1 CRA No. 147 of 2016 2025:CGHC:61432-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 147 of 2016 [Arising out of judgment dated 30.11.2015 passed in Special Sessions Trial No.74/2010 by the Special Judge (Prevention of Atrocities), Surguja at Ambikapur, Chhattisgarh.]  Rajesh Ram Lohar R/o Bhendal Ram Lohar, Aged About 18 Years, R/o Village - Amera, Police Station - Shankargarh, District - Balrampur – Ramanujganj, Chhattisgarh. ... Appellant versus  State of Chhattisgarh Through Station House Office, Police Station - Shankargarh, District - Balrampur – Ramanujganj, Chhattisgarh. ... Respondent For Appellant :- Mr. Anurag Singh, Advocate. For Respondent-State :- Mr. Ashish Shukla, Additional Advocate General, with Mr. Amit Buxy, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (17.12.2025) 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, ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.12.17 17:06:25 +0530 2 CRA No. 147 of 2016 validity and correctness of the judgment dated 30.11.2015 passed by the Special Judge, (Prevention of Atrocities), Surguja at Ambikapur, Chhattisgarh, in Special Sessions Trial No.74/2010, 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 and also convicted for offence under Section 201 of the IPC and sentenced thereunder to suffer imprisonment for 3 years with fine of 500/-; ₹ in default of payment of fine, he has to undergo imprisonment for one year. Both the sentences are directed to run concurrently. Prosecution story:- 2. The case projected by the prosecution and accepted by the trial Court is that intervening night of 19.02.2009 to 20.02.2009 between 9:00 pm to 8:00 am, the appellant herein murdered Prafull Toppo by assaulting him with the help of stone and thereafter strangulated him. To screen himself from the offence, appellant thrown the dead body of the into the well of the deceased’s father and thereby committed the offences in question. Against the aforesaid incident, merg intimation and FIR were registered vide Exs.P/1 & P/1A, respectively. Nazari naksha and crime details form were prepared vide Exs.P/8 & P/11, respectively. Inquest 3 CRA No. 147 of 2016 proceedings (Ex.P/4) were conducted and the dead body of the deceased was sent for postmortem. Dead body of the deceased was subjected to postmortem by Dr. Joseph Lakra (PW-9), who prepared the postmortem report vide Ex.P/15. As per the postmortem report (Ex.P/15) cause of death of the deceased was asphyxia and shock due to throttling and head injury and homicidal in nature. Wheels of investigation started running and the appellant was arrested. Pursuant to memorandum statement of the appellant (Ex.P/12) his clothes and stone were seized vide Ex.P/13. Other articles were also seized. 3. After due investigation, appellant herein was charge-sheeted for the aforesaid offences 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 13 witnesses and exhibited 18 documents, whereas, defence, in support of its case, has neither examined any witness nor exhibited any document. 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. 147 of 2016 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. Anurag Singh, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting appellant for offences in question. He would also submit that extra-judicial confession which is said to have been made by the appellant to Sangita Kujur (PW-2) and Pawal Toppo (PW-4) is not true and voluntary and the motive of the offence has also not been proved against the appellant. He would further submit that other incriminating circumstances have also not been established by the prosecution and therefore, the appeal deserves to be allowed and the appellant is entitled for acquittal on the basis of benefit of doubt. 7. Mr. Ashish Shukla and Mr. Amit Buxy, learned State counsels, would oppose the prayer made by learned counsel for the appellant and submit that the trial Court has rightly convicted the appellant for the offences in question relying upon the extra- 5 CRA No. 147 of 2016 judicial confession and other incriminating circumstances. 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/15) proved by Dr. Joseph Lakra (PW-9), which, in our considered opinion, is a correct finding of fact based on evidence available on record and the same is neither perverse 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.The case of the prosecution is based on the circumstantial evidence and the trial Court has found incriminating circumstances established. The five golden principles which constitute panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 in paragraph 153 which state as under:- 1 (1984) 4 SCC 116 6 CRA No. 147 of 2016 “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. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra2 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (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.” 11.The trial Court in paragraph No.29 of the impugned judgment has culled out the following incriminating circumstances on which conviction of the appellant has been found proved:- “1-अभियु्ሹ राजे श राम औरा ्ቚफु ्ቤ टोप्पो का संगीता का जेरा का संथ ्ቚ म संबंध होना। 2- घटोना भि#नाका का राता म$ अभियु्ሹ राजे श राम का ्ቚ#पो भिताका% का संथ संयु्ሹ रूपो सं पो़በई काराना का #)राना अचानाका गीयुबं हो जेना का तात्पोश्चाता- वापोसं आ जेना। 2 (1973) 2 SCC 793 7 CRA No. 147 of 2016 3- अभियु्ሹ का गीयुबं होना का0 संमयुवाधिध ताथ ्ቚफु ्ቤ टोप्पो का0 म2त्यु का संमयु लगीगी एका होना। 4-संቌኍ संगीता का जेरा एवा पोवाल टोप्पो का संमቌኍ अभियु्ሹ ቛኋरा का0 गीई अपोराध का0 संस्वाका2 भिता। 5.अभियु्ሹ ቛኋरा म मरा ण्डम काथना म$ शवा का का ए म$ फु का जेना का संबंध म$ भिकायु गीयु काथना। 6- अभियु्ሹ सं बंराम# भिकायु गीयु कापो़ቬ पोरा रा्ሹ का संमना धब्बं< का पोयु जेना।" 12.Now, we will consider the correctness of each of the incriminating circumstances culled out by the trial Court, one by one. Incriminating circumstance No.1 13.As per the prosecution, appellant and the deceased both had love affair with same girl Sangita Kujur (PW-2) which has been found proved by the trial Court on the basis of statement of Juwel (PW- 6), brother of the deceased, who in his statement has simply stated that the his brother and PW-2 had love affair. However, PW-2 in her statement, she has refuted the suggestion made by the prosecution that either with the deceased or with the appellant she has love affair. As such, only on the basis of self serving statement made by PW-6, appellant could not be convicted in absence of other supportive evidence and, therefore, we hereby reject the said finding of the trial Court. 8 CRA No. 147 of 2016 Incriminating circumstances Nos.2 & 3:- 14.It is the case of the prosecution that appellant was studying with Pradeep Tirkey (PW-7) and suddenly left his (PW-7) company for an hour which is the time of murder of the deceased, therefore, it is one of the incriminating circumstances on which the conviction of the appellant is based. However, it would inappropriate to hold that the appellant left the company of PW-7 for an hour to commit the offence as there might be multiple reasons to left the company of PW-7 while studying. Since the time was same of leaving the company of PW-7 by the appellant and when the murder was committed, it cannot be assumed that the appellant must have caused the murder of Prafull Toppo (deceased), even otherwise, time when the appellant left the company of PW-7 has not been shown, therefore, these two incriminating circumstances have also not been established. Incriminating circumstance No.5:- 15.The appellant has given the memorandum statement (Ex.P/12) in which he has confessed that he threw the dead body of the deceased into the well of the deceased’s father, on which the trial Court has relied upon as one of the incriminating circumstance to base the conviction of the appellant. However, in light of decision 9 CRA No. 147 of 2016 of the Supreme Court in the matter of Babu Sahebagouda Rudragoudar and others v. State of Karnataka 3 it is well known principle that confessional part of such statement is inadmissible and only the part of which distinctly leads to recovery of fact is admissible in evidence. Their Lordships of the Supreme Court in the matter of Babu Sahebagouda Rudragoudar (supra) have held as under:- “61. The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the investigating officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence as laid down by this Court in State of U.P. v. Deoman Upadhyaya.” 16.In that view of the matter, the trial Court is absolutely unjustified in holding the conviction of the appellant by admitting the confessional part of the memorandum statement as one of the incriminating circumstances. As such, we hereby reject the said evidence as incriminating circumstance. Incriminating circumstance No.6. 17.To base the conviction of the appellant the trial Court has relied upon the recovery of blood stained clothes of the appellant which were seized pursuant to his memorandum statement. However, 3 (2024) 8 SCC 149 10 CRA No. 147 of 2016 the same was not subjected to forensic examination to prove that blood or human blood was found on the seized clothes of the appellant. As such, in absence of forensic report (FSL report) seizure of clothes is of no use to the prosecution as it cannot be held that on the said seized clothes blood was found. Incriminating circumstance No.4:- 18.Extra Judicial Confession: - It is the case of the prosecution that the appellant has allegedly made extra-judicial confession to Sangita Kujur (PW-2) & Pawal Toppo (PW-4) on which the trial Court has relied upon to base the conviction of the appellant. We first deal with the statement of PW-4 to whom the appellant has allegedly given extra-judicial confession. According to PW-4 when villagers were inquiring from the appellant he was also present and the appellant made extra-judicial confession that he murdered Prafull Toppo. However, the extra-judicial confession made by the appellant before PW-4 is not true and voluntary as on being asked by the villagers the appellant made the extra- judicial confession. Furthermore, the trial Court has clearly recorded a finding at paragraph No.19 of its judgment that statement under Section 161 of the CrPC of PW-4 has not been recorded by the Police. In this regard decision of the Supreme Court in the matter of Ram Lakhan Singh & others v. State of 11 CRA No. 147 of 2016 Uttar Pradesh 4 may be noticed herein in which their Lordships of the Supreme Court have held that in a grave charge like murder, it will not be proper to place reliance on a witness who never figured during the investigation and was not named in the charge-sheet and observed as under:- “37. It is true that no enmity or grudge is suggested against this witness, but we find that this witness was not even examined by the police nor was he cited in the charge-sheet. In a grave change like the present, it will not be proper to place reliance on a witness who never figured during the investigation and was not named in the charge- sheet. The accused who are entitled to know his earlier version to the police are naturally deprived of an opportunity of effective cross-examination and it will be difficult to give any credence to a statement which was given for the first time in Court after about year of the occurrence. We cannot, therefore, agree that the High Court was right in accepting the evidence of this witness as lending assurance to the testimony of other witnesses on the basis of which alone perhaps the High Court felt unsafe to convict the accused.” 19.In view of the aforesaid principle of law laid down by their Lordships of the Supreme Court in the aforesaid judgments, though PW-4 is the witness to the inquest, but he was never asked to record his statement under Section 161 of the CrPC and, therefore, it would be unsafe to rely upon his (PW-4) statement to base the conviction of the appellant that too for offence under Section 302 of the IPC. 4 (1977) 3 SCC 268 12 CRA No. 147 of 2016 20.Next witness to the extra-judicial confession is Sangita Kujur (PW- 2) though she has been declared hostile, on being asked the leading question, she has admitted that the appellant informed her that he murdered Prafull Toppo. However, 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 or in the public meeting. 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 5 ]. As such, the extra-judicial confession which is said to have been made by the 5 (2012) 6 SCC 403 13 CRA No. 147 of 2016 appellant to PW-2 & PW-4 is not true and voluntary 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 30.11.2015 passed by the Special Court convicting and sentencing the appellant for the offences 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 also failed to complete the chain of circumstances in light of decision of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra). Since the 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