Bahura Lohar vs State Of Chhattisgarh
2025 Latest Caselaw 4067 Chatt

Chattisgarh High Court

Bahura Lohar vs State Of Chhattisgarh on 30 April, 2025

Author: Sanjay K. Agrawal

Bench: Sanjay K. Agrawal

                                     1




                        Digitally signed
                        by BHOLA NATH
                        KHATAI
                        Date: 2025.05.03
                        16:48:59 +0530




                                             2025:CGHC:19602-DB


                                                          NAFR

        HIGH COURT OF CHHATTISGARH AT BILASPUR


                     CRA No. 1528 of 2017

Bahura Lohar S/o Late Bandhan Lohar Aged About 62 Years
Caste Lohar, Resident Of Village Pilkhi, Chowki Lodam, Police
Station And District Jashpur, Chhattisgarh
                                               ... Appellant
                                versus

State Of Chhattisgarh Through The Incharge, Police Chowki
Lodam, Police Station Jashpur, District Jashpur Chhattisgarh
                                                 ... Respondent


For Appellant    :   Mr. Ashutosh Shukla, Advocate
For Respondent :     Mr. Afroz Khan, P. L.


                       (Division Bench)


           Hon'ble Shri Justice Sanjay K. Agrawal
         Hon'ble Shri Justice Sanjay Kumar Jaiswal


                      Judgment On Board
                          (30.04.2025)
                                 2

Sanjay K. Agrawal, J.

1. This criminal appeal has been preferred under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 06.05.2017, passed by learned Sessions Judge, Jashpur, District Jashpur (C.G.) in Sessions Trial No.06/2017, whereby the appellant has been convicted for offence punishable under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1,500/-, in default of payment of fine, to further undergo additional rigorous imprisonment for 2 months.

2. The case of prosecution, in short, is that in the intervening night of 18/19.09.2016, near Nala Pulia of village Pilkhi, Chowki Lodam, Police Station & District Jashpur, the appellant herein assaulted his younger brother Mahaprasad Lohar (deceased) with an axe, by which, he suffered grievous injuries and died; thereby committed the aforesaid offence. The matter was reported to the Police, pursuant to which, Merg intimation was recorded vide Ex.P-15 and FIR was registered vide Ex.P-3. Inquest was conducted vide Ex.P-7 and dead body of deceased Mahaprasad Lohar was subjected to post-mortem, which was conducted by Dr. Ashutosh Tirkey (PW-9), who proved the post-mortem report Ex. P-13, according to which, cause of death was cardio respiratory failure due to tracheal cut injury and head injury at occipital region, mode of death was multiple blow by hard and sharp object at ant. and post neck region and nature of death was homicidal. Pursuant to memorandum statement of appellant (Ex. P-12), the alleged weapon of offence i.e. axe was seized vide Ex.P-10, which was sent for chemical examination to FSL along with other seized articles. As per FSL report Ex. P-

23, blood was found on Article-C i.e. the axe. After completion of investigation, appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law.

3. During the course of trial, in order to bring home the offence, prosecution examined as many as 11 witnesses and exhibited 27 documents. The appellant-accused in support of his defence has neither examined any witness nor exhibited any document. The statement of appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

4. The trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellant herein as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred by the appellant questioning the legality, validity and correctness of the impugned judgment.

5. Mr. Ashutosh Shukla, learned counsel for appellant would submit that the appellant has been convicted, without there being any evidence against him in respect of the commission of the offence, only on the ground that blood was found on the axe seized on the memorandum statement of appellant. He would further submit that the prosecution has not been able to prove its case beyond reasonable doubt, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt.

6. Mr. Afroz Khan, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. As such, the appeal deserves to be dismissed.

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

8. The case of prosecution is based on circumstantial evidence. The five golden principles which constitute the Panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads 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 Maharashtra2 where the following observations were made:

1 (1984) 4 SCC 116 2 (1973) 2 SCC 793

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) 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."

9. Now, we will consider the correctness of the circumstances recorded by the trial Court in the light of the principles of law laid down by the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda (supra).

10. The first circumstance culled out by the Trial Court is that there is an eye witness to the incident, Jeetvahan Ram (PW-

1), who is the grandson of the appellant. But this witness has not supported the case of prosecution and turned hostile.

11. The next circumstance culled out and found to be proved by the trial Court is that blood was found on the axe which was seized pursuant to the memorandum statement of the

appellant. Basant Lohar (PW-8) is the memorandum witness, who has supported the recording of the memorandum statement of appellant pursuant to which, the recovery of axe was made.

12. However, it is well settled principle of law that discovery of object at the disclosure of accused alone would not automatically lead to the conclusion that the offence was also committed by the accused and the burden lies on the prosecution to establish a close link between discovery of object and its use in the commission of offence. In this regard, the Hon'ble Supreme Court in the matter of Mustkeem alias Sirajudeen v. State of Rajasthan 3, in paragraph - 25 observed as under:

"25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.

13. Reverting to the facts of the present case, in light of the aforesaid principle of law laid down by their Lordships of the Supreme Court, it is clear that the recovery of axe pursuant to the memorandum statement of the appellant has been proved by Basant Lohar (PW-8). But, there is no evidence on record to hold that the said axe was used by the appellant in commission of the offence. Mere recovery of axe pursuant to the memorandum statement of the appellant cannot lead to the conclusion that the appellant has committed the said

3 (2011) 11 SCC 724

offence unless its use is established by the prosecution. Though as per FSL report Ex. P-23, blood was found on the axe but in the light of the principle of law laid down by the Supreme Court in the case of Mustkeem (supra), which has been followed in the matter of Raja Naykar v. State of Chhattisgarh4, the finding of blood stain on the seized article is one of the circumstances, on the sole basis of which, the accused cannot be convicted for the offence under Section 302 of IPC.

14. In view of the aforesaid discussion, we find that as per the principle of 'Panchsheel' laid down by the Hon'ble Supreme Court in the case of Sharad Birhichand Sarda (supra), the chain of circumstances is not so complete in which the appellant can be held guilty for the offence. The prosecution has failed to produce evidence to prove the guilt of the appellant beyond the shadow of doubt on the basis of the circumstantial evidence. Consequently, we are unable to uphold the conviction of the appellant for offence punishable under Section 302 of IPC and the appellant is entitled for acquittal on the basis of the principle of benefit of doubt.

15. Accordingly, the impugned judgment dated 06.05.2017 passed by the Trial Court convicting and sentencing the appellant for offence under Section 302 of IPC is hereby set aside/quashed on the basis of benefit of doubt and the appellant is acquitted of the said charge.

16. The appellant is on bail. He need not surrender in this case.

However, his bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the CrPC.

4 (2024) SCC Online SC 67

17. This criminal appeal, accordingly, stands allowed.

18. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any.

                   Sd/-    Sd/-         S               Sd/-
                    (Sanjay K. Agrawal)         (Sanjay Kumar Jaiswal)
Khatai                     Judge                        Judge