Chattisgarh High Court
Naresh Kumar Nayak vs State Of Chhattisgarh on 27 June, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:28570-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 02-04-2025
Judgment delivered on : 27-06-2025
CRA No. 1388 of 2019
Naresh Kumar Nayak S/o Shri Vikram Nayak Aged About 27 Years R/o
Banjhipadar, Police Station Devbhog, District Gariyaband Chhattisgarh,
... Appellant
versus
State Of Chhattisgarh Through Police Station-Gariyaband, District
Gariyaband (CG)
... Respondent
For Appellant : Mr. Ashok Kumar Verma, Mr. Gajendra Ku.Sahu
and Mr. Anmol Verma, Advocates.
For Respondent : Ms. Nand Kumari Kashyap, Panel Lawyer
Hon'ble Smt. Justice Rajani Dubey, &
Hon'ble Shri Justice Sachin Singh Rajput, JJ
CAV Judgment
Per Rajani Dubey, J
The appellant in this appeal is challenging the legality and
validity of the judgment of conviction and order of sentence dated
2
7.8.2019 passed by the Special Judge (Atrocities) Raipur, in Special
Criminal Case No.10/2016 whereby the appellant stands convicted and
sentenced as under:
Conviction Sentence
Under Section 364 of Indian Penal RI for five years, pay a fine of
Code. Rs.500/- and in default thereof to
suffer additional RI for one month.
Under Section 302 of Indian Penal Life imprisonment, pay a fine of
Code. Rs.1000/- and in default thereof to
suffer additional RI for two
months.
02. Case of the prosecution, in brief, is that after the death of her
parents, about 7-8 years prior to the date of incident, deceased Ku.
Fagni, aged about 15 years, had been living with Sukhbati Netam, who
happens to be her aunt (Chachi) in relation. The deceased was
working as a maid in the house of other persons. On 1.1.2016 Fagni
left the house of Sukhbati saying that she is going to the photo studio
for getting her photographed but did not return and her mobile was also
switched off. Hence on the missing report being lodged by Sukhbati,
offence under Section 363 of IPC was registered against unknown
person.
03. During investigation, on the basis of call details of Fagni, the
accused was taken into custody and in his memorandum he disclosed
that she had love affair with him, they used to talk over mobile phones
3
and he also had physical relations with her four-five times. He further
disclosed that when she pressurized him for marrying her, he got tense
and disconcerted as she was of other caste and a minor girl. From the
memorandum it also revealed that after purchasing a mobile SIM
9937496406 from Orissa the accused talked to Fagni on her mobile
No. 8251841104 and called her near Gariyaband market and after
hiring motorcycle bearing No. CG 05 U/8077 of one Sourabh Dhruv,
took Fagni on the said motorcycle to a jungle falling in between
Heerabadar and Kaamraj. While she was consuming cold drink, he
strangulated her with the help of saafi (a piece of cloth) worn around
her neck. In order to make it a case of suicide, he hanged the dead
body from a tree and after chewing the SIM cards of the deceased and
himself threw them into the shrubs and also left both the mobile
phones there. At his instance, on 29.1.2016 dead body of Fagni was
recovered (Ex.P/3) which was identified by Sukhbati and Subhash
Netam. From the place of incident, one pair of sandal of the deceased,
sprite bottle containing little liquid and a plastic disposable glass were
seized vide Ex.P/6. On the memorandum of the accused, one Reliance
mobile with battery and SIM No.7489809741 was seized vide Ex.P/12.
One mobile phone of Micromax company and one mobile of Videocon
company were also seized at the instance of the accused from his
house vide Ex.P/22 & 23. The motorcycle used in commission of the
crime with its documents were seized from Sourav Dhruv vide Ex.P/24.
4
04. Inquest over the dead body was performed and the dead body
was sent for postmortem. The autopsy surgeon preserved the wearing
apparels of the deceased, her ear ring, ring and ligature material and
her teeth and hair for DNA test, which were seized vide Ex.P/19. Spot
map (Ex.P/9) was prepared, marksheet and caste certificate of the
deceased were seized from the possession of Sukhbati Netam vide
Ex.P/10 & P/11. Dakhil-Kharij Register and Affidavit Register from the
Head Master of Primary School, Dak Bungala, Gariyaband were seized
vide Ex.P/27. Call details of the accused and the deceased were
obtained vide Ex.P/31. After completing the necessary formalities of
investigation, charge sheet was filed against the accused under
Sections 363, 364, 302 of IPC, Section 3(2)(v) of Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short “the Act
of 1989”) and Section 6 of Protection of Children from Sexual Offences
Act, 2012.
05. Learned trial Court framed charges under Sections 363, 364,
302 of IPC and Section 3(2)(v) of the Act of 1989 which were abjured
by the accused and he prayed for trial. In order to substantiate its case
the prosecution examined 26 witnesses. Statement of the accused was
recorded under Section 313 of CrPC wherein he denied all the
incriminating circumstances appearing against him in the prosecution
case, pleaded innocence and false implication. However, no witness
was examined by him in his defence.
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06. After hearing counsel for the respective parties and appreciation
of oral and documentary evidence on record, the learned trial Court
convicted and sentenced the appellant as mentioned above. Hence
this appeal.
07. Learned counsel for the appellants submits that the impugned
judgment is bad in law, perverse, erroneous and liable to be set aside.
There is no eyewitness to the incident and the entire case rests upon
circumstantial evidence, mainly the evidence of memorandum and
seizure, which is a very weak type of evidence. Both the witnesses to
memorandum and seizure i.e. PW-4 Kanhaiya Pradhan and PW-5
Yogesh Baghel have not supported the prosecution case and have
been declared hostile. In this case, identification of the dead body is
also not proved by the prosecution. As per PW-19 Dr. B. Bara, the
dead body was not identifiable and PW-2 Sukhbati Netam, who is said
to have identified the dead body, states in para 3 of her deposition that
the body was decomposed but face was slightly seen and she
identified the dead body on the basis of clothes and face. This apart, as
per evidence of PW-2 Sukhbati while leaving her house, the deceased
was wearing a ring on which “Fagni” was written and PW-7 Subhash
Netam, brother of the deceased also states in para 3 that her ring
bears the name “Fagni” whereas PW-8 Manoj Kumar Chandel, uncle of
the deceased, states that he saw a ring in the finger of deceased Fagni
on which “Firoj” was written and PW-23 ASI Dev Kumar Verma also
states that “Firoj” in Hindi was written on the ring of the deceased. PW-
6
20 Dr. Ulhas Gonnade in para 9 admits that he has not mentioned in
his report Ex.P/15 about any name being written on the ring of the
deceased.
08. Learned counsel further contended that as regards recovery of
motorcycle at the instance of the accused, PW-14 Saurav Kumar
states in paras 3, 4 & 5 of his deposition that he had not given his
motorcycle to the accused on 1.1.2016 and as such, recovery of
motorcycle loses its significance. He submits that the prosecution has
also failed to prove the nature of death. As per PW-20 Dr. Ulhas
Gonnade the death might be suicidal too. Thus, there is no legally
admissible evidence against the appellant proving his complicity in the
crime in question beyond reasonable doubt. Being so, the impugned
judgment of learned trial Court is liable to be set aside and the
appellant be acquitted of all the charges.
Reliance has been placed on the decisions in the matters of
Sharad Biridhichand Sarda Vs. State of Maharashtra, AIR 1984 SC
1622; Chandra Pal Vs. State of CG, AIR 2022 SC 2542; Chingdu
Kashyap Vs. State of Cg, 2023(4) CGLJ 184 (DB); Vickki @ Bharat
Vs. State of CG, 2023(4) CGLJ 322 (DB); Anand Ram Vs. State of
CG, 2024(1) CGLJ 210 (DB) and the judgment dated 7.10.2024 of
this Court in CRA No.868/2018 in the matter of Mangau Ram Vs.
State of CG.
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09. On the other hand, learned counsel for the State supporting the
impugned judgment submits that learned trial court minutely
appreciated oral and documentary evidence on record and rightly
convicted and sentenced the appellant. As such, this appeal being
without any substance is liable to be dismissed.
10. Heard learned counsel for the parties and perused the material
available on record.
11. It is clear from the record of learned trial Court that the appellant
was charged under Sections 363, 364, 302 of IPC and Section 3(2)(v)
of the Act of 1989 and after appreciation of oral and documentary
evidence, learned trial Court acquitted him of the charge u/s 3(2)(v) of
the Act of 1989 and convicted and sentenced him under Sections 364
and 302 of IPC for offence under Section 364 being inclusive of one
defined u/s 363 of IPC.
12. First of all we have to see whether the prosecution has
successfully proved the homicidal death of the deceased.
13. PW-26 Vimlesh Dubey, Inspector, states that he issued notice
Ex.P/4 to the witnesses and prepared inquest memo Ex.P/5. He also
lodged merg intimation No.4/16 vide Ex.P/39 and gave application for
postmortem of the dead body vide Ex.P/29.
14. PW-20 Dr. Ulhas Gonnade conducted postmortem on the body
of the deceased on 30.1.2016 and noticed her mouth open, head tilted
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towards left side, tongue inside, foots on the ground, knees bent,
hands straight, skin of neck got folded and there was a noose with
running knot and the body seemed decomposed. He opined that as per
available position, condition and ligature material and presence of
ligature mark, it seems to be a case of hanging. In para 8 of his cross-
examination he admits that it cannot be said with certainty that death
occurred as a result of hanging only. In para 9 he admits that death of
the deceased could be suicidal in nature also.
15. The Hon’ble Supreme Court in the matter of Satish Nirankari
Vs. State of Rajasthan; (2017) 8 SCC 497 held in paras 38 and 39 as
under:-
“38. …… The prosecution failed to prove that the cause
of death was homicidal. Dr. S.K. Pathak (P.W.-3) did not
say that death was homicidal in nature. Post-mortem
report (Ext.P-4) also does not say that it was homicidal.
39. This aspect is not even dealt with by the High Court.
Further, the alleged weapon i.e. cable wire was not sent
to CFSL and to any scientific laboratory to confirm
fingerprints of the appellant. All the aforesaid factors
amply demonstrate that the prosecution has not been
able to bring out and prove the guilt of the appellant
beyond reasonable doubt. There are lurking doubts in
the story of the prosecution and many missing links
which are pointed out above.”
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16. The Hon’ble Supreme Court in the matter of Chandrapal (supra)
held in paras 8 & 9 of its judgment as under:
“8. It is also needless to reiterate that for the purpose of
proving the charge for the offence under Section 302, the
prosecution must establish “homicidal death” as a primary
fact. In order to convict an accused under Section 302, the
court is required to first see as to whether the prosecution
has proved the factum of homicidal death. So far as the
facts of present case are concerned, the evidence of PW-
13 Dr. R.K. Singh, who had carried out the post-mortem of
the deceased Brinda and Kanhaiya, would be most
relevant in this regard. He had stated in his deposition
before the court, inter alia, that on 12.12.1994, he had
carried out the post-mortem of Kumari Brinda, daughter of
Bhagirathi, and of Kanhaiya alias Chandrashekhar Gaur.
The dead bodies of both the deceased were in
decomposed state. He had further stated that the knot
mark present on the neck of the deceased Brinda was
ante-mortem, and that the cause of death appeared to be
Asphyxia due to hanging. The death had taken place
within 8 to 10 days and the nature of death was Suicidal.
The said Doctor had stated similar facts for Kanhaiya that
the dead body of Kanhaiya was found bent towards left
side from his neck and a ligature mark having size 10″ x 5″
was present on the neck. The cause of death appeared to
be Asphyxia due to hanging and the death appeared to
have taken place within 8 to 10 days. He had further
stated that there was neither fracture found on the dead
bodies of the deceased, nor any blood clots were found,
nor any injuries were found, and therefore he had opined
that the cause of death was hanging which normally is
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found in case of suicide. He specifically stated that as the
dead bodies were decom-posed, he could not express any
opinion whether it was a homicidal death. In the cross-
examination by the learned counsel for the accused, he
had categorically admitted that he did not find any
symptom of homicidal death, nor he had opined in his
report given on 12.12.1994 that the deaths of the
deceased were homicidal. Of course, he had stated that
on the basis of the report submitted on 30.04.1995, an
inference could be drawn that the deaths could be
homicidal deaths.
9. It is worth noting that the High Court in the impugned
judgment has not considered at all the evidence of Dr.
R.K. Singh to come to the conclusion whether the deaths
were homicidal deaths, before confirming the conviction of
the appellant for the offence under Section 302 IPC.
Unfortunately, the Sessions Court also in para 23 of its
judgment observed that the statement of Dr. R.K. Singh
was not important because he had expressed an opinion
which was neither beneficial to the prosecution nor to the
defence. In our opinion, when the case of the prosecution
rested on circumstantial evidence, it was imperative for the
prosecution to prove beyond reasonable doubt that the
deaths of the deceased were homicidal deaths and not
suicidal, more particularly when the line of defence of the
accused was that the Brinda and Kanhaiya had committed
suicide, and when Dr. R.K. Singh who had carried out their
post-mortems had also opined that the nature of their
deaths was Suicidal.”
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17. In the present case also, the autopsy surgeon PW-20 Dr. Ulhas
Gonnade did not mention the nature of death of the deceased in his
postmortem report and also admitted the suggestion of the defence
that death could be suicidal in nature. Thus, in view of the above
settled legal position, we are of the opinion that the prosecution has
failed to prove this fact beyond reasonable doubt that death of Fagni
Bai was homicidal in nature.
18. As per prosecution case, the deceased was having affair with the
appellant. PW-2 Sukhbati Netam states that deceased is daughter of
her brother-in-law Sahdev Netam. On the date of incident, at around 11
am she had gone for getting her photographed but did not return
thereafter and hence on 2nd she lodged a missing report at the police
station. She saw the appellant in the police station where he disclosed
to have killed Fagni in the forest and the dead body was recovered
from the forest which was hanging from a tree.
19. PW-3 Tamsingh admits his signature on notice Ex.P/2, dead
body recovery memo Ex.P/3, inquest memo Ex.P/5 and seizure memo
Ex.P/6. The prosecution declared him hostile and cross-examined
where he admitted the suggestion of the prosecution that they went to
the Lal Pahad situated between Village-Kamraj and Heerabatar forest
and the relatives of the deceased identified the dead body as that of
Fagni.
12
20. PW-4 Kanhaiya Pradhan and PW-5 Yogesh Baghel though admit
their signature on memorandum Ex.P/8, dead body recovery memo
Ex.P/3 and inquest memo Ex.P/5 but deny any interrogation of the
appellant before them by the police or seizure, recovery of dead body
of the deceased as also deny preparation of inquest memo before
them. The prosecution declared them hostile and cross-examined
where they denied all the suggestions of the prosecution.
21. PW-6 Hemuram admits his signature on inquest memo Ex.P/5
and notice Ex.P/16. The prosecution declared him hostile and in cross-
examination by the prosecution he admits the suggestion that dead
body was recovered from Lal Pahad where the appellant was also
present but he does not know whether appellant got the dead body
recovered.
22. PW-7 Subhash Netam states that the accused indicated the
place i.e. Lal Pahad from where the dead body was recovered and he
admits his signature on the notice Ex.P/17 from A to A part. He also
admits his signature on dead body recovery memo Ex.P/3 and dead
body identification memo Ex.P/14.
23. PW-8 Manoj Kumar Chandel states that the police informed him
that the appellant disclosed to have killed Fagni and that the appellant
took them to the forest from where the dead body was recovered in
hanging position from a tree.
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24. PW-1 Leena Gayakwad and PW-9 Laxmi Nagesh are
classmates of the deceased but they did not state anything about
relationship of the deceased with the appellant. The prosecution
declared them hostile and cross-examined where they denied all the
suggestions of the prosecution.
25. PW-14 Sourav Kumar admits his signature on seizure memo
Ex.P/24 whereby his motorcycle and its documents were seized but
stated that he had not given his motorcycle to anyone. He was
declared hostile and cross-examined by the prosecution where he
denied all the suggestions of the prosecution.
26. As per memorandum of the appellant (Ex.P/8), he disclosed
about the dead body and mobile but as per recovery memo Ex.P/3,
only dead body of the deceased was recovered.
27. PW-25 Krishna Sharma, Nodal Officer of Airtel Company, proved
the call details of Mobile No.9937496406. As per his statement, the
said mobile number was issued in the name of Chhabirani Rai,
resident of Naranggarh, Jankiya, Kordha (Orissa).
28. As regards identification of the dead body, PW-19 Dr. B. Bara
states that the dead body was not identifiable. PW-2 Sukhbati Netam
admits that on the basis of sandal and ring, she identified the dead
body of Fagni. She states that when the deceased left home, she was
wearing a ring on which “Fagni” was written. PW-7 Subhash Netam
14
also states that the ring worn by the deceased bears the name “Fagni”.
However, PW-8 Manoj Kumar Chandel, uncle of the deceased and
PW-23 ASI Dev Kumar Verma state that “Firoj” in Hindi was written on
the ring of the deceased. Thus, there is discrepancy in respect of name
being written on the ring of the deceased.
29. Admittedly, there is no direct evidence in this case and the entire
case rests upon circumstantial evidence. The Hon’ble Supreme Court
in the matter of Sharad Biridhichand Sarda (supra) held in paras 150,
152 & 153 of its judgment as under:
“150. It is well settled that the prosecution must stand or
fall on its own legs and it cannot derive any strength from
the weakness of the defence. This is trite law and no
decision has taken a contrary view. What some cases
have held is only this where various links in a chain are in
themselves complete, then a false plea or a false defence
may be called into aid only to lend assurance to the Court.
In other words, before using the additional link it must be
proved that all the links in the chain are complete and do
not suffer from any infirmity. It is not the law that where
there is any infirmity or lacuna in the prosecution case, the
same could be cured or supplied by a false defence or a
plea which is not accepted by a court.
152. 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:
15
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
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 v. 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 be fore a Court can
convict and the mental distance between ‘may be’ and
‘must be’ is long and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty.
(3) the circumstances should be of a conclusive nature
and tendency.
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
16
show that in all human probability the act must have been
done by the accused.
153. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.
30. Learned trial Court based its conviction on the circumstantial
evidence i.e. recovery of dead body at the instance of the accused,
love affair between the accused and the deceased and memorandum
and seizure. True it is that there is evidence as to appellant being last
seen in the company of the deceased. Though it is the case of the
prosecution that there was love affair between the appellant and the
deceased but the classmates of the deceased namely PW-1 Leena
Gayakwad and PW-9 Laxmi Nagesh have not stated anything about
any such relationship between the two and they were declared hostile.
As per PW-2 Sukhbati Netam the deceased went away from her house
alone for her photograph. Though as per memorandum of the
appellant, he took the deceased by motorcycle which belongs to
Sourav Kumar (PW-14) but PW-14 Sourav Kumar, from whom the
motorcycle and its documents were seized, has not supported the
prosecution case and denied the suggstion that on the date of incident,
the appellant took his motorcycle. Even the call details produced by the
prosecution have not been proved and it is of no help to the
proseuction because it does not establish that the appellant and the
deceased talked with each other on the date of incident. Their location
17
could not be proved by the prosecution. This apart, identification of the
dead body is also doubtful in this case. As per relatives of the
deceased, on the ring of the deceased “Fagni” was written whereas the
investigating officer seized a ring from the body of the deceased on
which “Firoj” was written. Most importantly, the prosecution has utterly
failed to prove nature of death whether it was homicidal or suicidal
which is primary fact to be proved in murder cases.
31. This Court in the matter of Mangauram Markam (supra) held in
paras 26 & 27 of its judgment as under:
“26. Furthermore, even if it is accepted that the dead-body of
the deceased was recovered at the instance of the appellant,
the same would not complete the chain of circumstances in
order to hold the appellant guilty for the offence in question. As
such, we find no good reason to accept the finding of the
learned trial Court that the dead-body of deceased- Saradhuram
was found at the instance of the appellant and, therefore, the
learned trial Court is absolutely unjustified in relying upon the
same as a piece of incriminating circumstance. Consequently,
the appellant is entitled for acquittal on the basis of benefit of
doubt so far as offence for committing murder of deceased-
Saradhuram is concerned.
(27) In view of the foregoing analysis, we are unable to hold that
the prosecution has been able to prove the five golden
principles to constitute the ‘panchsheel’ of proof of a case based
on circumstantial evidence, as laid down by the Supreme Court
in the matter of Sharad Birdhichand Sarda (supra), in absence
of which, the learned trial Court is unjustified in convicting the
appellant for offence under Section 302 of IPC (on two counts)
18and also under Section 201 of IPC being the author of the crime
in question in light of the incriminating circumstances culled out
in Para-36 of the impugned judgment and same are liable to be
set aside.”
32. On the basis of aforesaid discussions and in light of the
decisions referred to above, this Court is of the opinion that the
prosecution has miserably failed to prove its case based upon
circumstantial evidence beyond reasonable doubt that it is the
appellant who committed murder of the deceased. The findings of guilt
recorded by learned trial Court being not based upon proper
appreciation of oral and documentary evidence are not sustainable.
33. In the result, the appeal is allowed. The impugned judgment of
learned trial Court is hereby set aside and the appellant is acquitted of
the charges under Sections 364 and 302 of IPC by giving him benefit
of doubt. The appellant is reported to be in jail, therefore, he be
released forthwith, if not required to be detained in connection with any
other offence. However, in view of provisions of Section 481 of BNSS,
2023 the appellant is required to furnish a bail bond for a sum of
Rs.25,000/- to secure his appearance before the higher court as and
when such court issues notice in respect of any appeal being filed
against this judgment and it shall remain in force for a period of six
months.
Digitally signed
Sd/ Sd/
MOHD by
(Rajani Dubey) (Sachin Singh Rajput)
MOHD
AKHTAR KHAN
AKHTAR Date:
2025.06.27
KHAN 16:34:03
+0530 Judge Judge
Khan