. versus Appellants(s) 1 - State Of Chhattisgarh Through Officer Incharge P.S. Pusour, District Raigarh Chhattisgarh. Respondent(s) (Cause title is taken from Case Information System) For Appellants : Mr. Sanjay Agrawal and Mr. Vivekanand Samaddar, Advocate For Respondents/State : Mr. Sangarsh Pandey, Govt. Advocate Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per, Bibhu Datta Guru, Judge 12/06/2025 1. Heard. 2 CRA No. 2042 of 2024 2. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 05/11/2024 passed in Sessions Trial No. 68/2022 by the learned II Additional Sessions Judge, Raigarh (CG) whereby the appellant has been convicted and sentenced as under:- Conviction U/s 302/34 of the IPC Sentence R.I. for Life imprisonment with fine of Rs. 2500/- with default of stipulation. U/s 201/34 of the IPC R.I. for seven years with fine of Rs. 2500/- with default of stipulation. Both the sentences were directed to run concurrently. 3.
Facts
Case of the prosecution in brief is that first of all on 16.07.2022 at 08.10 pm, Complainant Saroj Kumar Bhoi along with his uncle Pramod Gupta, Chandan Vishwal came to the Police Station-Pusour and lodged a missing report (Ex.P/6) in respect of his father Ude Ram Bhoi (henceforth ‘the Deceased) who went to the pond to take a bath on 15.07.2022 at 05.00 pm, but he did not return home. During the investigation, on 17.07.2022, dead body of the Deceased was found hanging from the branch of a cashew tree in Kajubari. Subsequently, Merg No. 45/2022 was registered. 4. During the proceeding, Spot Map (Ex.P/13) was prepared. One opened electricity blood stained wire was seized vide Ex.P/14. One long piece of cloth (Lungi) sustained with blood which was tied on the neck and branch of the tree was seized vide Ex.P/16. On the basis of written 3 CRA No. 2042 of 2024 report lodged by the wife of the Deceased, Debhati Nalsi Ex.P/23 was registered. The dead body was sent for postmortem, which was conducted by Dr. A.K. Bhagat (PW10). His report is Ex.P/25. After Merg investigation and based on Dehati Nalsi, First Information Report bearing No. 307/2014 under Section 302 was registered against the appellants. Memorandum statements of the appellants (Ex.P/20 & Ex.P/19) was recorded and at their instance one piece of cloth (Lungi) stained with blood was recovered from their house. Statement of witnesses were recorded and the seized articles were sent for chemical examination to the Regional Chemical Science Laboratory, Bilaspur. The report is Ex.P/36 & P/37. 5. After completing the investigation, a charge-sheet under Section 302, 34, 201 of the IPC was submitted before the Court. After framing the charges against the accused/appellants, the charges were read out and explained to the appellants, they denied committing the crime and demanded trial. 6. In order to bring home the offence, the prosecution has examined 12 witnesses in its support and exhibited documents (Ex.P/1 to Ex.P/37). Statement of the accused/appellants under Section 313 Cr.P.C were recorded, wherein they have pleaded their innocence and false implication in the matter. 7. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 05/11/2024 convicted and sentenced the appellant as mentioned in paragraph one of this 4 CRA No. 2042 of 2024 judgment. Hence, this appeal. 8.
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 Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) 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.’ 11 CRA No. 2042 of 2024 (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.” 22. In a recent judgment in Nathiya Vs. State represented by Inspector of Police, Bagayam Police Station, Vellore, (2016) 10 SCC 298, the Supreme Court has reiterated the above principles. 23. In Jonh Pandian v State, Represented by Inspector of Police, Tamil Nadu, (2010) 14 SCC 129 the Supreme Court has held that all means adopted and illegal acts done must be proved to be done in furtherance of the object of conspiracy hatched. A systematic role played by each accused has to be highlighted. Similarly each one of the circumstances should be proved beyond reasonable doubt and such circumstances proved must form a chain of events from which the only irresistible 12 CRA No. 2042 of 2024 conclusion is about the guilt of the accused which can be safely drawn and no other hypothesis of the guilt is possible. Since the evidence of conspiracy is very hard to find and the prosecution would always have great difficulty in proving the conspiracy and, therefore, the conspiracy has to be inferred from circumstantial evidence, but the circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. 24. Similar proposition has been laid down by the Supreme Court in Sherimon v State of Kerala, (2011) 10 SCC 768 and held thus in paras 17 & 18 : 17. The gist of the offence of conspiracy is the agreement between two and more persons to do or cause to be done an illegal act or a legal act by illegal means. There must be meeting of minds resulting in an ultimate decision taken by the conspirators regarding commission of the crime. In this case, no such evidence has come on record. PW-5 Biju, the employee of City Auto Finance at Moovattupuzha was the only witness examined by the prosecution to prove the alleged meeting between the appellant and the other accused. He has turned hostile. Therefore, there is nothing on record to establish meeting of minds between the appellant and the other accused. 18. Assuming that the appellant had produced certain documents pertaining to the said auto 13 CRA No. 2042 of 2024 rickshaw, it cannot be concluded on the basis thereof that he had entered into a conspiracy with A-1 to A-3 to repossess the said auto rickshaw because the loan amount was not repaid and in pursuance thereof A-1 to A-3 murdered the driver of the said auto rickshaw. The evidence on record is totally inadequate to come to such a conclusion. It is, therefore, not possible to sustain the impugned judgment. 25. In the present case, the proseuction has come up with further circumstance and evidence of sniffer dog as one of the chain to connect the appellnats with the crime in question prosecution by relying upon the act of sniffer dog as well as the statement of PW7 who has stated that the villagers has told him that the sniffer dog was rounding around the house of the appellants while investigation. 26. It is the trite law, while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused. The Apex Court in the matter of Dinesh Borthakur (Supra) has held at paragraph 39 & 40 as under:- “39. So far as the evidence relating to the reaction of sniffer dog is concerned, this Court in Abdul Rajak Murtaja Dafedar v. State of Maharashtra, (1969) 2 SCC 234 has stated, thus 11. There are three objections which are usually advance against the receiption of [the evidence of dog traking.] First, since it is manifest that the dog cannot go into the box and give his evidence on oath, and 14 CRA No. 2042 of 2024 consequently submit himself to cross-examination, the dog’s human companion must go into the box and report the dog’s evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine interferences.” 40. Yet again in Gade Lakshmi Mangaraju v. State of A.P., (2001) 6 SCC 205 this Court opined: ‘There are inherent frailties in the evidence based on sniffer or tracker dogs. The possibility of an error on the part of the dog or its master is the first among them. The possibility of a misrepresentation or a wrong inference from the behavior of the dog could not be ruled out. Last, but not the least, is the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals.... Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill-afford them. The law in this behalf, therefore, is settled that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused. 27. From bare perusal of evidence adduced by the prosecution witnesses, it is apparent that the chain of circumstances is not complete to connect the case with the present appellant as no one has last seen the appellants in the company of the deceased. In a case of circumstantial evidence, the onus on the prosecution to prove that the chain is complete. In such case, the burden on the prosecution is always greater and the absence of motive weighs in favour of the accused. 15 CRA No. 2042 of 2024 28. The chain of circumstantial evidence is not so complete as to implicate the appellants to the exclusion of any other persons. The guilt of the appellants has not been proved by the prosecution beyond reasonable doubt. 29. It is well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence. Thus, the appellants are entitled for benefit of doubt. 30. Accordingly, conviction and sentence imposed on the appellants are hereby set aside and they are acquitted of the said charges by extending the benefit of doubt. The appellants are in jail. They be released forthwith if not required in any other case, on each of them furnishing a personal bond for a sum of Rs.25,000/- with one surety each in the like sum to the satisfaction of the trial Court. The bail bond shall remain in operation for a period of six months as required under the provisions of Section 481 of the BNSS. The appellants shall appear before the higher Court as and when directed. 31.
Arguments
Learned counsel for the appellants submits that appellants have been falsely implicated in this case, they have not committed any offence as alleged against him. There is no eye-witness of the incident, trial Court convicted the appellants only on the basis of circumstantial evidence. There are many contradictions and omissions in the statements of prosecution witnesses. PW-4 & PW-11 (Saroj Kumar Bhoy & Narayan Bhoy) have not supported the case of prosecution. Dead body of the deceased (Udayram Bhoy) was recovered in hanging condition after two days of the incident and prosecution have failed to prove any motive to commit the murder of deceased by the appellants. According to the learned counsel in the case in hand, the chain of circumstances is not completed and even the last seen theory has also not been proved. He would submit that the conviction of the appellant is based on the clue given by the sniffer dog, which is not the material piece of evidence. In support of his contention, he has placed reliance on the decision rendered in the matter of Dinesh Borthakur v. State of Assam, (2008) 5 5 SCC 697. Therefore, the conviction of the appellants cannot be sustained. 9. Learned State Counsel opposes the submission of counsel for the appellants and would submit that deceased is cousin brother of the appellants/accused and there is some dispute between them regarding partition of property, therefore, they have murdered him, as such, the trial Court has rightly convicted and sentenced the appellants. 5 CRA No. 2042 of 2024 10. We have heard learned counsel for the parties and perused the record with utmost circumspection. 11. First of all, it is necessary to see whether the nature of death of the deceased was accidental or murder or suicide and whether the incident of rape was committed on the deceased or not?. 12. The prosecution has bring on the statement of Dr. A.K. Bhagat (PW10) who has stated in his court statement that while doing the postmortem of the deceased he found that External examination - The body was stiff, both eyes were closed, mouth was also closed, there was a ligature mark on the neck after death, breathing was not normal. There was a mark of injury in the abdominal cavity, injury marks were found on chest and neck and head, all the injuries were within 36 hours. Internal examination - The deceased was of normal height. The injuries sustained by the deceased are mentioned in the external examination. Skull, cranium and spinal cord were normal. Brain and spinal cord were normal. Duct, ribs and soft tissue were normal. Lung, larynx and windpipe were normal. Both lungs were normal. Perion, pericylic acid was normal. Heart and large vessels were normal. Abdominal dura, intestinal membrane, mouth, oesophagus and pharynx were normal. The stomach of the deceased was empty. There was gas and half-digested food in small intestine and large intestine. Kidney, spleen, kidney and urinary bladder of the deceased were congested. Internal and external sense organs were normal. There was no mark of injury on bones and the deceased was not sick. Opinion - 6 CRA No. 2042 of 2024 The deceased died of shock due to excessive bleeding caused by rupture of windpipe. The period of death and postmortem was within 24-36 hours. On perusal of the Postmortem report and the statement of doctor, it is quite established that the death was homicidal in nature. 13. The FSL report in the instant case is Ex.P/37. As per the report, Article- A, electricity wire, Article-B, piece of cotton (Lungi) tied on the neck of the deceased, Article- C, slipper, Article-D, piece of cotton (Lungi) recovered from the house of the appellant- Shiv Kumar and Article-E, piece of cotton (Lungi) recovered from the house of appellant Jitendra Bhoi. As per the report, there was human blood present over Article- A,B, C & D. Further the report suggests that Article-C was containing ‘O’ blood group, whereas, Articles – A & D has offered inconclusive result and no blood group was traceable on Article-B. 14. On perusal of the above FSL Report, it is evident that though there was blood present over the Article-D, lungi of appellant Shiv kumar, but while doing the serology examination, the blood group was not conclusive. Hence, the FSL report is not supporting the case of the prosecution. 15. To prove the motive of murder, the prosecution has brought on the statement of Divya Bhoi (PW6) who is the daughter of the deceased, Anadi Gupta (PW7), who is the co-brother (Saadu) of the deceased, and Kanak Bhoi (PW8) who is the wife of the Deceased. 7 CRA No. 2042 of 2024 16. Divya Bhoi (PW6) stated in his deposition that the accused persons are the children of her younger (middle) grandfather. According to her, their ancestress were having 20 acres of land, out of which, 5 acres have been sold and in remaining 15 acres, their family members used to do the agricultural work. When the family members of the Deceased used to discuss about partition of the land, the accused persons used to oppose the partition and also threatened them. In the meanwhile, they obtained the loan of Rs. 4.00 lacs from K.C.C. and Rs. 1.00 lakh and out of the said loan amount, Rs. 1.23 lacks was given to the Deceased, which he repaid. From the agricultural income and also by mortgaging the ornaments of his wife. Whereas, the accused persons have failed to repay the amount. When the deceased asked the accused persons to clear the loan amount, they denied and on account of the same they developed the grudge against the deceased. Even, few days before the incident, the accused persons threatened the Deceased with dire consequences and subsequently, they committed the murder of the deceased and shown the same as suicidal case. In cross-examination at para 14, this witness has admitted that she had not seen the incident. 17. Anadi Gupta (PW7) in his deposition has stated that on 16/07/2022, he had received a phone call from Saroj about missing of the Deceased and thereafter they went for search of the Deceased, but could not traced him. This witness further deposed that on 17/07/2022 from Saroj that the Deceased has been killed. This witness has deposed that 8 CRA No. 2042 of 2024 during the investigation, the police personnel had come up with sniffer dog. He further stated that he was informed by the villagers that the sniffer dog was rounding around the house of the appellants. This witness further stated that whenever the Deceased used to meet him, he used to tell about threatening given by the appellants. In cross- examination, this witness has admitted that he has not seen any dispute between the Deceased and the appellants. 18. Kanak Bhoi (PW8), wife of the Deceased, in respect loan amount and partition of the property, she has corroborated the statement of her daughter PW6. She further deposed that one week before the deceased was killed, the appellants came to their house to get urea fertilizer and asked the deceased to sign for taking out the fertilizer. At that time, the Deceased told them to first clear the remaining debt of KCC loan and Kisan loan and divide the land and separate the lease because their ration card had been cut. Then the accused persons threatened him that if he would not sign, they will murder him. On 15/07/2022 also, the appellants threatened him. She deposed that on the same day, her husband (deceased) had gone to take bath towards bond, but he did not return. Subsequently, the Deceased was searched, but they could not trace him. On 17/07/2022, her son informed her about the death of the Deceased. In cross-examination, she deposed that she has no knowledge that when and how much loan was taken by whom. She deposed that there was no sharing of loan amount in their house. In cross-examination, she deposed that she has not seen the incident. She 9 CRA No. 2042 of 2024 has also not seen anything done by the appellant to the Deceased. 19. On perusal of the statement of these witnesses, it reveals that though PW6 & PW8 who are daughter and wife of the deceased, respectively have stated in their examination in chief that there was loan taken by the appellants along with the Deceased and they were not repaying the same and as such there was a dispute of loan as well as of partition of land, but in cross-examination both the witnesses have admitted that they are not aware of the fact that who has taken how much loan. Meaning thereby, they were not aware of the fact that how much loan was taken by the appellants and how much loan was taken by the deceased because no supporting evidence has been brought on by the prosecution to prove such fact. In fact, PW7, Co-brother (Saadu) has specifically denied the fact that he has never seen the appellants extending the threat to the Deceased due to such act. 20. Memorandum statement of the appellants is Ex.P/19 and Ex.P/20, respectively. Though, from their memorandum statement, piece of cloth (lungi) was recovered from their house and blood was found on Article- D Lungi recovered from the house of appellant Shiv Kumar, but as per the FSL report, blood group of Article-B i.e. piece of cloth recovered from the neck of the deceased (Lungi,) and Article-D, piece of cloth (Lungi) recovered from the house of appellant Shiv Kumar was not found same. 21. Admittedly, there is no ocular version of the crime, as no witness has seen the appellants committing the crime. Case of the prosecution, 10 CRA No. 2042 of 2024 therefore, rests on circumstantial evidence. The principle as to when an accused can be convicted on the basis of circumstantial evidence has been propounded by the Supreme Court in the celebrated case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, wherein it has underlined the conditions, which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-153 as under : “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
Decision
In the result, the instant criminal appeal is allowed. Sd/- Sd/- (Bibhu Datta Guru) Judge (Ramesh Sinha) Chief Justice Gowri/ Rahul