Page No.1 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 2025:CGHC:18174-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR [Arising out of a common judgment dated 28.01.2017, passed in Sessions Case No.36 of 2016 (State of Chhattisgarh v. Santosh Kumar Choudhary and 02 others) by the Additional Sessions Judge, Saraipali, District Mahasamund (CG)] Criminal Appeal No. 190 of 2017 Subhash Patel S/o Shri Chaitram Patel, Aged About 33 Years R/o Village Kodopali, Police Chowki Baloda, Police Station Saraipali, Civil and Revenue District Mahasamund, (Chhattisgarh) --- Appellant Versus State of Chhattisgarh, through The Police Station Saraipali, Civil and Revenue District Mahasamund, (Chhattisgarh) --- Respondent WITH Criminal Appeal No. 262 of 2017 Santosh Kumar Chowdhary S/o Shri Gayaram Chowdhary, Aged About 37 Years R/o Village Kodopali, Police Chowki Baloda, Police Station Saraipali, Civil and Revenue District Mahasamund, (Chhattisgarh) ---Appellant Versus State of Chhattisgarh, through the Police Station Saraipali, Civil and Revenue District Mahasamund, (Chhattisgarh) --- Respondent WITH CRA No. 769 of 2017 Shyam Lal Nand S/o Vibhishin Nand, Aged About 40 Years R/o Village Kodopali, Police Chouki Baloda Thana Saraipali, District Mahasamund, (Chhattisgarh) ---Appellant SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 Versus State of Chhattisgarh, through Police Station House Saraipali, District Mahasamund, (Chhattisgarh) --- Respondent [Cause-title taken from Case Information System (CIS)] ------------------------------------------------------------------------------------------ For Appellants : Mr. Jamil Akhtar Lohani and Mr. Ashok Verma, Advocates respectively For Respondent : Mr. Ashish Shukla, Addl. Advocate General -------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (22.04.2025) Sanjay K. Agrawal, J (1) Regard being had to the similitude of the questions of fact and law involved and being arising out of common impugned judgment dated 28.01.2017, on the joint request of learned counsel for the parties, all these 03 criminal appeals are clubbed together, heard together and being decided by this common judgment. (2) In these criminal appeals filed under Section 374(2) of Cr.P.C., total 03 accused-appellants, namely, Santosh Kumar Choudhary (A- 1), Subhash Patel (A-2) and Shyamlal Nand (A-3) are calling in question the legality, validity and correctness of a common impugned judgment of conviction and order of sentence dated 28.01.2017, passed in Sessions Case No.36 of 2016 (State of Chhattisgarh v. Santosh Kumar Choudhary and 02 others) by the Additional Sessions Judge, Saraipali, District Mahasamund (CG), whereby they all have been convicted and sentenced as under: Page No.3 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 Conviction Sentence U/s. 302/34 of IPC Imprisonment for life with fine of Rs.2,000/- each and, in default of payment of fine, additional rigorous imprisonment for 06 months each. U/s. 201/34 of IPC Rigorous imprisonment for 05 years with fine of Rs.1,000/- each and, in default of payment of fine, additional rigorous imprisonment for 06 months each. [Both the sentences are directed to run concurrently] (3) The case of the prosecution, in a nutshell, is that in the intervening night of 16-17.05.2016, at Village Kodopali, which comes within the ambit of Police Station Saraipali, District Mahasamund (CG), the 03 accused-appellants herein, firstly shared common intention of killing one Laxman Choudhary (herein after referred to as the “deceased”) and, in furtherance thereof, committed his murder and, in order to screen themselves from the legal punishment, burnt the dead-body of the deceased and, thereby, said to have committed the aforesaid offences. (4) It is further case of the prosecution that initially on 17.05.2016, when the deceased was not found, search was made and, ultimately, on 18.05.2016, a missing person report was lodged by Gangaram (PW-01) [uncle of the deceased]. However, on the same day, one dead-body of unknown person was found in burnt condition at adjoining fields of the courtyard of Gayaram (PW-01), therefore, the same was reported to the police vide Ex.P/01 and, wheels of investigation started running in the matter, in which, Page No.4 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 dehati nalsi was recorded vide Ex.P/27. Summons under Section 175 of CrPC were sent vide Ex.P/06 and inquest proceedings were also conducted vide Ex.P/07. FIR was also registered vide Ex.P/35. Since only bones and other remains of the said dead-body was found, PW-13- Dr. Sudhir Kumar (Medical Officer), who conducted postmortem, sent all the material to Medical College Hospital, Raipur vide Ex.P/09. Thereafter, vide Ex.P/13, Dr. Ullas Gonnade (PW-20) examined the said bones and opined that bones are of the same person who died, but cause of death could not been determined, therefore, need for DNA test was emphasized. However, no DNA test was conducted for the reasons best known to the prosecution. Thereafter, accused-appellants were arrested vide Ex.P/28 to Ex.P/30 and their memorandum statements were recorded vide Ex.P/02 to Ex.P/04 respectively. Pursuant to the memorandum statement of the appellant- Santosh (A-1), one gamcha was seized vide Ex.P/05. The said scarf gamcha was subjected to chemical examination and, as per FSL report (Ex.P/08), it has been opined that no stains of blood were found on the aid gamcha. 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 appellants/accused abjured their guilt and entered into defence by Page No.5 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 stating that they are innocent and have been falsely implicated. (5) The prosecution in order to prove its case examined as many as 26 witnesses and exhibited 35 documents, whereas the appellants/accused in support of their defence, though not examined any witness, but exhibited 05 documents. (6) 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 & 201/34 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. (7) Mr. Jamil Akhtar Lohani and Mr. Ashok Verma, learned counsel appearing for the respective appellants jointly submit that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Sections 302/34 & 201/34 of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. They further submits that: (i) even the dead-body of the deceased has not been found and merely on the basis of some pieces of bone, a conclusion has been drawn by the prosecution that the bones were of the deceased; (ii) no DNA test has conducted and, in absence of which, conclusion drawn by the prosecution as well as by the learned trial Court is contrary to the law; (iii) though at the instance of the appellant- Santosh (A-1) one gamcha has been Page No.6 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 seized, but the FSL report is negative in relation to said gamcha, therefore, recovery of said article is of no help to the prosecution and (iv) though it is alleged that the appellant- Santosh (A-1) has given confessional statement before the police vide Ex.P/02 that he alongwith other appellants- Subhash (A-2) and Shyamlal (A-3) have committed the crime in question, but the same is inadmissible in evidence, as hit by Section 30 of the Indian Evidence Act, 1872 (for short the “IE Act”). As such, in view of aforesaid illegalities and perversity in the impugned judgment qua case of the prosecution, all the appeals deserve to be allowed and all the appellants are liable to be acquitted of the charges on the basis of benefit of doubt. (8) 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 appellants for offences under Sections 302/34 & 201/34 of IPC and, therefore, all the appeals are liable 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) In order to answer the plea raised at the bar, we will consider each of the submissions putforth on behalf of the appellants one by Page No.7 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 one. Submissions No.(i) & (ii): (11) So far as submissions No.(i) & (ii) are concerned, it has been argued on behalf of the appellants that the dead-body of the deceased has not been recovered, indeed, only bones of an unknown person were recovered and, therefore, PW-13- Dr. Sudhir Kumar (Medical Officer), who conducted postmortem of same, sent all the material (bones and remains) to Medical College Hospital, Raipur vide Ex.P/09, whereby, Dr. Ullas Gonnade (PW-20) examined the said bones and vide Ex.P/13 opined that though the said bones are of the same person who died, but cause of death could not been ascertained, therefore, need for DNA test was emphasized. However, no DNA test has been conducted in the present case for the reasons best known to the prosecution. In this regard decision of the Supreme Court may be noticed herein profitably. (12) 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 1 (1981) 1 SCC 511 Page No.8 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 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, 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 Page No.9 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct 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. …” (13) 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 Court in Rama Nand (supra) has further been followed in the matter 2 (2006) 13 SCC 229 3 2013 Cri.L.J. 1534 Page No.10 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 of Sanjay Rajak v. State of Bihar4. (14) However, in the matter of S. Kaleeswaran v. State by the Inspector of Police Pollachi Town East Police Station, Coimbatore District, Tamil Nadu5, 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.” (15) 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 Lordships have held that the prosecution has failed to prove the death of Ramsevak either homicidal or otherwise. 4 (2019) 12 SCC 552 5 2022 SCC OnLine SC 1511 6 (2016) 12 SCC 251 Page No.11 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 (17) Returning to the facts of the case in light of the aforesaid parameters laid down by their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid that admittedly the dead body of the deceased was not recovered in the present case, indeed, only bones and other remains were recovered, which was initially sent for postmortem examination, but PW-13- Dr. Sudhir Kumar (Medical Officer) sent all the material (bones and remains) to Medical College Hospital, Raipur vide Ex.P/09. Thereafter, Dr. Ullas Gonnade (PW-20), who examined the said bones and gave report (Ex.P/13) clearly opined that though the said bones are of the same person who died, but cause of death could not been ascertained and, therefore, he suggested for DNA test, but no DNA test has been conducted in the present case for the reasons best known to the prosecution. Even, the learned trial Court in Para-25 of the impugned judgment has recorded a finding that DAN test of bones have not been conducted by the prosecution. The prosecution was obliged to prove that the said bones were that of deceased and of none-else, which the prosecution has failed to establish, as the same were not subjected to DNA profiling and the trial Court only on the basis of the opinion given by Dr. Ullas Gonnade (PW-20) vide Ex.P/13 that the said bones were of the persons who died proceeded to hold that the same were of the deceased and his death was homicidal in nature, which is per se illegal and contrary to the well settled law in this behalf notice herein-above. As such, we Page No.12 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 hereby set aside the finding of the trial Court that the bones/skull so recovered were of the deceased and that his death was homicidal in nature. Submissions No.(iii): (18) The next submission made on behalf of appellants is that though pursuant to the memorandum statement of the appellant- Santosh (A-1) one gamcha has been seized vide Ex.P/05, but FSL report stands negative in respect of said gamcha, therefore, recovery of the same is of no help to the prosecution. True it is that pursuant to the memorandum statement of the appellant- Santosh (A-1), but FSL report (Ex.P/08) clearly opined that no stains of blood were found in the said gamcha, as such, the recovery of said gamcha is of no help to the prosecution more particularly when it is not the case of the prosecution that the said gamcha has been used by either of the appellants in commission of the crime in question or same is of such a unique quality or design, which only belongs to the appellant and same is not easily available in the market. We hereby hold accordingly. Submissions No.(iv): (19) The next submission that has been raised on behalf of the appellant is that though appellant- Santosh (A-1) has given confessional statement the police vide Ex.P/02 that he alongwith other appellants- Subhash (A-2) and Shyamlal (A-3) have committed Page No.13 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 the crime in question, however, the same is inadmissible in evidence as hit by Section 30 of the IE Act. (20) In this regard, it would be relevant here to notice Section 30 of the Indian Evidence Act, 1872, which states as under: - “30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.—When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation.—“Offence”, as used in this section, includes the abetment of, or attempt to commit, the offence.” (21) A careful perusal of the aforesaid provision would show that the object of this provision is that where an accused person unreservedly confesses his own guilt, and at the same time implicates another person who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself, because the admission of his own guilt operates as a sort of sanction, which, to some extent, takes the place of the sanction of an oath and so affords some guarantee that the whole statement is a true one. When a person admits his guilt to the fullest extent, and exposes himself to the pains and penalties provided therefore, there is a guarantee for his truth. The Court could use the confession of one accused Page No.14 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 against another accused only if the following two conditions are fulfilled: - 1. The co-accused should have been charged in the same case along with the confessor. 2. He should have been tried together with the confessor in the same trial. (22) Section 30 of the Evidence Act came up for consideration before their Lordships of the Supreme Court in Haricharan Kurmi v. State of Bihar 7 (Constitution Bench) in which their Lordships have considered the probative value of confession of co-accused and its use how to be made in joint trial. In Haricharan Kurmi (supra), their Lordships clearly held that though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act and observed as under: - “11. … The basis on which this provision is founded is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so, S. 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used 7 AIR 1964 SC 1184 Page No.15 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it has been retracted. With that aspect of the problem, however, we are not concerned in the present appeals. When S. 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in S. 30 is not evidence under S. 3 of the Act. ... 12. … It would be noticed that as a result of the provisions contained in S. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained is S. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526: (AIR 1952 SC 159) where the decision of the Privy Council in Bhuboni Sahu's case, 76 Ind App 147 (AIR 1949 PC 257) has been cited with approval. Page No.16 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 16. … As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible, from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals.” (23) Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in Haricharan Kurmi (supra) and also considering the provisions contained in Section 30 of the Evidence Act, it is quite vivid that confessional statement of accused is a very weak piece of evidence, unless other circumstantial evidence or ocular evidence is available. The conviction cannot be rested only on the confessional statement of the accused with the aid of Section 30 of the Evidence Act, as it requires corroboration from other evidence and unless there is other evidence, ocular or circumstantial evidence available on record, merely on the basis of confessional statement of accused, conviction with the aid of Section 30 of the Evidence Act cannot be made by Page No.17 of 17 IN CRA-190-2017, CRA-262-2017 & 769-2017 the courts. Consequently, the confessional statements of the appellant- Santosh (A-1) cannot be relied upon in the present case to hold the appellants guilty for the offence in question. We hereby hold accordingly. (24) In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove its case beyond all reasonable doubt and, in absence of which, the learned trial Court is totally unjustified in convicting the appellants for offence under Sections 302/34 & 201/34 of IPC being the authors of the crime in question and same is liable to be set aside. Accordingly, the conviction and sentence of all the appellants for offence punishable under Sections 302/34 & 201/34 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 reported to be on bail, they need not to surrender, however, their bails bonds shall remain in force for a further period of six months, in view of provisions contained under Section 437-A of CrPC. (25) All 03 criminal appeals are allowed. (26) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge s@if