Dhamtari, Chhattisgarh v. State of Chhattisgarh Through P.S
Case Details
1 2025:CGHC:10991-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 538 of 2021 Lakhan Lal Sahu S/o Late Jhadu Ram Sahu Aged About 40 Years R/o Village- Khisora, Chowki- Kareli Badi, P.S.- Magarload, District- Dhamtari, Chhattisgarh., District : Dhamtari, Chhattisgarh ... Appellant(s) (In Jail) versus State of Chhattisgarh Through P.S.- Magarload, District- Dhamtari, Chhattisgarh. ...Respondent(s) For Appellant For Respondent/State : : Mr. D.N. Prajapati, Advocate. Mr. S.S. Baghel, Deputy Government Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per . Ramesh Sinha, Chief Justice 06.03.2025 1. Heard Mr. D.N. Prajapati, learned counsel for the appellant. Also heard Mr. S.S. Baghel, learned Deputy Government Advocate, appearing for the respondent/State. 2. This criminal appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.03.12 10:32:07 +0530 2 impugned judgment of conviction and order of sentence dated 18.03.2021, passed by the learned Additional Sessions Judge, Link Court Kurud, District Dhamtari (C.G.) in Session Case No. 42 of 2019, whereby the appellant has been convicted and sentenced as under: Conviction Sentence Section 302 of the Indian Penal Rigorous imprisonment (for short, Code (for short, ‘IPC’) ‘R.I.’) for life and fine of Rs.1,000/-, in default of payment of fine, 06 months R.I. more. 3.
Facts
Brief facts of the case are that the complainant, namely, Smt. Ram Bai (PW-1), who is the wife of the deceased, Jhaduram, lodged a report at the Magarlod Police Station, alleging that on 11.06.2019, at about 5:00 a.m., her husband, Jhaduram, left the house to irrigate the vegetables in their garden. The accused, Lakhan Sahu followed him at the same time. At around 6:00 a.m., when she went to inspect the garden, she found her husband lying in the water tank in a collapsed condition. After pulling him out and examining him, she discovered that her husband sustained injuries over his head, ear, forehead, chest, shoulder, and was bleeding profusely. Unfortunately, her husband had died. Thereafter, she went to Gopi Sahu's house and informed him about the incident. Gopi and his wife subsequently came to the scene of occurrence and witnessed the situation. There was an ongoing land dispute between her husband and Lakhan Sahu. On the basis of the complaint, the Police registered a case under Crime No. 157 of 2019 for the offence punishable under Section 302 of the IPC. During the investigation, the Police prepared various 3 documents, including merg intimation (Ex.P/2), body panchnama (Ex.P/4), site map (Ex.P/3), spot map (Ex.P/5), and property seizure sheet (Exs.P/11 to P/13). They also recorded the statements of the witnesses. 4. Dead body of the deceased was sent for postmortem to the Community Health Center, Magarload, District Dhamtari (C.G.). Dr. Sharda Thakur (PW-8) conducted postmortem vide Ex.P/19 and opined that the cause of death of the deceased appeared to be cardiopulmonary failure, shock due to excessive bleeding due to head injury and the nature of death was homicidal. 5. Statements of the witnesses were recorded. After due investigation, the Police had filed the charge-sheet against the accused/appellant before the jurisdictional criminal Court and the case was committed to the Court of Session for trial from where the learned Additional Sessions Judge, Link Court Kurud, District Dhamtari (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. 6. The trial Court has framed charges against the accused/appellant for the offence punishable under Sections 302 of the IPC and proceeded on trial. The appellant abjured the guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 7. In order to bring home the offence, the prosecution examined as many as 19 witnesses and exhibited 35 documents. Statement of the accused/appellant was recorded under Section 313 of the Cr.P.C. in which he denied his guilt. However, he examined in his defence Exs.D/1 to D/3. 8. The trial Court after appreciating oral and documentary evidence 4 available on record, by its judgment dated 18.03.2021 convicted the appellant for the offence punishable under Section 302 of the IPC and sentenced them as mentioned in the paragraph 02 of this judgment which is sought to be challenged in this criminal appeal preferred under Section 374(2) of the Cr.P.C. by the appellant. 9.
Legal Reasoning
16. This Court in Jaharlal Das vs. State of Orissa, (1991) 3 SCC 27, has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions 15 must be satisfied: i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and iii.) 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 it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 17. In Varkey Joseph vs. State of Kerala, 1993 Suppl (3) SCC 745, this Court has held that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt. XXX XXX XXX 19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808].” 31. Reverting to the facts of the present case, it is quite vivid that as per merg intimation and FIR report, there are no eyewitnesses to the incident, 16 but only the Smt. Ram Bai (PW-1), wife of the deceased and stepmother of the accused suspected that her husband was murdered by the accused due to dispute of the land. 32. Considering the facts and circumstances of the case and the facts that there is no direct evidence against the appellant and the entire prosecution case is based on the suspicion of wife of the deceased and memorandum statement (Ex.P/10) given by the appellant; the confessional statement (Exs.P/10) made by the appellant before the Police OfÏcer, we are of the considered opinion that alleged memorandum statement of the appellant (Ex.P/10) are hit by Section 25 of the Evidence Act and no part of it is admissible under Section 27 of the Evidence Act. Mere recovery of weapon from the appellant cannot become the basis of conviction and in criminal cases, the guilt should be proved beyond any reasonable doubt that a reasonable man with ordinary prudence can have and there should be no doubt whether the accused is guilty or not. If there is slightest doubt, no matter how small it is, the benefit will go the accused. Further, the Court stated that it is a well settled principle of law that however strong a suspicion may be, it cannot take place of proof beyond reasonable doubt. The prosecution had utterly failed to prove the incriminating circumstances beyond reasonable doubt. Therefore, we are of the considered opinion that the learned trial Court, while convicting the appellant for the offence punishable under Section 302 of the IPC has committed grave legal error as the prosecution has failed to prove its case beyond reasonable doubt. 33. For the foregoing reasons, criminal appeal filed on behalf of appellant-Lakhan Lal Sahu is allowed and his conviction & sentence 17 punishable under Section 302 of the IPC are hereby set aside. The appellant is acquitted of the said charge levelled against him. He is in jail. He shall be. He be released forthwith, unless required in any other case. 34. Keeping in view the provisions of Section 437-A of the CrPC (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is 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/- with one surety 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 appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 35. The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) Judge (Ramesh Sinha) Chief Justice Brijmohan
Arguments
Learned counsel for the appellant would submit that even though death of the deceased is said to be homicidal in nature, but there is no evidence to hold that the appellant has committed the offence in question as there is no eyewitness in the present case and conviction is only based on the memorandum statement of the appellant followed by recovery of weapon i.e. danda (bamboo stick) and full-sleeve shirt, which is inadmissible in evidence in view of the provisions contained in Sections 25, 26 and 27 of the Evidence Act. He would also submit that though in danda (bamboo stick) and full-sleeve shirt, bloodstains were found, but for want of serologist report, it cannot be held that it was human blood and even blood found in the said items was the blood of deceased, as such, the judgment of conviction recorded and sentence awarded deserve to be quashed. 10. On the other hand, learned State counsel would support the impugned judgment and submit that the prosecution has been able to bring home the offence and there is sufÏcient evidence available on record to hold him guilty and he has rightly been convicted by the learned trial Court and the appeal deserves to be dismissed. 11. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 5 12. The first question for consideration would be, whether death of deceased was homicidal in nature ? 13. The trial Court has answered this issue in afÏrmative. After going through the medical evidence of Dr. Sharda Thakur (PW-8) and postmortem report (Ex.P/19) and considering the nature of injuries, the trial Court has rightly held that death of the deceased was homicidal in nature, which has not been seriously disputed by learned counsel for the appellant. As such, the finding recorded by the trial Court that death of the deceased was homicidal in nature is the finding of fact based on evidence available on record, which is neither perverse nor contrary to record. We hereby afÏrm that finding. 14. In the present case, there is no direct evidence/eyewitness available on record. The trial Court has convicted the appellant only on the basis of his memorandum statement followed by recovery of weapon of assault and clothes of the appellant. 15. Memorandum statement (Ex.P/10) of the appellant has been proved by the Investigation OfÏcer Bhupendra Singh Chandra (PW-14) and on that basis, the appellant has been convicted. 16. 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 6 offence, in the custody of a police ofÏcer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 17. Section 27 of the Indian Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered. 18. The Hon’ble Supreme Court in the matter of Asar Mohammad and others v. State of U.P., reported in AIR 2018 SC 5264 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 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 Emperor, reported in AIR 1947 PC 67 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 7 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, paragraphs 23 to 29 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 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 8 xxx xxx xxx xxx xxx xxx” 19. Reverting to the facts of the case in light of the principles of law laid down by their Lordships of the Hon’ble 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 statement that they have inflicted injuries to deceased would not be admissible under Section 27 of the Evidence Act. In the present case, no incriminating article has been seized pursuant to the memorandum statement of the appellant (Ex.P/10). As such, that part of evidence would not be admissible. 20. The Hon’ble Supreme Court in the matter of Aghnoo Nagesia v. State of Bihar, reported in AIR 1966 SC 119 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. 9 Section 25 provides : "No confession made to a police ofÏcer, shall be proved as against a person accused of an offence." The terms of S. 25 are imperative. A confession made to a police ofÏcer 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 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 ofÏcer, 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 ofÏcer. Section 26 does not qualify the absolute ban imposed by S. 25 on a confession made to a police ofÏcer. 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 ofÏcer, 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 ofÏcer 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-s (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of S. 162 are wide enough to include a confession made 10 to a police ofÏcer 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 ofÏcer 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 ofÏcer 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 ofÏcer or made by him while he is in the custody of a police ofÏcer 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 ofÏcer and amounts to a confessional statement, proof of the confession is prohibited by S. 25. The confession includes not only the admission of 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” 21. In the present appeal, confessional statement (Ex.P/10) made by the appellant before the Police OfÏcer is hit by Section 25 of the Evidence Act and no part of it is admissible under Section 27 of the Evidence Act. 11 As such, we are of the considered opinion that alleged memorandum statement of the appellant (Exs.P/10) 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 Hon’ble Supreme Court in Asar Mohammad (supra). Even otherwise, no other incriminating piece of evidence is available on record to convict the appellants for offences punishable under Sections 341, 302 read with Section 34 of the IPC. 22. The testimonies of Smt. Ram Bai (PW-1), Bhulau Ram (PW-4), and Smt. Laxmi Vishwakarma (PW-6) confirm that the accused and the deceased were seen together near the farm of the deceased on the date of the incident. The witnesses also stated that the accused had a dispute with the deceased over land ownership. Smt. Ram Bai (PW-1), who is the wife of the deceased and stepmother of the accused, has stated in her deposition that her husband had gone to the farm for irrigation purposes on the date of the incident and she found him dead in the water tank with injuries on his face and head. 23. Narayan Singh Patel (PW-3), the village Sarpanch, has stated in his deposition that there was a long-standing dispute between the accused and the deceased over land ownership. The dispute had reached the ofÏce of the Tehsildar, and the accused had threatened the deceased. 24. Smt. Pushpa Maratha (PW-5), has stated in her deposition that she saw the bicycle of the accused parked near the farm of the deceased on the date of the incident. 25. Narayan Singh Patel (PW-3) and Shiv Kumar Bansod (PW-10), 12 who witnessed the memorandum and seizure, stated that the accused had confessed for committing the crime and had led the Police to the scene of the crime. The accused had hidden the danda (bamboo stick) used in the crime and the bloodstained shirt which he was wearing in a sugarcane field. The witnesses confirmed that the seized bamboo stick and shirt were the same ones used in the crime. The testimonies of the witnesses corroborate the case of the prosecution, and their statements are reliable and trustworthy. 26. Investigating OfÏcer, Bhupendra Singh Chandra (PW-14), has stated in his deposition that during the investigation, he registered an unnumbered crime (Ex.P/2) based on the report of Smt. Ram Bai (PW-1). He also prepared a crime details form (Ex.P/3), issued a notice under Section 175 of the CrPC (Ex.P/6), and prepared a inquest report after conducting a panchnama of the dead body vide Ex.P/7. Additionally, he provided a duty certificate (Ex.P/26) to the constable for the postmortem examination of the dead body vide Ex.P/19, and sent a memo for query of seized article and query report (Ex.P/20) to provide test and curie reports of the seized danda (bamboo stick) and shirt. He also issues notices vide Exs.P/8, P/16, P/27, P/28 & P/29), preparing seizure memos (Exs.P/11, P/12, P/13 & P/24), and preparing a letter (Ex.P/31) for an FSL report, as well as an FSL report (Ex.P/32). 27. On 12.06.2019, the memorandum statement of accused (Ex.P/10) was prepared by the Investigating OfÏcer in the presence of witnesses at village Khisora. The accused presented the danda (bamboo stick) and full-sleeve print shirt and white in color, with blood-like stains. These items were seized and a seizure memo (Ex.P/11) was prepared. 13 28. The Hon’ble Supreme Court in the case of Kansa Behera vs. State of Orissa, reported in AIR 1987 SC 1507, held as under: “11. As regards the recovery of a shirt or a dhoti with blood stains which according to the serologist report were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In the evidence of the Investigating OfÏcer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small blood stains on the cloths of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the blood stains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn.” 29. In the present case, though the serologist report is present and marked as Ex.P/32, the serologist report shows that the full-sleeves shirt worn by the accused at the time of incident and the shirt worn by the deceased at the time of death had human bloodstains, but the blood group of the said is not available on record as the same was not send to serologist for determining the blood group and hence, in absence of any matching of blood group, the same does not is conclusive for determining the guilt of the accused. 14 30. In the case of Digamber Vaishnav vs. State of Chhattisgarh, reported in AIR 2019 SC 1367, the Hon’ble Supreme Court has held as under: “15. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt.