1 2025:CGHC:47438-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 345 of 2023 Gokul Kumar Sahu S/o Late Kishan Lal Sahu, aged about 34 years R/o Village Saunga, P.S. Magarlod, District Dhamtari Chhattisgarh ... Appellant versus State of Chhattisgarh, through the Police Station Nandini Nagar, District Durg Chhattisgarh ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Prateek Sharma, Advocate For Respondent/State : Mr. Sangharsh Pandey, Govt. Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 16 .0 9 .202 5 1. This criminal appeal under Section 374(2) of the CrPC is directed against the judgment of conviction and order of sentence dated 16.12.2022 passed by the Additional Sessions Judge, Durg, District – Durg (C.G.) in Sessions Case No.139/2019, whereby the learned trial Court has convicted the appellant for offence punishable under Sections 302 (two counts) and 201 of the IPC ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 and sentenced him to undergo imprisonment for life (till natural death) & fine of Rs.1,000 + 1000, in default of payment of fine additional R.I. for 06 + 06 months and R.I. for three years & fine of Rs.1,000/-, in default of payment of fine additional R.I. for 06 months respectively with a direction to run both the sentences concurrently. 2. Case of the prosecution, in brief, is that complainant Ajay Sahu, S/o late Kewal Sahu, resident of Baihar, Police Station Arang, District-Raipur lodged a report at Police Station Berla that his elder sister Neera Sahu and brother-in-law Vishnu Sahu lived in Sudama Nagar, Tikrapara, Raipur. On 29.05.2019 brother-in-law Vishnu Sahu's nephew Gokul alias Ganesh Sahu took his brother- in-law and sister with him to village Kara, Gokul Sahu returned to Raipur but his sister Neera Sahu and brother-in-law Vishnu Prasad Sahu did not return to Raipur. During investigation, on 02.06.2019, on receiving information about an unidentified dead body found in Police Station Nandninagar, District-Durg, they went to Police Station Nandninagar and found out that the body was of his brother-in-law Vishnu Prasad Sahu. When Nandininagar police station interrogated Gokul Sahu, he told the witnesses that he had killed Neera Sahu and Vishnu Prasad Sahu by strangulating and stabbing them with a knife and to destroy the evidence, he had put Vishnu Sahu's body in a plastic sack and threw it on the main road near Village Semriya and that the body of deceased Nira Sahu was filled in a yellow plastic bag and 3 thrown under the bridge of Lor River in Village Nevnara, on which the police of Nandininagar Police Station along with accused Gokul gone to Village Nevnara Lor River bridge and found body of Nira Sahu at the said place. 3. On the report of the compainant, FIR No. 0/2019 was registered at Berla Police Station, District-Bemetara under Section 174 CrPC and the proceedings of intimation of the case were conducted as per Ex.P-8. Thereafter, on 03.06.2019, the Panchas were summoned at the scene of the incident and notice of Section 175 of the Code of Criminal Procedure was given to them as per Ex.P-27, after which the map Panchayatnama was prepared in the presence of the Panchas as per Ex.P-11. During the proceedings, the site inspection of the scene of the incident, inspection of the dead body, opinion of the Panchas etc. were completed in the presence of the Panchas, after which the dead body was sent for postmortem. During the investigation, an application for postmortem of the dead body of the deceased Neera Sahu was filled and sent to CHC Berla. After the above proceedings, the site map of the scene of the incident where the dead body of the deceased Neera Sahu was found was prepared as per Exhibit P.12 in the presence of witnesses. Thereafter on 03.06.2019 a yellow colour plastic sack in which the dead body of deceased Neera Sahu was found, whose length was 54 cm. width was 36 cm, which was cut at two places, one white and black coloured ladies slipper with catechu coloured strap, one silver 4 anklet of deceased Neera Sahu with stones and bells attached, two silver toe rings of deceased Neera Sahu with stones attached and one silver ring, one golden coloured top made of gold like metal of deceased Neera Sahu and one golden coloured Phulli made of gold like metal were seized from the scene of incident in front of witnesses as per Ex.P-16. 4. After above action, on 05.06.2019 at 09:45 AM, when Constable 112 Raju Dhiwar brought from Mekahara, Raipur and presented it in front of two witnesses, the clothes worn by deceased Neera Sahu in a sealed packet, bangle worn by deceased Neera Sahu in another sealed packet, viscera, stomach and small intestine of deceased Neera Sahu in a sealed plastic box, kidney, liver, spleen of the deceased in a sealed plastic box and sample of salt solution in a sealed plastic box were seized. As the death diary of Murder Case 0/19 registered at Police Station Berla, District- Bemetara was related to Police Station Nandini Nagar, hence, on 11.06.2019, a memo (Ex.P-25) was sent to the Superintendent of Police, Bemetara to transfer the diary to the concerned police station for further investigation proceedings. 5. When the case was sent to Police Station Nandininagar, District- Durg for further investigation, the then posted Inspector Chetan Singh Sahu registered the inquest intimation Ex.P-02 in the case and prepared the scene map Ex.P-04 in the presence of witnesses. Thereafter, a light coloured plastic bag, a black coloured jeans pant, a pair of socks worn on both the legs of the 5 dead body, plain soil and blood stained soil from the scene were seized in front of witnesses as per seizure memo Ex.P-07. Thereafter, the body of the unknown person was sent to Government Hospital, Durg for examination. The Investigation Officer returned to the police station after conducting the inquest and the inquest investigation was done as per registration No. 33/2019 (Ex.P-38). During the investigation, on the basis of the body panchayatnama and inquest, FIR No. 160/2019 was lodged under Section 302, 201 Indian Penal Code vide Ex.P-39. 6. After the above action, the Investigation Officer got the body of the unknown male in the case identified in the presence witness Hemlal Sahu, Santram and the body identification sheet Ex.P-26 was prepared by the identifiers Tomnalal, Kirtan Sahu and Ramadhin. The identifier identified the body of the unknown man by looking at his physique as Vishnu Prasad Sahu, son of Pyarelal Sahu, resident of Songa, Police Station Magarlod, District Dhamtari. After the above action, on 02.06.2019, after the examination of the body, a sealed packet containing the vest and underwear of the deceased Vishnu Prasad Sahu and a sealed packet containing the ring, amulet and thread of Vishnu Prasad Sahu were seized from the Government Hospital, Durg on presentation by constable Upendra Tiwari in front of the witnesses as per the seizure sheet Ex.P-40. Thereafter, the accused Gokul Kumar Sahu was questioned. In this regard, first the witnesses Devnarayan Sahu and Ajay Sahu were given notice under Section 6 160 of the CrPC, after which memorandum statement of accused Gokul Kumar Sahu was record as per Ex.P-14 in their presence. 7. On the basis of memorandum statement of accused Gokul Kumar Sahu and on the indication of the accused, an unidentified body stuffed in a yellow sack was recovered near the bridge in Lor river near village Nevnara, both the legs of which were visible outside the sack and the body had been scratched by animals, was recovered, which the accused Gokul Sahu had said that of his elder mother Neera Sahu, wife of Vishnu Prasad Sahu. The said body was recovered and body recovery panchnama was prepared as per Ex.P-09. After recovery of the body, the body was identified in the presence of witnesses in front of the identifier. The identifiers Ajay Sahu, Devnarayan Sahu, Shivnarayan and Phag Ram, on the indication of accused Gokul Kumar Sahu, took out the body from the yellow colored sack and identified it by looking at the face and physique and the blouse worn, that the body was that of Neera Sahu, wife of Vishnu Prasad Sahu, age about-40-42 years, village Songa, police station Magarlod, District-Dhamtari, presently residing at Tikrapara Sudama Nagar, Raipur. The body identification form prepared after identification of the body is Ex.P-10. On 20.06.2019, upon presentation by accused Gokul Kumar Sahu, a red colour full-sleeved shirt bearing the label of Club Fox Company was seized from the side of Berla road in village Gugheli in front of witnesses as per seizure memo Ex.P21. 8. On 03.06.2019, Panchnama of the place of incident where the 7 dead body of deceased and deceased woman were lying in the field, at the pointing out of accused Gokul Kumar Sahu in presence of witnesses, where the accused had killed deceased Vishnu Sahu and Neera Sahu by strangulation and stabbing them in the car, which he was taken out of the car and kept hidden in the paddy field of Gurucharan Sahu resident of Kara, stuffed in a sack. In this regard, the Panchnama of the place of incident Ex.P-13 was prepared. From place of incident i.e. the field of Dhruvnarayan, plain soil, blood stained soil and ear tops, gold like metal from accused Gokul Sahu were seized in the presence of witnesses as per seizure memo Ex.P-22. After that, on the indication of accused Gokul Sahu, seat cover of Car No. CG 04/ KY / 7380 and burnt remains of blower vest of accused Gokul in which blood of deceased Vishnu Prasad Sahu and deceased Neera Sahu were present, were seized as per seizure memo Ex.P-20 from the byara of village Kara Gurunarayan in the presence of witnesses. Thereafter, on the same date, on the information given by accused Gokul Sahu, a nylon rope of length 53 inches and circumference 02 cm, one end of which had two knots and one end was burnt and stuck and the other end was cut, by which the accused had strangled deceased Vishnu Sahu and deceased Neera Sahu to death, was seized. One pair of shoes of deceased Vishnu Prasad, one Gamcha and one ladies sleeper, containing bloodstained on it, were seized and seizure memo Ex.P-19 was prepared in this regard. 8 9. During the investigation of the case, on 04.06.2019, when the accused presented it, a Redmi Note 5 mobile phone was seized in front of witnesses as per Ex.P-17. The accused Gokul Sahu and Motilal Sahu were arrested as per Ex.P-28 and 29 and information about their arrest were given through Ex.P-28A and 29A. Thereafter, on 05.06.2019, a cheque book of Bank of Baroda, whose account number and cheque book number are mentioned in the seizure memo, was seized in front of witnesses as per seizure memo Ex.P-42. During further investigation in the case, query Exs P-49, 50 and 51 were prepared and sent to Tehsildar, Raipur and Zone Commissioner Zone No.06, Bhatagaon, Municipal Corporation Raipur, Tehsildar, Magarlod, District- Dhamtari seeking information about the immovable property of deceased Vishnu Sahu. The Investigation Officer sent a memo (Ex.P-52) to the Branch Manager, Bank of Baroda, Santoshi Nagar, Raipur and information was sought regarding account number 57430200000259 and cheque book number 492015017:200259*29, in continuation of which information was sent by Tehsildar, Raipur as per Ex.P-50A and information was sent by Zone Commissioner, Zone Co. 06, Municipal Corporation Bhatgaon, Raipur as per Ex.P-53. After the above action by the Investigation Officer, on 25.07.2019, accused Gurunarayan Sahu was arrested as per arrest sheet Ex.P-54 and information was given to his family as per Ex.P-54A. Statements of witnesses Smt. Egeshwari, Neha Sahu, Sanjay Kumar Bandhe, Hemant Kumar, 9 Jageshwar Tandon, Ramkumar, Sanat Kumar Bandhe, Ajay Sahu, Devnarayan Sahu, Phagram, Rameshwar, Ramadhin, Dayaram, Kirtan, Santu alias Santosh Yadav, Smt. Bhuneshwari Sahu and constable Pankaj Pandey were recorded as per their statement and the property seized in the case was sent for chemical testing to Forensic Science Laboratory, Raipur through Superintendent of Police, from where the report was received as per Ex.P-55. 10. After completion of investigation, charge-sheet was filed against the accused under Section 302, 201 of the IPC in the Court of Judicial Magistrate First Class, Durg, from where the case sent to the Court of Sessions Judge, Durg on 11.09.2019, wherein criminal case was registered on 16.09.2019 as Criminal Case No. 139/2019 and ultimately, the case was received on transfer to the Court of Additional Sessions Judge, Durg on 17.09.2019 for trial. 11. When the charges, against the accused Gokul Kumar Sahu under Sections 302 (two counts), 201 and 120B of IPC, against accused Motilal Sahu under Section 201 and accused Gurunarayan Sahu under Section 120B read with Section 302/34, were framed and explained to them, they denied the allegations and wanted trial. 12. In order to bring home the above-stated offence, the prosecution examined as many as 19 witnesses and exhibited 63 documents Exs.P-1 to P-63A. In the trial, under Section 313 of the CrPC, though the accused had declared themselves innocent and stated that they have been falsely implicated, but hey did not give any 10 evidence in their defence. 13. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 16.12.2022, while acquitting the accused Motilal Sahu and accused Gurunarayan from the charges levelled against them, has convicted the accused/appellant – Gokul Kumar Sahu for offence under Sections 302, 201 of the IPC and sentenced him as mentioned in opening paragraph of this judgment, against which, this criminal appeal has been preferred by the accused/appellant. 14. Mr. Prateek Sharma, learned counsel for the appellant vehemently argued that there is no eyewitness of the incident and the case prosecution is based on the circumstantial evidence, but the learned trial Court has failed to consider that the chain of circumstance is not complete, which is a requirement under the law. The motive of the offence has also not been proved by the prosecution. He further argued that the learned trial Court has also failed to appreciate that the conviction cannot be based merely on the basis of memorandum statement and subsequent seizures, especially when the motive of the offence has not been proved and they are merely corroborative piece of evidence and cannot be the sole basis to convict the appellants. In this regard, reliance has been placed in the matter of Bijender Vs. State of Haryana, (2022) 1 SCC 92. It has been further submitted that the FSL report only states that human blood has been found, but the blood group of the same has not been determined, as such the 11 same cannot be made basis for conviction. In this regard, reliance has been placed in the case of Madhav Vs. State of M.P., 2021 SCC OnLine SC 613. He also argued that only the related family members are witnesses and no other independent witnesses were examined and every proceedings have been done by the family members, further memorandum statements of the accused were record and seizure were made in the police station. He would also submits that witness of last seen together Santu @ Santosh Yadav (PW-11) has also not supported the case of prosecution. As such, conviction without any evidence is unsustainable and liable to be set aside. 15. On the other hand, Mr. Sangharsh Pandey, learned Government Advocate, appearing for the State/respondent opposed the aforesaid submission and submitted that conviction of the appellant is based on direct as well as circumstantial evidence. The prosecution during investigation recorded the statements of the prosecution witnesses in which they have categorically deposed in their statements regarding conduct and commission of offence by the appellant, which is concurrent evidence against the appellant and thus, the learned trial Court has rightly convicted and sentenced the accused/appellant. Therefore, the instant appeal deserves to be dismissed. It has been further submitted that the learned trial Court has come to the conclusion regarding involvement of the accused / appellant in the crime in question under the concluding paras of the judgment in which the learned 12 trial Court has observed all incriminating circumstances against the accused / appellant, which connect him with the instant crime and chain of circumstances are fully linked and completed with each other. Thus, the prosecution has proved its case beyond reasonable doubt and the judgment of the trial Court is just and proper and does not call for any interference by this Court and as such, criminal appeal deserves to be dismissed. 16. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 17. Conviction of the accused-appellant is substantially based on the circumstantial evidence, recovery of knife and nylon rope at the instance of accused, recovery of ear tops of deceased Neera Sahu, seat cover of Car No. CG 04/ KY / 7380 and burnt remains of blower vest of accused Gokul in which blood of deceased Vishnu Prasad Sahu and deceased Neera Sahu were present and last seen theory as stated by PW-11 Santu @ Santosh Yadav. 18. The first question for consideration would be, whether death of deceased Vishnu Prasad Sahu and Neera Sahu were homicidal in nature ? 19. The trial Court, after appreciating oral and documentary evidence available on record particularly relying upon the statements of Dr. Dinesh Patel (PW-16), who had conducted postmortem over the dead body of the deceased Vishnu Prasad Sahu vide Ex.P-36 13 and Dr. Shivnarayan Manjhi (PW-19), who had conducted postmortem over the dead body of deceased Neera Sahu, has come to the conclusion that cause of death of the deceased were homicidal in nature. After hearing learned counsel for the parties and after considering the submissions advanced by learned counsel for the parties, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Vishnu Prasad Sahu and Neera Sahu were homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm the said finding. 20. The next question for consideration would be, whether recovery knife and nylon rope, ear tops of deceased Neera Sahu, seat cover of Car No. CG 04/ KY / 7380 and burnt remains of blower vest of accused at the instance of accused pursuant to memorandum statement of the accused is admissible and it can be used against him or not ? 21. In the present case, there is no direct evidence / eyewitness available on record. The trial Court has convicted the appellant on the basis of his memorandum statement followed by recovery of knife, nylon rope, ear tops of deceased Neera Sahu, seat cover of Car No. CG 04/ KY / 7380 and burnt remains of blower vest of accused Gokul, which have been proved in accordance with law. 22. Memorandum statement (Ex.P-14) of the accused/appellant has been proved by the Investigating Officer Chetan Singh Sahu 14 (PW-17) and on that basis, the appellant has been convicted. 23. A careful perusal of memorandum statement of the appellant (Ex.P-14) would show that it has been recorded by Investigating Officer Chetan Singh Sahu (PW-17) at Police Station Nandininagar, District – Durg in presence of two panch witnesses Ajay Sahu (PW-6) and Devnarayan Sahu (PW-10) in which the appellant was said to have stated as under : “My father had two brothers, the eldest being my elder father Vishnu Prasad Sahu, S/o Pyari Lal Sahu, aged about 55-60 years and my late father Kishan Lal Sahu were real brothers who came to Raipur about 30-35 years ago and used to work in a wire mesh factory. Gradually my elder father and my father bought land in Tikra Para, Sudama Nagar and set up a house and a wire mesh manufacturing factory. The land in Tikra Para is in the name of my elder father Vishnu Prasad Sahu and gradually both of them together bought land in Moti Nagar, in which they set up a house and a wire mesh manufacturing factory. The house and factory in Moti Nagar are in the name of my late father Kishan Lal Sahu. We are three brothers and one sister, all of us are married. My father passed away in the year 2015. My elder father Vishnu Prasad Sahu has no children. Vishnu Prasad's wife Shyam Bai Sahu died in the year 2018. About two to three months after the death of elder mother Shyam Bai, my elder father Vishnu Prasad expressed his wish to get married. But I and my family members refused to get married. Then my elder father got the house and factory divided. The land of Sudama Nagar Tikrapara and the wire mesh factory which is in the name of Krishna Wire went to my elder father Vishnu Prasad in the partition and our three brothers got the house and factory of Moti Nagar in the name of Ganesh Wire in the partition. After the partition, my elder father Vishnu Prasad Sahu married Neera Bai of village Baihar police station Arang district Raipur. We did not attend the marriage. After the marriage, my elder father Vishnu Prasad said that he will not run his partitioned factory and will give it on rent. I have taken Krishna Wire Mesh factory of my elder father Vishnu 15 Prasad situated in Sudama Nagar Tikrapara on rent for Rs. 25,000 per month. Since then I am running it and used to pay Rs. 25,000 per month as rent to my elder father. When the rent was calculated in April last month, I had to pay Rs. 50,000 as rent to him because I used to pay Rs. 5,000 per week. Due to this, Rs. 5,000 per month remained to be paid, due to which I became liable. My elder father also started saying that if I had given it on rent to someone else, I would have got more rent. He was planning to give it on rent to others. Due to this, a plan to murder my elder father Vishnu Prasad and elder mother Neera Bai Sahu and usurp their property came to my mind and on the evening of 28.05.2019, from my maternal uncle (ekek llwj) Hemlal Sahu resident of village Lakholi Sandi police station Arang district Raipur, brought his Swift car no. CG 04 KY 7380 in the name of domestic work and on 29.05.2019 I, my elder father Vishnu Prasad Sahu and elder mother Neeru gone to my in laws village Kara for the Chatthi program, hence I came to meet her and took her to Dham Kara. I took her to my father in law Guru Narayan Sahu's house at 3-4 pm to visit relatives. My younger brother in law Motilal Sahu of village Siola Rajnandgaon had also come earlier to get his wife Devshri Sahu treated. After having Mang in the evening, I gave paan to my elder father Vishnu Prasad Sahu at around 11 pm and I sat in the driving seat in the sweet car and my elder father Vishnu Prasad sat in the seat next to me. I said that the car is swaying on the road and parked the car near my in laws farm. I opened the rear seat door of the car and pulled the plastic rope which I had already kept around my elder father's neck while sitting in the car and strangulated him to death. After his death, I took the dead body inside the field along with the bar and left it at a distance. I wore shoes and black pants and red shirt. I got down the car and left the dead body, including the stomach, half filled in a plastic bag that I had already kept in the car trunk and went to my father in law's house to bring my elder mother Neera. I called my elder mother Neera from home saying that my elder father is talking to his friend in front of the house and let's go from there and take my elder mother home. By telling a lie, I made my elder mother Neera sit in the front seat of the car and took the car to the same field near my in laws' field where I had parked the first car. I got down and opened the door of the rear seat of the car and tried to kill my elder mother Neera by pulling her 16 throat forcefully while sitting in the car with the plastic rope that I had already kept. She tried to remove the rope by jerking and then I stabbed my elder mother Neera several times on her chest, stomach etc. with the steel knife that I had already kept. After Neera's death, I was going back to my father in law's house with the dead body in the car when I saw my brother in law Moti Lal walking in front of the house. He told me about killing both of them and asked me to help in putting both the dead bodies in the sack, but they refused after seeing the dead bodies. Then I went back to the same field and dragged the dead body of Badi Maa Neera in the field and again went to get brother in law Moti Lal with the empty car and came to the field with Moti Lal in the car and both of us together put the dead body of Badi Pitani Vishnu Prasad Sahu in the green coloured plastic sack that I had already kept and the body of Badi Maa Neera's uncle in the yellow coloured plastic sack and put both the dead bodies in the car. Then Moti Lal went home on foot. I alone, with the purpose of hiding both the bodies, rolled the hand of Badi Maa Neera Sahu from the car from the roadside in the Lor river near the first bridge of village Nevnara on Berla road and while going through Berla, I was throwing the dead body of elder father Vishnu Prasad Sahu along with the sack under the culvert near village Semaria, but the sack hit the wall of the culvert and fell down and I let go, at that time one foot fell down from the sack. When I came out, I stabbed him four times with the knife I was keeping, thinking that he was alive, and went to the village jail via Aktiyara Murmuda. I have stuffed the stomach of Vishnu Prasad along with the belt into the sack of the corpse and have thrown the blood stained blue t-shirt worn by me, his elder mother Neera's mangalsutra, Vishnu Prasad's I-card, income card and pen in the Kharun river Anicut near village Kara and have thrown the red shirt worn by Vishnu from the car itself on the side of the road while going and have thrown the knife while moving in the car on the side of the road near village Semaria Girhola and have thrown the two gifts given to my elder mother Neera at my in-laws' place and other stuff along with the palanquin near village Gucheli and after reaching Kara I woke up at around 8-9 am. The nylon rope kept in the car with which I was strangulated to death, both the shoes, gamchha and one slipper of my elder mother Neera Bai, which he had hidden in the house of my father in law Gurunarayan Sahu, and 17 had burnt the blood stained sheet cover of car, my lower and vest which had blood on them in the house. I have washed the blood stains on the car with water. I have removed the SIM card 8815242958 from the mobile phone of Vishnu Prasad's handset, broken it and thrown it in the pond in front of Bendri Barbaric Factory in the village. Come, I will go and recover it.” 24. At this stage, it would be appropriate to notice Section 27 of the Indian Evidence Act, 1872, which states as under: - “27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 25. Section 27 of the Indian Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered. 26. The Supreme Court in the matter of Asar Mohammad and others v. State of U.P.1 with reference to the word “fact” employed in Section 27 of the Evidence Act has held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the 1 AIR 2018 SC 5264 18 informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor2 observed as under: - “13. It is a settled legal position that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of Maharashtra reported in (2015) 1 SCC 253, in particular, paragraph 23 thereof. The same read thus: “23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor (supra) has held thus: (IA p. 77) “... it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to 2 AIR 1947 PC 67 19 past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. xxx xxx xxx xxx xxx xxx xxx xxx xxx” 27. Reverting to the facts of the case in light of the principles of law laid down by their Lordships of the Supreme Court in Asar Mohammad (supra), only discovery of an object, the place from which it is produced and knowledge of the accused as to this extent would be admissible and incriminating part of the accused statement that he has inflicted injuries to deceased would not be admissible under Section 27 of the Evidence Act. In the present case, no incriminating article has been seized pursuant to the memorandum statement of the appellant (Ex.P-14). As such, that 20 part of evidence would not be admissible. 28. The Supreme Court in the matter of Aghnoo Nagesia v. State of Bihar3 has clearly held that confession to police whether in course of investigation or otherwise and confession made while in police custody would be hit by Section 25 of the Evidence Act and observed as under:- “9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Ss. 24 to 30 of the Evidence Act and Ss. 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in Ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides : "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of S. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when 3 AIR 1966 SC 119 21 he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by S. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Ss. 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of S. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under S. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by S. 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under S.25 of the Evidence Act, and if it is made in 22 the course of an investigation, it is also protected by S. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.” Their Lordships further held as under:- “18. If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of S. 25 is lifted by S.27” 29. In the case in hand, confessional statement (Ex.P-14) made by the appellant before the police officer is hit by Section 25 of the Evidence Act and no part of it is admissible under Section 27 of the Evidence Act. As such, we are of the considered opinion that alleged memorandum statement of the appellant (Ex.P-14) is hit by Section 25 of the Evidence Act and no part of it is admissible under Section 27 of the Evidence Act in view of decisions 23 rendered by Privy Council in Pulukuri Kotayya (supra) followed by the the Supreme Court in Asar Mohammad (supra). Even otherwise, no other incriminating piece of evidence is available on record to convict the appellant for offence under Sections 302 (two counts) and 201 of the IPC. 30. Now the next question for consideration would be whether the trial Court is justified in convicting the appellant only on the basis of theory of 'last seen together' as stated by Santu @ Santosh Yadav (PW-11) and Devnarayan Sahu (PW-10), finding it to be duly established ? 31. The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 4 has clearly laid down the factors to be taken into account in adjudication of cases of circumstantial evidence, which states as under :- “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; 4 (1984) 4 SCC 116 24 (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 32. In the matter of Arjun Marik v. State of Bihar5, it has been held by their Lordships of the Supreme Court have held that conviction 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.” 33. Likewise in the matter of State of Goa v. Sanjay Thakran 6 the Supreme Court has held that the circumstance of last seen 5 1994 Supp (2) SCC 372 6 (2007) 3 SCC 755 25 together would be a relevant circumstance in a case where there was no possibility of any other persons 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 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 26 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 possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. ” 34. Similarly in the matter of Kanhaiya Lal v. State of Rajasthan 7 , 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 :- 7 (2014) 4 SCC 715 27 “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 Rajasthan8. 16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and 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.” 35. Finally in the matter of Anjan Kumar Sarma v. State of Assam 9 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. 8 (2010) 15 SCC 588 9 (2017) 14 SCC 359 28 36. Reverting to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court particularly in the matter of Anjan Kumar Sarma (supra), it is quite established that the prosecution has only proved that death of deceased Vishnu Prasad Sahu and Neera Sahu were homicidal in nature and that appellant- Gokul Sahu and both the deceased were lastly seen together and no other connecting links have been satisfactorily made out and no other incriminating circumstance which leads to the hypothesis of guilt against the appellant have been proved. The evidence of Santu @ Santosh Yadav (PW-11), with regard to last seen together was not admissible as he was turned hostile and has not supported the case of prosecution, whereas the another witness Devnarayan Sahu (PW-10) is the hearsay witness, the prosecution has failed to establish the chain of circumstantial evidence and as such, we are of the considered opinion that the trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 (two counts) and 201 of the IPC as it would be unsafe to rest conviction only on basis of memorandum statement made in police station without there being any incriminating circumstances against him. 37. As a fallout and consequence of the aforesaid legal analysis, the criminal appeal filed on behalf of appellant – Gokul Sahu is allowed. Impugned judgment of conviction and order of sentence dated 16.12.2022 passed by the Additional Sessions Judge, Durg, District – Durg (C.G.) in Sessions Case No.139/2019, convicting 29 and sentencing the appellant for offence under Sections 302 (two counts) and 201 of the IPC is hereby set aside. The accused /appellant is acquitted of the said charge levelled against him. He is in jail. He shall be set at liberty forthwith if no longer required in any other criminal case. 38. The appellant is directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973. 39. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra