Rohit Kenwat Vs State Of Chhattisgarh

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2025:CGHC:16896-DB

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SHYNA AJAY

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Digitally signed by SHYNA AJAY Date: 2025.04.16 16:56:05 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1112 of 2015

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Rohit Kenwat S/o Teeju Kenwat, Aged About 49 Years, R/o Kisna, Post Faratfoard, Police Station Devri, District Balod, At Present Resident Of Near Sargipal Dipo, Police Station Bodhghat, Civil And Revenue District Baster, Chhattisgarh

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... Appellant(s)

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versus

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State Of Chhattisgarh Through Police Station Bodhghat, Jagdalpur, District Baster, Chhattisgarh

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... Respondent(s)

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For Appellant : Mr. Amit Kumar Sahu, Advocate For Respondent/ : Mr. Arvind Kumar Dubey, Government State Advocate

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DIVISION BENCH

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Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ.

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Judgment on Board 11/04/2025

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Sanjay K. Agrawal, J.

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This Criminal Appeal preferred by the accused/appellant under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and sentence dated 11.8.2015 passed by the Special Judge, {Atrocities}, Jagdalpur, Chhattisgarh in Special Case No.19/2015, by which, the appellant has been convicted and sentenced as under :-

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Conviction		Sentence
Under Section 302 read with	Life imp	risonment and to pay a
Section 34 of the IPC	fine of	Rs.200/-, in default of
	paymen	t of fine amount, to
	further months.	undergo RI for 2
Under Section 201 read with	RI for 3	years and to pay a fine
Section 34 of the IPC	of Rs.	100/-, in default of
	paymen	t of fine amount, to
	further month	undergo RI for one

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Since co-accused – Sahadai (appellant) has died, Criminal Appeal No.1052/2015 preferred by her, arising out of the impugned judgment, has been disposed off as abated by a

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separate order dated 11.4.2025 passed by this Court in the said Criminal Appeal.

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Case of the prosecution, in brief, is that in the intervening night of 7^th /8^th December, 2014, co-accused – Sahadei and appellant – Rohit Kenwat, in furtherance of a common intention, strangulated deceased Mahadei and thereby, committed the offence. Merg Intimation (Ex.P./1) was lodged by Narsingh Baghel (PW-2) stating that his mother Mahadei and appellant (co-accused) – Sahadei, both were doing hotel business. His mother used to stay in the hotel. On 8.12.2014, the dead body of his mother was found in the chicken shop adjacent to the hotel. Thereafter, inquest report (Ex.-P/6) was prepared and the FIR (Ex.-P/1) was registered against unknown persons. The dead body of the deceased was sent for postmortem examination which was conducted by Dr. Sanjay Basak (PW-15), who gave his report (Ex.P/21) opining that the cause of death is asphyxia due to strangulation. A mobile phone was seized from the appellant vide Ex.P/11 and call details were obtained vide Ex.P/24.

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In order to bring home the charges, the prosecution examined as many as 20 witnesses and exhibited 24 documents. In support of his defence, the appellant has not examined any defence witness.

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Statements of witnesses were recorded under Section 161 of the CrPC. Thereafter, after usual investigation, the appellant was charge-sheeted before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the learned Special Judge received the case on transfer for hearing and disposal in accordance with law.

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The concerned Court after appreciating the oral and documentary evidence available on record convicted and sentenced the appellant as mentioned above against which this appeal has been preferred by the appellant.

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Learned counsel for the appellant submits that the trial Court is absolutely unjustified in convicting the appellant for the offence under Sections 302/34 and 201/34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that it is a case of no evidence. He further submits that the trial Court has erred in relying upon the call details-Ex.P/24 and in convicting the appellant for the aforesaid offence and as such, he is entitled for acquittal.

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Per contra, learned State Counsel would support the impugned judgment of conviction and submit that the prosecution has been able to bring home the charges beyond reasonable doubt and the trial Court has rightly convicted the

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appellant for the aforesaid offence. The appellant is not entitled for acquittal and the Appeal deserves to be dismissed.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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The first question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative relying on the Postmortem Report (Ex.-P/21), which is proved by Dr. Sanjay Basak (PW-15), wherein, it was opined that the death was homicidal in nature, and we do not find any illegality in the said finding, as the same is neither perverse nor contrary to the record and the said finding is hereby affirmed.

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Now, the next question for consideration would be whether the appellant is the author of the crime in question?

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Case of the prosecution is not based on direct evidence and it is based 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

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6

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Sharad Birdhichand Sarda v. State of Maharashtra 1 in

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paragraph 153 which state as under:-

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“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 :

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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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 Maharashtra² where the following observations were made:

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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.

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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

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1 (1984) 4 SCC 116

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2 (1973) 2 SCC 793

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human probability the act must have been done by the accused.”

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In the present case, the trial Court has found the following incriminating circumstances established in para 36 of the

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impugned judgment, which read thus :-

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^^01vkjksfi;k lgknsbZ ,oa e`frdk HkkX; fu.kkZ;d jkf= dks gksVy esa gksVy dk njoktk vanj ls can djds nksuksa lks;s FksA

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02HkkX; fu.kkZ;d jkf= 11%00 cts vafre ckj ,d lkFk mUgsa ns[kk x;k FkkA

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03vxys fnol izkr% 5%30 cts] e`frdk dk 'ko gksVy ds layXu ewxkZ nwdku@>ksiM+h esa iM+k ik;k x;kA

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04gksVy dk eq[; njoktk uk gh VqVk gqvk vkSj uk gh ckgj ls [kksyk gqvk crk;k x;k gSA

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05efrdk ds 'ko ijh{k.k esa efrdk dh e`R;q mlds xys esa iguh xqFkh gqbZ Mksjh ls mldk xyk ?kksVdj gR;k fd;k tkuk ik;k x;kA

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06vkjksfi;k ,oa e`frdk ds e/; gksVy dh vk; ds fgLls ds lac/k esa fookn FkkA

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06lgvkjksih jksfgr dsaoV dk feF;k vU;= mifLFkfr dk vfHkokd~ fy;k tkuk lfgr vkjksihx.k dk lafnX/k ,oa vLokHkkfod vkpj.kA^^

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We shall consider the aforesaid incriminating circumstances found proved by the trial Court one by one to find out whether the learned trial Court is justified in convicting the appellant for the offence under Sections 302/34 and 201/34 of the IPC.

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So far as the incriminating circumstances Nos.1 to 6 are concerned, it is admitted position that those circumstances were found proved only against co-accused Sahadei Bai, who is now dead and Criminal Appeal No.1052/2015 filed by her has already been disposed off having been abated on account of her death. Therefore, this Court would refrain itself from discussing the role attributed to the said appellant.

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Now, the only circumstance in respect of present appellantRohit Kenwat remains to be discussed. It is pertinent to mention here that the trial Court while numbering the incriminating circumstances, inadvertently, has numbered the last circumstance as circumstance No.6, whereas, it should have been circumstance No.7.

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As regard the last circumstance, the appellant has taken a plea of alibi that he was not present in the hotel, which was being managed and run by Self Help Group of Village Sargipal, Police Station Bodhghat, Bastar at the time of the incident and had gone to Raikot. He has stated that he was using the mobile bearing No.9981007548. The only incriminating circumstance against the appellant is that he has taken a false plea that he was not present in the Village at the time of the incident and based on which, he has been convicted.

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It is not the case of the prosecution that the appellant was last seen together along with the main accused - Sahadei and the deceased. The only allegation against him is that he was present in the village at the time of the incident. However, neither any direct or indirect evidence nor any circumstantial evidence has been brought on record to prove that the appellant has helped accused- Sahadei in strangulating the deceased. Even the theory of last seen together with accused -Sahadei and the deceased has not been found proved by the trial Court.

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Though on the basis of call details-Ex.P/24, it has been proved that the appellant was using mobile phone 9981007548, but there is no document on record to show that the said number was owned, possessed or used by the appellant on the date of the offence. Even otherwise, no mandatory certificate under Section 65B of the Evidence Act has been filed by the prosecution to support the call details Ex.P-24, which was condition precedent in view of the decision of the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal3 . in which their Lordships resolving the dispute and the conflict raised in the matters of Shafhi Mohammad v. State of Himachal Pradesh⁴ and

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3 (2021) 7 SCC 1

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4 (2018) 2 SCC 801

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Anvar P.V. Versus P.K. Basheer⁵ have clearly held that production of certificate under Section 65B of the Evidence Act is mandatory only in case of secondary evidence where primary evidence is not laid or original is not produced. Their Lordships further held that the certificate required under Section 65B(4) of the Evidence Act is a condition precedent to the admissibility of secondary evidence by way of electronic evidence as laid down in Anvar P.V. (supra) and incorrectly clarified in Shafhi Mohammad (supra). It was held as under:

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“ 61 . We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor6 , which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65- B(4) otiose.”

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Their Lordships also held that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced and this can be done by the owner of a laptop computer, computer tablet or

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5 (2014) 10 SCC 473

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even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and / or operated by him. The reference was answered in paragraphs 73.1., 73.2. and 73.3. as under: -

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“ 73.1 . Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno7, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad (supra) and the judgment dated 3-4-2018 reported as Shafhi Mohd. v. State of H.P.8, do not lay down the law correctly and are therefore overruled.

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73.2 . The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). The last sentence in para 24 in Anvar P.V. (supra) which reads as “… if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act …” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act, …”. With this clarification, the law stated in para 24 of Anvar P.V. (supra) does not need to be revisited.

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73.3 . The general directions issued in para 64 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67-C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.”

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Reverting back to the facts of the present case, in light of the

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principles laid down in the above-stated judgment, it is quite

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vivid that the call details (Ex.P/24) is inadmissible in evidence and cannot be relied upon to hold the appellant guilty.

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As regards the conduct of the appellant, in the matter of Subramanya V. State of Karnataka⁶ , the Supreme Court has clearly held that subsequent conduct of the accused may be relevant fact under Section 8 of the Evidence Act, but it cannot form basis for conviction that too for offence of murder and observed in para 95 as under :-

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“ 95 .In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.”

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In view of the aforesaid discussion, we are of the considered opinion that the prosecution has not been able to prove by cogent and clinching evidence that the appellant along with main accused- Sahadei, in furtherance of common intention, strangulated the deceased. Furthermore, the call details-

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6 2022 SCC OnLine SC 1400

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Ex.P/24 is inadmissible in evidence in the absence of certificate under Section 65B of the Evidence Act, which was absolutely mandatory in view of the decision of the Supreme Court in Arjun Panditrao Khotkar (supra) . Lastly, only on the basis of the subsequent conduct of the accused, the appellant cannot be convicted under Sections 302/34 and 201/34 of the IPC in light of the judgment of the Supreme Court in the matter of Subramanya (supra). Thus, the appellant is entitled for acquittal by extending benefit of doubt.

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In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant - Rohit Kenwat under Sections 302/34 & 201/34 of the IPC are set aside and he is acquitted of the said charges. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months in view of the provisions contained under Section 437-A of the CrPC.

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Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith.

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Sd/Sd/( Sanjay K. Agrawal ) ( Deepak Kumar Tiwari ) Judge Judge

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Shyna

Rohit Kenwat v. State Of Chhattisgarh

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Rohit Kenwat v. State Of Chhattisgarh

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