Naresh Kumar Nayak Vs State of Chhattisgarh

... Respondent For Appellant : Mr. Ashok Kumar Verma, Mr. Gajendra Ku.Sahu and Mr. Anmol Verma, Advocates. For Respondent : Ms. Nand Kumari Kashyap, Panel Lawyer

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Hon'ble Smt. Justice Rajani Dubey, &

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Hon'ble Shri Justice Sachin Singh Rajput, JJ

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CAV Judgment

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Per Rajani Dubey, J

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The appellant in this appeal is challenging the legality and validity of the judgment of conviction and order of sentence dated

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7.8.2019 passed by the Special Judge (Atrocities) Raipur, in Special Criminal Case No.10/2016 whereby the appellant stands convicted and sentenced as under:

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Conviction	Sentence
Under Section 364 of Indian Penal Code.	RI for five years, pay a fine of Rs.500/- and in default thereof to suffer additional RI for one month.
Under Section 302 of Indian Penal	Life imprisonment, pay a fine of
Code.	Rs.1000/- and in default thereof to suffer additional RI for two months.

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Case of the prosecution, in brief, is that after the death of her parents, about 7-8 years prior to the date of incident, deceased Ku. Fagni, aged about 15 years, had been living with Sukhbati Netam, who happens to be her aunt (Chachi) in relation. The deceased was working as a maid in the house of other persons. On 1.1.2016 Fagni left the house of Sukhbati saying that she is going to the photo studio for getting her photographed but did not return and her mobile was also switched off. Hence on the missing report being lodged by Sukhbati, offence under Section 363 of IPC was registered against unknown person.

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During investigation, on the basis of call details of Fagni, the accused was taken into custody and in his memorandum he disclosed that she had love affair with him, they used to talk over mobile phones

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and he also had physical relations with her four-five times. He further disclosed that when she pressurized him for marrying her, he got tense and disconcerted as she was of other caste and a minor girl. From the memorandum it also revealed that after purchasing a mobile SIM 9937496406 from Orissa the accused talked to Fagni on her mobile No. 8251841104 and called her near Gariyaband market and after hiring motorcycle bearing No. CG 05 U/8077 of one Sourabh Dhruv, took Fagni on the said motorcycle to a jungle falling in between Heerabadar and Kaamraj. While she was consuming cold drink, he strangulated her with the help of saafi (a piece of cloth) worn around her neck. In order to make it a case of suicide, he hanged the dead body from a tree and after chewing the SIM cards of the deceased and himself threw them into the shrubs and also left both the mobile phones there. At his instance, on 29.1.2016 dead body of Fagni was recovered (Ex.P/3) which was identified by Sukhbati and Subhash Netam. From the place of incident, one pair of sandal of the deceased, sprite bottle containing little liquid and a plastic disposable glass were seized vide Ex.P/6. On the memorandum of the accused, one Reliance mobile with battery and SIM No.7489809741 was seized vide Ex.P/12. One mobile phone of Micromax company and one mobile of Videocon company were also seized at the instance of the accused from his house vide Ex.P/22 & 23. The motorcycle used in commission of the crime with its documents were seized from Sourav Dhruv vide Ex.P/24.

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Inquest over the dead body was performed and the dead body was sent for postmortem. The autopsy surgeon preserved the wearing apparels of the deceased, her ear ring, ring and ligature material and her teeth and hair for DNA test, which were seized vide Ex.P/19. Spot map (Ex.P/9) was prepared, marksheet and caste certificate of the deceased were seized from the possession of Sukhbati Netam vide Ex.P/10 & P/11. Dakhil-Kharij Register and Affidavit Register from the Head Master of Primary School, Dak Bungala, Gariyaband were seized vide Ex.P/27. Call details of the accused and the deceased were obtained vide Ex.P/31. After completing the necessary formalities of investigation, charge sheet was filed against the accused under Sections 363, 364, 302 of IPC, Section 3(2)(v) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short “the Act of 1989”) and Section 6 of Protection of Children from Sexual Offences Act, 2012.

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Learned trial Court framed charges under Sections 363, 364, 302 of IPC and Section 3(2)(v) of the Act of 1989 which were abjured by the accused and he prayed for trial. In order to substantiate its case the prosecution examined 26 witnesses. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, no witness was examined by him in his defence.

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After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal.

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Learned counsel for the appellants submits that the impugned judgment is bad in law, perverse, erroneous and liable to be set aside. There is no eyewitness to the incident and the entire case rests upon circumstantial evidence, mainly the evidence of memorandum and seizure, which is a very weak type of evidence. Both the witnesses to memorandum and seizure i.e. PW-4 Kanhaiya Pradhan and PW-5 Yogesh Baghel have not supported the prosecution case and have been declared hostile. In this case, identification of the dead body is also not proved by the prosecution. As per PW-19 Dr. B. Bara, the dead body was not identifiable and PW-2 Sukhbati Netam, who is said to have identified the dead body, states in para 3 of her deposition that the body was decomposed but face was slightly seen and she identified the dead body on the basis of clothes and face. This apart, as per evidence of PW-2 Sukhbati while leaving her house, the deceased was wearing a ring on which “Fagni” was written and PW-7 Subhash Netam, brother of the deceased also states in para 3 that her ring bears the name “Fagni” whereas PW-8 Manoj Kumar Chandel, uncle of the deceased, states that he saw a ring in the finger of deceased Fagni on which “Firoj” was written and PW-23 ASI Dev Kumar Verma also states that “Firoj” in Hindi was written on the ring of the deceased. PW-

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20 Dr. Ulhas Gonnade in para 9 admits that he has not mentioned in his report Ex.P/15 about any name being written on the ring of the deceased.

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Learned counsel further contended that as regards recovery of motorcycle at the instance of the accused, PW-14 Saurav Kumar states in paras 3, 4 & 5 of his deposition that he had not given his motorcycle to the accused on 1.1.2016 and as such, recovery of motorcycle loses its significance. He submits that the prosecution has also failed to prove the nature of death. As per PW-20 Dr. Ulhas Gonnade the death might be suicidal too. Thus, there is no legally admissible evidence against the appellant proving his complicity in the crime in question beyond reasonable doubt. Being so, the impugned judgment of learned trial Court is liable to be set aside and the appellant be acquitted of all the charges.

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Reliance has been placed on the decisions in the matters of Sharad Biridhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Chandra Pal Vs. State of CG, AIR 2022 SC 2542; Chingdu Kashyap Vs. State of Cg, 2023(4) CGLJ 184 (DB); Vickki @ Bharat Vs. State of CG, 2023(4) CGLJ 322 (DB); Anand Ram Vs. State of CG, 2024(1) CGLJ 210 (DB) and the judgment dated 7.10.2024 of this Court in CRA No.868/2018 in the matter of Mangau Ram Vs. State of CG .

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On the other hand, learned counsel for the State supporting the impugned judgment submits that learned trial court minutely appreciated oral and documentary evidence on record and rightly convicted and sentenced the appellant. As such, this appeal being without any substance is liable to be dismissed.

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Heard learned counsel for the parties and perused the material available on record.

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It is clear from the record of learned trial Court that the appellant was charged under Sections 363, 364, 302 of IPC and Section 3(2)(v) of the Act of 1989 and after appreciation of oral and documentary evidence, learned trial Court acquitted him of the charge u/s 3(2)(v) of the Act of 1989 and convicted and sentenced him under Sections 364 and 302 of IPC for offence under Section 364 being inclusive of one defined u/s 363 of IPC.

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First of all we have to see whether the prosecution has successfully proved the homicidal death of the deceased.

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PW-26 Vimlesh Dubey, Inspector, states that he issued notice Ex.P/4 to the witnesses and prepared inquest memo Ex.P/5. He also lodged merg intimation No.4/16 vide Ex.P/39 and gave application for postmortem of the dead body vide Ex.P/29.

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PW-20 Dr. Ulhas Gonnade conducted postmortem on the body of the deceased on 30.1.2016 and noticed her mouth open, head tilted

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towards left side, tongue inside, foots on the ground, knees bent, hands straight, skin of neck got folded and there was a noose with running knot and the body seemed decomposed. He opined that as per available position, condition and ligature material and presence of ligature mark, it seems to be a case of hanging. In para 8 of his crossexamination he admits that it cannot be said with certainty that death occurred as a result of hanging only. In para 9 he admits that death of the deceased could be suicidal in nature also.

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The Hon’ble Supreme Court in the matter of Satish Nirankari Vs. State of Rajasthan; (2017) 8 SCC 497 held in paras 38 and 39 as under:-

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“38. …… The prosecution failed to prove that the cause of death was homicidal. Dr. S.K. Pathak (P.W.-3) did not say that death was homicidal in nature. Post-mortem report (Ext.P-4) also does not say that it was homicidal.

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This aspect is not even dealt with by the High Court. Further, the alleged weapon i.e. cable wire was not sent to CFSL and to any scientific laboratory to confirm fingerprints of the appellant. All the aforesaid factors amply demonstrate that the prosecution has not been able to bring out and prove the guilt of the appellant beyond reasonable doubt. There are lurking doubts in the story of the prosecution and many missing links which are pointed out above.”

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16. The Hon’ble Supreme Court in the matter of Chandrapal (supra) held in paras 8 & 9 of its judgment as under:

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“8. It is also needless to reiterate that for the purpose of proving the charge for the offence under Section 302, the prosecution must establish "homicidal death" as a primary fact. In order to convict an accused under Section 302, the court is required to first see as to whether the prosecution has proved the factum of homicidal death. So far as the facts of present case are concerned, the evidence of PW13 Dr. R.K. Singh, who had carried out the post-mortem of the deceased Brinda and Kanhaiya, would be most relevant in this regard. He had stated in his deposition before the court, inter alia, that on 12.12.1994, he had carried out the post-mortem of Kumari Brinda, daughter of Bhagirathi, and of Kanhaiya alias Chandrashekhar Gaur. The dead bodies of both the deceased were in decomposed state. He had further stated that the knot mark present on the neck of the deceased Brinda was ante-mortem, and that the cause of death appeared to be Asphyxia due to hanging. The death had taken place within 8 to 10 days and the nature of death was Suicidal. The said Doctor had stated similar facts for Kanhaiya that the dead body of Kanhaiya was found bent towards left side from his neck and a ligature mark having size 10" x 5" was present on the neck. The cause of death appeared to be Asphyxia due to hanging and the death appeared to have taken place within 8 to 10 days. He had further stated that there was neither fracture found on the dead bodies of the deceased, nor any blood clots were found, nor any injuries were found, and therefore he had opined that the cause of death was hanging which normally is

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found in case of suicide. He specifically stated that as the dead bodies were decom-posed, he could not express any opinion whether it was a homicidal death. In the crossexamination by the learned counsel for the accused, he had categorically admitted that he did not find any symptom of homicidal death, nor he had opined in his report given on 12.12.1994 that the deaths of the deceased were homicidal. Of course, he had stated that on the basis of the report submitted on 30.04.1995, an inference could be drawn that the deaths could be homicidal deaths.

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It is worth noting that the High Court in the impugned judgment has not considered at all the evidence of Dr. R.K. Singh to come to the conclusion whether the deaths were homicidal deaths, before confirming the conviction of the appellant for the offence under Section 302 IPC. Unfortunately, the Sessions Court also in para 23 of its judgment observed that the statement of Dr. R.K. Singh was not important because he had expressed an opinion which was neither beneficial to the prosecution nor to the defence. In our opinion, when the case of the prosecution rested on circumstantial evidence, it was imperative for the prosecution to prove beyond reasonable doubt that the deaths of the deceased were homicidal deaths and not suicidal, more particularly when the line of defence of the accused was that the Brinda and Kanhaiya had committed suicide, and when Dr. R.K. Singh who had carried out their post-mortems had also opined that the nature of their deaths was Suicidal.”

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In the present case also, the autopsy surgeon PW-20 Dr. Ulhas Gonnade did not mention the nature of death of the deceased in his postmortem report and also admitted the suggestion of the defence that death could be suicidal in nature. Thus, in view of the above settled legal position, we are of the opinion that the prosecution has failed to prove this fact beyond reasonable doubt that death of Fagni Bai was homicidal in nature.

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As per prosecution case, the deceased was having affair with the appellant. PW-2 Sukhbati Netam states that deceased is daughter of her brother-in-law Sahdev Netam. On the date of incident, at around 11 am she had gone for getting her photographed but did not return thereafter and hence on 2^nd she lodged a missing report at the police station. She saw the appellant in the police station where he disclosed to have killed Fagni in the forest and the dead body was recovered from the forest which was hanging from a tree.

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PW-3 Tamsingh admits his signature on notice Ex.P/2, dead body recovery memo Ex.P/3, inquest memo Ex.P/5 and seizure memo Ex.P/6. The prosecution declared him hostile and cross-examined where he admitted the suggestion of the prosecution that they went to the Lal Pahad situated between Village-Kamraj and Heerabatar forest and the relatives of the deceased identified the dead body as that of Fagni.

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PW-4 Kanhaiya Pradhan and PW-5 Yogesh Baghel though admit their signature on memorandum Ex.P/8, dead body recovery memo Ex.P/3 and inquest memo Ex.P/5 but deny any interrogation of the appellant before them by the police or seizure, recovery of dead body of the deceased as also deny preparation of inquest memo before them. The prosecution declared them hostile and cross-examined where they denied all the suggestions of the prosecution.

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PW-6 Hemuram admits his signature on inquest memo Ex.P/5 and notice Ex.P/16. The prosecution declared him hostile and in crossexamination by the prosecution he admits the suggestion that dead body was recovered from Lal Pahad where the appellant was also present but he does not know whether appellant got the dead body recovered.

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PW-7 Subhash Netam states that the accused indicated the place i.e. Lal Pahad from where the dead body was recovered and he admits his signature on the notice Ex.P/17 from A to A part. He also admits his signature on dead body recovery memo Ex.P/3 and dead body identification memo Ex.P/14.

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PW-8 Manoj Kumar Chandel states that the police informed him that the appellant disclosed to have killed Fagni and that the appellant took them to the forest from where the dead body was recovered in hanging position from a tree.

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PW-1 Leena Gayakwad and PW-9 Laxmi Nagesh are classmates of the deceased but they did not state anything about relationship of the deceased with the appellant. The prosecution declared them hostile and cross-examined where they denied all the suggestions of the prosecution.

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PW-14 Sourav Kumar admits his signature on seizure memo Ex.P/24 whereby his motorcycle and its documents were seized but stated that he had not given his motorcycle to anyone. He was declared hostile and cross-examined by the prosecution where he denied all the suggestions of the prosecution.

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As per memorandum of the appellant (Ex.P/8), he disclosed about the dead body and mobile but as per recovery memo Ex.P/3, only dead body of the deceased was recovered.

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PW-25 Krishna Sharma, Nodal Officer of Airtel Company, proved the call details of Mobile No.9937496406. As per his statement, the said mobile number was issued in the name of Chhabirani Rai, resident of Naranggarh, Jankiya, Kordha (Orissa).

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As regards identification of the dead body, PW-19 Dr. B. Bara states that the dead body was not identifiable. PW-2 Sukhbati Netam admits that on the basis of sandal and ring, she identified the dead body of Fagni. She states that when the deceased left home, she was wearing a ring on which “Fagni” was written. PW-7 Subhash Netam

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also states that the ring worn by the deceased bears the name “Fagni”. However, PW-8 Manoj Kumar Chandel, uncle of the deceased and PW-23 ASI Dev Kumar Verma state that “Firoj” in Hindi was written on the ring of the deceased. Thus, there is discrepancy in respect of name being written on the ring of the deceased.

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Admittedly, there is no direct evidence in this case and the entire case rests upon circumstantial evidence. The Hon’ble Supreme Court in the matter of Sharad Biridhichand Sarda (supra) held in paras 150, 152 & 153 of its judgment as under:

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“150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.

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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 Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793: (AIR 1973 SC 2622) 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 be fore a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

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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

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show that in all human probability the act must have been done by the accused.

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These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

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Learned trial Court based its conviction on the circumstantial evidence i.e. recovery of dead body at the instance of the accused, love affair between the accused and the deceased and memorandum and seizure. True it is that there is evidence as to appellant being last seen in the company of the deceased. Though it is the case of the prosecution that there was love affair between the appellant and the deceased but the classmates of the deceased namely PW-1 Leena Gayakwad and PW-9 Laxmi Nagesh have not stated anything about any such relationship between the two and they were declared hostile. As per PW-2 Sukhbati Netam the deceased went away from her house alone for her photograph. Though as per memorandum of the appellant, he took the deceased by motorcycle which belongs to Sourav Kumar (PW-14) but PW-14 Sourav Kumar, from whom the motorcycle and its documents were seized, has not supported the prosecution case and denied the suggstion that on the date of incident, the appellant took his motorcycle. Even the call details produced by the prosecution have not been proved and it is of no help to the proseuction because it does not establish that the appellant and the deceased talked with each other on the date of incident. Their location

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could not be proved by the prosecution. This apart, identification of the dead body is also doubtful in this case. As per relatives of the deceased, on the ring of the deceased “Fagni” was written whereas the investigating officer seized a ring from the body of the deceased on which “Firoj” was written. Most importantly, the prosecution has utterly failed to prove nature of death whether it was homicidal or suicidal which is primary fact to be proved in murder cases.

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This Court in the matter of Mangauram Markam (supra) held in paras 26 & 27 of its judgment as under:

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“26. Furthermore, even if it is accepted that the dead-body of the deceased was recovered at the instance of the appellant, the same would not complete the chain of circumstances in order to hold the appellant guilty for the offence in question. As such, we find no good reason to accept the finding of the learned trial Court that the dead-body of deceased- Saradhuram was found at the instance of the appellant and, therefore, the learned trial Court is absolutely unjustified in relying upon the same as a piece of incriminating circumstance. Consequently, the appellant is entitled for acquittal on the basis of benefit of doubt so far as offence for committing murder of deceasedSaradhuram is concerned.

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(27) In view of the foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the 'panchsheel' of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellant for offence under Section 302 of IPC (on two counts)

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and also under Section 201 of IPC being the author of the crime in question in light of the incriminating circumstances culled out in Para-36 of the impugned judgment and same are liable to be set aside.”

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On the basis of aforesaid discussions and in light of the decisions referred to above, this Court is of the opinion that the prosecution has miserably failed to prove its case based upon circumstantial evidence beyond reasonable doubt that it is the appellant who committed murder of the deceased. The findings of guilt recorded by learned trial Court being not based upon proper appreciation of oral and documentary evidence are not sustainable.

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In the result, the appeal is allowed. The impugned judgment of learned trial Court is hereby set aside and the appellant is acquitted of the charges under Sections 364 and 302 of IPC by giving him benefit of doubt. The appellant is reported to be in jail, therefore, he be released forthwith, if not required to be detained in connection with any other offence. However, in view of provisions of Section 481 of BNSS, 2023 the appellant is required to furnish a bail bond for a sum of Rs.25,000/- to secure his appearance before the higher court as and when such court issues notice in respect of any appeal being filed against this judgment and it shall remain in force for a period of six months.

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Digitally signed MOHD by MOHDAKHTAR KHAN AKHTAR Date: KHAN 2025.06.2716:34:03 +0530 Khan

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Sd/ Sd/ (Rajani Dubey) (Sachin Singh Rajput) Judge Judge

Naresh Kumar Nayak v. State of Chhattisgarh

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Naresh Kumar Nayak v. State of Chhattisgarh

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