Rath Ram Kurre Vs State of Chhattisgarh

¶1

1

¶2

2025:CGHC:41389-DB

¶3

Digitally signed by ANURADHA ANURADHA TIWARI TIWARI Date: 2025.08.19 15:17:23 +0530

¶4

NAFR

¶5

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶6

CRA No. 207 of 2024

¶7

Reshma Khunte W/o Bhupendra Khunte Aged About 27 Years Resident of Ward Number 7 Village Bhilai Police Station Baloda District - JanjgirChampa, Chhattisgarh.

¶8

--- Appellant

¶9

Versus

¶10

State of Chhattisgarh Through - Police Station Baloda District - JanjgirChampa, Chhattisgarh.

¶11

--- Respondent

¶12

CRA No. 436 of 2024

¶13

Rath Ram Kurre Son of Bisahu Ram Kurre Aged About 40 Years Resident of Village Korbi Dhatura Police Station Kushmunda District Korba

¶14

--- Appellant

¶15

Versus

¶16

State of Chhattisgarh Through Police Station Baloda Dist. Janjgir Champa, C.G.

¶17

--- Respondent

¶18

(Cause-title taken from Case Information System)

¶19

For Appellants : Mr. Raghvendra Pradhan, Advocate assisted by Mr. Arjit Tiwari, Advocates For Respondent/State : Mr. Shashank Thakur, Deputy Advocate General For Objector : Mr. Vivek Kumar Shrivastava, Advocate

¶20

2

¶21

Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble S hri Bibhu Datta Guru, Judge

¶22

Judgment on Board

¶23

Per Ramesh Sinha, Chief Justice

¶24

18.08.2025

¶25

1 . Since both the criminal appeals being CRA No.207/2024 and CRA No.436/2024 arise out of same crime, they have been clubbed together, heard together and being deided by this common judgment.

¶26

2 . CRA No.207/2024 has been filed by the accused Reshma Khunte and CRA No.436/2024 has been filed by the accused Rathram Kurre.

¶27

3 . These criminal appeals under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) are directed against the impugned judgment of conviction and order of sentence dated 22.11.2023 passed by learned First Additional Additional Sessions Judge, Janjgir, District – Janjgir-Champa (C.G.) in Sessions Trial No.47/2022, whereby the learned trial Court has convicted the appellants for the offence punishable under Sections 302 read with Section 34 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced to undergo rigorous imprisonment for life and fine of Rs.1,00,000/- each, in default of payment of fine amount, additional simple imprisonment for one year to each of them.

¶28

3

¶29

4 . The prosecution case, as unfolded during the investigation and trial, is that on 16.02.2022, complainant Bhim Prasad Dewangan reported to Police Station Baloda regarding the murder of his son, Rajesh Dewangan. It was stated that on 15.02.2022, at about 14:00 hours, his son had gone to Baloda on a motorcycle bearing registration No. CG-11AF-2082 for purchasing grocery items, but did not return till late evening. Consequently, the family started searching for him. On 16.02.2022, at about 6:00 A.M., the dead body of his son, Rajesh Dewangan, was found in the field of Lakhan Jangde at village Bhilai. The body bore injuries on the face, head, and neck, caused by a sharp-edged weapon, and was covered with paddy husk ( Paira ). On the basis of these facts, Merg intimation was recorded vide Ex.P/01 and First Information Report (Ex.P/04) was registered at Police Station Baloda under Sections 302 and 201 of the IPC against an unknown person.

¶30

5 . On registration of FIR, case was investigated, in which proceeding under Section 174 of Cr.P.C. were carried out and notice under Section 175 of Cr.P.C. was given to the witnesses vide Ex.P/02. Naksha panchayatnama was prepared vide Ex.P/03 and spot map was prepared vide Ex.P/05. Memorandum statements of the appellants were recorded vide Ex.P/11 and Ex.P/12, based upon which, one saree (Ex.P/13) and one mobile phone of Vivo company (Ex.P/14) were seized at the instance of accused Reshma Khunte and one axe (Ex.P/15) was seized at

¶31

4

¶32

the instance of accused Rathram Kurre. The dead body of the deceased was sent for postmortem examination, which was conducted by Dr. Ramayan Singh (PW-5) and according to postmortem report (Ex.P/09), the cause of death of deceased seems to be cardio respiratory arrest, hemorrhage and excess bleeding due to multiple injuries and the nature of death was homicidal. Call statements of mobile phones were seized with certificate under Section 65B(4)(c) of Indian Evidence Act vide Ex.P/21A. The seized properties were sent to the Regional Forensic Science Laboratory, Bilaspur for chemical examination and according to the FSL report (Ex.P/29(3), though the blood was found on the said articles, but the blood group was disintegrated. The appellants were arrested vide arrest memo Ex.P/17 and Ex.P/18, respectively.

¶33

6 . After completion of the investigation, the charge sheet under Section 173 of the Cr.P.C. was filed before learned Judicial Magistrate First Class, Akaltara for the offence punishable under Sections 302, 201 of IPC against the present accused persons and in view of the nature of the case, it was committed to the Court of Sessions and registered before the First Additional Sessions Judge, Janjgir, District Janjgir-Champa for hearing and disposal in accordance with law.

¶34

7 . When the charges were framed against accused persons under Sections 302, 201 of IPC, they denied crime and demanded trial.

¶35

5

¶36

8 . In support of its case, the prosecution has examined as may as 09 witnesses as PW-1 to PW-9 and exhibited 29 documents as Ex.P/01 to Ex.P/29(3) respectively, whereas in defence, appellants/accused have examined as many as 02 witnesses as DW-1 and DW-2 and exhibited three documents i.e. Ex.D/01 to Ex.D/03, respectively.

¶37

9 . When the accused were examined under Section 313 Cr.P.C., they denied having produced any witness in their defence, claiming that they were innocent and that they had been falsely implicated.

¶38

10. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 22.11.2023, convicted and sentenced the accused/appellants as mentioned in opening paragraph of this judgment, against which, these criminal appeals have been preferred by the accused/appellants under Section 374(2) of Cr.P.C.

¶39

11. Mr. Raghvendra Pradhan, learned counsel assisted by Mr. Arjit Tiwari, learned counsel for the appellants submits that the impugned judgment and sentence passed by the learned trial Court is bad both on facts as well as in law. It is urged that the conviction of the accused/appellants rests solely upon their memorandum statements and the alleged recovery of an axe at the instance of accused Rathram Kuree and a saree belonging to accused Reshma Khunte. It is contended that although the

¶40

6

¶41

prosecution has examined two alleged eyewitnesses to the incident, namely Jogendra Rathore (PW-2) and Lalji (PW-3), they surfaced only after a delay of two months from the date of occurrence, thereby rendering their testimonies unreliable. It is further submitted that the independent witnesses to the memorandum and seizure have not supported the prosecution case and have turned hostile, which demolishes the very foundation of the recovery proceedings. The prosecution, thus, has failed to prove an unbroken chain of circumstantial evidence so as to bring home the guilt of the appellants beyond reasonable doubt. Moreover, though bloodstains were said to have been found on the axe (Article ‘I’) and saree (Article ‘H’), in the absence of a serologist’s report, it cannot be conclusively held that the stains were of human origin or that they belonged to the deceased. In such circumstances, reliance placed by the trial Court upon these articles is wholly misplaced. Accordingly, in the absence of cogent and reliable evidence, the conviction of the appellants is unsustainable in law and deserves to be set aside.

¶42

12. On the other hand, Mr. Shashank Thakur, learned Deputy Advocate General appearing for the State supports the judgment and order of conviction passed by the learned trial Court. It is submitted that the trial Court has rightly appreciated the evidence brought on record and there is no infirmity in the findings recorded. It is urged that the memorandum statements of the

¶43

7

¶44

accused/appellants, duly recorded under Section 27 of the Evidence Act, have led to the recovery of incriminating articles, namely the axe (Article ‘I’) and saree (Article ‘H’), both of which were found stained with blood. The recovery of these articles at the instance of the accused persons are a highly incriminating circumstance, which has been correctly relied upon by the trial Court. It is contended that the contention of the appellants regarding the absence of a serologist’s report is of no avail, as the discovery of bloodstained articles itself constitutes a strong link in the chain of circumstances. Minor lapses in the investigation or absence of a report do not ipso facto render the entire prosecution case doubtful, when other circumstances consistently point towards the guilt of the accused. With regard to the testimony of eyewitnesses, it is submitted that the delay in their examination cannot be a sole ground to discard their version, particularly when their statements have been duly corroborated by other evidence on record. The credibility of a witness is to be judged on the basis of the substance of his testimony and not merely on the basis of delay. It is also submitted that the trial Court has recorded cogent reasons for placing reliance upon the prosecution evidence. The prosecution has successfully established the chain of circumstances leading to the conclusion that it was none other than the accused/appellants who committed the offence in question. Accordingly, the conviction recorded by the learned trial Court is

¶45

8

¶46

fully justified and does not warrant interference by this Court.

¶47

13. Mr. Vivek Kumar Shrivastava, learned counsel for the objector, while supporting the submissions of the learned State counsel, submits that the impugned judgment of conviction and sentence passed by the trial Court is based on proper appreciation of facts, evidence, and settled principles of law, and therefore calls for no interference. It is contended that the recovery of the axe (Article ‘I’) and saree (Article ‘H’) at the instance of the accused/appellants are a very strong incriminating circumstance. The presence of bloodstains on these articles further strengthens the prosecution case. Even in the absence of a serologist’s report, the evidentiary value of such recovery cannot be brushed aside, particularly when it stands corroborated by the chain of circumstances and the testimonies of the eyewitnesses. Learned counsel further submits that the defence has tried to create suspicion merely on the ground of delay in examination of eyewitnesses. However, it is well settled that delay by itself is not sufficient to discard their evidence, especially when the witnesses are otherwise found to be reliable and have been duly corroborated by surrounding circumstances. Minor contradictions or lapses in investigation cannot overshadow the overwhelming evidence pointing towards the guilt of the appellants. Therefore, he submits that the trial Court has rightly appreciated the evidence in its correct perspective and reached a just conclusion.

¶48

9

¶49

The judgment of conviction deserves to be upheld in the interest of justice.

¶50

14. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

¶51

15. Conviction of the accused-appellants is substantially based on memorandum statements of the appellants vide Ex.P/11 and Ex.P/12, based upon which, a saree and mobile phone were seized at the instance of accused Reshma Khunte and an axe was seized at the instance of accused Rathram Kurre vide Ex.P/13 to Ex.P/16.

¶52

16. The first question for consideration would be, whether death of deceased Rajesh Dewangan was homicidal in nature ?

¶53

17. The trial Court after appreciating oral as well as documentary evidence available on record, particularly, relying upon the statement of Dr. Ramayan Singh (PW-05), who conducted postmortem over the dead body of the deceased and given its report vide Ex.P/9, has opined that on examination, he has found following injuries over dead body:-

¶54

“i. Incised wound measuring 2.5cm x 2cm x 3 cm above right eye and orbit has come out.

¶55

ii. Incised wound measuring 2cm x 2 cm deep below right eye.

¶56

10

¶57

iii. Incised wound measuring 2cm x 2cm x3 cm on right side of face.

¶58

iv. Incised wound measuring 2.5cm x 2cm x2 cm on left side of face.

¶59

v. Incised wound measuring 2.5cm x 2cm x8 cm on left side of head, from which brain was visible.

¶60

vi. Incised wound measuring 2.5cm x 2cm x 8 cm on right side front portion of skull, from which some part of brain has come out and some part was visible.

¶61

vii. Incised wound measuring 4cm x 2cm x 1cm on low part of beard.

¶62

viii. Incised wound measuring 2cm x 2cm x 1cm on mid of throat.”

¶63

As per the postmortem report Ex.P/9, the cause of death was cardio respiratory arrest, hemorrhage and excess bleeding due to multiple injuries and the nature of his death was "homicidal".

¶64

18. 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 Rajesh Dewangan was 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 that finding.

¶65

11

¶66

19. The next question for consideration would be, whether recovery of incriminating articles on the basis of memorandum statements of the appellants vide Ex.P/11 and Ex.P/12 are admissible and it can be used against them or not ?

¶67

20. In the present case, it is an admitted position that there is no direct evidence against the appellants. The prosecution has, however, relied upon the statements of two eyewitnesses, namely, Jogendra Rathore (PW-2) and Lalji (PW-3). Significantly, these witnesses did not disclose the incident immediately, but came forward only after an unexplained delay of about two months from the date of occurrence. Such a long and unexplained delay in reporting naturally casts a serious doubt on the reliability of their testimonies. Despite the said fact, the learned trial Court proceeded to convict the appellants primarily on the basis of their memorandum statements recorded under Section 27 of the Evidence Act, which led to the alleged recovery of certain incriminating articles, and also on the basis of the depositions of the aforesaid eyewitnesses.

¶68

21. The conviction, thus, rests upon eyewitness account coupled with belated ocular testimony, which the defence has strongly challenged as unreliable and insufficient to bring home the guilt of the appellants beyond reasonable doubt.

¶69

22. Perusal of the statements of Jogendra Rathore (PW-2) and Lalji

¶70

12

¶71

(PW-3) reveals serious infirmities which go to the root of the prosecution case. Both witnesses have deposed that they saw the accused assaulting the deceased near a mobile tower on 15.02.2022. However, their versions are inconsistent as to the very route and destination. Jogendra Rathore (PW-2) has stated that they were coming towards Bhilai by a shortcut, whereas Lalji (PW-3) has stated that they were returning to Janjgir from Baloda. These contradictions make their presence at the place of occurrence highly doubtful.

¶72

23. Further, it is admitted by both witnesses that though they were acquainted with the deceased and his family, they neither informed any family member nor reported the incident at the police station which admittedly fell on their way. Their explanation that they were scared is not convincing, particularly when they were travelling on a motorcycle and the house of the deceased was merely 1 to 1.5 km away. More importantly, their statements under Section 161 Cr.P.C. were recorded after nearly two months of the incident, which casts a grave shadow on their credibility.

¶73

24. The learned trial court has also placed reliance on the proposition that persons may identify known individuals even from a distance of 110 yards or more. However, in the present case, the witnesses themselves have given contradictory versions about their exact position, and no clear evidence has been led to establish the actual distance from which they allegedly witnessed

¶74

13

¶75

the occurrence. In such circumstances, the benefit of doubt as to whether they could have clearly identified the assailants must go to the accused.

¶76

25. Thus, their unnatural conduct in remaining silent for a prolonged period, coupled with contradictions regarding their route and destination and uncertainty about their ability to identify the assailants from the alleged distance, renders their testimony unreliable. Accordingly, this Court finds that the evidence of Jogendra Rathore (PW-2) and Lalji (PW-3) does not inspire confidence and cannot be safely relied upon for sustaining the conviction of the appellants.

¶77

26. Furthermore, upon memorandum statements of the appellants vide Ex.P/11 and Ex.P/12, one saree (Ex.P/13) and one mobile phone of Vivo company (Ex.P/14) were seized at the instance of accused Reshma Khunte and one axe (Ex.P/15) was seized at the instance of accused Rathram Kurre and the said saree was marked as ‘article “H” and the axe was marked as ‘article “I”, in which though the blood was found, but in the absence of a serologist’s report, it cannot be conclusively held that the stains were of human origin or that they belonged to the deceased.

¶78

27. At this stage, it would be appropriate to notice Section 27 of the Indian Evidence Act, 1872, which states as under: -

¶79

“27. How much of information received from accused may be proved.— Provided

¶80

14

¶81

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.”

¶82

28. Section 27 of the Indian Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered.

¶83

29. 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 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: -

¶84

1 AIR 2018 SC 5264

¶85

2 AIR 1947 PC 67

¶86

15

¶87

“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:

¶88

“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)

¶89

“... 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 past user, or the past history, of the object produced is not related to its

¶90

16

¶91

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.

¶92

xxx	xxx	xxx
xxx	xxx	xxx
xxx	xxx	xxx”

¶93

30. 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 they had inflicted injuries to deceased Rajesh Dewangan would not be admissible under Section 27 of the Evidence Act.

¶94

17

¶95

31. 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:-

¶96

“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

¶97

3 AIR 1966 SC 119

¶98

18

¶99

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 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

¶100

19

¶101

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 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.”

¶102

Their Lordships further held as under:-

¶103

“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

¶104

20

¶105

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”

¶106

32. In the case in hand, confessional statements Ex.P/11 and Ex.P/12, respectively made by the appellants 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 statements of the appellants are 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 rendered by Privy Council in Pulukuri Kotayya (supra) followed by the the Supreme Court in Asar Mohammad (supra).

¶107

33. Having considered the entire evidence on record, including the memorandum statements (Ex.P/11 and Ex.P/12) of the appellants and other material placed by the prosecution, it is evident that the prosecution has failed to prove the case against the appellants beyond reasonable doubt.

¶108

34. The prosecution has placed reliance on the recovery of certain incriminating articles said to have been seized at the instance of the appellants pursuant to their memorandum statements. However, a careful scrutiny reveals that such recovery is not supported by any truly independent witness of the locality. The

¶109

21

¶110

witnesses to the seizure are either formal or interested in nature, and no independent villager has been examined to corroborate the alleged discovery. Further, the seized weapons have not been conclusively linked with the crime through scientific or forensic evidence such as blood grouping or fingerprint examination. In absence of such material corroboration, the alleged recovery cannot be held to be trustworthy, and it loses much of its evidentiary value.

¶111

35. The trial Court has found proved and which has also been made basis for conviction of the appellants is that saree (Ex.P/13) and axe (Ex.P/15) were recovered from the possession of the appellants, on which blood was found. True, it is that pursuant to memorandum statement of the appellant Reshma Khunte (Ex.P/11), saree was seized vide Ex.P/13 and pursuant to memorandum statement of appellant Rathram Kurre (Ex.P/12), axe was seized vide Ex.P/15, which were sent for chemical examination to the FSL vide Ex.P/29(1) and vide report Ex.P/29(3), it has been reported that in saree and axe, blood was found. It was not sent to the Serologist to connect the appellants that blood found in saree and axe was human blood and that of deceased Rajesh Dewangan.

¶112

36. At this stage, pertinent decision of the Supreme Court on this point in the matter of Balwan Singh v. State of Chhattisgarh and another⁴ may be noticed herein, in which the Supreme Court

¶113

4 (2019) 7 SCC 781

¶114

22

¶115

has summarized the law on this point after taking into the decision of the Supreme Court (Constitution Bench) in the matter of Raghav Prapanna Tripathi v. State of U.P.⁵ . In Raghav Prapanna Tripathi (supra), the Constitution Bench of the Supreme Court has held that in case the prosecution needed to prove that the bloodstains found on the earth or the weapons were of a human origin and were of the same blood group as that of the accused.

¶116

37. The aforesaid decision of the Supreme Court i.e. Raghav Prapanna Tripathi (supra) was followed in Balwan Singh (supra) in which it was observed as under:-

¶117

“23. From the aforementioned discussion, we

¶118

can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match.”

¶119

5 AIR 1963 SC 74

¶120

23

¶121

38. Thereafter, the Supreme Court in Balwan Singh (supra) relying upon the fact that the prosecution has failed to prove that the blood was of human origin declined to rely upon the aspect of recovery of the weapons from the accused therein. It was observed as under:-

¶122

“24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

¶123

39. Coming to the aspect of recovery, it is the case of the prosecution that an axe (Article ‘I’) and a saree (Article ‘H’) were seized at the instance of the appellants and both were found to be stained with blood. However, a perusal of the FSL report reveals that though the articles tested positive for the presence of blood, the serologist’s report categorically records that the origin and group of the blood could not be determined as the sample had disintegrated. In the absence of proof that the blood was of human origin and further that it matched with that of the deceased, such recovery

¶124

24

¶125

loses its probative value. The law is well settled that unless scientific examination conclusively connects the seized articles with the crime, recovery by itself cannot form the basis of conviction. Despite this, the trial Court erroneously treated the said circumstance as adverse to the appellants and relied upon it as incriminating evidence, which approach, in our considered opinion, is unsustainable.

¶126

40. The trial Court has further observed that since the deceased was found to have suffered lacerated wounds, which could have been caused by the seized weapon, an inference may be drawn that the appellants were the perpetrators. We are unable to agree with this reasoning. It is the duty of the prosecution to establish beyond reasonable doubt that the weapon recovered was not only capable of causing the injuries but was in fact used by the accused in the commission of the offence. The mere possibility that the injuries could have been caused by the appellants, without any substantive evidence such as eyewitness testimony, forensic corroboration, or other credible material, cannot be elevated to a proven circumstance. To hold otherwise would be to substitute conjecture for proof, which the criminal law does not permit. Unless the prosecution demonstrates with cogent evidence that the appellants were the authors of the injuries, the said circumstance cannot be treated as incriminating so as to warrant their conviction under Section 302 of IPC.

¶127

25

¶128

41. It is also pertinent to note that the prosecution relied upon the call detail records (CDRs) of the mobile phones of the accused, which were seized along with a certificate under Section 65B(4)(c) of the Indian Evidence Act. However, the said records do not disclose any location particulars so as to establish that the accused were present at the scene of occurrence at the relevant time. The evidence merely indicates that there were frequent telephonic conversations between accused Reshma Khunte and the mother of the deceased, Rajesh Dewangan, which by itself cannot be treated as incriminating in view of the admitted position that both were Mitanins by profession and used to interact regularly. In the absence of any corroborative location evidence from the CDRs, the alleged presence of the accused at the place of incident remains doubtful and cannot be relied upon to fasten criminal liability.

¶129

42. As regards motive, the prosecution has alleged that there were strained relations between the appellants and the deceased. However, the evidence on record only shows general suspicion or vague statements of past discord without any specific instance of quarrel or enmity proximate to the occurrence.

¶130

43. In the present case, no cogent and convincing proof of motive has been brought on record which could establish a strong reason for the appellants to commit such a grave crime. Thus, both the alleged recovery and the supposed motive stand on

¶131

26

¶132

weak footing. In absence of clear, cogent, and reliable proof on these aspects, the prosecution has failed to establish any incriminating circumstance against the appellants beyond reasonable doubt.

¶133

44. Considering the matter in its entirety, we are of of the firm view that the testimonies of Jogendra Rathore (PW-2) and Lalji (PW-3) are riddled with serious infirmities regarding their route and destination, unexplained silence despite proximity to the deceased’s house and the police station, and a delay of nearly two months in recording their statements under Section 161 of Cr.P.C as well as their claim of identification is further weakened by uncertainty about their position and distance from the occurrence. These inconsistencies and their unnatural conduct render their evidence unreliable. The alleged recovery of the axe and saree also fails to advance the prosecution case. Though the stains were of human blood, the blood group had disintegrated and, therefore, could not be connected to the deceased. In the absence of such nexus, the recovery loses all probative value. Likewise, the prosecution has not been able to establish any cogent motive. The mere fact that the mother of the deceased and accused Reshma Khunte were working as Mitanins and were in frequent communication cannot, by any stretch, be construed as a motive for the commission of such a grave offence. The evidence led on this aspect is wholly vague and lacking in

¶134

27

¶135

probative worth. In the absence of a clear and credible motive, coupled with the failure of the recovery to inspire confidence, the entire substratum of the prosecution case stands eroded.

¶136

45. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against both the accused/appellants and the appellants are entitled for benefit of doubt. Having regard to the totality of the material on record and on facts and circumstances of this case, it is not possible for this Court to agree with the concurrent conclusions reached by the trial Court.

¶137

46. In the result, the appeals being CRA No.207/2024 and CRA No.436/2024 are allowed . The impugned judgment of conviction and order of sentence dated 22.11.2023 is set aside. The appellants are acquitted from all the charges leveled against them.

¶138

47. It is stated that appellants- Reshma Khunte and Rathram Kurre are in jail. They be released forthwith, if not required in any other case.

¶139

48. Keeping in view the provisions of Section 437-A of Cr.P.C. (now Section 481 of BNSS), appellants- Reshma Khunte and Rathram Kurre are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- each with two reliable sureties

¶140

28

¶141

in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

¶142

49. The trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

¶143

Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

¶144

Anu

Rath Ram Kurre v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rath Ram Kurre v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Shashi Kumar Gandharva Vs State of Chhattisgarh

Shiv Kumar Prajapati Vs State of Chhattisgarh

Xyz Vs State of Chhattisgarh

Reshma Khunte Vs State of Chhattisgarh

Sandeep Vaishya Vs State of Chhattisgarh

Sandeep Kumar Vaishya Vs State of Chhattisgarh