Nandu Ram Sahu Vs State of Chhattisgarh

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2025:CGHC:317-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 138 of 2021

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1 - Nandu Ram Sahu Ram Sahu S/o Shriram Sahu Aged About 26 Years R/o Village Kenapara, (Telaikachar) (Telaikchhara), Police Station Jainagar , District Surajpur Chhattisgarh., District : Surajpur, Chhattisgarh

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--- appellant

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versus

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1 - State Of Chhattisgarh Through Station House Officer, Police Station Jainagar, District Surajpur Chhattisgarh., District : Surajpur, Chhattisgarh

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--- Respondent For Petitioner(s) : Mr. Manish Nigam, Advocate For Respondent(s) : Mr. Hari Om Rai, P.L.

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CRA No. 181 of 2021

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1 - Ku. Devan Rajwade @ Rani Rajwade @ Rani, D/o Sumet Rajwade, Aged About 23 Years R/o - Village - Telaikachhar, Police Station - Jainagar, District - Surajpur, Chhattisgarh., District : Surajpur, Chhattisgarh

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--- appellant

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Versus

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1 - State Of Chhattisgarh, Through - Police Station - Jainagar, District – Surajpur, Chhattisgarh., District : Surajpur, Chhattisgarh

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--- Respondent

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For Petitioner(s) : Mr. Pawan Shrivastava, Advocate For Respondent(s) : Mr. Hari Om Rai, P.L.

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Division Bench:

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Ravindra Kumar Agrawal, Judge Order on Board

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Per Ravindra Kumar Agrawal, Judge

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03.01.2025

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1. Both these appeals are arising out of the same crime number and the common judgment, therefore, both these appeals are being heard and decided together.

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2. Both these appeals have been filed by the respective appellants against the impugned judgment of conviction and sentence dated 06/01/2021 passed by learned Additional Sessions Judge (FTC) Surajpur in Sessions Case no. 19/2019 whereby the appellants have been convicted and sentenced in the following manner:-

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For the appellant Nandu Ram Sahu

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S.No.	Conviction	Sentence
1.	U/s 302 read with 34 of IPC	R.I. for life and fine of Rs. 500/-, in default of payment of fine further R.I. for 6 months
2	U/s 201 read with 34 of IPC	R.I. for 7 years and fine of Rs. 300/-, in default of payment of fine further R.I. for 2 months
3	U/s 201/34 of IPC	R.I. for life and fine of Rs. 500/-, in default of payment of fine further R.I. for 6 months All the sentences shall run concurrently.

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For the appellant Devan Rajwade @ Rani Rajwade @ Rani

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S.No.	Conviction	Sentence
1.	U/s 120-B of IPC	R.I. for life and fine of Rs. 500/-, in default of payment of fine further R.I. for 6 months
2.	U/s 302/34 of IPC	R.I. for life and fine of Rs. 500/-, in default of payment of fine further R.I. for 6 months
3.	U/s 201/34 of IPC	R.I. for 7 years and fine of Rs. 300/-, in default of payment of fine further R.I. for 2 months All the sentences shall run concurrently.

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3. The brief facts of the case are that on 25/11/2018, a dead body was seen near Kenapar railway bridge KM 1027/6-7 for which a written intimation Ex-P/1 was given by the Chief Station Manager, SEC Railway, Vishrampur to the SHO, Police Station Jainagar, DistSurajpur on 25/11/2018 itself. Based on the written intimation, the merg intimation (Ex-P/2) was recorded by the Police and after calling of the witness inquest (Ex-P/4) was prepared. During the inquest certain injuries have been noticed on the dead body and to know the exact caused of death, the dead body was sent for its post mortem to community health centre, Vishrampur where PW-13 Dr. Shashikant has conducted the post mortem of the dead body. Certain injuries have been found on the dead body and after its post mortem, the doctor has opined that the casue of death is cardio respiratory failure due to excessive bleeding with hemorrhagic shock which could be due to multiple head injury including fracture and nature of death is homicidal and the post mortem report is Ex-P/20. After receiving the post mortem report, the FIR (Ex-P/25) has been registered for the offence under Section 302 of IPC against unknown persons. The dead

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body of the deceased was identified on 27/11/2018 by Umesh Shah (PW/8) who is the brother of the deceased, on the basis of the photograph, the cloths, shoes and locket of the deceased and the dead body identification memo (Ex-P/8) was prepared.

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During the investigation, the family members of the deceased informed the Police about the mobile number of the deceased then the Police has obtained the call detail record of the mobile number of the deceased and traced out the suspected mobile number 6264361148 and obtained the CAF of the said mobile number and then taken into custody the suspected accused Devan Rajwade @ Rani on 09/12/2018. Her memorandum statement (Ex-P/12) was recorded in which she disclosed the entire incident and involvement of the coaccused Nandu Ram Sahu in the offence. On the basis of the memorandum statement of the accused Devan Rajwade @ Rani, one mobile phone having sim number 6264361148 and one jeans pant having blood like stain have been seized from her vide seizure memo (Ex-P/14). One steel service spoon has also been seized from the accused Devan Rajwade @ Rani vide seizure memo (Ex-P/15). Since the name of co-accused Nandu Ram Sahu appears in the memorandum statement of the accused Devan Rajwade @ Rani, the co-accused Nandu Ram Sahu was also taken into custody on 09/12/2018 and his memorandum statement Ex-P/13 was also recorded and on the basis of his memorandum statement one axe, one mobile having sim no. 8839648316, one lower having blood like stain and ash of burnt mobile/ purse/ jute bag and remains of mobile, one motor cycle and one spade have been seized vide seizure memo

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Ex-P/16 from his house. During the investigation, blood stain and plan soil have been seized from the spot vide seizure memo (Ex-P/17).

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The CDR in electronic form of CD have been seized vide seizure memo Ex-P/18. The jacket and cap of the deceased and half banyan of the deceased has been seized from Umesh Shah (brother of the deceased) on 12/12/2018 vide seizure memo (Ex-P/10). Spot Map (Ex-P/5 and P/11) was prepared by the Police and P/20-A was prepared by the Patwari. The axe, service spoon and spade seized from the accused persons, were sent for query report to the doctor who submitted his query report (Ex-P/21) and opined that the injuries found on the dead body could have been caused by said axe and death could be possible by the injuries caused by axe. He also opined that blood like stain on axe appears to be the human blood.

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The accused persons were arrested on 09/12/2018, the seized articles were sent for its chemical examination to FSL, Ambikapur from where report (Ex-P/36) was received and according to the FSL report the human blood was found in the axe (Article-A), spade (Article-B) and Jacket of the appellant Nandu Ram Sahu (Article-C/2), service spoon seized from the appellant Devan Rajwade @ Rani. Baniyan, jacket of the deceased (Article F/1 & F/2) and blood stain soil, however, no blood was found on the lower of the appellant Nandu Ram Sahu (Article-C/1), jeans pant and top of the appellant (ArticleE/1 & E/2) of appellant Devan Rajwade @ Rani and plain soil (ArticleH). Further in the axe, spade, jacket of the appellant Nandu Ram Sahu and blood stain soil, “O” group of blood was found. During the investigation the customer application form of mobile number 6264361148 has been obtained from the concerned service provider

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reliance jio infotech ltd. which is Ex-P/38 and the said mobile number is registered in the name of the appellant Devan Kumari. The certificate under Section 65-B of the Evidence Act, 1872 (Ex-P/37) has also been obtained from reliance jio infocom ltd. The call details of Article-A/1 of mobile number 6264361148 have also been obtained. The statement under Section 161 Cr.P.C. of the witnesses have been recorded and after completion of usual investigation, charge-sheet has been filed against the appellants for the offence under Section 302, 201 and 120-B, 34 of IPC before the learned Judicial Magistrate, First Class, Surajpur.

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4. The case was committed to the Court of learned Sessions Judge, Surajpur from where the same was transferred to the learned trial Court for its trial. The learned trial Court has framed charge against the appellant Nandu Ram Sahu for the offence under Section 302, 201 and 120-B of IPC whereas charge against appellant Devan Rajwade @ Rani has been framed under Section 302 read with Section 34, 201 and 120-B of IPC. The accused persons denied the charge and claimed trial.

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5. In order to prove the charge against the appellants, the prosecution has examined as many as 23 witnesses. Statement of the accused persons under Section 313 of Cr.P.C. have also been recorded in which they denied the circumstances appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellants as mentioned in earlier part of this judgment hence this appeal.

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6. Mr. Pawan Shrivastava, learned counsel for the appellant Devan Rajwade @ Rani (CRA No. 181/2021) would submit that the prosecution has failed to prove its case beyond reasonable doubt against the appellant Devan Rajwade @ Rani . There is no cogent and clinching evidence against her to connect her in the offence in question. Except from the memorandum statement, no other evidence produced by the prosecution to convict her in the alleged offence. The present appellant Devan Rajwade @ Rani is connected through the mobile call detail whereas the mobile call detail is not sufficient to prove the conversation between the appellant and the deceased and what conversation they have made, have also not been proved. He would further submit that the case of the prosecution based on circumstantial evidence and the chain of circumstances has not been proved in accordance with law and there are so many missing link in the chain. The prosecution has also failed to prove the motive to commit the murder of the deceased and there is no evidence with respect to meeting of mind for hatching conspiracy with the coaccused Nandu Ram Sahu. The quality of evidence produced by the prosecution is not sufficient to hold the appellant guilty in the capital offence and in absence of any sufficient evidence, she cannot be convicted and therefore, her appeal is liable to be allowed and she may be acquitted.

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7. Mr. Manish Nigam, learned counsel for the appellant Nandu Ram Sahu (CRA No. 138/2021) would submit that there is no motive with the present appellant Nandu Ram Sahu to commit murder of the deceased as he is not having any relation with him. There is no evidence that he even having any telephonic conversation with the

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deceased at the relevant point of time or having any animosity with him which could give reason to commit his murder. Only on the basis of the memorandum statement of co-accused Devan Rajwade @ Rani, he has been implicated in the offence and certain seizures of axe, spade and other articles are said to have been made from him. However, the alleged seizure could not be connected with the offence in question in absence of any blood group of the deceased with that of the blood found on the weapons. There is no evidence that prior to the incident, he was seen with the company of the deceased or the coaccused. Even from the call detail also there is no involvement of the appellant Nandu Ram Sahu and it is a very weak type of evidence. The prosecution has tried to prove the motive against the present appellant that he is having relation with the co-accused Devan Rajwade @ Rani who earlier having affair with the deceased and to eliminate the deceased, they conspired and committed his murder. But there is no evidence that the appellant Nandu Ram Sahu was having relation with the co-accused Devan Rajwade @ Rani or he conspired with her to commit murder of the deceased. The chain of circumstances is not completed and there are number of infirmities and deficiencies in the evidence of prosecution witnesses. Even the memorandum and alleged seizure has not been proved by the prosecution in accordance with law. Therefore, in absence of any sufficient evidence against him, he cannot be convicted and his conviction is liable to be set aside.

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8. On the other hand, learned counsel for the State opposed the submissions made by learned counsel for the respective appellants and has submitted that the prosecution has proved its case beyond

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reasonable doubt. From the call detail records of the mobile of the appellant Devan Rajwade @ Rani, it appears that on the date of incident, she made various calls to the deceased and on being suspicion she was taken into custody and her memorandum statement was recorded in which she disclosed the manner of entire incident and involvement of the co-accused Nandu Ram Sahu. On the basis of the memorandum statement of the accused persons, the incriminating articles including weapon of murder has been seized. From the axe and jacket of the appellant Nandu Ram Sahu as well as on the blood stain soil found on the spot, “O” group of human blood was found in the FSL report which clearly connects the appellant Nandu Ram Sahu with the offence in question. The mobile call details, memorandum statement, seizure of incriminating articles, human blood found on the articles and the relationship between Nandu Ram Sahu and Devan Rajwade @ Rani are sufficient to hold the fact of conspiracy between them and in furtherance of their conspiracy, they committed murder of the deceased and thrown the dead body near railway track. They tried to conceal the evidence that the deceased was infact not murdered but showing that he fell down from the railway over bridge. He would also submit that after considering the entire evidence available on record which corroborates the scientific evidence of FSL report as well as call detail report, the learned trial Court has rightly convicted the appellants for the alleged offence and there is ample evidence against them to uphold their conviction. Therefore, the appeal filed by the respective appellants are liable to be dismissed.

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9. We have heard learned counsel for the parties and perused the record with utmost circumspections.

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10. Since, the dead body of the deceased was found near the railway track having certain injuries on it, therefore, to determine the death of the deceased as to whether he died due to accidental death or homicidal death, the learned trial Court after considering the post mortem report and other circumstances hold that the death of the deceased is homicidal in nature. From the inquest (Ex-P/4), certain injuries have been noticed on the dead body of the deceased. From perusal of the spot map (Ex-P/5 and P/20-A) it appears that there is some distance in between the railway over bridge and the place where the dead body was lying near the railway track, thus, there is no possibility that the deceased died due to falling from the railway over bridge. Had he been fall from the railway over bridge, his dead body should be found just on the adjoining down of the railway over bridge. Further when the dead body was sent for its post mortem, the doctor has noticed abrasion on right hand in index finger and thumb, multiple abrasion of both rists, lower eyelid of right eye was blackny. Multiple abrasions found on forehead, bruise injury seen on back side of waist, abrasion was also found on waist, bleeding present from nasal and ear, crushed fracture was found on left leg and multiple fracutres were found on head bone, both eye damaged and crushed fracture of occipital temporal bone. The doctor has opined that the cause of death is cardio respiratory failure due to excessive bleeding and hemorrhagic shock which could be due to multiple head injuries including fracture and nature of death is homicidal. The post mortem report (Ex-P/20) was proved by Dr. Shashikant (Ex-P/13). Although, in cross-examination the doctor has admitted that the injuries found on the body of the deceased could have been caused by falling from the

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train but it is not the case of either the prosecution or the defence that while traveling in the train, the deceased fell down and has died. After considering the nature of evidence and the evidence of doctor who conducted the post mortem of the dead body, the learned trial Court has held that the death of the deceased was homicidal which cannot be found perverse or contrary to the facts and evidence available in the case and we are in agreement with the finding that the death of the deceased was homicidal.

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11. So far as, the involvement of the present appellants in the offence in question is concerned, the case of the prosecution based on the circumstantial evidence, the circumstances relied upon by the the prosecution are (1) the call detail records of the mobile phone of the appellant Devan Rajwade @ Rani (2) motive to commit murder of the deceased (3) memorandum and seizure of weapon of offence from the appellant Nandu Ram Sahu (4) in the FSL report, blood was found on the seized articles.

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12. There is no eyewitness in the present case. The case of the prosecution rests on the circumstantial evidence. The Hon’ble Supreme Court in case of Ravindra Singh Vs. State of Punjab, 2022 (7) SCC 581 has held in para 10 as under:-

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The conviction of A2 is based only upon circumstantial evidence. Hence, in order to sustain a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent. This court has consistently held in a long line of cases [See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa @ Krishnappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh @ Dalbir Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890)] that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be

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incompatible with the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

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10.1. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt.

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10.2. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed that:

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“21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”.

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13. In the matter of para Surendra Kumar and Another Vs. State of Uttar Pradesh, 2021 (20) SCC 430 , the Hon’ble supreme Court has held in 11 and 12 as under:-

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“11. As the case against the appellants is entirely based on circumstantial evidence, it is necessary to determine whether the available evidence lead only to the conclusion of guilt and exclude all contrary hypothesis. The enunciation on the law of circumstantial evidence stood the test of time since Hanumant Vs. State of Madhya Pradesh1 where Mahajan J., has written as under:-

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“10…………It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused……………”

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The nature, character and essential proof required in criminal cases was discussed in detail by Fazal Ali J in Sharad Birdhichand Sarda vs. State of Maharashtra2 and the proposition of law culled out on circumstantial evidence was approved in many subsequent judgments and was recently reiterated by Krishna Murari J., writing the opinion for a three Judges Bench in Shailendra 1 AIR 1952 SC 343 2 (1984) 4 SCC 116 Rajdev Pasvan & Ors. Vs. State of Gujarat & Ors. 3 where it was succinctly laid down as under:-

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“17. It is well settled by now that in a case based on circumstantial evidence the courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.”

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14. In the matter of Digambar Vaishnav and Another Vs. State of Chhattisgarh, 2019 (4) SCC 522 , the Hon’ble supreme Court has held :-

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“14.One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt.

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This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.

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In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:

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i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

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ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and

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iii.) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.

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In Varkey Joseph v. State of Kerala, 1993 Suppl (3) SCC 745, this Court has held that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt.

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In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under:

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"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large differ- ence between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence pro- duced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure con- clusions to be arrived at, on the touchstone of dis- passionate judicial scrutiny, based upon a com- plete and comprehensive appreciation of all fea- tures of the case, as well as the quality and credi- bility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so de- mand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely prob- able doubt, but a fair doubt that is based upon reason and common sense".

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15. The Supreme Court in case of Madhu Vs. State of Kerala, 2012 (2)

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SCC 399 has held in paragraph 5 as under:

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“5. The care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to the benefit of doubt.”

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16. In the matter of Nagendra Sah Vs. State of Bihar, 2021 (10) SCC 725 in paragraphs 17 and 18 relying upon the golden principles enumerated in case Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116, the Supreme Court has held as under:

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“17. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In the case of Sharad Birdhichand Sarda v. State of Maharashtra2, in paragraph 153, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Paragraph 153 reads thus : -

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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 & Anr. v. State of Maharashtra where the following observations were made:

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19…..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 human probability the act must have been done by the accused.” (emphasis added).

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Paragraphs 158 to 160 of the said decision are also relevant which read thus :

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“158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. State of Bihar, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:

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9…….But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, . . . such absence of explanation or false explanation would itself be an additional link which completes the chain."

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It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied :

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(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved,

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(2) the said circumstance points to the guilt of the accused with reasonable definiteness, and

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(3) the circumstance is in proximity to the time and situation.

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If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and

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circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal case where this Court observed thus:

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30……..Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to s ucceed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused." (emphasis added)”

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17. With respect to the admissibility of call detail report and its evidently value, the Hon’ble Supreme Court has considered the evidence of telephonic conversation made between 2 persons. In the case of Kiriti Pal Vs. State of West Bengal reported in (2015) 11 SCC 178, the Hon’ble Supreme Court has held in Para 30 and 33 as under.

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30. Apart from telephonic conversation, no other evidence was adduced by the prosecution to bring home that the first accused hatched a conspiracy. There is no evidence to prove as to how Appellants 2 and 3 (Siddique Mia and Mustaque Mia) had gone to the place of occurrence and what was their subsequent conduct. Their presence near the scene of occurrence could have been established by the prosecution either by examining some witnesses near and around the place of occurrence or by proving the location of the calls so as to establish the proximity of the accused with the scene of occurrence. Apart from the extract of the call records, no other evidence was adduced by the prosecution to establish the conspiracy.

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33. In a case based on circumstantial evidence, the court must adopt a very cautious approach and should record conviction only if all the links in the chain are complete pointing to the guilt of the ac cused. All the links forming complete chain must be firmly established by the prosecution. Each link taken separately may just suggest suspicion but such suspicion itself may not take the place of proof and not sufficient to convict the accused. All the circumstances must be firmly established and must he consistent only with the hypothesis of the guilt. But that is not to say that the prosecution must meet each and every hypothesis put forward by the accused however farfetched it may be. As dis cussed earlier, the telephonic calls and the recovery may raise suspicion against the accused but mere suspicion itself cannot take the place of proof. In our view, evidence adduced by the prosecution against Appellants 2 and 3 (Siddique Mia and Mustaque Mia) does not form a complete chain connecting the accused with the crime and the

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conviction of the appellants under Section 302 IPC read with Section 120-B IPC cannot be sustained and deserves to be set aside. Likewise, conviction of fourth appellant Durga Sutradhar under Section 120-B cannot be sustained and is liable to be set aside. Likewise, conviction of fourth appellant Durga Sutradhar under Section

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18. The telephonic conversation, if disproves, that the said conversation is between the accused persons, raised only suspicion and the suspicion, however, strong cannot take place the proved. The prosecution is required to prove each and every circumstances beyond reasonable doubt to complete the chain of circumstances to bring home the guilt of the accused persons. In the case of circumstantial evidence it is for the prosecution to establish all the links in the chain of circumstances is complete leading inescapability to only hypothesis of guilt of the accused leaving out any possibility of innocence. From the call detail report (Article-A) of the accused Devan Rajwade @ Rani, it only appears that she has a telephonic call but there is no evidence that she called in the mobile number of 8839648316 which was allegedly seized from the co-accused Nandu Ram Sahu. There is no evidence on record with respect to the mobile number of the deceased that he used to said mobile number on which the accused Devan Rajwade @ Rani had called on the date of incident. Even otherwise, the mobile call details only raised suspicion but in the facts of the present case, the mobile call are not sufficient to consider to be clinching evidence against the appellants or commission of offence.

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19. The next connecting link which the prosecution tried to prove in the case against the appellant is the motive to commit murder of the deceased, it is projected by the prosecution that the accused Devan

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Rajwade @ Rani is having relation with the deceased as well as the co-accused Nandu Ram Sahu and to eliminate him, the accused persons conspired together and committed murder of the deceased by accused Nandu Ram Sahu and thrown the dead body near railway track to show that he died by falling from the railway over bridge. There is no sufficient evidence on record produce by the prosecution with respect to the motive part of the evidence to commit murder of the deceased. Although, in the case of circumstantial evidence motive has an important role but in the present case, the link is missing to complete the chain of circumstantial evidence. The fact of motive only comes in the memorandum statements of the appellants (Ex-P/12) and (E-P/13) but the witnesses have not supported these two documents and their evidence are shaky.

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20. PW/3 Ghanshyam who is the one of the witness before whom the memorandum statement was recorded has stated in his evidence that the Police have not made any interrogation in his presence from accused Devan Rajwade @ Rani and Nandu Ram Sahu and no articles have been seized from them. The Police was already having an axe with them and have obtained his thumb impression over certain papers. He specifically denied from recording of any memorandum statement and seizure of any articles from the accused persons and he has put his thumb impression on the instance of the Police persons. The other witnesses of memorandum and seizure memo is PW/7 Vishambhar Lal, he stated in his evidence that after 5-7 days of the incident, the appellant Devan Rajwade @ Rani has given her memorandum statement (Ex-P/12) and disclosed that she has committed murder of the deceased. The Police has seized an axe from

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the appellant Devan Rajwade @ Rani vide seizure memo Ex-P/14 and Ex-P/15. The memorandum of appellant Nandu Ram Sahu has also been recorded and an axe has been seized from him also. His memorandum is Ex-P/15 and seizure memo is Ex-P/16. This witness after declaring him hostile has stated in his cross-examination by his prosecution that the accused Devan Rajwade @ Rani has disclosed that she cleaned the blood stain of his house through the service spoon and hide her cloths in which blood stain was there but he denied from seizure of cloths of the appellant Devan Rajwade @ Rani in his presence. He also denied the seizure of any service spoon from the appellant Devan Rajwade @ Rani or Nandu Ram Sahu. In his cross-examination, he stated that in his presence the Police has not asked anything from Nandu Ram Sahu and Devan Rajwade @ Rani, articles have been seized from the old house of Nandu Ram Sahu. His parents were also resided there. He also stated that at the time of seizure of articles from the house of Nandu Ram Sahu it was not sealed. He admitted that in his presence no articles have been seized and no panchanama has been prepared in his presence. The relevancy and evidencery value of disclosure statement made by the accused came for consideration before the Hon’ble Supreme Court in the case of Manoj Kumar Soni Vs. State of Madhya Pradesh reported in 2023 SCC Online SC 984 wherein the Hon’ble Supreme Court has observed in paragraphs 21 to 25 which reads as under:-

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The facts of the case reveal that all the accused persons made disclosure statements to the I.0. whereupon recovery of money, jewellery, etc. was effected. Although it is quite unusual that all five accused, after being arrested, would lead the 1.0. to the places for effecting recovery of the stolen articles, we do not propose to disbelieve the prosecution plea only on this score. Manoj's involvement was primarily based on the disclosure statements made

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by co-accused Suleman and Jaihind where they admitted to selling the stolen articles to him and a similar statement made by Manoj himself which led to recovery under Section 27, Evidence Act. Similarly, both the courts below, in convicting Kallu, largely relied upon the disclosure statement made by Kallu himself as well as co-accused Jaihind, who confessed to giving Rs. 3,000.00 to Kallu from the stolen money and storing a country-made pistol along with three cartridges at his house/tapra.

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A doubt looms can disclosure statements per se. unaccompanied by any supporting evidence, be deemed adequate to secure a conviction? We find it implausible. Although disclosure statements hold significance as a contributing factor in unriddling a case, in our opinion, they are not so strong a piece of evidence sufficient on its own and without anything more to bring home the charges beyond reasonable doubt.

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The law on the evidentiary value of disclosure statements under Section 27, Evidence Act made by the accused himself seems to be well -established. The decision of the Privy Council in Pulukuri Kotayya v. King-Emperor holds the field even today wherein it was held that the provided information must be directly relevant to the discovered fact, including details about the physical object, its place of origin, and the accused person's awareness of these aspects. The Privy Council observed:

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The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into s. 27 something which is not there, and admitting in evidence a confession barred by s. 26. Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.

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The law on the evidentiary value of disclosure statements of coaccused too is settled; the courts have hesitated to place reliance solely on disclosure statements of co-accused and used them merely to support the conviction or, as Sir Lawrence Jenkins observed in Emperor v. Lalit Mohan Chuckerburty, to "lend assurance to other evidence against a co-accused In Haricharan Kurmi v. State of Bihar, this Court, speaking through the Constitution Bench, elaborated upon the approach to be adopted by courts when dealing with disclosure statements:

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In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said

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evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right.

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In yet another case of discrediting a flawed conviction under Section 411, IPC, this Court, in Shiv Kumar v. State of Madhya Pradesh overturned the conviction under Section 411. declined to place undue reliance solely on the disclosure statements of the coaccused, and held:

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.... the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens rea is clearly not established for the charge under Section 411 IPC. The prosecution's evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, "you speak an infinite deal of nothing." [William. Shakespeare, Merchant of Venice, Act 1 Scene 1.]

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21. From the aforesaid law laid down by the Hon’ble Supreme Court, it is amply clear that although, the Vishambhar (PW/7) has stated to some short of his evidence that the Police has recorded the memorandum statement of the accused Nandu Ram Sahu and seizure has been made in his presence but from his entire evidence it does not appear to be the said quality of evidence on which the recording of his memorandum statement and seizure of the articles from him can be considered to be untainted or can be said to be proved beyond reasonable doubt. His evidence is inconsistent that in one place he stated that no memorandum statement of appellant Devan Rajwade @ Rani was recorded in his presence and he proved only the memorandum of Nandu Ram Sahu whereas axe has been seized from the appellant Devan Rajwade @ Rani, in another place, he stated that

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another axe is seized from his house where his parents are residing, no articles have been sealed on the place of its seizure. Number of persons were gathered there at the place of seizure. He again stated that in his presence, no articles have been seized and no panchanama has been prepared by the Police. He further admitted that the Police has also prepared the document in which his signatures were obtained. Therefore, he cannot be considered to be the sterling witness which is required for holding conviction or genuineness of the memorandum statement and seizure memo.

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22. So far as, the FSL report (Ex-P/36) is concerned, although, the human blood was found on the axe, spade, lower of the appellant Nandu Ram Sahu and blood stain soil but in absence of blood group of the deceased, it cannot be connected to that of the blood of the deceased. When the prosecution considered the FSL report as the clinching evidence against the appellant to connect them with the offence in question, the prosecution has to prove that the blood found on the cloths of the accused is of the same blood group with that of the blood group of the deceased which is missing in the present case and it cannot be considered to be the clinching evidence against the appellants.

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23. PW/1 Kanhaiya who is the railway traffic assistant at railway station Vishrampur is the witness who had taken the memo (Ex-P/1) to the Police Station and he is the witness of inquest (Ex-P/4) and the spot map (Ex-P/5). He admitted in his cross-examination that he has not seen any injuries on the dead body and the persons who gathered there have suspected that he died due to fall from the train.

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24. PW/2 Shashikala, who is the neighbour of the accused Devan Rajwade @ Rani, has turned hostile and not supported the prosecution’s case. She only stated that on 23/11/2018, she has gone to Sanjay park, Ambikapur along with the accused Devan Rajwade @ Rani and came back to her house. She denied that when they were roaming in the park, Devan Rajwade @ Rani has called her boy friend Parmeshwar (deceased) at Sanjay Park. She denied the entire incident that in the park, the deceased came there, at that time the appellant Nandu Ram Sahu threatened them and then the deceased Parmeshwar left the place along with his friend. She also denied that she and Devan Rajwade @ Rani had come to their house along with Nandu Ram Sahu. She also denied that Devan Rajwade @ Rani had stayed in the house of Nandu Ram Sahu. In her detailed crossexamination by the prosecution, she denied each and every fact of the incident and stated that on the fear of the Police, she came to give her statement.

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25. PW/4 Shatrughan, who was the co-worker of the deceased has stated in his evidence that on 24/11/2018 he left the deceased by his motor cycle at Gandhi Chowk, Ambikapur. On the way, the deceased received a telephonic call of Rani and then Parmeshwar informed him that it is the call of Rani and thereafter, he left him at Gandhi Chowk and returned back to his work place. In the night when he made a telephonic call to the deceased, his mobile was found switched off. Since he could not be connected through mobile phone, he started searching him. On the next day, he received a what’s app message and then he came to know that the dead body was found on the Jainagar and thereafter, they identified the dead body. He further

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stated that he knew the accused Rani, since last year when the deceased Parmeshwar was met with the accident and admitted in the hospital and at that time Rani had come to meet her in the hospital and since then he knew her. In cross-examination, he stated that he did not see the mobile number from which the deceased received a call and it is only informed by Parmeshwar that he received a call from Rani. He also not seen the accused persons with the deceased together and only the witnessed that the deceased informed him that he received a telephonic call from Rani.

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26. PW/5 Gudiya Devi who is the wife of the deceased has stated in her evidence that a day before the date of incident, she had a telephonic call with her husband and when she tried to contact him, his mobile phone was found switched off. On the next date, she received a what’s app message in which the photograph of the dead body of the deceased was there. She further stated that when her husband met with an accident, the appellant Devan Rajwade @ Rani came to her house along with another boy Anil but she has not stated that her husband was having any relation with Devan Rajwade @ Rani.

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27. PW-6 Narayan Kumar has stated in his evidence that on the date of incident, he was going with the deceased Parmeshwar to Rajpur, at that time, the appellant Devan Rajwade @ Rani called Parmeshwar on his mobile phone and called her at Sanjay Park, Ambikapur and thereafter he along with the Parmeshwar had gone to Ambikapur, he stayed outside the park and Parmeshwar had gone inside to meet the Devan Rajwade @ Rani. Another girl was sitting there along with the appellant Devan Rajwade @ Rani. They were visible to him. At that time, the accused Nandu Ram Sahu was also came to him and then

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Parmeshwar came out from the park and they left the place. After two days, he received a what’s app messages in which the dead body of the deceased Parmeshwar was there. This witness has also declared hostile and after declaring him hostile, he stated that when Nandu Ram Sahu came near Sanjay Park, he was annoyed after seeing Parmeshwar and the appellant Devan Rajwade @ Rani but he did not react. He further admitted that when he was annoyed, he and Parmeshwar left the place. He also admitted that the Parmeshwar has informed him that he was having affair with the appellant Devan Rajwade since last one year. He also stated that Rani was also having affair with Nandu Ram Sahu previously. In cross-examination, he admitted that in his presence, there was no conversation between Parmeshwar and Nandu and there is no dispute between them. This witness had seen the deceased with the company of the appellant two days prior to the date of incident and nothing can be found in his evidence to connect the appellants with the murder of the deceased. Although, they may have allegation against each other but that itself is not sufficient to hold them guilty for the offence of murder.

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28. PW/9 Raju Ranjan Soni who is the Constable and is the witness of seizure of CDR (Article-A/1).

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29. PW/11 Guddu Kumar is the track maintainer in Vishrampur railway, he saw the dead body first at about 4-5 am while he was in patrolling and immediately informed it to Station Master, Vishrampur.

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30. PW/12 Lalit Agrawal, in whose rice mill, the appellant Nandu Ram Sahu was working, has stated in his evidence that on 21/11/2018 Nandu Ram Sahu had taken leave for about 2-4 days and thereafter, on 26/11/2018 he rejoined his duty.

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31. PW/17 Shiv Kumar Sharthi who is the Head Constable at Police Station Jaynagar has stated in his evidence that he received the seized articles on 09/12/2018 for keeping it in safe custody of malkhana which was endorsed in Malkhana register (Ex-P/22) and given an acknowledgment (Ex-P/23). In cross-examination, he admitted that there are number of articles lying in the Malkhana and the key of the Malkhana was also remains with the other constables. He did not know as to what happened in his absence and whether any articles were taken out from the Malkhana or not. He also admitted that the mobile which he has taken, is not the mobile of Redme-6-3/32.

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32. PW/18 Pankaj Agrawal @ Vicky has stated in his evidence that he is running the mobile shop in the name of Om Mobile World at Bus Stand, Surajpur. On 26/11/2018 he sold the Redme-6-3/32 mobile to Nandu Ram Sahu Sahu and issued a bill (Ex-P/24) in the name of Nandu Ram Sahu and the bill was issued by his worker Ajay Prajapati. In cross-examination, he stated that without keeping it on, its IMEI number cannot be verified.

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33. PW/19 Raja Ram Rathiya, who recorded the merg intimation (Ex-P/2). on the basis of the written intimation given by the Station Master, Vishrampur (Ex-P/1).

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34. PW/20 Devnatha Choudhary who is the Asst. Sub Inspector of the Police has conducted the preliminary inquiry in the case after receiving the merg intimation (Ex-P/2).

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35. PW/21 Gopal Dhurve is the Investigating Officer has deposed about the procedure of investigation which he has done during the investigation. He admitted in his cross-examination that there is no evidence on the record that on the date of incident, Devan Rajwade @

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Rani had gone to the house of Nandu Ram Sahu. He further admitted that there is no direct evidence to the effect that Nandu Ram Sahu has committed murder of the deceased and thrown the dead body. He further admitted that there is no direct evidence that the deceased had come to the house of Nandu Ram Sahu and there is no evidence of last seen together.

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36. PW/22 S. K. Singh is the Senior Scientific Officer, FSL, Ambikapur, he proved the FSL report (Ex-P/36). He proved the contents of FSL report, however, he did not state as about the blood group of the appellant Devan, Nandu as well as the deceased. In crossexamination, he admitted that if the blood samples were taken out from the dead body. They could compare it and stated about its blood group.

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37. PW/23 Sanjeev who is the nodal officer, Jio Company has proved the call detail (Article-A/1) and certificate (Ex-P/37). He admitted in his cross-examination that in the call detail who has called whom and what conversation they have made, are not there in the call details. Therefore, he is unable to tell as to what conversation have been made by Devan Rajwade @ Rani to whom.

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38. Although, from the call detail report of Devan Rajwade @ Rani, it reflects that she made telephonic call on 24/11/2018 in a particular number but in absence of ownership of that mobile number or any document or evidence that said mobile was used by the deceased or by any other person. It cannot be found sufficient to hold that on the date of incident, the appellant Devan Rajwade @ Rani had called the deceased or the co-accused Nandu Ram Sahu. Further that though there is human blood was found on the axe, spade, lower of the

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appellant Nandu Ram Sahu and blood found on the blood stain soil but in absence of any blood group of the deceased, it cannot be connected that the deceased was also having the same blood which has been found on the axe, spade and lower of the accused Nandu Ram Sahu which is not sufficient to hold the conviction in the capital offence like present one. Further the memorandum statement and seizure have also not been found proved by leading, clinching and cogent evidence by the prosecution. The motive has also not been found proved from any evidence that the appellants are having any motive to commit murder of the deceased.

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39. When the Court relying upon the evidence of any witness, the witness should be of sterling quality who should pass the test in his/her crossexamination. In the matter of Rai Sandeep @ Deepu vs State Of Nct Of Delhi, (2012) 8 SCC 21, the Hon’ble Supreme Court has held in para 22 of its judgment as under:-

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That was a case where the father alleged to have committed the offence of rape on one of his daughters who was staying with him while his wife was living separately due to estranged relationship. While dealing with the said case, where the prosecutrix, namely, the daughter, apart from the complaint lodged by her, maintained her allegation against her father in the Court as well. This Court held that the version of the prosecutrix in the facts and circumstances of that case merited acceptance without any corroboration, inasmuch as, the evidence of rape victim is more reliable even that of an injured witness. It was also laid down that minor contradictions and discrepancies are insignificant and immaterial in the case of the prosecutrix can be ignored. As compared to the case on hand, we find that apart from the prosecutrix not supporting her own version, the other oral as well as forensic evidence also do not support the case of the prosecution. There were material contradictions leave alone lack of corroboration in the evidence of the prosecutrix. It cannot be said that since the prosecutrix was examined after two years there could be variation. Even while giving allowance for the time gap in the recording of her deposition, she would not have come forward with a version totally conflicting with what she stated in her complaint, especially when she was the victim of the alleged brutal onslaught on her by two men that too against her wish. In such circumstances, it

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will be highly dangerous to rely on such version of the prosecutrix in order to support the case of the prosecution.

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The aforesaid judgment has also been considered by the Hon’ble Supreme Court in the judgment of Santosh Prasad Vs. State of Bihar (2020) 3 SCC 443 . In the present case there is lack of evidence of that sterling quality which required for holding guilty of the accused persons in the offence in question.

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40. Thus, from the overall consideration of the evidence which have come on record, it would reveal that there are a lot of broken links in the prosecution's case which does not complete the chain of circumstances for conclusively reaching to the conclusion that it was the Appellants alone who have committed murder of the deceased. In the light of all the infirmities in the prosecution case and in absence of complete chain of events, it would be difficult for upholding the conviction of the appellants only on the basis of circumstantial evidence of strong suspicion which have come on record. In a case of circumstantial evidence, conviction cannot be based on suspicion.

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41. Thus, in view of the foregoing, we are of the considered opinion that there are various components which are missing from the chain of circumstantial evidence. By giving the benefit of doubt to the appellants, both these criminal appeals are allowed . The impugned judgment of conviction and sentences are set aside. The appellants are acquitted from the alleged offences.

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42. The appellant Devan Rajwade @ Rani is reported to be on bail, her bail bond shall continue for further period of six months as provided under Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

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43. The appellant Nandu Ram Sahu is reported to be in jail since 09/12/2018, he be released forthwith if not required in any other case.

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44. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Nandu Ram Sahu is directed to furnish a personal bond for a sum of Rs. 25,000/- with two sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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45. Registry is directed to transmit the trial Court record along with a copy of this order to the Court concerned forthwith for necessary information and compliance.

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Sd/-

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Sd/-

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(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Sagrika

Nandu Ram Sahu v. State of Chhattisgarh

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Nandu Ram Sahu v. State of Chhattisgarh

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