Page No.1 of 12 IN CRA-912-2017 2025:CGHC:60216-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 912 of 2017 [Arising out of judgment dt. 05.05.2017, passed in Session Trial No.09/2015 (State of Chhattisgarh v. Santosh Sahu) by the Additional Sessions Judge, Khairagarh, District Rajnandgaon (CG)] Santosh Sahu, S/o Kanhaiya Sahu, aged about 40 years, R/o Village- Kodka, Police Station- Chhuikhadan, District Rajnandgaon, (Chhattisgarh) ... Appellant Versus State of Chhattisgarh, through District Magistrate, Rajnandgaon, District Rajnandgaon (Chhattisgarh) ... Respondent [Cause-title taken from Case Information System (CIS)] ----------------------------------------------------------------------------------------------- For Appellant : Ms. Indira Tripathi, Advocate For Respondent-State : Mr. Vivek Mishra, Panel Lawyer ----------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board (11.12.2025) 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 correctness of the impugned judgment of conviction and order of SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 12 IN CRA-912-2017 sentence dt. 05.05.2017, passed in Session Trial No.09/2015 (State of Chhattisgarh v. Santosh Sahu) by the Additional Sessions Judge, Khairagarh, District Rajnandgaon (CG), whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/- and, in default of payment of fine, sentenced to undergo additional rigorous imprisonment for 01 month. (2) The case of the prosecution, in short, is that on 28.04.2015, at about 11:45 PM, in the house of Kanhaiya Sahu, situated at Village Kodka, which comes within the ambit of Police Station Chhuikhadan, District Rajnandgaon (CG), the accused-appellant herein assaulted his younger brother’s wife, namely, Mangleen Bai (hereinafter referred to as the “deceased”) by means of axe, due to which, the deceased suffered grievous injuries and died and, thereby, said to have committed the aforesaid offence. (3) It is further case of the prosecution that when the matter was reported to the police by Kanhaiya Sahu (father of the appellant), FIR (Ex.P/09) has been registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/04 and inquest proceedings were conducted vide Ex.P/03. Nazari Naksha was also prepared vide Ex.P/05. The dead- body of the deceased was sent for postmortem examination, which was conducted by Dr. S.R. Mandavi (PW-19) and, as per PM report Page No.3 of 12 IN CRA-912-2017 (Ex.P/14), it has been opined that cause of death is shock due to rupture of brain, excessive bleeding due to brain damage and nature of death is homicidal in nature. The appellant-accused was arrested vide Ex.P/08 and his memorandum statement was recorded vide Ex.P/01. Pursuant to the memorandum statement of the appellant, weapon of the offence i.e. axe has been seized vide Ex.P/02. Certain other articles were also seized vide Ex.P/06 & Ex.P/07 respectively. Thereafter, the seized articles were sent for chemical examination and, as per FSL report (Ex.P/16), it has been opined that stains of blood were found on the axe seized pursuant to the memorandum statement of the appellant. 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 his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 20 witnesses and exhibited 16 documents, whereas the appellant- accused in support of his defence neither examined any witness nor exhibited any documents. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the Page No.4 of 12 IN CRA-912-2017 appellant for offence under Section 302 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Ms. Indira Tripathi, 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. She further argued that though in the present case FIR (Ex.P/09) has been lodged at the instance of the father of the deceased, namely, Kanhaiya Sahu, but since he died on 08.07.2016 and could not be examined before the Court, the FIR (Ex.P/09) could not be proved and, hence, same cannot be relied upon. Eye-witnesses, namely, Umeshwari (PW-06), Ku. Sonali (PW- 07) and Narendra (PW-12) all have turned hostile and not supported the case of the prosecution. Learned counsel vehemently argued that though pursuant to the memorandum statement of the appellant, weapon of the offence i.e. axe has been seized and, in which, according to FSL report (Ex.P/16) stains of blood were found, but in light of settled legal position of law that only on the basis of sole recovery of blood stained article that appellant cannot be convicted, the recovery of said axe is of no help to the prosecution. Even otherwise, motive of the offence is also not established. Lastly, learned counsel submits that conviction of the appellant on the basis Page No.5 of 12 IN CRA-912-2017 of statement of Investigating Officer, namely, Tohanlal Sahu (PW-18) is unsustainable and bad in law. As such, 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 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 supported the impugned judgment of conviction and order of sentence and submits 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) The first and foremost question is as to whether the death of the deceased was homicidal in nature or not, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/14), wherein it has been opined that death of the deceased has been opined to be shock due to rupture of brain, excessive bleeding due to brain damage and nature of death is Page No.6 of 12 IN CRA-912-2017 homicidal in nature, which is duly proved by the statement of Dr. S.R. Mandavi (PW-19). Accordingly, taking into consideration the postmortem report (Ex.P/14) and the statement of Dr. S.R. Mandavi (PW-19), who has conducted the postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. (10) Now, the next question would be whether the accused- appellant herein is the author of the crime in question or not? (11) In the case at hand, admittedly, Kanhaiya Sahu (first- informant) had three sons, one Santosh (appellant herein), second Kailash (husband of the deceased) and the last one is person of unsound mind. The incident took place on 28.04.2015 at about 11:45 PM, whereby the appellant herein is said to have assaulted and caused murder of the deceased, who is his younger brother’s wife. According to the case of the prosecution, there are three eye- witnesses to the incident, namely, Umeshwari (PW-06), Ku. Sonali (PW-07) and Narendra (PW-12), however, as per the findings of the learned trial Court, all the said witnesses have completely turned hostile and not supported the case of the prosecution at all. Kanhaiya Sahu (first informant), who is father of the appellant and father-in-law of the deceased has lodged the FIR (Ex.P/09) in the Page No.7 of 12 IN CRA-912-2017 present case, but since he passed-away and died on 08.07.2016, he could not be examined before the Court in order to prove the FIR (Ex.P/09). Yet, the learned trial Court relied upon the statement of Investigating Officer, namely, Tohanlal Sahu (PW-18) to hold that FIR (Ex.P/09) has been lodged at the instance of Kanhaiya Sahu and same can be relied upon, as he has informed about the incident to Dwarka Deshlahre (PW-04), Rajesh Sahu (PW-09), Rajkumar (PW- 10) and Biselal (PW-11). (12) In this regard, it is well settled principle of law that in absence of examination of first-information, the police office cannot prove the contents of FIR as per Section 67 of the Indian Evidence Act, 1872. Recently, the Supreme Court in the matter of Lalita v. Vishwanath 1 by relying upon its earlier decision on the point rendered in the matters of Harkirat Singh v. State of Punjab 2 and Hazarilal v. State (Delhi Administration) 3 has held in Para-34 & 35 as under: “34. Another important thing is that for an F.I.R. lodged by a deceased person to be treated as substantial, its contents must be proved. It has to be corroborated and proved for there to be any value of the same in the case. The F.I.R. can be used by the defence to impeach the credit of the person who lodged the F.I.R. under Section 154(3) of the Evidence Act. In case the death of the informant has no nexus with the complaint lodged i.e. he died a natural death and did not succumb to the injuries inflicted on him in relation to a matter, the contents of the F.I.R. would not be 1 2025 SCC Online SC 370 2 (1997) 11 SCC 215 3 (1980) 2 SCC 390 Page No.8 of 12 IN CRA-912-2017 admissible in evidence. In such circumstances, the contents cannot be proved through the Investigating Officer. The Investigating Officer, in the course of his deposition, should not be permitted to depose the exact contents of the F.I.R. so as to make them admissible in evidence. All that is permissible in law is that the Investigating Officer can, in his deposition, identify the signature of the first informant and that of his own on the First Information Report and he can depose about the factum of the F.I.R. being registered by him on a particular date on a particular police station. 35. It is absolutely incorrect on the part of the Trial Court and the High Court to say that in the absence of the first informant, the police officer can prove the contents of the F.I.R. as per Section 67 of the Evidence Act.” (13) Coming back to the facts of the present case in light of the above principle of law laid down in Lalita (supra), it is quite vivid that since Kanhaiya Sahu (father of the appellant herein), who lodged FIR (Ex.P/09) died on 08.07.2016 and before which he could not been examined before the Court and the contents of the FIR (Ex.P/09) has not been proved. Therefore, the learned trial Court committed grave legal error in relying upon the statement of Investigating Officer, namely, Tohanlal Sahu (PW-18) to hold that FIR (Ex.P/09) has been lodged at the instance of Kanhaiya Sahu. We hereby hold accordingly. (14) Furthermore, the Supreme Court in the matter of Renuka Prasand v. State Represented by Assistant Superintendent of Police 4 has clearly held that if witnesses have turned hostile the prosecution 4 2025 SCC Online SC 1074 Page No.9 of 12 IN CRA-912-2017 case cannot be proved upon the statement of the investigating officer and observed in Para-26 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 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.” (15) In view of the above, learned trial Court is absolutely unjustified in relying upon statement of Investigating Officer- Tohanlal Sahu and while holding that Kanhaiya Sahu has informed about the incident of appellant committing murder of deceased to Dwarka Deshlahre (PW-04), Rajesh Sahu (PW-09), Rajkumar (PW- 10) and Biselal (PW-11) and, as such, FIR (Ex.P/09) stands proved. Page No.10 of 12 IN CRA-912-2017 (16) The next piece of evidence that has been relied upon by the learned trial Court is that pursuant to the memorandum statement of the appellant (Ex.P/01), weapon of the offence i.e. axe has been seized vide Ex.P/02, in which, according to FSL report (Ex.P/16) stains of blood were found. However, there is no evidence available on record to show that the said blood is of the same blood group to be that of the deceased or the said weapon (axe) has been used in commission of offence in question by the appellant. Even otherwise, The Supreme Court in the matter of Raja Nayka v. State of Chhattisgarh 5 by relying upon its earlier decision rendered in the matter of Mustkeen @ Sirajudeen v. State of Rajasthan 6 has held that sole circumstance of recovery of blood-stained article cannot form the basis of conviction unless the same is corroborated with other piece of incriminating circumstances. Consequently, the recovery of aforesaid article is also of no help to the prosecution. We hereby hold accordingly. (17) The last piece of evidence that has been relied upon by the learned trial Court to hold the appellant herein guilty for the offence is motive of the offence to be established on the basis of statement of Kanhaiya Sahu (father of the appellant) recorded under Section 164 of CrPC. It is well settled principle of law that statement recorded under Section 164 of CrPC is not a substantive piece of evidence 5 2024 SCC Online SC 67 6 (2011) 11 SCC 724 Page No.11 of 12 IN CRA-912-2017 (See: Somasundaram alias Somu v. State represented by the Deputy Commissioner of Police7). Moreover, it is well settled law that motive may be an important circumstance in a case based on circumstantial evidence, but it cannot take place of conclusive proof. (See: Sampath Kumar vs. Inspector of Police, Krishnagiri 8 ). Further, in a recent decision rendered in the matter of Mahendra Singh vs. State of M.P. 9 their Lordships of the Supreme Court reiterated the law on the point stating that merely because motive is established, solely on that basis accused cannot be convicted that too for an offence under Section 302 of IPC. We hereby hold accordingly. (18) In view of the aforesaid discussion, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 10 , in absence of which, the appellant is entitled to get benefit of doubt. The learned trial Court is unjustified in convicting the appellant for offence under Section 302 of IPC in light of the aforesaid incriminating circumstances as discussed hereinabove. Accordingly, the conviction and sentence of the appellant for offence punishable under Section 302 of IPC imposed upon him by the learned trial 7 (2000) 1 SCC 272 8 (2012) 4 SCC 124 9 (2022) 7 SCC 157 10 (1984) 4 SCC 116 Page No.12 of 12 IN CRA-912-2017 Court is hereby set aside. He is acquitted of the said charge on the basis of benefit of doubt. 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 CrPC. (19) Consequently, this criminal appeal is allowed to the extent indicated herein-above. (20) 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) (Sachin Singh Rajput) Judge Judge s@if