1 2025:CGHC:58556-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 711 of 2019 (Arising out of judgment dated 12.04.2019 passed in Sessions Trial No. 338/2018 by the learned Sessions Judge, South Bastar, Dantewada) Vijay Vacham S/o Pusu Vacham Aged About 38 Years R/o Village Uska Pattnam Police Station Bedre, District Bijapur, Chhattisgarh. ... Appellant versus State of Chhattisgarh, The Station House Ofificer, Police Station Bedre District Bijapur, Chhattisgarh. ... Respondent For Appellant :- Mr. Goutam Khetrapal, Advocate For State-Respondent :- Mr. Pankaj Singh, Panel Lawyer. DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (03.12.2025) Sanjay K. Agrawal, J. 1. This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated HEERA LAL SAHU Digitally signed by HEERA LAL SAHU Date: 2025.12.05 16:25:28 +0530 2 12.04.2019, passed by learned Sessions Judge, South Bastar, Dantewada (C.G.) in Sessions Trial No. 338/2018, whereby the appellant has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.5,000/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for six months. 2. The case of the prosecution, in short, is that on 23.08.2018 at about 11:30 pm, in village Uska Pattanam, Karkeli, Police Station Bedre, District – Bijapur, the appellant assaulted his wife Lacchandai Vacham (Now deceased), by means of wooden pestle (which is used for pounding paddy), due to which, she suffered grievous injuries and died, thereby, committed the aforesaid offence. 3. Further, the case of the prosecution in a nutshell, is that a Merg intimation (Ex.P-1) lodged by complainant Manish Vacham (PW-1), brother of the appellant to the effect that he and his family members were sleeping after having dinner, when his mother, Bari Vacham, woke them up and told them that when she heard a loud sound of wood hitting something in the room of his brother Vijay Vacham and sister-in-law Lachhandai Vacham, the complainant’s mother went to his brother’s room and saw that his brother Vijay Vacham was beating his wife Lachhandai Vacham 3 with a wooden pestle. He, his mother, his father and his brother Sunil went inside the room and saw that his sister- in-law had been injured on the right side of her head and was lying face down on a mat, covered in blood. His brother was standing there holding the broken part of the pestle, and the lower part of the pestle was lying on the ground. When the complainant’s father asked why he had hit his wife, he pushed them away and left the room. They found the Lacchandai Vacham dead. On the basis of Merg Intimation (Ex.P-1), FIR was lodged vide Ex.P-5. Crime Details Form was prepared vide Ex.P-2 and inquest was conducted vide Ex.P-3. Spot map was prepared vide Ex.P- 16 and the dead body of the deceased was sent for postmortem examination which was conducted by, Dr. Devendra Kumar Morla (PW-8) vide Ex.P-14 in which the cause of death was opined to be hypovolemic shock due to excessive bleeding and the nature of death was homicidal. The appellant-accused was arrested vide Ex.P-25. The memorandum statement of the accused has been recorded vide Ex.P-23, pursuant to which wooden pestle and clothes of the appellant were seized vide Ex.P-24 in presence of two witnesses and sent for chemical examination to FSL. In FSL report Ex.P-29, human blood was found on the wooden pestle (Article-E) and clothes (Articles – D1 and D2) of the 4 appellant. After due investigation, the appellant was charge-sheeted for the aforesaid offence. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses and exhibited 29 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. However, the appellant-accused, in support of his defence, has neither examined any witness nor exhibited any document. 5. After conclusion of the trial, the trial Court, on appreciation of the oral and documentary evidence available on record, convicted the appellant for the offence punishable under Section 302 of I.P.C. and sentenced him as mentioned above in the opening para of this judgment against which the present appeal has been preferred by the appellant. 6. Learned counsel for the appellant submits that the conviction has been made on the basis of the statement of I.O., Virendra Verma (PW-10), as well as the statement of the accused made under Section 313 of Cr.P.C. and the memorandum statement, which are inadmissible in evidence. The recovery of the weapon of offence has not 5 been supported by Sukku Vacham (PW-6) and Doli Vacham (PW-7), witnesses of seizure in memorandum, and although human blood was found on the weapon of offence, but merely on that basis, the appellant could not be convicted for the offence of murder as held by the trial Court. Hence, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal on the basis of benefit of doubt. 7. Learned State counsel supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt, and the conviction of the appellant for the offence under Section 302 of I.P.C. is well merited, as such, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. The first question for consideration is, whether the death of deceased was homicidal in nature? 10. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex.P-14 proved by Dr. Devendra Kumar Morla (PW-8) that the death of the deceased was homicidal in nature, which is a finding of fact based on evidence available on record, it is neither 6 perverse nor contrary to the record and we hereby affirm the said finding. 11.Now, the question would be whether the appellant is the author of the crime in question? 12. In the instant case, the incident had occurred in the house of the younger brother Manish Vacham (PW-1) of the appellant in whose house the appellant and his wife Lachhandai Vacham (deceased) had come to celebrate Rakshabandhan festival and at the time of incident, in the house of Manish Vacham (PW-1) apart from his wife, Shanti Vacham (PW-2), Vacham Pusu (PW-3), father of the accused, Barri Vacham (PW-4), mother of the accused, Rashmi Vacham (PW-5), daughter of the accused, Sukku Vacham (PW-6), brother of the accused and Doli Vacham (PW-7), sister of the accused were present, however, all have turned hostile and they have not supported the case of the prosecution. Consequently, the trial Court has relied upon the statement of I.O., Virendra Verma (PW-10) who registered FIR (Ex.P-5) at the instance of Manish Vacham (PW-1) and further relied upon the statement of accused recorded under Section 313 of Cr.P.C. in which the appellant admitted the fact that on the date of incident he was in the village Uska Pattanam and further relied upon the statement made in the memorandum statement that he has committed the offence of murder and further, pursuant to the memorandum statement of the 7 appellant, the weapon of offence i.e., a wooden pestle, has been seized, in which as per FSL report (Ex.P-29) human blood was found leading to the conviction of the appellant, which is sought to be challenged by way of this appeal. 13.First of all, the trial Court has held that all the aforesaid seven witnesses have turned hostile, then he proceeded to rely upon the statement of I.O. Virendra Verma (PW-10), who has registered the FIR (Ex.P-5) at the instance of Manish Vacham (PW-1) and there is no reason for recording incorrect statement by Virendra Verma (PW-10). Though Manish Vacham (PW-1), who lodged the FIR (Ex.P-5) has turned hostile. 14. The Supreme Court in the matter of Renuka Prasad v. State Represented by Assistant Superintendent of Police 1 has similar circumstances held that merely because the story came out of the mouth of the I.O., it cannot be believed and legal sanctity cannot be given to it and held in paragraphs 26 and 45 as under:- “26. The statements made by the IOs regarding the motive, conspiracy and preparation comes out as the prosecution story, as discernible from the Section 161 statements of various witnesses who were questioned by the police during investigation; which statements are wholly inadmissible under Section 162 of the Cr.P.C. Merely because the IOs spoke of such statements having been made by the witnesses during investigation, does not give them any credibility, enabling 1 2025 SCC OnLine SC 1074 8 acceptance, unless the witnesses themselves spoke of such motive or acts of commission or omission or instances from which conspiracy could be inferred as also the preparation, established beyond reasonable doubt. We are unable to find either the motive, the conspiracy or the preparation or even the crime itself to have been established in Court, at the trial through the witnesses examined before Court. The witnesses had turned hostile, for reasons best known to themselves. The only inference possible, on the witnesses turning hostile is that either they have been persuaded for reasons unknown or coerced into resiling from the statements made under Section 161 or that they had not made such statements before police officers. Merely because the story came out of the mouth of the IO, it cannot be believed and a legal sanctity given to it, higher than that provided to Section 161 statements under Section 162 of the Cr.P.C. 46. We cannot but observe that the judgment of the High Court reversing the order of acquittal of the Trial Court proceeds on mere surmises and conjectures relying wholly on the testimony of the Investigating Officers, who merely regurgitated the statements recorded under Section 161 and the voluntary statements of the accused. As has been rightly pointed out in Ramesh v. State of Haryana2 when the statements recorded under Section 161 of the Code of Criminal Procedure is resiled from, there arises a possibility that the police coerced such statements, but considering the huge prevalence of such instances, as in the present case, of the entire witnesses turning hostile, there could be various other factors also. It could be for fear of deposing against the accused, political pressure, pressure from family or society and even instances of monetary consideration. We do not think that the High Court could have relied on the decision to hold that the reason for the enblock hostility of witnesses at trial, could only be due to the influence wielded by the accused who had even persuaded the wife of the deceased to turn hostile; which reasoning is presumptuous and fallacious.” 2 (2017) 1 SCC 529 9 15. In view of the decision of the Hon’ble Supreme Court in the aforesaid matter, the statement of I.O. cannot be relied upon as the witness to the FIR, Manish Vacham (PW-1) has turned hostile and the trial Court has erred in relying upon the statement of I.O. Virendra Verma (PW-10) to hold that the FIR has been lodged by Manish Vacham (PW-1), the brother of the appellant to this effect that the appellant caused the murder of his wife Lachhandai Vacham, therefore, the FIR cannot be held to be proved by the prosecution. 16. 16. The next circumstance which the trial Court held though the prosecution witnesses PW-1 to PW-7 have turned hostile and the incident could not be proved that the offence has taken place in the house of Manish Vacham (PW-1) at village Uska Pattanam but relied upon the statement made by the accused recorded under Section 313 of Cr.P.C. in question No. 4 in which he has answered that he had come to the house of his brother Manish Vacham (PW-1) at village Uska Pattanam. However, the Hon’ble Supreme Court in the matter of Premchand vs. State of Maharashtra3 has held that the explanations that an accused may furnish cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the Section 313 Cr.P.C. statement. 3 (2023) 5 SCC 522 10 17. In the instant case, the prosecution could not establish that the appellant was present in the house of his brother Manish Vacham (PW-1) at village Uska Pattanam on the date of offence, and therefore, merely on the basis of statement of accused under Section 313 it cannot be held that the appellant was present in the house of his brother Manish Vacham (PW-1) on the date of offence. Therefore, the reliance placed by the trial Court on the statement of 313 in isolation is of no use to the prosecution. 18. The next piece of evidence is that the trial Court in paragraph 25 of its judgment relied upon the memorandum statement of the accused in which the accused narrated the story of how the offence was committed which is except for the recovery, other part of the statement is inadmissible in evidence as rendered by the Hon’ble Supreme Court in the matter of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka4 in which it has been clearly held that 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 Supreme 4 (2024) 8 SCC 149 11 Court in State of U.P. vs. Deoman Upadhyaya5. As such, the confessional statement made by the accused in the memorandum (Ex.P-23) is inadmissible except for the recovery. Now, the recovery of the weapon of offence i.e. wooden pestle, has been made, but both the witnesses of recovery, Sukku Vacham (PW-6) and Doli Vacham (PW-7), have not supported the recovery of the weapon in pursuance of the memorandum statement of the appellant. However, the recovery was made on 24.08.2018, and it was sent to the FSL on 03.10.2018 as per Ex.P-28, and there is no explanation whether the weapon of offence and clothes were kept in safe custody or not for 39 days; as such, chances of fabrication and manipulation cannot be ruled out. 19. Lastly, the recovery of the weapon of offence cannot constitute the complete chain of incriminating circumstances required to bring home the charges against the accused as the prosecution is required to be established closely in between the recovery of the material object and the commission of the offence, as per the decision of the Hon’ble Supreme Court in the matter of Mustkeem alias Sirajudeen vs. State of Rajasthan6. 20. The Supreme Court in the matter of Raja Naykar vs. State of Chhattisgarh7 has held that mere recovery of blood stained 5 1960 SCC OnLine SC 8: AIR 1960 SC 1125 6 (2011) 11 SCC 724 7 (2024) 3 SCC 481 12 weapon, even bearing the same blood group of the victim, would not be sufficient to prove the charge of murder. Which has also been followed in the matter of State of Rajasthan vs. Hanuman8. 21. In view of the aforesaid legal analysis, we are of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt, the trial Court has committed a grave legal error in convicting the appellant for the offence under Section 302 of IPC. The appellant is entitled for acquittal on the ground of benefit of doubt. Accordingly, this Criminal Appeal is allowed. The conviction of the appellant for the offence under Section 302 of I.P.C. is hereby set aside and he is acquitted of the said charge. 22. Since the appellant is already on bail, he need not to surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the Cr.P.C. 23. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge H.L. Sahu 8 2025 SCC OnLine SC 1387