Allowed

Lachhram @ Chhote Lal Sahu v. State of Chhattisgarh

Chhattisgarh HC14 Jun 2023CRA/514/2021

Case brief

AI extract

What is this about?

The High Court allowed the appeal against a murder conviction, setting aside the sentence. The bench held that the prosecution failed to prove its case beyond reasonable doubt due to flaws in the circumstantial evidence, invalid seizure under Section 27, and unverified forensic reports regarding blood stains.

What did the court decide?

The conviction and sentence under Sections 302 and 201 of IPC are set aside; the appellant is acquitted and shall be released forthwith.

Lachhram @ Chhote Lal Sahu Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Order Reserved on 06/05/2023

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Order Passed on 14/06/2023

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CRA No. 514 of 2021

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Lachhram @ Chhote Lal Sahu S/o Samhan Prasad Sahu Aged About 24 Years R/o Village- Bhaiso, P.S.- Pamgarh, District- Janjgir- Champa, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, Through- S.H.O, Pamgarh, District- JanjgirChampa, Chhattisgarh.

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---- Respondent

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For Appellant For State

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: Mr. Ravindra Sharma, Advocate. : Mr. Raghvendra Pradhan, Addl. A.G.

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Hon'ble Shri Justice Goutam Bhaduri, J. &

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Hon’ble Shri Justice Sanjay Kumar Jaiswal, J. C A V Order

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Per Hon’ble Shri Justice Sanjay Kumar Jaiswal,

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This appeal is preferred against the judgment dated 30.01.2021 passed by the learned Second Additional Sessions Judge, Janjgir, District - Janjgir-Champa (C.G.) in Sessions Trial No. 63/2019, wherein the appellant has been held guilty for the commission of offence punishable under Sections 302 & 201 of IPC and sentenced as under:-

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Offence Under Section	Sentence
302 of IPC	Life imprisonment and fine of Rs. 500/-, in default of payment of fine amount additional R.I. for 6 months.
201 of IPC	R.I. for 5 years and fine of Rs. 200/- in default of payment of fine amount additional R.I. for 3 months.
	Both the sentences shall run concurrently.

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Brief facts of the case are that on 26.06.2019, wife- Chitrarekha Nirmalkar of deceased- Khikram Nirmalkar lodged a report stating therein that on

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25.06.2019 her husband and daughter were present in the house and at about

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8:30 pm, her husband went to sleep on the roof of the house. Thereafter, at about 12:00 am her husband woke up and went towards the pond to attend the natures call and after returning, again went on the roof to sleep. On the next day (i.e. 26.06.2019) at about 5:30 am when her husband did not wake up, she went on the roof and saw that her husband was laying in pool of blood and there was grievous injury on his neck. On the information given by the wife (PW-1) of the deceased, police registered Dehati Nalishi (Ex.-P/1) against unknown persons. The police recorded memorandum (Ex.-P/7) of the appellant. On the basis of which the blood-stained axe was recovered from Amha Pond whereas one full T- shirt, underwear, scarf (xeNk), bag and bricks were also recovered from the Bandhwa Pond. Thereafter on 28.06.2019 (Ex.-P/11) the appellant was arrested. After completion of the investigation, the police filed charge sheet before the Judicial Magistrate First Class, Pamgarh, District- Janjgir-Champa against the accused/appellant for the offence punishable under Sections 302 & 201 of IPC.

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The prosecution has examined as many as 11 witnesses. The statement of the appellant/accused was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case. The appellant adduced 02 witnesses in his defence. The trial Court after appreciation of witnesses and submissions of the parties found the appellant guilty of the aforesaid offence and sentenced him as mentioned in para-1.

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Learned counsel for the appellant submits that the judgment passed by the learned trial Court is bad in the eye of law. The FIR was lodged against unknown person, the appellant has not committed any offence as alleged against him and he has been falsely implicated. In the instant case, there is no eye witness and the case is based upon circumstantial evidence only, the prosecution has failed to complete the chain of circumstances beyond all reasonable doubt to prove the

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guilt of the appellant. He next submits that there are material contradictions and omissions in the statements of the prosecution witnesses and the memorandum statement made by the appellant/accused is not voluntary. He further submits that the weapon was seized on 28.06.2019 and sent for query to the medical officer on 15.07.2019 which was further sent for query on 29.07.2019, during this period the weapon was not sealed or preserved. The prosecution has failed to explain the delay in sending the seized weapon/article for F.S.L. The memorandum statement of the appellant/accused was recorded at Panchayat Bhawan whereas it was to be recorded at the police station. He also submits that the Investigating Officer (PW-11) did not depose about the chain of incriminating circumstances which lead him to the conclusion that the appellant is the person who has committed the crime. The appellant/accused as per Section 08 of the Evidence Act the subsequent conduct of the appellant/accused is important and he did not run away from the place where he was working. He lastly submits that the trial Court has erred in ignoring that the prosecution has failed to prove its case beyond reasonable doubt and the case of the prosecution is based on presumption/probability in the absence of any concrete medical and forensic evidence. Therefore, the judgment passed by the trial Court is liable to be set aside and the accused/appellant is liable to be acquitted in the interest of justice. He placed reliance on the decisions of Hon’ble Supreme Court in the matters of Ramanand alias Nandlal Bharti vs. State of Uttar Pradesh¹ and Ramesh Kumar vs. State of Punjab² .

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On the other hand, learned counsel for the State supported the judgment of the trial Court and submits that the judgment passed by the trial Court is based on proper appreciation of evidence available on record. Therefore the appeal is liable to be dismissed.

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Heard learned counsel for the parties and perused the judgment of the trial

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2 AIR 2018 SC (Supp) 133

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1 AIR 2022 SC 5273

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Court as well as the material available on record.

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The accused/appellant has taken the defence of the plea of alibi under Section 11 of the Indian Evidence Act. In this regard, the statements of defence witness Upesh Singh (DW-1) and defence witness Sarwan (DW-2) have been recorded. Defence witness Upesh Singh (DW-1) has only stated about the murder of Khikhram. No statement has been made regarding the defence of the appellant.

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Defence witness Sarwan (DW-2) who is a resident of village Lagra stated that 7-8 months prior to his statement, when he was constructing a house in village Lagra, the appellant had come to his village. The appellant was helping him in building the house and was living with him. Later on, the policemen caught the appellant and took him to Pamgarh police station and beat him and the appellant. In the cross-examination, he has stated that the distance of his village Lagra from the village Bhainso where the incident took place is 08-10 kilometers. He is unable to tell as to from which date he built his house and he has not been able to clarify that at the time of the incident, the appellant came to his village and helped in building the house. The distance between both the villages is only 08-10 km. Defence witness Sarwan has not clarified the date and time of the arrival of the appellant, therefore the defence of the plea of alibi of the appellant is neither meaningful nor proved.

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The prosecution has to prove its case first only after that the onus of defence comes on the appellants side therefore at first, it has to be seen as to whether the prosecution has proved its case.

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The prosecution case against the appellant is based on circumstantial evidence and reasoning. According to the events, deceased Khikhram was sleeping on the roof of his house in village Bhainson, when he was killed by chopping his neck with a sharp weapon in the night. First of all, he was seen dead by his wife Chitrarekha Nirmalkar (PW-1). On the information of Chitrarekha itself,

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the police have lodged Dehati Nalisi (Ex.-P/1) and Merg intimation report (Ex.-P/2) was made against the unknown person. In the first information, no statements were made regarding the enmity with appellant or the reason.

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Among the witnesses examined by the prosecution, the relatives of the deceased include wife PW-1 (Chitrarekha Nirmalkar), daughter PW-2 (Dhaneshwari Nirmalkar), son PW-3 (Shiv Narayan Nirmalkar).

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Satish Kumar Ratre (PW-4) and Manoj Kumar Gaurha (PW-9), memorandum statement of the accused is Ex.-P/7, search panchnama is Ex.-P/8, recovery of axe from Amaha Talab at village Bhainson is Ex.-P/9 and alleged seizure of T-shirt, underwear, scarf (xeNk), shoe, bag in a torn condition and one piece of brick is Ex.-P/10. The entire investigation of the case has been done by sub-inspector, Rajkumar Lahere (PW-11).

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Kashiram (PW-5 ) is the cousin of the deceased who has informed about the incident on the information of Jaleshwari, the child of the deceased and is the witness of the dead body panchnama. In cross-examination this witness has stated about the suggestion of the defence/appellant that the policemen had come to the village at 09.00-10.00 hours after the incident and had read and written, then came to the village on the next day. In between those two days, he gave a statement to the police in which he had told that there was a hue and cry in the village and that articles had been found from the Bandhwa pond and Amha pond which were clothes and axe. The defence has argued this statement emphasizing that the seizure of articles was not made at the instance of the appellant. The seizure has been reported from an open pond of public use. The pond in which all the villagers used to bathe. Even before the memorandum of statement of the accused, people had come to know about clothes and an axe lying in the pond.

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Pawan Kumar Patel (PW-6) who is the neighbour of the deceased, after getting the information about the incident, has to give information by phone on 112

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number (police) and has informed about conducting a search by the police in the pond. This witness has also stated during the cross-examination on the suggestion of the defence/appellant side that where Khikhram had died, there was an axe lying which was taken away by the policemen. The defence has argued that the police have not given any information about the said axe and the policemen were saying that the same axe was seized from the pond at the behest of the appellant. In this way, the memorandum statement of the accused being told by the police and the seizure proceedings are not correct.

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Dinesh Kumar Nirmalkar (PW-7 ) is the witness of the search panchnama who has said that when the police had sent 10-12 people to search the articles from the village Amha Talab, Pawan Patel found an axe there and from the Bandhwa pond, a brick, a T-shirt, a pair of shoes, a scarf (xeNk) and underwear were found in a bag.

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Patwari Padmalochan Sidar (PW-10) has prepared the map (Ex.-P/4) and Panchnama (Ex.-P/5) of the spot two months after the incident on the instructions of the Police and Tehsildar, Pamgarh.

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Dr. Saurabh Yadav (PW-8) has give the report (Ex.-P/15) stating that the examination of Khikhram's dead body was done on 26/06/2019, according to which he had found the injuries on Khikhram's body as under:-

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7 cm. Length x 4 cm. Width x 3 cm. Deep wound which was found on the left side of the neck of the deceased.

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4 cm. Length x 2 cm. Width x 1 cm. deep wound was found just below the wound described in number-1.

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2 cm. Length x 2 cm. Width x 2 cm. deep wound was found just above the first wound.

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2 cm. Length x 2 cm. Width x 2 cm. deep wound was found on the left side of wound described in number-3.

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2 cm. Length x 2 cm. Width x 2 cm. deep wound was found above the third wound and on the side of the body.

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3 cm. Length x 1 cm. Width x 2 cm. deep wound which was found in the neck

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on the left side of wound number-1.

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4 cm. Length x 2 cm. Width x 2 cm. depth and 5 cm. Length x 2 cm. Width x 2 cm. deep wound which was found on the side of the body from injury number-1. 8. 3 cm. Length x 2 cm. Width x 1 cm. deep wound was found in the left jaw. 9. 7. cm Length x 2 cm. Width x 3 cm. deep wound was found to be in the shape of an oblong in the right side of the neck from top to bottom in the jaw on the left side.

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Dr. Yadav (PW-8) has opined that in the said injuries of Khikhram, small cut parts of skin, muscles and blood arteries and veins were reflected. The wounds were reddened with margins clearly visible on the outside and blood clots were also present in the wounds, which appeared to have come from a hard and sharp weapon. He also stated that he had found in the internal examination that:- (i) The larynx and trachea of the deceased were broken and blood was present in the right chamber of the heart and the left chamber was empty. (ii) On opening the stomach of the deceased, undigested food was present in it and digested food was present in the small intestine and the large intestine and kidney were empty.

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Dr. Saurabh Yadav (PW-8) has opined that the cause of death of Khikhram appeared to be cardiac arrest and shock due to injuries and blood vessel cuts caused by hard and sharp weapons within 24 hours and the nature of death was homicidal. He has stayed in his counter-examination. Thus, it is established from the above medical evidence that several sharp-edged weapon injuries were caused to Khikhram in sensitive places like the neck, face etc. Looking at the nature of the above-mentioned injuries, it is clear that the intention of the person who caused them was to cause Khikhram's death. Thus the case is found to be murder.

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According to the prosecution case, firstly, considering the question of the reason, the wife of the deceased Khikhram, Chitrarekha (PW-1) has stated in paragraphs 5 and 6 of her statement that due to the assault on her and her daughter by the appellant, the matter had gone in the court against the appellant because of which he had enmity with him and used to say while sitting in the

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temple near his house that he will kill them that is why he has doubts about the appellant. In cross-examination, she accepted that in respect of this threat, no report was made to the police.

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Dhaneshwari Nirmalkar (PW-2), the daughter of the deceased, has stated in para -3 of her examination that 3-4 years prior to the incident, the appellant had barged into her house and assaulted and abused her, in connection with which the case was going on in the court and on the date of incident i.e. 25.06.2019, at about 03.00 O’clock, he was sitting near the Bajrang Bali temple near about her house and saying that "dkV nwaxk lkys dks" but did not reveal any name and the incident took place on the same night.

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Shiv Narayan Nirmalkar (PW-3 ) who is the son of the deceased has given another reason for the enmity of the appellant apart from his mother and sister. Shiv Narayan Nirmalkar has stated that when he was in Pune, his family members used to tell him on the phone that the appellant had a dispute with them and once at the time of Navadha Ramayana, the appellant and his sister had lovingly offered Rs.20, because of which he had a fight with his brother Jaleshwar. Apart from this, the appellant had destroyed the vegetables etc. and cow dung cakes in his yard, in connection with which the case was going on in the court. In crossexamination, he stated that his brother Jaleshwar had entered into a settlement with the appellant.

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Accordingly, considering the cause of the incident, it is notable that immediately after the incident, the information given to the police, in Dehati Nalisi (Ex.-P/1) and Merg Intimation (Ex.-P/2) they has been mentioned that they had previous enmity with the appellant and therefore they have doubt about the appellant. Dhaneshwari Nirmalkar (PW-2) has not stated that the appellant revealed name of anyone at the time of saying about killing near the temple. All three witnesses are close relatives of the deceased and are his relatives. None of the independent witnesses have corroborated the fact that they had prior enmity

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with the appellant. Anger is like a double-edged sword which can be used on both sides. If there is enmity, then due to that the incident can be executed by the accused and due to enmity it is also possible that the complainant party has tried to implicate the appellant in the matter. In this way, when it has come in the statement of the relatives of the witnesses that the incident of assault by the appellant was 3-4 years prior to the incident of this murder, then it is natural and not reliable for the crime of this murder to have acted as a cause of enmity.

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Now considering the second ground of the prosecution, it has been cited as circumstantial evidence in which, under section 27 of the Indian Evidence Act, under the memorandum statement of the appellant, the seizure of an axe was made from Amha Talab and the seizure of clothes worn by the appellant at the time of the incident was made from Bandhwa Talab, etc. According to the report (Ex.-P/19) given by Dr. Saurabh Yadav, (PW-8), after examining the said seized axe, the wounds found on the deceased could have come from that axe. Dr. Saurabh Yadav has asked to submit a report (Ex.-P/17) stating that other articles should also be presented for testing, according to which he has asked to re-seal the axe as well as other seized clothes for chemical testing and hand over to the constable.

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The investigation report of the Regional Forensic Science Laboratory, Bilaspur is attached on record which is admissible in evidence under Section 293 of the Code of Criminal Procedure. According to that investigation report, no blood stain has been found in the plain soil of the spot whereas blood stain has been found on the scarf (xkeNk), underwear, towel and bag of the appellant recovered from the spot. Human blood has been found in the vest and blood-stained soil seized from the spot. Human blood has been found in the underwear of the deceased Khikhram. On being told by the appellant Lachhram alias Chhote Lal Sahu, human blood was also found in the allegedly seized axe and T-shirt. There is no test report as to which group the articles in which human blood was found belonged to and their blood group could not be ascertained as per the test report.

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To show the appellant's involvement in the incident, the axe and clothes have been seized from the Amha and Bandhwa ponds of the village. In this matter, Mrs. Chitrarekha (PW-1), Dhaneshwari Nirmalkar (PW-2), Satish Kumar Ratre (PW-4), Dinesh Kumar Nirmalkar (PW-7 ), Manoj Kumar Gaurah (PW-9 ) and Constable Rajkumar Lahare (PW-11) were given their opinion and it has been admitted in the statement that both the ponds are widely used by the whole villagers, so it can be said that the ponds are not such a place which has been in the knowledge of only one person.

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Sub-Inspector, Rajkumar Lahare (PW-11) has said in his court statement that he took the appellant in custody and interrogated him in the presence of witnesses near the Panchayat Bhawan, then the appellant told that the axe was thrown into the deep water of Amha Talab and after the incident, the worn clothes, shoes, blankets put in a bag and has thrown them into the water of Bandhwa pond. After that a total of 10 people present on the other side of Amha Talab were prepared to find the axe and bag, memorandum Ex.-P/7 was written, seizure Panchnama Ex.-P/8 was prepared, then an iron axe was taken out from Amha Talab at the place mentioned by the appellant and seized and Ex.-P/9 was prepared. On the basis of the statement of the appellant, a full sleeve T-shirt, underwear, a scarf (xeNk), a pair of shoes and a brick were seized and prepared Ex.-P/10 after being recovered from the Bandhwa pond. In cross-examination, he has accepted that he has not done any identification process of seized clothes, shoes etc. The statement of Pawan Kumar Patel (PW-6) that any axe could have been recovered from the place where Khikhram was found dead. He has accepted that no specimen seal is shown in the seizure. He has also accepted that there is no mention of confiscation of articles from the hands of the accused in seizure Ex.-P/9 and Ex.-P/10.

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Memorandum statement of appellant Ex.-P/7, search panchnama Ex.-P/8, Seizure Ex.-P/9 and Ex.-P/10 and witnesses Satish Kumar Ratre (PW-4) and Manoj Kumar Gaurha (PW-9) have spoken about the memorandum and seizure

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proceedings in their statement. In this matter, it has been argued by the appellant that the above memorandum and seizure have not been duly certified. The defence has argued that for the purpose of Section 27 of the Indian Evidence Act, an object must be discovered solely on the knowledge of the accused and that object must be directly related to the crime, only then the involvement of the accused can be established. In this case, neither the object has been seized in hidden circumstances on the knowledge of the sole appellant nor has the direct relation of the seized objects with the crime or the appellant been established. It has not been established by identifying the seized clothes and slippers that they belong to the appellant. It has not been established that the axe was seized at the instance of the sole appellant and the axe was kept in a safe condition in the police station. No articles-register of the police station is available in this regard. The axe has not even been produced in the court during the evidence and it was presented for medical examination on 27/07/2019, about a month after the incident. There is no evidence to show that the articles were kept in safe custody during this one month. It has also not been established from the laboratory test report that even if human blood was found in the axe, it belonged to the blood group of the deceased. The finding of human blood in the axe is also suspicious as the recovery of the axe has been reported from the mud of the alleged pond. It is not natural for blood to remain on the axe after the incident in such deep water. Thus the whole case of the prosecution is doubtful and unbelievable.

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Referring to the provisions of Section 27 Indian Evidence Act in support of its argument, counsel for the appellant has referred to the judgment passed by the Hon’ble Supreme Court in the matter of Ramanand alias Nandlal Bharti v. State of Uttar Pradesh , reported in AIR 2022 SCC 5273 . Section 27 of the Indian Evidence Act has been mentioned by the Hon'ble Supreme Court in the aforesaid case in paras 52 and 53, it has been explained that on the basis of the memorandum statement, how the seizure proceedings should be certified which is as follows is:-

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52. Section 27 of the Evidece Act, 1872 thus:

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“27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

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53. “If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.”

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In the light of the above concept of the Hon'ble Supreme Court, if we look at the statement of sub-inspector Rajkumar Lahere (interviewer) (PW-11), then it becomes clear that the appellant himself was not brought down to Amha Talab or

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Bandhwa Talab to find axe or clothes. According to the statement of sub-inspector, Rajkumar Lehre, 10-12 people were brought down in the pond to search for articles. This is confirmed by the memorandum and the statements of Satish Kumar Ratre ( PW-4) and Manoj Kumar Gaurha (PW-9) as witnesses of the seizure. According to the statements of these witnesses, the alleged axe was found in Amha Pond at the time of the search by Pawan Kumar Patel (PW-6). According to the statement given by Pawan Kumar Patel, the iron part of the axe was buried in the mud and the wood was on the upper side. In such a situation, when the iron part of the axe was buried in the mud, then it becomes completely suspicious if any blood was found in it. That's why doubt arises in the articles sent to the doctor and the laboratory for examination, seized from the pond.

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Pawan Kumar Patel (PW-6) has also said that when the police came and inquired after getting the information about the incident, then there was an axe lying in the house of the complainant at the place of the incident i.e. where Khikhram was killed, which the policemen took away. No information has been given by the prosecution regarding the whereabouts of the seized axe which the policemen took away from the crime scene. At this stage, the contention of the appellant side cannot be denied that according to the Chitrarekha (PW-1), the axe which her husband Khikhram kept with him during sleep, was taken away by the policemen from the spot of the incident and later shown as seizure of the same. Kashiram (PW-5), brother of deceased Khikhram, has also said that the policemen were continuously coming to the village and there was a controversy in the village that articles were found in Bandhwa and Amha ponds, which included clothes, and axe. Therefore, the seizure at the instance of the appellant is doubtful.

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In the light of the above said judgment relied upon by the appellant, if we look at the memorandum and the statement of the seizure witnesses, Satish Kumar Ratre (PW-4) has said about the memorandum that the appellant had asked to throw the axe in the Amha pond and Pawan was found it when 7-8

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people went down to find it into the pond. This witness states in cross-examination that when he asked the appellant about the incident individually, he did not say anything. He also said that the policemen were continuously coming to the village and covered the face of the accused with a cloth. Regarding the seizure of clothes etc., this witness says that the policemen had taken him and others to Bandhwa Talab, where a T-shirt, underwear, a pair of shoes, a scarf (xeNk) and a brick were recovered in a bag from the place mentioned by the accused. He has not made a clear statement in his main examination that earlier in front of him the accused had told the police about keeping the articles in Bandhwa Talab and then the policemen took them to Bandhwa Talab. Thus the statement of this witness is not according to the law laid down by the Hon’ble Supreme Court in the subject matter.

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The second witness of the memorandum and seizure is Manoj Kumar Gaurha (PW-9). He has said in his court statement that the appellant had told the police to throw the axe in the Amha pond in front of him and throw the clothes and shoes worn at the time of the incident with bricks in the Bandhwa pond and get them recovered. After that, first went to the Amha pond where the accused had thrown the axe. At that place, some boys went down to the pond and Pawan Patel found the axe which was seized by the police. Then went to the Bandhwa pond with the accused, there also some boys were brought down into the pond and T- shirts, scarf (xeNk), underwear and bricks were found in the bag. In crossexamination, this witness stated that most of the boys who belonged to the Nirmalkar caste were brought down to search into the pond. He has also said that the type of axe he got is said to be found in the villages, usually with the farmers and labourers.

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In the case of circumstantial evidence, the Hon'ble Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra , reported in (1984) 4 SCC 116 , the concept has been expressed according to which such a

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chain of circumstances must be completed which only leads to the conclusion of the guilt of the appellant, only then his conviction can be done. The main links mentioned in the case of the said judgment are as follows:-

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“The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence:-

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(1) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established,

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(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.

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(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.”

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If considered in the light of the precedent, it is concluded from the evidence presented that the manner in which the family members of the deceased have told the reason for committing the murder by the accused by citing the fight 3-4 years prior to the incident, as the basis of enmity. The reason is not just before the incident but much earlier. The reason is like a double-edged sword on the sole basis of which conviction cannot be made, therefore, the basis of the reason stated has not been sufficient for the conviction of the appellant.

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So far as the question of circumstantial evidence is concerned, it is notable in this regard that the fact has come in the prosecution evidence that where the dead body of Khikhram was found, an axe was also found. As per Chitarekha (PW-1) wife of Khikhram, Khikhram used to keep axe with him while sleeping to threaten dogs etc. According to Pawan Kumar Patel (PW-6) the axe was taken away by the policemen from the spot. The whole prosecution case is silent about what the policemen did with the axe. Therefore, the seizure of axe at the instance of the appellant is suspicious.

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In the prosecution case, on the basis of the memorandum statement of the appellant, the seizure of the axe and clothes is being reported as seizure from the pond which was used by the common people of the village. That common pond is not a place which is known only to the appellant. The accused himself has not been brought down into the pond to search for the axe or his clothes etc. For this reason, when the seizure of the article is being made from the open place, then according to the intention of the provision of Section 27 of the Indian Evidence Act and according to the light of the presented case, it is not found to be duly certified that it is the seizure of clothes, slippers etc. at the instance of the sole appellant. Therefore, the basis taken from the memorandum statement under Section 27 of the Indian Evidence Act is not found to be proved beyond reasonable doubt.

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According to the forensic laboratory report, human blood has been found on the said axe, but whether that human blood belonged to the same blood group as the deceased could not be established by the prosecution. The murder of Khikhram is not directly related to that alleged axe and the links are not completed. Pawan Kumar Patel (PW-6) said that the alleged axe was recovered from the mud of the pond. It is not natural and reliable to find human blood in an axe whose iron part is covered with mud. Pawan himself has said that the axe taken by the police from the spot i.e. near the dead body of Khikhram makes the whole case of the prosecution doubtful. For this reason, according to the concept expressed by the Hon'ble Supreme Court in the judgment Sharad Birdhichand Sarda (Supra), chain of circumstantial evidence are not completed on the basis of which it can be assumed that the appellant alone has killed Khikhram.

¶102

On the basis of the above discussion, this Court finds that the prosecution has failed to establish beyond reasonable doubt the circumstantial evidence as stated in the case of the prosecution. The trial

¶103

¶104

court has committed grave error in the interpretation of the evidence. The benefit of the doubt should have been given to the appellant which has not been given by the trial court. Therefore, the conviction and sentence in question are not found to be sustainable.

¶105

Accordingly, in view of the above discussion and the law laid down by the Hon’ble Supreme Court in the subject matter, the appeal is allowed. The conviction and sentence imposed upon the appellant under Sections 302 & 201 of the IPC are hereby set aside and he is acquitted of the said charges levelled against him. The appellant- Lachhram @ Chhote Lal Sahu shall be released forthwith, if not required in any other case.

¶106

Sd/Sd/- (Goutam Bhaduri) (Sanjay Kumar Jaiswal) Judge Judge

¶107

H.L. Sahu

Lachhram @ Chhote Lal Sahu v. State of Chhattisgarh

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Lachhram @ Chhote Lal Sahu v. State of Chhattisgarh

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