1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 336 of 2019 Judgment Reserved on 01.07.2025 Judgment Delivered on 08.07.2025 1 - Khilawan Sahu S/o Latkhor Sahu Aged About 36 Years R/o Village Medha Navagaon, Police Station Dongargarh, District - Rajnandgaon Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through Police Station Dongargarh, District - Rajnandgaon Chhattisgarh. ... Respondent For Appellant : Mr. Priyank Rathi, Advocate For Respondent/State : Mr. Devesh G. Kela, P.L. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. C A V Judgment Per, Amitendra Kishore Prasad, J. 1. In this appeal filed under Section 374(2) Cr.P.C., the appellant has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 18.01.2019 passed by the Additional Judge, Dongargarh to the Court of First Additional VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 Sessions Judge, District Rajnandgaon, C.G., in Sessions Trial No. No.08/2018, whereby and whereunder the appellant stands convicted for the offence under Section 302 of Indian Penal Code (in short, ‘IPC’) and he has been sentenced as under:- Conviction Sentence Under Section 302 of Indian Penal Code Imprisonment for life and fine of Rs.100/- and in default of payment of fine amount to undergo additional R.I. for one year. 2. Case of the prosecution, in brief, is that on 28.03.2018 at about 2:30 pm, at village Medha Navagaon, Police Station Dongargarh, District Rajnandgaon, C.G., the appellant assaulted his father (hereinafter called as 'deceased') with axe, as a result of which, he sustained grievous injuries over his body and died and thereby committed the aforesaid offence. The incident was reported to the police by PW-2 Mehtar Ram Borkar, the Kotwar of the village, who has stated that the appellant came to his house and informed him that he has killed his father (deceased) by assaulting him with axe. Thereafter, he along with two villagers namely PW-5 Madan Devangan and PW-9 Dinesh Devangan went to the house of the deceased and found the deceased lying unconscious on a cot and blood was oozing from his face. It is further alleged that the appellant made an extra-judicial confession before the said witnesses that he has committed murder of deceased. Pursuant to 3 this, merg intimation Ex.P-29 was recorded, FIR Ex.P-30 was registered against the appellant and spot map was prepared vide Ex.P-6. Inquest proceedings were conducted vide Ex.P-5 and the dead body of deceased was sent for postmortem examination which was conducted by PW-13 Dr. R. Sirmour, who has proved the postmortem report Ex.P-16. According to postmortem report, cause of death of deceased was due to head injury and the injury mark was present on the left side of the face and mode of death was homicidal in nature. Memorandum statement of the appellant was recorded vide Ex.P/09, pursuant to which, axe was seized vide Ex. P-11. From the spot, plain and blood stained soil were seized vide Ex.P-10. Vide Ex.P-12 clothes of the appellant were seized. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.P-20), human blood of group ‘O’ has been found on the articles ‘A- axe, B- shirt and C- full pant’. 3. After due investigation, the police filed charge-sheet against the appellant before the concerned jurisdictional Criminal Court 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 19 witnesses and exhibited 35 documents and Articles A-1 & A-2, whereas the appellant- accused in support of his defence has not examined any defence witness, but exhibited one document Ex.D- 4 01. Statement of the appellant was recorded under Section 313 of Cr.P.C., in which he denied circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 5. The learned trial Court, after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. 6. Learned counsel for the appellant would submit that the trial Court has erred in convicting the appellant for the offence in question. He contends that the conviction is based solely on circumstantial evidence, including an alleged extra-judicial confession, memorandum and seizure of axe and the recovery of blood-stained clothes, all of which were confirmed in the FSL report, however, none of these circumstances have been proved in accordance with law by the prosecution and the chain of circumstances remains incomplete. He would further submit that although appellant is said to have made extra-judicial confession before PW-2 Mehattar Ram Borkar and PW-5 Madan Devangan, but is a very weak piece of evidence and has also not been proved by the prosecution beyond reasonable doubt. He would also submit that the recovery of the axe does not conclusively link the appellant to the offence in question. Therefore, it is prayed 5 that appeal be allowed and the appellant be acquitted of the charge leveled against him. He has also relied upon the judgments passed by this Court in the matters of Raja Naykar vs. State of Chhattisgarh (2024) 3 SCC 481, Thakore Umedsing Nathusing vs. State of Gujarat 2024 SCC OnLine SC 320, Debapriya Pal vs. State of West Bengal (2017) 11 SCC 31, Shantabai and others vs. State of Maharashtra (2008) 16 SCC 354, Kalicharan and others vs. State of Uttar Pradesh (2023) 2 SCC 583 & Dhananjay Shanker Shetty vs. State of Maharashtra (2002) 6 SCC 596. 7. On the other hand, learned State counsel would support the impugned judgment and submit that the prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence, therefore, the appellant has rightly been convicted for the offence in question and the instant appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection. 9. The first question for the consideration would be whether the death of deceased-Latkhor Sahu was homicidal in nature? 10. Learned trial Court has recorded an affirmative finding in this regard and held the death of deceased- Latkhor Sahu to be homicidal in nature relying upon the expert medical opinion of Dr. 6 R. Sirmour (PW-13) who has proved the postmortem report (Ex.P- 16) in which cause of death is said to be due to head injury and nature of death is said to be homicidal. Considering the statement of Dr. R. Sirmour (PW-13) as well as the postmortem report (Ex. P-16) and the grievous injury suffered by the deceased, we are of the considered opinion that the trial Court has rightly held the death of deceased- Latkhor Sahu to be homicidal in nature and we hereby affirm the said finding recorded by the trial Court. 11. Now, the question would be whether the appellant is guilty of the crime in question for which the trial Court has relied upon the circumstantial evidence by delving into the incriminating evidence which have been found to be proved by the trial Court resulting into conviction of the appellant. 12. First incriminating circumstance is that the appellant has made extra-judicial confession before Mehattar Ram Borker (PW-2), who is Kotwar and Madan Lal Dewangan (PW-5). PW-2 Mehattar Ram Borker, who is a Kotwar of the village, has clearly stated in his statement that on the date of incident, villagers told him that appellant has killed his father/deceased and thereafter, he informed about the incident to police over phone and he had not gone to the house of the deceased to verify the incident. He has further submitted that when police came to enquire about the incident, then family members of the deceased told that appellant has killed the deceased with axe. This apart, PW-5 Madanlal 7 Dewangan, has also stated that he came to know from village people that appellant has killed his father/deceased and after that, he went to the spot and saw the deceased lying dead and at that time, appellant, his wife and mother were present there and family members of deceased told him that appellant has killed his father/deceased with axe. He has also stated that on being enquired by police, appellant told that as the deceased was not giving him money to consume liquor and used to insult him in front of the family, therefore, out of anger, he has assaulted the deceased with axe. 13. It is a settled principle of criminal jurisprudence that extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. [See : Sahadevan vs. State of Tamil Nadu1 ] 1(2012) 6 SCC 403 8 14. In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered the 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 extrajudicial 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 extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.” 15.8. Extrajudicial 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 extrajudicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extrajudicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B.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 extrajudicial 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 21995 Supp (4) SCC 259 3(2011) 11 SCC 754 4(2011) 10 SCC 165 9 where the prosecution heavily relies upon an extrajudicial confession alleged to have been made by the accused : (i) The extrajudicial 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 extrajudicial 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 extrajudicial 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. 15. Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the aforesaid cases including Sahadevan (supra), it is quite vivid that in the instant case, the appellant is said to have made extra judicial confessions before PW-2 Mehattar Ram Borkar and PW-5 Madal Lal Dewangan, but in their statement, they have clearly stated that from the village people and the family members of appellant, they came to know that appellant has killed his father/deceased with axe and the appellant did not tell them anything, but the learned trial Court has relied upon the said extra-judicial confession. However, in our considered opinion, the alleged extra-judicial confession made by the 10 appellant cannot be said to be true and voluntary. Since the prosecution has miserably failed to prove the extra-judicial confession, we are unable to hold that it was true and voluntarily made by the appellant, as it is surrounded by suspicious circumstances and its credibility is doubtful. Therefore, we reject the testimony of PW-2 Mehattar Ram Borkar and PW-5 Madan Lal Dewangan, before whom appellant is said to have made the alleged extra-judicial confession. 16. The next circumstance that has been found proved by the trial Court against the appellant herein is the recovery of axe vide Ex. P/11, pursuant to his memorandum statement (Ex.P/09). Although as per FSL report, human blood of group ‘O’ has been found on the seized axe and clothes of the appellant, but there is no evidence on record to show that the said blood group is similar to that of the deceased. 17. The Hon’ble Supreme Court in the matter of Raja Naykar vs. State of Chhattisgarh (2024) 3 SCC 481 has held as under:- “It can thus be seen that, the only circumstance that may be of some assistance to the prosecution case is the recovery of dagger at the instance of the present appellant. However, as already stated hereinabove, the said recovery is also from an open place accessible to one and all. In any case, the blood found on the dagger does not match with the blood group of the deceased. 11 In Mustkeem v. State of Rajasthans, this Court held that sole circumstance of recovery of bloodstained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused. Thus, we find that only on the basis of sole circumstance of recovery of bloodstained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt.” 18. Also, the Hon’ble Supreme Court in the matter of Thakore Umedsing Nathusing vs. State of Gujarat 2024 SCC OnLine SC 320 has dealt with the recovery and blood stains not found to be that of the deceased and the relevant para reads as under:- “35. We have gone through the evidence of the concerned police officials associated with the recoveries and find their testimonies to be highly doubtful. The knife which was recovered at the instance of A3 was found from a nala which is a place open and accessible to all. The knife attributed to A4 was presented by one Shobhnaben wife of Kanji Chhara and thus it cannot be linked to A4. Thus, these recoveries in no manner can be treated to be incriminating in nature. In the case of Mustkeem alias Sirajudeen v. State of Rajasthan, reported in (2011) 11 SCC 724, this Court held that the solitary circumstance of recovery of blood-stained weapons cannot constitute such evidence which can be considered sufficient to convict an 12 accused for the charge of murder. We thus find the recoveries to be highly doubtful and tainted. Even if it is assumed for a moment that such recoveries were effected, the same did not lead to any conclusive circumstance in form of Serological report establishing the presence of the same blood group as that of the deceased and hence they do not further the cause of prosecution. In addition thereto, we find that the prosecution failed to lead the link evidence mandatorily required to establish the factum of safe keeping of the muddamal articles and hence, the recoveries became irrelevant.” 19. Likewise, in the matter of Debapriya Pal vs. State of West Bengal (2017) 11 SCC 31, the Hon’ble Supreme Court has held with the issue that even if blood stain was found, the blood group of accused or deceased was not ascertained. The relevant para reads as under:- “For the sake of argument, we are presuming that they were present at the time when the appellant brought bloodstained clothes from his house and gave the same to the police. What is material is the reliance on these bloodstained clothes for the culpability of the appellant herein. As per the prosecution, the blood group on these bloodstained clothes matched with the blood on the bedsheet on which the body of one of the deceased persons was found. The record reveals that though blood of both the deceased persons was drawn and sent for examination, it 13 is not known as to what was the report thereupon and what was the blood group of the deceased persons. No such blood report has been produced. So much so, blood group of the accused persons was also not ascertained. Even if we presume that the blood on the bedsheet was that of the deceased, the possibility cannot be ruled out that the same blood group as of the appellant-accused thereof. Therefore, mere matching of the blood group on the bloodstained clothes, which was even on the bedsheet, would not lead to the conclusion that it is the appellant who had committed the crime.” 20. Similarly, in the matter of Shantabai and others vs. State of Maharashtra (2008) 16 SCC 354, the Hon’ble Supreme Court has held as under:- “25. In support of the fifth circumstance, the prosecution has examined Dr. Hanumant, who performed post-mortem on the dead body of the deceased Gunwant on 15-8-1993. The doctor noticed as many as thirteen injuries on the body of the deceased as described in the post- mortem report (Ext. 41). According to the opinion of the doctor, the cause of death was because of shock due to cardio-respiratory failure caused by injury to brain and brain haemorrhage. The chemical analyser's report would reveal that ethyl alcohol was found in the viscera contents of the deceased. 14 26. We may point out that the investigating officer has not cared to collect the fingerprints appeared on the stones and axe, the alleged weapons of offence, at the time of seizure of the articles nor had he taken the fingerprints of the appellants for comparison with the fingerprints, if any, detected on the alleged weapons of offence. The articles collected by the investigating officer from the spot were found lying in the open place which was accessible to all and sundry. The prosecution has not led any evidence to prove that axe, which was the alleged weapon of offence, found on spot in the open place belonged to A- 1, A-2 and A-3. Thus, the prosecution has not established beyond reasonable doubt that A-1, A-2 and A-3 had used the recovered weapons of offence in the commission of the crime. 28. The chemical analyser's report (Ext. 72) reveals that human blood of Group 'B' was detected on the clothes, which were seized by the police, allegedly belonging to the appellants. The blood group on those clothes did not tally with the blood of Group 'O', which was found on the clothes of the deceased and on the sample of soil, axe, stones, handles, etc, which were taken from the spot by the investigating officer. The investigating officer has categorically stated that when he along with A-1 and panch witnesses had gone in search of the clothes of the appellants, the lock to the door of the house of the appellants was kept with the Police Patil which was opened by them 15 later on. In this view of the matter, the prosecution has not proved that d the clothes, which were allegedly seized by the police at the instance of A-1 and lying in the open place, were stained with Blood Group 'O' of the deceased found on the deceased's clothes and on the articles which were seized by the investigating officer from the place of occurrence. These circumstances are not proved by the prosecution by lending cogent, satisfactory and convincing evidence to hold A- 1, A-2 and A-3 guilty of the offence.” 21. Now, the last incriminating circumstance is that pursuant to the memorandum statement of the accused-appellant (Ex.P/09), so called weapon of assault i.e. axe used in the offence has been recovered from the courtyard of the house of the deceased vide Ex.P/11. 22. In the matter of Kalicharan and others vs. State of Uttar Pradesh (2023) 2 SCC 583, the Hon’ble Supreme Court has held as under:- 27. Questioning an accused under Section 313 CrPC is not an empty formality. The requirement of Section 313 CrPC is that the accused must be explained the circumstances appearing in the evidence against him so that accused can offer an explanation. After an accused is questioned under Section 313 CrPC, he is entitled to take a call on the question of examining defence witnesses and 16 leading other evidence. If the accused is not explained the important circumstances appearing against him in the evidence on which his conviction is sought to be based, the accused will not be in a position to explain the said circumstances brought on record against him. He will not be able to properly defend himself. 29. In para 145 of the well-known decision of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, it was held thus: (SCC p. 182, para 145) "145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration." (emphasis supplied) 23. Also, the Hon’ble Supreme Court in the matter of Dhananjay Shanker Shetty vs. State of Maharashtra (2002) 6 SCC 596 has held as under:- “9. Another circumstance which was alleged against the appellant was that bloodstained clothes and weapon were recovered from his house, but the trial court as well as the High Court did not place any reliance upon this 17 circumstance in view of the fact that according to the report of the chemical examiner, the blood group found thereon did not tally with that of the deceased.” 24. Upon perusal of the record, it is evident that although the prosecution has produced blood-stained clothes and a blood- stained axe allegedly recovered at the instance of the appellant, there is a complete absence of forensic evidence to establish that the blood found on these articles matches the blood group of the deceased. No serological or DNA report has been brought on record to establish such a linkage. The mere presence of blood stains, without proof that it is human blood belonging to the deceased, renders the recovery inconsequential. 25. The Hon’ble Supreme Court has consistently held that such failure materially affects the evidentiary value of the alleged recoveries. In Kansa Behera v. State of Orissa, (1987) 3 SCC 480, the Court held: “Unless the blood stains found on the clothes or weapons are proved to be that of the deceased, the discovery cannot be said to incriminate the accused beyond doubt.” 26. Similarly, in Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra, (2008) 3 SCC 210, it was observed: “In the absence of a serological report confirming that the blood on the clothes or weapon belonged to the deceased, the 18 recovery is of no substantial help to the prosecution.” 27. Again, in Vijay Shankar v. State of Chhattisgarh, (2022) 10 SCC 353, the Apex Court reiterated: “The prosecution’s failure to establish, through scientific evidence, that the blood found on the weapon or clothes matched that of the deceased creates a serious doubt about the veracity of the recovery and the guilt of the accused.” 28. The above authoritative pronouncements make it abundantly clear that mere recovery of blood-stained articles, without scientific corroboration, is insufficient to sustain a conviction, especially when the case is otherwise based on circumstantial evidence. It is a settled principle of criminal jurisprudence that the prosecution must establish the chain of circumstances with cogent and reliable evidence, particularly in cases based on circumstantial evidence, but in the present case, prosecution has failed to prove the same. 29. It is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 5 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under: “153. 5 (1984) 4 SCC 116 19 …. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (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) 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.” 20 30. In view of the above precedents, laws laid down by the Hon’ble Supreme Court, the facts of the case and the material available on record, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of the 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 (supra), in absence of which, appellant is entitled for acquittal on the basis of benefit of doubt. The learned trial Court is totally unjustified in convicting and sentencing appellant for the offences under Section 302 of IPC. Accordingly, the impugned judgment of conviction and order of sentence dated 18.01.2019 passed by the learned trial Court is liable to be set-aside. 31. Accordingly, the appeal is allowed. The appellant is acquitted of the charge under Section 302 IPC. Appellant is reported to be in jail, therefore, he shall be released forthwith unless wanted in any other case. 32. In compliance with Section 437-A Cr.P.C., the appellant is directed to furnish a personal bond of ₹25,000/- with two sureties of the like amount before the concerned court. The bond shall be effective for six months and include an undertaking that in case of filing a Special Leave Petition or grant of leave against this judgment, the appellant will appear before the Supreme Court upon receipt of notice. 21 33. Registry is directed to transmit the lower court record along with a copy of this judgment to the trial court forthwith for information and necessary compliance. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha