Devdhar @ Devkumar Binjhwar Vs State of Chhattisgarh

1. Heard Mr. Goutam Khetrapal, learned counsel for the appellants as well as Mr. Shaleen Singh Baghel, learned Government Advocate appearing for the State/respondent.

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Digitally signed by BRIJMOHAN BRIJMOHAN MORLE MORLE Date: 2026.07.13 17:25:43 +0530

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2. This criminal appeal filed by the appellants-accused under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, “BNSS”) is directed against the impugned judgment of conviction and order of sentence dated 02.07.2025, passed by the learned First Additional Sessions Judge, Katghora, District- Korba (C.G.) in Sessions Trial No.09 of 2023, whereby the appellants have been convicted and sentenced in the following manner :-

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Appellant – Devdhar @ Devkumar Binjhwar

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Conviction	:	Sentence
Under Section 302 of the Indian Penal Code, 1860	:	Rigorous imprisonment for life and fine of Rs.2,000/-, in default of payment of fine amount, additional rigorous imprisonment for 06 months.
Under Section 201 read with Section 34 of the	:	Rigorous imprisonment for 05 years and fine of
Indian Penal Code, 1860		Rs.2,000/-, in default of payment of fine amount, additional rigorous
		imprisonment for 03 months.
Both the sentences w	ere	directed to run concurrently.

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Appellant – Manharan Binjhwar

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Conviction	:	Sentence
Under Section 201 read	:	Rigorous imprisonment for
with Section 34 of the		05 years and fine of
Indian Penal Code,		Rs.2,000/-, in default of
1860		payment of fine amount,
		additional rigorous
		imprisonment for 03
		months.

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Appellant – Manoj Binjhwar

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Conviction	:	Sentence
Under Section 201 read with Section 34 of the	:	Rigorous imprisonment for 05 years and fine of
Indian Penal Code, 1860		Rs.2,000/-, in default of payment of fine amount,
		additional rigorous
		imprisonment for 03 months.

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3. The case of the prosecution, as unfolded from the material available on record and the evidence adduced before the learned Trial Court, is that on 21.11.2022, complainant Manbodh Singh (PW-1), father of the deceased Bhav Singh Gond, approached Police Outpost Chaitma, Police Station Pali, District Korba (C.G.) and lodged a report stating that on 20.11.2022, at about 07:00 PM, his son Bhav Singh Gond had gone towards the agricultural field situated at Bari Umarav to inspect the crops. While he was returning back to his house, near the turning point of Manjhipara on the main road of Bari Umarav, he was found lying in an injured and unconscious condition. Thereafter, Bijendra Singh Gond and other persons brought him to his house and, considering his serious condition, he was taken to Community Health Centre, Pali, for treatment, where the doctor declared him dead.

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4. As per the initial information given by PW-1 Manbodh Singh, there was suspicion that while the deceased was returning from his agricultural field, he might have been hit by some unknown

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vehicle from behind, resulting in serious injuries on his head and near his ear, due to which he succumbed to the injuries. On the basis of the said information, Merg Intimation No. 0/2022 (Ex.P16) was registered at Police Outpost Chaitma and the same was forwarded to Police Station Pali, where Merg No. 135/2022 (Ex.P21) was registered and further proceedings under Section 174 of the Code of Criminal Procedure, 1973 (for short, “CrPC”) were undertaken.

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5. During the course of merg inquiry, the investigating officer conducted the inquest proceedings of the dead body of the deceased Bhav Singh Gond. The inquest report and other related documents were prepared. The dead body was thereafter sent for post-mortem examination. PW-7 Dr. Anil Saraf conducted the post-mortem examination of the deceased and prepared the PostMortem Report (Ex.P-11). As per the opinion of PW-7 Dr. Anil Saraf, the death of the deceased was homicidal in nature. The doctor also prepared the post-mortem requisition (Ex.P-10) and medical examination report regarding the injuries found on the body of the deceased.

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6. After the post-mortem report revealed that the death was not accidental but homicidal in nature, the prosecution case took a different course. During investigation, eyewitness Rupsingh Sonwani (PW-4) disclosed that on 20.11.2022 at about 06:30 PM, accused Devdhar @ Devkumar Binjhwar had assaulted the

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deceased Bhav Singh Gond inside his house by pressing his neck and thereafter caused injuries by using the wooden handle of an axe (Tangia). It was further disclosed by PW-4 that after causing the death of Bhav Singh Gond, the other accused persons, namely, Manharan Binjhwar and Manoj Binjhwar, in furtherance of their common intention, assisted accused Devdhar in removing the dead body and placing it on the paved road with an intention to create an impression that the deceased had died in a road accident and thereby caused disappearance of evidence.

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7. On the basis of the statement of eyewitness Rupsingh Sonwani (PW-4), the information regarding commission of offence was recorded and Zero FIR No. 0/2022 (Ex.P-25) was registered at Police Outpost Chaitma for offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code against the accused persons.

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8. Subsequently, the said FIR was forwarded to Police Station Pali, where regular Crime No. 385/2022 was registered vide First Information Report (Ex.P-16) against the accused persons for the offences punishable under Sections 302 and 201 read with Section 34 IPC.

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9. During the course of investigation, the Investigating Officer prepared the spot map in presence of witnesses vide Spot Map (Ex.P-01). The statements of witnesses were recorded under

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Section 161 of the CrPC. The accused persons were interrogated and their memorandum statements were recorded in presence of witnesses.

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10. The memorandum statement of accused Devdhar @ Devkumar Binjhwar was recorded vide Ex.P-03, wherein he disclosed the facts relating to the commission of offence and the weapon used in the crime. Similarly, the memorandum statements of accused Manharan Binjhwar and Manoj Binjhwar were recorded vide Ex.P04 and Ex.P-05 respectively. Pursuant to the memorandum statement of accused Devdhar, a wooden-handled iron Tangia, allegedly used in commission of the offence, was seized from his possession vide Seizure Memo (Ex.P-06) in presence of witnesses.

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11. Thereafter, arrest memos of accused Devdhar @ Devkumar Binjhwar, Manharan Binjhwar and Manoj Binjhwar were prepared vide Arrest Memos (Ex.P-07 to Ex.P-09) and intimation regarding their arrest was given to their respective relatives vide Arrest Intimation Document (Ex.P-17).

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12. During further investigation, the seized weapon i.e. iron Tangia was sent for forensic examination. A requisition was forwarded through the Superintendent of Police, Korba, to the Regional Forensic Science Laboratory, Bilaspur vide FSL Requisition (Ex.P18). The acknowledgment of receipt was obtained vide Ex.P-19

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and the FSL Report was received vide Ex.P-20. As per the said FSL Report (Ex.P-20), human blood was detected on the seized iron Tangia.

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13. During investigation, photographs of the deceased were also collected and marked as Article A-1 and Article A-2. The investigating officer thereafter completed the entire investigation and, finding sufficient material against the accused persons, submitted the final report/charge-sheet before the competent Court for trial.

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14. After committal of the case, the matter was placed before the learned Principal Sessions Judge, Korba on 02.01.2023 and was received on 11.01.2023. Thereafter, the case was transferred to the Court of learned First Additional Sessions Judge, Katghora on 16.01.2023 for disposal in accordance with law.

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15. The learned Trial Court framed charges against accused Devdhar @ Devkumar Binjhwar for offences punishable under Sections 302 and 201 read with Section 34 IPC vide order dated 02.02.2023. Charges were also framed against accused Manharan Binjhwar and Manoj Binjhwar for the offence punishable under Section 201 read with Section 34 IPC vide order dated 25.01.2023. The charges were read over and explained to the accused persons. They denied the allegations and claimed to be tried.

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16. In order to prove its case, the prosecution examined as many as 16 witnesses before the learned Trial Court. The details of the prosecution witnesses and documents exhibited by them are as follows:

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PW-1 Manbodh Singh, father of the deceased, was examined by the prosecution. He proved the initial information regarding the death of his son and supported the Merg Intimation proceedings. His evidence relates to the circumstances in which the deceased was found injured and was taken to the hospital.

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PW-2 Mangal Singh was examined as a witness to the prosecution case and his statement was recorded regarding the investigation proceedings.

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PW-3 Ram Singh, brother of the deceased, was examined regarding the facts surrounding the incident and the death of Bhav Singh Gond.

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PW-4 Rupsingh Sonwani, an important prosecution witness and eyewitness, supported the prosecution case regarding the assault committed by accused Devdhar inside his house. He stated that accused Devdhar assaulted the deceased by pressing his neck and thereafter caused injuries with the wooden handle of an axe. He further deposed regarding the role attributed to accused Manharan and Manoj in shifting the

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dead body on the road to give it a colour of a road accident.

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PW-5 Sandeep Singh Shyam was examined as a witness to the spot map, memorandum statements, seizure proceedings and arrest proceedings. He proved Spot Map (Ex.P-01 and Ex.P-02), Memorandum Statements of accused persons (Ex.P-03, Ex.P-04 and Ex.P-05), Seizure Memo of weapon (Ex.P-06), and Arrest Memos (Ex.P-07 to Ex.P-09).

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PW-6 Brijlal was also examined as a witness to the investigation proceedings and supported the preparation of spot map, memorandum statements, seizure memo and arrest memos.

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PW-7 Dr. Anil Saraf, the medical officer who conducted the post-mortem examination, proved post-mortem Requisition (Ex.P-10), post-mortem Report (Ex.P-11) and Medical Examination Report (Ex.P-12). He opined that the death of the deceased was homicidal in nature.

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PW-8 Narayan Singh was examined as a witness regarding the prosecution case and investigation.

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PW-9 Bijendra Singh proved the Merg Intimation Report (Ex.P-13), Panchayatnama/Naksha Panchayatnama (Ex.P-14) and his police statement.

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PW-10 Chhatar Singh was examined regarding the

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prosecution case and investigation.

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PW-11 Devendra Kumar Patel, Patwari, proved the site map prepared by him vide Ex.P-15.

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PW-12 Assistant Sub-Inspector Vimlesh Oraon proved the First Information Report (Ex.P-16).

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PW-13 Assistant Sub-Inspector Suresh Kumar Jogi, the investigating officer, proved Spot Map (Ex.P-01), memorandum statements of accused persons (Ex.P-03 to Ex.P-05), seizure memo (Ex.P-06), arrest memos (Ex.P-07 to Ex.P-09), arrest intimation (Ex.P-17), requisition for medical examination (Ex.P-12), FSL requisition (Ex.P-18), acknowledgment of FSL dispatch (Ex.P-19), and FSL Report (Ex.P-20).

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PW-14 R. Chamar Singh Maravi proved the FIR proceedings vide Ex.P-16.

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PW-15 Hemant Kumar Kanwar proved the Merg Intimation Report (Ex.P-21).

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PW-16 Assistant Sub-Inspector Prakash Rajak proved Merg No. 0/2022 (Ex.P-22), appearance notice (Ex.P-13), Panchayatnama/ Naksha Panchayatnama (Ex.P-14), PostMortem Requisition (Ex.P-10), duty certificate (Ex.P-23), Spot Map (Ex.P-02), and Zero FIR (Ex.P-25).

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17. After completion of prosecution evidence, the statements of the accused persons were recorded under Section 313 CrPC. The accused persons denied all incriminating circumstances appearing against them and pleaded false implication. In defence, they examined four witnesses, namely, Amirlal (DW-1), Shukwara Bai (DW-2), Agar Singh (DW-3) and Ajay Binjhawar (DW-4), to establish their plea of innocence. Thus, the prosecution case before the learned Trial Court was that accused Devdhar @ Devkumar Binjhwar committed murder of Bhav Singh Gond inside his house by strangulation and assaulting him with the wooden handle of a Tangia, and thereafter accused Manharan Binjhwar and Manoj Binjhwar assisted him in causing disappearance of evidence by placing the dead body on the road to create a false impression of a road accident. The prosecution sought to establish the said allegations through ocular evidence, medical evidence, seizure of weapon, FSL report and other documentary evidence brought on record.

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18. The Trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 02.07.2025, convicted the appellant-Devdhar @ Devkumar Binjwar for offence under Sections 302 and 201 read with Section 34 IPC as well as convicted the appellants-Manharan Binjhwar and Manoj Binjhwar for the offence under Sections 201 read with Section 34 IPC and sentenced them as aforementioned, against which, this criminal appeal has been filed.

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19. Mr. Goutam Khetrapal, learned counsel appearing on behalf of the appellants, submits that the impugned judgment of conviction and order of sentence dated 02.07.2025 passed by the learned Trial Court is contrary to law, facts and the evidence available on record and, therefore, deserves to be set aside. It is submitted that the learned Trial Court has committed serious error of law and fact while appreciating the evidence adduced by the prosecution and has recorded a finding of guilt against the appellants without there being any cogent, reliable and legally admissible evidence establishing their involvement in the alleged crime beyond reasonable doubt. He further submits that the entire case of the prosecution rests upon the testimony of the alleged eyewitness, namely, Rupsingh Sonwani (PW-4), and except his evidence, there is no direct evidence available on record to connect the appellants with the commission of the alleged offence. However, the learned Trial Court failed to appreciate that PW-4 did not support the prosecution case during his deposition before the Court and was declared hostile. It is submitted that once the sole eyewitness has not supported the prosecution version, his testimony could not have been relied upon by the learned Trial Court for recording conviction of the appellants. It is argued that the learned Trial Court has wrongly placed reliance upon a part of the testimony of PW-4 while ignoring the fact that he had resiled from his earlier statement and had not supported the material allegations against the appellants.

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20. Mr. Khetrapal submits that the learned Trial Court failed to appreciate the material contradictions, inconsistencies and omissions appearing in the statements of prosecution witnesses regarding the date, time and place of occurrence. It is submitted that the prosecution witnesses have given varying versions regarding the manner in which the deceased was allegedly assaulted and the circumstances leading to his death. Such contradictions go to the root of the prosecution case and create serious doubt regarding the truthfulness of the prosecution story. It is argued that the benefit of such doubt ought to have been extended to the appellants. It is further submitted that the learned Trial Court has wrongly relied upon the alleged recovery of weapon and seizure proceedings. Learned counsel submits that the witnesses to the memorandum statements and seizure proceedings have not supported the case of the prosecution and have categorically stated before the Court that the documents were obtained from them at the Police Station and their signatures were taken thereon. Therefore, the alleged recovery of the weapon cannot be treated as a circumstance incriminating against the appellants. It is submitted that in absence of reliable independent witnesses proving the seizure proceedings, the said circumstance cannot form the basis for conviction.

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21. It is contended by Mr. Khetrapal that the prosecution has miserably failed to establish the guilt of the appellants for the offences alleged against them. It is submitted that except the

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doubtful testimony of the prosecution witnesses and the alleged recovery of weapon, there is no other evidence available on record to establish that the appellants had committed murder of deceased Bhav Singh Gond or had caused disappearance of evidence. The prosecution has failed to bring on record any trustworthy, cogent or convincing evidence which may connect the appellants with the alleged offences. It is further submitted that the prosecution has failed to prove any motive or intention on the part of appellant No.1 to commit murder of the deceased. Learned counsel submits that in a case based upon circumstantial evidence, motive assumes great importance and when the prosecution has failed to establish any motive, the conviction of the appellants cannot be sustained merely on suspicion or conjectures. He also submits that the learned Trial Court has failed to properly appreciate the defence evidence led by the appellants. It is argued that the defence witnesses examined by the appellants have supported the defence version and have established that the appellants have been falsely implicated due to previous enmity. However, the learned Trial Court discarded the defence evidence without assigning any cogent reason.

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22. It is further submitted by Mr. Khetrapal that the learned Trial Court failed to appreciate that the deceased had actually died due to a road accident and there was no involvement of the appellants in his death. Learned counsel submits that the initial report lodged by the father of the deceased itself disclosed suspicion against an

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unknown vehicle and the possibility of accidental death was the first version brought before the investigating agency. It is argued that subsequently, due to previous enmity and ulterior motives, the appellants have been falsely implicated in the present case by giving a different colour to the incident. He submits that the evidence of PW-7 Dr. Anil Saraf, who conducted the post-mortem examination, has not been properly appreciated by the learned Trial Court. It is submitted that the doctor, during his crossexamination, has admitted that the injuries found on the body of the deceased could also be caused due to an accident. Therefore, the possibility of accidental death cannot be completely ruled out. It is argued that when the medical evidence itself creates doubt regarding the manner of death, the appellants are entitled to benefit of doubt. It is contended that the findings recorded by the learned Trial Court are perverse, contrary to the evidence available on record and based upon improper appreciation of evidence. It is argued that the learned Trial Court has failed to consider the settled principle of criminal jurisprudence that the prosecution is required to prove its case beyond all reasonable doubt and the accused cannot be convicted merely on the basis of suspicion.

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23. It is argued by Mr. Khetrapal that there are material contradictions and omissions in the statements and depositions of prosecution witnesses, which materially affect the credibility of the prosecution case. Such discrepancies could not have been ignored by the

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learned Trial Court while appreciating the evidence. It is submitted that the learned Trial Court has failed to consider the oral and documentary evidence available on record in its proper perspective and has recorded the finding of conviction without properly analysing the defence taken by the appellants. The impugned judgment, therefore, suffers from illegality, perversity and non-appreciation of evidence.

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24. Lastly, Mr. Khetrapal submits that if the case of the prosecution is accepted as it is, then also the appellant No.1 is said to have caused injuries to the deceased in spur of moment and inebriated condition. There was no motive or intention on the part of the him to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, in inebriated condition, the appellant caused injuries to the deceased, which caused his death. He urged that: (a) there was no premeditation; (b) the incident ensued during a sudden domestic quarrel; (c) the appellant was inebriated; (d) the assault consisted of a single blow; and (e) intention to cause death is absent; at best knowledge can be imputed. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant No.1 is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant No.1 for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Hence, the present appeal deserves

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to be allowed in full or in part as well as appellants No.2 and 3 be acquitted by giving benefit of doubt.

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25. On the other hand, Mr. Shaleen Singh Baghel, learned Government Advocate, appearing for the respondent/State supports the impugned judgment and submits that the same has been passed after proper appreciation of the oral and documentary evidence available on record. It is submitted that the prosecution has successfully proved the guilt of the appellants beyond reasonable doubt by leading cogent and reliable evidence. He contends that the evidence of the prosecution witnesses, particularly the evidence of PW-4 Rupsingh Sonwani, along with the medical evidence and other incriminating circumstances, clearly establishes the involvement of the appellants in commission of the alleged offences.

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26. Mr. Baghel further submits that the learned Trial Court has rightly appreciated the evidence relating to the memorandum statement of the accused persons, seizure of the weapon used in the crime and the FSL report, which confirms the presence of human blood on the seized weapon. It is argued that merely because some witnesses have not fully supported the prosecution case, the entire prosecution story cannot be discarded, particularly when the other evidence available on record establishes the chain of circumstances against the appellants. It is submitted that the contradictions and omissions pointed out by the defence are

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minor in nature and do not affect the core of the prosecution case. It is lastly submitted that the learned Trial Court, after considering the entire evidence and material available on record, has recorded a well-reasoned finding of conviction, which does not call for any interference by this Court. The prosecution has proved the charges under Sections 302 and 201 read with Section 34 of IPC against the appellants beyond reasonable doubt. Therefore, the appeal being devoid of merit deserves to be dismissed and the judgment of conviction and order of sentence passed by the learned Trial Court deserves to be affirmed.

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

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Points for Determination

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28. The learned Trial Court, on the basis of the allegations levelled against the accused persons and the evidence brought on record by the prosecution, considered the following points for determination:

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(i) Whether the prosecution has proved beyond reasonable doubt that accused Devdhar @ Devkumar Binjhwar, on 20.11.2022 between 06:30 PM and 07:00 PM, at his house situated at Village Bari Umarav, within the jurisdiction of Police Station Pali, District Korba (C.G.), caused the death

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of deceased Bhav Singh Gond by strangulating him and assaulting him with the wooden handle of a Tangia (axe) kept in the house, thereby committing an offence punishable under Section 302 of the Indian Penal Code?

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(ii) Whether the prosecution has further proved beyond reasonable doubt that after causing the death of deceased Bhav Singh Gond, accused Devdhar @ Devkumar Binjhwar, along with accused Manharan Binjhwar and Manoj Binjhwar, in furtherance of their common intention, removed and placed the dead body of the deceased on the paved road with an intention to create a false impression of a road accident and thereby caused disappearance of evidence of the offence, thereby committing an offence punishable under Section 201 read with Section 34 of the Indian Penal Code?

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(iii) Whether the judgment of conviction and order of sentence passed by the learned Trial Court against the appellants is sustainable in law and on the basis of evidence available on record?

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Findings and Reasons

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Point No.1: Whether the prosecution has proved beyond reasonable doubt that appellant No.1 Devdhar @ Devkumar Binjhwar, on 20.11.2022 between 06:30 PM to 07:00 PM at his

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house situated at Village Bari Umarav, Police Station Pali, District Korba (C.G.), caused the death of deceased Bhav Singh Gond by strangulating him and assaulting him with the wooden handle of Tangia, thereby committing an offence punishable under Section 302 of the Indian Penal Code?

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29. To appreciate the aforesaid question, it would be necessary to consider the entire evidence brought on record by the prosecution. The prosecution case primarily rests upon the testimony of PW-4 Rupsingh Sonwani, the evidence of PW-3 Ram Singh, medical evidence of PW-7 Dr. Anil Saraf, seizure of weapon pursuant to the memorandum statement of appellant No.1, and the FSL report (Ex.P-20).

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30. The learned Trial Court, after appreciating the evidence available on record, has recorded a finding that the prosecution has succeeded in proving that the deceased Bhav Singh Gond had suffered a homicidal death. The said finding is based upon the evidence of PW-7 Dr. Anil Saraf and the Post-Mortem Report (Ex.P-11). PW-7 Dr. Anil Saraf has opined that the death of the deceased was homicidal in nature. The said medical evidence has remained unrebutted and there is no serious challenge to the fact that the death of deceased Bhav Singh Gond was not natural but homicidal. The prosecution has examined PW-4 Rupsingh Sonwani as an eyewitness to the incident. Though PW-4 did not fully support the prosecution case in his Court statement and was

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declared hostile, however, the learned Trial Court has relied upon the material part of his testimony which remained intact during cross-examination. It is settled position of law that the evidence of a hostile witness is not to be discarded in toto and the portion which inspires confidence and finds corroboration from other evidence can always be relied upon.

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31. From the evidence of PW-4, coupled with the evidence of PW-3 Ram Singh, it is established that on the date of incident, the deceased had gone to the house of appellant No.1 Devdhar. PW3 Ram Singh has specifically stated that deceased Bhav Singh had gone towards the house of appellant Devdhar and thereafter he returned from there. The presence of appellant No.1 Devdhar along with other persons at his house at the relevant time has also been established.

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32. The prosecution has further relied upon the seizure of weapon. As per the case of the prosecution, pursuant to the memorandum statement of appellant No.1 recorded vide Ex.P-03, an iron Tangia having wooden handle was seized vide seizure memo Ex.P-06. The seizure witnesses PW-5 Sandeep Singh and PW-6 Brijlal have supported the seizure proceedings. The seized weapon was sent for forensic examination and as per FSL report (Ex.P-20), human blood was found on the said weapon. However, while considering the nature of offence committed by appellant No.1, this Court finds that the prosecution evidence does not establish

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beyond reasonable doubt that appellant No.1 had the intention to cause the death of the deceased so as to attract the offence punishable under Section 302 of IPC.

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33. The evidence available on record indicates that the incident occurred suddenly when the deceased had gone to the house of appellant No.1. There is no evidence available on record to establish that appellant No.1 had any premeditated intention or motive to commit murder of the deceased. The prosecution has not brought on record any previous planning or preparation on the part of appellant No.1.

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34. The evidence further indicates that there was a sudden altercation between the appellant No.1 and the deceased, during which appellant No.1 pressed the neck of the deceased and thereafter assaulted him by the wooden handle of Tangia. Though such act resulted in the death of the deceased, the circumstances established on record do not prove that appellant No.1 intended to cause death or intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death.

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35. It is a cardinal principle of criminal jurisprudence that the prosecution is required to establish its case beyond all reasonable doubt and the accused is entitled to the benefit of every reasonable doubt. The burden never shifts from the prosecution and suspicion, howsoever strong, cannot take the place of proof.

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36. The Hon’ble Supreme Court in Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808 , has held that if two views are possible on the evidence available on record, one pointing towards the guilt of the accused and the other towards his innocence, the view favourable to the accused must be adopted.

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37. Similarly, in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , the Supreme Court reiterated that the prosecution must prove its case by leading evidence which forms a complete chain and leaves no reasonable ground for a conclusion consistent with the innocence of the accused.

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38. In the present case, there is no dispute regarding the fact that deceased Bhav Singh Gond died a homicidal death. PW-7 Dr. Anil Saraf, who conducted the post-mortem examination, proved the post-mortem Report (Ex.P-11) and opined that the death was homicidal in nature. The said medical evidence has not been seriously disputed by the defence. However, the issue which falls for consideration before this Court is whether the prosecution has been able to establish beyond reasonable doubt that appellant No.1 Devdhar @ Devkumar Binjhwar was responsible for causing the homicidal death of the deceased and whether such act amounts to murder punishable under Section 302 IPC.

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39. The prosecution has primarily relied upon the testimony of PW-4 Rupsingh Sonwani, who was projected as an eyewitness to the

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incident. A perusal of the deposition of PW-4 reveals that though he supported certain parts of the prosecution story, he did not fully support the prosecution case during trial and was declared hostile. The defence has argued that once the star witness of the prosecution has turned hostile, there remains no evidence to sustain conviction. The said submission cannot be accepted in absolute terms.

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40. It is well settled that the testimony of a hostile witness cannot be discarded in toto merely because the witness has not supported the prosecution completely. The Court is required to separate the grain from the chaff and may rely upon that portion of the evidence which is found to be reliable and duly corroborated by other evidence.

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41. The Hon’ble Supreme Court in Rameshbhai Mohanbhai Koli v. State of Gujarat, (2011) 11 SCC 111 , held that evidence of a hostile witness does not become effaced or washed off the record altogether and the portion which supports the prosecution case can be relied upon if it is otherwise trustworthy.

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42. Likewise, in C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567 , the Supreme Court held that merely because some witnesses have turned hostile, the entire prosecution case cannot be discarded if other evidence available on record establishes the guilt of the accused.

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43. Applying the aforesaid principles, this Court has carefully examined the testimony of PW-4. Though PW-4 has not completely supported the prosecution version, his evidence, when considered along with the medical evidence, seizure of weapon and surrounding circumstances, establishes the presence of appellant No.1 Devdhar @ Devkumar Binjhwar at the place of occurrence.

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44. The prosecution has relied upon the memorandum statement of appellant No.1 recorded under Section 27 of the Indian Evidence Act vide Ex.P-03 and subsequent seizure of iron Tangia vide Ex.P-06. PW-5 Sandeep Singh and PW-6 Brijlal have been examined as witnesses to the memorandum and seizure proceedings. The Investigating Officer PW-13 Assistant SubInspector Suresh Kumar Jogi has proved the entire investigation proceedings. The seized weapon was sent for forensic examination. The FSL report (Ex.P-20) indicates presence of human blood on the weapon.

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45. The law regarding discovery of a fact pursuant to disclosure statement is well settled. In State of Maharashtra v. Damu Gopinath Shinde, (2000) 6 SCC 269 , the Supreme Court held that only that portion of the statement which distinctly relates to the discovery of a fact is admissible under Section 27 of the Evidence Act. However, recovery of weapon by itself cannot be treated as conclusive proof of guilt unless the prosecution

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establishes a complete chain of circumstances connecting the accused with the crime.

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46. The most important issue before this Court is regarding the nature of offence committed by appellant No.1. The distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder has repeatedly been explained by the Hon’ble Supreme Court.

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47. In State of Andhra Pradesh v. Rayavarapu Punnayya, (1976) 4

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SCC 382 , the Supreme Court explained that culpable homicide is the genus and murder is its species. Every murder is culpable homicide but every culpable homicide is not murder.

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48. Similarly, in Pulicherla Nagaraju v. State of Andhra Pradesh,

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(2006) 11 SCC 444 , the Supreme Court observed that while determining whether a case falls under Section 302 or Section 304 IPC, the Court must consider factors such as the weapon used, the part of the body targeted, nature of injuries, circumstances in which the incident occurred and whether there was any premeditation.

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49. In the present case, the prosecution has not brought any material on record to establish that appellant No.1 had any prior intention or pre-planning to commit murder of the deceased. There is no evidence regarding any previous enmity or motive of such nature which could establish a deliberate intention to cause death. The

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evidence indicates that the occurrence took place suddenly and in the course of the incident appellant No.1 pressed the neck of the deceased and assaulted him with the wooden handle of Tangia, resulting in his death.

¶143

50. Though the act committed by appellant No.1 was dangerous and resulted in death, the prosecution has failed to establish the essential ingredient of intention required for bringing the case within the ambit of Section 300 IPC. The circumstances proved on record clearly establish that appellant No.1 had knowledge that such act was likely to cause death, but the prosecution has failed to prove that he intended to cause death or intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death.

¶144

51. Considering the totality of the circumstances, this Court is of the considered opinion that the act committed by appellant No.1 would fall within the ambit of culpable homicide not amounting to murder. The prosecution has succeeded in proving that the act of appellant No.1 was committed with the knowledge that such act was likely to cause death, but the element of intention required for conviction under Section 302 IPC has not been established beyond reasonable doubt. The conviction of appellant No.1 Devdhar @ Devkumar Binjhwar under Section 302 IPC is liable to be altered to Section 304 Part-II IPC.

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52. Accordingly, Question No.1 is answered partly in favour of the prosecution and partly in favour of appellant No.1-Devdhar @ Devkumar Binjhwar.

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Point No.2: Whether the prosecution has proved beyond reasonable doubt that after causing the death of deceased Bhav Singh Gond, appellant No.1 Devdhar @ Devkumar Binjhwar along with appellants No.2 Manharan Binjhwar and No.3 Manoj Binjhwar, in furtherance of their common intention, placed the dead body on the paved road to give it a colour of road accident and thereby caused disappearance of evidence of offence punishable under Section 201 read with Section 34 of the Indian Penal Code?

¶148

53. The next question which arises for consideration is as to whether the prosecution has been able to establish beyond reasonable doubt that after causing the death of deceased Bhav Singh Gond, appellant No.1 Devdhar @ Devkumar Binjhwar along with appellants No.2 Manharan Binjhwar and No.3 Manoj Binjhwar, in furtherance of their common intention, caused disappearance of evidence of the offence by shifting the dead body of the deceased and placing the same on the road with an intention to give it a colour of a road accident.

¶149

54. The prosecution case, in this regard, is that after committing the murder of deceased Bhav Singh Gond inside the house of appellant No.1 Devdhar, the appellants, acting in furtherance of

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their common intention, removed the dead body and placed it on the paved road so as to create an impression that the deceased had died due to a road accident and thereby attempted to screen the actual occurrence.

¶152

55. The learned Trial Court, relying upon the testimony of prosecution witnesses, particularly PW-4 Rupsingh Sonwani and the surrounding circumstances, convicted all the three accused persons for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code. However, on re-appreciation of the evidence available on record, this Court finds that the prosecution has failed to establish the essential ingredients necessary for sustaining conviction under Section 201 read with Section 34 IPC against the appellants.

¶153

56. Before examining the evidence, it would be appropriate to notice the legal requirements for constituting an offence under Section 201 IPC. The prosecution, in order to establish an offence under Section 201 IPC, is required to prove: (i) that an offence has been committed; (ii) that the accused knew or had reason to believe that such offence had been committed; (iii) that the accused caused disappearance of evidence of such offence or gave false information with the intention of screening the offender from legal punishment. Thus, mere suspicion that the accused might have attempted to conceal the crime is not sufficient. The prosecution is required to establish, by cogent and reliable evidence, a

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conscious and deliberate act on the part of the accused resulting in disappearance of evidence.

¶156

57. The Hon’ble Supreme Court in State of Karnataka v. M.V.

¶157

Mahesh, (2003) 3 SCC 353 , the Supreme Court held that mere knowledge of commission of an offence is not sufficient; the prosecution must further establish that the accused actively participated in causing disappearance of evidence with the intention of screening the offender. In the present case, the prosecution has relied mainly upon the evidence of PW-4 Rupsingh Sonwani to establish the alleged act of shifting the dead body. However, as discussed earlier, PW-4 did not fully support the prosecution case during his examination before the learned Trial Court and was declared hostile. Though a portion of the testimony of a hostile witness can be relied upon if it inspires confidence and finds corroboration from other evidence, the evidence of PW-4 regarding the alleged role of appellants No.2 and 3 in shifting the dead body does not receive any independent corroboration from other material available on record.

¶158

58. A perusal of the evidence of PW-5 Sandeep Singh, PW-6 Brijlal and PW-13 Assistant Sub-Inspector Suresh Kumar Jogi, who are the witnesses relating to investigation proceedings, reveals that their testimony is confined mainly to the preparation of spot map, memorandum statements, seizure proceedings and arrest of the accused persons. None of these witnesses have stated that they

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had seen appellants No.2 and 3 shifting the dead body or participating in any act of concealment of evidence.

¶161

59. It is also relevant to note that there is no recovery or discovery of any fact pursuant to the memorandum statements of appellants No.2 and 3 which may connect them with the alleged offence under Section 201 IPC. Their mere relationship with appellant No.1 or their alleged presence at the place of occurrence cannot by itself establish their participation in causing disappearance of evidence.

¶162

60. The prosecution has also failed to establish the existence of a common intention amongst the appellants for committing the offence punishable under Section 201 IPC. Section 34 IPC embodies the principle of joint liability and requires proof of a common intention amongst the accused persons to commit the particular criminal act. The existence of common intention cannot be presumed merely from the fact that more than one person has been implicated in the case. It must be established from the circumstances proved on record.

¶163

61. The Hon’ble Supreme Court in Krishnan v. State of Kerala, (1996) 10 SCC 508 , has held that common intention requires a prior meeting of minds, though it may develop on the spot, but the same must be proved from the circumstances of the case. Similarly, in Suresh v. State of U.P., (2001) 3 SCC 673 , the

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Supreme Court held that the prosecution must establish the existence of common intention by clear and cogent evidence and the same cannot be inferred merely on the basis of suspicion.

¶166

62. Applying the aforesaid principles to the facts of the present case, this Court finds that the prosecution has not adduced convincing evidence to establish a pre-arranged common intention amongst appellants No.2 Manharan Binjhwar and No.3 Manoj Binjhwar to cause disappearance of the evidence of the principal offence. Nevertheless, the evidence available on record, particularly the circumstances proved during investigation and the conduct of the appellants immediately after the occurrence, is sufficient to sustain their conviction under Section 201 read with Section 34 of the IPC. However, having regard to the overall facts and circumstances of the case and the nature of their role, this Court is of the opinion that the substantive sentence awarded to them deserves to be modified.

¶167

63. So far as appellant No.1 Devdhar @ Devkumar Binjhwar is concerned, this Court has already held that he was responsible for causing the homicidal death of deceased Bhav Singh Gond and that his conviction under Section 302 IPC is liable to be altered to one under Section 304 Part-II IPC. The material available on record also justifies maintaining his conviction under Section 201 read with Section 34 IPC. However, considering that the substantive sentence imposed upon him for the principal

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offence is being modified to rigorous imprisonment for a period of five years under Section 304 Part-II IPC, no useful purpose would be served by requiring him to undergo the separate substantive sentence awarded under Section 201 read with Section 34 IPC.

¶170

64. Sentencing is an exercise of judicial discretion and has to be proportionate to the nature of the offence, the role attributed to the accused and the attendant circumstances of the case. While maintaining the finding of guilt under Section 201 read with Section 34 IPC, this Court finds that the ends of justice would be adequately served by reducing the substantive sentence awarded thereunder to the period already undergone by each of the appellants.

¶171

65. This course would strike a proper balance between maintaining the finding of guilt recorded by the learned Trial Court under Section 201 read with Section 34 IPC and ensuring that the sentence imposed remains just, fair and proportionate in the peculiar facts and circumstances of the present case.

¶172

66. Consequently, while the conviction of appellant No.1 Devdhar @ Devkumar Binjhwar under Section 201 read with Section 34 IPC is affirmed, the substantive sentence awarded to him thereunder is reduced to the period already undergone. Likewise, the conviction of appellants No.2 Manharan Binjhwar and No.3 Manoj Binjhwar under Section 201 read with Section 34 IPC is

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maintained, but the substantive sentence awarded to each of them is reduced to the period already undergone.

¶175

67. Accordingly, Point No.2 is answered by holding that although no interference is called for with the conviction of the appellants under Section 201 read with Section 34 IPC, interference is warranted with respect to the quantum of sentence awarded thereunder.

¶176

68. The impugned judgment of conviction and order of sentence, therefore, deserves to be modified to the limited extent that the conviction of appellant No.1 under Section 302 IPC is altered to one under Section 304 Part-II IPC with a sentence of rigorous imprisonment for five years, while the conviction of all the appellants under Section 201 read with Section 34 IPC is maintained and the substantive sentence awarded thereunder is reduced to the period already undergone by each of them.

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Point No.3: Whether the judgment of conviction and order of sentence passed by the learned Trial Court requires interference by this Court?

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69. Having considered the rival submissions advanced by learned counsel appearing for the parties and after re-appreciating the entire oral and documentary evidence available on record, this Court has already recorded its findings on the aforesaid issues. The evidence available on record, when considered in its entirety,

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establishes that the death of deceased Bhav Singh Gond was homicidal in nature and appellant No.1 Devdhar @ Devkumar Binjhwar was responsible for causing injuries to the deceased which ultimately resulted in his death. However, the crucial question which arises for consideration is whether the act committed by appellant No.1 would amount to an offence punishable under Section 302 of the Indian Penal Code or whether the same would fall within the ambit of culpable homicide not amounting to murder punishable under Section 304 Part-II of the IPC.

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70. It is a settled principle of law that while exercising appellate jurisdiction, this Court is required to undertake an independent reappreciation of the entire evidence available on record and determine whether the findings recorded by the learned Trial Court are sustainable in law. The appellate Court is not required to merely examine whether another view is possible, but is required to ascertain whether the conclusions arrived at by the learned Trial Court are based upon proper appreciation of evidence and legal principles.

¶182

71. The Hon’ble Supreme Court in Ghurey Lal v. State of Uttar Pradesh, (2008) 10 SCC 450 , has held that the appellate Court has a duty to reappreciate the evidence and examine the correctness of the findings recorded by the Trial Court. Similarly, in Chandrappa and Others v. State of Karnataka, (2007) 4

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SCC 415 , the Supreme Court held that an appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal or conviction is founded.

¶185

72. In the present case, after careful scrutiny of the evidence, this Court finds that the learned Trial Court has rightly concluded that appellant No.1 Devdhar @ Devkumar Binjhwar had caused injuries to the deceased which resulted in his death. The evidence of PW-7 Dr. Anil Saraf, the post-mortem report (Ex.P-11), the evidence relating to the seizure of weapon vide Ex.P-06 and the FSL report (Ex.P-20), when considered together, establish the involvement of appellant No.1 in causing the death of deceased Bhav Singh Gond. However, this Court finds that the learned Trial Court fell into error in holding that the act of appellant No.1 amounts to murder punishable under Section 302 IPC. The prosecution evidence does not establish the existence of premeditation or a prior plan on the part of appellant No.1 to commit murder of the deceased. There is no evidence available on record to show that appellant No.1 had any motive or intention to cause death of the deceased.

¶186

73. The circumstances proved on record indicate that the incident occurred suddenly and in the course of the occurrence, appellant No.1 assaulted the deceased by pressing his neck and using the wooden handle of Tangia. Though the act committed by appellant No.1 was sufficient to cause death, the prosecution has failed to

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establish that appellant No.1 intended to cause death or intended to cause such bodily injury which, in the ordinary course of nature, was sufficient to cause death.

¶189

74. The distinction between murder and culpable homicide not amounting to murder has been explained by the Hon’ble Supreme Court in several decisions. In Rayavarapu Punnayya, (supra), the Supreme Court held that culpable homicide is the genus and murder is the species and every murder is culpable homicide but every culpable homicide is not murder. The Court further held that while determining whether a case falls under Section 302 or Section 304 IPC, the intention and knowledge of the accused are the determining factors. Further, in Pulicherla Nagaraju (supra), the Hon’ble Supreme Court observed that the Court must consider various circumstances, including the weapon used, the part of the body targeted, the force used, the nature of injuries, the circumstances in which the incident occurred and whether there was any premeditation, while determining the applicability of Section 302 IPC.

¶190

75. Applying the aforesaid principles to the facts of the present case, this Court is of the considered opinion that though appellant No.1 had knowledge that his act was likely to cause death, the prosecution has failed to prove the element of intention necessary to constitute the offence of murder. Therefore, the conviction of appellant No.1 under Section 302 IPC cannot be sustained and

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the same deserves to be modified. Accordingly, the conviction of appellant No.1 Devdhar @ Devkumar Binjhwar under Section 302 of the Indian Penal Code is altered to one under Section 304 PartII of the Indian Penal Code.

¶193

76. Now coming to the question of sentence, it is required to be considered that sentencing is a matter requiring balancing of various factors, including the nature of occurrence, manner of commission of offence, circumstances in which the incident occurred, conduct of the accused and the possibility of reformation. The Hon’ble Supreme Court in State of Punjab v. Bawa Singh, (2015) 3 SCC 441 , has held that while awarding sentence, the Court must adopt a balanced approach keeping in mind both the gravity of the offence as well as the possibility of rehabilitation of the accused.

¶194

77. Considering the overall facts and circumstances of the present case, the nature of occurrence, absence of any material establishing premeditation, and the fact that the offence has been altered from Section 302 IPC to Section 304 Part-II IPC, this Court is of the opinion that rigorous imprisonment for a period of 05 years would meet the ends of justice.

¶195

Conviction under Section 201 read with Section 34 IPC

¶196

78. So far as the conviction of appellant No.1 Devdhar @ Devkumar Binjhwar and appellants No.2 Manharan Binjhwar and No.3 Manoj

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Binjhwar under Section 201 read with Section 34 of the Indian Penal Code is concerned, upon re-appreciation of the entire evidence available on record, this Court does not find any sufficient ground warranting interference with the finding of guilt recorded by the learned Trial Court. The conviction of the appellants under the said provision, therefore, deserves to be affirmed. However, so far as the quantum of sentence is concerned, this Court is of the considered opinion that the facts and circumstances of the case justify interference. Having regard to the nature of the allegations, the role attributed to the appellants, the period of incarceration already undergone by them and the fact that the conviction of appellant No.1 under Section 302 IPC has been altered to one under Section 304 Part-II IPC with a sentence of rigorous imprisonment for five years, the ends of justice would be adequately met by reducing the substantive sentence imposed under Section 201 read with Section 34 IPC to the period already undergone by each of the appellants.

¶199

79. Sentencing is required to be proportionate to the gravity of the offence and the overall facts and circumstances of the case. In the considered opinion of this Court, while the finding of guilt recorded under Section 201 read with Section 34 IPC deserves to be maintained, no useful purpose would be served by requiring the appellants to undergo the remaining part of the substantive sentence awarded under the said provision.

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80. Consequently, while maintaining the conviction of appellant No.1 Devdhar @ Devkumar Binjhwar under Section 201 read with Section 34 IPC, the substantive sentence awarded to him thereunder is reduced to the period already undergone by him. Likewise, while maintaining the conviction of appellant No.2 Manharan Binjhwar and appellant No.3 Manoj Binjhwar under Section 201 read with Section 34 IPC, the substantive sentence awarded to each of them is reduced to the period already undergone by them.

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Conclusion

¶203

81. In view of the foregoing discussion and the findings recorded hereinabove, this Court is of the considered opinion that the learned Trial Court has rightly appreciated the involvement of appellant No.1 Devdhar @ Devkumar Binjhwar in causing the death of deceased Bhav Singh Gond, but erred in convicting him under Section 302 IPC. Accordingly, the conviction of appellant No.1 Devdhar @ Devkumar Binjhwar under Section 302 IPC is altered and converted into one under Section 304 Part-II IPC. He is sentenced to undergo rigorous imprisonment for a period of 05 years. It is stated that appellant No.1 has been in custody since 26.11.2022. He shall serve out the remaining part of the sentence, if any, in terms of this modified judgment.

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82. So far as the conviction of appellant No.1 Devdhar @ Devkumar

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Binjhwar under Section 201 read with Section 34 IPC is concerned, while maintaining his conviction thereunder, the substantive sentence awarded to him is reduced to the period already undergone by him. Similarly, while maintaining the conviction of appellant No.2 Manharan Binjhwar and appellant No.3 Manoj Binjhwar under Section 201 read with Section 34 IPC, the substantive sentence awarded to each of them is reduced to the period already undergone by them.

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83. Resultantly, the criminal appeal is partly allowed to the extent indicated hereinabove. The impugned judgment of conviction and order of sentence shall stand modified accordingly.

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84. It is stated that appellants No.2 Manharan Binjhwar and No.3

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Manoj Binjhwar are in jail. As the sentence awarded to them under Section 201 read with Section 34 IPC stands reduced to the period already undergone, they be released forthwith, if not required in connection with any other case.

¶210

85. Keeping in view the provisions of Section 437-A of Cr.P.C. (now Section 481 of BNSS), appellants- Manharan Binjhwar and Manoj Binjhwar are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- each with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that

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in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

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86. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant No.1 – Devdhar @ Devkumar Binjhwar is undergoing the jail term, to serve the same on the appellant No.1 informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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87. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.

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Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

¶216

Brijmohan

Devdhar @ Devkumar Binjhwar v. State of Chhattisgarh

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Devdhar @ Devkumar Binjhwar v. State of Chhattisgarh

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