Avinash Verma Alias Rinku Vs State of Chhattisgarh

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1

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Digitally signed by R NIRALA

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2025:CGHC:55996-DB

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No.392 of 2018

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The date when	The date when the	The date when	the judgment
the judgment is	judgment is	is uploaded on	the website
reserved	pronounced	Operative	Full
25.08.2025	18.11.2025	--	18.11.2025

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1 - Avinash Verma Alias Rinku S/o Yavan Kumar Verma Aged About 23 Years R/o Village Charauda Police Station Dharsiwa, District Raipur, Chhattisgarh

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Appellant (s)

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versus

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1 - State Of Chhattisgarh Through The Station House Officer Police Station Dharsiwa, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

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Respondent(s)

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For Appellant (s) : Mr. Arvind Shrivastava, Advocate For Respondent (s) : Mr. Ashish Shukla, Addl. AG Hon’ble Smt. Justice Rajani Dubey

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Mr. Arvind Shrivastava, Advocate

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Hon’ble Shri Justice Amitendra Kishore Prasad

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C A V Judgment

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Per Rajani Dubey J.

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The present appeal is directed against the judgment of conviction and order of sentence dated 30.01.2018 passed by

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the learned Special/Upper Session Judge, Raipur in ST No.21/2016, whereby the appellant has been convicted under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.10,000/- with default stipulation.

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The prosecution case, in brief, is that the appellant was friend of the deceased Rajbir Singh and both were having unnatural sex relations for last two years before the incident and on the date of incident at 10:30 PM the appellant along with the juvenile went to the house of the deceased at village Dhaneli and consumed alcohol and had carnal intercourse with the deceased, at that time some altercation took place between the juvenile and the deceased Rajveer Singh and because of that the appellant along with the juvenile killed the deceased by knife and stole a Led Tv, Tata Sky Set-top box, Mobile, Silver Chain and Wallet of the deceased. Thereafter the matter was reported by Khelu Ram, upon which a case was registered against the appellant and he was arrested. After investigation, charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned in para 1 of the judgment.

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Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses.

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The memorandum and seizure witnesses PW-4 Holuram and PW-7 Mohan Nishad have not supported the case of the prosecution and have turned hostile. There is no eye witness in the present case and only on the conjectures and surmises the appellant has been roped in the present case. The chain of circumstantial evidence is also not complete. The appellant has been convicted only on the basis of his finger print found on the glass of liquor, but the learned Trial Court has not considered the above said aspects of the matter. Therefore, the appeal deserves to be allowed.

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Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal 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 the learned Trial Court that the learned Trial Court framed charges under Sections 380, 302 & 201 of IPC against the appellant and after appreciation of oral and documentary evidence, the learned Trial Court acquitted the appellant under Sections 380 & 201 of IPC and convicted and sentenced the appellant, as mentioned in para 1 of the judgment.

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The first question we have to consider is that whether the death of deceased Rajveer was homicidal in nature or not?

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PW-1 Kheluram Nishad stated that his wife is sarpanch of village, whereas he was former sarpanch. The Police informed him that Rajveer has been murdered. The Police lodged dehati merg (ExP/1) and dehati nalisi (Ex-P/2) and he admitted his signatures on A to A part of the same. He also admitted his signatures on notice (Ex-P/3), map panchnama (Ex-P/4), seizure memo (Ex-P/5) and spot map (Ex-P/6) but he denied all proceedings before him. The prosecution declared him hostile and cross-examined him then he admitted this suggestion that he had gone to the house of Rajveer and he saw his dead body but he denied other suggestions of prosecution and stated that the Police took his signature on blank paper.

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Sureshlata (PW-2) wife of deceased stated that her husband was living in Dhaneli and she used to come to Dhaneli in 2-3 months. On 21.10.2015 her husband was murdered in his house at Village Dhaneli and on 22.10.2015 she came to know about the murder of her husband and on 23.10.2015 she came to Raipur and saw the dead body of her husband. She stated that she informed the police that LED TV, Tata Sky Box, silver chain of her husband and mobile phone were not in the house.

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The Inspector Alim Khan (PW-18) stated that he lodged dehati merg (Ex-P/1) and dehati nalisi (Ex-P/2) and also issued notice to punch witnesses vide Ex-P/3 and prepared inquest memo (ExP/4) and gave application for postmortem vide Ex-P/22.

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Dr. Surendra Sahu (PW-8) conducted postmortem of deceased

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and discussed the injuries sustained by the deceased as under:-

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“3. बा�्ቨ परी�्ቌण ेሰ� शव ले�टी� अवस्था� ेሰ� था�, उसकी� आं�खे� बा�द था�, उसकी� ेሰ � ह अधखे�ले� था�, औरी ेሰ�ह स� तथा� ना�की स� खे"ना निनाकीले� ह$आं था� । उसकी� चे�हरी� की� री�ग बादले� ह$आं था�। उसकी� गले� ेሰ� एकी कीटी� ह$आं निनाश�ना था� जो* लेगभग 4 इं�चे ले�बा� औरी लेगभग 1 इं�चे गहरी� था�, उसकी� गले� खे"ना स� सना� ह$आं था�, उसकी� ह�था* एव� प-री* ेሰ� ेሰ.त्यु� पश्चे�त की� अकीडना ेሰ3जो"द था�, उसकी� सिसरी की� टी�परी�ले री�जोना ेሰ� स"जोना था� औरी वह�� परी की�ले�पना था� जो री्ሹ जोेሰना� स� हत� ह-। इंसकी� अले�व� बा�हयु परी�्ቌण ेሰ� औरी कीई चे*टी की� निनाश�ना नाह� था� ।

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आं�तरिरीकी परी�्ቌण ेሰ� स�ना� की� परी�्ቌण ेሰ� पद�8, पसले�, की�म्हलेस्व फु�फुस स�ेሰ�न्यु एव� स्वस्था था� । की�ठ एव� श्व�स नाले� कीटी� ह$यु� था� । द��यु� एव� बा�यु� फु�फुड� प�री�ओना परीकीरीसिसयुेሰ की�जोस्टी�ड था�, हृदयु की� दना चे�बारी खे�ले� था� । व.्ቍव�निहकी� गले� की� भ�ग ेሰ� कीटी� ह$ई था�। प�टी की� परी�्ቌण ेሰ� पद�8, आं�त* की� सि@ቤኍ� ेሰ ह तथा� ቇኋ�सनाले� ቇኋ�था� स�ेሰ�न्यु एव� स्वस्था था�। प�टी औरी उसकी� भ�तरी � वस्त� ेሰ� अधपचे� भज्यु पद�था8 था�, छोटी� आं�त ेሰ� पचे� ह$आं भज्यु पद�था8 था�, बाड� आं�त ेሰ� ेሰले था� । युकी. त प्ले�ह� ग�द�8, ेሰ�ቔኋ�शयु स�ेሰ�न्यु था� भ�तरी� व बा�हरी� जोनाना�ቖኍ�यु की� परी�्ቌण ेሰ� व�यु8 बा�हरी आं चे�की� था� । ेሰHना� एकी जो�री ेሰ� नाेሰकी की� घोले, द"सरी� जो�री ेሰ� हृदयु, ले�वरी, फु�फुड� निकीडना� की� टी�कीड� त�सरी� जो�री ेሰ� अेሰ�शयु की� भ�ग निJजोव8 कीरी एफुएसएले जो��चे की� सिलेयु� उस� आंरी्ቌकी की* सKप� था� ।”

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He opined that death was due to excessive bleeding owing to cut in neck and nature of death is homicidal and gave his report (ExP/7) and he also examined the knife and pillow and opined that injury on neck can be caused by this knife and sent the same for chemical examination as per Ex-P/21. In FSL report (Ex-P/62), human blood was found in article knife. In his cross-examination, nothing came out in his statements to negate the same, as such the prosecution has proved this fact beyond reasonable doubt that death of deceased is homicidal in nature, thus the learned Trial Court has rightly found that the death of deceased is

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homicidal in nature.

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Now we have to consider that whether the accused is author of this crime or not?

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It is clear from the statement of all the witnesses that the prosecution case is dependent upon circumstantial evidence. During investigation, memorandum statement of the accused was recorded as per Ex-P/9 and as per memorandum, accused disclosed about theft of the LED, set up box and silver chain of the accused and as per seizure memo (Ex-P/8) LED, set up box and silver chain was recovered vide seizure memo (Ex-P/10).

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The seizure witnesses Holuram (PW-4) and Mohan Nishad (PW7) only admitted their signatures on memorandum and seizure vide Ex-P/9 to Ex-P/16. Both witnesses denied any statement of accused and any seizure before them. The learned Trial Court in para 54 found that memorandum and seizure was not proved by the prosecution beyond reasonable doubt and on the basis of memorandum and seizure the accused cannot be made guilty of the crime. The learned Trial Court has convicted the appellant on the basis of his finger print.

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PW-18 Investigating Officer Alim Khan seized 3 glass of liquor bottle from spot as per seizure memo (Ex-P/5).

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PW-11 S. K. Jain, finger print expert stated that he inspected the spot on 23.10.2015 and with the help of finger print developing powder examined suspected finger print and upon examination, he found finger print in one glass bottle of liquor and in another

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glass, finger print was also found and photo of both finger prints was also taken and as per police memo (Ex-P/27), finger print of accused is Ex-P/28, finger print of Purnendra is Ex-P/29, finger print of deceased Rajveer is Ex-P/30 and he prepared enlarge S- 1 of photo of finger print of accused which is Article-A/1 whereas enlarge photo is Article-B. He gave his report (Ex-P/31) and as per his report, Article SA-1 and Article-A/1 are same. He identified the suspected finger print of accused Avinash Verma. In cross-examination, he admitted in para 11 that he cannot say that how much old finger prints were.

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In the present case, there is no eye witness to the incident so only on the basis of finger print of the accused in one glass of bottle, conviction of accused cannot be made. The prosecution had to prove this fact beyond reasonable doubt that at the time of death of deceased, the accused was with the deceased, as there is no evidence of last seen. The learned Trial Court acquitted the appellant under Sections 201 & 380 of IPC and no any article of deceased was seized from the appellant but the learned Trial Court only on the basis of finger print convicted the appellant. It is also clear from the seizure memo and spot map that knife was seized from spot and it is not the case of the prosecution that finger print was found in knife and as per Ex-P/31 finger print was found on the glass and the learned Trial Court only on the basis of finger print convicted the appellant.

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The Hon’ble Apex Court in the matter of Chandrapal vs State of

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Chhattisgarh, reported in ILR 2022 CG 1473 , held in para 7 as

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under:-

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“7. At the outset, it may be stated that undisputedly the entire case of the prosecution rested on the circumstantial evidence, as there was no eye witness to the alleged incident. The law on the appreciation of circumstantial evidence is also well settled. The circumstances concerned “must or should be” established and not “may be” established, as held in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra1 . The accused “must be” and not merely “may be” guilty before a court can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures. The entire chain of circumstances on which the conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground for the conclusion consistent with the innocence of the accused. The five golden principles enumerated in case of Sharad Birdhichand Sarda Vs. State of Maharashtra2 laid down in para 152 may be reproduced herein for ready reference:

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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 Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 1 (1973) 2 SCC 793 2 (1984) 4 SCC 116 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047]

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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

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with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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

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

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

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PW-16 Pankaj Kumar, Nodal Officer, IDEA cellular company

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proved call details vide Ex-P/42, P/43 & P/44 and also stated that on 15.10.2015, call was received on mobile No.7089169582 from mobile No.7828761003. On the said date at 10:04 pm, call was received on mobile No.7828761003 from Mobile No.7089169582. In cross-examination, he admitted that on whose name mobile No.7089169582 was registered he cannot say, as such the prosecution has failed to prove location of accused and deceased and even the prosecution has failed to prove that what is the exact mobile number of accused, but the learned Trial Court only on the basis of finger print of the appellant has convicted him for the aforesaid offence as such the finding recorded by the learned Trial Court is not sustainable.

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Consequently, the appeal is allowed . The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges under Section 302 of IPC.

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The appellant is reported to be on bail.

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Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the court concerned forthwith, 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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The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

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Sd/- Sd/Rajani Dubey Amitendra Kishore Prasad Judge Judge

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Nirala

Avinash Verma Alias Rinku v. State of Chhattisgarh

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Avinash Verma Alias Rinku v. State of Chhattisgarh

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