{Arising out of judgment dated 12.01.2018 passed in Sessions Trial No.06/2017 by the learned v. State Of Chhattisgarh, Through P. S. Gandai, District Rajnandgaon, Chhattisgarh
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.05.03 14:54:00 +0530 2025:CGHC:20097-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 491 of 2018 {Arising out of judgment dated 12.01.2018 passed in Sessions Trial No.06/2017 by the learned Additional Sessions Judge, Khairagarh, District Rajnandgaon} Nammu Thakur, S/o. Mayaram Thakur, Aged About 56 Years, R/o. Village Sambalpur, P. S. Gandai, District Rajnandgaon, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through P. S. Gandai, District Rajnandgaon, Chhattisgarh. ... Respondent For Appellant For Respondent : :
Legal Reasoning
61. The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the investigating officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible in evidence as laid down by this Court in State of U.P. v. Deoman Upadhyaya (supra).” As such, the memorandum statement of the appellant to the extent that he has murdered his wife could not be
Arguments
Mr. Barun Kumar Chakrabarty, Advocate Mr. Afroz Khan, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (02.05.2025) 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 12.01.2018, passed by the learned Additional Sessions Judge, Khairagarh, District Rajnandgaon in Sessions Trial No.06/2017, by which the sole appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment. 2. Case of the prosecution, in brief, is that, on 01.01.2017, at about 10:15 A.M., at village Biranpurkhurd, Police Station- Gandai, District Rajnandgaon, the appellant herein assaulted his wife Indrasan Bai (now deceased) by iron axe, by which she suffered grievous injuries and died; thereby, the offence has been committed. The matter was reported to the police, pursuant to which, Dehati Nalsi was registered vide Ex.P-3, Merg Intimation was registered vide Ex.P-17, FIR was registered vide Ex.P-18, Inquest was conducted vide Ex.P-10 and dead body of deceased Indrasan Bai was subjected to post-mortem, which was conducted by Dr. Kumari Leela Ramteke (PW-5), who proved the post-mortem report vide Ex.P-12, according to which, cause of death was stated to be 3 hemorrhagic shock due to lacerated wound in neck and death was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P-5), iron axe was seized vide Ex.P-8, which was sent for chemical examination to FSL and as per the FSL report (Ex.P-20), human blood was found on the seized iron axe. After due investigation, the 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, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 13 witnesses and exhibited 19 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced him for life imprisonment against which the present appeal has been preferred. 4 5. Mr. Barun Kumar Chakrabarty, learned counsel for the appellant, would submit that on the basis of the statement of Investigating Officer, the appellant has been basically convicted and furthermore, the incriminating statement made in the memorandum statement has been relied upon by the trial Court to base the conviction. Similarly, in the FSL report (Ex.P-20), blood has been found on the iron axe, but the FSL report has not been put to the accused in the statement under Section 313 of Cr.P.C., therefore, it cannot be relied upon. As such, the impugned judgment of conviction and order of sentence is liable to be set aside and 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 the aforesaid offence and, as such, the appellant is not entitled for acquittal and the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 5 8. The first question, for consideration, as to whether the death of deceased Indrasan Bai was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-12, proved by Dr. Kumari Leela Ramteke (PW-5), according to which, cause of death was stated to be hemorrhagic shock due to lacerated wound in neck and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. The trial Court in para 23 of its judgment has clearly held that death of the deceased was homicidal in nature and further held that who has caused the death, the evidence is completely absent, but proceeded to rely upon the statement of Investigating Officer, Vijay Chelak (PW-13) and finally convicted the appellant. However, in the meanwhile, during course of discussion, it has been further held that in the memorandum statement (Ex.P-5), the appellant has confessed that he has committed the offence, which the trial Court has relied upon. 6 10. However, in this regard, the decision rendered by the Supreme Court in the matter of State of U.P. v. Deoman Upadhyaya1, the Constitution Bench of the Supreme Court has held that confessional part of the statement is inadmissible under Section 27 of the Evidence Act and only part which leads to discovery of facts is admissible in evidence. The aforesaid decision of Deoman Upadhyaya (supra) has been followed with approval by the Supreme Court in the matter of Babu Sahebagouda Rudragoudar & Others v. State of Karnataka2 and observed in paragraph 60 & 61 held as under : “60. We would now discuss about the requirement under law so as to prove a disclosure statement recorded under Section 27 of the Evidence Act and the discoveries made in furtherance thereof.
Decision
admissible in evidence in view of the above decisions. 1 AIR 1960 SC 1125 2 (2024) 8 SCC 149 7 11. Next, the trial Court has proceeded that though recovery of weapon of offence has not been supported by the independent witness, but the Investigating Officer, Vijay Chelak (PW-13) has supported the recovery of weapon of offence, in which, as per the FSL report (Ex.P-20), human blood has been found. However, it has to be noticed that in the statement under Section 313 of Cr.P.C., the accused has not been put to explain as to how and in what circumstances, the human blood was found on the weapon of offence. In addition to this, the disclosure of the recovery of weapon wold not lead itself to the fact that appellant has committed the offence unless it is established that the weapon of offence is used in commission of offence in light of the decision of the Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh 3 by relying upon its earlier decision rendered in the matter of Mustkeem Alias Sirajudeen v. State of Rajasthan4, wherein Their Lordships of the Supreme Court have clearly held that sole circumstance of recovery of blood-stained weapon cannot form the basis of conviction unless the same is corroborated with other piece of incriminating circumstances that too for the offence under Section 302 of I.P.C. 3 2024 SCC Online SC 67 4 (2011) 11 SCC 724 8 12. Finally, the trial Court has held that from the statement of Investigating Officer- Vijay Chelak (PW-13), the commission of offence by the appellant is proved, which cannot be accepted as the role of Investigating Officer is to investigate the commission of offence and prove the investigation, which he has carried out, but in absence of direct and oral evidence, only on the basis of the statement of Investigating Officer, the commission of offence by the appellant cannot be held to be proved. Therefore, the trial Court is absolutely unjustified in convicting the appellant for the offence in question and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt. 13. In view of the above, the impugned judgment of conviction and order of sentence dated 12.01.2018 is hereby set aside. The appellant stands acquitted giving him benefit of doubt from the charge framed against him for the offence under Section 302 of I.P.C. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 14. In the result, this criminal appeal is allowed. 9 15. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. Sd/- (Sanjay K. Agrawal) Ashok Judge Sd/- (Deepak Kumar Tiwari) Judge