{Arising out of judgment dated 15.10.2015 passed in Sessions Trial No.43/2015 by the learned v. State Of Chhattisgarh, Through The P.S. Torwa, Distt. Bilaspur, Chhattisgarh
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.07.25 11:14:04 +0530 2025:CGHC:35751-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1422 of 2015 {Arising out of judgment dated 15.10.2015 passed in Sessions Trial No.43/2015 by the learned Fourth Additional Sessions Judge, Bilaspur} Gaukaran Alias Sandip Yadav, S/o. Manharan Yadav, Aged About 30 Years, R/o. Village Hardi Tona, P.S. Sirgitti, Tah. Bilha, Distt. Bilaspur, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through The P.S. Torwa, Distt. Bilaspur, Chhattisgarh. ... Respondent For Appellant For Respondent : : Mr. Vikash Pandey, Advocate
Legal Reasoning
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji State of Maharashtra2 where the following observations were made: Sahabrao Bobade v. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (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, and (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.” 10. The trial Court has culled out the following incriminating circumstances in para.16 of its judgment. “(क). अपरा(cid:5)ध क(cid:5) हे(cid:8)तु(cid:10)क A 2 (1973) 2 SCC 793 7 (ख). अभि(cid:13)यु(cid:10)क्तु ቛኋ(cid:5)रा(cid:5) सं(cid:18)तुक(cid:10) मा(cid:5)रा क(cid:8) न्यु(cid:5)यियुक(cid:8) ्ቈरा सं(cid:18)स्वी(cid:29)क(cid:30) तितु A संमा्ቌ क(cid:21) गई (ग). अभि(cid:13)यु(cid:10)क्तु ቛኋ(cid:5)रा(cid:5) आध(cid:5)रा परा, जप्तु तिकयु(cid:5) ज(cid:5)न(cid:5) A तिकयु(cid:8) तिकयु(cid:8) गयु(cid:8) ्ቚकटी"कराण कथन क(cid:8) अपरा(cid:5)ध मा’ ्ቚयु(cid:10)क्तु तिकयु(cid:8) गए सं(cid:18)पभि्ቈ क(cid:5) (घ). रा(cid:5)सं(cid:5)युतिनक परिरा्ቌण क(cid:21) रिराप-टी. A”” 11. The trial Court, after appreciating the oral and documentary evidence on record, found the aforesaid incriminating circumstances proved and proceeded to convict the appellant for the aforesaid offence. Now, we will discuss each of the incriminating circumstances one by one to judge the correctness of the judgment and order passed by the trial Court. 12. The first incriminating circumstance is that the appellant has motive to commit the offence only on the ground that the deceased has branded the appellant as greedy (ज(cid:10)ठहे(cid:5)), however, only on that basis the motive of offence cannot be said to have been proved. 13. The second incriminating circumstance is that extra judicial confession is said to have given to Sant Ram Verma (PW-1), however, PW-1 has only stated that, on being asked from the appellant, he told that deceased called him greedy (ज(cid:10)ठहे(cid:5)) for which quarrel took place between them and he assaulted the deceased by crowbar. 8 14. It is a settled principle of criminal jurisprudence that extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. [See : Sahadevan v. State of Tamil Nadu3]. 15. In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered the earlier decisions including Balwinder Singh v. State of Punjab4 and pertinently laid down the principle in paragraphs 15.1, 15.8 and 16 as under :- “15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10) “10. An extra-judicial confession by its very nature is rather a weak type of evidence and 3 (2012) 6 SCC 403 4 1995 Supp (4) SCC 259 9 requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.” 15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambigous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B.5 and Pancho v. State of Haryana6.) The principles 16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These percepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused : (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. 5 (2011) 11 SCC 754 6 (2011) 10 SCC 165 10 (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material inherent improbabilities. discrepancies and (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 16. The principle of law laid down in Sahadevan (supra) has further been followed with approval in the matter of Pradeep Kumar v. State of Chhattisgarh7 and very recently in the matter of Pawan Kumar Chourasia v. State of Bihar8, the following principle of law has been laid down by their Lordships in paragraph 5 of the report :- “EVIDENTIARY VALUE OF EXTRA-JUDICIAL CONFESSION 5. As far as extra-judicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a 7 Criminal Appeal No. 1304 of 2018, judgment dated 16/03/2023 8 2023 LiveLaw (SC) 197 11 person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility. ” 17. In view of the aforesaid judgments of the Supreme Court, the extra-judicial confession cannot be held to be reliable and the trial Court has wrongly held that the appellant/accused has given extra-judicial confession to Sant Ram Verma (PW-1). 18. The third & fourth incriminating circumstance is that pursuant to memorandum statement of the appellant, crowbar has been seized, however, as per the FSL report, no blood was found on the seized crowbar. The Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh 9 has clearly held that only on the basis of sole circumstance of recovery of blood-stained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt and the same has been followed with approval recently in the matter of State of Rajasthan v. Hanuman10. Furthermore, there is no other incriminating circumstance and evidence 9 2024 SCC Online SC 67 10 2025 SCC OnLine SC 1387 12 available on record to base the conviction of the appellant and in that view of the matter, the trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of I.P.C. and, as such, he is entitled for acquittal on the ground of benefit of doubt. 19. Accordingly, the impugned judgment of conviction and order of sentence dated 15.10.2015 is hereby set aside. In the result, the appeal is allowed. 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. 20. 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/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge Ashok
Arguments
Mr. H.A.P.S. Bhatia, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board (24.07.2025) 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 of conviction and order of sentence dated 15.10.2015, passed by the learned Fourth Additional Sessions Judge, Bilaspur in Sessions Trial No.43/2015, 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 and fine of Rs.500/-, in default of payment of fine amount, 1 month additional imprisonment. 2. Case of the prosecution, in short, is that, on 19.12.2014 at about 10:00 P.M. to 12:00 P.M. at under constructed Housing Board Colony, Torwa, P.S. Torwa, District Bilaspur, the appellant herein assaulted Shivkumar Kenwat (now deceased) by crowbar on his head, by which he suffered grievous injuries and died; thereby the aforesaid offence has been committed. The matter was reported to the police, pursuant to which, Merg Intimation was registered vide Ex.P-23, Spot Map was prepared vide Ex.P-27, Inquest was conducted vide Ex.P-2 and dead body of deceased Shivkumar Kenwat was subjected to post- 3 mortem, which was conducted by Dr. Rizwan Siddique (PW-10), who proved the post-mortem report vide Ex.P-18, in which cause of death was stated to be intracranial hemorrhage due to head injury and death was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P-4), crowbar has been seized vide Ex.P-5, which was sent for chemical examination to FSL along-with other seized articles and as per the FSL report dated 24.09.2015, blood was not found on the seized crowbar. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case 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 17 witnesses and exhibited 35 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 Indian Penal Code and 4 sentenced him to undergo life imprisonment, against which the present appeal has been preferred. 5. Mr. Vikash Pandey, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. He would further submit that the incriminating circumstances incorporated in para 16 of the impugned judgment, which the trial Court found proved are not made out and, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 6. Mr. H.A.P.S.Bhatia, 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 learned trial Court has rightly convicted the appellant for the aforesaid offence. 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. 8. The first question for consideration as to whether the death of deceased Shivkumar Kenwat was homicidal in nature, 5 has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-18) proved by Dr. Rizwan Siddique (PW-10), according to which, cause of death was stated to be intracranial hemorrhage due to head injury 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 case of the prosecution is not based on direct evidence, it is based on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 , which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 as under: - “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. 1 (1984) 4 SCC 116 6