PADMAVATHI v. State Of Chhattisgarh Through- Station House Officer

Judgment

1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 14.2.2024 passed by the 8 th 2 Upper Sessions Judge, Durg District Durg (C.G.) in Sessions Trial No.202/2021, convicting accused/appellant for the offence punishable under Section 302 of the Indian Penal Code (for short ‘IPC’) and sentencing him to undergo rigorous imprisonment for life with a fine of Rs.1,000/-, in default to undergo additional R.I. for 06 months.

2. The prosecution case, in brief, is that complainant Salik Ram Sahu appeared at Police Station Pulgaon, District Durg on 13.06.2021 and lodged a report stating that on

13.06.2021 at about 08:00 a.m. when he was in his house, PW-3 Mahendra Nishad and PW-4 Tikesh Sahu informed him over mobile phone that dead body of a male is lying behind under-constructed Rishabh Market, New Life Farm Road. He had informed the said fact to Sarpanch Jawala Prasad Deshmukh and thereafter they reached the spot and found that dead body is of Ajay Kumar Kothari, who was working as Security Guard in the Farm House of Suresh Kothari; there were several bleeding injuries on his body caused by sharp edged weapon. Based on aforementioned information, FIR came to be registered under Crime No.206/2021 for the 3 offence punishable Section 302 of IPC. In the course of investigation, dead body was sent for postmortem examination which was conducted by PW-19 Dr. Kajal Jain and as per postmortem report, Ex.P-18, cause of death was hypovalemic shock due to stab injury to vital organ and death was homicidal in nature. Accused/appellant was arrested and his memorandum statement was recorded vide Ex.P-10. Statements of witnesses were recorded under Section 313 CrPC.

3. In the course of investigation, an offence under Section 302 IPC was found to be made out against the accused. After completion of investigation, the charge-sheet was

filed before the Court of Judicial Magistrate First Class, Durg on 09.08.2021, from where the case was committed to the committal Court vide order dated 26.08.2021 and thereafter it was received by the competent Court on

04.09.2021 for trial. On 22.12.2021 charge under Section 302 of IPC was framed against accused Mohit Thakur. He denied the charge and sought trial. His plea was recorded in his own words.

4. In order to prove its case, the prosecution had examined as many as 20 witnesses before the trial Court, namely 4 Jwala Prasad Deshmukh (PW-1), Salik Ram Sahu (PW- 2), Mahendra Nishad (PW-3), Tikeshwar Sahu (PW-4), Anil Yadav (PW-5), Gannu Ram Sahu (PW-6), Akeshwar Sahu (PW-7), Smt. Manju Yadav (PW-8), Raju Yadav (PW-9), Nandkumar Thakur (PW-10), Ajit Yadav (PW-11) Patwari Purushottam Sahu (PW-12), Constable Eman Chandrakar, Constable Lokesh Kumar Diwakar (PW-14), Constable Mehfooz Khan (PW-15), Pawan Verma (PW- 16), Dushyant Chandrakar (PW-17) Assistant Sub Inspector Narendra Singh (PW-18), Dr. Kajal Jain (PW- 19) and retired Assistant Sub Inspector Domaar Ram Sahu (PW-20).

5. Statement of accused/appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973 in which he again pleaded innocence and false implication. Accused/appellant also expressed his willingness to adduce evidence in defence, however, subsequently he did not lead any evidence in his defence.

6. The trial Court after appreciating the evidence, oral and documentary, available on record, by the judgment dated

14.02.2024, convicted and sentenced the appellant for the offence under Section 302 of the IPC in the manner 5 as described in opening paragraph of this judgment, against which, this criminal appeal has been preferred by accused/appellant.

7. Mr. Sandeep Yadav, learned counsel for the appellant submitted that there is no direct evidence against the appellant and the entire case of prosecution rests upon circumstantial evidence i.e. last seen theory. He submits that last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. He submits that in the present case, the conviction has been based by the learned trial Court merely on the evidence of "last seeing the appellant with deceased Ajay Kumar Yadav. However, the evidence of last seen witnesses, namely, PW-8 Smt. Manju Yadav, wife of deceased, and PW-11 Ajeet Yadav, brother-in-law of deceased, who have allegedly seen the deceased last time alive in the company of accused-appellant, does not inspire confidence for the reason that time gap between the last seen by these witnesses and recovery of dead 6 body of deceased is so long, the possibility of any person other than the appellant being the author of crime cannot be ruled out. Therefore, it cannot be said with any degree of certainty that it was accused/appellant alone who had committed the offence.

8. Learned counsel for the appellant next contended that a person conscious of his/her alleged involvement would, in the ordinary course, seeks to avoid any proximity to the scene so as to minimize the risk of detection or identification, therefore, it is wholly unnatural and highly improbable that an accused after murdering the deceased would visit the spot. Even otherwise, such a conduct would be oppose to normal human conduct and inherently inconsistent with the basic instinct of self- preservation that governs human behavior, particularly in the aftermath of a grave criminal act like murder. However, in case at hand, on being informed by Mahendra Nishad (PW-3) and Tikesh Sahu (PW-4) that dead body of male is lying in the middle of road in Kolihapuri, accused/appellant informed said fact to complainant (PW-2), visited the spot and also identified the body to be of Ajay Kumar Yadav.

9. Learned counsel for the appellant further contended that 7 evidence with regard to recovery of weapon on the alleged disclosure statement of appellant is also not significant as the weapon has been recovered from an open place accessible to all and therefore, the recovery is suspicious and does not show that it was made at the instance of the accused/appellant. He further contended that FSL report is not available on record confirming that human blood tallying with the blood group of the deceased was found alleged weapon of offence, knife. Hence, alleged recovery of weapon is not at all falling within the category of an incriminating circumstance against accused/appellant.

10. Learned counsel for the appellant also submits that there was no evidence or allegation to the effect that there was any dispute or previous animosity between appellant and deceased, rather it has come in evidence of PW-8 Manju Yadav, widow of deceased, that there was friendship between appellant and deceased. Thus, it can be safely presumed that there was no motive of appellant to kill the deceased and absence of motive raises a strong presumption of innocence. However, this aspect has 8 been altogether ignored by learned trial Court.

11. Learned counsel for appellant also contended that apart from above, there is no other evidence available on record to connect the appellant with crime in question, except alleged own confession of appellant recorded in memorandum statement, Ex.P-10. It is well settled that unless recovery based on disclosure is legally proved, inculpatory inferences against an accused cannot be drawn. In case at hand, recovery of knife pursuant to memorandum of appellant is not proved as per law, therefore, memorandum of appellant recorded under Section 27 of the Evidence Act has no evidentiary value and even the same is not admissible under Section 25 of the Evidence Act.

12. Learned counsel for the appellant lastly submits that from the above it is evident that the prosecution utterly failed to bring on record any cogent or reliable evidence on the aspect of last seen together and similarly recovery of alleged weapon of offence on the memorandum statement of appellant, may not be sufficient to convict the appellant in the absence of report of chemical examination. In other words, the circumstances brought 9 on record and relied by prosecution were not conclusively proved and do not form a complete chain to prove the involvement of accused/appellant. Conviction of the appellant is not based on a sound foundation of evidence. The benefit of doubt must be extended to appellant, as the prosecution has failed to prove its case beyond a reasonable doubt. The learned Trial Court did not appreciate the evidence in its correct perspective and convicted the Appellant. Therefore, it is prayed that the conviction be set aside, and the appellant be acquitted of all charges.

13. On the other hand, Mr. Shailendra Sharma, learned Panel Lawyer, appearing for the State/respondent opposed the aforesaid submissions and supported the judgment of learned trial Court. He would submit that there is positive evidence of by PW-8 and PW-10 that the deceased was last seen alive in the company of accused/appellant and thereafter his dead body was recovered. Witnesses of last seen had duly supported the case of the prosecution. Thus, it was clearly established that the accused was last seen alive in the company of the deceased. The time gap between the accused being 10 seen with the deceased and the occurrence is so minimal that the possibility of any third-party intervention is completely ruled out. Therefore, the burden shifted upon the accused to explain how the deceased met with such an unnatural death. Appellant has not answered the question put to him in his examination under Section 313 of the Cr.P.C. to explain the circumstance of last seen together, therefore, his silence provides missing link and the appellant has rightly been convicted.

14. Learned Panel Lawyer further submits that weapon of offence is seized at the instance of accused/appellant and in the query report obtained from doctor, it has been opined that injuries found on the body of deceased could have been caused by said knife. Accused/appellant admitted in his memorandum statement that deceased demanded money from him for drinking liquor, he refused to give money, owing to which a quarrel ensued between them and in that process he took out knife from his attire, stabbed deceased 4-5 times, which caused his death.

15. Learned Panel Lawyer further contended that absence of motive in a case based on circumstantial evidence is not fatal and if the prosecution could not adduce evidence on 11 the motive, it does not indicate innocence of the appellant. He submits that the circumstances on record, including last seen evidence, recovery of knife and failure to explain as to when and where he had left the company of the deceased and as to where deceased had gone thereafter, form a complete and unbroken chain consistent only with the hypothesis of guilt. The learned trial Court has meticulously appreciated both oral and documentary evidence available on record and has rightly recorded the finding of guilt which is fully justified being based on a complete chain of circumstantial evidence which unerringly points towards guilt of the ceased and the same does not suffer from any perversity or illegality. Therefore, the present appeal being devoid of merit deserves to be dismissed, and the conviction and sentence under Section 302 IPC ought to be affirmed.

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

17. Following points arise for consideration in this appeal: • Whether the deceased died due to homicidal injuries? 12 • Whether the prosecution has successfully established a complete chain of circumstances pointing unerringly towards the guilt of the appellant? • Whether the conviction based on “last seen together” theory and other circumstantial evidence is sustainable in law? • Whether appellant is entitled to the benefit of doubt?

18. To establish homicidal death of deceased Ajay Yadav, the prosecution has examined Dr. Kajal Jain (PW-19), who conducted autopsy over dead body of deceased; submitted and proved postmortem report Ex.-P-18. In her deposition, the doctor has deposed that during postmortem examination, she noticed one stab wound of the size of 3x6 cm, present over right side of chest; stab wound of the size of 1.5x1 cm at the upper part of right side of chest; one lacerated wound below right eyelid of the size 1 x 0.5 cm; stab injury over left temporal parietal region of the size 3x1cm, bone deep,; lacerated wound of 2x1cm at left temporal region; irregular lacerated wound in between ear and cheek; lacerated wound of 2x1 cm. Size on left occipital region; lacerated wound of 2x2 cm size at the upper side of left arm. This witness has opined 13 that the death was due to hypovalemic shock due to injuries sustained on vital organs; all the injuries were ante-mortem and death was homicidal in nature. Duration of death was 16-20 hours prior to postmortem examination. From the above medical evidence, it is clear that cause of death of the deceased was homicidal in nature and occurred due to stab injuries on vital organs. Even, homicidal death of deceased has not been disputed on behalf of accused-appellant. Thus, it stands established that death of deceased was homicidal in nature.

19. As per the prosecution case, a quarrel took place between the accused/appellant and the deceased when the accused/appellant allegedly expressed his inability to give money to deceased on his demand for drinking liquor and in that process, appellant caused stab injuries with knife to deceased which ultimately resulted in his death. According to evidence of PW-8 Smt. Manju Yadav and PW-10 Nandkumar Thakur, they had seen the deceased last time alive in the company of deceased. Thus, present being not a case of direct evidence, rather hinges upon circumstantial evidence i.e. “last seen 14 together” theory and when a case totally hinges on circumstantial evidence, it is the duty of the Court to see the circumstances which lead towards the guilt of the accused should have been fully established or not.

20. However, before coming to the evidence available on record which the prosecution has adduced to bring home the charge against the appellant, and the alleged incriminating circumstances appearing against the accused, it would be apt to discuss first as to in case which hinges on circumstantial evidence, how and under what circumstances, an accused can be held guilty for the commission of offence.

21. In the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 Hon’ble Supreme Court has clearly laid down the factors to be taken into account in adjudication of cases of circumstantial evidence, which states as under :- “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; 1 (1984) 4 SCC 116 15 (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; (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.”

22. In the matter of Arjun Marik v. State of Bihar2, it has been held by their Lordships of the Supreme Court have held that conviction cannot be made solely on the basis of theory of 'last seen together' and observed in paragraph 31 as under :- “31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19- 7-1985 and had stayed in the night at the 2 1994 Supp (2) SCC 372 16 house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to though a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.”

23. In the matter of State of Goa v. Sanjay Thakran 3 the Supreme Court has held that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was observed in paragraph 34 as under :- “34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty 3 (2007) 3 SCC 755 17 of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the 18 author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. ”

24. Similarly in the matter of Kanhaiya Lal v. State of Rajasthan 4 , their Lordships of the Supreme Court have clearly held that the circumstance of last seen together does not by itself and necessarily lead to the inference 4 (2014) 4 SCC 715 19 that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non- explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the appellant. It has been held in paragraphs 15 and 16 as under :- “15. The theory of last seen – the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan5.

16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence 5 (2010) 15 SCC 588 20 imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise.”

25. Finally in the matter of Anjan Kumar Sarma v. State of Assam 6 their Lordships of the Supreme Court have clearly held that in a case where other links have been satisfactorily made out and circumstances point to guilt of accused, circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction.

26. Reverting back to the facts of present case. Jwala Prasad Deshmukh (PW-1) is the person who had intimated the police through telephone about presence of a dead body in the farm house. He is also witness to notice,Ex.P-1, seizure memo Ex.P-3, Ex.P-4 and Ex.P-5.

27. Salik Ram Sahu (PW-2) is the lodger of FIR (Ex.P-6). He has deposed that on being informed by Mahendra Nishad 6 (2017) 14 SCC 359 21 (PW-3) and Tikesh Sahu (PW-4), that a dead body is lying on road outside the farm house, accused-appellant informed me through telephone that a dead body is lying on road outside New Life Farm House. Upon receiving such information, he went to the farm house and saw that dead body of Ajay Yadav is lying. Accused Mohit Yadav told him that dead body is of Ajay Yadav. He is also witness of inquest (Ex.P-2), seizure memos (Ex.P-3 and Ex.P-4), merg intimation (Ex.P-7), spot map (Ex.P-8), map prepared by Patwari vide Ex.P-9.

28. Mahendra Nishaad (PW-3) is the witness of memorandum statement of accused (Ex.P-10). He has deposed that he knows the accused/appellant. Police interrogated accused/appellant in the police station in his presence. Memorandum statement, Ex.P-10, bears his signature at A to A part. In the cross-examination, this witness has admitted that police had not interrogated accused/appellant in his presence and on being informed by the police, he came to know that accused/appellant had murdered the deceased. He further admitted that he did not read the documents signed by him in police station.

29. Tikeshwar Sahu (PW-4), is another witness to 22 memorandum statement of accused/appellant. Though this witness has deposed in examination-in-chief that police interrogated the accused/appellant in the police station in his presence, however, in the cross- examination he admitted that when he and Mahendra Nishad reached police station, accused/appellant was there in the custody of police and they were informed by the police that accused/appellant had confessed that he has killed the deceased. This witness has also admitted that he did not read the documents signed by him in police station.

30. Anil Yadav (PW-5), Gannu Ram Sahu (PW-6), Akeshwar Sahu (PW-7), Raju Yadav (PW-9), Purushottam Sahu (PW-12) and Dushyant Chandrakar (PW-17) were formal witnesses and they have deposed as to various aspects of the investigation.

31. PW-8 Smt. Manju Yadav, widow of deceased, has deposed that around one year prior to date of recording of her evidence, her husband (deceased) returned in the evening from the house of his employer situated in Padmanabhpur, along with plants for garden. After 23 drinking liquor and eating egg curry, which he brought along with him from outside, he demanded Rs.500/- from her and thereafter left the house. She saw her husband going along with accused/appellant on a bicycle. She waited for return of her husband for whole night, but he did not return. She received three calls of accused/appellant in the mobile phone of her husband, which he had left at the house. Accused/appellant informed her over mobile phone that her husband had quarrelled with him and had also torn his clothes. Thereafter, she was informed by her family members that her husband is murdered by some person in Kolihapuri. In the cross-examination, this witness has admitted that her husband and accused/appellant had not gone together and she is not aware as to whether there was any kind of dispute or quarrel between her husband and the accused/appellant.

32. Nandkumar Thakur, PW-10, is an another witness of last seen. He deposed that on the fateful day, deceased asked him to go to his wife and bring Rs.500/-, thereafter the deceased, accused/appellant and this witness had gone to Potiya liquor kiln, consumed liquor and thereafter 24 at about 7:00 p.m. he left their company. Meaning thereby, he is not aware as to what happened thereafter.

33. Ajit Yadav, PW-11, is the person who allegedly separated the deceased and accused/appellant when they were quarreling at liquor kiln. This witness has not supported the prosecution case and declared hostile. However, in the cross-examination by defence, this witness has deposed that he had seen accused/appellant near the Potiya liquor kiln, he was alone and nobody was with him.

34. PW-19, Dr. Kajal Jain is the doctor who conducted autopsy on the body of deceased and issued postmortem report Ex.P-18. In the opinion of the doctor, the death was due to hypovolemic shock following ante mortem stab injury to vital organ along with multiple stab injuries. Duration between death and postmortem examination was recorded as 16-20 hours.

35. PW-13 Constable Eman Chandrakar, PW-14 Constable Lokesh Kumar Diwakar, PW-15 Constable Mehfooz Khan, PW-16 Constable Pawan Verma, PW-18 ASI Narendra Singh and PW-20 Domar Ram Sahu are the police personnel who took part in the process of 25 investigation and they have deposed the facts regarding the respective role played by them during investigation.

36. A careful appreciation of the testimonies of above PW-8 Smt. Manju Yadav and PW-10, Nandkumar, demonstrates that, at best, it establishes that deceased was seen in the company of accused/appellant in the evening of 12.6.2021. Dead body of deceased was found on 13.6.2021 in an under-constructed market located on New Life Farm Road in village Kolihapuri. Both these witnesses have not deposed that they had seen the appellant with the deceased just before the dead body was found that too at the place where from it was recovered. They have also not deposed that they have seen the quarrel between the deceased and accused/appellant. In fact, it has come in the evidence of PW-8 Smt. Manju Yadav that there was friendship between the deceased and accused/appellant. Therefore, merely because aforementioned witnesses had seen the deceased and appellant together a day prior to recovery of dead body of deceased, it is not sufficient to give rise to an inference that it is the accused-appellant who committed murder of deceased. 26 Had it been the case where, after being seen by these witnesses, this appellant was also seen by someone at or near the place from where the dead body was recovered or it is he who got recovered the body of deceased, the position would have been different. In case at hand, the dead body was firstly seen by Mahendra Nishad (PW-3) and Tikeshwar Sahu (PW-3) and only after being informed by them, accused-appellant had informed PW-2 Salik Ram, lodger of FIR, that a dead body is lying on road. That apart, there is a time gap of more than 12 hours and considerable distance between the two locations, that is to say, place of last seen i.e. Potiya liquor kiln, and under-constructed market place from where dead body of deceased was recovered. The last- seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than accused being the author of the crime becomes impossible. Long time gap between the last seen together and recovery of dead body; considerable 27 distance between the place of last seen and the place from where dead body is recovered, the possibility of any third person coming in between is very much there and therefore, it is very much difficult, if not impossible, to conclude that it was the appellant alone who is responsible for homicidal death of the deceased. In case of State of Goa vs Sanjay Thakran and another, reported in (2007) 3 SCC 755, there was considerable time gap of approximately 8½ hours when the deceased was last seen alive with the accused persons and in such a situation, Hon’ble Supreme Court has held that there being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.

37. The circumstance of recovery of weapon of offence i.e., knife, pursuant to memorandum statement accused/appellant has been found proved by the learned trial Court and even the doctor who examined seized knife has opined that injuries suffered by deceased could have been caused by said knife, but report of chemical 28 examination to ascertain presence of bloodstains, that too of blood group of deceased, has not been produced by the prosecution so as to connect the knife with commission of offence. In the absence of linkage through scientific evidence between the seized knife and the injuries suffered by deceased, mere recovery of a knife based on memorandum statement cannot be treated as incriminating evidence against the appellant. Therefore, it is not such circumstance which would be sufficient to sustain appellant's conviction for committing the murder of deceased.

38. It is true that memorandum statement of accused- appellant was recorded vide Ex.P-10 under Section 27 of the Evidence Act in the presence of two witnesses namely Mahendra Nishad (PW-3) and Tikeshwar Sahu (PW-4) wherein accused-appellant himself has admitted that on the fateful day of incident, in the process of quarrel, he took out knife from his attire and stabbed the deceased 4-5 times which resulted in his death. From the evidence of witnesses of memorandum statement of accused-appellant, as discussed in preceding paragraph, it is evident that though it has come in Para`14 of the 29 cross-examination of Tikeshwar Sahu (PW-4) that the police had interrogated accused-appellant in presence of various persons including him and Mahendra Nishad (PW-3). However, Mahendra Nishad (PW-3) has deposed in Para-6 of the cross-examination that the police did not interrogate accused Mohit Thakur in his presence and on being informed by police, he came to know that it is accused Mohit Thakur who had killed Ajay Yadav. Both these witnesses have also admitted in the cross-examination that they have signed Ex.P-10 without reading the same nor the same were read over to them by police personnel. Therefore, it is highly doubtful that these two witnesses were even present at time of recording of memorandum statement of accused/apelant or not. This apart, there is mention in memorandum statement of accused-appellant that while he and deceased were quarreling, Ajeet Yadav (PW-11) intervened and separated them. However, Ajeet Yadav (PW-11) in his evidence has denied to have seen anyone with the accused/appellant on the fateful night and stated that he had seen the accused-appellant alone near country-made liquor shop. Hence, the contents of memorandum of accused-appellant and the evidence in 30 this regard available on record, are contradictory which renders the entire proceedings of recording memorandum doubtful.

39. That apart, Section 25 of the Indian Evidence Act, 1872 says that no confession made to a police officer, shall be proved as against a person accused of any offence. Thus, Section 25 of the Evidence Act makes the confessional statement of accused before police officers inadmissible in evidence which cannot be brought on record by prosecution to obtain conviction. In the matter of Aghnoo Nagesia v. State of Bihar, reported in AIR 1966 SC 119, Hon’ble Supreme Court has 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…...The terms of Section 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 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 31 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…..”

40. As such, the memorandum statement (Ex. P/10) of the appellant/accused under Section 27 of the Evidence Act is inadmissible in evidence being hit by Section 25 of the Evidence Act in view of the decision rendered by the Supreme Court in Aghnoo Nagesia (supra) and therefore, cannot be made basis for upholding the conviction.

41. In Kali Ram v. State of Himachal Pradesh7 the Hon’ble Supreme Court held that if two views are possible, the one favorable to the accused must be adopted. The present case clearly admits of such doubt.

42. Upon a comprehensive evaluation of the evidence on record, this Court is of the considered opinion that the prosecution has failed to establish a complete and unbroken chain of circumstances. The evidence does not conclusively point towards the guilt of the appellant and leaves room for reasonable doubt. The conviction recorded by the learned trial Court is therefore 7 (1973) 2 SCC 808 32 unsustainable in law.

43. Accordingly, criminal appeal is allowed. The judgment of conviction and order of sentence dated 14.02.2024 passed by the learned trial Court under Section 302 IPC are hereby set aside. Appellant is acquitted of the charge by extending him benefit of doubt. He shall be released forthwith, if not required to be detained in any other case.

44. Appellant is directed to furnish personal bond for a sum of Rs.25,000/- and one surety in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973 (Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023).

45. Let a copy of this judgment and original record be transmitted to trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice padma/-