Page No.1 of 18 IN CRA-642-2015 2025:CGHC:54772-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 642 of 2015 [Arising out of impugned judgment dated 12.05.2015, passed in Sessions Trial No.03/2015 (State of Chhattisgarh v. Mansingh Netam and others) by the Addl. Sessions Judge, Dhamtari (CG)] 1 - Mansingh Netam S/o Amruram Netam Aged About 45 Years R/o Village Gajkanhar, Police Station Dugli, Civil And Revenue District Dhamtari Chhattisgarh, Chhattisgarh 2 - Kansingh Netam S/o Amruram Netam Aged About 40 Years R/o Village Gajkanhar, Police Station Dugli, Civil And Revenue District Dhamtari Chhattisgarh , District : Dhamtari, Chhattisgarh 3 - Amruram Netam S/o Late Ujyar Netam Aged About 67 Years R/o Village Gajkanhar, Police Station Dugli, Civil And Revenue District Dhamtari Chhattisgarh , District : Dhamtari, Chhattisgarh 4 - Amar Singh S/o Late Ujyar Netam Aged About 59 Years R/o Village Gajkanhar, Police Station Dugli, Civil And Revenue District Dhamtari Chhattisgarh , District : Dhamtari, Chhattisgarh 5 - Dhanesh Netam S/o Amirsingh Netam Aged About 48 Years R/o Village Gajkanhar, Police Station Dugli, Civil And Revenue District Dhamtari Chhattisgarh , District : Dhamtari, Chhattisgarh 6 - Ganesh Netam S/o Gambhir Netam Aged About 50 Years R/o Village Gajkanhar, Police Station Dugli, Civil And Revenue District Dhamtari Chhattisgarh , District : Dhamtari, Chhattisgarh 7 - Laxman Netam S/o Gajadhar Netam Aged About 22 Years R/o Village Gajkanhar, Police Station Dugli, Civil And Revenue District Dhamtari Chhattisgarh , District : Dhamtari, Chhattisgarh 8 - Dhansingh Netam S/o Amir Netam Aged About 42 Years R/o Village Gajkanhar, Police Station Dugli, Civil And Revenue District Dhamtari Chhattisgarh , District : Dhamtari, Chhattisgarh SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 18 IN CRA-642-2015 9 - Jagturam Mandavi S/o Somnath Mandavi Aged About 50 Years R/o Village Gajkanhar, Police Station Dugli, Civil And Revenue District Dhamtari Chhattisgarh , District : Dhamtari, Chhattisgarh ... Appellants (On Bail) Versus State of Chhattisgarh, through Station House Officer, Police Station Dugli, District Dhamtari (Chhattisgarh) ... Respondent [Cause-title taken from Case Information System (CIS)] ----------------------------------------------------------------------------------------------- For Appellants : Ms. Pooja Loniya. Advocate on behalf Mr. Ajay Chandra, Advocate For Respondent-State : Mr. Amit Buxy, Panel Lawyer ----------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (11.11.2025) Sanjay K. Agrawal, J (1) Invoking criminal appellate jurisdiction of this Court enshrined under Section 374(2) of the Code of Criminal Procedure (for short the “CrPC”), total 09 accused-appellants are calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 12.05.2015, passed in Sessions Trial No.03/2015 (State of Chhattisgarh v. Mansingh Netam and others) by the Addl. Sessions Judge, Dhamtari (CG), whereby they all have been convicted and sentenced as under:- Conviction Sentence U/s. 147/149 of IPC Rigorous imprisonment for 06 months with fine of Rs.500/- and, in default of payment of fine amount, additional rigorous imprisonment for 03 months. Page No.3 of 18 IN CRA-642-2015 U/s. 148/149 of IPC Rigorous imprisonment for 01 year with fine of Rs.1,000/- and, in default of payment of fine amount, additional rigorous imprisonment for 03 months. U/s. 302/149 of IPC Imprisonment for life with fine of Rs.50/- and, in default of payment of fine amount, additional rigorous imprisonment for 03 months. U/s. 201/149 of IPC Rigorous imprisonment for 03 years with fine of Rs.50/- and, in default of payment of fine amount, 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 30.10.2015, at about 11:00 AM, in the agricultural fields of Amaru Netam, situated at Village Gajkanhar, which comes within the ambit of Police Station Dugli, District Dhamtari (CG), the accused-appellants herein firstly constituted unlawful assembly with a common intention to kill Sukhdhan Netam and, in furtherance thereof, assaulted Sukhdhan Netam (hereinafter referred to as the “deceased”) by means of wooden sticks (‘lathi’ and ‘danda’), due to which, he suffered grievous injuries and died on the spot and, further, in order to screen themselves from the legal punishment, the accused-appellants herein took the dead-body of the deceased to Kohpani Koopa Jungle and burnt it by setting on fire and, thereby, the appellants are 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 Aghan (PW-03), merg Page No.4 of 18 IN CRA-642-2015 intimation (PW-37) and FIR (Ex.P/38) were registered and wheels of investigation started running, in which, spot map (Ex.P/33) was prepared. Burt bones in shape of skeleton were seized from the spot vide Ex.P/04. Thereafter, when the aforesaid bones were sent for query to Dr. A.K. Gour (PW-11), he referred the same for chemical examination to FSL, Raipur vide his query report (Ex.P/24). However, no FSL report with regard to the examination of the said bones has been brought on regard for the reasons best known to the prosecution. Further, on production of 06 wooden sticks by the accused persons, the same were seized vide Ex.P/05 to Ex.P/10 and, thereafter, the same were sent for chemical examination and, according to FSL report (Ex.P/46), stains of blood were found on the said wooden sticks. All the accused-appellants were arrested vide Ex.P/11 to Ex.P/19. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellants 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 stating that they are innocent and have been falsely implicated. (4) The prosecution in order to prove its case examined as many as 19 witnesses and exhibited 47 documents, whereas though the appellants-accused in support of their defence, not examined any witnesses, but exhibited 07 documents. Page No.5 of 18 IN CRA-642-2015 (5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant herein for offences under Section 147/149, 148/149, 302/149 & 201/149 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) Ms. Pooja Loniya, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences, as the prosecution has failed to prove the same beyond reasonable doubt. She further submits that though burnt bones in the shape of skeleton were seized from the spot vide Ex.P/04, but is no evidence available on record to hold that the said bones were of the deceased. Even, no DNA profiling has been conducted in the present case to certain that the said bones were of the deceased. She vehemently argued that though as per the advice and opinion of Dr. A.K. Gour (PW-11), the said bones were sent for chemical examination to FSL, but no FSL report with regard to the same has been brought on record for the reasons best known to the prosecution. As such, there is no evidence available on record to hold that the death of the deceased was homicidal in nature which is sin qua non for convicting the accused/appellants for offence under Section 302 of IPC. Learned counsel also submits that the learned trial Court has also committed Page No.6 of 18 IN CRA-642-2015 grave legal error in relying upon the statement of Aghan (PW-03) recorded under Section 164 of CrPC to convict the appellants herein, as the said witness has completely turned hostile in his statement recorded before the trial Court and had not supported the case of the prosecution at all. Even otherwise, the statement of Aghan (PW-03) recorded under Section 164 of CrPC is not a substantive piece of evidence within the meaning of Section 03 of the Indian Evidence Act, 1872. Hence, the impugned judgment of conviction and order of sentence passed by the learned trial Court is liable to be set aside and the appellants deserve to be acquitted from 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. He further submits that in view of statements of prosecution witnesses coupled with other evidence available on record, the conviction and sentence passed by the learned trial Court against the appellants is well merited and, therefore, 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 question that arises for consideration is whether the Page No.7 of 18 IN CRA-642-2015 prosecution has proved the death of the deceased to be homicidal in nature or not? (10) In the case at hand, it is the case of the prosecution that from the spot burt bones in shape of skeleton were seized vide Ex.P/04 and, thereafter, when the aforesaid bones were sent for query to Dr. A.K. Gour (PW-11), he referred the same for chemical examination to FSL vide his query report (Ex.P/24). However, no FSL report with regard to the same has been brought on regard for the reasons best known to the prosecution and even there is no evidence on record to show that DNA profiling of the said bones has been conducted in order to ascertain whether the said bones were that of the deceased only. But still the learned trial Court proceeded to hold that the recovered bones (skeleton) were of the deceased and his death was homicidal in nature in order to convict the appellants herein. (11) 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. (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 1 (1981) 1 SCC 511 Page No.8 of 18 IN CRA-642-2015 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, 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 Page No.9 of 18 IN CRA-642-2015 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 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 2 (2006) 13 SCC 229 3 2013 Cri.L.J. 1534 Page No.10 of 18 IN CRA-642-2015 homicidal death of victim is adduced. The decision of the Supreme Court in Rama Nand (supra) has further been followed in the matter of Sanjay Rajak v. State of Bihar4. (14) 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.” (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 4 (2019) 12 SCC 552 5 2022 SCC Online SC 1511 6 (2016) 12 SCC 251 Page No.11 of 18 IN CRA-642-2015 Lordships have held that the prosecution has failed to prove the death of Ramsevak either homicidal or otherwise. (16) 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.12 of 18 IN CRA-642-2015 “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.” (17) The Supreme Court in the matter of Pattu Rajan v. State of Tamil Nadu 10 has held that though a DNA test helps the courts immensely in determining reliability of identification of body of deceased, but rejected the contention that non-conducting of a DNA test and reliance on evidence regarding identification through superimposition is improper. It has also been held that 9 (2010) 7 SCC 263 10 (2019) 4 SCC 771 Page No.13 of 18 IN CRA-642-2015 superimposition test cannot be taken as conclusive prove for identification of the dead-body and observed in Para-55 & 57 of the report as under: - “55. In view of the above discussion, we hold that the High Court was justified in observing that a superimposition test cannot be taken as a conclusive one for the identification of a dead body, because by itself it may not conclusively establish identification. However, the High Court rightly accepted the expert testimony on this aspect since in the instant case, the superimposition test was merely one piece of evidence relied upon by the prosecution to corroborate the evidence of PWs 1 and 2 in order to strengthen its case. 57. Therefore, we are of the opinion that the scientific evidence of PW 34 was rightly believed by the trial court as well as by the High Court, and strengthens the evidence of PWs 1 and 2 regarding the identification of the body. Though a DNA test would have helped the courts immensely in determining the reliability of the identification of the body of the deceased, in the presence of other reliable evidence on record in favour of the prosecution version on this aspect, we reject the contention that the non-conducting of a DNA test and the reliance on evidence regarding identification through superimposition is improper. This is all the more true since no material is forthcoming to the effect that the parents of the deceased were alive during the relevant period, so as to conduct comparative DNA tests.” (18) Reverting to the facts of the present 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 though burn bones in shape of skeleton were seized vide Ex.P/04 from the spot, but no DNA profiling has been conducted to ascertain that the said Page No.14 of 18 IN CRA-642-2015 recovered bones is that of the deceased. Even, upon the advice of Dr. AK Gour (PW-11) the said bones were sent for chemical exmination, but no FSL report has been brought on record for the reasons best known to the prosecution. As such, it could not be ascertained in the present case that the said bones recovered vide Ex.P/04 are that of the deceased. Even otherwise, the said bones were not seized at the instance of any of the accused persons herein and, therefore, it was the incumbent on the part of the prosecution to prove that said bones recovered vide Ex.P/04 are that of the deceased and, in absence of which, it is not established that the death of the deceased is homicidal in nature or otherwise. It is held accordingly. (19) The next submission that has been putforth on behalf of the appellants is that though Aghan (PW-03) has turned hostile and not supported the case of the prosecution at all, but the learned trial Court relied upon his statement recorded under Section 164 of CrPC to hold the appellants herein guilty for the offences in question. Therefore, the question cropped up for consideration herein is, whether the statement of Aghan (PW-03) recorded under Section 164 of Cr.P.C. would come within the meaning of evidence under Section 3 of the Evidence Act, 1872 ? (20) In the matter of George and others v. State of Kerala and another11, their Lordships of the Supreme Court have considered the issue as to whether the statement recorded under Section 164 CrPC 11 (1998) 4 SCC 605 Page No.15 of 18 IN CRA-642-2015 constitutes substantial evidence and held that a statement of a witness recorded under Section 164 CrPC cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating the maker of such statement. (21) Furthermore, in the matter of R. Shaji v. State of Kerala12, similar proposition of law has been laid down by their Lordships of the Supreme Court, which state as under : “27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa and CCE v. Duncan Agro Industries Ltd.) 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence.” (22) Finally, in the matter of Somasundaram alias Somu v. State represented by the Deputy Commissioner of Police13, a three judge bench of the Supreme Court considered the purport and value of 12 (2013) 14 SCC 266 13 (2020) 7 SCC 722 Page No.16 of 18 IN CRA-642-2015 Section 164 CrPC and further considered the issue which is similar to the issue in hand before us as to, what would be the position if the person giving the statement resiles from the same completely when he is examined as s witness ? In paragraph 81 of the report following question was framed by their Lordships :- “81. Section 164 CrPC enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence ? What is the purpose of recording the statement or confession under Section 164 ? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness ? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time.” (23) Thereafter, considering the decisions rendered in the matters of George (supra) and R. Shaji (supra), their Lordships held in paragraph 84 as under :- “84. Thus, in a case where a witness, in his statement under Section 164 CrPC, makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be the position ? The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164.” Page No.17 of 18 IN CRA-642-2015 (24) From the aforesaid principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid that statement of a person/witness recorded under Section 164 of Cr.P.C. is not an evidence, much less, substantial evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 and it can be used only for the purpose of corroboration or contradiction. In absence of any other legally admissible evidence corroborating the evidence under Section 164 of Cr.P.C., no conviction can be made on the basis of statement under Section 164 of Cr.P.C. As such, in the present case also, the learned trial Court has committed grave legal error while relyin upon the statement of Aghan (PW-03) recorded under Section 164 of CrPC to hold the appellants herein guilty for the offences in question. It is held accordingly. (25) In view of foregoing analysis, we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting the appellants herein for the offence in question. Accordingly, the conviction and their respective sentences for offences under Section 147/149, 148/149, 302/149 & 201/149 of IPC alongwith the fine and default stipulation, as imposed upon the appellants by the learned trial Court, are hereby set aside. The appellants 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 period of six months in view of the Page No.18 of 18 IN CRA-642-2015 provision contained in Section 437A of the CrPC. (26) Consequently, this criminal appeal is allowed to the extent indicated hereinabove. (27) Let a certified copy of this order alongwith original record be transmitted to the trial Court for necessary information and action, if any. sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge s@if