1 2025:CGHC:61087-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 209 of 2019 Rambachan Thakur @ Gudda S/o Roop Singh Thakur, aged about 42 years, R/o Lalkhadan, Police Station- Torwa, District- Bilaspur, (C.G.) ... Appellant Versus The State of Chhattisgarh, through Station House Officer, Police Station- Torwa, Bilaspur, District- Bilaspur, (C.G.) ... Respondent For Appellant : Mr. Siddhant Tiwari, Advocate. For State : Mr. Kishan Lal Sahu, Dy. G.A. Hon'ble Smt Justice Rajani Dubey, J. Hon’ble Shri Justice Amitendra Kishore Prasad, J. Judgment on Board Per, Rajani Dubey , Judge 12.12.2025. 1. This criminal appeal under Section 374(2) of the Cr.P.C. is directed against the impugned judgment and order of sentence dated 30.01.2019 passed by Special Railway Magistrate Bilaspur, District Bilaspur (C.G.) in Criminal Case No. 1848/2018, whereby the appellant has been held guilty for commission of offence and sentenced as described below:- Digitally signed by RAVVA UTTEJ KUMAR RAJU 2 Conviction Sentence Under Section 302 of IPC. Life imprisonment and fine amount of Rs. 20,000/-, in default of payment of fine, to undergo additional R.I. for 01 year. U/s 25 (1-B) (a) of Arms Act R.I. for three years and fine amount of Rs. 5,000/-, in default of payment of fine, to undergo additional R.I. for 03 months. U/s 27 (1) of Arms Act R.I. for six years and fine amount of Rs. 10,000/-, in default of payment of fine, to undergo additional R.I. for 06 months. (All the substantive sentences shall run concurrently.) 2. The case of the prosecution, as unfolded from the impugned judgment and the records of the case, is that on 04.03.2018, the accused went to Lal Khadan for the birthday celebration of the elder brother of the complainant Sun Kumar Surya. At about 6.15 pm, preparations were being made to cut the cake, at that very moment, the accused Rambachan Thakur @ Gudda Thakur took the pistol from the other accused Billu Srivas, and deliberately fired the pistol with the intention of killing Durgesh Suryavanshi who was standing in front. Durgesh Suryavanshi, who was injured in the incident, was hit by a bullet in his chest. He collapsed and died while being taken to Apollo Hospital for treatment. Upon arrival at Apollo Hospital, Durgesh Suryavanshi 3 was declared dead by the doctor. On the basis of the information given by the complainant morgue was registered. The map and panchayatnama were prepared. The deceased's body was examined. 3. During the investigation, seizure proceedings were initiated based on the memorandum statements of the accused. Based on the memorandum statement of accused Billu alias Sunil, the pistol used in the incident was seized. The accused were arrested. The statements of witnesses were recorded. During the post-mortem examination of the deceased, the bullet recovered from his body was preserved. The empty bullet shells, live cartridges, and the bullet recovered from the deceased's body were sent to the State Forensic Science Laboratory, Raipur for testing to ensure that the bullet recovered from the deceased's body was the same bullet that was fired from the pistol recovered from the accused. The soil recovered from the spot, the deceased's full pants, shirt, etc. were also sent to the laboratory for testing. Permission to prosecute the accused under the Arms Act was obtained from the Bilaspur Collector regarding his illegal possession and use of an unlicensed pistol. 4. After completion of due and necessary investigation, a charge sheet was presented before the Special Railway Magistrate, Bilaspur, Chhattisgarh, who found the case to be triable by the Hon’ble Sessions Court and remanded it on June 11, 2018. The learned trial Court framed charges against the present appellant for alleged commission of offence under Sections 302/34 of IPC and Section 25 (1-B) (a) of Arms Act & Section 27 (1) of Arms Act and against the co-accused for alleged commission of offence under Sections 302/34 of IPC and Section 25 (1-B) (a) of Arms Act. The accused having abjured guilt were subjected to trial. 4 5. In order to establish the charges against the accused, the prosecution has examined as many as 32 witnesses. The statement under Section 313 of Cr.P.C. of the accused have been recorded, in which they denied the incriminating charges leveled against them and pleaded their innocence that they have been falsely implicated in this case. However, no witness has been adduced by the accused in their defence. 6. After hearing learned counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence, this appeal. 7. Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel appearing for the appellant submits that the prosecution has failed to prove the guilt of the accused/appellant beyond reasonable doubt as there are many lacunas and discrepancies in the case of the prosecution, which are not sufficient to convict the appellant. PW-01 who is the complainant in the present case and has informed the police about the said incident has categorically stated in para 2 of his examination in chief that in the oral complaint he did not state the name of the accused persons and he admitted in para 9 of his cross- examination that he did not know who fired the gun and how the bullet was shot. All other eye witnesses have also not supported the prosecution case. On the basis of memorandum of appellant, only motorcycle was seized by the prosecution, pistol was seized from the co-accused Billu Srivas @ Sunil who was died during the pendency of the appeal and his appeal was abated. So there is no clinching and legally admissible evidence against the appellant Rambachan Thakur, but the learned trial Court did not appreciate 5 the oral and documentary evidence properly and convicted the appellant. So, the findings recorded by the learned trial Court are not sustainable in the eyes of law. As such, the impugned judgment is liable to be set aside. 8. Reliance has been placed on the decision of Hon’ble Apex Court in the matter of Raja Khan v. State of C.G. in the judgment dated 07.02.2025 passed in CRA No. 70 of 2025. 9. Ex adverso, learned counsel for the State opposes the submissions of learned counsel for the appellant, supported the impugned judgment and submits that the memorandum and seizure are duly proved by the witnesses and the autopsy surgeon has opined that death was due to gunshot and ballistic expert also supported the prosecution case. So, the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the appellant for the alleged offence. As such, impugned judgment of conviction and order of sentence needs no interference by this Court. 10. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection. 11. With respect to the homicidal death of the deceased, the prosecution has examined (PW-19) Dr, Ajay Tavarkar, who conducted the postmortem of the deceased Durgesh Suryavanshi and gave his report vide Ex. P/30 and opined the cause of the death as shock and hemorrhagic as a result of firearm injuries on the chest and death was homicidal in nature. 12. From the evidence of Dr. Ajay Tavarkar (PW-19), the gunshot injury over the chest of the deceased was found which lead to his death, though injuries over the body of the deceased and nature of the death has also not been disputed by the accused/appellant. Therefore, it has been found 6 proved that the death of the deceased Durgesh Suryavanshi was homicidal in nature. 13. Now, we have to consider that whether the accused/appellant is the author of this crime or not? 14. It is clear that during pendency of this appeal, the co-accused Billu Srivas @ Sunil was died and as per prosecution, the accused/appellant Rambachan Thakur @ Gudda took the pistol from the hand of Billu Srivas and fired gunshot upon Durgesh Suryavanshi (deceased), but the complainant (PW-01) Sun Kumar Surya, who lodged the F.I.R had stated that on the evening of the said incident, he went to Lal Khadan Chowk regarding some work, there he heard some sound of firecracker and later he came to know that bullet was fired. He then lodged F.I.R. vide Ex. P/01 and he admitted is signature on A to A part, but he stated that he did not tell anyone’s name and he did not know that who fired the pistol. The prosecution has declared him hostile and cross-examined him, but he denied all suggestions of the prosecution and he admitted this suggestion of the defence that he only saw injured Durgesh Suryavanshi and he did not know anything else about the incident. Other witnesses PW-02 Shailesh Kumar, PW-03 Sachin Kumar, PW-05 Chandra Prakash, PW-06 Om Prakash Suryavanshi, PW-07 Lav Kumar Suryavanshi, PW-08 Sukhnandan have also not supported the prosecution case and the prosecution declared them hostile and cross-examined them, but they denied all suggestions of the prosecution and also denied their police statements. 15. (PW-04) Rakesh Kumar Suryavanshi, brother of the deceased had stated that on the evening of the incident, he was at his house, and at that time there was an uproar in the neighborhood that a bullet was fired, then he 7 went to the spot and found that there was a crowd and his brother Durgesh was taken to Apollo hospital, then he also went to the Apollo hospital where his brother was dead. 16. (PW-21) Jamuna Bai, mother of the deceased stated that the deceased Durgesh Suryavanshi was his son. She further stated that she has no information of the fateful incident. She further admits that when she heard of her son Durges’s death, she lost her sanity. 17. PW-02 Shailesh Kumar and PW-06 Om Prakash Suryavanshi were witness of memorandum and seizure and they have admitted their signatures on memorandum of accused Rambachan Thakur vide Ex. P/08 and memorandum of co-accused Billu Srivas vide Ex. P/09 and seizures memo vide Exs. P/10, P/11 and P/12, but they have denied regarding any memorandum and seizure before them and only admitted their signatures. 18. PW-27 D.K. Patle, Investigating Officer recorded the memorandum of the accused and the co-accused and as per memorandum of the accused Rambachan Thakur Ex. P/08, he disclosed about motorcycle and as per seizure memorandum Ex. P/11, one motorcycle was seized from the accused/appellant Rambachan Thakur. Ex. P/09 is the memorandum of the co-accused Billu Srivas and as per his memorandum, one country made pistol was seized vide Ex. P/12. 19. It is clear that both independent witnesses have not supported the memorandum and seizure and also it is clear that the pistol was not seized from the accused Rambachan Thakur. 20. Hon’ble Apex Court in the matter of Raja Khan (supra) held in paras 18 to 21 and 27 which reads as thus:- 8 “18. Sections 25 and 26 of the Evidence Act stipulate that confession made to a police officer is not admissible. However, Section 27 is an exception to Sections 25 and 26 and serves as a proviso to both these sections [Delhi Administration vs. Bal Krishan & Ors., (1972) 4 SCC 659] 19. This Court is of the view that Section 27 lifts the ban, though partially, to the admissibility of confessions. The removal of the ban is not of such an extent so as to absolutely undo the object of Section 26. As such the statement whether confessional or not is allowed to be given in evidence but that portion only which distinctly relates to discovery of the fact is admissible. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the Appellant-accused as to its existence (Udai Bhan Vs. State of Uttar Pradesh, AIR 1962 SC 1116). 20. The essential ingredients of Section 27 of the Evidence Act are three-fold: i The information given by the accused must led to the discovery of the fact which is the direct outcome of such information. ii. Only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. iii. The discovery of the facts must relate to the commission of such offence. 21.The question as to whether evidence relating to recovery is sufficient to fasten guilt on the accused 9 was considered by this Court in Bodhraj Alias Bodha & Ors. v. State of Jammu & Kashmir, (2002) 8 SCC 45, wherein it has been held as under:- "18... Section 27 of the Indian Evidence Act, 1872 (in short "Evidence Act") is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn v. Balakrishan ((1972) 4 SCC 659] and Mohd. Inayatullah v. State of Maharashtra [(1976) 1 SCC 828]. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of 10 information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision Le. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases, where a person, who is subsequently taken in to custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 11 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that 12 recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor [AIR (1947) PC 67], is the most quoted authority of supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [See State of Maharashtra v. Dam Gopinath Shirde and Ors, (2000) 6 SCC 269]. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered" But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given. (emphasis supplied) 27. This Court, in Varun Chaudhary vs. State of Rajasthan, (2011) 12 SCC 545 and Mustkeem alias Sirajudeen vs. State of Rajasthan, (2011) 11 SCC 13 724, has held that if the recovery memos have been prepared in the police station itself or signed by the panch witnesses in the police station, the same would lose their sanctity and cannot be relied upon by the Court to support the conviction.” 21. In the light of above cited judgment, and in the present case also it is clear that PW-01 complainant/informer and all eye witnesses have not supported the prosecution case. The memorandum and seizure witnesses have also not supported the memorandum of the accused and the co- accused person and the seizure of incriminating articles. The pistol was seized from co-accused Billu Srivas, but his appeal is abated as he died during the pendency of the same. However, only one motorcycle was seized from the memorandum of Rambachan Thakur. So, it is clear that there is no legally admissible and clinching evidence proved by the prosecution against the appellant beyond reasonable doubt, so the prosecution has utterly failed to prove its case against the appellant Rambachan Thakur. 22. Ex consequenti, the appeal is allowed and the impugned judgment dated 30.01.2019 is set aside. The appellant is acquitted of all the charges levelled against him. 23. The appellant is reported to be on bail. However, keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- in the like amount before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 14 24. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) JUDGE JUDGE U.K. Raju