Chattisgarh High Court
Samay Lal Nishad vs State Of Chhattisgarh on 1 December, 2022
Page 1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 622 of 2013
Samay Lal Nishad, S/o Subeshing Nishad, Aged About 36
Years, R/o Village Gadadih, P.S. Bhakhara, District- Dhamtary,
Chhattisgarh. ---- Appellant
Versus
State of Chhattisgarh, S/o- Through - P.S. Bhakhara, District-
Dhamtari, Chhattisgarh. ---- Respondent
For Appellant : Shri Viprasen Agrawal, Advocate
For Respondent/State : Shri Arjit Tiwari, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
01/12/2022
Sanjay K. Agrawal, J.
1) This Criminal Appeal under Section 374 (2) of the CrPC is
directed against the impugned judgment of conviction and
order of sentence dated 28.01.2013 delivered by learned
Additional Sessions Judge, Dhamtari, District- Dhamtari
(C.G.) in Sessions Trial No.49/2012 whereby the
appellant/accused has been convicted for the offence
punishable under Section 302 of the IPC and sentenced to
life imprisonment and fine of Rs.500/-, in default of payment
of fine, additional R. I. for two months.
2) Case of the prosecution, in brief, is that in the intervening
night of 05.08.2012 and 06.08.2012 between 9 P.M. and
01.40 A.M. at village Gadadih, the appellant caused axe
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injury to the deceased/Fagwaram by which he suffered
injuries and died instantaneously. Further case of the
prosecution is that in the night of 05.08.2012, complainant
Smt. Soniya Bai (PW/1) and her husband Fagwaram Dhruw/
deceased, both were sleeping in outskirts of their
agricultural field at a distance of 200 yard (Gaj). At about
1.30 A.M., village Kotwar- Karan Singh (PW/2) along with
Mansha Ram Nishad (PW/4), Preetram Lohar and
Ramsagar Sahu (PW/3), came and asked Smt. Soniya Bai
(PW/1) about Fagwaram/ deceased. She informed them that
Fagwaram/deceased is sleeping on the bund and then they
went there, on flashing torch light on Fagwaram/deceased,
they found him dead, lying with stain of blood. Thereafter,
Smt. Soniya Bai (PW/1) lodged merg intimation vide
Ex.P/16 in Police Station Bharwara on 06.08.2012 at 7.20
A.M. to the effect that the deceased was sleeping on bund
(medh) of the agricultural field at distance of about 200 yard
(Gaj) from her and she had seen the deceased lying dead
stained with blood. She stated in the said report that last
year her husband had sold 1 acre agricultural land to the
appellant herein, but sale deed of the said land was not
executed by the deceased and on that account, dispute
between them was going on. The deceased restrained the
appellant not to cultivate the said land as sale deed of the
said land was not executed. On that account, appellant
committed murder of the deceased by means of axe.
Pursuant to the merg intimation (Ex.P/16), FIR was
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registered vide Ex.P/17 for the offence punishable under
Section 302 of the IPC against the appellant. Investigating
Officer, Narendra Pujari (PW/13) reached to the spot,
prepared spot map vide Ex.P/19 and conducted inquest in
the presence of panchas vide Ex.P/8. Thereafter, on
recommendation of the panchas, the dead body of the
deceased was sent for postmortem vide Ex.P/10A, which
was conducted by Dr. Vinod Pandey (PW/10) and the report
has been submitted vide Ex.P/10 in which cause of death
was stated to be shock due to excessive external
haemorrage and death was homicidal in nature. From the
spot, white garland of pearls, red coloured silk thread, one
white coloured button, locket etc. along with blood stained
soil and simple soil were seized vide Ex.P/02. At the
instance of the appellant/accused iron axe, full shirt-pant
and t-shirt were also seized vide Ex.P/3. Thereafter, all the
seized articles were sent for chemical analysis and the FSL
report has been filed as Ex.P/20, in which buttons & thread
seized from the shirt of the appellant and from the spot,
were found to be identically similar.
3) After due investigation, the appellant/accused was charge-
sheeted before the jurisdictional criminal Court and it was
committed to the trial Court for hearing and disposal in
accordance with law, in which appellant/accused abjured his
guilt and entered into defence by stating that he has falsely
been implicated in the crime in question, so that the
consideration amount and land in question are not required
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to be returned. However, he examined Leela Bai (DW/1) in
his defence.
4) In order to bring home the offence, prosecution examined
13 witnesses and brought into record 21 documents.
5) The trial Court, after appreciating oral and documentary
evidence on record, convicted the appellant/accused and
awarded sentence as mentioned herein-above against
which this appeal has been preferred by him questioning the
impugned judgment of conviction and order of sentence.
6) Shri Viprasen Agrawal, learned counsel for the
appellant/accused, would submit that conviction of the
appellant is founded only on the basis of circumstantial
evidence which is of a weak nature that the button
recovered from the spot and the button of the shirt
recovered from the appellant are similar and the thread is
also similar. Merely on the basis of FSL report (Ex.P/20), no
conviction can be recorded. Furthermore, though the axe
has been recovered and sent for FSL, but its report has not
been brought on record and merely on the basis of button,
pant and shirt, conviction cannot be recorded, as such,
finding of conviction recorded by the trial Court is liable to be
set-aside. He would rely on the decision of the Supreme
Court in the matter of Digamber Vaishnav and another v.
State of Chhattisgarh1 to buttress his submission.
7) Shri Arjit Tiwari, learned State counsel would support the
1 (2019) 4 SCC 522
Page 5
impugned judgment of conviction and submit that the
prosecution has been able to bring home the guilt of the
appellant and rightly proceeded in convicting the appellant
for the aforesaid offence, therefore, the appeal deserves to
be dismissed.
8) We have heard learned counsel for the parties, considered
their rival submissions made herein-above and went through
the records with utmost circumspection.
9) The first question for consideration would be, whether the
death of the deceased- Fagwaram was homicidal in nature,
which has been answered by the learned trial Court in
affirmative by taking into consideration the oral and
documentary evidence available on record and particularly
relying upon the postmortem report (Ex.P/10) wherein Dr.
Vinod Pandey (PW/10) has opined that cause of death is
shock due to excessive external Hemorrhage which is
homicidal in nature, which is a correct finding of fact based
on evidence available on record and which is neither
perverse nor contrary to the record and we hereby affirm the
said finding.
10) Now, the next question would be, whether the appellant is
perpetrator of the crime, which has been answered by the
learned trial Court in affirmative merely relying upon the
motive for the offence as well as the FSL report Ex.P/20 in
which the button with thread recovered from the spot and the
shirt and button from the possession of the appellant are
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identically similar.
11) We will deal with all incriminating circumstances one by one.
12) The first circumstance, put forth in the case of the
prosecution, is that as the deceased has sold his 1 acre
agricultural land to the appellant for cash consideration of Rs.
5,45,000/-, initially he received Rs. 3,70,000/- as advance
and he allowed the appellant herein to cultivate the said land
for two years but after two years, he did not allow the
appellant herein to cultivate the suit land and that is the
reason, the appellant had murdered the deceased on the
fateful day, thereby the motive has been established.
13) It is well settled law that the "motive may be an important
circumstance in a case based on circumstantial evidence but
cannot take the place of conclusive prove". (see Sampath
Kumar v. Inspector of Police, Krishnagiri2 )
14) The next circumstance pointed out by the trial Court is that
the button (Article-'C') seized from the spot and one button
with thread taken out from the seized shirt of the appellant
vide Article-E3 which was worn by the appellant, were found
identically similar, as per FSL report (Ex.P/20) which is one of
the incriminating circumstance, leading to the guilt of the
appellant, correctness of which is required to be considered
by us.
15) FSL report (Ex.P/20) for the button with thread seized from
the spot and thread and one button taken from the seized
2 AIR 2012 SC 1249
Page 7
shirt of the appellant states as under:-
"5. प्रदरर्र ्र 'C' ्रमे ्र प्र्र ्र बटन ्र प््ासससटक ्र सदृश्य ्र गो््क्टि , ्रमधश्यम ्र
आक््टि ्रक् ्रबटन ्रहै ्र । ्र ्रजजसमे ्र च््टि ्रछछि ्रहै , ्रछछि ्रव््् ्रभ्ग ्र
हल्की ्रगह्टि्ी ्रश्युक ्रहै ्र। ्र ्रबटन ्रक् ्रननच्् ्रभ्ग ्रहल्के ्रस्ेटील ्र्टिंग ्र
क् ्रअप््टिदरर ्रहै ्र तथ् ्रब्की ्र भ्ग ्र्टिंगहीलन ्रअल्पप््टिदरर ्रहै ्र । ्र
बटन ्रमे ्रहल्के-नील्े ्र्टिंग ्रकी ्रटंक्ी ्रक् ्रध्ग् ्रफंस् ्रहै ्र।
6. प्रदरर्र ्र E3 ्रमे ्रप्र्र ्रहल्के ्रनील्े ्र्टिंग ्रकी ्रपू्टिील ्रब्ंह ्रकी ्ररटर्र ्रमे ्रस्मने ्र
के ्रपले ्रमे ्रछः ्रक्ज ्रबने ्रहै ्रजजनकी ्रसंगत ्रासससथ्तश्यि ्रमे ्रएक-एक ्र
बटन ्र्ग् ्रहै ्र। ्र ्रजजिहे ्रऊप्टि ्रसे ्रनीलचे ्रतक ्रकमरः ्र1 ्रसे ्र6 ्रतक ्र
अंनकत ्रनकश्य् ्रगश्य् ्र। ्र ्रदस ू ्टिे ्र('2' ्रअंनकत) ्रनम्ब्टि ्रके ्रक्ज ्रके ्र
स्मने ्रक् ्रबटन ्रनविम्न ्रनही ्रहै ्र। ्र ्रदोनि ्रब्ंहि ्रमे ्रभील ्रएक -एक ्र
क्ज ्र है ्र जजिहे ्र '7' ्रएवं ्र'8' ्रअंनकत ्र नकश्य् ्र गश्य् ्र इनकी ्र संगत ्र
ासससथ्तश्यि ्रमे ्र भील ्रएक -एक ्रबटन ्र्ग् ्रहै ्र । ्र ्ररटर्र ्र मे ्र ्गे ्र सभील ्र
बटन ्र एकसम्न ्र है ्र अतः ्र तु्न्तमक ्र प्टिीलक् ्र हेतु ्र एक ्र बटन ्र
ननक््् ्रगश्य् ्र। ्र ्रसभील ्रबटनि ्रमे ्र हल्क ्रनील्े ्र ्टिंग ्रक् ्रटंक्ी ्रक् ्र
ध्ग् ्र्ग् ्रहै ्र।
7. प्रदरर्र ्र 'C' ्रएवं ्र'E3' ्रकी ्ररटर्र ्रमे ्र्गे ्रबटनि ्रक् ्रनवछभभ ्रबबदओ ु ्रं प्टि ्र
तु्न्तमक ्रप्टिीलक् ्रक्टिने ्रप्टि ्रप्र्र ्रपत्टि््म ्रननम्न्नुस््टि ्रहैः-
S.No. अव्ोकन ्रबबद ु प्रदरर्र ्रC प्रदरर्र ्रE3
i बटन ्र क् ्र ्टिंग ्र एवं ्र प््ासससटक ्र सदृश्य, ्र प््ासससटक ्र
बन्वट गो््क््टि, ्रमधश्यम ्र सदृश्य, ्र
आक््टि ्र क्, ्रच््टि ्र गो््क््टि, ्र
छछि ्र व््् ्र छछि ्र मधश्यम ्र आक््टि ्र
हल्की ्र गह्टि्ी ्र मे ्र । ्र क्, ्रच््टि ्र
बटन ्र क् ्र ननच्् ्र छछिव््् ्र छछि ्र
भ्ग ्र हल्क्-स्ेटील ्र हल्की ्रगह्टि्ी ्रमे ्र
अप््टिदरर ्र है ्र तथ् ्र । ्र ्र बटन ्र क् ्र
ब्की ्र भ्ग ्र ्टिंगहीलन ्र ननच्् ्र भ्ग ्र
अल्प-प््टिदरर ्रहै ्र। हल्की ्र स्ेटील ्र
अप््टिदरर ्र है ्र
तथ् ्रब्की ्रभ्ग ्र
्टिंगहीलन ्र अल्प-
प््टिदरर ्रहै ्र।
ii बटन ्रक् ्रव्श्य्स 1.134 ्रcms 1.134 ्र± ्र
0.02 ्रcms
iii बटन ्रकी ्रमोट्ी 0.188 ्रcms 0.188 ्र± ्र
0.06 ्रcms
iv बटन ्र की ्र अपे्कत ्र 1.4 1.4
घनतव
बटन ्र की ्र long ्रu.v. हल्क् ्रज्मुनील हल्क् ्रज्मुनील
v u.v. ्र short ्र कीलम कीलम
प्र्तदीलनर u.v.
vi टंक्ी ्रके ्रध्गे ्रक् ्र्टिंग हल्क् ्रनील्् हल्क् ्रनील््
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vii टंक्ी ्र के ्र ध्गे ्र क् ्र संश्लेनषित ्रप्रकृ्त ्रक् संश्लने षित ्रप्रकृ्त ्र
सूक्ष्मदरर ्रप्टिीलक् क्
viii टंक्ी ्र के ्र ध्गे ्र क् ्र Forms ्र black- Forms ्र
Home ्रtest hard ्र bead ्र like ्र black-hard ्र
structure bead ्र like ्र
structure
अछभमत
उपश्युर्रक ्रप्टिीलक् ्रके ्रआध््टि ्रप्टि-
1. प्रदरर्र ्र 'C' ्रमे ्र प्र्र ्रबटन ्रतथ् ्रप्रदरर्र ्र 'E3' ्र(E) ्रकी ्रपु्टिील ्रब्ंह ्रकी ्र
रटर्र ्रमे ्र्गे ्रबटन ्रएवं ्रटंक्ी ्रक् ्रध्ग् ्रएकसम्न ्रहै ्र।
2. प्रदरर्र ्र 'A' ्रएवं ्र'B' ्रमे ्रप्र्र ्रनमिील ्रतथ् ्रप्रदरर्र ्र 'E' ्रएवं ्र'F' ्रके ्रकपडि ्र
मे ्र्गील ्रनमिील ्रके ्रभौ्तक ्रगु्धमर्र ्रएकसम्न ्रहै ्र।"
16) At this stage, it is appropriate to notice the decision of the
Supreme Court in the matter of Digamber Vaishnav and
Another v. State of Chhattisgarh 3 with reference to recovery
of buttons in identical fact situation it has been held as under:-
"37.The shirt of appellant No.2
recovered from him in pursuance of his
statement under Section 27 of the
Evidence Act is allegedly matched with
the small broken button found at the
scene of crime. This has been relied
upon by the Courts below as another
circumstances to corroborate the
presence of the appellants at the
scene of crime. However, there is
nothing on record to show that the shirt
is unique and cannot be matched with
the shirt of any other person. PW/13
has admitted in his testimony that
shirts of the same kind are easily
available in the market. In such
circumstances, it cannot be
conclusively proved that the shirts are
in any way unique to the 'appellants'
shirt to the exclusion of everyone else.
Therefore, the reliance placed with
analysis of the shirt in the absence of
any unique make thereof is improper."
17) Reverting to the facts of the present case in the light of the
observation made by their Lordships of the Supreme Court in
Digamber Vaishnav (supra) and in light of FSL report
3 (2019) 4 SCC 522
Page 9
Ex.P/20, it is quite vivid that prosecution has not established
that one button with thread that has been seized from the spot
is unique button and is not easily available in the market, thus,
recovery of button from the spot and resemblance of the
appellant's shirt button by FSL report (Ex.P/20) and thereby
recording that as one of the incriminating circumstances is
clearly not established and it cannot be held to be one of the
incriminating circumstances. Furthermore, the incident took
place in the intervening night of 05.08.2012 and 06.08.2012 and
police recovered shirt from the accused on 06.08.2012 at 6.25
P.M. which was worn by the appellant at the time of incident, after
delay of 18 Hrs. It is completely unbelievable that after committing
murder, the accused would remain in the same shirt for more
than 18 Hrs, so that police can recover shirt for matching the
button recovered from the spot, which makes the case of the
prosecution quite suspicious and doubtful. Similarly, soil found
in Articles - A, B, E & F can be one of the incriminating
circumstances, if that kind of soil is exclusive soil, found
therein and it is not available anywhere else in the locality or
place where the accused resides and furthermore, recovery
witness Karan Singh (PW/2) and Kanhaiya Lal Singh (PW/9)
have not clearly supported the seizure of the button and
thread, thus, the said seizure has not been proved accordance
with law and it is of no use to prosecution.
18) In sum and substance, none of the circumstances, found
proved by the trial Court is established beyond reasonable
doubt pointing out towards the guilt of the accused. As such,
Page 10
the prosecution has failed to prove five punchsheel principles
required to be proved when a case is based on circumstantial
evidence beyond reasonable doubt.
19) The five golden principles to constitute the panchsheel of
the proof of a case based on circumstantial evidence have
been narrated by their Lordships of the Supreme Court in the
matter of Sharad Birdhichand Sarda v. State of
Maharashtra4 , in which it was observed in paragraph 153 as
under :-
"153. 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 :
(1)the circumstances from which the
conclusion of guilt is to be drawn
should be fully established.
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
Maharashtra5 where the following observations
were made : [SCC para 19, p. 807 : SCC (Cri)
p. 1047]
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.
(2)the facts so established should
be consistent only with the
hypothesis of the guilt of the
accused, that is to say, they should
not be explainable on any other
hypothesis except that the accused
is guilty,
(3)the circumstances should be of a
conclusive nature and tendency,
4 (1984) 4 SCC 116
5 (1973) 2 SCC 793
Page 11
(4)they should exclude every
possible hypothesis except the one
to be proved, and
(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."
20) Reverting to the facts of the present case in light of the
observation made by their Lordships of the Supreme Court in
Sharad Birdhichand Sarda (supra), it is quit vivid that the trial
Court is absolutely unjustified in convicting the appellant under
Section 302 of the IPC. As such, we are unable to uphold the
impugned judgment and we hereby set-aside the impugned
judgment of conviction and order of sentence dated
28.01.2013.
21) Accordingly, the impugned judgment of conviction recorded
and sentence awarded dated 28.01.2013 is hereby set-aside.
The appellant is acquitted of the charge under Section 302 of
IPC. Since he is already on bail, he need not to surrender,
his bail bonds shall remain in operation for a period of six
months in view of provision contained in Section 437-A of the
CrPC.
22) The instant criminal appeal is allowed to the extent indicated
herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Nadim
