Shiv Kumar Prajapati Vs State of Chhattisgarh

Shiv Kumar Prajapati S/o Dassu @ Dashua @ Dashrath Prasad Prajapati Aged About 31 Years R/o Gora, Police Station - Amarpatan, District Satna (M.P.), (Currently R/o Village - Amapali, Police Station - Kharasia, District Raigarh (C.G.)

¶10

... Appellant

¶11

versus

¶12

State Of Chhattisgarh Through Station House Officer Police Station - Kharasia, District Raigarh (C.G.)

¶13

... Respondent(s)

¶14

(Cause-title taken from the Case Information System)

¶15

For Appellant(s) : Mr. Saurabh Dangi, Advocate For Respondent(s) : Mr. Nitansh Jaiswal, Panel Lawyer

¶16

Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board

¶17

Per Bibhu Datta Guru, Judge

¶18

14/08/2025

¶19

This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated

¶20

2

¶21

CRA No. 868 of 2024

¶22

29.02.2024 passed in Sessions Trial No. 09/2019 by the learned Second Additional Sessions Judge, Raigarh, C.G., whereby the appellant has been convicted and sentenced as under:-

¶23

Conviction	Sentence
U/s 364 A of the IPC	Life Imprisonment and fine of Rs.
	500/- with default stipulation.
U/s 302 of the IPC	Life Imprisonment and fine of Rs.
	500/- with default stipulation.
U/s 201 of the IPC	Rigorous imprisonment for 07 years
	and fine of Rs. 500/- with default
	stipulation.

¶24

All the sentences were directed to run concurrently.

¶25

Case of the prosecution in brief is that the complainant Narayan Dansena filed a written report to the effect that he is a resident of Aamapali. They are three brothers, his younger brother is Amrit Lal Dansena, whose younger son's name is Yog Prakash Dansena (since deceased) was about 9 years old and was studying in class IV in the village government school. A Durga idol has been installed on Navratri festival at a distance of about 200 meters from their house, where his brother Amrit, sister-inlaw Kamala, mother Rekhamati, wife Kaushalya, nephew Vivek and Yogprakash went for worship and darshan at around 6.30 pm on 14/10/2018. After performing Pooja, at around 7.30 pm, nephew Yogprakash and brother Amritlal stayed near the pandal, rest came home. Brother Amritlal was distributing Prasad near the pandal. When Amritlal returned home at about 8 pm, his children asked him whereabouts of Yog Prakash. Then his elder son Vivek told that an unknown person called twice on mobile phone and said that Yog Prakash

¶26

3

¶27

CRA No. 868 of 2024

¶28

was in his custody and demanded the ransom of Rs. 25,000/- within 24 hours. They were thinking that the call was someone's joke, when again after some time a call came and he said that deceased was in his custody. Thereafter, the family members searched the deceased in the vicinity and at the Durga pandal, but he could not be found. On calling the number from which the call had come, it was said to be switched off. His nephew Yogprakash has been kidnapped by luring him. On the basis of above report, an FIR was registered against the unknown accused under Section 364A IPC at Kharsia police station and the case was taken into investigation. In the meanwhile, on the suspicion, the family members of the deceased inquired the appellant on which he declined however subsequently the dead body was recovered from the agricultural field on the basis of memorandum of the accused/appellant i.e. Ex.P/14. Based on the same the offence under Section 302 & 201 IPC have been added.

¶29

During investigation, Spot Map was prepared. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court.

¶30

After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial.

¶31

In order to bring home the offence, the prosecution has examined 13 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence

¶32

4

¶33

CRA No. 868 of 2024

¶34

and false implication in the matter.

¶35

The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 29.02.2024 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal.

¶36

(a) Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He would submit that while passing the impugned judgment, the trial Court failed to appreciate the fact that there are material contradictions and omissions in the statements of the prosecution witnesses. In the evidence of the witnesses, it can be seen that there are material contradiction and omissions. Learned counsel would submit that without there being any cogent evidence, the conviction of the appellant is bad in the eyes of law. (b) According to the learned counsel the prosecution has failed to establish a complete chain of circumstances against the appellant. In a case resting solely on circumstantial evidence, the conviction cannot be based merely on a disclosure statement purportedly made under Section 27 of the Evidence Act, unless it leads to the discovery of the fact truly unknown to the police prior to the statement. Learned counsel would submit that the so called confession was recorded after the appellant was arrested and while he was in police custody, therefore, such a statement is inadmissible in view of Sections 25 & 26 of the Evidence Act. As far

¶37

5

¶38

CRA No. 868 of 2024

¶39

as the call detail report (CDR) is concerned, the same do not satisfy the mandatory procedural requirements as provided under Section 65B of the Indian Evidence Act. In the present case, the CDR bears no signature of any authorized persons. Even there is no identification of the signatory authority nor it is stated who generated the call details on what date and from which place and on which computer. There is no endorsement of IP address, file path or server location. He would submit that no authorized or Nodal Officer from the concerned telecom service provider has been examined to prove the authenticity of the CDR. Consequently, the CDR is inadmissible in evidence and cannot be relied upon to sustain the conviction. In such a situation, the case of the prosecution appears doubtful and it is well known principle that the benefit of doubt goes to the accused and may be given to him.

¶40

Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference, therefore, this appeal deserves to be dismissed.

¶41

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

¶42

The first question arises before this Court whether the accused kidnapped the deceased or not.

¶43

PW/2 father of the victim stated in his statement that he was distributing prasad in the Durga Pandal. On the date of incident, around 7:30 PM, all

¶44

6

¶45

CRA No. 868 of 2024

¶46

the members of his family returned home except him and his younger son Yog Prakash/deceased also did not go back from there. He stated that when he returned home at about 8 pm, his children asked him where Yog Prakash was. Then his elder son Vivek told him that an unknown person called twice on his mobile phone and said that Yog Prakash is in his custody, arrange for Rs.25,000/- or else it will be bad. His son Vivek told him that the voice of the person who called him was like that of Chotu Pandey. Chotu Pandey is the other name of accused Shiv Prajapati. He stated that after hearing this, he went straight to the house of the accused. When he reached near his house, the accused came running out of his house towards him and did not let him go inside his house. He asked the accused whether Yog Prakash was at his house, to which, the accused told him that Yog Prakash was not at his house and then he went back to search for him at another place. The villagers informed the Chowkidar and the police about the missing of his son. I told the police that the name of the accused Shiv Prajapati is Chotu Pandey and then I took the police along with me to the house of the accused. He said that the police caught the accused Shiv Prajapati and started beating him. Then he said to the policeman, why are you beating him? He was helping us in finding his son till 10 o'clock in the night. He said that the next day around 11:00-12:00 in the morning, the police took the accused Shiv Prajapati to the field of Gopal Das. Where the body of the deceased was lying and a knife was lying on the other side. He further stated that when the police took the accused to the spot and questioned him, the accused

¶47

7

¶48

CRA No. 868 of 2024

¶49

told the police in front of him that he had murdered the deceased and thrown his body in the field and he had also recovered the knife.

¶50

In his cross examination, he categorically stated that he was called by an unknown person. As soon as he received the information, he immediately reached the house of the accused. It must have taken 2-3 minutes to reach the house of the accused. He further stated that he did not tell the police during the proceedings that he had gone to the house of the accused. He voluntarily stated that the accused was searching for his son with him at night, hence he did not tell the police. He further stated that the police told him in the morning that the accused had murdered his son and the body was lying in Gopal Das's field.

¶51

PW/3 is the elder brother of the deceased who was aged about 14 years old at the time of incident, stated in his statement that the accused has been living in our village for about 3-4 years and works in a brick klin. On the date of the incident, he alongwith his family members went to Durga Pandal and after taking prasad came back home. His father was distributing prasad in the Durga pandal, so he did not come back home with us and his younger brother had also stayed at the pandal. His father’s mobile phone was at home on which a call was received from an unknown number he picked up the call. The person from the other side said that your son is in his custody and demanded ransom for Rs.25,000/- otherwise the consequences will be very bad. He said that he told this to his mother Kamla Bai. After about 5 minutes, again a call came from the same number and the caller again said the same thing. At

¶52

8

¶53

CRA No. 868 of 2024

¶54

that time, he got suspicious after listening to the voice of the caller that the voice of the caller was sounding like that of the accused present in the Court (Shiv Prajapati) Chotu Pandey. The family members were searching for his brother. The next day in the afternoon, the police and the villagers brought the dead body of his brother near the house. Later he heard that his brother was stabbed to death by Chhotu Pandey, and his body was thrown in the field.

¶55

In his cross examination, he stated that while giving statement to the police, he did not tell them that the voice calling sounded like that of Chhotu Pandey. He further stated that the body was brought to our house by the police, villagers and our relatives. When the body was brought to our house, his father and my elder brother were there. Today he was saying that the voice of the person who called was like the voice of the accused. He categorically stated that he heard from his family and outsiders that the accused has killed his brother.

¶56

PW/13 is the Head Constable who stated that he has been working in cyber sector since 2009. On 14.10.2018, an information was received that ransom calls were being received on the mobile phone of a person of village Aamapali under police station Kharsia area. On the orders of senior officers, he had extracted the call details, location and CAF of the mobile numbers demanding ransom. Certificate 65B of the abovementioned call details has also been given by him. CDR is attached with the certificate of 65B. Certificate 65B is Ex.P-29.

¶57

In his cross examination, he categorically stated that the IP No. of

¶58

9

¶59

CRA No. 868 of 2024

¶60

the telephone No. 07762-224309 mentioned in Ex. P-29, is not mentioned. He stated that in Ex.P-29, it is also not mentioned that from which nodal agency the CDR was received, the name of that company is not mentioned therein. He further stated that in which computer the data sent by the nodal agency was saved, and the details of the computers to which the printer was connected and the CDR is said to have been received, are not mentioned in Ex.P-29. In this regard, no certificate of any person who collected and sent the data from the Nodal Agency was sent to him. He stated that only the concerned Nodal Officer can issue a certificate regarding the authenticity of the CDR under Section 65B of the Evidence Act. This witness further stated that he gave it to the concerned investigator. He further stated that regarding the mobile Nos. 9752234897 and 9753889281, no documents or information has been sought from the Telecom Nodal Agency regarding who purchased these numbers and who was operating them. He also stated that he was asked for the certificate of 65B, Ex. P-29. He had given the CDR in two copies to the investigation officer, he did not give the CDR to the investigation officer along with the certificate of 65B. He further negated that fact that the certificate Ex.P.-29 has been fabricated by him. He further stated that the certificate Ex.P.-29 does not mention the IMEI number of the mobile phone and the details of the mobile phone while he also stated that the IMEI number of the mobile phone is easily made available by the Telecom Nodal Agency. He further negated the fact that the IMEI number of the mobile phone is not available by the telecom provider

10

CRA No. 868 of 2024

company.

Perusal of the above statements, it is not clear that the accused has kidnapped the deceased by luring him. Further the call detail report (CDR) does not satisfy the mandatory procedural requirements as provided under Section 65B of the Indian Evidence Act and the same bears no signature of any authorized persons and even there is no identification of the signatory authority nor it is stated who generated the call details on what date and from which place and on which computer. There is no endorsement of IP address, file path or server location. Furthermore, no authorized or Nodal Officer from the concerned telecom service provider has been examined to prove the authenticity of the CDR. Consequently, the CDR is inadmissible in evidence and cannot be relied upon to sustain the conviction. In the case at hand, the certificate regarding CDR has not been issued by the authorised person of the telecom authority whereas it has been issued by the police constable which is not at all sustainable in the eyes of law.

¶65

This Court in the matter of Lavkush Shukla v. State of Chhattisgarh , in CRA No 1153/2022 has categorically laid down the procedure that must be followed for proving the authenticity of CDRs and the issuance of a valid certificate under Section 65-B. The relevant para is reproduced herein for ready reference:

¶66

"44. So far as authenticity of the call detail reports and issuance of certificate under Section 65-B of the Evidence Act is concerned, PW-6, Dhiraj Kumar Jain, Assistant Nodal Officer, Reliance Jio, Raipur, has stated in his evidence that

¶67

11

¶68

CRA No. 868 of 2024

¶69

their office has issued the call detail report of mobile number 7879429035 vide Ex.P/27, certificate of Section 65-B of the Evidence Act, Ex.P/28 and covering letter Ex.P/29 in which signature of one Sanjeev Nema is there who is the Assistant Nodal Officer. The person who has generated the call details from his computer has not been examined. This witness has stated in his deposition that the said document has not been generated or prepared by him. He further admitted that the documents customer application form Ex. P-26 and call detail P-2 7 have not been generated from his computer. P.W. 16, Pankaj Chandra, Supdt. Of Police, Cyber Cell, Raipur, has stated that his office is not able to collect information by access through server of the service provider company. He is unable to say as to who generated the CDR of Ex. P -50 and send it to Gudhiyari Police Station and the same is not generated by him. He also unable to say as to who, by which computer, on what date and from which place of his service provider company has take n the printout of CDR. There is no certificate of Section 65-B of Evidence Act alongwith the CDR Ex. P-50 from its service provider company Airtel. Likewise, PW-18, Pankaj Ramaiya, have stated that call detail report of mobile number 964444852, Ex.P/63, certificate of Section 65B of th e Evidence Act Ex.P/62 and coverinty letter Ex.P/64 was issued by the Nodal Officer Awadh Jain. The call detail report of mobile number 7089 220000, Ex.P/65, was also issued by their Nodal Officer Awadh Jain. The said Nodal Officer Awadh Jain has not been examined by the prosecution. He has admitted that he has not generated the call details and certificate Ex.P/62 to P/65. He also denied generating of same in his presence. He also shows his unawareness as to who has generated the s aid call details, on what date, at which place and in which computer it was generated. He also states that

¶70

12

¶71

CRA No. 868 of 2024

¶72

there is no endorsement of IP address, file address or location of the server in the document Ex.P/62. The documentary evidence of an electronic record under the Evidence Act, in view of Section 65-A can be proved only in accordance with the provisions of Section 65-B. An electronic record shall not be admitted in evidence unless requirement under Section 65B is satisfied as discussed by Hon'ble Supreme Court in 2020 (7) SCC 1, Arjun Panditrao Khotkar v. Κailash Kushanrao Gorantyal & Ors.”

¶73

The next question for consideration would be whether the appellant has murdered the deceased or not.

¶74

PW/7- Jeevan Lal Jaiswal, one of the villagers stated in his statement that on the date of incident, he told Amrit Lal to call the police, who will interrogate the accused. He stated that he was standing there and at that time 4-5 policemen came to Amrit Lal's house. The police asked him abuot the whereabouts of the father of the deceased on which he told them that he is not at home however, when he asked, the police informed him that they found the dead body of the deceased. He stated that he had gone to the scene of the incident with the police, the police did not make the map of the scene in his presence. The police did not give him any notice regarding the investigation of the dead body, however his signature was taken on the notice Ex.P-6. The police did not question the accused in his presence, the accused did not tell him anything, but his signature has been taken on memorandum Ex.P-14. The police recovered a knife from the spot which was lying near the crime spot and plain soil and blood stained soil and paddy straw were taken out

¶75

13

¶76

CRA No. 868 of 2024

¶77

and seized. The police had seized the said seizure from near the dead body. The police did not seize any other clothes, jeans pant, mobile etc. in front of him, however his signature has been taken on seizure memo Ex.P.-17. He further stated that the police did not arrest the accused in front of him, but his signature has been taken on the arrest memo Ex.P.21. He further stated that when Amrit Lal went to the hut where the accused lives, the accused came out and said that he did not know anything. The police did not question the accused in front of him. He stated that he has no information about how the child was murdered. At this stage, as the witness did not support the prosecution case, he was declared hostile.

¶78

In such circumstances, the recovery evidence often plays a crucial role in establishing a connection between the accused and the crime. However, when these evidence is weak, it significantly undermines the prosecution’s case. Weak recovery evidence may stem from improper handling, lack of clear chain of custody, or ambiguous circumstances surrounding how and where the evidence was found. Such flaws can lead to doubts about the authenticity and relevance of the recovered items, raising questions about whether the evidence was planted, contaminated, or even linked to the accused at all. Consequently, weak recovery evidence fails to provide the solid foundation needed to prove guilt beyond a reasonable doubt, thereby weakening the overall case and potentially leading to acquittal.

¶79

Bare perusal of the FSL report (Ex.P./28) conducted by Dr. S.N.

¶80

14

¶81

CRA No. 868 of 2024

¶82

Vishwas, Assistant Chemical Examiner, SFSL, Raipur would goes to show that blood was not found on Ex.C & E i.e. the soil of the incident and the Jeans pant, the accused was worn respectively. The spots of Ex. A & B i.e. knife and soil respectively are disintigrated, hence the test result for human species is found negative. The test result at Ex-D (full shirt of the accused) is inconclusive, hence the blood group result could not be ascertained.

¶83

Upon cumulative analysis of the material available on record, at this stage, the conviction under Section 302 of the Indian Penal Code, which deals with punishment for murder, cannot be sustained solely on the basis of a chain of circumstances if that chain is not conclusively established. The prosecution must prove beyond reasonable doubt that all the links in the chain of circumstances consistently point to the guilt of the accused. If there is any break or weakness in the chain, or if the circumstances are open to multiple interpretations, it creates doubt. Since a charge as serious as murder demands the highest standard of proof, Courts are cautious and do not convict based on an incomplete or unproven chain of events. Therefore, without a firmly established chain of circumstances, a conviction under Section 302 IPC cannot be justifiably recorded.

¶84

The Supreme Court in the matter of Babu v. State of Kerala, (2010) 9 SCC 189 lead the rule when the case bases on circumstantial evidence, the Hon’ble Apex Court held that how the chain of circumstantial evidences prove in relevant Paras No.22 & 23 which is reproduced

15

CRA No. 868 of 2024

hereinbelow :-

(II) Case of circumstantial evidence

¶89

22 . In Krishnan v. State this Court after considering a large

¶90

number of its earlier judgments observed as follows: (SCC p. 435, para 15)

¶91

"15. …... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

¶92

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

¶93

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

¶94

(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

¶95

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should

¶96

16

¶97

CRA No. 868 of 2024

¶98

be inconsistent with his innocence. (See Gambhir v. State of Maharashtra [(1982) 2 SCC 351 : 1982 (Cri) 431 : AIR 1982 SC 1157].)”

¶99

23 . In Sharad Birdhichand Sarda v. State of Maharashtra while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)

¶100

(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;

¶101

(ii) 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;

¶102

(iii) the circumstances should be of a conclusive nature and tendency;

¶103

(iv) they should exclude every possible hypothesis except the one to be proved; and

¶104

(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion

¶105

17

¶106

CRA No. 868 of 2024

¶107

consistent with the innocence of the accused and must

¶108

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

¶109

Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that the appellant has murdered the deceased, thus, it cannot be said that the appellant murdered the deceased. Since it has not established by the prosecution beyond reasonable doubt that the accused had kidnapped and murdered the deceased, the conviction under Section 201 of the IPC cannot be sustained.

¶110

For the foregoing reasons, the prosecution has not been able to prove that the accused had murdered the deceased. From the evidence of the prosecution witnesses, the same creates doubt, therefore, giving the benefit of doubt, the accused/appellant entitled to be acquitted of the alleged charges levelled against him for the aforesaid offences.

¶111

The accused is acquitted of the charges for which he was tried. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted from the charge leveled against him. The appellant is in jail. He be released forthwith if not required in any other case, on furnishing a personal bond for a sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the trial Court. The bail bond shall remain in operation for a period of six months as required under the provisions of Section 481 of the BNSS. The appellant shall appear

¶112

18

¶113

CRA No. 868 of 2024

¶114

before the higher Court as and when directed. Accordingly, the Criminal Appeal is allowed .

¶115

The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

¶116

SD/SD/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

¶117

S. Bhilwar/ Gowri

Shiv Kumar Prajapati v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Shiv Kumar Prajapati v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Dharamjeet @ Visvidhyalay Gupta Vs State Of Chhattisgarh

Rahul Jaiswal @ Ankush Jaiswal Vs State of Chhattisgarh

Ramesh Sonant Vs State of Chhattisgarh

Shashi Kumar Gandharva Vs State of Chhattisgarh

Xyz Vs State of Chhattisgarh

Dr. Narayan Prasad Pandey Vs State of Chhattisgarh