1 2025:CGHC:20911-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 178 of 2014 1 - Ravindra Nath Mukharji S/o Late Shailendra Nath Mukharji Aged About 63 Years R/o Qtr. No. 9/a Road, No. 43 Sector-7, Bhilai Nagar C.G. Ciovil And Revernue Distt. Durg C.G. , Chhattisgarh --- Appellant(s) versus 1 - G. Deepak Rao And Ors. S/o G. Soma Rao Telgu Aged About 26 Years R/o Sector-4, Road No. 26, Qtr. No. 2 E, Bhilai P.S. Bhatti Distt. Durg C.G. , Chhattisgarh 2 - Ajay Prakash S/o Vishal Das Satnami Aged About 22 Years R/o Sector -3, Road No. 10, Quter No. -2-E, Bhilai P.S. Bhatti Distt. Durg C.G. , District : Durg, Chhattisgarh 3 - State Of C.G. S/o Through Aarakshi Kendra Rajhara Distt. Balod C.G. , District : Balod, Chhattisgarh -- Respondent(s) CRA No. 609 of 2014 1 - G.Deepak Rao And Anr. S/o G. Soma Rao Telgu Aged About 22 Years R/o Sector Sadak No. 26, Qtr. No. 17e, Bhilai, Ps Bhatti, Distt. Durg C.G. , Chhattisgarh 2 2 - Ajay Prakash S/o Vishal Das Satnami Aged About 22 Years R/o Sector - 3, Sadak 10 Qtr. No. 2e, Bhilai, Ps Bhatti, Distt. Durg C.G. , District : Durg, Chhattisgarh ---Appellant(s) Versus 1 - State Of Chhattisgarh S/o Through Sho, Police Of Ps Rajhara, Distt. Balod C.G. , Chhattisgarh ...Respondent(s) In ACQA No. 178 of 2014 For Appellant-complainant : Mr. Vikas A. Shrivastava, Advocate. For Respondent/State : Mr. Malay Jain, P.L. In CRA No. 609 of 2014 For Appellants-accused : Mr. B.P. Singh, Advocate For Respondent/State : Mr. Malay Jain, P.L. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma Judge Judgment on Board Per Arvind Kumar Verma, Judge 07 .0 5 .202 5 1. Heard Mr. Vikas A. Shrivastava, learned counsel for the appellant- complainant in ACQA No. 178/2024 and Mr. B.P. Singh, learned counsel for appellants-accused in CRA No. 609 of 2014. Also heard Mr. Malay Jain, learned Panel Lawyer, appearing for the respondent/State. 2. Acquittal Appeal No. 178 of 2014 has been filed on behalf of the complainant, challenging the legality, validity and propriety of judgment dated 28.06.2014 passed by the Session Judge Balod Chhattisgarh in Sessions Trial No78/2013, whereby the learned Sessions Judge has acquitted the accused/respondents from the charges 302, 450, 302/34, Digitally signed by JYOTI JHA Date: 2025.05.16 13:29:31 +0530 3 394 r/w Section 397 of the Indian Penal Code ( for short ‘the IPC’), however, convicted him under Section 411of IPC and sentenced to undergo RI for 03 years and to pay fine of Rs.50,000/-, in default of payment of fine, additional RI for 06-06 months. 3. Criminal Appeal No. 609 of 2014 has been filed by the appellants-accused, challenging the legality, validity and propriety of very same judgment dated 28.06.2014 passed by the learned Session Judge, Balod District Balod Chhattisgarh in Sessions Trial No. 78/2013, whereby the learned Sessions Judge convicted accused/appellants under Section 411 of IPC and sentenced him to undergo RI for 03 years and to pay fine of Rs.50,000/-, in default of payment of fine, additional RI for 06-06 months 4. The prosecution case, in brief, is that on 17.03.2023, one Deverndar Kumar Purohit has been informed at about 11:50 by the Principal of Chikhlakasa that the door of the deceased was opened and after that Devendra Kumar Purohit has tried to contract to the deceased with her mobile which was found silent and thereafter he reached near the house of deceased where he has found that the articles in the house are kept disturbed and thereafter he has informed to the Police Station Rajhara and the dead body of the deceased was found into the bad room of the house. Police has lodged merg intimation (Ex.P-32) and FIR bearing crime No. 55/13 was lodged against the unknown person (Ex.P- 33). A spot map (Ex.P/015) was prepared by the Patwari. The accused was taken into custody vide Ex.P/ 25 & 26, and Property seizure memo vide Ex.P/9 to 13. A crime details form was prepared by the Police vide 4 Ex.P/31. The seized property was sent to the State Forensic Laboratory for examination and the report was received vide Ex.P/30. 5. Dead body of the deceased was sent for postmortem to PHC Chikhalakasa District Balod (C.G.), where Dr. R. Ramteke (PW-9) conducted postmortem over the body of the deceased vide Ex.P/9 and found following injuries:- Injuries: 1. Injuries on neck:- (I) cut injuries four numbers discrete multiple curved, spindle shaped skin deep present on lower part of neck, base filled with clotted blood in size of 10-13 mmm X 3-4 mm are simple injuries. Multiple abrasion with contused borders Dots line, 5 numbers sizes 3-4 mm width not penetrating the skin foiled with clotted blood. 2. Two injuries on right chest, abrasion with contused boarders measuring 3-4 mm width. 3. Cut Injury on right lower waist measuring 3cm x 0.5 cm, spindle shaped skin deep filled with clotted blood. 4. Abrasion 2cm x 5cm on right wrist. 5. Abrasion four dots in size of 3-4 mm on abdomen on front. 6. Injuries on chin 4 Numbers dots like abrasion and contused borders with clotted blood. All the above injuries were antemortem (before death). Dr. R. Ramteke (PW-9) opined that all the injuries were ante- mortem. The mode and cause of the death is asphyxia due to suffocation caused by smothering. Homicidal in nature. The death of the deceased occurred within 18-48 hours of the 5 examination. 6. After due investigation, the Police filed charge-sheet against the appellants before the trial Court. The trial Court has framed charges against the appellants for the offences punishable under Section 450, 302 of IPC and 302 r/w34, 394 r/w397 of IPC and proceeded on trial. The appellants abjured the guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 7. In order to bring home the offence, the prosecution examined as many as 12 witnesses and exhibited 33 documents. The appellants/accused examined none in their defence. 8. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 28.06.2024, convicted the accused/appellants for the offence punishable under Sections 411 of the IPC and sentenced them as aforementioned, against which, this criminal appeal has been filed. 9. In CRA No. 609/2014, learned counsel for the appellants submits that the case is based on circumstantial evidence and in this case, there is no any connecting link, therefore after six months of the incident, the properties were seized and on that basis conviction has been passed under Section 411 of IPC which is not according to law. The learned trial Court is absolutely unjustified in convicting the appellants for the offence punishable under Sections 411 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the stolen property has been defined in Section 410 of Indian Penal Code and any person dishonestly receiving stolen property is guilty of the offence 6 under Section 411 of IPC and where there is no evidence to identify the property seized from the accused person to be stolen property, conviction against the accused under Section 411 of IPC cannot be sustained. In this case, the property in question are not properly identified. The seizure of the ornaments is alleged from the appellant No. 1 has not properly proved and not properly identified. He further submits that mobile phone which is alleged to be seized from the appellant No. 2 Ajay Prakash, but no call detailed of the mobile were found and no any mobile of appellant No. 2 was also seized from him, even no any prosecution witness has stated about the mobile number of appellant No. 2. The articles seized from the open place, therefore seizure is doubtful and the memorandum is also doubtful, therefore conviction under Section 411 of IPC is not sustainable according to the law. 10. In ACQA No. 178/2014, learned counsel for the appellant- complainant submits that the PW-03 Amit Jain fully supported prosecution case as well as seizure and memorandum of accused. On the basis of recovery, it can be held that accused persons were present at the place of occurrence. Further Durgesh Kumar Bhavgadhe PW-10 clearly depose in his court statement that the mobile which recovers from the possession of accused No. 1 was traced at the place of occurrence at the point of time, which clearly shows that the accused persons were present at the spot at the point of time. Learned counsel for the appellant-complainant submits that learned trial Court has erred in convicting the accused persons under Section 411 whereas the recovery of robbed article was seized from the possession of accused persons and they have not given any explanation about possession. Therefore, the appellants-accused may also be 7 convicted under Section 302 of IPC. 11. On the other hand, learned Penal Lawyer would support the judgment, finding and sentence passed by the trial Court mainly contending that the prosecution has proved its case beyond reasonable doubt and the appellant has rightly been convicted for the offence committed by him which does not warrant interference by this Court. 12. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 13. The entire case of the prosecution rests on circumstantial evidence, as there is neither any eye-witness nor any judicially admissible confession. It is well settled law that where the case rests entirely on circumstantial evidence, the chain of evidence must be so far complete, such that every hypothesis is excluded but the one proposed to be proved and such circumstances must show that the act has been done by the Appellant-accused within all human probability, this has been held by the Hon’ble Supreme Court in the case of Hanumant vs. State of Madhya Pradesh, (1952) 2 SCC 71). And also in Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, this Court outlined five essential principles, often referred to as five golden principles, which must be satisfied for circumstantial evidence to conclusively establish the guilt of the Appellant-accused: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established…… (2) the facts so established should be consistent only with the 8 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.” 14. To prove the charges, the prosecution has laid emphasis on recovery of gold ornaments (four gold bangles, gold chain, gold ring, gold earnings and two chain of ear) belonging to the deceased, on the basis of memorandum statement (Ex. P-7) given by the appellant- G. Deepak Rao and on recovery of mobile phone belonging to the deceased, on the basis of memorandum statement (Ex.P-9) given by the appellant – Ajay Prakash. 15. Sections 25 and 26 of the Evidence Act stipulate that confession made to a police officer is not admissible. However, Section 27 is an exception to Sections 25 and 26 and serves as a proviso to both these sections. 16. This Court is of the view that Section 27 lifts the ban, though partially, to the admissibility of confessions. The removal of the ban is not of such an extent so as to absolutely undo the object of Section 26. As 9 such the statement whether confessional or not is allowed to be given in evidence but that portion only which distinctly relates to discovery of the fact is admissible. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the Appellant- accused as to its existence. 17. The essential ingredients of Section 27 of the Evidence Act are three-fold: i. The information given by the accused must led to the discovery of the fact which is the direct outcome of such information. ii. Only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. iii. The discovery of the facts must relate to the commission of such offence. 18. The question as to whether evidence relating to recovery is sufficient to fasten guilt on the accused was considered by the Hon’ble Supreme Court Court in Bodhraj Alias Bodha & Ors. v. State of Jammu & Kashmir, (2002) 8 SCC 45, wherein it has been held as under:- “18… Section 27 of the Indian Evidence Act, 1872 (in short “Evidence Act”) is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the 10 accused. This position was succinctly dealt with by this Court in Delhi Admn v. Balakrishan [(1972) 4 SCC 659] and Mohd. Inayatullah v. State of Maharashtra [(1976) 1 SCC 828]. The words “so much of such information” as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely 11 anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken in to custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the 12 principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor [AIR (1947) PC 67], is the most quoted authority of supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [See State of Maharashtra v. Dam Gopinath Shirde and Ors, (2000) 6 SCC 269]. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which “distinctly relates to the fact thereby discovered”. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given. 13 19. In the present case, the prosecution has produced Amit Jain (PW-3) as the panch witnesse to prove the recovery pursuant to the disclosure made by the Appellant-accused G Deepak Rao. 20. Amit Jain (PW-3) has deposed that memorandum of accused Deepak Rao was recorded in his presence (Ex.P-7)the question were asked to the accused in his presence by the Investigation Officer in Police Station Bhilai Bhatti and accused Deepak Rao had told that he had hidden jewelry of the deceased in the bushes and thereafter it has been recovered. 21. Further, a perusal of the disclosure statement made by the Appellant- accused indicates that the Appellant-accused had allegedly hidden the gold/ornaments allegedly belonging to the deceased by hiding them in bushes. The seizure memo states that the police took possession of the articles after they were taken out by the Appellant-accused in presence of the witnesses. 22. From perusal of the statements of the memorandum witnesses, it is apparent that the seized ornaments were identified by Ravindranath Mukherjee (PW-1) and no proper TIP was conducted. Further the call details which are produced and said to be of accused G. Deepak Rao, no mobile or sim has been seized or produced, therefore, this is no chain to convict this accused on the basis of call details. Ravindranath Mukherjee (PW-1) has stated that no notice for identifying the sized ornaments and no other ornaments except the ornaments shown him in the Court were shown. 23. Therefore, from the above evidence it is apparent that neither the 14 prosecution has been able to establish the guilt on the basis of call details nor the proper TIP was conducted. The Hon’ble Supreme Court has consistently ruled that a memorandum, like a disclosure statement, cannot be a standalone, material piece of evidence for conviction unless it’s supported by other cogent and corroborating evidence. Further, the Hon’ble Supreme Court in ‘n’ number of cases has categorically held that the memorandum like a disclosure statement cannot be corroborative piece of evidence for conviction unless it is supported by other cogent and corroborative evidence. 24. Therefore, on examination of the over all facts and evidence of the case the following facts emerged:- 1- The Recovery was made after six months that too from a open place. 2- No proper TIP was conducted to identify the seized ornaments. 3- The prosecution has failed to prove that the mobile which was seized was actually belonging to the deceased. 4- Though the call details of the accused G. Deepak Rao were received, however, no mobile phone or sim was seized to complete the chain. 5- The appellants have been arrested after six months. 25. Therefore, from the above facts benefit of doubt leans in favour of the appellants because in the instant case no TIP was conducted and the ornaments were seized after a gap of six months, which raises a doubt. 26. From the overall consideration of the evidence which have come on record, it would reveal that there are a lot of broken links in the prosecution's case which does not complete the chain of circumstances 15 for conclusively reaching to the conclusion that it was the Appellants alone to have stolen the ornaments. In the light to all the infirmities in the prosecution case and in absence of complete chain of events, it would be difficult for upholding the conviction of the appellants only on the basis of circumstantial evidence of strong suspicion which have come on record. In a case of circumstantial evidence, conviction cannot be based on suspicion. 27. It is settled principles of law that prosecution has Burden to prove its case beyond reasonable doubt and where two views are possible, arising on the basis of the same evidence, the view which is favoruable to the accused should be taken into consideration and the accused should be given benefit of doubt. In the matter of Digambar Vaishnav vs. The State of Chhattisgarh it has been held as under : “It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence 28. It is a settled proposition that when 2-3 views came to fore, the evidence which favours the accused is required to be admitted. This proposition has been been laid down in the matter of Kali Ram vs. State of H.P. reported in (1973) 2 SCC 808 and has been reiterated in the matter of Pradeep Kumar vs. State of Chhattisgarh reported in 16 (2023) 5 SCC 350 wherein, relevant para-27 reads as under :- “27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted.” Conclusion 29. Thus, in view of the foregoing, we are of the considered opinion that so far as the conviction of accused persons under Section 411 IPC is concerned, when the recovery of the ornaments itself is doubtful as no TIP was conducted and there are various components which are missing from the chain of circumstantial evidence., therefore, the conviction of the appellants cannot be recorded against them. Accordingly, the appeal is allowed. The appellants are acquitted of the charges under Section 411 IPC. 30. The acquittal appeal ACQA No. 178/2014 filed by the complainant against the order of acquittal of the accused persons from the charge under Sections 302, 450, 302 read with Section 34, 394 read with Section 397 IPC is concerned, it is a settled law that if, on appreciation of evidence, two views are possible, the view in favour of the accused has to be adopted. This proposition has been laid down by the Hon’ble Supreme Court in the matter of Bodhraj alias Bodha & Ors. Vs. State of Jammu & Kashmir {(2002) 8 SCC 45}. It is also settled law that order of acquittal should not normally be interfered with unless there are compelling and substantial reasons for doing so. We do not find any 17 compelling and substantial reasons in the present case so as to interfere in the order of acquittal of the accused persons of the charge under Sections 302, 450, 302 read with Section 34, 394 read with Section 397 IPC. Accordingly, the Acquittal Appeal preferred by the complainant Ravindranath Mukherjee (PW-1) is liable to be and is hereby dismissed. 31. In the result, as regards Acquittal Appeal in respect of the appellant -complainant Ravindra Nath Mukharji is dismissed and as regards criminal appeal in respect of the appellants G Deeppak Rao and Ajay Prakash is allowed. 32. The appellants are reported to be on bail. Their bail bonds shall remain operative for a period of 6 months in view of Section 437A of CrPC (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023). 33. The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice Jyoti