1 2025:CGHC:20663-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1251 of 2018 1 - Hidma Poyami S/o Late Hurra Poyami, Aged About 60 Years R/o Chandenar Hemantpara, Police Station City Kotwali, Dantewada District Dantewada Chhattisgarh ... Appelalnt(s) versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Dantewada District Dantewada Chhattisgarh ... Respondent(s) For Appellant (s) : Mr. Mirza Kaisher Beg, Advocate ForRespondent / State : Mr. HAPS Bhatia, Panel Lawyer DIVISION BENCH Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ. Judgment on Board 06/05/2025 SHYNA AJAY Digitally signed by SHYNA AJAY Date: 2025.05.09 10:45:10 +0530 2 Sanjay K. Agrawal, J. 1. This Criminal Appeal preferred by the accused/appellant under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and sentence dated 18.7.2018 passed by the Additional Sessions Judge (FTC), South Bastar, Dantewada (CG) in Sessions Case No.202/2017, by which, the appellant has been convicted and sentenced as under :- Conviction Sentence Under Section 302 of the IPC Life imprisonment and fine of Rs.100/-, in default of payment of fine, to undergo additional RI for one month 2. Case of the prosecution, in brief, is that on 20.4.2017, at about 6:00 p.m, the appellant assaulted his nephew Saybu (deceased) by an axe, as a result of which, he died on account of the grievous injuries sustained by him on his neck 3 and thereby, committed the offence. The Merg Intimation (Ex.P/21) was lodged by the father of deceased stating that on 20.4.2017, at 2:00 p.m., his son Saybu (since deceased) had gone out of the house to drink chhind juice. On the same day, in the evening, one Santar Halba informed him that his son is lying under a mango tree of his field. When the father of the deceased reached there, he saw his son (deceased) unresponsive with injuries on his neck and blood oozing out from the wounds, and thus, found him dead. Thereafter, inquest report (Ex.-P/2) was prepared and FIR (Ex.P/20) was registered against unknown persons. The dead body of the deceased was sent for postmortem examination, which was conducted by Dr. Nityanand Kumar (PW-5) and he gave his report vide Ex.P/20 opining that the cause of death is due to injury on the vital structure of the neck caused by sharp edged heavy cutting weapon and the death is homicidal in nature. 3. Pursuant to the memorandum statement (Ex.P/3) of the appellant, a blood stained axe was seized vide Ex.P/4, which was sent along with the other articles for chemical examination to FSL. As per the FSL report (Ex.P/28), human blood was found on the seized weapon- axe. After due 4 investigation, the appellant was prosecuted for the aforesaid offence. 4. In order to bring home the charges, the prosecution examined as many as 10 witnesses and exhibited 28 documents. 5. Learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellant as mentioned above, against which, this Appeal has been preferred by the appellant. 6. Learned counsel for the appellant would submit that the trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of the IPC as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that the extra judicial made by the appellant before the Police Officer is not reliable and admissible in evidence in view of Section 25 of the Indian Evidence Act. Further, the prosecution has failed to prove that the seized weapon was used in commission of crime, therefore, the appellant is entitled for acquittal. 7. Per contra, learned State Counsel would support the impugned judgment of conviction and submit that the prosecution has been able to bring home the charges 5 beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. The appellant is not entitled for acquittal and the Appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions and have gone through the record with utmost circumspection. 9. The first question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative relying on the Postmortem Report (Ex.-P/14), which is proved by Dr. Nityanand Kumar (PW- 15), wherein, it was opined that the death was homicidal in nature, and we do not find any illegality in the said finding, as the same is neither perverse nor contrary to the record and the said finding is hereby affirmed. 10. Now, the next question is, whether the trial Court has rightly held the appellant to be the author of crime in question? 11. Case of the prosecution is not based on direct evidence and it is based on (i) the alleged extra judicial confession made by the appellant and (ii) recovery of weapon - axe, pursuant to the appellant’s memorandum (Ex.P/3), on which, human blood was found. 6 12. We shall now consider the said pieces of evidence found proved by the trial Court one by one to find out whether the learned trial Court is justified in convicting the appellant for the offence under Sections 302 of the IPC. Extra Judicial Confession:- 13. 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. [See : Sahadevan and Another v. State of Tamil Nadu 1] 14. In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered their earlier decisions including Balwinder Singh v. State of Punjab 2 and pertinently laid down the principle in paragraphs 15.1, 15.8 and 16 as under:- “15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10) “10. An extra-judicial confession by its very nature is rather a weak type of evidence 1 (2012) 6 SCC 403 2 1995 Supp (4) SCC 259 7 and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.” *** *** *** 15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambigous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B.3 and Pancho v. State of Haryana4.) *** *** *** The principles 16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of 3 (2011) 11 SCC 754 4 (2011) 10 SCC 165 8 conviction of an accused. These percepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused : (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 15. The principle of law laid down in Sahadevan (supra) has further been followed with approval by the Supreme Court recently in the matter of Pawan Kumar Chourasia v. 9 State of Bihar5 wherein the following principles of law have been laid down:- “EVIDENTIARY VALUE OF EXTRA-JUDICIAL CONFESSION 19. 5. As far as extra-judicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. 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 to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility. ” 16. Reverting back to the facts of the present case, the appellant is said to have made extra judicial confession before Pardesi 5 2023 LiveLaw (SC) 197 10 Ram (PW-6). This witness stated that the meeting in the village lasted for two days and nothing came into fore at first, but subsequently, the appellant made extra judicial confession with regard to the offence. However, in para 7, he stated that initially, the appellant was reluctant, but later on, when the Police arrived, he made extra judicial confession before them. In our view, such confession is inadmissible in evidence in view of Section 25 of the Indian Evidence Act. Thus, the extra judicial confession made by the appellant before Pardesi Ram (PW-6) is not established. As such, the trial Court could not have convicted the appellant on the basis of alleged extra judicial confession. R ecovery of Weapon :- 17. Next incriminating circumstance relied upon by the trial Court is seizure of an axe pursuant to the memorandum statement (Ex.P/3) of the appellant, on which, as per the FSL Report (Ex P/28), human blood was found. However, there is no conclusive proof that the said axe was used by the appellant for commission of offence. 18. In matter of Mustkeem Alias Sirajudeen Vs. State of Rajasthan6, it was held that disclosure alone would not automatically lead to the conclusion that the offence was 6. (2011) 11 SCC 724 11 committed by the accused. The burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. The following was observed in para 25 to 27 : 25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. 26. If the recovery memos were prepared at the Police Station itself then the same would lose their sanctity as held by this Court in Varun Chaudhary Vs. State of Rajasthan7. 27. The scope and ambit of Section 27 were also illuminatingly stated in Pulukuri Kotayya v. King Emperor8 reproduced hereinbelow: "...it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must 7. AIR 2011 SC 72. 8 AIR 1947 PC 67 12 relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." The same were thereafter restated in another judgment of this Court reported in Anter Singh Vs. State of Rajasthan9.” 19. In the instant case, the prosecution has successfully proved the recovery of the weapon but has failed to establish that the said weapon was used in the commission of the crime, therefore, the trial Court’s reliance on recovery of weapon based on the appellant’s disclosure is misplaced. 20. In view of the foregoing discussion and findings, the Appeal is allowed. Conviction and sentence imposed on the appellant under Sections 302 of the IPC are set aside and 9. 2004 (10) SCC 657 13 he is acquitted of the said charge on the basis of principle of benefit of doubt. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months in view of the provisions contained under under Section 437-A of the Cr.P.C. 21. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Shyna