1 2025:CGHC:55039-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1528 of 2016 Ramratan @ Daddu S/o Late Narottam Verma Aged About 25 Years R/o. Village Arya Nagar, Kohka, Near Sheetala Pond, Police Station Supela, District Durg, Chhattisgarh. ---Appellant Versus State Of Chhattisgarh Through The Police Station, Supela, District Durg, Chhattisgarh. ---Respondent For Appellant :- Mr. Shikhar Sharma, Advocate For State :- Mr. Ashish Shukla, Addl. A.G. Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board 12/11/2025 Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant against impugned judgment of conviction and order of sentence dated 10/08/2016 passed by learned Additional Sessions Judge, Durg, District Durg (C.G.) 2 in Sessions Trial No. 116/2015 whereby he has been convicted for offence punishable under Section 302 and 201 of IPC and sentenced to undergo life imprisonment with fine of Rs. 100/- and in default of payment of fine, further S.I. for 5 days; and R.I. for 7 years with fine of Rs. 100/- and in default of payment of fine, further S.I. for 5 days, respectively. 2. Case of the prosecution, in brief, is that in the intervening night of 06-07/08/2015, the appellant herein, in his own house situated at Aryanagar, Kohka within the ambit of Police Station Supela, assaulted his mother Sumitra Verma with iron pipe due to which she suffered grievous injuries and died and in order to screen himself from the offence, he attempted to cremate her dead body and thereby, committed the aforesaid offence. 3. Further case of the prosecution is that on 07/08/2015 at 12:05 PM, Teekam Verma (P.W.-3) reported the matter at Supela Police Station that at about 02:30 AM, his nephew i.e. the appellant herein came to his house and told him that his mother was not well and when he went to appellant’s house, he found that his mother Sumitra Verma had already died. On the basis of the said information, merg No. 86/15 was registered and thereafter, first information report was registered against the appellant vide Ex. P/17. Nazri naksha was prepared vide Ex. P/5 and P/6. The appellant was taken into custody and his memorandum statement was recorded vide Ex. P/11 pursuant to which iron pipe with blood stains was recovered at his instance vide Ex. P/12. Other articles 3 were also seized from the spot vide Ex. P/13. Inquest was conducted vide Ex. P/2 and the dead body of deceased Sumitra Verma was subjected postmortem, which was conducted by Dr. R.K. Nayak (P.W.-14) and as per the postmortem report (Ex. P/19A), cause of death was shock due to extensive head and visceral injuries and nature of death was homicidal. The said seized articles were sent for FSL and as per the FSL report (Ex. P/31), blood was found on the iron rod. After recording the statements of the witnesses and after due investigation, the appellant was charge-sheeted for offence punishable under Section 302 and 201 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 15 witnesses and brought on record 31 documents. Statement of the appellant under Section 313 of CrPC was recorded wherein he denied guilt, however, he examined none in his defence and neither brought any document on record. 5. Learned trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for offence punishable under Sections 302 and 201 of IPC and sentenced him as aforesaid. 6. Mr. Shikhar Sharma, learned counsel for the appellant, would submit that the trial Court has committed grave legal error in convicting the appellant for the offence in question by relying upon the incriminating circumstances which are absolutely 4 inadmissible in evidence and Section 106 of the Indian Evidence Act, 1872 (hereinafter, “the Evidence Act”) would not be applicable in the facts of the present case. He would further submit that though blood is said to have been found on the iron pipe, seized at the instance of the appellant, as per the FSL report (Ex. P/31), however, it has not been proved that human blood was found on it, therefore, the conviction of the appellant cannot be based on that and as such, he is entitled for acquittal. 7. Per contra, Mr. Ashish Shukla, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt and as such, the trial Court has rightly relied upon the circumstantial evidence and convicted the appellant for the aforesaid offence. Therefore, the instant appeal 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 for consideration would be, whether the death of both the deceased Sumitra Verma was homicidal in nature ? 10. Learned trial Court has recorded an affirmative finding in this regard and held that the death of deceased Sumitra Verma is homicidal in nature relying upon the postmortem report (Ex. P/19A) which has been proved by Dr. R.K. Nayak (P.W.-14), who has opined that cause of death is shock due to extensive 5 head and visceral injuries and nature of death is homicidal. Looking to the severe injuries suffered by the deceased as well as looking to the postmortem report (Ex. P/19A) and the expert medical opinion of Dr. R.K. Nayak (P.W.-14), we are of the considered opinion that the trial Court has rightly held the death of deceased Sumitra Verma to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court, more so, when it has not been seriously disputed by learned counsel for the appellant. 11.The next question for consideration would be whether the trial Court has rightly held the appellant to be the author of the crime in question and convicted him for the aforesaid offence ? 12.There is no direct evidence available on record and the instant case is based on circumstantial evidence. The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 has laid down the five golden principles that constitute the panchsheel of the proof of a case based on circumstantial evidence, which state as under :- “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. XXX XXX XXX (2) the facts so established should be consistent only with the hypothesis of 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, 1 (1984) 4 SCC 116 6 (4) they should exclude every possible hypothesis except the one to be prove, 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.” 13. In the instant case, learned trial Court, in light of the decision rendered by the Supreme Court in Sharadchand Birdichand Sarda (supra) has found the following six circumstances proved against the appellant, which we will consider one by one :- “1. मृका सु म ा बाई की मृयु की कृ हयामक थी | 2. मृका सु म ा बाई एवं आरोपी एक ही घर अथा घटना थल वाले घर म# नवास करे ह$ एवं घटना %नांक की रा म# आरोपी को ही मृका की हया करने का अवसर था | 3. मृका सु म ा बाई एवं आरोपी के म&य घटना %नांक की रा को वा%- ववा% हुआ था | 4. आरोपी ने मृका की मृयु का कोई समाधानपू) प*ीकर) नह+ %या, जब क घटना %नांक को उसे और के वल उसे ही मृका की हया करने का अवसर था | 5. आरोपी ने मृका के साथ वयं /ारा मारपीट कर हया करने की वीकारो 0 अ.सा. 10 राजू जंघेल के सम1 की गई | 6. आरोपी के बयान मेमोर#डम के आधार पर ज4 अपराध म# यु0 लोहे के पाइप एवं घटना के समय पहने हुए शट म# र0 पाया गया, 7जसका कोई प*ीकर) आरोपी ने नह+ %या है |” Circumstance No. 1 :- 14. We have already discussed the first incriminating circumstance with regard to the death of deceased being homicidal in nature in the preceding paragraphs of this judgment and the finding recorded by the trial Court in this regard is correct finding of fact based on evidence available on record. 7 Circumstances No. 2, 3 and 4 :- 15. The trial Court has convicted the appellant for the offence in question mainly relying upon the provision contained under Section 106 of the Evidence Act holding that since appellant used to stay in the same house along with his deceased mother Sumitra Verma, therefore, it was upon the appellant to provide explanation with regard to her death in his statement under Section 313 of CrPC. 16. At this stage, it would be appropriate to notice the provision contained under Section 106 of the Evidence Act, which states as under :- “106. Burden of proving fact especially within knowledge. - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. ” 17. In this regard, the decision rendered by the Supreme Court in the matter of Nagendra Sah v. State of Bihar2 may be noticed herein profitably in which their Lordships of the Supreme Court have held that if apart from the accused and the deceased, any other person is residing in the house (place of incident) and if other hypothesis is possible, then the provisions of Section 106 of the Evidence Act would not be applicable. It has been observed in paragraphs 19, 22 and 23 of the report as under :- “19. In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the 2 (2021) 10 SCC 725 8 appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which cannot be altogether excluded. Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant. 22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other fats which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 18. Coming to the facts of the present case, it is quite vivid that admittedly, apart from the appellant and the deceased, appellant’s wife namely Dhanwantin Bai (P.W.-2) was also residing in the same house (place of incident) and in her examination-in-chief, she has clearly stated that on the date of the incident, she was also present in the house and at late night at about 11 PM, appellant came to the house and thereafter, she as well as the deceased, both went to their separate rooms to sleep. As such, presence of Dhanwantin Bai 9 (P.W.-2) in the house (place of incident) apart from the appellant and the deceased on the date of the incident has been proved, which has also been noticed by the trial Court and has been recorded in its judgment. Thus, in view of the decision rendered by the Supreme Court in Nagendra Sah (supra), since another member of the family was also present in the house apart from the appellant and the deceased, there could be another hypothesis which cannot be altogether excluded and the facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant. As such, the trial Court has erred in holding that these incriminating circumstances have been found proved against the appellant and in convicting him for the offence in question mainly on the basis of Section 106 of the Evidence Act, by recording a finding which is perverse and contrary to the record. Circumstance No. 5 :- 19. It is the case of the prosecution that appellant made extra judicial confession before Rajulal Janghel (P.W.-10) that he assaulted the deceased and caused her death. However, a careful perusal of the statement of Rajulal Janghel (P.W.-10) would show that he has stated that on 06/08/2015, appellant called him at night and told him that he has mistakenly hit his mother by brick and she has become unconscious, however, there is no corroborative evidence available on record in this regard. Further, Rajulal Janghel (P.W.-10) has stated that next morning, when he went to appellant’s house, he saw 10 that his mother-in-law (Sumitra Verma) had already died and on being asked from the appellant, he replied that he has murdered his mother by mistake. 20. It is a 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 3 ] 21. Thus, in view of the decision rendered by the Supreme Court in Sahadevan (supra), the extra-judicial confession allegedly made by the appellant before Rajulal Janghel (P.W.-10) was not voluntarily made and does not inspire confidence, therefore, it would not be safe to base the conviction of the appellant on this basis. Circumstance No. 6 :- 22. The last incriminating circumstance, which has been found proved by the trial Court, is that on the basis of memorandum statement of the appellant vide Ex. P/11, recovery of iron pipe 3 (2012) 6 SCC 403 11 has been made at his instance vide Ex. P/12 and as per FSL report (Ex. P/31), blood was found on it. However, it is well- established that memorandum and seizure is a weak piece of evidence and mere recovery of the weapon of offence would not suffice to base conviction of the accused unless there is corroborative evidence available on record to prove that it is the accused who has caused the offence. Similarly, in the FSL report (Ex. P/31), it has only been found that the iron pipe was stained with blood, however, it could not be proved as to whether it was human blood. 23. In view of the aforesaid legal analysis, the panchsheel principles to prove a case based on circumstantial evidence as laid down by the Supreme Court in Sharadchand Birdichand Sarda (supra) have not been established by the prosecution beyond doubt and as such, it cannot be held that appellant is the author of the crime in question. we are unable to sustain the conviction recorded and sentence awarded to the appellant vide the judgment impugned, therefore, the impugned judgment of conviction and order of sentence is hereby set aside and appellant is acquitted of the charges levelled against him. Since he is already on bail, he need not surrender, however, his bail bonds shall remain in operation for a period of six months in view of the provisions contained under Section 437A of IPC. 12 24. Accordingly, this criminal appeal stands allowed. Sd/- Sd/- Sd/ (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Harneet