1 2025:CGHC:58824-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 474 of 2018 {Arising out of judgment dated 16.02.2018 passed in Sessions Trial No.22/2016 by the learned Additional Sessions Judge, Gariyaband} Jeevrakhan Sinha, S/o. Chovaram Sinha, Aged About 35 Years, R/o. Village Sorid Khurd, P.S. Fingeshwar, Tahsil & District Gariyaband, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through P.S. Fingeshwar, District Gariyaband, Chhattisgarh. ... Respondent For Appellant : Mr. Rakesh Kumar Thakur, Advocate For Respondent : Mr. H.A.P.S.Bhatia, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (04.12.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.12.04 17:06:10 +0530 2 Sanjay K. Agrawal, J. 1. The appellant herein has preferred this criminal appeal under Section 374 of Cr.P.C. calling in question the legality, validity and correctness of the impugned judgment dated 16.02.2018 passed by learned Additional Sessions Judge, Gariyaband in Sessions Trial No.22/2016, by which the appellant has been convicted under Sections 302 & 201 of I.P.C. and sentenced as under : CONVICTION SENTENCE U/s. 302 of I.P.C. : Life imprisonment and fine of Rs. 200/- in default of payment of fine, additional simple imprisonment for 2 months. U/s.201 of I.P.C. : Rigorous imprisonment for 3 years and fine of Rs.200/- in default of payment of fine, additional simple imprisonment for 2 months. Both the sentence to run concurrently. 2. Case of the prosecution, in short, is that on 03.01.2016 at 9:00 P.M. at village Sorid Khurd, Police Station- Fingeshwar, District Gariyaband, the appellant herein thrown Jageshwar Chakradhari (now deceased) into the Well owned by 3 Ramadhar Sinha and thereby, the aforesaid offence has been committed. The Merg Intimation was registered vide Ex.P-1 by Madan Lal (PW-1), Dehati Nalsi was registered vide Ex.P-24, FIR was registered vide Ex.P-27, Spot Map was prepared vide Ex.P-16, Inquest was conducted vide Ex.P-5 and dead body of deceased Jageshwar was subjected to post-mortem, which was conducted by Dr. P. Kudeshiya (PW-22), who proved the post-mortem report vide Ex.P-22, according to which, cause of death was cardio respiratory embarrassment, mode of death was asphyxia and nature of death depends on circumstantial evidence. After due investigation, the appellant was charge- sheeted for the aforesaid offences to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 22 witnesses and exhibited 30 documents and the appellant-accused in support of his defence has not examined any witness, but has exhibited the documents Ex.D-1 & Ex.D-2. 4 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Sections 302 & 201 of I.P.C. and sentenced as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Mr. Rakesh Kumar Thakur, learned counsel for the appellant, would submit that the theory of last seen together has not been established by Tirath Kumar Yadav (PW-7) and Shatrughan Yadav (PW-10). The extra judicial confession was made in presence of the police and there is no recovery pursuant to memorandum statement of appellant, therefore, the appellant is entitled for acquittal on the ground of benefit of doubt and the appeal deserves to be allowed. 6. Mr. H.A.P.S.Bhatia, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences and, as such, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 5 8. First, the theory of last seen together has been found established by the trial Court, which is the main basis for conviction of the appellant. 9. Now, the question is whether the trial Court is justified in convicting the appellant relying upon the theory of last seen together to be duly established ? 10. At this stage, it would be appropriate to notice the decisions with regard to theory of last seen together rendered by the Supreme Court. 11. In the matter of Jaharlal Das v. State of Orissa1, the Supreme Court has noted the fact that at the stage of inquest, the important incriminating circumstance namely, the deceased was last seen in the company of the accused, was not noted and that is not there in the inquest report. Thereafter, in that view of the above fact and other evidence on record, their Lordships have held that the deceased was last seen in the company of the accused is not established beyond reasonable doubt. 12. In the matter of Arjun Marik v. State of Bihar2, it has been held by their Lordships of the Supreme Court that conviction 1 (1991) 3 SCC 27 2 1994 Supp (2) SCC 372 6 cannot be made solely on the basis of theory of 'last seen together' and observed in paragraph 31 as under :- “31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to though a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.” 13. Likewise, in the matter of State of Goa v. Sanjay Thakran3, the Supreme Court has held that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was observed in paragraph 34 as under :- “34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and 3 (2007) 3 SCC 755 7 the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no 8 possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. ” 14. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan4, their Lordships of the Supreme Court have clearly held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the appellant. It has been held in paragraphs 15 and 16 as under :- “15. The theory of last seen – the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan. 16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and 4 (2014) 4 SCC 715 9 sentence. This appeal is allowed and the conviction and sentence imposed on the appellant- accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise.” 15. In the matter of Anjan Kumar Sarma v. State of Assam5, their Lordships of the Supreme Court have clearly held that in a case where other links have been satisfactorily made out and circumstances point to guilt of accused, circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction. 16. In the matter of Navaneethakrishnan v. State by Inspector of Police6, the Supreme Court 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: - 5 (2017) 14 SCC 359 6 (2018) 16 SCC 161 10 “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.” 17. In the matter of State of Goa v. Sanjay Thakran and another7, 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 7 (2007) 3 SCC 755 11 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 instant case, the appellant and deceased were allegedly seen alive on 03.01.2016 at 8:30 P.M. whereas the dead body was recovered on 04.01.2016 at 7:30 P.M. vide Ex.P-1 with a gap of more than 22 hours and there is a considerable time gap between the last seen together and the time when dead body of deceased was recovered. Therefore, it cannot be held that it is only the appellant who is perpetrator of crime in absence of corroboration, as required in the matter of Navaneetha-krishnan (supra). 19. In shape of corroboration, the extra judicial confession has been brought on record that the appellant has allegedly given extra judicial confession to Ghasiya Ram Yadav (PW-4) and Amrit Nirmalkar (PW-16). Ghasiya Ram (PW-4) has stated that he and Amrit (PW-16) both were sent by the police for inquiring the appellant in which appellant has stated that he had seen his wife and deceased Jageshwar in compromising position and therefore, he had slapped him. He further stated 12 that, at that time, the police persons were present 20 feet away from the place where the extra judicial confession was given. As such, the extra judicial confession was made in presence of the police and therefore, it is inadmissible in evidence. Furthermore, according to Amrit Nirmalkar (PW-16) extra judicial confession was given by the appellant to the police and, as such, it is inadmissible in evidence by virtue of Section 25 of the Indian Evidence Act. 20. 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. 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 v. State of Tamil Nadu8]. 8 (2012) 6 SCC 403 13 21. In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered the earlier decisions including Balwinder Singh v. State of Punjab9 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 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.10 and Pancho v. State of Haryana11.) 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 9 1995 Supp (4) SCC 259 10 (2011) 11 SCC 754 11 (2011) 10 SCC 165 14 of forming the basis of 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.” 22. The principle of law laid down in Sahadevan (supra) has further been followed with approval in the matter of Pradeep Kumar v. State of Chhattisgarh12 and very recently in the matter of Pawan Kumar Chourasia v. State of Bihar13, the following principle of law has been laid down by their Lordships in paragraph 5 of the report :- “EVIDENTIARY VALUE OF EXTRA-JUDICIAL CONFESSION 5. As far as extra-judicial confession is concerned, the law is well settled. Generally, it is a weak piece of 12 Criminal Appeal No. 1304 of 2018, judgment dated 16/03/2023 13 2023 LiveLaw (SC) 197 15 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. ” 23. Lastly, in order to convict the accused person for an offence under Section 302 of I.P.C., the prosecution was required to establish the death to be homicidal in nature, which the prosecution failed to do, as Dr. P. Kudeshiya (PW-22) in his cross-examination in para 3 has stated that the death could be homicidal, suicidal or accidental it depends upon the facts and circumstances of the case. However, the trial Court did not record a specific finding that the death was homicidal in nature except quoting the statement of Dr. P. Kudeshiya (PW-22) in para 13 of the judgment, no other evidence has been brought on record. In that view of the matter, the trial Court is absolutely unjustified in convicting the appellant for 16 offence under Sections 302 & 201 of I.P.C. and, as such, he is entitled for acquittal on the ground of benefit of doubt. 24. Accordingly, the impugned judgment of conviction and order of sentence dated 16.02.2018 is hereby set aside. In the result, the appeal is allowed. The appellant stands acquitted giving him benefit of doubt from the charge framed against him for the offence under Sections 302 & 201 of I.P.C. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 25. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok