Chattisgarh High Court
Rajkumar vs State Of Chhattisgarh on 7 March, 2025
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.03.12
17:29:46 +0530
2025:CGHC:11391-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1728 of 2019
1. Rajkumar S/o Late Salikram Marawi Aged About 22 Years
R/o Village Polmi Banjhi Aamapara, Police Station -
Kukdur, District - Kabirdham Chhattisgarh.
2. Rajesh S/o Late Salikram Marawi Aged About 19 Years R/o
Village Polmi Banjhi Aamapara, Police Station - Kukdur,
District - Kabirdham Chhattisgarh.
3. Fuleshwari Bai W/o Rajkumar Marawi ( Wrongly Mentioned
As Rajkumari ) Aged About 20 Years R/o Village Polmi
Banjhi Aamapara, Police Station - Kukdur, District -
Kabirdham Chhattisgarh.
... Appellants
versus
State Of Chhattisgarh Through The Police Station Kukdur,
District - Kabirdham Chhattisgarh.
... Respondent
For Appellants : Mr. Ashutosh Shukla, Advocate
For Respondent : Mr. Sharad Mishra, Panel Lawyer
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(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment On Board
(07.03.2025)
Sanjay Kumar Jaiswal, J.
1. This criminal appeal preferred by the appellants under
Section 374(2) of Cr.P.C. is directed against the impugned
judgment dated 29.04.2019, passed by learned Additional
Sessions Judge (FTC), Kabirdham, Chhattisgarh, in Session
Trial No.26/2018, by which, the appellants herein have
been convicted and sentenced as under:
Conviction Sentence
u/s 302/34 of IPC Life imprisonment and fine of
Rs.1,000/-, in default of payment
of fine, 2 months additional
rigorous imprisonment.
u/s 201/34 of IPC Rigorous imprisonment for 1 year
and fine of Rs.500/-, in default of
payment of fine, 1 months
additional rigorous imprisonment.
2. The case of prosecution, in nutshell, is that on 06.03.2018
between 7:00 a.m. to 6:00 p.m., at Bhedagarh Khar
Nainsingh’s field, PS Kukdur, District Kabirdham, the
Appellants herein, in furtherance of their common intention,
committed murder of Phulesar Bai (now deceased) by
assaulting with stick and strangulating her and knowing
fully well that she is dead, in order to screen from the legal
punishment, they hanged the dead body on a Mahua tree in
Bhedagarh Khar (field) to demonstrate it to be a case of
suicide, thereby the offence has been committed.
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3. The further case of prosecution is that on 06/03/2018
Phulesar Bai left her house at around 07.00 a.m. and did
not return. In the evening, Mahuram (PW-16), resident of
village Dalamoha, while bringing his wife back from
Anganwadi, saw a woman hanging from a tree in Bhedagarh
Khar. Then his son Ramsing informed Johit Ram Baiga (PW-
17)-resident of village Bhedagarh who informed Kotwar
Mahesh Ram (PW-10) about the incident. Kotwar Mahesh
Ram (PW-10) went to the spot and informed the relatives of
the deceased and the appellants. Then appellant Rajkumar
reported the matter to Police Station, Kukdur, District
Kabirdham based on which Merg Intimation was recorded
vide Exhibit P-20. Inquest report Exhibit P-10 was prepared
by the Police. The dead body of deceased was subjected to
postmortem which was conducted by Dr. V. L. Raj (PW-11),
who proved the post-mortem report (Ex. P-18), according to
which, mode of death was asphyxia due to strangulation
and death was homicidal in nature. The Police prepared
Panchnama of the place of occurrence vide Ex. P-6 & 7 and
seized bags, Sarees, blouse, slippers etc. from the spot vide
Ex. P-21. Spot map and spot Panchnama was prepared vide
Ex.P-16 & P-17. The internal organs (Viscera) of the
deceased were sent for chemical examination to FSL, in
which, as per FSL report Ex.P-30, no poison was found. On
the basis of Merg investigation, First Information Report
(Exhibit P-22) was registered against unknown persons.
Pursuant to the memorandum of appellant Rajkumar, a
stick was seized vide Ex.P-4 and on the memorandum
statement of appellant Rajesh, a Gerwa (rope) was seized
vide Ex.P-5 which was sent for chemical examination to
FSL. As per FSL report (Ex.P-31), no blood was found on the
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Gerwa. After completion of investigation, appellants herein
were charge – sheeted for the aforesaid offence.
4. During the course of trial, in order to bring home the
offence, the prosecution has examined as many as 17
witnesses and exhibited 31 documents. The statements of
appellants / accused were recorded under Section 313 of
the CrPC in which they denied the circumstances appearing
against them in the evidence brought on record by the
prosecution, pleaded innocence and false implication.
However, the appellants in support of their defence have
neither examined any witness nor exhibited any document.
5. The learned trial Court, after appreciating the oral and
documentary evidence available on record, convicted the
appellants / accused for the offence as mentioned in the
opening paragraph of the judgment, against which this
appeal has been preferred by the appellants questioning the
impugned judgment of conviction and order of sentence.
6. Mr. Ashutosh Shukla, learned counsel for the appellants,
would submit that the case is said to be based on
circumstantial evidence but the prosecution has failed to
establish any such circumstance which lead to the
conclusion that the appellants have committed the alleged
offence. He submits that the decision in question of the trial
Court is based only on presumptions. The seizure and
memorandum have not been supported by independent
witnesses. No chemical examination of the allegedly seized
stick was conducted nor was any blood found in the seized
Gerwa (rope) as per the FSL report. He submits that the
conviction of the appellants is not based on clear, sufficient
and reliable evidence beyond doubt but on presumptions
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which have no legal basis. Hence, the impugned judgment of
conviction is not Maintainable and the same is liable to be
set aside and the appellants deserves to be acquitted on the
basis of benefit of doubt.
7. On the other hand, Mr. Sharad Mishra, learned State
counsel, would support the impugned judgment and submit
that the prosecution has been able to bring home the
offence beyond reasonable doubt and the trial Court has
rightly convicted the appellants for the aforesaid offence. As
such, the appeal deserves to be dismissed.
8. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and went
through the records with utmost circumspection.
9. The case of the prosecution is not based on any direct
evidence. It is based solely on circumstantial evidence. The
five golden principles which constitute the Panchsheel of the
proof of a case based on circumstantial evidence have been
laid down by their Lordships of the Supreme Court in the
matter of Sharad Birdhichand Sarda v. State of
Maharashtra1 which must be fulfilled for convicting an
accused on the basis of circumstantial evidence. The
relevant paragraph 153 of the said judgment reads 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. (1984) 4 SCC 116
6(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
Sahabrao Bobade v. State of Maharashtra 2
where the following observations were made:
Certainly, it is a primary principle that
the accused must be and not merely
may be guilty before a court can convict
and the mental distance between ‘may
be’ and ‘must be’ is long and divides
vague conjectures from sure
conclusions.
(2) the facts so established should be
consistent only with the hypothesis of
the guilt of the accused, that is to say,
they should not be explainable on any
other hypothesis except that the
accused is guilty,(3) the circumstances should be of a
conclusive nature and tendency,(4) they should exclude every possible
hypothesis except the one to be proved,
and(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent
with the innocence of the accused and
must show that in all human probability
the act must have been done by the
accused.”
2. (1973) 2 SCC 793
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10. Now we will consider the incriminating circumstances
recorded by the trial Court in the light of the principles of
law laid down by the Hon’ble Supreme Court in the case of
Sharad Birdhichand Sarda (supra).
11. The first and foremost circumstance for consideration is as
to whether the death of deceased Phulesar Bai was
homicidal in nature?
12. Learned trial Court has recorded an affirmative finding in
this regard relying upon the postmortem report Ex. P-18
proved by Dr. V. L. Raj (PW-11), according to which, mode of
death was asphyxia due to strangulation and death was
homicidal in nature, which is a finding of fact based on
evidence available on record, it is neither perverse nor
contrary to the record and we hereby affirm the said finding.
13. As regards other circumstances, as per the judgment of the
trial Court itself, the prosecution has failed to prove any
motive of the appellants. The trial Court itself has held in
paragraph-29 of its judgment that the memorandum
statements of appellants Rajkumar (Ex.P-1) & Rajesh (Ex.P-
2) and the seizure of Stick and Gerwa (rope) made from their
possession vide Exhibits P-4 & P-5 respectively, have not
been supported by independent witnesses Ramkumar
Baghel (PW-3) and Tilakram (PW-6). Thus, the said seizure
from the possession of appellants Rajkumar and Rajesh
has not been proved. Since the stick has not been
chemically examined, its use in the offence has not been
established. Similarly, according to FSL report (Ex.P-31), no
blood was found on the Gerwa, due to which, the use of that
Gerwa in the offence, which has been the main basis of the
prosecution, has not been proved. Thus, the main ground
has not been found proved by the trial Court.
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14. It is an undisputed fact that appellants Rajkumar and
Rajesh are brothers who are sons of deceased Phulesar Bai.
Appellant Fuleswari Bai W/o appellant Rajkumar is the
daughter-in-law of deceased Phulesar Bai.
15. On the basis of evidence available on record, it has been held
by the trial Court that the accused persons and the
deceased belong to the same family and were residing
together. Despite this, between the time the deceased
Phulesar Bai left the house at 07.00 in the morning and the
time her dead body was found in the evening, the appellants
did not give any information about her missing anywhere
which shows that their conduct was that they had
committed the offence themselves, hence they did not
inform anyone nor did they give any information about
missing of deceased Phulesar Bai before her dead body was
found. Apart from this, the trial Court has held in
paragraph-37 of its judgment that as per the postmortem
report (Ex.P-18), the death was caused between 35 to 50
hours prior to the PM examination, therefore, it has been
held that deceased Phulesar must have died between 04-05
am on 06/03/2017, whereas in the case lodged by appellant
Rajkumar to the Police, it has been informed that deceased
Phulesar Bai left the house at 07.00 a.m. and did not
return. On this basis, the trial Court has presumed that the
appellants killed Phulesar Bai in the house itself by tying
her neck with a rope and hanged the dead body on a tree
outside their house. Later, when the villagers saw the body,
they gave false information to the Police that deceased
Phulesar had left the house at 07.00 am and did not return.
16. The above inference of the trial Court is based only on the
medical opinion that the death had occurred about 35 to 50
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hours before the PM examination. This inference cannot be
termed as legal evidence and apart from this, no other
incriminating circumstances/inference have been proved by
the prosecution on the basis of which it can be concluded
that deceased Phulesar Bai was killed in the house itself. No
such weapon or evidence has been collected from the house
of the appellants on the basis of which it can be presumed
that death of Phulesar Bai was caused in the house. The
body of Phulesar Bai was also found hanging from a tree
outside the house. Her body was not found in the house
where the appellants lived. Hence, no such explanation can
be expected from the appellants to say as to when, how and
under what circumstances Phulesar Bai died. Phulesar Bai
is said to have left the house at 07.00 in the morning and
her dead body was found in the evening. In the above
situation, it cannot be held on the basis of the medical
opinion alone that Phulesar Bai died in her house and later
her dead body was taken away and hanged on a tree.
17. In view of the aforesaid discussions, we find that as per the
principle of ‘Panchsheel‘ laid down by the Honorable
Supreme Court in the case of Sharad Birhichand Sarda
(Supra), the chain of circumstances is not so complete in
which the appellants can be held guilty for the offence. The
prosecution has failed to produce evidence to prove the guilt
of the appellants beyond the shadow of doubt on the basis
of the circumstantial evidence. Consequently, we are unable
to uphold the conviction of the appellants for offence
punishable under Sections 302/34 & 201/34 of IPC and the
appellants are entitled for acquittal on the basis of the
principle of benefit of doubt.
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18. Accordingly, the impugned judgment dated 29.04.2019
passed by the Trial Court convicting and sentencing the
appellants for offence under Sections 302/34 & 201/34 of
IPC is hereby set aside/quashed on the basis of benefit of
doubt and the appellants are acquitted of the said charges.
19. Appellants Rajkumar and Rajesh are reported to be in jail.
They be released from jail forthwith, if their detention is not
required in connection with any other offence. Appellant
Fuleshwari Bai is on bail. She need not surrender in this
case. However, her bail bonds shall remain in force for a
period of six months in view of the provisions contained in
Section 437-A of the CrPC.
20. This criminal appeal, accordingly, stands allowed.
21. Let a certified copy of this judgment along with the original
record be transmitted forthwith to the concerned trial Court
for necessary information & action, if any. A copy of the
judgment may also be sent to the concerned Jail
Superintendent wherein the Appellants 1 & 2 are suffering
the jail sentence.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Judge Judge
Khatai
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