1 2025:CGHC:51311-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1022 of 2014 1 - Ram Singh Tulavi, S/o Gajju Ram, aged about 33 Years 2 - Laiyatu Ram, S/o Juggu Ram, aged about 23 Years, 3 - Devuram Uike @ Deuram, S/o Saganuram, aged about 21 Years, 4 - Santuram Dugga, S/o Budhram, aged about 29 Years, 5 - Sukkuram Tulavi @ Sukhu, S/o Juggu Ram, aged about 41 Years, (Appellant No. 5 died-Appeal is abated in respect of appellant No. 5- Sukkuram Tulavi) All are R/o. Vill. Manghur P.S. Badgaon Revenue and Civil Distt. North Bastar Kanker C.G. ... Appellants versus 1 - State Of Chhattisgarh Through P.S. Badgaon, Distt. North Bastar Kanker C.G., Chhattisgarh ... Respondent For Appellants : Mr. Praveen Tulsyan, Advocate For Respondent : Mr. Ankur Kashyap, Dy. G.A. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. Judgment on Board 15.10.2025 Per, Amitendra Kishore Prasad, J. 1. Since appellant No. 5- Sukkuram Tulavi @ Sukhu has passed away during the pendency of this appeal, the appeal, insofar as it VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 relates to appellant No. 5- Sukkuram Tulavi @ Sukhu, stands abated. Accordingly, the present appeal shall proceed only against appellant Nos. 1 to 4. 2. This criminal appeal preferred by the appellants No.1 to 4 herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 30.09.2014 passed in Sessions Trial No.105/2013 by the Additional Sessions Judge, North Baster, Kanker, C.G., by which the appellants No.1 to 4 stand convicted & sentenced as under:- Conviction Sentence Under Section 302 read with Section 149 of Indian Penal Code (for short, ‘IPC’) Imprisonment for life and fine of Rs.1,000/- each, in default of payment of fine amount to undergo additional imprisonment for one months to each appellant Under Section 201 read with Section 149 of IPC Rigorous Imprisonment for three years and fine of Rs.1,000/- each, in default of payment of fine amount to undergo additional imprisonment for one month to each appellant. (Both sentences were directed to run concurrently) 3. Case of the prosecution case, in brief, is that between 5:00 p.m. on 05.06.2013 and 8:00 a.m. on 06.06.2013, the accused persons formed an unlawful assembly in village Manghur, armed with bamboo sticks, and in furtherance of their common object, 3 assaulted and strangulated Devji Nareti (hereinafter called as deceased), causing his death. Thereafter, in order to conceal the evidence, they threw his body into a pond. Further, case of the prosecution is that on 06.06.2013, complainant- Faudaram Negi lodged a merg intimation (Ex.P-25) at Police Station Badgaon stating that his younger brother-Devji Nareti/deceased, who had gone to village Manghur on the evening of 05.06.2013, was found dead in the village pond. On the basis of his report, FIR (Ex.P-23) was registered against unknown persons. After that, inquest proceedings were conducted and dead body of deceased- Devji Nareti was sent for postmortem examination which was conducted by PW-4 Dr. Manoj Kishore, who have proved the postmortem report Ex.P-14. According to PW-4, Dr. Manoj Kishore, the cause of death of the deceased, Devji Nareti, was asphyxia resulting from constriction of the neck, which obstructed the airway, causing vagal inhibition followed by cardio-respiratory arrest. The mode of death was opined to be homicidal in nature. 4. During investigation, accused persons were arrested vide Exs.P- 17 & 20. Memorandum statement of the appellant No.1 to 4 were recorded vide Exs.P-2 to P-5, pursuant to which, wooden clubs and one gents cycle were seized vide Exs.-P-7 to P-9 & P-11 respectively. Vide Ex.P-12 clothes of deceased were seized. Seized articles were sent to FSL for chemical examination and as per FSL report, no blood has been found on the seized wooden clubs and full-pant of deceased marked as ‘Articles A1, B, C & D’. 4 5. After due investigation, appellants No.1 to 4 and the deceased appellant were charge-sheeted before the jurisdictional Criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which, appellants No. 1 to 4 abjured their guilt and entered into defence by stating that they have not committed the offence. 6. The prosecution in order to bring home the offence, examined as many as 11 witnesses in support of its case and exhibited 29 documents Exs.P-1 to P-29. However, the appellants No.1 to 4 in support of their defence have examined none and not exhibited any document. 7. The trial Court, after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellants No.1 to 4 as mentioned in the opening paragraph of this judgment against which they have preferred the instant appeal under Section 374(2) of the CrPC. 8. Learned counsel for appellants No. 1 to 4 submits that the learned trial Court has erred in convicting and sentencing the appellants for the aforesaid offences, as the prosecution has failed to establish the charges beyond reasonable doubt. He further submits that the entire case rests on weak and inconclusive circumstantial evidence, which the prosecution has not been able to prove satisfactorily. He also submits that the so- called “last seen” theory, which is inherently a weak piece of 5 evidence, has not been established in accordance with law. He also submits that the memorandum and seizure witnesses, namely PW-1 Saoji Ram Usendi and PW-10 Banshiram, have not supported the prosecution’s case. He further contends that the FSL report has not been proved against appellant Nos. 1 to 4 as no blood was found on the seized articles. In view of the above, it is prayed that the impugned judgment of conviction and order of sentence be set aside, and the appellants be acquitted of the charges. 9. Learned counsel for the State supports the impugned judgment and submits that the prosecution has brought home the offence against the appellants No.1 to 4 and has proved the case beyond reasonable doubt and thus, the appellants No.1 to 4 have rightly been convicted and sentenced for the aforesaid offences. 10. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 11. The first question for consideration would be whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-14) proved by PW-4 Dr. Manoj Kishore, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 6 12. The question that now arises is whether appellants No. 1 to 4 are the perpetrators of the crime in question. 13. The star witness of the case, PW-1 Saoji Ram Usendi, who is alleged to be a witness to the memorandum and seizure, has categorically stated that he signed the documents marked as Exhibits P/1 to P/11 at the police station itself, upon being called by the police. He further deposed that he was not informed of the contents of these documents at the time his signatures were obtained. Moreover, no seizure was effected in his presence, nor was any article recovered before him by the police. He has also stated that he did not make any statement to the police regarding the incident. Significantly, he expressed complete ignorance about the incident and stated that he had no knowledge regarding the cause or circumstances of the deceased's death, thereby casting serious doubt on the prosecution's case. 14. Another key witness to the alleged memorandum and seizure, namely PW-10 Banshiram, has also failed to support the prosecution’s case. In his testimony, he has clearly stated that he did not witness the deceased going anywhere in the company of the appellants. He further deposed that no articles were seized in his presence by the police, nor did any of the accused persons make a memorandum statement before him under Section 27 of the Indian Evidence Act. His categorical denial of witnessing either the seizure or the alleged disclosure by the accused 7 significantly undermines the credibility of the prosecution's narrative. 15. In addition to the above, PW-9 Faudram Negi, who is the brother of the deceased, has also not supported the prosecution’s case. During his deposition, he specifically denied having made any statement to the police under Section 161 of the Code of Criminal Procedure, as purportedly recorded in Exhibit P-8. He categorically disowned the contents of the said statement and asserted that no such disclosure was ever made by him before the investigating officer. He further stated that the dead body of the deceased was recovered approximately eight days after the incident, following which, the police apprehended the accused persons and took them to Village Mungura. However, he unequivocally deposed that no seizure or any such procedural step was carried out in his presence on that day. This testimony assumes considerable significance, as it directly contradicts the prosecution’s version with regard to the alleged disclosure made by the accused under Section 27 of the Indian Evidence Act and the consequent recovery of incriminating material. The denial by a close relative of the deceased who was projected as a material witness to the recovery and seizure proceedings casts a serious shadow of doubt over the credibility, fairness, and reliability of the investigation. That apart, there is a complete absence of cogent and clinching evidence on record to establish that the deceased was last seen in the company of the appellants on the date of the 8 incident. The so-called 'last seen' theory, which the prosecution seeks to rely upon, remains unsubstantiated and unsupported by any reliable witness or corroborative material. Furthermore, the prosecution has failed to establish any clear motive on the part of the accused persons to commit the alleged offence. In a case based entirely on circumstantial evidence, absence of motive, though not always fatal, but becomes relevant when the other links in the chain are themselves weak or missing. Additionally, as per the Forensic Science Laboratory (FSL) report, no human blood was detected on the articles alleged to have been seized from the possession of the accused persons. This further renders the prosecution story doubtful, especially when the case lacks direct evidence and hinges solely on circumstantial factors. 16. The Hon’ble Supreme Court in the mater of Raja Khan vs State of Chhattisgarh reported in 2025 SCC Online SC 260 has held as under:- “16…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 (See Hanumant v. State of Madhya Pradesh, 9 (1952) 2 SCC 71). In Sharad Birdhichand Sarda v. 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 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." 17. To prove the charges, the prosecution has laid emphasis on recovery of weapon of assault (stone as well as the gandasa) and gold chains belonging to the deceased, on the basis of statement (Ex. P-23) given by the Appellant-accused while in custody. 10 18. 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 [Delhi Administration v. Bal Krishan, (1972) 4 SCC 659]. 19. 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 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 (Udal Bhan v. State of Uttar Pradesh, AIR 1962 SC 1116). 20. The essential ingredients of Section 27 of the Evidence Act are threefold: 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. 11 21. The question as to whether evidence relating to recovery is sufficient to fasten guilt on the accused was considered by this Court in Bodhraj Alias Bodha 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 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 12 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 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 13 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 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, (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 14 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. (emphasis supplied)” 17. Returning to the facts of the present case in light of the aforesaid decision of the Hon’ble Supreme Court coupled with the evidence available on record, it is quite vivid that the prosecution has failed to establish the guilt of appellants No.1 to 4 beyond reasonable doubt. The case is based solely on circumstantial evidence, which, in the present context, is weak, inconclusive, and lacks corroboration at crucial points. The so-called "last seen" theory has not been proved through any reliable or independent witness. There is no credible evidence on record to demonstrate that the deceased was last seen in the company of the appellants. Notably, PW-1-Saoji Ram Usendi and PW-10- Banshiram, who were projected as key witnesses to the memorandum and seizure, have not supported the prosecution's case. Both have categorically denied witnessing any seizure or hearing any disclosure statements made by the accused persons. They have also disclaimed any knowledge of the incident. Their testimonies seriously undermine the credibility of the prosecution’s version and raise grave doubts regarding the authenticity of the alleged recovery proceedings. Furthermore, in Raja Khan (supra), the Hon’ble Supreme Court has categorically held that a memorandum and seizure recorded at or near the police station, without adherence to proper procedure, is devoid 15 of evidentiary value and raises significant doubts as to its genuineness. In the present case, the memorandum and seizure appear to have been made under similarly questionable circumstances, rendering them unreliable in the eyes of law. Moreover, PW-9 Faudram Negi, who is the brother of the deceased, has also not supported the prosecution’s case Additionally, the FSL report also does not support the prosecution’s case. Further, the prosecution has also failed to establish any clear or compelling motive of the appellants to commit the alleged offence. While motive is not indispensable in cases based on direct evidence, but in a case resting purely on circumstantial evidence, the absence of motive becomes a significant factor especially when other links in the chain are fragile or missing. In view of the foregoing infirmities, namely, the lack of credible last seen evidence, failure to prove motive, non- supportive key witnesses, procedural irregularities in seizure and memorandum, and inconclusive forensic evidence, the prosecution’s case does not meet the standard of proof required in a criminal trial. The chain of circumstances is incomplete and does not unerringly point to the guilt of the appellants. As such, the benefit of doubt must be extended to appellants No.1 to 4. The learned trial Court erred in convicting them in the absence of credible, trustworthy, and legally admissible evidence. 18. Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence passed by the learned trial 16 Court is hereby set aside. Appellants No.1 to 4 are acquitted of the aforesaid charges leveled against them. 19. It is brought to the notice of this Hon’ble Court that appellants Nos. 1 to 4 were subsequently arrested pursuant to the arrest warrant issued by this Court on 08.10.2025, following the issuance of a non-bailable warrant dated 25.08.2025, in view of their failure to appear. They have since been in judicial custody. In light of their acquittal, they shall be released forthwith, unless they are required in connection with any other case. 20. In compliance with Section 437-A Cr.P.C., the appellants are directed to furnish a personal bond of ₹10,000/- each with two sureties of the like amount before the concerned court. The bond shall be effective for six months and include an undertaking that in case of filing a Special Leave Petition or grant of leave against this judgment, the appellants will appear before the Supreme Court upon receipt of notice. 21. Registry is directed to transmit the lower Court record along with a copy of this judgment to the trial Court forthwith for information and necessary compliance. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha