1 2025:CGHC:18538-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.247 of 2018 {Arising out of Judgment & Order dated 10.01.2018 passed by Sessions Judge, Jagdalpur, District Bastar in Sessions Trial No.51/2017} 1 - Samdhar Mandavi, S/o. Manglu Mandavi, Aged about 40 years, R/o. Village- Pichchikoder Kariyakonta Para, Thana- Mardum, District- Bastar, Chhattisgarh. 2 - Neeldhar Mandavi, S/o. Manglu Mandavi, Aged About 30 Years, R/o. Village- Pichchikoder Patel Para, Thana- Mardum, District- Bastar, Chhattisgarh. ... Appellants versus State Of Chhattisgarh Through - Police Station - Mardum, District - Bastar, Chhattisgarh. ... Respondent For Appellants : Shri Samir Singh, Advocate. For Respondent/State : Shri Pankaj Singh, Panel Lawyer. Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Deepak Kumar Tiwari, JJ. Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.05.01 14:18:38 +0530 2 Judgment On Board (24.04.2025) Sanjay K Agrawal, J 1. This Criminal Appeal preferred by the accused/Appellants under Section 374(2) of Cr.P.C is directed against the impugned judgment of conviction and order of sentence dated 10.01.2018 passed by the learned Sessions Judge, Jagdalpur, District Bastar (CG) in Sessions Trial No.51/2017, whereby they have been convicted for the offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo life imprisonment with a fine of Rs.1000/- each, in default of payment of fine amount, additional rigorous imprisonment for 6 months. However, they have been acquitted of the charge under Sections 4 & 5 of Chhattisgarh Tonhi Pratadna Adhiniyam. 2. The case of the prosecution, in brief, is that, on the date of incident i.e. 05.04.2017, deceased Ramlu Ram Mandavi went to the house of one Kumar Ram Kashyap to attend ‘Chhatthi’ programme, where the Appellants were also present. It is alleged that while having food, the Appellants started blaming deceased Ramlu Ram Mandavi of practicing witchcraft on their family due to which, they have suffered a lot, because of which, a dispute arose on which, Kumar Ram Mandavi intervened and tried to settle the said dispute. Thereafter, while deceased Ramlu Ram Mandavi was 3 returning to his house, en route, both the Appellants have assaulted him with an axe, committed his murder and fled away from the spot and thereby committed an offence under Section 302 IPC. Merg intimation (Ex.P-13) was registered by Prakash Shukla (PW-5). After giving notice (Ex.P-1), inquest was conducted and inquest report (Ex.P-2) was prepared. Spot map (Ex.P-11) was prepared. The postmortem on the dead body of the deceased was conducted by Dr. NS Nag (PW-6) who gave the postmortem report vide Ex.P-21 and opined that cause of death was due to excessive bleeding due to head injury and the death was homicidal in nature. 3. After completion of the inquest proceeding and upon receipt of postmortem report (Ex.P-21), FIR against the Appellants was registered on 07.04.2017 vide Ex.P-12. Identification Panchnama of the dead body was prepared vide Ex.P-11A. During investigation, memorandum statement of the accused/Appellant No.2-Neeldhar Mandavi was recorded vide Ex.P-3 in pursuance of which, the axe stained with blood was recovered vide Ex.P-4. 4. Upon completion of the investigation, charge sheet was filed before the concerned Magistrate from where the case, being triable by the Sessions Court, was committed to the trial Court where the charges were framed against the Appellants under Sections 302/34 of IPC as also under Sections 4 & 5 of Chhattisgarh Tonhi Pratadna Adhiniyam. The charges were read over and explained to 4 the Appellants, who abjured their guilt, took a plea of false implication and entreated for trial. 5. In order to bring home the charges, the prosecution has examined as many as 14 witnesses and exhibited 26 documents. Statements of the Appellants were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the prosecution evidence and pleaded innocence and false implication. However, in defence, neither any witness has been examined nor any document has been relied upon. 6. After conclusion of trial, the trial Court by the impugned judgment, on appreciation of evidence available on record, convicted and sentenced the Appellants as mentioned in para-1 of this judgment, which led to filing of present Appeal by the Appellants. 7. Learned counsel for the Appellants submits that both the eye- witnesses namely Jamlu Ram (PW-9) and Smt Rupati (PW-10) have not supported the case of the prosecution and turned hostile. He further submits that only on the basis of extra judicial confession made by the Appellants before Mayalu Ram (PW-1), the Appellants have been convicted and furthermore, recovery of axe from Appellant No.2-Neeldhar Mandavi has also been relied upon, however, the FSL report was not produced by the 5 prosecution. As such, the Appellants are entitled for acquittal by extending them benefit of doubt and the Appeal deserves to be allowed accordingly. 8. Per contra, learned State Counsel has supported the impugned judgment and order and submitted that the prosecution has been able to bring home the charges beyond reasonable doubt and the trial Court has rightly convicted the Appellant for the offence in question on the basis of evidence available on record. The contentions raised by learned Counsel for the Appellants as such deserve to be rejected and the Appellants are not entitled for acquittal on the basis of benefit of doubt and their Appeal is liable to be dismissed out-rightly. 9. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 10. The first and foremost question, as to whether the death of deceased Ramlu Ram Mandavi was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. N.S. Nag (PW-6), who has conducted the post- mortem of deceased and also proved the post-mortem report (Ex.P-21) in which cause of death was opined due to excessive bleeding out of the head injury to be homicidal, which, in our 6 considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court, holding that the death of deceased was homicidal in nature. 11. The case of the prosecution is not based on direct evidence as both the eye-witnesses namely Jamlu Ram (PW-9) and Smt Rupati (PW-10) have not supported the case of the prosecution. The present case is based on extra judicial confession made by the Appellants before Mayalu Ram (PW-1) and further there is recovery of the weapon i.e. axe at the instance of Appellant No.2- Neeldhar Mandavi. 12. We shall consider the aforesaid incriminating circumstances found proved by the trial Court one by one to find out whether the learned trial Court is justified in convicting the Appellants for the offence under Section 302 IPC. Extra judicial confession made by the Appellants before PW-1 13. The case of the prosecution is that the Appellants have made extra judicial confession before Mayalu Ram (PW-1) on the date of offence stating that the deceased used to perform witchcraft on their family, therefore, they have committed his murder. 7 14. 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 as has been held in the matter of Sahadevan and Another v. State of Tamil Nadu 1 . 15. In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered their earlier decisions including Balwinder Singh v. State of Punjab 2 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 1 (2012) 6 SCC 403 2 1995 Supp (4) SCC 259 8 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.3 and Pancho v. State of Haryana4.) *** *** *** 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 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.” 3 (2011) 11 SCC 754 4 (2011) 10 SCC 165 9 16. The principle of law laid down in Sahadevan (supra) has further been followed with approval by the Supreme Court very recently in the matter of Pawan Kumar Chourasia vs. State of Bihar 5 wherein the following principles of law have been laid down:- “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 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. ” 17. In view of the aforesaid principle, it is apparent that extra judicial confession should be made voluntarily and the same should not suffer from any material discrepancy and inherent improbabilities. 5 (2023) 18 SCC 414 10 18. Reverting to the facts of the present case, in the light of the principles laid down by Their Lordships of the Supreme Court in the aforesaid cases, it is quite vivid that the Appellants have made extra-judicial confession before Mayalu Ram (PW-1) whereas, this witness (PW-1) has clearly deposed in his cross-examination that after the incident and before reporting the matter to the police, he did not meet the Appellants nor any conversation took place between them and he has been declared hostile, therefore, the trial Court has wrongly relied upon extra judicial confession for basing conviction against the Appellants, as such, alleged extra judicial confession is of no use to the prosecution. Recovery of axe at the instance of Appellant No.2. 19. In the present case, in pursuance of the memorandum statement (Ex.P-3) given by Appellant No.2-Neeldhar Mandavi, one axe stained with blood was recovered from his house. Apart from this, one half shirt stained with blood was also seized from him and one full shirt was seized from Appellant No.1-Samdhar Mandavi (Ex.P-6). The seized articles were sent to the Forensic Science Laboratory, Jagdalpur for examination vide Ex.P-20, however, report to this effect is not available on record. In the absence of the said report, it would not be safe to base conviction against the Appellants on the basis of recovery of axe (weapon of the offence). 11 Furthermore, it is well settled law that the disclosure alone would not automatically lead to conclusion that offence was also committed by the accused and therefore, the burden lies on prosecution to establish a close link between the discovery of material object and its use in commission of offence. In this regard, their Lordships of the Supreme Court in the matter of Mustkeem alias Sirajudeen v State of Rajasthan 6 have held in paragraphs No.25 to 27 which states as under:- “25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.” 26. If the recovery memos were prepared at the police station itself then the same would lose their sanctity as held by this Court in Varun Chaudhary v. State of Rajasthan7. 27. The scope and ambit of Section 27 were also illuminatingly stated in Pulukuri Kotayya v. King Emperor8 reproduced hereinbelow: (IA p. 77). “… it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered 6 (2011) 11 SCC 724 7 (2011) 12 SCC 545 8 (1946-47) 74 IA 65 : AIR 1947 PC 67 12 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 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.” 20. In that view of the matter, we are of the considered opinion that the prosecution has not been able to prove the charges against the Appellants beyond reasonable doubt. As far recovery of axe at the instance of Appellant No.2-Neeldhar Mandavi is concerned, as per section 27 of the Evidence Act, such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the said Act is the information leading to discovery and not any opinion formed on it by the prosecution. It is well settled that suspicion, however, great it may 13 be, cannot take the place of legal proof. A moral conviction however, strong or genuine cannot amount to a legal conviction supportable in law (see: Sharad Birdhichand Sarda vs. State of Maharashtra 9 . 21. In view of the foregoing discussion and findings, we allow this Criminal Appeal. Consequently, the conviction and sentence imposed upon the Appellants under Section 302/34 IPC is set- aside and they are acquitted of the said charges extending them the benefit of doubt. The Appellants are on bail. They need not surrender. The bail bonds furnished by the Appellants shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. 22. Let a certified copy of this judgment along with original record be transmitted forthwith to the trial Court. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Priya 9 (1984) 4 SCC 116