1 CRA No. 741 of 2017 2025:CGHC:57143-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 741 of 2017 [Arising out of judgment dated 08.03.2017 passed in Sessions Trial No.16/2016 by the Sessions Judge, South Bastar Dantewada, Chhattisgarh.]  Podiyami Kosa S/o Late Linga, aged about 37 years, R/o Village Gudra, Premapara, Chowki Chhindgarh, District Sukma, Chhattisgarh. ... Appellant versus  State of Chhattisgarh Through Station House Office, Police Station Sukma, District Sukma, Chhattisgarh. ... Respondent For Appellant :- Mr. Aditya Khae, Advocate. For State-Respondent :- Dr. S.K. Dewangan, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (25.11.2025) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellant herein, is to the legality, validity and correctness of the judgment dated ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.11.26 16:15:58 +0530 2 CRA No. 741 of 2017 08.03.2017 passed by the Sessions Judge, South Bastar Dandewada, Chhattisgarh, in Sessions Trial No.16/2016, by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of ₹100/-; in default of payment of fine, he has to undergo imprisonment for one year. Prosecution story:- 2. The prosecution has projected the case during the course of trial that on 27.09.2015 at about 7:00 pm near Gudra Talab village, Police Station Chhindgarh, District Sukma, Chhattisgarh, the appellant murdered his brother Podiyam Hidma by assaulting him by leg and by drowning his head into the water. Against the said act of the appellant, merg intimation was registered vide Ex.P/9 on 28.09.2015 pursuant to which FIR was registered vide Ex.P/1. Crime details form and nazari naksha were prepared vide Exs.P/4 & P/15, respectively. Inquest proceedings (Ex,.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per the postmortem report (Ex.P/14) proved by Dr. Amit Kumar (PW-8), cause of death was strangulation, mode of death was shock and nature of 3 CRA No. 741 of 2017 death was unnatural-homicidal. Wheels of investigation started running and the appellant was arrested. Pursuant to memorandum statement of the appellant (Ex.P/5), blood stained clothes of the appellant were seized vide Ex.P/6. Other articles were also seized. Seized articles were sent for chemical analysis to FSL however, FSL report has not been brought on record for the reasons best known to the prosecution. 3. After due investigation, appellant herein was charge- sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution has examined as many as 11 witnesses and exhibited 18 documents, whereas, defence, in support of its case, has examined 1 witness and exhibited 3 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 4 CRA No. 741 of 2017 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which the instant appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 6. Mr. Aditya Khare, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified on convicting appellant for offence in question. He would also submit that on the basis of statements of Podiyami Konda (PW-6), Podiyami Budhari (PW-7) and Podiyami Aayte (PW- 10) theory of last seen together is not established and even the theory of last seen together is not reliable as the time gap between the last seen together of the appellant & deceased and recovery of dead body is more than 17 hours, therefore, it cannot be said that it is the appellant who is the author of the crime. He would further submit that extra-judicial confession before the public meeting is not admissible, moreover, FSL report has not been brought on record to prove that the seized clothes of the appellant is 5 CRA No. 741 of 2017 stained with the blood or human blood to base his conviction. Therefore, the impugned judgment deserves to be dismissed and the appellant is entitled for acquittal on the basis of benefit of doubt. 7. Dr. S.K. Dewangan, learned State counsel, would oppose the prayer made by learned counsel for the appellant and submit that the trial Court has rightly convicted the appellant for the offence in question relying upon the theory of last seen together, extra judicial confession and also on the fact that pursuant to memorandum statement of the appellant his blood stained clothes were seized, therefore, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submission made herein above and gone through the records precisely. Discussion & Analysis:- 9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/14) proved by Dr. Amit Kumar (PW-8), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse 6 CRA No. 741 of 2017 nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 10. Now, the question for consideration would be whether the appellant has assaulted the deceased? 11. The case of the prosecution is based on the theory of last seen together which the trial Court has found established on the basis of statement of Podiyami Konda (PW-6), Podiyami Budhari (PW-7) and Podiyami Aayte (PW-10) and extra-judicial confession which is said to have made by the appellant to Podiyami Budhari (PW-7) & Podiyami Aayte (PW-10) and also on the fact that pursuant to memorandum statement of the appellant his blood stained clothes were seized. Theory of last seen together:- 12. Podiyami Konda (PW-6), witness of last seen :- PW-6, brother of the deceased, in his statement before the Court has stated that on the date of offence when the deceased was sleeping in his house, appellant came and took the deceased with him and when the deceased did not come to the house in the late night, family members of the deceased started searching of the deceased, but they could not find 7 CRA No. 741 of 2017 him (deceased). On the next day, Hungi informed him about the dead body of the deceased and thereafter, he went on the spot and pull out the dead body of the deceased with the help of villagers from the tank/pond. However, in the cross-examination he has clearly admitted that his statement under Section 161 of the CrPC has not been recorded by the police and also he has not informed the police about the incident. He has further stated that on the basis of statement made by ex-sarpanch Podiyami Baaman (PW-3) he made the statement against the appellant and even he did not see the incident. He has further stated that whatever he was saying against the appellant before the Court, he just heard from the villagers. In view of the above, PW-6 is not the eye witness though he would be tutored or hearsay witness and, as such, it is risky to convict the appellant on the basis of statement of PW-6 that too for offence under Section 302 of the IPC. 13. Next witness-Podiyami Budhari (PW-7) :- PW-7, wife of the deceased, in her statement before the Court has stated that on the date of offence the appellant came to the house and took her husband (deceased) towards the field and deceased did not come to the house in the night and on the next day she got the information about the death of her 8 CRA No. 741 of 2017 husband. However, in the cross-examination she was confronted with her statement recorded under Section 161 of the CrPC (Ex.D./2), in which she did not say that the appellant came her house and took her husband (deceased), though she said that she had seen her husband and the appellant going towards the Naalaa at about 6:00 pm on 27.09.2015. Furthermore, in her Court’s statement she did not say that she had seen the appellant and the deceased going towards the Naalaa and also in cross- examination she has admitted that after hearing from the others about the incident, she is making statement against the appellant. As such, in view of the aforesaid discrepancies, this witness cannot be said to be the witness of last seen together and, therefore, it would be unsafe to base the conviction of the appellant that too for offence under Section 302 of the IPC relying upon her statement. 14. Statement of Podiyami Aayte (PW-10) :- PW-10 who is close relative of the appellant and the deceased. As per the prosecution, she (PW-10) is said to be the eye witness as well as the witness of last seen. However, the trial Court has not relied upon her statement to the extent of eye witness and rejected her testimony and at paragraph No.28 of its judgment has clearly recorded a finding that PW-10 is 9 CRA No. 741 of 2017 not the eye witness to the incident which is a correct finding of fact based on evidence available on record and we hereby affirm the said finding the trial Court. Furthermore, this witness in her statement recorded under Section 161 of the CrPC did not say that the she had seen the appellant taking the deceased from the house, however she had stated that she had seen the appellant and the deceased going towards the Naalaa. As such, in view of the aforesaid discrepancies, she could not be accepted as an witness to the last seen together. Moreover, as per the prosecution, the appellant and the deceased were last seen together on 27.09.2015 at about 6:00 pm whereas, the dead body was recovered vide on 28.09.2015 at about 11:00 am with a time gap of more than 17 hours, as such, there is considerable time gap between last seen together and the time when the dead body of the deceased was recovered. Therefore, only on the basis of last seen together it cannot be held that the appellant is the author of crime in question unless its is corroborated by other important evidences. 15. At this stage it would be appropriate to notice the relevant decisions of the Supreme Court in this regard. 10 CRA No. 741 of 2017 16. The Supreme Court in the matter of Navaneethakrishnan v. State by Inspector of Police1, has held that though the evidence of last seen together could point to the guilt of the accused, but this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration, and observed in paragraph 22 as under:- “22. PW 11 was able to identify all the three accused in the court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross-examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW 11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration.” 1 (2018) 16 SCC 161 11 CRA No. 741 of 2017 17. In the matter of State of Goa v. Sanjay Thakran and another2, their Lordships of the Supreme Court found that there was considerable time gap of approximately 8½ hours when the deceased was last seen alive with the accused persons and their Lordships held that there being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused. 18. In the shape of corroboration, the trial Court has relied upon the extra-judicial confession which is said to have been made by the appellant to PW-7 & PW-10 and also on the fact that pursuant to memorandum statement of the appellant blood stained clothes were recovered. Extra-judicial confession:- 19. Podiyami Budhari (PW-7) in her statement before the Court has clearly stated that in the public meeting, on being asked, the appellant admitted that he had murdered Podiyam Hidma. Similarly, Podiyami Aayte (PW-10) in her statement before the Court has admitted that in the public meeting the appellant admitted that he had murdered 2 (2007) 3 SCC 755 12 CRA No. 741 of 2017 Podiyam Hidma. It appears from the statements of the witnesses to the extra-judicial confession that the extra- judicial confession is not true and voluntary. Even otherwise, going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession about his guilt to someone who is totally a stranger to him. Furthermore, 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 3 ]. As such, the extra-judicial 3 (2012) 6 SCC 403 13 CRA No. 741 of 2017 confession which is said to have been made by the appellant to PW-7 & PW-10 is not true and voluntary and the same is of no use to the prosecution. 20. Next piece of evidence on which the trial Court has relied upon to base the conviction is pursuant to memorandum statement of the appellant blood stained clothes were seized. However, to prove that on the clothes, blood or human blood was found or not no chemical analysis report has been brought on record by the prosecution. Therefore, in absence of FSL report, the recovery of clothes would not be helpful for the prosecution in this case inasmuch as there is no evidence to show that the said clothes was stained with blood or human blood, as held by the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another 4 . As such, the recovery of clothes, in the instant case, cannot be held to be a corroborative piece of evidence and the same is of no use to the prosecution. Conclusion:- 21. In view of the aforesaid discussion and analysis, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 08.03.2017 passed by the trial Court convicting and sentencing the appellant for the 4 (2019) 7 SCC 781 14 CRA No. 741 of 2017 offence in question, is hereby set aside and the appellant is entitled for acquittal on the basis of principle of benefit of doubt as the prosecution has failed to complete the chain of circumstances in light of decision of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 5 . Appellant is stated to be on bail. He need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 22. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit 5 (1984) 4 SCC 116