Gahber @ Babu Gond Vs State Of Chhattisgarh

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1

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2025:CGHC:17866-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 946 of 2016

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1 - Gahber @ Babu Gond S/o Amrit Gond Aged About 30 Years R/o Village - Bhitiyahi Dhouratola, P.S. Ramanujganj, Distt. - Balrampur - Ramanujganj Chhattisgarh

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... Appellant

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versus

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1 - State Of Chhattisgarh Through - Station House Officer, Police Station Ramanujganj, Distt. - Balrampur Ramanujganj Chhattisgarh ,

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... Respondent(s)

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For Appellant : Shri R.V. Rajvade, Advocate. For Respondent(s) : Shri Pankaj Singh, Panel Lawyer.

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Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ

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Judgment on Board

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(21/04/2025)

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Deepak Kumar Tiwari, J

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Invoking jurisdiction of this Court under Section 374(2) of the

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CrPC, the appellant herein has preferred this criminal appeal challenging the legality, validity and correctness of the judgment

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Digitally
signed by
KRISHNA
KRISHNA KUMAR
KUMAR BARVE
BARVE Date:
2025.04.23
11:00:34
+0530

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of conviction and order of sentence dated 23.6.2016 passed by the Additional Judge to the Court of Additional Sessions Judge, Ramanujganj, District Surguja (Ambikapur) in ST No.521/2011 by which the appellant has been convicted and sentenced as

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under:-

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	Conviction	S	entence
Under IPC	Section 302 of the	RI for life Rs.500/-, in of fine to additional RI	with a fine of default of payment further undergo for 1 month
Under	Section 201 of the	RI for 7 ye	ars with a fine of
IPC		Rs.500/-, in of fine to	default of payment further undergo
		additional RI	for 1 month.

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Factual matrix of the case, in brief, is that around 5-6 days prior to 12^th October, 2011, or around that time, the appellant assaulted the deceased namely, Dharma @ Dharam Singh near canal of village Aragahi with a stick and committed his murder. After committing the murder, in order to conceal the evidence, the appellant has thrown the dead body in a canal and hidden the club near bushes.

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According to the prosecution case, on 12^th October, 2011, at about 8.20 hours, (PW-3) Majrul Haq lodged a report stating that when he was going to the village Aragahi, on the way, he saw decomposed dead body of about 4-5 days old. Merg intimation (Ex.-P/3) was registered. After giving notice (Ex.-P/4), inquest was conducted and inquest report (Ex.-P/5) was prepared. Spot map (Ex.-P/6) was prepared. The postmortem on the dead body of the deceased was conducted by

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Dr. SK Sinha (PW-10) and he gave the postmortem report vide Ex.-P/12, according to which, fracture of 1^st to 5^th ribs of right side and 1^st , 4^th & 5^th ribs of left side of the chest was found. In the opinion of the doctor, cause of death was shock and the death is homicidal in nature.

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After completion of the inquest proceeding and upon receipt of postmortem report (Ex.-P/12), an FIR against unknown person was registered on 17.10.2011 vide Ex.-P/13. Identification Panchnama of the dead body was prepared vide Ex.-P/2. During investigation, memorandum statement of the accused/ appellant was recorded vide Ex.-P/8 on 17^th October, 2011 by the Inspector BL Singh (PW-13). In pursuance of the memorandum of the appellant, one club which was used for committing murder was recovered from the spot vide Ex.-P/9. Slippers, an amount of Rs.364 (inclusive of notes and coins) and one Gamcha (Towel) were seized from the spot vide Ex.-P/11.

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After 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 appellant under Sections 302 & 201 of the IPC. The charges were read over and explained to the appellant, who abjured his guilt, took a plea of false implication and entreated for trial.

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In order to bring home the charges, the prosecution has examined as many as 14 witnesses and exhibited 17 documents. Statement of the appellant was recorded under

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Section 313 of the CrPC in which he denied the circumstances appearing against him 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.

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After conclusion of trial, the trial Court by the impugned judgment, on appreciation of evidence available on record convicted and sentenced the appellant as mentioned in para-1 of this judgment, which led to filing of present Appeal by the appellant.

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Learned counsel for the appellant would submit that the appellant has been convicted solely on the basis of circumstantial evidence, but the nature of circumstantial evidence is not as such which could be made basis for his conviction. The trial Court has relied upon the extra judicial confession made by the appellant before (PW-5) Devdhari and (PW-14) Arvind Kumar, which is a very weak piece of evidence. He would submit that the FIR has been lodged on 17.10.2011, whereas the dead body was recovered on 12.10.2011, and that the FIR has been lodged against unknown persons. (PW-5) Devdhari and (PW-14) Arvind Kumar have not disclosed that the appellant has made extra-judicial confession before them in a prompt manner, whereas during investigation, their statements were recorded on 27.10.2011. He would further submit that the said extra judicial confession is also not voluntary. So far as recovery of club in pursuance of the memorandum of the

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appellant (vide Ex.-P/8) is concerned, the only witness (PW-5) Devdhari, who has been examined, has not supported the case of the prosecution and he has turned hostile on such aspect. Further, the prosecution has not proved any FSL report to the effect that the club which was recovered at the instance of the appellant was the same club which was used in commission of offence. Therefore, chain of circumstantial evidence is missing on such aspect. Learned counsel for the appellant would further submit that in para-10 of the impugned judgment, motive is attributed to the appellant that the deceased has stolen his money from his pocket when both of them were sleeping in the house of (PW-2) Mangal Sai on 7.10.2011, but the motive itself is one of the incriminating circumstances, which cannot be made sole basis for conviction. In the aforesaid backdrop, the appellant is entitled for acquittal by extending him benefit of doubt and the Appeal deserves to be allowed accordingly.

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Per contra, learned State Counsel would support the impugned judgment & order and submit 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 offences in question on the basis of evidence available on record. The contentions raised by learned counsel for the appellant as such deserve to be rejected and the appellant is not entitled for acquittal on the basis of benefit of doubt and his appeal is liable to be dismissed outrightly.

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We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.

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The first and foremost question, as to whether the death of deceased Dharma @ Dharam Singh was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. SK Sinha (PW-10) who has conducted the post-mortem examination of deceased and also proved the postmortem report (Exhibit P-12) in which cause of death has been opined to be shock and the nature of his death to be homicidal, which, in our 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.

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In the present case, there is no direct evidence and the case of the prosecution rests on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtra¹ which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-152 as under:-

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“152.A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be

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1 (1984) 4 SCC 116

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said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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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 Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made:

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“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.”

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(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.

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(3) the circumstances should be of a conclusive nature and tendency.

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(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.”

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In the present case, the trial Court has relied upon the following

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circumstances against the appellants for basing conviction:-

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(i) fnukad 7@10@11 dks e`rd ,oa vfHk;qDr eaxylk; ds ?kj NV~Bh dk;Zdze esa x;s Fks] tgkWa vfHk;qDr lks x;k Fkk] rc mlds tsc esa j[kk iSlk fdlh us fudky fy;k Fkk] vfHk;qDr us tkxus ij vius tsc esa j[kk jde ugha gks a us ij

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eaxylk; ls iwNk vkSj eaxylk; ds ;g crkus ij fd erd mlds ikl lks;k Fkk] vfHk;qDRk erd dks [kkstus yxk FkkA

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(ii) vfHk;qDr us ?kVuk ds laca/k esa U;kf;dsRrj laLohd`fr fn;k FkkA

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(iii) vfHk;qDr ds cjkenxh Kkiu ds vk/kkj ij ?kVuk esa iz;qDr MaMk cjken fd;k x;k FkkA

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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 appellant for the offences mentioned in para-1 of this judgment.

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As regards the first circumstance, (PW-2) Mangal Sai has stated that there was ‘Chhatti’ programme in his house and the appellant and the deceased both had stayed in his house. This witness has turned hostile. When the prosecution put leading question to this witness, he has admitted that when the appellant woke up, he asked about his money which was not in his pocket, then this witness has raised doubt that such wrong might have been committed by the deceased. Thereafter the appellant went in search of the deceased. Though this witness in cross-examination has categorically admitted that he does not remember as to who has left his house first and who had gone later. He also admitted that there was no talk with the appellant. In spite of aforesaid infirmities, it is well established that the motive is one of the incriminating circumstances, but that alone cannot be made basis for conviction, as has been laid down by the Hon’ble Supreme Court in the matter of Sampath

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Kumar Vs. Inspector of Police {(2012) 4 SCC 124}. Thus, this circumstance is of no help to the prosecution.

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As regards the second circumstance, (PW-5) Devdhari has categorically stated that (PW-14) Arvind Kumar has informed him that the appellant has committed murder of Dharam Singh and thereafter he has made an enquiry with the appellant. (PW14) Arvind Kumar has also stated that when he called Ram Lochan (PW-1) to his field in connection with some work, the accused/appellant also came along with him, then he asked the appellant whether he has committed murder of the deceased. In the first instance, the appellant has refused, but thereafter he has narrated the incident. In the instant case, FIR has been registered against unknown persons on 17.10.2011 (Ex.-P/13), however, dead body was recovered vide Ex.-P/3 on 12.10.2011. The statements of witnesses were recorded on 27.10.2011. However, the witnesses remained silent as to the extra judicial confession made by the appellant before them. Thus, these witnesses cannot be relied upon so far as this circumstance is concerned.

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Moreover, 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

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and is corroborated by other prosecution evidence. [See :

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Sahadevan and Another v. State of Tamil Nadu 2]

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In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered their earlier decisions including Balwinder Singh v. State of Punjab 3 and pertinently laid down the principle in paragraphs 15.1, 15.8 and 16 as under:-

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“15.1 . In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10)

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“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.”

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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 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.⁴ and Pancho v. State of Haryana⁵ .)

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The principles

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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-

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2 (2012) 6 SCC 403

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3 1995 Supp (4) SCC 259

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4 (2011) 11 SCC 754

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5 (2011) 10 SCC 165

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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 :

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(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

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(ii) It should be made voluntarily and should be truthful.

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(iii) It should inspire confidence.

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(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.

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(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

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(vi) Such statement essentially has to be proved like any other fact and in accordance with law. ”

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The principle of law laid down in Sahadevan (supra) has further

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been followed with approval by the Supreme Court very recently

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6 in the matter of Pawan Kumar Chourasia v. State of Bihar

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wherein the following principles of law have been laid down:-

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“ EVIDENTIARY VALUE OF EXTRA-JUDICIAL CONFESSION

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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

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6 2023 LiveLaw (SC) 197

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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. ”

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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. Thus, the trial Court has wrongly relied upon this circumstance for basing conviction against the appellant.

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So far as third circumstance that recovery of club at the instance of the appellant vide Ex.-P/8 and seizure vide Ex.-P/9 is concerned, in this regard, the material witness is (PW-5) Devdhari, who has not supported the case of the prosecution that any such recovery was made at the instance of the appellant in his presence. There is no evidence available on record to establish that the club which was used by the appellant in commission of offence was the same which was recovered and seized at his instance. Thus, this circumstance is also of no help to the prosecution.

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For the foregoing, we are of the view that the prosecution has failed to establish the chain of circumstances which should be such as to lead to an irresistible conclusion that is incompatible with the innocence of the accused, to hold that the accused was the author of the crime in question. Furthermore, it is well

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settled that suspicion, however, great it may be, cannot take the place of legal proof. A moral conviction however, strong or genuine cannot amount to a legal conviction supportable in

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law. {See : Sharad Birdhichand Sarda (Supra}.

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In view of the foregoing discussion and findings, we allow this criminal appeal. Consequently, the conviction and sentence imposed upon the appellant under Sections 302 and 201 of IPC are set-aside and he is acquitted of the said charges extending him the benefit of doubt. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant 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.

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Let a certified copy of this judgment along with original record be transmitted forthwith to the trial Court.

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Sd/Sd/( Sanjay K. Agrawal ) ( Deepak Kumar Tiwari ) Judge Judge

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Barve

Gahber @ Babu Gond v. State Of Chhattisgarh

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Gahber @ Babu Gond v. State Of Chhattisgarh

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