Page No.1 of 15 IN CRA-1425-2015 2025:CGHC:56938-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1425 of 2015 [Arising out of judgment dated 15.09.2015, passed in Sessions Case No.36 of 2015 (State of Chhattisgarh v. Ku. Lata Sidar and another) by the Sessions Judge, Raigarh (CG)] Lata Sidar, D/o Krishna Kumar Sidar, aged about 20 years, Occupation Teacher Private, R/o Village Delari, P.S. Punjipathra, Tehsil and District Raigarh (Chhattisgarh) ... Appellant Versus State of Chhattisgarh, through Aarakshi Prabhari, Aarakshi Kendra Punjipathra, District Raigarh (Chhattisgarh) ... Respondent [Cause-title taken from Case Information System (CIS)] ----------------------------------------------------------------------------------------------- For Appellant : Mr. Arvind Shrivastava, Advocate For Respondent-State : Mr. HAPS Bhatia, Panel Lawyer For Objector : Mr. Rajkumar Pali, Advocate ----------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (24.11.2025) Sanjay K. Agrawal, J (1) Invoking criminal appellate jurisdiction of this Court, the sole appellant herein has preferred this criminal appeal under Section 374(2) of Cr.P.C., calling in question the legality, validity and SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 15 IN CRA-1425-2015 correctness of the impugned judgment of conviction and order of sentence dated 15.09.2015, passed in Sessions Case No.36 of 2015 (State of Chhattisgarh v. Ku. Lata Sidar and another) by the Sessions Judge, Raigarh (CG), whereby she has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.5,000/- and, in default of payment of fine, sentenced to undergo additional rigorous imprisonment for 01 year. (2) The case of the prosecution, in short, is that on 18.11.2014, at about 01:00 PM in the afternoon, at Village Chiraipali, in the jungle area, situated in front of thermocol factory, which comes within the ambit of Police Station Punjipathra, District Raigarh (CG), the accused-appellant herein assaulted Ku. Hemvati Gupta (hereinafter referred to as the “deceased”) by means of wooden stick, hand and fist, due to which, the deceased suffered grievous injuries and died and, thereafter, in order to escape from the legal punishment, the appellant herein with the help of another co-accused person, burnt the dead-body of the deceased alongwith the weapon of the offence (i.e. wooden stick) and, thereby, said to have committed the aforesaid offence. (3) It is further case of the prosecution that the appellant herein and the deceased both were Teachers in Saraswati Shishu Mandir, Girwani. It is also the case of the prosecution that on the date of Page No.3 of 15 IN CRA-1425-2015 offence, the deceased went to the school but did not return back and, upon which, her father (objector herein), namely, Trinath Gupta (PW-10) lodged missing report on 24.11.2014 at about 11:00 AM. Thereafter, on the basis of aforesaid missing report, dehati marg (Ex.P/17) and Dehati Nalish (Ex.P/18) were registered by the police on 08.12.2014 and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/06 and inquest proceedings were conducted vide Ex.P/05. Spot map and panchnama were also prepared vide Ex.P/07 & Ex.P/04 respectively. The appellant-accused was arrested vide Ex.P/22 and on 8.12.2014 itself, memorandum statement of the appellant was recorded vide Ex.P/09, pursuant to which, it is alleged that dead-body of the deceased in burnt condition was recovered/seized vide Ex.P/11 and, thereafter, another memorandum statement of the appellant was recorded on 10.12.2014 vide Ex.P/10 and, on the basis of which, one mobile phone, alleged to be that of the deceased, was recovered/seized vide Ex.P/12. Further, merg intimation and FIR were also registered vide Ex.P/20 & Ex.P/19 respectively. The burnt dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. Dharamsay Paikra (PW-04) and, as per PM report (Ex.P/01), no definite opinion was given regarding cause of death and nature of death and, indeed, it has been opined that exact opinion can be given after forensic investigation. In order to Page No.4 of 15 IN CRA-1425-2015 ascertain the recovered body to be that of the deceased, DNA test was conducted on the burnt bones, which were seized from the spot alongwith the blood samples of the parents of the deceased and, after DNA examination vide Ex.P/39, it has been opined that source of Exhibit-A (i.e. bones of the deceased) is the biological daughter of the source Exhibit C (blood sample of mother of the deceased- Shanit Bai Gupta) and Exhibit D (blood sample of father of the deceased- Trinath Prasad Gupta). After statements of witnesses were recorded and due investigation, the police filed charge-sheet against the appellant in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured her guilt and entered into defence by stating that she is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 20 witnesses and exhibited 39 documents, whereas the appellant- accused in support of her defence, though not examined any witness, but exhibited 03 documents. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Section 302 of IPC and sentenced her as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning Page No.5 of 15 IN CRA-1425-2015 the impugned judgment of conviction and order of sentence. (6) Mr. Arvind Shrivastava, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that: (i) though it is the case of the prosecution that the burnt bones of the deceased was recovered on the basis of memorandum statement of the appellant recorded vide Ex.P/09 on 08.12.2014, but according to the statement of Rishikesh Gupta (PW-06), who is brother of the deceased, he has already noticed the said bunt bones of the dead-body of the deceased alongwith the appellant prior to recording of memorandum statement (Ex.P/09) and, therefore, said recovery of burnt bones cannot be said to be at the instance of the appellant herein; (ii) even otherwise, the said recovery of burnt bones was affected on 08.12.2014 and, thereafter, it was sent for DNA profiling on 27.02.2015 and there is no evidence available on record to show that from 08.12.2014 to 27.02.2015 the said bones were kept in safe custody or not and, as such, chances of fabrication and manipulation cannot be ruled out; (iii) though DNA profiling was conducted on the said burnt bones alongwith the blood samples of the parents of the deceased and, after DNA examination vide Ex.P/39, it has been opined that source of Exhibit-A (i.e. bones of the deceased) is the Page No.6 of 15 IN CRA-1425-2015 biological daughter of the source Exhibit C (blood sample of mother of the deceased- Shanit Bai Gupta) and Exhibit D (blood sample of father of the deceased- Trinath Prasad Gupta), but the author of the said DNA report (Ex.P/39), namely, CHV Goud, Technical Examiner, has neither been cited as witness nor brought to the witness-box before the Court in order to prove the said DNA Report (Ex.P/39) and, in absence of which, the result of said DNA report (Ex.P/39) pales into insignificance and cannot be relied upon; (iv) the theory of last seen together on the basis of statements of Ku. Preeti Yadav (PW-01) and Harikirtan Chouhan (PW-11) is also not established beyond reasonable doubt; (v) so far as recovery of mobile phone, allegedly to be that of the deceased, on the basis of memorandum statement of the appellant recorded vide Ex.P/10 on 10.12.2014 is concerned, the same is also not free from doubt for the reasons that the said memorandum of the appellant was his second memorandum statement recorded at later point of time on 10.12.2014 and his earlier memorandum statement was already recorded on 08.12.2014 and, even otherwise, there is no evidence available on record to show that the said mobile phone was only that of the deceased and nobody else and, as such, the recovery of said mobile phone is also of no use to the prosecution. Hence, the learned trial Court is absolutely unjustified in convicting the appellant for the offence under Section 302 of IPC and, therefore, the present appeal deserves to be allowed Page No.7 of 15 IN CRA-1425-2015 and the appellant is liable to be acquitted of the said charge on the basis of benefit of doubt. (7) Per-contra, learned State counsel and learned counsel appearing for the objector supported the impugned judgment of conviction and order of sentence and submit that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. Thus, the present appeal deserves to 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) In the case in hand, it is case of the prosecution that pursuant to the memorandum statement of the appellant recorded on 08.12.2014 vide Ex.P/09, burnt bones of the deceased were seized vide Ex.P/11 and, thereafter, it was sent for DNA profiling on 27.02.2015 and, as per DNA report (Ex.P/39), it has been opined that source of Exhibit-A (i.e. bones of the deceased) is the biological daughter of the source Exhibit C (blood sample of mother of the deceased- Shanit Bai Gupta) and Exhibit D (blood sample of father of the deceased- Trinath Prasad Gupta), which has been relied upon the learned trial Court to base the conviction of the appellant. Page No.8 of 15 IN CRA-1425-2015 Therefore, the question would be whether the said bones seized vide Ex.P/11 were recovered pursuant to the memorandum statement of the appellant recorded on 08.12.2014 vide Ex.P/09 ? (10) In this regard, it would be appropriate to notice the statement of brother of the deceased, namely, Rishikesh Gupta (PW-06), whereby he has stated that on 07.12.2014, Constable- Manoj Tiwari (PW-18) made a phone call to him and informed that in the jungle area some bones were seen and he further requested him to came for the purpose of identification. Thereafter, when he reached there, he saw burnt pieces of sari, tiffin box and human jaw (jabda), which were identified by him to be that of her sister (deceased) and, on the next day i.e. on 08.12.2014, identification memo (Ex.P/03) to that effect was prepared. However, according to the case of the prosecution, pursuant to the memorandum statement of the appellant recorded on 08.12.2014 vide Ex.P/09, 01 human jaw with teeth (jabda), 07 pieces of bones, 01 sliver anklet; 02 rings; 01 garland, 01 burnt tiffin box; burnt pieces of sari etc were recovered/seized vide Ex.P/11. As such, from the statement of Rishikesh Gupta (PW-06) it is quite clear that the bone of deceased were already noticed/seen by the police, specially, Constable Manoj Tiwari (PW-18) and by Rishikesh Gupta (PW-06) also and, on 07.12.2014, both have visited the spot (jungle area) and seen bones of the deceased and burnt pieces of sari. Page No.9 of 15 IN CRA-1425-2015 (11) In this regard, the decision of the Supreme Court in the matter of Ravishankar Tandon v. State of Chhattisgarh 1 is squarely applicable under the facts and circumstances of the present case, in which, their Lordships have clearly held that the prosecution has to prove beyond reasonable doubt that the recovery of the dead-body was on the basis of the information given by the accused person in his statement recorded under Section 27 of the IE Act and further the prosecution will have to establish that before the information given by the accused person, on the basis of which, the dead-body was recovered, nobody had knowledge about the existence of the dead-body at the place from where it was recovered and observed in Para-14 as under: “14. We will have to therefore examine as to whether the prosecution has proved beyond reasonable doubt that the recovery of the dead body was on the basis of the information given by the accused persons in the statement recorded under Section 27 of the Evidence Act. The prosecution will have to establish that, before the information given by the accused persons on the basis of which the dead body was recovered, nobody had the knowledge about the existence of the dead body at the place from where it was recovered.” (12) Consequently, in light of above-quoted principle of law laid down in Ravishankar Tandon (supra), it cannot be held in the present case that the bones of the deceased was recovered at the instance of the appellant, as it is quite vivid that the place, where 1 2024 SCC Online SC 526 Page No.10 of 15 IN CRA-1425-2015 the said bones of the deceased was found alongwith other articles and seized vide Ex.P/11, was well within the knowledge of the Constable- Manoj Tiwari (PW-18) and Rishikesh Gupta (PW-06) [brother of the deceased) before the memorandum statement of appellant was recorded. Therefore, the findings of the learned trial Court that the bones of the deceased was recovered pursuant to the memorandum statement of the appellant recorded vide Ex.P/09 is clearly contrary to law and decision of the Supreme Court in Ravishankar Tandon (supra). We are unable to uphold the said finding recorded by the learned trial Court and same is liable to be and is here by set aside. We hereby hold accordingly. (13) It is also the case of the prosecution that after seizure of said bones on 08.12.2014 the same were sent for DNA profiling 27.02.2015. However, there is no legal evidence on record to show whether the said seized bones were kept in safe custody from the date of its seizure (i.e. 08.12.2014) till the date the same were sent for DNA profiling (i.e. 27.02.2015) or not dispelling the chances of fabrication and manipulation and, as such, said chances of manipulation cannot be ruled out. Moreover, the author of DNA report (Ex.P/39), namely, CHV Goud, Technical Examiner, has neither been cited as witness nor brought to the witness-box before the Court in order to prove the said DNA Report (Ex.P/39). (14) The Supreme Court in the matter of Rahul v. State of Delhi, Page No.11 of 15 IN CRA-1425-2015 Ministry of Home Affairs and another 2 while dealing with the issue concerning evidentiary value of DNA report, has held that DNA profiling reports cannot be admitted in evidence ipso facto by virtue of Section 293 CrPC and it is necessary for the prosecution to prove that the techniques of DNA profiling were reliably applied by the expert and observed in Para-36 & 38 as under: “36. The learned Amicus Curiae has also assailed the forensic evidence i.e. the report regarding the DNA profiling dated 18-4-2012 (Ext. P-23/1) giving incriminating findings. She vehemently submitted that apart from the fact that the collection of the samples sent for examination itself was very doubtful, the said forensic evidence was neither scientifically nor legally proved and could not have been used as a circumstance against the appellant- accused. The Court finds substance in the said submissions made by the Amicus Curiae. The DNA evidence is in the nature of opinion evidence as envisaged under Section 45 and like any other opinion evidence, its probative value varies from case to case. **** **** **** **** 38. It is true that PW 23 Dr B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ext. PW 23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the investigating officer on 14-2-2012 and 16-2-2012; and they were sent to CFSL for examination on 27-2-2012. During this period, they remained in the malkhana of the police 2 (2023) 1 SCC 83 Page No.12 of 15 IN CRA-1425-2015 station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the trial court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In the absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion.” (15) The aforesaid principle of law laid down by their Lordshisp of the Supreme Court in Rahul (supra) has been followed with approval in the matter of Karandeep Sharma @ Razia @ Raju v. State of Uttarakhand 3 whereby it has been held that DNA reports cannot be admitted in evidence on account of non-examination of the scientific expert who carried out the DNA profiling and same is fatal and observed in Para-40 as under: “40. Thus, in the facts and circumstances of the present case, non-examination of the scientific expert who carried out the DNA profiling is fatal, and the DNA report cannot be admitted in evidence. That apart, we find that the very procedure of collection and forwarding of DNA samples to the FSL is full of lacunae and loopholes. The incident took place on the intervening night of 25th/26th June, 2016. The dead body of the child-victim was picked from the crime scene by the Investigating Officer(PW-14) on 26th June, 2016 at 06:16 AM and was forwarded to Dr. Madan Mohan, medical officer(PW-7) for carrying out the post-mortem examination. The medical officer, 3 2025 INSC 444 Page No.13 of 15 IN CRA-1425-2015 while deposing on oath, stated that he collected following samples and articles from the child-victim’s dead body for forensic examination.” (16) As such, in light of the above-quoted principle of law, non- examination of the author of DNA report (Ex.P/39), namely, CHV Goud, Technical Examiner, is fatal to the case of the prosecution and, the DNA report (Ex.P/39) cannot be admitted in evidence to hold the appellant herein guilty of the offence. We hereby hold accordingly. (17) Apart from the above, it is also the case of the prosecution that the appellant and the deceased were lastly seen together by Ku. Preeti Yadav (PW-01) and Harikirtan Chouhan (PW-11). However, a careful perusal of the statement of Ku. Preeti Yadav (PW-01) would show that she has stated that on 18.10.2014 after closing of the school, she alongwith the deceased and the appellant herein all agreed to go to Chiraipali and, pursuant to which, they sat in Tata Magic vehicle, but after crossing Star Dhaba, the appellant and the deceased get off the Tata Magic, upon which, when she asked as to why they are getting off at this place, they both replied that they will take bus and go to Raigarh. But, the said witness is of no use to the prosecution for the reason that she met the deceased for the first time, as stated by her in Para-01 of her Court statement. Similarly, according to the statement of Harikirtan Chouhan (PW-11), it is only stated that he has only seen the appellant herein on the date and Page No.14 of 15 IN CRA-1425-2015 time of the offence and, he has not seen the appellant and the deceased together. Thus, both witnesses- Ku. Preeti Yadav (PW-01) and Harikirtan Chouhan (PW-11) are of no use to the prosecution and, therefore, the theory of last seen together is no established in the present case. We hereby hold accordingly. (18) So far as recovery of mobile phone, allegedly to be that of the deceased, on the basis of memorandum statement of the appellant recorded vide Ex.P/10 on 10.12.2014 is concerned, in this regard, Panch Kanwar Rathiya (PW-05) has been examined, to whom it is alleged that the appellant has sold the said mobile phone. However, said Panch Kanwar Rathiya (PW-05) has only said that he has purchased mobile phone from the appellant herein, but IEMI number of the said phone has not been stated by him. Even otherwise, there is no evidence available on record to show that the said mobile phone was only that of the deceased and nobody else and, even, no officer of the mobile company has been examined to hold that the IEMI number mentioned in the seizure memo Ex.P/12 belongs to the mobile phone of the deceased only and nobody else and, as such, the recovery of said mobile phone is also of no use to the prosecution. We hereby hold accordingly. (19) In view of aforesaid discussion, the conviction and sentence of the appellant for offences punishable under Section 302 of IPC, as imposed upon him by the learned trial Court, is liable to be and is Page No.15 of 15 IN CRA-1425-2015 hereby set aside. The appellant is acquitted of the said charge on the basis of benefit of doubt. Since the appellant is already on bail, she need not to surrender. However, her bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. (20) Consequently, this criminal appeal is allowed to the extent indicated herein-above. (21) Let a certified copy of this order alongwith original record be transmitted to the trial Court for necessary information and action, if any. sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge s@if