Koushal Patwa, S/o. Ramavtar Patwa, Aged About 52 Years, Occupation Agriculturist, R/o. Village Shardapur v. State Of Chhattisgarh, Through Poli
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.05.13 10:33:59 +0530 2025:CGHC:21194-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR {Arising out of judgment dated 24.03.2018 passed in Sessions Trial No. R 25/2015 by the learned Second Additional Judge to the Court of Additional Sessions Judge Ramanujganj, District Balrampur-Ramanujganj} CRA No. 799 of 2018 Koushal Patwa, S/o. Ramavtar Patwa, Aged About 52 Years, Occupation Agriculturist, R/o. Village Shardapur, Police Station Trikunda, District Balrampur Ramanujganj, Chhattisgarh. --- Appellant versus State Of Chhattisgarh, Through Police Station Trikunda, District Balrampur-Ramanujganj, Chhattisgarh. (Cause Title taken from Case Information System) --- Respondent For Appellant : Mr. F.S.Khare, Advocate For Respondent(s) : Mr. Ashish Shukla, Addl. A.G. CRA No. 846 of 2018 Mahadev Gupta, S/o. Shri Rajkumar Gupta, Aged About 37 Years, R/o. Village Sulsuli, Police Station Trikunda, District Balrampur- Ramanujganj, Chhattisgarh. ---Appellant 2 Versus State Of Chhattisgarh, Through Police Station Trikunda, District Balrampur- Ramanujganj, Chhattisgarh (Cause Title taken from Case Information System) --- Respondent For Appellant : Mr. Amuj Kumar Pandey, Advocate appears on behalf of Mr. Bhupendra Singh, Advocate For Respondent(s)
Legal Reasoning
: Mr. Ashish Shukla, Addl. A.G. CRA No. 912 of 2018 Chand Dev Alias Bhoda, S/o. Ramdev Panika, Aged About 24 Years, Occupation Agriculture, R/o. Village Sulsuli, Police Station- Trikunda, District Balrampur-Ramanujganj, Chhattisgarh. --- Appellant Versus State Of Chhattisgarh, Through Police Station Trikunda, District Balrampur-Ramanujganj, Chhattisgarh. (Cause Title taken from Case Information System) --- Respondent For Appellants : Mr. Suresh Tandon, Advocate For Respondent(s) : Mr. Ashish Shukla, Addl. A.G. (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari 3 Judgment on Board (08.05.2025) Sanjay K. Agrawal, J. 1. Chand Dev @ Bhoda (A-1) has preferred Criminal Appeal No.912/2018, Kousal Patwa (A-2) has preferred Criminal Appeal No.799/2018 and Mahadev Gupta (A-3) has preferred Criminal Appeal No.846/2018. Since all the three appeals have been arisen from one Sessions Trial No.R 25/2015, they have been clubbed together, heard together and are being decided by this common judgment. 2. These criminal appeals have been preferred by three appellants : Chand Dev @ Bhoda (A-1), Kousal Patwa (A-2) & Mahadev Gupta (A-3) under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 24.03.2018 passed by the learned Second Additional Judge to the Court of Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj, in Sessions Trial No.R 25/2015, by which the three appellants herein have been convicted & sentenced as under : 4 Conviction & Sentence of Appellant- Chand Dev @ Bhoda (A-1) CONVICTION SENTENCE U/s. 457 of I.P.C. U/s. 380 of I.P.C. : Rigorous imprisonment for 1 year and fine of Rs.500/-, in default of payment of fine, 1 month additional rigorous imprisonment. : Rigorous imprisonment for 1 year and fine of Rs.500/-, in default of payment of fine, 1 year additional rigorous imprisonment. U/s. 120-B of I.P.C. : Life imprisonment and fine of Rs.1000/-, in default of payment of fine, 1 year additional rigorous imprison- ment. U/s. 460 of I.P.C. : Rigorous imprisonment for 10 years and fine of Rs.1000/-, in default of payment of fine, 1 year additional rigorous imprison- ment. U/s. 302 of I.P.C. : Life imprisonment and fine of Rs.10,000/-, in default of payment of fine, 1 year additional rigorous imprison- ment. All the sentences to run concurrently. 5 Conviction & Sentence of Appellant- Kousal Patwa (A-2) CONVICTION SENTENCE U/s. 457 of I.P.C. U/s. 380 of I.P.C. : Rigorous imprisonment for 1 year and fine of Rs.500/-, in default of payment of fine, 1 month additional rigorous imprisonment. : Rigorous imprisonment for 1 year and fine of Rs.500/-, in default of payment of fine, 1 year rigorous imprisonment. additional U/s. 120-B of I.P.C. : Life imprisonment and fine of Rs.1000/-, in default of payment of fine, 1 year additional rigorous imprison- ment. U/s. 460 of I.P.C. : Rigorous imprisonment for 10 years and fine of Rs.1000/-, in default of payment of fine, 1 year rigorous imprisonment. additional U/s. 302 of I.P.C. : Life imprisonment and fine of Rs.10,000/-, in default of payment of fine, 1 year additional rigorous imprison- ment. All the sentences to run concurrently. 6 Conviction & Sentence of Appellant- Mahadev (A-3) CONVICTION SENTENCE U/s. 302/109 of I.P.C. : U/s. 120-B of I.P.C. : Life imprisonment and fine of Rs.10,000/-, in default of payment of fine, 1 year additional rigorous imprisonment. Life imprisonment and fine of Rs.1000/-, in default of payment of fine, 1 year rigorous additional imprisonment. Both the sentences to run concurrently. 3. Case of the prosecution, in brief, is that, on 10.08.2014, at night 11:00 P.M., at Village Sulsuli, Police Station- Trikunda, District Balrampur-Ramanujganj, the three appellants, in furtherance of their common intention, trespassed into the Saw Mill of Dharmendra Patwa (now deceased herein) and looted Rs.450/- and conspiring together caused the death of Dharmendra Patwa; thereby they have committed the aforesaid offences. Pankaj Kumar Patwa (PW-5) reported the matter to the police, pursuant to which, Merg Intimation was registered vide Ex.P-11, FIR was registered vide Ex.P-21 against unknown person on the basis of merg inquiry, Inquest 7 was conducted vide Ex.P-10 and thereafter, dead body of deceased Dharmendra Patwa was subjected to post-mortem, which was conducted by Dr. Kamini Rai (PW-13) who proved the post-mortem report vide Ex.P-17, in which, cause of death was stated to be syncope due to hemorrhage caused by multiple incised wounds and death was homicidal in nature. Pursuant to memorandum statement of A-1, blade of knife was seized vide Ex.P-3; handle of knife and Rs.20/- were seized vide Ex.P-6 and Red colour Jacket was recovered vide Ex.P-7. As per the memorandum statement of A-2, Bicycle and Rs.100/- were seized vide Ex.P-5. The seized bloodstained articles were sent for chemical examination to FSL and as per the FSL report (Ex.P-30), blood was found on the weapon of offence i.e. blade & handle of knife and also the jacket. After due investigation, the appellants were charge-sheeted for the aforesaid offences before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated. 8 4. In order to bring home the offences, prosecution examined as many as fifteen witnesses and exhibited thirty documents and the appellants-accused in support of their defence have not examined any witness, but have exhibited eight documents. 5. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants herein for the aforesaid offences and sentenced them as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred. 6. Mr. Suresh Tandon & F.S.Khare, learned counsels appearing for the appellants (A-1 & A-2), would submit that A-1 & A-2 have been convicted only on the basis of recovery of weapon of offence on which blood has been found. However, it has not been found proved that the weapon of offence was actually used for commission of offence. Furthermore, the extra judicial confession given to Pankaj Kumar Patwa (PW-5), Sunil Kumar Patwa (PW-7), Ramrati Gupta (PW-8), Nainsi Patwa (PW-9) & Anand Gupta (PW-15) has been relied upon, but the said extra judicial confession was made in presence of police officer, which is inadmissible in evidence under Section 25 of the Indian Evidence Act. They would 9 further submit that the motive of offence is also not established, as in order to commit theft, the accused have entered into the Saw Mill of the deceased where deceased Dharmendra woke up and then A-1 & A-2 is said to have murdered the deceased. As such, both the appellants are entitled for acquittal on the basis of benefit of doubt and the appeals deserve to be dismissed. 7. Mr. Amuj Kumar Pandey, learned counsel appears on behalf of Mr. Bhupendra Singh, counsel for the appellant (A-3) would submit that absolutely there is no evidence against A-3 and he had neither contacted A-1 & A-2 nor given contract money to them to kill the deceased. As such, the appellant (A-3) is entitled for acquittal and the appeal deserves to be allowed. 8. Mr. Ashish Shukla, learned State counsel, would submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted the appellants for the aforesaid offences and, as such, all the appeals deserve to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 10 10. The first question, for consideration, as to whether the death of deceased Dharmendra Patwa was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-17), proved by Dr. Kamini Rai (PW-13), according to which, cause of death was stated to be syncope due to hemorrhage caused by multiple incised wounds 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. 11. 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 1 (1984) 4 SCC 116 11 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. 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 Sahabrao Bobade v. State of Maharashtra2 where the following observations were made: 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.” 2 (1973) 2 SCC 793 12 12. Now, the following incriminating circumstances which have been found to be proved by the trial Court are : (i) That, the appellants (A-1 & A-2) wanted to commit theft and entered into the Saw Mill of deceased Dharmendra Patwa then the deceased woke up and he was murdered by them that is the motive of offence. (ii) That, pursuant to memorandum statement of A-1, weapon of offence i.e. blade of knife was seized vide Ex.P-3, handle of knife & Rs.20/- were seized vide Ex.P-6 and jacket was seized vide Ex.P-7, on which blood has been found as per the FSL report (Ex.P-30) and looted amount of Rs.100/- & Bicycle were recovered vide Ex.P-5 as per the memorandum statement of A-2. (iii) That, A-1 & A-2 have given extra judicial confession in presence of police to Pankaj Kumar Patwa (PW-5), Sunil Kumar Patwa (PW-7), Ramrati Gupta (PW-8), Nainsi Patwa (PW-9) & Anand Gupta (PW-15). 13. In order to find out the correctness of the findings recorded by the trial Court for the aforesaid offences, we will examine each of the incriminating circumstances one by one. 13 Motive Of Offence 14. It is the case of the prosecution that the Saw Mill of Mahadev Gupta (A-3) and deceased are running in front of each other, therefore, they have business rivalry, on account of which, A-3 wanted to kill deceased Dharmendra Patwa and contacted to A-1 & A-2 and this is motive attributed by the prosecution to commit murder of deceased. However, this motive is based on the statement of Anand Gupta (PW-15) in which A-1 & A-2 had confessed before him that they made plan with A-3 for killing the deceased for which A-3 had offered them to give Rs.50,000/-. However, there is no evidence in this regard except on the basis of alleged statement given to Pankaj Kumar Patwa (PW-5), Sunil Kumar Patwa (PW-7), Ramrati Gupta (PW-8), Nainsi Patwa (PW-9) & Anand Gupta (PW-15) and therefore, the prosecution has not been able to bring the legal evidence on record to establish the motive. In that view of the matter, the motive of offence is not established that Mahadev Gupta (A-3) had contacted Chand Dev (A-1) & Koushal Patwa (A-2) to cause the death of deceased Dharmesh Patwa on account of business rivalry. 14 Recovery Of Bloodstained Weapon 15. It is the case of the prosecution, which has been found proved by the trial Court that, pursuant to memorandum statement of A-1, blade of knife was seized vide Ex.P-3; handle of knife and Rs.20/- were seized vide Ex.P-6 and Red colour Jacket was seized vide Ex.P-7, which were sent for chemical examination to FSL along-with other seized articles and as per the FSL report (Ex.P-30), blood was found on the seized weapon of offence i.e. blade & handle of knife and also the jacket. However, there is no evidence on record that the knife which was seized was used for commission of offences in question and even otherwise, the appellants could not have been convicted only on the basis of recovery of bloodstained weapon for the aforesaid offences in light of the decision of the Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh 3 by relying upon its earlier decision rendered in the matter of Mustkeem Alias Sirajudeen v. State of Rajasthan4, wherein Their Lordships of the Supreme Court have clearly held that sole circumstance of recovery of blood- stained weapon cannot form the basis of conviction unless the 3 2024 SCC Online SC 67 4 (2011) 11 SCC 724 15 same is corroborated with other piece of incriminating circumstances that too for the offence under Section 302 of I.P.C. 16. Consequently, it is held that though the weapon of alleged offence was recovered, but the prosecution has failed to prove that it was used in commission of offence. Furthermore, only blood has been found on the weapon of offence and jacket as per the FSL report (Ex.P-30), but the FSL report has not been put to the appellants under Section 313 of Cr.P.C. which ought to have been put to the accused as an incriminating piece of evidence in order to rely upon that piece of evidence. Furthermore, from the custody of A-1, Rs.20 has also been recovered but it could not be proved that it was the amount which has been allegedly looted from the Saw Mill of deceased Dharmendra Patwa, therefore, it is of no use to the prosecution. Similarly, from A-2, Rs.100/- was seized but it also could not be established that the said amount was belonging to the deceased on the date and time of offence. The recovery of Bicycle from A-2 would not implicate him, as having a Bicycle and using Bicycle by villagers is a common phenomenon and on that ground, A-2 could not have been 16 convicted for the aforesaid offences and furthermore, nothing has been seized/recovered from A-3. As such, the recovery of weapon of offence from A-1 and recovery of money from A-1 & A-2 would not implicate them in the offence in question, unless it is proved that seized weapon of offence was actually used for commission of offence and the amount in question is held to be owned and possessed by the deceased at the time of commission of offence. Extra Judicial Confession 17. The extra judicial confession is alleged to have been given by A-1 & A-2 to Pankaj Kumar Patwa (PW-5), Sunil Kumar Patwa (PW-7), Ramrati Gupta (PW-8), Nainsi Patwa (PW-9) & Anand Gupta (PW-15). 18. 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 17 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 Nadu5] 19. In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered the earlier decisions including Balwinder Singh v. State of Punjab6 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 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 5 6 (2012) 6 SCC 403 1995 Supp (4) SCC 259 18 record to support it. (Ref. Sk. Yusuf v. State of W.B.7 and Pancho v. State of Haryana8.) 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. (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 inherent material improbabilities. discrepancies and (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 20. The principle of law laid down in Sahadevan (supra) has further been followed with approval in the matter of Pradeep 7 8 (2011) 11 SCC 754 (2011) 10 SCC 165 19 Kumar v. State of Chhattisgarh9 and very recently in the matter of Pawan Kumar Chourasia v. State of Bihar10, 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 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. ” 21. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by the Supreme Court, it is quite vivid that appellants (A-1 & A-2) have been brought 9 Criminal Appeal No. 1304 of 2018, judgment dated 16/03/2023 10 2023 LiveLaw (SC) 197 20 by the police to the place of incident where the local villagers have been gathered and they (A-1 & A-2) had given extra judicial confession where these witnesses Pankaj Kumar Patwa (PW-5), Sunil Kumar Patwa (PW-7), Ramrati Gupta (PW-8), Nainsi Patwa (PW-9) & Anand Gupta (PW-15) were also present to whom Chand Dev (A-1) & Koushal Patwa (A- 2) had confessed that Rs.50,000/- was offered by Mahadev Gupta (A-3) and on account of which they have murdered Dharmendra Patwa. As such, admittedly the extra judicial confession was made in presence of the police, therefore, it would be inadmissible in evidence under Section 25 of the Indian Evidence Act. 22. In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the 'panchsheel' of proof of a case based on circumstantial evidence, as the chain of circumstances is not complete as enumerated in Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellants for the aforesaid offences being the perpetrator/ author of the crime in question in light of the aforesaid incriminating circumstances found proved by the trial Court. 21 23.
Decision
In view of the above, the impugned judgment of conviction and order of sentence dated 24.03.2018 is set aside. The appellants stand acquitted giving them benefit of doubt from the charges framed against them for the offences under Sections 380, 120-B, 457, 460 & 302/109 of I.P.C. The appellants are already on bail, they need not surrender; however, their bail bonds 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. 24. 25. In the result, these criminal appeals are allowed. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. Sd/- (Sanjay K. Agrawal) Judge Sd/- (Deepak Kumar Tiwari) Judge Ashok