Chattisgarh High Court
Manish Sakat vs State Of Chhattisgarh on 20 July, 2023
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CRA No.478 of 2021 & other
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Delivered on 20.07.2023
CRA No. 478 of 2021
1. Komal Chandravanshi S/o Ishwari Prasad Chandravanshi Aged
About 45 Years
2. Durga Chandravanshi S/o Ishwari Prasad Chandravanshi Aged
About 43 Years
Both are R/o Village Bhagatpur, Police Station Pandariya, District
Kabirdham Chhattisgarh --- Appellants
Versus
State of Chhattisgarh Through Station House Officer, Police
Station Pandariya, District Kabirdham Chhattisgarh ----
Respondent
CRA No. 480 of 2021
Shankar Chandravanshi S/o Komal Chandravanshi Aged About 19
Years R/o Village Bhagatpur, Police Station Pandariya, District
Kabirdham, Chhattisgarh ---
Appellant
Versus
State of Chhattisgarh Through Station House Officer, Police
Station Pandariya, District Kabirdham, Chhattisgarh
---- Respondent
CRA No. 633 of 2021
Manish Sakat S/o Dulari Ram Sakat Aged About 23 Years R/o
Village Chhindiparan Sankapat, P.S. Kukdur, District
Kabeerdhaam, Chhattisgarh --- Appellant
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Versus
State of Chhattisgarh through Police Station Pandariya, District -
Kabeerdhaam, Chhattisgarh --- Respondent
Shri Rajeev Shrivastava, Sr. Advocate with Shri Malay
Shrivastava, Shri Saurabh Sahu & Ms Anu Mishra, Advocates for
the appellants in CRA Nos.478 of 2021 & 480 of 2021
Shri Animesh Verma, Advocate for the appellant in CRA
No.633 of 2021
Shri Arjit Tiwari, Panel Lawyer for the State.
Shri Basant Dewangan & Shri Krishna Tandon, Advocates for the
Objector.
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice Sanjay Kumar Jaiswal
CAV Judgment
Per Goutam Bhaduri, J.
1. All the appeals are being heard together, as the common thread
passes through the issue.
2. The present appeals are arising out of judgment of conviction and
order of sentence dated 23-3-2021 passed by the Special Judge
{Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act}, Kabeerdham, in Atrocity Spl. Criminal Case
No.99/2018 whereby the learned Court below convicted the
appellants for offence under Section 302 read with Section 34 of
the Indian Penal Code (IPC) and sentenced each of them to
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undergo imprisonment for life and to pay a fine of Rs.1,000/-, in
default of payment of fine to further undergo RI for one month.
However, acquitted the appellants from the charge under Section
3(2)(v) of the Scheduled Castes and Schedules Tribes (Prevention
of Atrocities) (Amendment) Act, 2015.
3. (i) The prosecution case, as emerging from the material on
record, is that when on 3-10-2018 the deceased Lekhram was at
his home, at about 10.30 pm he received 2-3 calls on his mobile.
The deceased thereafter went out with a Jerry Can to bring diesel.
His wife Phoolbasan (PW-3) went to sleep. Subsequently, when
he did not return till next day morning, Phoolbasan and her
brother in law Shatruhan started searching and tried to call him,
but his mobile was responding as switched off. Thereafter,
Shatruhan (PW-4) went for searching the deceased and on the way
one person namely; Radheshyam informed him that in between
Gangapur and Padi the dead body was lying. Having gone there
and identified the dead body that it was of deceased Lekhram, a
report was made by Phoolbasan (PW-3), wife of the deceased, on
4-10-2018. The report having been made, merg was recorded vide
Ex.P/5 and subsequently the FIR was registered vide Ex.P/6. The
dead body was subjected to postmortem. The postmortem was
conducted by Dr.Belchandan (PW-11) and report thereof was
given vide Ex.P/26. During investigation by Bharat Bareth (PW-
10), from the place of incident, the motorcycle, slippers, scarf,
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bloodstained and plain soil was seized vide Ex.P/3.
(ii) Subsequently, on 5-10-2018 the accused persons were
apprehended and their memorandum statements were recorded
vide Ex.P/17 to Ex.P/20. Pursuant to the memorandum, the
following articles were recovered at the instance of different
accused – (i) knife, plastic Jerry Can, mobile, cash of Rs.900/- and
T-Shirt were recovered at the behest of Manish Sakat (A/1) vide
Ex.P/21; (ii) Bamboo stick, mobile, motorcycle, T-Shirt and half
pant were recovered at the behest of Shankar Chandravasnshi
(A/2) vide Ex.P/22; (iii) Bamboo stick, T-shirt, full pant and
mobile were recovered at the behest of Komal Chandravanshi
(A/3) vide Ex.P/23 and (iv) At the instance of Durga
Chandravanshi (A/4), Baniyan, half pant, scarf, club and
motorcycle were recovered vide Ex.P/24. The mobile of the
deceased was searched and Talashi panchnama was prepared vide
Ex.P/25. Thereafter, the statements of Phoolbasan (PW-3) and
Shatruhan (PW-4) were recorded. The alleged weapon used for
commission of crime was sent for query report and having
received the report, it was sent for FSL report by Narendra Kumar
Bental (PW-14). The FSL report was received vide Ex.P/36.
Thereafter, phone call details was obtained, which was filed with a
certificate under Section 65B of the Evidence Act. After
preparation of the site plan and recording the statements of
witnesses, the charge sheet was filed.
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4. During the course of trial, all the accused persons abjured their
guilt and pleaded innocence. On behalf of the prosecution as many
as 14 witnesses were examined. No witness was examined on
behalf of the defence. The learned trial Court after evaluating the
evidence, convicted and sentenced the accused persons as
aforementioned. Hence, these appeals.
5. Shri Rajeev Shrivastava, learned senior counsel assisted by Shri
Malay Shrivastava, Shri Saurabh Sahu & Ms Anu Mishra,
Advocates for the appellants in CRA Nos.478 of 2021 & 480 of
2021 (A/2 to A/4) would submit that :
the FIR was registered against the unknown persons and
the entire case of the prosecution was based on
circumstantial evidence;
referring to the statement of Phoolbasan (PW-3), learned
counsel would submit that according to her, the deceased
received the phone call and the caller was not identified,
therefore, it cannot be stated that one of the accused had
called;
learned counsel would further submit that there are ‘n’
number of circumstances which were against the
deceased qua enmity in the village, as allegation of theft
of diesel was on the deceased;
learned counsel would also submit that because of certain
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land dispute was going on between the family membersof the accused and the deceased and on account of the
same, the accused persons have been falsely implicated in
the case at hand;
according to the learned senior counsel, Shatruhan (PW-
4), who is the brother of the deceased, would be a
relative/interested witness and the land dispute is going
on between the family members which had further
aggravated. Referring to his statement, learned counsel
would submit that the land dispute was with Hiralal,
which led to filing of different police reports and, as such,
the appellants cannot be implicated in the present case;
he would submit that the accused persons have been
inculpated on presumption on the basis of different phone
calls made between A/1 & A/2;
he would also submit that simply there had been certain
phone calls in between the deceased and some of the
accused it cannot lead to presence of accused at the place
where the incident occurred;
referring to statement of PW-9 Sanjiv Nema, learned
counsel would submit that in order to establish the
location the prosecution should have placed the tower
location;
he would further submit that how the accused were
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subjected to suspicion has not been established by the
prosecution;
to buttress his contention, learned counsel would place
reliance upon the decision rendered by the Supreme Court
in the matter of Baiju Kumar Soni and Another v State
of Jharkhand1;
he would submit that only on the basis of circumstantial
evidence the accused have been inculpated and in support
of his contention, learned counsel would place reliance
upon the decisions rendered by the Supreme Court in the
matter of Sattatiya alias Satish Rajanna Kartalla v State
of Maharashtra2 and Prakash v State of Karnataka3;
learned counsel would submit that the FSL report on
which primarily the trial Court has relied and convicted
the accused, it is not established by the prosecution as to
which accused the said blood group belongs. He would
submit that there can be numerous people of the same
blood group and unless the chain is established, the
serological report cannot be safely relied upon coupled
with the fact that the seizure witnesses of the blood
stained clothes of deceased namely; Arvind Shukla and
Somendra Sharma were not examined, which is a serious
lacuna, though the seizure was made from Ajay
1 (2019) 7 SCC 773
2 (2008) 3 SCC 210
3 (2014) 12 SCC 133
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Chandravanshi (PW-8);
learned counsel would submit that the alleged
bloodstained clothes were seized on 4-10-2018 & 5-10-
2018 but it was sent for serology report on 18-10-2018
and no register of malkhana was produced which also
raises a serious doubt of false implication of the accused
in the case at hand;
learned counsel would submit that non-examination of
seizure wittiness would a be serious flaw. He placed
reliance upon the decision rendered in the matter of
Pratap Singh and Another v State of M.P.4; and
he would submit that the prosecution has failed to prove
the case beyond the reasonable doubt and also failed to
complete the chain of circumstances and hence the
impugned conviction is bad in law.
6. While adopting the arguments advanced by learned senior counsel
appearing for A/2 to A/4, Shri Animesh Verma, learned counsel
appearing for the appellant in CRA No.633 of 2021 (A/1), would
submit that:-
A/1 is inculpated in the crime on the basis of phone call
and the seizure of knife. The size of knife, which was
seized at the instance of the accused, is contradictory.
Article ‘D’, which was seized, does not disclose the size
4 (2005) 13 SCC 624
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of knife whereas PW-11 Dr. Belchandan examined theknife specifically stated that the size of knife was 22.5
cm, which makes it to 8 inches, whereas the knife which
was seized was of 21 inches;
referring to statement of PW-12 Jhadu Ram Kurre,
learned counsel would submit that this witness has
improved the statement that Phoolbasan (PW-3) informed
him that A/1 had called the deceased over phone whereas
Phoolbasan (PW-3) never disclosed this fact, therefore,
the false implication started from day one;
learned counsel would further submit that the seizure of
mobile of the deceased could not be made, therefore, the
doubt which was crept into the mind of the police where
from the mobile was recovered has not been made clear;
referring to the statement of two seizure witnesses
namely; Jhadu Ram Kurre (PW-12) and Gendu Ram
(PW-13), learned counsel would submit that two
contradictory statements have been made. One has said
that the police had taken out the knife whereas the other
witness said that A/1 went into the house and came with
knife, therefore, if the knife was implanted at the instance
of prosecution to inculpate the appellant, it cannot be
ruled out;
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learned counsel would submit that the deceased used to
go for getting the stolen diesel in the night that may be
one of the reason for enmity with some one;
learned counsel would next submit that PW-8 Ajay
Chandravanshi received the clothes of the deceased on
4-10-2018 from the Doctor, but seizure was shown on
20-10-2018, therefore, the gap of 15 days has not been
explained by the prosecution; and
learned counsel would submit that from the accused
bloodstained T-shirt was said to be seized but PW-12
Jhadu Ram Kurre stated that at 8.45 pm after notice
received from police he went to police station whereas
PW-13 Gendu Ram has stated that at 10.00 am the police
came, so the first information of the incident was at 10.00
am not before that. This also creates doubt. In fact, the
chain of circumstances having not been completed, the
accused is liable to be acquitted.
7. Shri Arjit Tiwari, learned Panel Lawyer appearing for the State,
while supporting the impugned judgment would submit that the
date of incident was on 3-10-2018 and the statement of the wife of
the deceased was recorded immediately on the next day i.e. 4-10-
2018 wherein the doubt was raised over Komal, Durga & Shankar.
He would further submit that when the statements of Phoolbasan
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(PW-3), Shatruhan (PW-4) and Rajkumar Tandan (PW-5) are
read together, it would show that there was some land dispute
between the deceased and the accused and they have jointly
extended in unequivocal voice that they (deceased party) may win
in the Court, but not from them (accused party), therefore, the
motive of old animosity was established by the prosecution. He
would also submit that phone call made at the relevant time has
also been provided by PW-9 Sanjiv Nema that A/1 called the
deceased and thereafter, number of conversations took place in
between A/1 & A/2 and after they were apprehended, on their
memorandum from A/2 & A/3 bamboo stick was recovered; from
A/4 babool stick was recovered; and from A/1 knife was
recovered. The query which was sent is proved by Dr.
Belchandan (PW-11) that there were as many as 16 injuries and
reasons were attributed that those injuries could have been
inflicted by the weapon used. Learned counsel would next submit
that bloodstained and plain soil were collected from the spot.
Apart from that, FSL report has also proved the presence of blood.
Therefore, the conviction is well merited, which do not call for
any interference.
8. Shri Basant Dewangan & Shri Krishna Tandon, learned counsel
appearing for the objector would adopt the arguments advanced by
the learned counsel appearing for the State.
9. We have heard learned counsel appearing for the parties at length
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and perused the record.
10. Four of the appellants were convicted with an allegation that they
have committed murder of Lekhram. The prosecution in order to
prove the guilt, started with the statement of P.W.3 Phoolbasan
Bai, wife of deceased. She stated that on 03.10.2018 her husband
came back to home at about 8 p.m. After having food, the
deceased received a call on mobile and after attending the call,
the husband left the house saying that he is going to buy diesel
then she went to sleep. When she woke up in the next morning,
she found her husband has not yet returned. Then she went to her
brother-in-law Satruhan and one relative to say that Lekhram had
not come back to home. It was stated by her that last night when
someone called him on phone, Lekhram left the house saying he
was going to buy diesel. Thereafter they made call to Lekhram’s
mobile phone several times, but her husband’s mobile phone was
responding as switched off. Then she and her brother in law went
to Padhi road to find Lekhram and on the way they met one
Radhe who told them that a man was lying dead on Gangapur-
Padhi road. Then her brother in law Shatruhan and one Rajkumar
went to see the dead-body and subsequently half-an-hour later,
she was informed by Shatruhan that Lekhram had been murdered,
whose body was lying on the Gangpur-Padhi Road.
11. P.W.3, the wife of deceased in her statement u/s 161 CrP.C., has
raised doubt on Komal Chandrawanshi and others as some
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dispute was going on, as such, the threat was extended by family
of Komal Chandrawanshi (A-1), to commit murder. Similar
statement has been made before the Court that because of enmity
the accused have killed her husband. She has further stated that
her husband and Shatruhan and others had purchased agricultural
land from Shankar Jaiswal. Her husband and Shatruhan together
had bought 10 acres of land and after purchasing the land, the
names of her husband and brother-in-law got mutated in records
and then they started tilling the land. She has stated in her
evidence that accused Komal and his family members used to
forcibly cut away their crop which was reported by her husband to
the police. She has categorically stated that a case was also
brought against accused Komal, Durga and Shankar in the Court
and the deceased party had won that case and having won the
case, in response the accused Komal, Durga and Shankar had
threatened her husband Lekhram that “you can win from the
Court, but you cannot win over them and we will kill you”. Thus
she has deposed that the old enmity is the cause of motive to kill
her husband.
12. Similar statement is made by P.W.5 Raj Kumar Tandon. Though
he was declared hostile but in the cross examination, at para 4 he
admits the fact that land dispute was going on between the
accused party and deceased party for the last 5 to 6 years. He
further admits that there was a dispute over the land which was
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purchased by Lekhram (deceased) and his brother Shatruhan from
Shankar Jaiswal and they got possession. He also admits that
from disputed land, accused Komal, Durga and Shankar used to
take away the crop sown by deceased Lekhram and Shatruhan. At
para 5, this witness further admits that deceased Lekhram and
and Shatruhan filed a case in revenue court against accused
Komal, Durga and Shankar regarding the land dispute in which
Lekhram and Shatruhan won the case and after winning the court
battle, threat was extended by Komal (A-3), Durga (A-4) and
Shankar (A-2) that they would kill Lekhram and Shatruhan.
P.W.7 Radhelal who saw the dead body has also said about some
enmity with the accused over a land dispute.
13. According to prosecution, before the incident, all the accused-
appellants at the relevant time had called each other. In order to
prove such conversations, the prosecution has examined P.W.9
who is nodal officer of the Telecom company. According to him,
SIM No. 87701 47086 was of the deceased. The SIM
No.6264321411 was allotted to Manish Kumar Sakat (A-1) and
SIM No.7000269572 was allotted to Shankarlal Chandrawanshi
(A-2), s/o Komal Chandrawanshi. As per his statement on
03.10.2018 at 20:43:56 hours (night), Manish called Lekhram.
Thereafter at 21:16:45 hours again a call was made by Manish
Kumar to deceased. Later at the same time, return call was made
at 21:23:30 hours by deceased to Manish. After 11 minutes again,
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Manish made call to deceased at 21.34.21 hours. It is further
stated that on same day morning, Manish received a phone call at
10:34:10 hours made from Shankar Chandrawanshi. Again
Manish received a phone call on the same day at 12:01:38 hours
(p.m). Thereafter a phone call was made by Shankar
Chandrawanshi in the night on 21:46:10 hours to Manish (A-1).
14. Further this witness (P.W.9) deposed that in the night at 22:01:51,
22:02:52 & 22:7:29 hours Shankar Chandrawanshi made calls to
Manish Sakat. Thereafter at 22:14:01 hours Manish called
Shankar Chandrawanshi. Thereafter at 22:14:50 hours Shankar
Chandrawanshi called Manish. Later in the same night at
22:28:49, 22:30:38, 22:35:37 hours and 22:37:30, 22:39:47,
22:40:45 hours Shankar Chandrawanshi called Manish. Again, on
03-10-2018 at 22:41.55 hours Manish called Shankar
Chandrawanshi. In the same night at 22:43:09, 22:46:23 and
22:47:51 hours, Shankar Chandrawanshi again called Manish and
later on at 22:48:57 hours Manish called Shankar Chandrawanshi
and on subsequent date in the morning i.e., 04.10.2018 at
08:20:29 a.m., Manish called Shankar Chandrawanshi. The said
call details have been proved by Ex.P-15 and also accompanied by
a certificate u/s 65 B-4 (C) of the Indian Evidence Act. Therefore,
the presumption of call made in between Shankar Chandrawanshi
and Manish and the deceased was established.
15. The cross examination of the witness would show that the tower
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location of calls of both the accused and that of deceased has not
been shown. According to the statement and Telephone records,
the deceased had only talked with Manish. What was place of
call, the prosecution has failed to prove. The Talashi Panchnama
of the deceased which is marked as Ex.P-25 shows that at the
behest of Manish Kumar, search was made in a field of phone of
the deceased, but it was not found. Though the I.O., has stated
that because of conversation, the doubt was raised on the accused
despite the phone of deceased was not recovered but the
conversation between Manish and deceased is not eliminated.
Statement of P.W.9 who affirms the fact that certain phone
numbers were in hold of two of the accused and the deceased has
not been rebutted and has not been denied by the accused. The
said set of evidence only raises a doubt and even if the
conversations are admitted to have taken place between the
accused and deceased and between two of the accused,
presumption to commit crime cannot be arrived at except some
suspicion. But such suspicion cannot replace the evidence to
make it conclusive.
16. According to the prosecution, after the accused were apprehended
their memorandum was recorded. Memorandum of Manish Kumar
(A-1) is Ex.P.17. As per such memorandum statement of accused
Shankar, Komal, Durga assaulted Lekhram with a club and when
he fell down on the ground, he cut his throat by a knife. The knife
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was recovered by Ex.P-21. The knife was of 21″ and the blade
was 11″ and the handle was of 10″. When the knife was
recovered, blood stains like were found. Apart from it, one Plastic
Can of 30 litres, which was said to be carried out by the deceased
and one Mobile, cash of Rs.900/-, a T-Shirt with blood stains were
recovered. The said articles were seized on 05.10.2018.
17. The memorandum of Shankar Chandrawashi (Ex.P-18) shows that
one Bamboo stick of 132″ having 6 knots/rings with blood mark
were recovered. Apart from it, the motor cycle, mobile and T-
Shirt with blood stains were seized which was sealed vide Ex.P-
22.
18. Another memorandum of Komal Chandrawanshi was recorded by
Ex.P-19 and the seizure was made by Ex.P-23 and from his
possession, Scarf, shirt with blood stains, a full pant with blood
stains, a bamboo club of 152″ with 7 knots/rings having blood
stains and a mobile was recovered which were sealed on
05.10.2018.
19. The memorandum of Durga was recorded by Ex.P-20 and the
property seizure memo was marked as Ex.P-24. From him, one
red coloured banian, one Chaddaa (underwear) having a blood like
stain, One Gamcha (towel) having blood like stains, Babool Club
of 136″ and one T-Shirt having bloodstains like were recovered
which was seized on 05.10.2018.
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20. The said bamboo sticks/lathi and knife were sent with a query as
to whether the same could cause the injury to the deceased vide
Ex.P-27). The query report of the Doctor would show that on
examination, he gave opinion that injury could be caused from
those seized weapons i.e., club and knife. Thereafter, it was sealed
and returned to the police constable. The postmortem report is
filed as E.P-26 and the same was proved by Doctor (P.W.11).
According to the doctor, the following injuries were found :
S.No. Description of Injury
1 A chop wound in front of neck measuring 10x4x4 cms. The said
injury was from the part of throat below the right ear to the other
side of the throat (left side). The blood vessels and windpipe
were cut in the said injury and blood and blood cots were
present inside the injury.
2. On the right side of the forehead, the bone was fractured at the
site of the said injury with lacerated wound in the front. The
size of the said injury was 9x6x2cm.
3. An incised wound in size of 1×0.5×0.5 cm on the right side of
the lower lip.
4. A cut wound in size of 2 x 1 x 0.5 cm on the right side of the
upper lip where the bone was fractured.
5. A lacerated wound of size 8×2.5 x bone deep.
6. A lacerated wound admeasuring 7x3xbone deep in the upper
left side of the head
7. A lacerated wound in size of 6x2x bone deep on the left side of
the head.
8. An incised wound of 6 x 2 x bone deep in the middle of upper
part of the head
9. A lacerated wound on the right side of of the head measuring 4 x
2 x bone deep.
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10. Swelling in the right side of the abdomen measuring 22 x 2 cm.
11. Shaved wound (swelling) in size of 9 x 2 cm in the front of the
left shoulder.
12. Two shaved wounds (swelling) on the right side of the back
measuring 9x 2 cm and 18×2 cm respectively
13. Two bald spots (swelling) on the upper part of the right shoulder
in size of 8 x 5 cm and 9 x 5 cm respectively.
14. Lower part of the right hand and the elbow joint were broken.
15. The bone of the right hand was broken and there was swelling.
16. The bone of the upper part of left hand was broken and there
was swelling.
On internal examination, the doctor has further found that the
block of the brain was ruptured and the inner part of the brain was
visible. Throat and wind-pipe were cut. Lung and large blood
vessel were congested. The left chamber of the heart was empty
and the right chamber was filled with blood.
21. According to Doctor, a full pant and T-Shirt of deceased having
blood stains were sealed and handed over to the Police and cause
of death was coma due to injury on head and neck, which resulted
in coma and the death was homicidal in nature. The death was
caused in duration of 12 to 24 hours prior to the postmortem.
According to the I.O. (P.W.10) on 05,10.2018 when the accused
were taken into custody, different recoveries were made.
22. The Doctor further states that on 28.10.2018, the T-Shirt, scarf,
full shirt, nicker and scarf which were in sealed condition were
sent to him and query was sought whether human blood is present
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on those or not, which was sent by P.W.14 the SDO(P) and the
query report was sent by Doctor vide Ex.P-28 to the SDO (P) to
send them for FSL. Likewise, on 3.12.2018, according to P.W.11,
the SDO(P) sent scarf in sealed condition to know whether such
scarf contains human blood or not ? The Doctor sent it in a sealed
condition to the SDOP to send it for chemical examination. The
same was sent by Ex.P-29. According to the Doctor, the size of
knife tested by him was 22.5 cms. The front part of knife was
blunt and second part of knife contains sharp teeth like edges and
the holder of knife and the sharp edged teeth was having blood.
On the advice of doctor, the said seized articles were sent by the
SDOP (P.W.14) to Raipur to obtain the FSL report. The said
memorandum dated 04.12.2018 was marked as Ex.P-34. The
articles were deposited with the FSL on 05.12.2018 by Ex.P-35
and thereafter the FSL report was received on 11.01.2019 by Ex.
36.
23. According to FSL report, article P-1 and P-2 i.e., full pant and T-
Shirt were that of deceased Lekhram. On Article P-1 the full pant,
blood group ‘B’ which was of the deceased was found. However,
in respect of Article P-2, T-Shirt since the sample was not
received as such the blood group was not ascertained, however,
presence of human blood was certified.
(ii) In respect of Article D, the knife which was seized from
Manish Kumar, blood group of “B” was found to be present. In
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the T-Shirt of Manish Kumar that was Article E, blood was said to
be disintegrated.
(iii) In respect of Shankar Chandravanshi, the club was marked as
article “F”. Though the blood was found, but it was disintegrated
as such no definite opinion was given. In respect of Nicker of
Shankar Chandrawanshi which was marked as “G”, only blood
was found to be present and whether it was human or other blood
was not ascertained as it was disintegrated. However, in respect of
T-Shirt which was marked as H, the human blood of group B was
found to be present.
(iv) In respect of accused Komal Chandrawanshi, human blood
was found to be present on club (Danda) seized from him, which
was marked as Article- “I” and in respect of Article “J” which
was of full shirt seized from Komal Chandrawanshi, human blood
was found to be present. Likewise, on his full pant which was
marked as “K”, only blood was found to be present.
(v) In respect of accused Durga Chandravanshi, on the banian
marked as article ‘L’, human blood of B group was found to be
present and the Nicker ‘M’ likewise human blood of B group was
present. On the scarf (Gamcha) which was marked as ‘N’ only
presence of blood was found and on the club (Danda) marked as
article ‘O’, human-blood was found to be present.
24. Since there is no eye witness to this case and the case was
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completely based on circumstantial evidence, the chain of
circumstances are required to be established. The Supreme Court
in Sattatiya alias Satish Rajanna Kartala Vs. State of
Maharashtra (2008) 3v SCC 210 has reiterated the law laid down
at paras 12,13 & 14 which are reproduced hereunder :
12. In Padala Veera Reddy v. State of A.P.
1989 Supp (2) SCC 706, this Court held that when a
case rests upon circumstantial evidence, the following
tests must be satisfied :
(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 as to
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 but should be inconsistent
with his innocence.”
13. In Sharad Birdhichand Sarda vs. State of
Maharashtra (1984) 4 SCC 116, it was held that the
onus was on the prosecution to prove that the chain is
complete and falsity or untenability of the defence set
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up by the accused cannot be made basis for ignoring
serious infirmity or lacuna in the prosecution case.
The Court then proceeded to indicate the conditions
which must be fully established before conviction can
be based on circumstantial evidence. These are :
(SCC p. 185, para 153) –
(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;
(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.
14. In State of U.P. v. Ashok Kumar
Srivastava (1992) 2 SCC 86, it was pointed out
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.”
25. Further in respect of circumstantial evidence, the Supreme Court
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has laid down in Jagroop Singh Versus State of Punjab (2012)
11 SCC 768 at paras 12, 14 and 15 which reads thus :
12. In Sharad Birdhichand Sarda v. State of
Maharashtra (1984) 4 SCC 116 (SCC p.185, Para
153) a three-Judge Bench has laid down five golden
principles which constitute the “Panchsheel” in
respect of a case based on circumstantial evidence.
Referring to the decision in Shivaji Sahabrao Bobade
v. State of Maharashtra (1973) 2 SCC 793 (SCC p.
807, para 19) it was opined that it is a primary
principle that the accused “must be” and not merely
“may be” guilty before a court can convict and the
mental distance between “may be” and “must be” is
long and divides vague conjectures from sure
conclusions. Thereafter, the Bench proceeded to lay
down that the facts so established should be
consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable
on any other hypothesis except that the accused is
guilty; that the circumstances should be of a
conclusive nature and tendency ; that they should
exclude every possible hypothesis except the one to
be proved; and that there must be a chain of evidence
so complete as not to leave any reasonable ground for
the conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused.
14. In Balwinder Singh v. State of Punjab 1995
Supp (4) SCC 259, : (SCC p. 262, Para 4) it has been
laid down that
“4…. the circumstances from which the
conclusion of guilt is to be drawn should be fully
proved and those circumstances must be conclusive
in nature to connect the accused with the crime. All
the links in the chain of events must be established
beyond a reasonable doubt and the established
circumstances should be consistent only with the
hypothesis of the guilt of the accused and totally
inconsistent with his innocence. In a case based on
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circumstantial evidence, the court has to be on its
guard to avoid the danger of allowing suspicion to
take place of legal proof and has to be watchful to
avoid the danger of being swayed by emotional
considerations, however strong they may be, to take
the place of proof.”
15. In Harishchandra Ladaku Thange v. State of
Maharashtra (2007) 11 SCC 436 while dealing with
the validity of inferences to be drawn from
circumstantial evidence, it has been emphasized 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 or the guilt of any other person and
further the circumstances from which an inference as
to the guilt of the accused is drawn have to be proved
beyond reasonable doubt and have to be shown to be
closely connected with the principal fact sought to be
inferred from those circumstances.”
26. Reading of the aforesaid principles laid down by the Supreme
Court would show that it must nonetheless be emphasized that
whether a chain is complete or not would depend on the facts of
each case emanating from the evidence and no universal yardstick
can be attempted. Based on the said principle, we would like to
proceed to evaluate the evidence whether the said circumstances
establish the guilt of the accused beyond reasonable doubt. A
perusal of the FSL report would firstly show that on chemical
examination, deceased’s blood stained T-Shirt and full pant were
having a blood group of “B”. Secondly, perusal of evidence
would further show that on recovery of knife from accused
Manish immediately after the incident the same was having a
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blood group of “B”. The accused was arrested immediately after
the incident. No injury was stated to be found in his arrest memo
(Ex.P-28-A). The accused has not given any explanation as to
how the blood that too of same group of deceased could be found
on the knife used for cutting of vegetables which was recovered at
his instance. The accused had to give some explanation as to how
the same blood was present on a weapon containing the same
blood group of deceased. Thirdly, the evidence would show that
the blood stained T-Shirt which was recovered from accused
Shankar Chandrawanshi on 05.10.2018 was having blood of
group “B” though the Danda (Lathi) and Nicker seized from him
were found to have only blood which was disintegrated. Fourthly
the bamboo club (Danda) seized from Durga Chandrawanshi,
was found to have human blood and likewise, the blood stained
Banian and Chadda (underwear) seized from Durga Chandra
Chandrawanshi were having “B” blood group and no group was
ascertained on Gamcha. No explanation has been made by
accused in their examination u/s 313 about presence of human
blood on articles seized from them.
27. The appellants have placed reliance on a decision of Supreme
Court in Prakash Vs. State of Karnataka (2014) 12 SCC 133 to
submit that recovery of blood stained clothes do not advance
cause of prosecution. A perusal of the said decision would show
that in that case, the blood sample of accused was sent for
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examination and the report received from Laboratory was to the
effect that the blood sample was decomposed and therefore, its
origin and grouping could not be established. Here in the instant
cases, the weapon seized from accused Manish Kumar was
having ‘B’ blood group and the T-Shirt was having blood.
Comparatively, the deceased’s T-Shirt and full-pant was having a
blood group of B which matches to the blood group-B found on
the knife seized from Manish Kumar used for cutting of
vegetables. Likewise, on the T-shirt of Shankar Chandrawanshi,
the presence of human blood with B group was found present.
Likewise, the blood stained clothes i.e, banian and Chadda
(nicker) seized from Durga Chandrawanshi, were found to be
having “B” blood group. In respect of accused Komal, mere
presence of human blood was stated on Danda (Lathi), Full Shirt
and Full Pant seized from him. Therefore, some cloud of
uncertainty loomed over the conduct and participation accused
Komal Chandrawanshi. However, the presence of blood that too
of the same group in the articles seized from Manish Kumar ,
Shankar Chandrawanshi and Durga Chandrawanshi has not been
explained by accused, specially when they were immediately
arrested and they did not have any injury in person according to
their arrest memo.
28. The Supreme Court in State of Andhra Pradesh Vs. Kanda
Gopaludu AIR 2005 S.C. 3616 considered this aspect to hold that
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when the incriminating material against the seizure of shirt stained
with blood and FSL report shows that it is a human blood, then it
would be an incriminating circumstances and further as has been
held in Ganga Bai Versus State of Rajasthan (2016) 15 SCC
645, the appellant should have explained how the clothes and
articles seized from them contained human blood and in section
313 Cr.P.C., the question is with respect to FSL, no explanation
was offered and it was only denial.
29. In the cross examination to the IO, it was not suggested even that
he did not proceed fairly and no blood stained clothes were
recovered from the accused and there can be no presumption that
Police Officers acts dishonestly and his evidence cannot be acted
upon. Therefore, the evidence of I.O, was sufficient to prove the
recovery of blood stained cloths and the weapon of offence i.e.,
knife and bamboo sticks immediately after the incident from
accused. When we travel backwards with FSL report to connect
the incident happened prior to such commission of offence, it
shows that chain of circumstances as the accused and the deceased
had enmity over some dispute about the land. The enmity has been
proved by the wife of deceased; The phone call made between
deceased and one of the accused has not been explained which
was immediately before the incident took place on 03.10.2018.
On 03.10.2018, after the phone call was received by the deceased,
there was conversation in between deceased Lekhram and Manish
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and Manish had frequent calls with Shankar. Subsequently when
the dead-body was found and postmortem was conducted,
recovery was made from accused on 05.10.2018. There is no
explanation as to how the same blood group was present on article
seized from Manish Sakat, Shankar Chandrawanshi and Durga
Chandrawanshi. According to answer given to query report, the
injury could be caused by bamboo club and other club which was
seized wherein the human blood of group ‘B’ was present.
Therefore, the circumstances which cropped up against the
accused were not properly explained by accused.
30. In view of the aforesaid discussion, we are of the view that the
conviction of Manish Kumar, Shankar Chandrawanshi and Durga
Chandrawanshi does not require any interference. With respect to
guilt of Komal Chandrawanshi, following the principle laid down
by the Supreme Court in Prakash Vs. State of Karnataka (2014)
12 SCC 133 it was not ascertained whether the blood stained
clothes and Danda (lathi) recovered from Komal Chandrawanshi
was having the same blood group of deceased Lekhram though
mere presence of blood was found. In such circumstances, the
circumstantial evidence against Komal Chandrawanshi does not
connect the chain to prove the guilt against him beyond reasonable
doubt. Accordingly, the appeal filed by accused Durga
Chandrawanshi, Shankar Chandrawanshi and Manish Sakat are
dismissed and the appeal preferred by Komal Chandravanshi is
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allowed. The conviction and sentence imposed on appellant
Komal Chandravanshi is set aside and he be released from jail
forthwith if he is not required with any other crime.
Sd/- Sd/-
(Goutam Bhaduri) (Sanjay Kumar Jaiswal)
Judge Judge
Rao / Gowri
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