Page No.1 of 14 IN CRA-1254-2018 2026:CGHC:10729-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1254 of 2018 [Arising out of judgment dt. 04.07.2018, passed in Sessions Case No.323 of 2016 (State of Chhattisgarh v. Kawasi Joga and others) by the Sessions Judge, South Bastar, Dantewada (CG)] 1 - Kawasi Joga, S/o Kawaso Bhima, aged about 35 years, R/o Village Mekhavaya, Thothapara, Outpost Chindgarh Sukma District Sukma (Chhattisgarh) 2 - Madkami Sukda, S/o Late Handa, aged about 48 years, R/o Village Mekhavaya, Manjherpara, Outpost Chindgarh Sukma District Sukma (Chhattisgarh) 3 - Madkami Toklu, S/o Late Madkami Rama, aged about 40 years, R/o Village Mekhavaya, Manjerpara, Outpost Chindgarh Sukma District Sukma (Chhattisgarh) ... Appellants (On Bail) Versus State of Chhattisgarh, through Police Station Sukma, District Sukma (Chhattisgarh) ... Respondent [Cause-title taken from Case Information System (CIS)] ----------------------------------------------------------------------------------------------- For Appellants : Mr. Mirza Keshar Beg, Advocate For Respondent-State : Mr. Rahul Tamaskar, Govt. Advocate ----------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board (02.03.2026) Sanjay K. Agrawal, J SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 14 IN CRA-1254-2018 (1) Invoking criminal appellate jurisdiction of this Court, 03 appellants herein have preferred this criminal appeal 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 04.07.2018, passed in Sessions Case No.323 of 2016 (State of Chhattisgarh v. Kawasi Joga and others) by the Sessions Judge, South Bastar, Dantewada (CG), whereby they have been convicted and sentenced as under: Conviction Sentence U/s. 302/34 of IPC each Imprisonment for life with fine of Rs.200/- and, in default of payment of fine, additional rigorous imprisonment for 03 months. U/s. 450 of IPC each Rigorous imprisonment for 05 years with fine of Rs.200/- and, default of payment of fine, additional rigorous imprisonment for 03 months. U/s. 506 (B) of IPC each Rigorous imprisonment for 03 years with fine of Rs.100/- and, default of payment of fine, additional rigorous imprisonment for 03 months. [All the sentences are directed to run concurrently] (2) The case of the prosecution, in short, is that on 18.03.2016, at about 08:00 PM, in house of the first informant- Smt. Rambati Yadav (PW-01), situated at Village Mekhavaya, which comes within the ambit of Police Station Sukma, District Sukma (CG), the accused-appellants herein, in furtherance of their common intention, firstly trespassed into the house of the first-informant- Smt. Rambati Yadav (PW-01) and, thereafter, started quarreling with her Page No.3 of 14 IN CRA-1254-2018 mother, namely, Smt. Sukara Yadav (hereinafter referred to as the “deceased”) on previous dispute and also assaulted her by means of wooden log, due to which, deceased suffered grievous injuries and died and, thereby, said to have committed the aforesaid offence. (3) It is further case of the prosecution that when the aforesaid incident was reported to the police by Smt. Rambati Yadav (PW-01), merg intimation (Ex.P/01) and FIR (Ex.P/02) were registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent and inquest proceedings were conducted. Nazari Naksha was also prepared vide Ex.P/16. Bone of the deceased from the place of cremation were also seized vide Panchnama (Ex.P/03). The said bones recovered vide Ex.P/03 were subjected to medical examination, which was conducted by Dr. Gyanendra Kumar (PW-09) and, as per his Medical Report (Ex.P/20), it has been opined that though it’s a right side female human bone, but age and cause of death could not be ascertained, therefore, the said bones were preserved for DNA test and handed over the concerned police constable. However, no DNA test has been conducted for the reasons best known to the prosecution. Further, accused-appellants were arrested vide Ex.P/08 to Ex.P/10. Memorandum statement of appellant- Kawasi Joga (A-1) was recorded vide Ex.P/04 and, pursuant to which, wooden stick and his shirt have been recovered vide Ex.P/05 & Ex.P/06. The seized articles were sent for chemical examination and, as per FSL report Page No.4 of 14 IN CRA-1254-2018 (Ex.P/28) it has been opined that no stains of blood were found either on the wooden stick or on the shirt seized from the appellant- Kawasi Joga (A-1). After statements of witnesses were recorded and due investigation, the police filed charge-sheet against the appellants in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 30 documents, whereas the appellants- accused in support of their defence examined 01 witness and exhibited 02 documents. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellants for offences under Sections 302/34, 450 & 506(B) of IPC and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Mirza Keshar Beg, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for the aforesaid offences, as Page No.5 of 14 IN CRA-1254-2018 the prosecution has failed to prove the same beyond reasonable doubt. He further submits that the prosecution has failed to prove that the death of the deceased was homicidal in nature and, furthermore, though bones of the deceased were recovered vide Ex.P/03, but no DNA test has been conducted in the present in order to establish that the said bones is of the deceased only. Even otherwise, the testimony of eye-witness, namely, Smt. Rambati Yadav (PW-01) is also of no help to the prosecution, as she has clearly turned hostile and not supported the case of the prosecution at all. As such, the present appeal deserves to be allowed and the appellants are liable to be acquitted of the said charges on the basis of benefit of doubt. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellants for the aforesaid offences. Thus, the present appeal deserves to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. Page No.6 of 14 IN CRA-1254-2018 (9) In the case at hand, the bone of the deceased were seized vide Ex.P/03 and same were subjected to medical examination, which was conducted by Dr. Gyanendra Kumar (PW-09) and, as per his Medical Report (Ex.P/20), it has been opined that though it’s a right side female human bone, but age and cause of death could not be ascertained, therefore, the said bones were preserved for DNA test and handed over the concerned police constable. However, no DNA test has been conducted for the reasons best known to the prosecution. In this regard, decision of the Supreme Court may be noticed herein gainfully and profitably, as it has been held by their Lordships that the ‘body’ doctrine is merely a rule of caution and not of law. (10) In the matter of Rama Nand and others v. State of Himachal Pradesh1, their Lordships of the Supreme Court have held in no uncertain terms that discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Their Lordships further held that the ‘body’ doctrine is merely a rule of caution and not of law. It has also been held that where the dead body of the victim in a murder is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. But where the fact of corpus delicti or homicidal death is sought to be established by circumstantial evidence alone, 1 (1981) 1 SCC 511 Page No.7 of 14 IN CRA-1254-2018 or by both, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Their Lordships observed as under:- “28. This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused. Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. “I would never convict,” said Sir Mathew Hale, “a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead.” This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old “body” doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale’s enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct Page No.8 of 14 IN CRA-1254-2018 ocular account of an eyewitness, or by circumstantial evidence, or by both. But where the fact of corpus delicti i.e. ‘homicidal death’ is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3, Evidence Act, a fact is said to be “proved”, if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. …” (11) The principle of law laid down in Rama Nand (supra) has been reiterated and followed by the Supreme Court in the matter of Ramjee Rai and others v. State of Bihar2 and similar proposition has been made in the matter of Rishi Pal v. State of Uttarakhand3 following Rama Nand (supra) and it has been held that absence of corpus delicti is insignificant if cogent and satisfactory proof of homicidal death of victim is adduced. The decision of the Supreme 2 (2006) 13 SCC 229 3 2013 Cri.L.J. 1534 Page No.9 of 14 IN CRA-1254-2018 Court in Rama Nand (supra) has further been followed in the matter of Sanjay Rajak v. State of Bihar4. (12) However, in S. Kaleeswaran v. State by the Inspector of Police Pollachi Town East Police Station, Coimbatore District, Tamil Nadu 5 , their Lordships of the Supreme Court have made exception to the rule of corpus delicti that if the entire chain is duly proved by cogent evidence, the conviction could be recorded even if the corpus is not found, but when as per the case of the prosecution, the dead body of the victim was discovered from the place shown by the accused, it is imperative on the part of the prosecution to prove that the dead body or the skeleton found at the instance of the accused was that of the victim and of none else, and it was held as under: - “14. … but when as per the case of the prosecution, the dead body of the victim was discovered from the place shown by the accused, it is imperative on the part of the prosecution to prove that the dead body or the skeleton found at the instance of the accused was that of the victim and of none else.” (13) In the matter of Rambraksh alias Jalim v. State of Chhattisgarh6, the Supreme Court has held that the investigating officer did not take any attempt to conduct DNA analysis of bones to prove that the skeleton seized was that of Ramsevak and their 4 (2019) 12 SCC 552 5 2022 SCC Online SC 1511 6 (2016) 12 SCC 251 Page No.10 of 14 IN CRA-1254-2018 Lordships have held that the prosecution has failed to prove the death of Ramsevak either homicidal or otherwise. (14) Similarly, in the matter of Rajendra Pralhadrao Wasnik v. State of Maharashtra7, their Lordships of the Supreme Court referring to Sections 53-A and 164-A of the CrPC, held that DNA profiling has now become a part of the statutory scheme and for the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country, and observed in paragraphs 54, 55 & 56 as under: - “54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53-A and Section 164-A of the CrPC. We are not going to the extent of suggesting that if there is no DNA profiling, the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the trial court, an adverse consequence would follow for the prosecution. 55. In Mukesh v. State (NCT of Delhi)8 a separate opinion was delivered by Banumathi, J. and in para 455 of the Report it was held that DNA profiling is an extremely accurate way of comparing specimens and such testing can make a virtually positive identification. It was stated: 7 (2019) 12 SCC 460 8 (2017) 6 SCC 1 Page No.11 of 14 IN CRA-1254-2018 “455. … DNA profiling is an extremely accurate way to compare a suspect’s DNA with crime scene specimens, victim’s DNA on the bloodstained clothes of the accused or other articles recovered, DNA testing can make a virtually positive identification when the two samples match. A DNA fingerprint is identical for every part of the body, whether it is the blood, saliva, brain, kidney or foot or any part of the body. It cannot be changed; it will be identical no matter what is done to a body. Even relatively minute quantities of blood, saliva or semen at a crime scene or on clothes can yield sufficient material for analysis. The experts opine that the identification is almost hundred per cent precise. Using this i.e. chemical structure of genetic information by generating DNA profile of the individual, identification of an individual is done like in the traditional method of identifying finger prints of offenders.” (emphasis supplied) 56. In the context of importance of scientific and technological advances having been made, we may recall the observation of this Court in Selvi v. State of Karnataka9 in para 220 of the Report that “The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts.” (15) In the recent past also in the matter of Indrajit Das v. The State of Tripura 10 , where the dead-body was not recovered, only a limb was recovered, in absence of DNA testing, their Lordships of the Supreme Court have held that one of major links of the chain of circumstances is not established. 9 (2010) 7 SCC 263 10 2023 LiveLaw (SC) 152 Page No.12 of 14 IN CRA-1254-2018 (16) Reverting to the facts of the present case in light of the above principles of law, it is quite vivid that since dead-body in form of bones was recovered, therefore, it was imperative on the part of the prosecution to prove that the said bones recovered was that of the deceased only and none else, as held by their Lordships in S. Kaleeswaran (supra), which the prosecution has miserably failed to establish. Therefore, it could not be established that the said bones which was recovered vide Ex.P/03 was only that of the deceased, for the simple reason that no DNA profiling of the said bones was conducted in the present case and, even, as per Medical report (Ex.P/20), conducted by Dr. Gyanendra Kumar (PW-09), it has been opined that though it’s a right side female human bone, but age and cause of death could not be ascertained, therefore, the said bones were preserved for DNA test and handed over the concerned police constable. No explanation at any point of time has been offered by the prosecution to state as to why DNA test of the subject bones has not been conducted in the present case. As such, it is quite clear that the prosecution has failed to establish that the subject bones were that of the deceased and nobody else and, in absence of which, the learned trial Court has committed grave legal error in holding the present appellants guilty for the offences in question. We hereby hold accordingly. (17) Furthermore, though the prosecution has relied upon the testimony of Rambati Yadav (PW-01) as an eye-witness to the Page No.13 of 14 IN CRA-1254-2018 incident, but during her statement before the Court she completely turned hostile and not supported the case of the prosecution. In para-15 she clearly stated that the at the time of incident she was sleeping and when she came to know about the incident she visited the house of her mother (deceased). As such, the testimony of the said witness cannot be relied upon to hold the appellants herein guilty. We hereby hold accordingly. (18) In the present case, it is also the case of the prosecution that that pursuant to the memorandum statement of appellant- Kawasi Joga (A-1) recorded vide Ex.P/04, wooden stick and his shirt were recovered vide Ex.P/05 & Ex.P/06. However, it has not been established by the prosecution that the said seized articles were used by the appellant in the crime in question in any manner. As such, in light of Mustkeen @ Sirajudeen v. State of Rajasthan 11 the appellant cannot be held guilty only on the basis of recovery of article (i.e. wooden stick and shirt), which has been made on the basis of his disclosure statement recorded vide Ex.P/04 that too when as per FSL report (Ex.P/28) it has clearly been opined that no stains of blood were found either on the wooden stick or on the shirt seized from the appellant- Kawasi Joga (A-1). Therefore, the recovery of said articles is of no help to the prosecution. We hereby hold accordingly. (19) In view of foregoing analysis, we are unable to hold that the 11 (2011) 11 SCC 724 Page No.14 of 14 IN CRA-1254-2018 prosecution has been able to prove its case beyond all reasonable doubt on the basis of aforesaid evidence available on record and, in absence of which, the learned trial Court is absolutely unjustified in convicting the appellants for the offences in question being the author of the crime and the same is liable to be set aside. Accordingly, the conviction and their respective sentence of the appellants for offences punishable under Sections 302/34, 450 & 506(B) of IPC, as imposed upon them by the learned trial Court, are hereby set aside. They are acquitted of the said charges on the basis of benefit of doubt. Since the appellants are already on bail, they need not to surrender. However, their bail bonds shall remain in force for a further period of six months in view of the provision contained in Section 437-A of the CrPC. (20) Consequently, the criminal appeal is allowed to the extent indicated herein-above. (21) Let a certified copy of this order alongwith original record be transmitted to the trial Court concerned for necessary information and action, if any. sd/- sd/- (Sanjay K. Agrawal) (Arvind Kumar Verma) Judge Judge s@if