For Appellant : Mr.Prasoon Agrawal, Advocate
For Respondent : Mr.Saumya Rai, Deputy Government
Advocate
Hon'ble Shri Ramesh Sinha, Chierf Justice and
Hon'ble Shri Ravindra Kumar Agrawal, Judge
1. At the outset, learned counsel for the appellant submits that, apart
from the present case, two other criminal cases have been
registered against the appellant for offences under Sections 302
POCSO Act. It is further submitted that a coordinate Bench of this
Nos. 547/2020 and 579/2020, has dismissed the appeals filed by
the appellant in those matters. However, considering that the FIR
2. This criminal appeal under Section 374(2) of the CrPC is directed
i.e. imprisonment for life and fine of ₹5,000/-, in default of payment
3. The case of the prosecution is that on 24.10.2018 at about 7:45
Pathalgaon and lodged a merg intimation (unnatural death report).
road near Chhatkan on Pangsuwa-Jhakkadpur Road. Upon
dead with a head injury, from which blood had oozed out. The
sleeve shirt. A Hero Honda Deluxe motorcycle (No. CG-13-P-
tied to it. An Idea company SIM card was also found at the scene.
The cause of death was unknown at that time. On inquiry, the
4. Based on this report, Police Station Pathalgaon registered Merg
Intimation No. 94/2018 and initiated investigation. The
and conducted inquest proceedings in the presence of witnesses.
"The body of the deceased was normal. The occipital
bone of the head was fractured. The right lung and left
lung, trachea were congested. The right and left sides
of the heard were filled with blood. The contents of the
stomach were partially digested food in the small
intestine. There were residues in the large intestine.
The spleen, kidney and spleen were congesed and the
occipital bone of the head was fractured."
The doctor has opined cause of death was shock due to
hemorrhage in frontal region of head. From the spot, plain soil,
blood-stained soil, a towel (gamcha), the SIM card, and the
motorcycle were seized. Consequently, an FIR was registered
against unknown persons under Section 302 of the Indian Penal
Code. During investigation, it was found that the deceased's
mobile phone (VELLCOM set) had been stolen. By tracing the
IMEI number, the police discovered that the phone was being
used with SIM number 8964058222, which was issued in the
name of Dilip Pawle. Dilip stated that he had given the SIM to his
brother Deepak Pawle. On 06.01.2019, the police seized the
mobile phone from Deepak Pawle, who disclosed that he had
purchased it from the accused Ajay Pawle alias Dhola alias
Bankhandi for ₹1000/-. Further investigation revealed that in
another case registered at Police Station Tapkara, the accused
Ajay made a memorandum statement on 15.04.2019, confessing
his involvement in multiple crimes. In relation to the present case,
he stated that on 23.10.2018, he and co-accused Raju alias Kalu
alias Kariya stopped the deceased, who was riding a motorcycle
carrying milk, by obstructing his way. They demanded money and
assaulted him with a wooden stick on the head, causing his death.
They then took his mobile phone and wallet, removed and
discarded the SIM card, and later sold the mobile phone to
Deepak Pawle. The weapon (wooden stick) and other items were
disposed of.
5. Based on this disclosure, the police recovered the wooden stick
and seized the motorcycle from the accused. The accused was
arrested on 25.04.2019 in the presence of witnesses. Statements
of witnesses were recorded, forensic examination of seized
articles was conducted, and reports were obtained.
6. After completion of investigation, a charge sheet was filed on
22.07.2019 before the Judicial Magistrate First Class, Pathalgaon
against accused Ajay Pawle under Sections 302, 392, 341, 201,
and 34 of the Indian Penal Code. The case was subsequently
committed to the Sessions Court for trial. Investigation against the
co-accused Raju continued under Section 173(8) CrPC. Charges
were framed on 02.09.2019 under Sections 341/34, 397/34,
302/34, and 201/34 IPC.
7. In order to prove the prosecution case, the prosecution examined
as many as 23 witnesses and exhibited 44 documents Exs.P-1 to
P-44. Statement of the accused/appellant under Section 313 of
the CrPC was recorded, in which he denied guilt. However, the
accused has not examined any defence witness nor exhibited any
documents.
8. The trial Court upon appreciation of oral and documentary
evidence available on record, by its judgment dated 29.10.2022,
held the appellant guilty for offences under Sections 302, 397, 341
and 201 of the IPC and accordingly, proceeded to convict the
appellant for the aforesaid offence and sentenced him as
aforementioned.
9. Mr.Prasoon Agrawal, learned counsel for the appellant, would
submit that the impugned judgment of conviction and order of
sentence passed by learned Trial Court are wholly erroneous,
both in law and on facts, and are therefore liable to be set aside.
The appellant deserves to be acquitted. He further submits that
learned trial Court has failed to appreciate that the prosecution
has not adduced any credible evidence to establish the presence
of the appellant at the alleged place of occurrence on the date of
the incident. Learned Trial Court has further erred in not
considering the defence version put forth by the appellant, thereby
causing serious prejudice to the case of the appellant. He also
submits that the conviction of the appellant is unsustainable in
law, as the essential ingredients of the offence under the relevant
section have not been fulfilled in the present case. The
explanation furnished by the appellant in his statement recorded
under Section 313 Cr.P.C. has not been duly considered by the
learned Trial Court, which vitiates the impugned judgment. He
contended that there is no eye-witness to the alleged occurrence,
and the prosecution case rests on weak and insufficient evidence,
which is inadequate to sustain a conviction. The sentence
imposed by the learned Trial Court is contrary to law. A careful
perusal of the evidence on record clearly demonstrates that the
prosecution has miserably failed to prove the charges beyond
reasonable doubt. Hence, the appellant is entitled to the benefit of
doubt and consequent acquittal.
10. On the other hand, Mr.Saumya Rai, learned counsel for the
respondent / State, would oppose the submissions made by
learned counsel for the appellant and submit that the prosecution
has proved its case beyond all reasonable doubt and the trial
Court after considering the evidence available on record has
rightly convicted and sentenced the appellant as aforementioned,
which warrants no interference by this Court.
11. We have heard the learned appearing for the parties, considered
their rival submissions made hereinabove and also went through
the records with utmost circumspection.
12. The first question for consideration would be, whether death of
deceased Ramvilas Yadav was homicidal in nature, which the trial
Court has returned the finding in affirmative.
13. Dr.Santosh Patel (PW-23) has examined the dead body of the
deceased and submitted his report Ex.P-43, in which he has
clearly opined that cause of death was shock due to hemorrhage
in frontal occipital region of head.
14. After hearing learned counsel appearing for the parties and after
going through the records, we are of the considered opinion that
the finding recorded by the learned trial Court that death of
Ramvilas Yadav was homicidal in nature is the finding of fact
based on evidence available on record, which is neither perverse
nor contrary to record.
15. It is the case of no direct evidence, rather conviction is based on
circumstantial evidence.
16. The trail Court in para 55 of its judgment has held that until the
date of seizure of the mobile phone from Deepak Pawle, i.e.,
06.01.2019, accused Ajay alias Dhola had not come into custody
in Crime No. 22/19 of Police Station Tapkara. Rather, when the
accused Ajay alias Dhola was taken into custody and interrogated
on 15.04.2019 in the said case, he disclosed the incident of
murder and rape at Tapkara and, for the first time, also admitted to
committing the murder of the deceased in the present case. Thus,
about four months prior to the date (15.04.2019) on which Ajay
alias Dhola disclosed his involvement in the present case while in
custody, the deceased's mobile phone had already been seized
from Deepak Pawle on 06.01.2019. During cyber investigation,
Deepak Pawle was found using the said mobile phone, which led
to its seizure. At that time, he stated that the mobile phone had
been given to him by Ajay alias Dhola. Therefore, on the date
when there was no indication of Ajay alias Dhola's involvement in
the incident, it is not natural that Deepak Pawle would have
named Dhola at the instance of the police. Rather, it appears that
Deepak Pawle made a false statement.
17. In para 56 the trial Court has observed that the mobile phone
used by the deceased at the time of the incident, which was not
found at the scene, was later found to be in use by Deepak Pawle.
Deepak Pawle stated that the said mobile phone had been given
to him by accused Ajay Pawle. In para 57 of its judgment the trial
Court further observed that the second link in the chain of
circumstances is that after Deepak Pawle stated on 06.01.2019
that the mobile had been given to him by Ajay Pawle, accused
Ajay alias Dhola was taken into custody on 25.04.2019 in Crime
No. 22/19 of Police Station Tapkara under Sections 302 and 294
of the Indian Penal Code. During interrogation, he stated that
along with his associate Ramesh Badi alias Motu, he had found a
boy near Bartoli Dokarakachhar, assaulted him on the head with a
wooden stick, and robbed him of his mobile phone and
motorcycle. He further stated that while proceeding towards
Kerasai on the stolen motorcycle, they saw a boy and a girl riding
a bicycle near a turn. They chased them on the motorcycle, struck
the boy on the back of his head and neck with a stick, blindfolded
the girl, took her into the forest, and committed rape. He also
disclosed that in October 2018, along with co-accused Raju alias
Kalu alias Kariya, he had stopped a milkman travelling by
motorcycle between Pangsuwa and Jhagarpur, demanded money
and his wallet, and upon the milkman attempting to flee, struck
him on the head with a stick, took his mobile phone from his
pocket, removed and threw away the SIM card, and took the
wallet. They later threw away the stick near Gharjiabadhan, took
₹600 from the wallet, discarded it, and sold the mobile phone to
Deepak Pawle for ₹1,000. He further stated that the stick used in
the assault had been thrown near a dam and could be recovered.
The memorandum and recovery proceedings were corroborated
by prosecution witnesses Ramprasad Gayar (PW-9) and Sharan
Yadav (PW-11), whose testimonies remained materially unshaken
during cross-examination. The said stick was seized following the
accused's memorandum in Crime No. 22/19 of Police Station
Tapkara and has also been included in the seizure in the present
case. This is further supported by the testimony of Sub-Inspector
S.R. Bhagat (PW-19). In para 58 the trial Court also observed that
though there is no direct eyewitness in this case, the chain of
circumstances presented by the prosecution against the accused
has not been rebutted by Ajay Pawle alias Bankhandi. The mobile
phone used by the deceased at the time of the incident was
robbed by accused Ajay Pawle and later given to Deepak Pawle,
who was using it with a SIM issued in the name of his brother Dilip
Pawle. After the seizure, Deepak Pawle confirmed that the mobile
phone had been given to him by Ajay Pawle. Furthermore,
accused Ajay Pawle, in his memorandum, disclosed the stick used
in the crime, which was subsequently recovered. This completes
the chain of circumstances against him, supported by reliable
witness testimonies regarding the memorandum and seizure.
Therefore, based on the statements of the witnesses and the
circumstantial evidence against the accused, the Court finds that it
was Ajay alias Dhola alias Bankhandi, along with his associate
Raju alias Kalu alias Kariya, who, on 23.10.2018 at around 4-5
a.m., wrongfully restrained deceased Ramvilas Yadav while he
was travelling on a motorcycle, inflicted grievous injuries to his
head with the intention of causing death, and thereby committed
his murder. They also robbed him of his mobile phone and ₹600,
and, with the intention of concealing evidence, disposed of the
stick at another location.
18. Upon cumulative analysis of the material available on record and
evidence of the prosecution witnesses, at this stage, conviction
under Section 302 of the Indian Penal Code, which deals with
punishment for murder, cannot be sustained solely on the basis of
a chain of circumstances if that chain is not conclusively
established. The prosecution must prove beyond reasonable
doubt that all the links in the chain of circumstances consistently
point to the guilt of the accused. If there is any break or weakness
in the chain, or if the circumstances are open to multiple
interpretations, it creates doubt. Since a charge as serious as
murder demands the highest standard of proof, Courts are
cautious and do not convict based on an incomplete or unproven
chain of events. Therefore, without a firmly established chain of
circumstances, a conviction under Section 302 IPC cannot be
justifiably recorded.
19. In a case dependent on circumstantial evidence, the law is well
settled that the chain of circumstances must be complete,
conclusive, and exclude every hypothesis consistent with
innocence (Sharad Birdhichand Sarda v. State of Maharashtra
{AIR 1984 SC 1622}. Here, the chain is broken at multiple points:
hostile testimony from key relatives, unreliable extra-judicial
confession, doubtful recovery, and no conclusive forensic link.
20. The Supreme Court in the matter of Jagroop Singh v. State of
Punjab {(2012) 11 SCC 768} has held thus in paragraphs 12, 13,
14 & 15 which is reproduced hereunder:-
"12. In Sharad Birdhichand Sarda v. State of
Maharashtra [(1984) 4 SCC 116] a three-Judge
Bench has laid down five golden principles which
constitute the "panchsheel" in respect of a case
based on circumstantial evidence. Referring to the
decision in Shivaji Sahebrao Bobade v. State of
Maharashtra [1973 2 SCC 793], it was opined that
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. Thereafter, the Bench
proceeded to lay down that 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; that the circumstances should
be of a conclusive nature and tendency; that they
should exclude every possible hypothesis except
the one to be proved; and that 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.
13. In Padala Veera Reddy v. State of Andhra
Pradesh and others [1989 Supp (2) SCC 706], this
Court held that when a case rests upon
circumstantial evidence,the following tests must be
satisfied:
"10.........(1) the circumstances from which an
inference of guilt is sought to be drawn, must
be cogently and firmly established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of
the accused;
(3) the circumstances, taken cumulatively,
should form a chain so complete that there is
no escape from the conclusion that within all
human probability the crime was committed by
the accused and none else; and
(4) the circumstantial evidence in order to
sustain conviction must be complete and
incapable of explanation of any other
hypothesis than that of the guilt of the accused
and such evidence should not only be
consistent with the guilt of the accused but
should be inconsistent with his innocence."
A similar view has been reiterated in
Ramreddy Rajesh Khanna Reddy and
another v. State of A.P.[(2006) 10 SCC 172].
14. In Balwinder Singh v. State of Punjab [1995
Supp(4) SCC 259], it has been laid down:
"4. ........that the circumstances from which the
conclusion of guilt is to be drawn should be
fully proved and those circumstances must be
conclusive in nature to connect the accused
with the crime. All the links in the chain of
events must be established beyond
reasonable doubt and the established
circumstances should be consistent only with
the hypothesis of the guilt of the accused and
totally inconsistent with his innocence. In a
case based on circumstantial evidence, the
Court has to be on its guard to avoid the
danger of allowing suspicion to take the place
of legal proof and has to be watchful to avoid
the danger of being swayed by emotional
considerations, howsoever strong they may
be, to take the place of proof."
15. In Harishchandra Ladaku Thange v. State of
Maharashtra [(2007) 11 SCC 436], while dealing
with the validity of inferences to be drawn from
circumstantial evidence, it has been emphasised
that where a case rests squarely on circumstantial
evidence, the inference of guilt can be justified only
when all the incriminating facts and circumstances
are found to be incompatible with the innocence of
the accused or the guilt of any other person and
further the circumstances from which an inference
as to the guilt of the accused is drawn have to be
proved beyond reasonable doubt and have to be
shown to be closely connected with the principal fact
sought to be inferred from those circumstances."
21. Further, the Supreme Court in the matter of Pradeep Kumar v.
State of Chhattisgarh {(2023) 5 SCC 350} has observed thus in
para 27:-
"27. It is important to note that the cardinal principles
in the administration of criminal justice in cases where
heavy reliance is placed on circumstantial evidence,
is that where two views are possible, one pointing to
the guilt of the accused and the other towards his
innocence, the one which is favourable to accused
must be adopted."
22. When the case is entirely based upon the circumstantial evidence,
the chain of such circumstantial evidence in all probabilities 'must'
indicate towards guilt of accused and circumstances 'must be' and
not 'may be' lead towards guilt of accused.
23. Upon a careful and cumulative evaluation of the entire material
available on record, this Court is of the considered opinion that the
prosecution has failed to establish a complete and unbroken chain
of circumstantial evidence against the appellant.
24. It is not in dispute that the present case rests entirely on
circumstantial evidence and there is no direct eyewitness to the
alleged incident. In such cases, the law is well settled that each
circumstance relied upon by the prosecution must be firmly
established, and all such circumstances must form a complete
chain pointing unerringly towards the guilt of the
accused/appellant, excluding every hypothesis consistent with
innocence.
25. In the present case, the principal circumstances relied upon by the
prosecution are:
(i) recovery and use of the deceased's mobile phone by
Deepak Pawle;
(ii) the statement of Deepak Pawle attributing the source
of the mobile phone to the appellant; and
(iii) the memorandum statement of the appellant leading
to recovery of the alleged weapon. However, on close
scrutiny, this Court finds that these circumstances do not
inspire full confidence and suffer from material
inconsistencies and gaps.
26. The seizure of the mobile phone from Deepak Pawle on
06.01.2019 precedes the arrest and disclosure statement of the
appellant dated 15.04.2019 by about four months. At that point of
time, there was no material on record connecting the appellant
with the present offence. Therefore, the statement of Deepak
Pawle attributing the mobile phone to the appellant appears
unnatural and creates a serious doubt regarding its credibility. The
prosecution has failed to establish a clear and cogent link
connecting the appellant with the alleged recovery of the mobile
phone in a manner that excludes all other possibilities. The
memorandum statement and the alleged recovery of the weapon,
though proved formally, do not conclusively connect the appellant
with the commission of the crime, particularly in the absence of
any corroborative forensic evidence. There is no scientific or
forensic material on record which conclusively links the appellant
either with the deceased or with the alleged weapon of offence.
The chain of circumstances, as presented by the prosecution, is
not complete and leaves room for multiple hypotheses, including
the possibility of innocence of the appellant.
27. This Court is mindful of the principles laid down by the Hon'ble
Supreme Court in Sharad Birdhichand Sarda (supra), Jagroop
Singh (supra) and Pradeep Kumar (supra), wherein it has been
consistently held that suspicion, however strong, cannot take the
place of proof, and where two views are possible, the one
favouring the accused must be adopted.
28. Applying the aforesaid settled principles of law to the facts of the
present case, it is evident that the prosecution has not been able
to prove the guilt of the appellant beyond reasonable doubt. The
chain of circumstantial evidence is broken at multiple stages and
does not lead to an irresistible conclusion of guilt. Hence the
conviction under Sections 302 of the IPC along with other
offences deserve to be set aside.
29. For the foregoing reasons, the prosecution has not been able to
prove that the appellant had murdered the deceased. From the
evidence of the prosecution witnesses, the same creates doubt,
therefore, giving the benefit of doubt, the accused/appellant
entitled to be acquitted of the alleged charges levelled against him
for the aforesaid offences.
30. The accused is acquitted of the charge for which he was tried.
The impugned judgment of conviction and order of sentence is set
aside. The appellant is acquitted of the charges levelled against
him. The appellant is in jail. He be released forthwith if not
required in any other case, on furnishing a personal bond for a
sum of Rs.25,000/- with one surety in the like sum to the
satisfaction of the trial Court. The bail bond shall remain in
operation for a period of six months as required under the
provisions of Section 481 of the BNSS. The appellant shall appear
before the higher Court as and when directed. Accordingly, the
Criminal Appeal is allowed.
31. The trial Court record along with a copy of this judgment be sent
back immediately to the trial Court concerned for compliance and
necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Bablu
