Page No.1 of 11 IN CRA-430-2016 2025:CGHC:15646-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.430 of 2016 [Arising out of judgment dated 05.08.2014, passed in Sessions Case No.41 of 2013 (State of Chhattisgarh v. Smt. Kamaldei) by the Additional Sessions Judge, Fast Track Court, Dentawada (CG)] Smt. Kamaldei, W/o Late Umashakar Barsha, aged about 20 years, R/o Village Matenar, P.S. Dentawada, District Dentawada, (Chhattisgarh) ... Appellant (On Bail) Versus State of Chhattisgar, through Station House Officer, Police Station Dentawada, District (Chhattisgarh) ... Respondent [Cause-title taken from Case Information System (CIS)] ------------------------------------------------------------------------------------------ For Appellant : Mr. B.K. Chakrabarty, Advocate For Respondent : Mr. Arvind Dubey, Govt. Advocate ------------------------------------------------------------------------------------------ Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (03.04.2025) Sanjay K. Agrawal, J (1) In this criminal appeal preferred under Section 374(2) of Cr.P.C., the accused-appellant is calling in question the legality, validity and correctness of impugned judgment of conviction and order of sentence dated 05.08.2014, passed in Sessions Case No.41 of 2013 (State of Chhattisgarh v. Smt. Kamaldei) by the Additional Sessions Judge, Fast Track Court, Dentawada (CG), SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.04.07 14:42:37 +0530 Page No.2 of 11 IN CRA-430-2016 whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/- and, in default of payment of fine, additional rigorous imprisonment for 06 months. (2) The case of the prosecution, in a nutshell, is that between 06.01.2013 to 08.01.2013, in the jungle area, situated behind the back of Eidgaah, ITI Bhawan, Dantewada (CG), the accused- appellant committed murder of his son, namely, Bodda @ Ayush, aged about 02 years, by means of strangulation and, thereby, said to have committed the aforesaid offence. (3) It is further case of the prosecution that when first informant reported the matter to the police to the effect that one dead-body of 02 years old body is laying in forest behind ITI Building, merg intimation was registered vide Ex.P/11 and wheels of investigation started running, in which, spot map and panchname were prepared vide Ex.P/10. Identification proceedings of the said dead- body through photographs were conducted vide Ex.P/04 & Ex.P/07 respectively. Summons under Section 175 of CrPC were sent vide Ex.P/12 and inquest proceedings were also conducted vide Ex.P/13. The dead-body of the deceased was sent for postmortem examination and, in the postmortem report (Ex.P/09), conducted by Dr. PSP Shandilya (PW-07), it has been opined that the cause of death of the deceased is cardio-respiratory failure, due to strangulation and mode of death is asphyxia. Thereafter, Page No.3 of 11 IN CRA-430-2016 the accused-appellant was arrested and his memorandum statement was recorded vide Ex.P/05, wherein he stated that since the deceased was his illicit son, therefore, he committed his murder by strangulation, upon which, FIR (Ex.P/17) was recorded. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his 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 09 witnesses and exhibited 18 documents, whereas the appellant/accused in support of his defence, has neither examined any witness nor exhibited any document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Section 302 of IPC and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellants- accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. B.K. Chakrabarty, learned counsel appearing for the Page No.4 of 11 IN CRA-430-2016 appellants submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that there is no direct evidence available on record against the appellant in the present and the case of the prosecution is based on circumstantial evidence. The circumstances relied upon by the learned trial Court in Para-15 of the impugned judgment are not proved beyond reasonable doubt. Only on the basis of the confessional statement made by the appellant vide Ex.P/05 and his subsequent conduct, he has been convicted by the learned trial Court, which is unsustainable and bad in law. Hence, in view of aforesaid illegalities and perversity in the impugned judgment, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charge 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 statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC and, therefore, the present appeal deserves to be dismissed. (8) We have heard learned counsel for the parties, considered Page No.5 of 11 IN CRA-430-2016 their rival submissions made herein-above and went through the records with utmost circumspection. (9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/09), wherein it has been opined that cause of death of the deceased is cardio-respiratory failure, due to strangulation and mode of death is asphyxia, which is duly proved by the statement of Dr. PSP Shandliya (PW-07). Accordingly, taking into consideration the postmortem report (Ex.P/09) and the statement of Dr. PSP Shandliya (PW-07), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. (10) Now, the next question would be whether the accused- appellants herein are the author of the crime or not, which the learned trial Court has recorded in affirmative by relying upon following incriminating circumstances as culled out in Para-15 of the impugned judgment, which reads as under: “1- आरोपिया का कोसी कोराम के घर में सोमवार, मंगलवार को रहना और बुधवार को चले जाना । 2- आरोपिया का गजलू ोपियाम ्ቛारा कहां जा रही हो ूछने र घबरायी हुई व खामोश रहना । Page No.6 of 11 IN CRA-430-2016 3- आरोपिया ्ቛारा बार बार ूछने र ब्ሴे के बारे में कोई जानकारी नहीं देना । 4- आरोपिया ्ቛारा घटनास्थल को जाकर बताना । 5- आरोपिया का मेमोरण्डम कथन ्ቚ. ी. ी. 5 ुलिलस को देना । 6- चिचपिकत्सीय रिरोट के अनुसार बालक की मृत्यु गला दबाने से होना ।” (11) Since, the present case is based on above-stated circumstantial evidence, therefore, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 1 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under: “153.…. (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 & Anr. v. State of Maharashtra, (1973) 2 SCC 793 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 1 (1984) 4 SCC 116 Page No.7 of 11 IN CRA-430-2016 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.” (12) We shall now consider the above-mentioned incriminating circumstances in light of the above-quoted principles of law laid down by their Lordships of the Supreme Court as also in light of the evidence available on record, in order to ascertain whether the appellant herein has rightly be held guilty for offence in question by the learned trial Court or not. As regards Incriminating Circumstances No.01 to 03: (13) Firstly the learned trial Court has relied upon the aspect of appellant not informing about the whereabouts of the deceased to others and maintaining silence upon it, which is his subsequent conduct relevant under Section 8 of the Indian Evidence Act, 1872. True it is that subsequent conduct of the appellant is relevant fact under Section 8 of the Indian Evidence Act, 1872, but merely on the basis of subsequent conduct, the appellant cannot be convicted that too for offence under Section 302 of Page No.8 of 11 IN CRA-430-2016 IPC (See: Subramanya vs. State of Karnataka 2 ). We hereby hold accordingly. As regards Incriminating Circumstances No.04 & 05: (14) The learned trial Court while holding the appellant guilt for the offence in question has also taken into consideration the memorandum statement of the appellant recorded vide Ex.P/05, whereby though no recovery has been made pursuant to the memorandum statement of the appellant, but he has made confession in it to the effect that since the deceased was his illegitimate son, therefore, he committed his murder by strangulation. However, it is well settled that confessional statement made by the accused is inadmissible in evidence in light of Section 27 of the Indian Evidence Act, 1872. In this regard, the Supreme Court in the matter of State of U.P. v. Deoman Upadhyaya 3 , the Constitution Bench of the Supreme Court has held that confessional part of the statement is inadmissible under Section 27 of the Evidence Act and only part which leads to discovery of facts is admissible in evidence. (15) The aforesaid decision of Deoman Upadhyaya (supra) has been followed with approval by the Supreme Court in the matter of Babu Sahebagouda Rudragoudar & Others v. State of 2 AIR 2022 SC 5110 3 AIR 1960 SC 1125 Page No.9 of 11 IN CRA-430-2016 Karnataka 4 and observed in paragraph 60 & 61 held as under : “60. We would now discuss about the requirement under law so as to prove a disclosure statement recorded under Section 27 of the Evidence Act and the discoveries made in furtherance thereof. 61. The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the investigating officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible in evidence as laid down by this Court in State of U.P. v. Deoman Upadhyaya (supra).” (16) Coming to the facts of this case in light of the decisions rendered by the Supreme Court in Deoman Upadhyaya (supra) followed in Babu Sahebagouda Rudragoudar (supra), it is quite vivid that the part of the appellant’s confessional statement that he has committed murder of the deceased by means of strangulation is inadmissible in evidence, as only the information given by the accused/appellant leads to recovery of incriminating material from a place solely and exclusively within the knowledge of the maker thereof would be admissible in evidence. Therefore, the reliance placed by the trial Court on the confessional part of the statement of accused/appellant, admitting his guilt, is inadmissible in evidence and cannot form basis for his conviction. We hereby hold accordingly. As regards Incriminating Circumstance No.06: 4 (2024) 8 SCC 149 Page No.10 of 11 IN CRA-430-2016 (17) The last incriminating circumstance that has been relied upon by the learned trial Court is that as per PM report of the deceased vide Ex.P/09, the cause of death of the deceased is opined to be strangulation. However, this circumstance vis-a-vis cause and nature of the death of the deceased has already been discussed by us in above Para-09, therefore, need not to be considered herein again. (18) 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 laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellant for offence under Section 302 of IPC being the author of the crime in question in light of above-mentioned incriminating circumstances and same is liable to be set aside. (19) Accordingly, the conviction and sentence of the appellant for offence punishable under Section 302 of IPC, as imposed upon him by the learned trial Court, is hereby set aside. He is acquitted of the said charge on the basis of benefit of doubt. Since the appellant is reported to be on bail, therefore, he need not to surrender. But his bail bonds shall remain in force for a further period of six months in light of provisions contained under Section Page No.11 of 11 IN CRA-430-2016 437-A of CrPC. (20) This criminal appeal is allowed. (21) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge s@if