Sonbhadra, Uttar Pradesh v. State of Chhattisgarh Through The Police Station Rajpur, District
Case Details
1 ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.07.29 17:48:24 +0530 2025:CGHC:36744-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 546 of 2022 1 - Abhimanyu Jaiswal S/o Laxminarayan Jaiswal, Aged About 41 Years R/o Village Ghaghra, P.S. Babhani, District Sonbhadra U.P., District : Sonbhadra, Uttar Pradesh 2 - Manisha Jaiswal W/o Abhimanyu Jaiswal, Aged About 28 Years R/o Village Ghaghra, P.S. Babhani, District Sonbhadra (U.P.), District : Sonbhadra, Uttar Pradesh ... Appellants versus State of Chhattisgarh Through The Police Station Rajpur, District Balrampur, Chhattisgarh, Balrampur Ramanujganj Chhattisgarh District : (Cause-title taken from Case Information System) --- Respondent For Appellants For Respondent/State : Mr. Soumya Rai, Panel Lawyer : Mr. Shrawan Kumar Chandel, Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble S hri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 2 9. 0 7 .202 5 1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 23.02.2022 passed by learned First Additional Additional Sessions 2 Judge, Ramanujganj, District – Balrampur-Ramanujganj (C.G.) in Sessions Trial No.R-51/2017, whereby the learned trial Court has convicted and sentenced the appellants in the following manner :- CONVICTION SENTENCE Under 364/34 of Indian RI for 10 years and fine of Rs.500/-, Penal Code, 1860 in default of payment of fine, additional RI for one month Under 302/34 of Indian Life imprisonment and fine of Penal Code, 1860 Rs.1,000/-, in default of payment of fine, additional RI for three months Under 201 of Indian RI for 5 years and fine of Rs.500/-, Penal Code, 1860 in default of payment of fine, additional RI for one month Under 120B of Indian Life imprisonment and fine of Penal Code, 1860 Rs.500/-, in default of payment of fine, additional RI for one month With a direction to run all the sentences concurrently 2. The prosecution case, as unfolded during the investigation and trial, is that on 12.11.2015, the deceased Chintamani, son of Rishikesh Mishra (PW-04), went missing around 7:00 PM. His father reported the matter at Rajpur Police Station, and a missing person report (Exhibit P-25C) was registered by Head Constable Shyam Lal Bhagat (PW-13) based on a written application (Exhibit P-2). Subsequently, Inspector Kishore Kewat (PW-16) traced the mobile number of the deceased, leading to the detention of accused Abhimanyu Jaiswal and Manisha Jaiswal, whose 3 memorandum statements (Exhibits P-8 and P-9) disclosed the commission of the offence. Pursuant to this, a written complaint (Exhibit P-31) was forwarded to the Sub-Divisional Magistrate, Pratappur on 13.05.2017 for the exhumation of the body. In presence of witnesses, a spot map (Exhibit P-13) was prepared, and on directions of the SDM, Naib Tehsildar, namely Pranjal Mishra (PW-15) carried out the exhumation proceedings, preparing Panchnama (Exhibit P-01) at Barbaspur, Pandopara and an identification Panchnama (Exhibit P-3) was prepared based on identification by Pankaj Mishra, Rishikesh Mishra, and Abhishek Mishra. Following the said recovery, Panchnama (Exhibit P-7) of the scene was prepared by Inspector Kishore Kewat, and Naib Tehsildar issued notices (Exhibit P-17) and prepared a further Panchnama of the remains (Exhibit P-18). The body was sent for postmortem, conducted by Dr. A.K. Vishwakarma (PW-09), and reports (Exhibits P-21 and P-23) were issued. Clothes and bones were preserved and sent to Community Health Centre, Pratappur (Exhibit P-28). Upon conclusion of the postmortem, the remains were handed over to the family via receipt Exhibit P-30. On the same day i.e.
Legal Reasoning
13.05.2017, an unnumbered FIR (Exhibit P-32) was registered, followed by FIR No. 37/2017 (Exhibits P-33 and P-34), and ultimately Crime No. 63/17 (Exhibit P-35) at Rajpur Police Station. 3. Based on disclosures made by the accused, a wooden stick and shovel were recovered (Exhibits P-10 and P-11). From the site of 4 exhumation, various articles including the deceased’s clothing and sandals were recovered (Exhibit P-19). Both accused were arrested (Exhibits P-15 and P-16), and intimation of arrest was given to Manmeet Jaiswal (Exhibit P-37). On 16.05.2017, at the instance of accused Abhimanyu Jaiswal, the motorcycle of the deceased was recovered and identified through Panchnama (Exhibit P-5). Sub-Inspector Rupesh Narang (PW-12) seized the black Bajaj Platina motorcycle (Exhibit P-20). Sealed remains including jaw bone, skull, tibia, jacket piece, and doctor's seal were also seized (Exhibits P-26 and P-27). The seized weapons were sent for examination through curie report (Exhibit P-22A), and medical opinion (Exhibit P-22) was rendered by Dr. A.K. Vishwakarma. Statements of several witnesses including Anil Kumar, Pankaj Mishra, Rishikesh Mishra, Anil Dubey, among others, were recorded. For forensic analysis, seized materials were sent to the Regional Forensic Science Laboratory (Exhibits P-38 and P-39), and crime scene examination was done by Senior Scientist S.K. Singh, who submitted report Exhibit P-40. Additionally, a blood sample of the deceased was sent for DNA testing on 18.07.2017, and a Panchnama (Exhibit P-4) was prepared. 4. After completion of the investigation, the charge sheet was filed before the Judicial Magistrate First Class, Rajpur, and in view of the nature of the case, it was committed to the Court of Sessions and registered before the Additional Sessions Judge, 5 Ramanujganj in accordance with endorsement No. 588/A-5-1/85 dated 09.07.2013 for due consideration. 5. When the charges were framed against accused persons under Sections 364, 302, 201, 120B, 34 of Indian Penal Code, 1860 (for short, ‘IPC’), they denied the crime and demanded trial. 6. In support of its case, the prosecution has examined as may as 16 witnesses as PW-1 to PW-17 and exhibited 40 documents as Exhibit P-1 to Exhibit P-10, whereas in defence, appellants/accused have not examined any witness but exhibited one document i.e. Exhibit D-01. 7. When the accused were examined under Section 313 Cr.P.C., they denied having produced any witness in their defence, claiming that they were innocent and that they had been falsely implicated. 8. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 23.02.2022, convicted and sentenced the accused/appellants Abhimanyu Jaiswal and Manisha Jaiswal as mentioned in opening paragraph of this judgment, against which, this criminal appeal has been preferred by the accused/appellants under Section 374(2) of Cr.P.C. 9.
Legal Reasoning
Learned counsel for the appellants submits that the judgment and sentence passed by the learned trial Court is bad both on facts and in law. He further submits that conviction of the 6 accused/appellants are solely based on their memorandum statements and recovery of alleged dead body of the deceased, but both the witnesses of memorandum and seizure have not supported the case of prosecution and they were turned hostile. It has been contended that the prosecution has failed to establish the chain of circumstantial evidence. As such, conviction without any evidence is unsustainable and liable to be set aside. 10. On the other hand, learned State counsel opposed the aforesaid submissions and would submit that the dead body of the deceased was recovered at the instance of the appellants after 1½ years of the date of incident and the accused persons were traced through the call details record. He further submits that though the independent and attesting witnesses have not supported the case of prosecution, but they have proved their signature on the memorandum statement and seizure of the accused. He lastly submits that the learned trial Court has appreciated the evidence in correct perspective and has recorded the finding of the guilt of accused/appellants, as such, the appeal deserves to be dismissed. 11. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 12. Conviction of the accused-appellants is substantially based on memorandum statements of the appellants vide Exhibits P-8 and 7 P-9, based upon which, the dead body of the deceased was recovered after exhuming the field in an decomposed condition and the weapons used in the incident such as spade and club were also seized at their instance vide Exhibits P-10 and P-11. 13. The first question for consideration would be, whether death of deceased Chintamani was homicidal in nature ? 14. The trial Court after appreciating oral and documentary evidence available on record, particularly, relying upon the statement of Dr. A.K. Vishwakarma (PW-09), who conducted postmortem over the dead body of the deceased and given its report vide Exhibit P-21, has come to the conclusion that the deceased died due to neurogenic shock and the nature of his death was "homicidal". 15. After hearing learned counsel for the parties and after considering the submissions advanced by learned counsel for the parties, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Chintamani was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding. 16. The next question for consideration would be, whether recovery of dead body of the deceased on the basis of memorandum statements of the appellants vide Exhibits P-8 and P-9 are admissible and it can be used against them or not ? 8 17. In the present case, there is no direct evidence / eyewitness available on record. The trial Court has convicted the appellant on the basis of his memorandum statement followed by recovery of alleged dead body 18. Memorandum statement (Exhibit P-8) of the appellant Abhimanyu Jaiswal and memorandum statement (Exhibit P-9) of the appellant Manisha Jaiswal have been proved by the Investigating Officer Kishore Kewat (PW-16) and on that basis, the appellants have been convicted. 19. A careful perusal of the memorandum statement (Exhibit P-8) of the appellant Abhimanyu Jaiswal reveals that the accused harbored suspicion that his wife, Manisha Jaiswal, had an illicit relationship with the deceased, Chintamani. This suspicion had led to frequent quarrels between the couple. It is further disclosed that on 12.11.2015, the accused, in connivance with his wife, hatched a plan to murder the deceased. Pursuant to this plan, the deceased was lured to their residence through a phone call made from the mobile phone of Manisha Jaiswal. Upon his arrival, the accused assaulted Chintamani with a spade and a club, resulting in his death, and subsequently buried the dead body within the premises of their house. 20. Further, a perusal of the memorandum statement (Exhibit P-9) of the co-accused Manisha Jaiswal reflects the same version of events, corroborating the narrative disclosed in the memorandum 9 statement of appellant Abhimanyu Jaiswal. 21. At this stage, it would be appropriate to notice Section 27 of the Indian Evidence Act, 1872, which states as under: - “27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 22. Section 27 of the Indian Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered. 23. The Supreme Court in the matter of Asar Mohammad and others v. State of U.P.1 with reference to the word “fact” employed in Section 27 of the Evidence Act has held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the 1 AIR 2018 SC 5264 10 knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor2 observed as under: - “13. It is a settled legal position that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of Maharashtra reported in (2015) 1 SCC 253, in particular, paragraph 23 thereof. The same read thus: “23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor (supra) has held thus: (IA p. 77) “... it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the 2 AIR 1947 PC 67 11 knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. xxx xxx xxx xxx xxx xxx xxx xxx xxx” 24. Reverting to the facts of the case in light of the principles of law laid down by their Lordships of the Supreme Court in Asar Mohammad (supra), only discovery of an object, the place from which it is produced and knowledge of the accused as to this extent would be admissible and incriminating part of the accused 12 statement that they had inflicted injuries to deceased Chintamani would not be admissible under Section 27 of the Evidence Act. 25. The Supreme Court in the matter of Aghnoo Nagesia v. State of Bihar3 has clearly held that confession to police whether in course of investigation or otherwise and confession made while in police custody would be hit by Section 25 of the Evidence Act and observed as under:- “9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Ss. 24 to 30 of the Evidence Act and Ss. 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in Ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides : "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of S. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police 3 AIR 1966 SC 119 13 custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by S. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Ss. 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence 14 Act. The words of S. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under S. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by S. 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under S.25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by S. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.” Their Lordships further held as under:- “18. If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S. 25. The confession includes not only the admission of 15 the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of S. 25 is lifted by S.27” 26. In the case in hand, confessional statements Exhibits P-8 and P-9 made by the appellants before the police officer is hit by Section 25 of the Evidence Act and no part of it is admissible under Section 27 of the Evidence Act. As such, we are of the considered opinion that alleged memorandum statements of the appellants Exhibits P-8 and P-9 is hit by Section 25 of the Evidence Act and no part of it is admissible under Section 27 of the Evidence Act in view of decisions rendered by Privy Council in Pulukuri Kotayya (supra) followed by the the Supreme Court in Asar Mohammad (supra). 27. Having considered the entire evidence on record, including the memorandum statements (Exhibits P-8 and P-9) of the appellants and other material placed by the prosecution, it is evident that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. The chain of circumstantial evidence is not complete, and material contradictions and omissions in the prosecution story cast serious doubt on its veracity. In criminal jurisprudence, suspicion, however strong, cannot take the place of legal proof. 28. For the foregoing discussions, this Court is of the opinion that the 16 prosecution has failed to prove its case beyond reasonable doubt against both the accused/appellants and the appellants are entitled for benefit of doubt. Having regard to the totality of the material on record and on facts and circumstances of this case, it is not possible for this Court to agree with the concurrent conclusions reached by the trial Court. 29.
Decision
In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 23.02.2022 is set aside. The appellants are acquitted from all the charges leveled against them. 30. It is stated that appellants Abhimanyu Jaiswal and Manisha Jaiswal are in jail. They be released forthwith, if not required in any other case. 31. Keeping in view the provisions of Section 437-A of Cr.P.C. (now Section 481 of BNSS), appellants- Abhimanyu Jaiswal and Manisha Jaiswal 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 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. 17 32. The trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Anu