Page No.1 of 13 IN CRA-1777-2019 2025:CGHC:53-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1777 of 20 19 [Arising out of judgment dated 16.07.2019, passed in Sessions Case No.06 of 2019 (State of Chhattisgarh v. Kamlesh @ Tikam Manhare), by the Sessions Judge, Bemetara (C.G.)] Kamlesh @ Tikam Manhare, Son of Late Shibalak Manhare, aged about 32 years, Resident of Village Patharpunji, hall Ward No.11, Berla, Police Station Berla, District Bemetara (Chhattisgarh) ---- Appellant (In Jail) Versus State of Chhattisgarh, through District Magistrate Bemetara, District Bemetara (Chhattisgarh) ---- Respondent -------------------------------------------------------------------------------------------- For Appellant : Mr. Raja Sharma, Advocate/Panel Lawyer appointed through CG High Court Legal Services Committee For Respondent : Mr. Amit Buxy, Panel Lawyer --------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board (02.01.2025) Sanjay K. Agrawal, J (1) Invoking criminal appellate jurisdiction of this Court, the sole appellant herein has 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 SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.01.07 11:56:31 +0530 Page No.2 of 13 IN CRA-1777-2019 sentence dated 16.07.2019, passed in Sessions Case No.06 of 2019 (State of Chhattisgarh v. Kamlesh @ Tikam Manhare), by the Sessions Judge, Bemetara (C.G.), whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.100/- and, in default of payment of fine, sentenced to undergo additional imprisonment for 03 months. (2) The case of the prosecution, in short, is that on 03.10.2018, at about 15:15 hours, at Village Patharpunji, which comes within the ambit of Police Station Berla, the accused-appellant herein with the intent to kill his grand-mother, namely, Suhatiya Bai (hereinafter referred to as the “deceased”) assaulted her by means of sharp edged weapon and stone, due to which, she suffered grievous injuries and died and, thereby, said to have committed the aforesaid offence. (3) It is further case of the prosecution that immediately after the incident, when the aforesaid incident was informed by Punnu Manhare (PW-02) [husband of the deceased] to Amardas Manhare (PW-01) [nephew of the deceased], he reported the matter to the police, upon which, 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 vide Ex.P/03 and inquest proceedings were conducted vide Ex.P/04. Spot map was prepared vide Ex.P/06. The dead-body of the Page No.3 of 13 IN CRA-1777-2019 deceased was sent for postmortem examination, which was conducted by Dr. G.K. Mandle (PW-10) and, as per PM report (Ex.P/15), cause of death of the deceased has been opined to be shock as a result of ante-mortem injury to head and chest. The appellant-accused was arrested vide Ex.P/12 and his memorandum statement was recorded vide Ex.P/08. From the possession of the appellant, one sharp sickle (hasiya) has been seized vide Ex.P/10. Some other articles werer also seized from the spot vide Ex.P/09. Clothes of the appellant were also seized vide Ex.P/11. The seized articles were sent for chemical examination and, in FSL report (Ex.P/26), it has been opined that stains of blood were found on the clothes (full-shirt & full-pant) of the appellant as also on the sickle (hasiya), which was seized from the appellant. After statements of witnesses were recorded and due investigation, the police filed charge-sheet against the appellant 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 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 11 witnesses and exhibited 26 documents, whereas the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. Page No.4 of 13 IN CRA-1777-2019 (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 him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Raja Sharma, learned counsel appearing for the appellant 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 against the appellant and case of the prosecution is based on circumstantial evidence. The circumstances relied upon by the learned trial Court in Para-09 of the impugned judgment are based on surmises and conjunctures and there is no material available on record to connect the appellant herein with the aforesaid offences. Learned counsel vehemently argued that the appellant was not present on the spot (i.e. house of the deceased) on the date and time of the offence, indeed, he was sleeping alongwith his grand- father, namely, Punnu Manhare (PW-02), as per FIR (Ex.P/02) which was lodged by Amardas Manhare (PW-01) after being informed about the incident by Punnu Manhare (PW-02). As such, it is relevant fact under Section 11 of the Indian Evidence Act, 1872 (for short the “IE Act”). Further, the alleged extra-judicial Page No.5 of 13 IN CRA-1777-2019 confession is being made by the appellant in front of the villagers and police personnel, therefore, the same is inadmissible in evidence under Section 25 of the IE Act. Hence, the present appeal deserves to be allowed and the appellant is 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 offence 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 appellant for offence under Sections Section 302 of IPC. 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. (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/15), wherein it has been opined that cause of death of deceased is shock as a result of ante-mortem injury to head and chest, which is duly proved by the statement of Dr. G.K. Mandle (PW-10). Accordingly, taking into consideration Page No.6 of 13 IN CRA-1777-2019 the postmortem report (Ex.P/15) and the statement of G.K. Mandle (PW-10), who has conducted the 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- appellant herein is the author of the crime in question, which the learned trial Court has answered in affirmative on the basis of following incriminating circumstances as culled out in Para-09 of the impugned judgment: 1. घटना के पू्ብ , घटना के समय तथा घटना के प्ቐात् अभियु्ሹ की घटना स्थल पर अपने दादा पु्ቐु मनहरे ए्ብं मृतका सुहतितया बाई के साथ उपቝኌस्थतित रही है । 2. घटना के तत्काल प्ቐात् अभियु्ሹ ्ቛारा घटना की सूचना अपने दादा पु्ቐु मनहरे को दी गई थी । 3. सुहतितया बाई की हत्या का हेतुक अभियु्ሹ ्ቛारा अपने दादा पु्ቐु मनहरे तथा गां्ብ के अन्य लोगों के सम्ቌ ्ቚकट किकया था । 4. अभियु्ሹ ्ቛारा घटना के तत्काल प्ቐात् गां्ብ ्ብालों के सम्ቌ सुहतितया बाई की हत्या की न्यातियके ्ቈर संस््ብीकृ तित की गई थी । 5. अभियु्ሹ के ्ቚकटन पर अपराध में ्ቚयु्ሹ हंसिसया तथा घटना के समय उसके पहने हुए कपड़े, उससे ज्቎ किकये गये थे, सिजसमें एफ.एस.एल. परी्ቌण में र्ሹ के धब्बे पाये गये थे । (11) Since the present case is based on circumstantial evidence, therefore, before proceeding further, it is profitable here to note following five golden principles laid down by their Lordships of the Page No.7 of 13 IN CRA-1777-2019 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 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.” 1 (1984) 4 SCC 116 Page No.8 of 13 IN CRA-1777-2019 (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 Circumstance No.01: (13) In order to hold the appellant guilty for the offence in question, the first incriminating circumstance that has been projected by the prosecution and relied upon by the learned trial Court is that the appellant was present alongwith the deceased (her grand-mother) and grand-father, namely, Punnu Manhare (PW-02) in their house on the date and time of the offence. However, as per spot map (Ex.P/06), the incident took place in the old house of Punnu Manhare (PW-02) and as per site map (Ex.P/05) it has been clearly mentioned that at the time of incident Punnu Manhare (PW- 02) was sleeping in his pakka house at a distance of 20 meters far from the place of incident. Furthermore, as per the statement of Punnu Manhare (PW-02), the appellant was present in the kachcha house where the offence is said to have taken place. But, the FIR (Ex.P/02), which was lodged by Amardas Manhare (PW-01) on the basis of the information give by Punnu Manhare (PW-02) immediately after the incident, in which, Amardas Manhare (PW- Page No.9 of 13 IN CRA-1777-2019 01) only stated that he was informed by Punnu Manhare (PW-02) that the appellant was also sleeping in the pakka house. As such, the presence of the appellant in the old house of the deceased where the offence was committed on the date and time of the offence is not clearly established. (14) In this regard, the decision of the Supreme Court in the matter of Ram Kumar Pande v. State of Madhya Pradesh 2 may be noticed profitably, in which, it has been held in Para-09 that no doubt, an FIR is a previous statement which can be only used to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 the IE Act in judging the veracity of the prosecution case. The aforesaid dicta of Ram Kumar Pande (supra) has been followed with approval in the matter of Sujit Biswas v. State of Assam 3 . Consequently, for the above stated reasons, the learned trial Court is absolutely unjustified in recording a finding that the appellant was also present in the kachcha house of the deceased on the date and time of the offence in order to hold him guilty for the offence in question. We hereby hold accordingly. As regards Incriminating Circumstance No.02: (15) The next incriminating circumstance that has been relied upon by the learned trial Court is that the appellant has informed 2 AIR 1975 SC 1026 3 (2013) 12 SCC 406 Page No.10 of 13 IN CRA-1777-2019 the incident to Punnu Manhare (PW-02), which Punnu Manhare (PW-02) has also proved that the appellant has informed him that his wife (grand-mother of the appellant vis-a-vis deceased) is lying in pool of blood. However, a careful perusal of the statement of Punnu Manhare (PW-02) would show that on being asked by the villagers the appellant has informed that he has caused murder of the deceased. Moreover, it is unacceptable and beyond common thinking that a person having committed offence of murder would disclose/confess about commission of the said offence before the villagers in general because the said disclosure/confession can only be made to a person who would protect him from criminal prosecution and not before the villagers. Furthermore, the aforesaid fact of the appellant informing about the incident to Punnu Manhare (PW-02) is the subsequent conduct of the appellant, which is relevant under Section 08 of the IE Act. However, true it is that subsequent conduct of the appellant is relevant fact under Section 8 of IE Act, but merely on the basis of subsequent conduct, the appellant cannot be convicted that too for offence under Section 302 of IPC (See: Subramanya vs. State of Karnataka 4 ). We hereby hold accordingly. As regards Incriminating Circumstances No.03 & 04: (16) Similarly, the learned trial Court has also relied upon the aspect of the appellant giving extra-judicial confession to the police 4 AIR 2022 SC 5110 Page No.11 of 13 IN CRA-1777-2019 personnel, which in our considered opinion, cannot be said to be extra-judicial confession for the simple reason that the same is inadmissible in evidence in light of Section 25 of the IE Act. Even otherwise, it is the 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 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 and another v. State of Tamil Nadu 5 ]. We hereby hold accordingly. As regards Incriminating Circumstance No.05: (17) The last incriminating that has been relied upon by the learned trial Court is that from the possession of the appellant, sharp sickle (hasiya) and his clothes have been seized, in which, as per FSL report (Ex.P/26) stains of blood were found. The Supreme Court recently in the matter of Raja Nayka v. State of Chhattisgarh 6 by relying upon its earlier decision rendered in the 5 (2012) 6 SCC 403 6 2024 SCC Online SC 67 Page No.12 of 13 IN CRA-1777-2019 matter of Mustkeen @ Sirajudeen v. State of Rajasthan 7 has held that sole circumstance of recovery of blood-stained article cannot form the basis of conviction unless the same is corroborated with other piece of incriminating circumstances. Consequently, the recovery of aforesaid article is also of no help to the prosecution. We hereby hold accordingly. (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 both the appellants for offences under Sections 302 of IPC being the perpetrator of the crime in question in light of the incriminating circumstances culled out in Para-09 of the impugned judgment and same are liable to be set aside. (19) Accordingly, we hereby set aside the conviction so recorded and the sentence so awarded by the trial Court to the appellant vide the impugned judgment dated 16.07.2019. The appellant is acquitted of the charge under Section 302 of the IPC on the basis of benefit of doubt. The appellant is reported to be in jail, therefore, we direct that he be released from jail forthwith, if not required is any other offence/crime. 7 (2011) 11 SCC 724 Page No.13 of 13 IN CRA-1777-2019 (20) This criminal appeal is allowed. (21) Let a certified copy of this judgment 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. Sd/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge s@if