Nand Kumar and Ors. Vs State Of Chhattisgarh

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1

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2025:CGHC:17424-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1520 of 2015

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1 - Nand Kumar S/o Sagar Patel Aged About 41 Years R/o Village Banjarpur, Police Station Parpodi, Civil And Rev. Distt. Bemetara Chhattisgarh.

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2 - Gopal S/o Madhav Patel Aged About 45 Years R/o Village Banjarpur, Police Station Parpodi, Civil And Rev. Distt. Bemetara Chhattisgarh.

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3 - Radha Bai W/o Nand Kumar Patel Aged About 25 Years R/o Village Banjarpur, Police Station Parpodi, Civil And Rev. Distt. Bemetara Chhattisgarh.

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4 - Pradeep S/o Pyarelal Patel Aged About 27 Years R/o Village Budhwara, Police Chowki Devkar, Civil And Rev. Distt. Bemetara Chhattisgarh.

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--- Appellants

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versus

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1 - State Of Chhattisgarh Through S.H.O. Police Station Parpodi, Civil And Rev. Distt. Bemetara Chhattisgarh.

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--- Respondent(s)

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CRA No. 1582 of 2015

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1 - Vishnu @ Domar S/o Sant Ram Patel Aged About 23 Years Occupation - Labourer, R/o Village - Banjarpur, Police Station Parpodi, Civil And Rev. Distt. Bemetara Chhattisgarh.

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2 - Ahilya W/o Bhola Patel Aged About 45 Years Occupation - Labourer, R/o Village - Banjarpur, Police Station Parpodi, Civil And Rev. Distt. Bemetara Chhattisgarh.

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Digitally signed by KRISHNA KRISHNA KUMAR KUMAR BARVE BARVE Date: 2025.04.17 18:11:45 +0530

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--- Appellants

Versus

1 - State Of Chhattisgarh Through District Magistrate Bemetara, District Bemetara Chhattisgarh.

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--- Respondent(s)

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CRA No. 390 of 2016

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1 - Nakul S/o Setram Patel Aged About 45 Years Occupation - Labour R/o Village - Banjarpur, Police Station - Parpodi, Civil And Revenue District - Bemetara Chhattisgarh

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2 - Ankalhin W/o Nakul Patel Aged About 35 Years Occupation - Labour R/o Village - Banjarpur, Police Station - Parpodi, Civil And Revenue District - Bemetara Chhattisgarh

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3 - Teejan Bai D/o Setram Patel Aged About 45 Years Occupation - Labour R/o Village - Bhatgaon, Police Station - Parpodi, Civil And Revenue District - Bemetara Chhattisgarh

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4 - Teksingh S/o Goverdhan Patel Aged About 40 Years Occupation - Labour R/o Village - Banjarpur, Police Station - Parpodi, Civil And Revenue District - Bemetara Chhattisgarh

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--- Appellants

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Versus

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1 - State Of Chhattisgarh Through S. H. O. Police Station - Parpodi, Civil And Revenue District - Bemetara Chhattisgarh

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--- Respondent(s)

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CRA No. 29 of 2016

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1 - Vikram S/o Setram Patel Aged About 41 Years Occupation Labour Work, R/o Village Banjarpur, P.S. Parpondi, Distt. Bemetara, Chhattisgarh.

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2 - Savana Bai W/o Vikram Patel Aged About 35 Years Occupation Labour Work, R/o Village Banjarpur, P.S. Parpondi, Distt. Bemetara, Chhattisgarh.

--- Appellants

Versus

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1 - State Of Chhattisgarh Through Station House Officer, Police Station Perpodi, Distt. Bemetara, Chhattisgarh.

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--- Respondent(s)

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For Appellants in CRA Nos.	: Shri VA Goverdhan, Advocate.
1520/2015 & 390/2016
For Appellants in CRA No.1582/15	: Smt. Indira Tripathi, Advocate.
For Appellants in CRA No.29/2016	: Miss Puja Lonia on behalf of Shri Ajay Chandra, Advocate.
For Respondent(s)	: Shri Ashish Shukla, Govt. Advocate.

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

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Judgment on Board

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(16/04/2025)

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Sanjay K. Agrawal, J

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The accused/appellants No.1, 2, 8 & 10 have preferred Criminal Appeal No.390/2016; the accused/appellants No.3, 5, 7 & 12 have preferred Criminal Appeal No.1520/2015; the accused/appellants No.4 & 6 have preferred Criminal Appeal No.29/2016, and the accused/appellants No.9 & 11 have preferred Criminal Appeal No.1582/2015.

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The aforesaid Appeals are being disposed of by this common judgment, as they arise out of judgment dated 30.9.2015 passed by the Additional Sessions Judge, Bemetara, District Bemetara in ST

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No.10/2015 by which the appellants have been convicted and

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sentenced as under:-

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Conviction (In respect of accused/ Appellant No.1)	Se	ntence
Under Section 148 of the IPC	RI for 2 years Rs.500/-.	& to pay	a fine of
Under Section 302/149 of the IPC	RI for life & Rs.2000/-.	to pay	a fine of
Under Section 4 of CG Tonhi Pratadna Nivaran Adhiniyam, 2005	RI for 2 years Rs.500/-.	& to pay	a fine of
Under Section 5 of CG Tonhi Pratadna Nivaran Adhiniyam, 2005	RI for 2 years Rs.500/-. In default of amount, the ap to undergo RI months, 3 mo respectively.	& to pay payment pellant wa for 3 nths &	a fine of of fine s directed months, 6 3 months
Conviction in respect of accused/ appellants No.3, 4 & 5		Sentence
Under Section 148 of the IPC	RI for 2 years Rs.500/- each.	& to pay	a fine of
Under Section 302/149 of the IPC	RI for life & Rs.2000/- each.	to pay	a fine of
Under Section 5 of CG Tonhi Pratadna Nivaran Adhiniyam, 2005	RI for 2 years Rs.500/- each. In default of amount, th directed to u months, 6 mo respectively.	& to pay payment e appella ndergo R nths &	a fine of of fine nts were I for 3 3 months
Conviction in respect of accused/appellants No.2, 6, 7, 8, 9, 10, 11 & 12
Under Section 147 of the IPC	RI for 2 years Rs.500/-	& to pay	a fine of
Under Section 302/149 of the IPC	RI for life & Rs.2,000/-	to pay	a fine of

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Under Section 5 of CG	Tonhi RI for 2 ye	ars & to pay a fine of
Pratadna Nivaran Adhiniyam,	2005 Rs.500/-.
	In default	of payment of fine
	amount,	the appellants were
	directed to	undergo RI for 3
	months, 6	months & 3 months
	respectively.

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Case of the prosecution, in brief, is that on 25.10.2014 at about 6.30

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pm, near village Banjarpur, PS Parpodi, District Bemetara, the accused persons in furtherance of their common object formed an unlawful assembly and assaulted Dukalheen Bai on the ground that she was practicing witchcraft. At the time of assault, the accused persons were possessing club, wooden log (Imli ka Goja) and chilli powder. The accused persons assaulted the deceased by means of club, hands & legs. The accused persons also poured chilli powder on the nose, mouth, eyes and private parts of the deceased. The deceased was taken to the Govt. Hospital, Parpodi where the doctors have declared her brought dead. Merg intimation (Ex.-P/1) was lodged by (PW-1) Ashok Patel, son of the deceased naming all the accused persons. FIR (Ex.-P/2) was also lodged by the said witness. Inquest was conducted vide Ex.-P/5. The spot map was also prepared. The dead body of the deceased was sent for postmortem examination which was conducted by Dr. AK Verma (PW-19) and he gave his report Ex.-P/20 opining that the cause of death is cardio respiratory arrest due to hypovalumic shock due to

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injury of lung as also due to neurogenic shock due to multiple injuries and the death is homicidal in nature.

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In pursuance of the memorandum given by appellant No.1, wooden log (Imli ka Goja) was seized vide Ex.-P/29. Pursuant to the memorandum given by accused/appellant No.2, red chilli powder was seized vide Ex.-P/30. Pursuant to the memorandum given by accused/appellant No.3, wooden club was seized vide Ex.-P/31. Pursuant to the memorandum given by accused/appellant No.4, wooden log (Imli ka Goja) was seized vide Ex.-P/36. Pursuant to the memorandum given by accused/appellant No.5, wooden log (Imli ka Goja) was seized vide Ex.-P/35. Pursuant to the memorandum given by accused/appellant No.6, red chilli powder was seized vide Ex.-P/33. Pursuant to the memorandum given by accused/appellant No.8, red chilli powder was seized vide Ex.-P/32. The seized articles were sent to the Forensic Science Laboratory for examination and as per the FSL report (Ex.-P/57), blood was found on Articles ‘A’, ‘B’ & ‘C’ i.e. Sari, Blouse and Petticoat of the deceased, however, origin of the blood found on Article ‘A’ could not be ascertained, as the blood was disintegrated. However, on Articles ‘B’ & ‘C’, blood having blood group of ‘AB’ was found.

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In order to bring home the charges, the prosecution examined as many as 22 witnesses and exhibited 58 documents.

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The learned trial Court after appreciating the oral and documentary

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evidence available on record, convicted and sentenced the appellants as mentioned in the opening paragraph of this judgment, against which these appeals have been preferred by the appellantsaccused questioning the impugned judgment of conviction and order of sentence.

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Learned counsel appearing for the appellants submits that (PW-1) Ashok Patel, son of the deceased, has turned hostile and not supported the case of the prosecution. The other witnesses have also turned hostile and did not support the case of the prosecution. Furthermore, wooden log (Imli ka Goja) was seized from Appellants No.1, 4 & 5, but no FSL report or any forensic evidence has been brought on record to prove that it was the same wooden log which was used in commission of offence. Likewise, chilli powder was seized from appellants No.2, 6 & 8. On the body of the deceased chilli powder was found, but it is not established that the same chilli powder was seized from the possession of these appellants. As such, all the appellants are entitled for acquittal.

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On the other hand, learned State counsel would support the impugned judgment of conviction and order of sentence and would submit that the prosecution has proved the offence beyond reasonable doubt. Thus, the present Appeals deserve to be dismissed.

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We have heard learned counsel for the parties, considered their rival

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submissions made herein-above and went through the records with utmost circumspection.

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The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/20), wherein it has been opined that cause of death of deceased is cardio respiratory arrest due to hypovalumic shock due to lung injury as also due to neurogenic shock due to multiple injuries on body, which is duly proved by the statement of Dr. AK Verma (PW-19). Accordingly, taking into consideration the postmortem report (Ex.P/20) and the statement of Dr. AK Verma (PW-19), who has conducted postmortem on the dead-body of the deceased, we are of the considered opinion that death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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Now the next question would be whether the accused/appellants herein are the author of the crime in question.

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In the present case, the case of the prosecution rests on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda

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Vs. State of Maharashtra¹ which must be fulfilled for convicting

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an accused on the basis of circumstantial evidence and held in para-

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152 as under:-

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“152.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 Vs. 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 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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1 (1984) 4 SCC 116

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

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In the present case, there is no direct evidence. (PW-1) Ashok Patel, son of the deceased, has turned hostile. The other witnesses have also turned hostile. The prosecution has relied upon the evidence of witnesses to the memorandum and seizure i. e. (PW-20) Mohan Das and (PW-21) Makhan Patel. These witnesses have admitted their signatures on the relevant documents, however, they have turned hostile. However, the trial Court has proceeded only on the basis that seizure of wooden log has been made from Appellants No.1, 4 & 5 and wooden club was also seized from appellant No.3 and held the appellants guilty. However, it is well settled law that the disclosure alone would not automatically lead to conclusion that offence was also committed by the accused and, therefore, the burden lies on prosecution to establish a close link between the discovery of material object and its use in commission of offence. In this regard, their Lordships of the Supreme Court in the matter of Mustkeem alias Sirajudeen v State of Rajasthan 2 , have held in paragraphs No.25 to 27 which states as under:-

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“ 2 5 . With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that

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2 (2011) 11 SCC 724

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the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.”

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2 6 . If the recovery memos were prepared at the police station itself then the same would lose their sanctity as held by this Court in Varun Chaudhary . v. State of Rajasthan³

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27 . The scope and ambit of Section 27 were also illuminatingly stated in Pulukuri Kotayya v. King Emperor⁴ reproduced hereinbelow: (IA p. 77).

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“… it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A ’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.

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The same were thereafter restated in another v. judgment of this Court in Anter Singh State of Rajasthan⁵ .”

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3 (2011) 12 SCC 545

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4 (1946-47) 74 IA 65 : AIR 1947 PC 67

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5 (2004) 3 SCC 657

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On the dead body of the deceased chilli powder was found, however, it could not be established that the chilli powder which was found on the body of the deceased was same which was seized from the possession of appellants No.2, 6 & 8. As such, merely on the basis of recovery of chilli powder from possession of the said appellants, they cannot be connected with the crime in question, and therefore recovery of chilli powder at the instance of these appellants is of no help to the prosecution.

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It is well settled that a moral conviction however, strong or genuine cannot amount to a legal conviction supportable in law. {See :

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Sharad Birdhichand Sarda (Supra}

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Furthermore, the trial Court has relied upon the evidence of IO (PW-22) to prove the case of the prosecution. Though the IO has registered the merg intimation (Ex.-P/1), conducted inquest (Ex.P/5) and also registered the FIR (Ex.-P/2) and also recorded other memorandums, however, only on the basis of statement of IO, the accused persons cannot be connected with the crime in question unless any other incriminating evidence or circumstantial evidence is established beyond reasonable doubt. Merely because the IO has supported the case of the prosecution, it would not be safe to convict the appellants for offence under Section 302 of the IPC.

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In the result, the Appeals are allowed. Conviction and sentences imposed on the appellants under Sections 147, 148, 302/149 of the

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IPC and under Sections 4 & 5 of CG Tonhi Pratadna Nivaran Adhiniyam, 2005 are set aside and they are acquitted of the said charges. The appellants are on bail. They need not surrender. The bail bonds furnished by the appellants shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC.

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

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

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Barve

Nand Kumar and Ors. v. State Of Chhattisgarh

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Nand Kumar and Ors. v. State Of Chhattisgarh

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