1 2026:CGHC:6451-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 242 of 2016 Dadan Ojha, S/o. Parasnath Ojha, Aged About 50 Years, R/o. Village Balouna Kharouni, P.S. Bichiya, District Revenue & Civil- Bhojpur Aara, Bihar. At Present R/o. Rameshwer Nagar, Bhanpuri, In The House Of Sushila Naidu, P.S. Khamtarie, District Civil & Revenue- Raipur, Chhattisgarh. --- Appellant versus State Of Chhattisgarh, Through District Magistrate, Raipur Chhattisgarh. --- Respondent For Appellant : Mr. Yogesh Pandey, Advocate For Respondent : Mr. Amit Buxy, Dy. Govt. Advocate & CRA No. 92 of 2016 Makhan Singh Markam, S/o. Moti Lal Markam, Aged About 22 Years, R/o. Magarbada, Police Station Taregaon Jangal, Revenue ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2026.02.05 16:16:57 +0530 2 & Civil District Kabirdham, Chhattisgarh. At Present R/o. Urkura, House Of Batelu Sahu, Mathpara, Police Station Khamtarai, District Raipur Chhattisgarh. --- Appellant Versus State Of Chhattisgarh, Through Police Station Khamtarai, District Raipur, Chhattisgarh. --- Respondent For Appellant : None appeared For Respondent : Mr. Amit Buxy, Dy. Govt. Advocate. (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board (05.02.2026) Sanjay K. Agrawal, J. 1. Dadan Ojha (A-1) has preferred Criminal Appeal No. 242/ 2016 and Makhan Singh Markam (A-2) has preferred Criminal Appeal No.92/2016. Since common question of law and facts are involved in both the appeals and have been arisen from one Sessions Trial No. 242/2014, they have been clubbed together, heard together and are being disposed of by this common judgment. 3 2. Both the appeals filed under Section 374(2) of Cr.P.C. are directed against the impugned judgment of conviction and order of sentence dated 07.01.2016 passed by learned Fourth Additional Sessions Judge, Raipur in Sessions Trial No.242/2014, by which, the two appellants herein have been convicted and sentenced as under : CONVICTION SENTENCE U/s. 302 of IPC. (Only for A-1) : Life imprisonment and fine of Rs. 500/- in default of payment of fine, additional simple imprisonment for one month. U/s. 201/34 of IPC (For Both A-1 & A-2) : Rigorous imprisonment for 7 years and fine of Rs.500/-, in default of payment of fine, additional simple imprisonment for one month. Both the sentence to run concurrently for A-1 3. Case of the prosecution, in short, is that on 20.08.2014 at night in between 09:25 to 12:00 P.M. at village Urkura, Police Staiton- Khamtarai, District Raipur, the appellant A-1 4 stragulatged Dilip Tiwari (now deceased) and caused his death and in order to screen himself from the offence with the help of appellant A-2 thrown the dead body into the water tank. Thereby, they have committed the aforesaid offences. The matter was reported to the police, pursuant to which, Dehati Merg Intimation was registered vide Ex.P-17, FIR was registered vide Ex.P-18, Inquest was conducted vide Ex.P-2 and dead body of deceased Dilip Tiwari was subjected to post-mortem, which was conducted by Dr. S.K.Bagh (PW- 14), who proved the post-mortem report vide Ex.P-11, according to which, cause of death was stated to be asphyxia as a result of manual strangulation; injuries are antemortem in nature and sufficient to cause death in ordinary course of nature and death was homicidal in nature. Pursuant to memorandum statement of the appellant (A-2), one mobile phone was seized vide Ex.P-6. After due investigation, the appellants were charge-sheeted for the aforesaid offences to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated. 5 4. In order to bring home the offences, prosecution examined as many as 15 witnesses and exhibited 20 documents and the accused/ appellants in support of their defence have not examined any witness but have exhibited the documents Ex.D-1 & Ex.D-2. 5. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants herein for the aforesaid offences as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 6. Mr. Yogesh Pandey, learned counsel appearing for the appellant Dadan Ojha (A-1) would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt, therefore, the appellants are entitled for acquittal and the appeal deserves to be allowed. 7. None appeared on behalf of the appellant Makhan Singh Markam (A-2) to argue. 8. Mr. Amit Buxy, learned State counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the 6 appellants herein, therefore, the appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 10. The first question for consideration as to whether the death of deceased Dilip Tiwari was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-11) proved by Dr. S.K.Bagh (PW- 14), according to which, cause of death was stated to be asphyxia as a result of manual strangulation; injuries are antemortem in nature and sufficient to cause death in ordinary course of nature and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 11. The case of the prosecution is not based on direct evidence, it is based on : (i) theory of last seen together, (ii) memorandum statement of the appellants and, (iii) statement of Investigating Officer- R.P. Soni (PW-15). 7 12. In order to consider the correctness of the findings so recorded by the trial Court, we will consider the aforesaid incriminating circumstances one by one. (i) Last seen together : - The trial Court has only recorded a finding that the two appellants and deceased all were working in the same factory and on the date of offence i.e. 20.08.2014 all three were in the night duty. It is not the case of the prosecution that before the incident all three were seen together at any particular place or time by any witness and Ajay Kumar Pandey (PW-1), Shripal Tiwari (PW-2), Satyendra Dubey (PW-3) and Krishna Pratap Tiwari (PW-4) have only stated that both appellants and deceased were working as Security Guard in Sharda Energy Factory. As such, it cannot be considered as an incrimimating circumstance to convict the appellants. (ii) Memorandum statement of the appellants :- Exccept the mobile phone from A-2, nothing has been seized from the appellants. The trial Court has relied upon the memorandum statement of the appellants that A-1 has caught hold of the deceased and strangulated him by which he died and the memorandum statement recorded vide Ex.P-5 has been taken into account. In this regard, the Supreme Court in the 8 matter of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka1 has clearly held that the confessional part of the memorandum staetment is inadmissible in evidence and observed in para 61 as under : 61. The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the investigating officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence as laid down by this Court in State of U.P. v. Deoman Upadhyaya [1960 SCC OnLine SC 8 : AIR 1960 SC 1125] . As such, the trial Court has erred in relying upon the confessional part of memorandum statement of the appellant A-1, in which he has confessed that he had strangulated the deceased. (iii) Statement of Investigating Officer :- The next piece of evidence is that I.O. has proved the memorandum and also the incident, which cannot be relied upon in view of the decision of the Supreme Court in the matter of Renuka Prasad v. State Represented by Assistant Superintendent of Police 2 wherein it has clearly been held that on the basis of 1 (2024) 8 SCC 149 2 2025 SCC OnLine SC 1074 9 statement of the I.O., conviction cannot be recorded and observed in paragraphs 26 & 46 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. 46. We cannot but observe that the judgment of the High Court reversing the order of acquittal of the Trial Court proceeds on mere surmises and conjectures relying wholly on the testimony of the Investigating Officers, who merely regurgitated the 10 statements recorded under Section 161 and the voluntary statements of the accused. As has been rightly pointed out in Ramesh v. State of Haryana3 when the statements recorded under Section 161 of the Code of Criminal Procedure is resiled from, there arises a possibility that the police coerced such statements, but considering the huge prevalence of such instances, as in the present case, of the entire witnesses turning hostile, there could be various other factors also. It could be for fear of deposing against the accused, political pressure, pressure from family or society and even instances of monetary consideration. We do not think that the High Court could have relied on the decision to hold that the reason for the enblock hostility of witnesses at trial, could only be due to the influence wielded by the accused who had even persuaded the wife of the deceased to turn hostile; which reasoning is presumptuous and fallacious.” 13. In view of the above, neither the theory of last seen together has been found proved, nor the confessional part of memorandum statement of the two appellants is admissible in evidence and conviction cannot be made basis on the basis of the statement of I.O. (PW-15). As such, the prosecution has failed to bring home the offence beyond reasonable doubt, therefore, both the appellants are entitled for acquittal on the basis of benefit of doubt. 14. In view of the above, the impugned judgment of conviction and order of sentence dated 07.01.2016 is set aside. 3 (2017) 1 SCC 529 11 Accordingly, both the criminal appeals are allowed. The appellants (A-1 & A-2) stand acquitted giving them benefit of doubt from the charge framed against them for the offence under Sections 302 & 201/34 of I.P.C. The appellants are already on bail, they need not surrender; however, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 15. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Arvind Kumar Verma) Judge Judge Ashok