Ashok Kumar Vs State of Chhattisgarh

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2026:CGHC:2399-DB

ASHOK SAHU

NAFR

Digitally signed by ASHOK SAHU Date: 2026.01.16 18:26:27 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1638 of 2018

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{Arising out of judgment dated 28.09.2018 passed in Sessions Trial No.65/2016 by the learned Second Additional Sessions Judge, Manendragarh, District Korea}

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Ramlal, S/o. Late Dhani Ram, Aged About 50 Years, R/o. Village Pasauri, Police Station Kelhari, District Korea, Chhattisgarh.

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--- Appellant

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versus

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State Of Chhattisgarh, Through Police Station Kelhari, District Korea, Chhattisgarh.

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--- Respondent

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For Appellant	:	Ms. Usha Chandrakar, Advocate
For Respondent	:	Dr. Surendra Kumar Dewangan, Panel
		Lawyer

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&

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CRA No. 1771 of 2018

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1 - Ashok Kumar. S/o. Nand Kumar, Aged About 40 Years, R/o. Village- Pasouri, Police Station- Kelhari, District- Korea, Chhattisgarh.

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2

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2 - Smt. Madhuri, W/o. Ashok Kumar, Aged About 35 Years, R/o. Village- Pasouri, Police Station- Kelhari, District- Korea, Chhattisgarh.

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--- Appellants

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Versus

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State Of Chhattisgarh, Through Station House Officer, Police Station- Kelhari, District- Korea, Chhattisgarh.

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--- Respondent

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: For Appellant Ms. Nirupama Bajpai, Advocate

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:

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For Respondent Dr. Surendra Kumar Dewangan, Panel Lawyer

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Arvind Kumar Verma

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Judgment on Board (1 5.01.2026)

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Sanjay K. Agrawal, J.

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1 . Ashok Kumar (A-1) and his wife Smt. Madhuri (A-2) both have preferred Criminal Appeal No.1771/2018 and Ramlal (A-3) has preferred Criminal Appeal No.1638/2018. Since common question of law and facts are involved in both the appeals and have been arisen from Sessions Trial No. 65/2016, they have been clubbed together, heard together and are being disposed of by this common judgment.

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2 . Both the appeals filed under Section 374(2) of Cr.P.C. are directed against the impugned judgment dated 28.09.2018 passed by learned Second Additional Sessions Judge, Manendragarh, District Korea in Sessions Trial No.65/2016, by which, the appellants herein have been convicted and sentenced as under :

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CONVICTION		SENTENCE
U/s. 302 read with	:	Life imprisonment and
Section 34 of IPC.		fine of Rs. 1000/- in
		default of payment of fine amount, 6 months’ additional simple imprisonment.
U/s. 201 read with	:	Rigorous imprisonment
Section 34 of IPC.		for 5 years and fine of
		Rs.1000/-, in default of payment of fine amount, 6 months’ additional simple imprisonment.
Both the sente	nce	to run concurrently.

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3 . Case of the prosecution, in short, is that in the intervening night of 29.10.2015 at 3:00 A.M. to 02.11.2015, Ashok Kumar (A-1) and his wife Smt. Madhuri (A-2) along-with Ramlal (A-3) and Kamla Prasad (died on 13.09.2018) all in

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furtherance of their common intention caused the death of Mukesh Kumar, brother of Ashok Kumar (A-1), by stabbing screw driver on his neck and in order to screen themselves from the legal punishment, they thrown the dead body into the dam and thereby committed the aforesaid offences. The matter was reported to the police by Nand Kumar (PW-1), pursuant to which, Merg Intimation was registered vide Ex.P6, FIR was registered vide Ex.P-33, Inquest was conducted vide Ex.P-7 and dead body of deceased Mukesh Kumar was subjected to post-mortem, which was conducted by Dr. Mahesh Singh (PW-7), who proved the post-mortem report vide Ex.P-26-A, in which, no definite opinion can be given regarding cause of death. Pursuant to memorandum statement of the appellants vide Ex.P-12, Ex.P14, Ex.P-16 & Ex.P-18, wooden juwa was seized vide Ex.P-13 from Ashok Kumar (A-1), nylon robe was seized vide Ex.P-15 from Madhuri (A-2), bamboo stick was seized vide Ex.P-17 from Kamla Prasad (died) and blood-stained shirt & screw driver was seized vide Ex.P-19 from Ramlal (A-3), which were sent for chemical examination to FSL and as per the FSL report (Ex.C-1 to C-3), blood was found over the seized articles. After due investigation, the appellants were charge-sheeted for the aforesaid offences to the jurisdictional criminal court

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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.

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4 . In order to bring home the offences, prosecution examined as many as 18 witnesses and exhibited 44 documents alongwith Ex.C-1 to Ex.C-3 and the accused/ appellants in support of their defence have neither examined any witness nor exhibited any document.

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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.

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6 . Ms. Nirupama Bajpai, learned counsel appearing for appellants Ashok Kumar & Smt. Madhuri (A-1 & A-2), would submit that the incriminating circumstances as culled out by the trial Court in para 36, 37 & 39 of its judgment are not established at all and the appellants (A-1 & A-2) have been convicted on the basis of surmises & conjectures, therefore,

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they are entitled for acquittal and the appeal deserves to be allowed.

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7 . Ms. Usha Chandrakar, learned counsel appearing for appellant Ramlal (A-3), would submit that conviction of the appellant (A-3) is not sustainable at all and therefore, he is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

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8 . Dr. Surendra Kumar Dewangan, learned State counsel, would submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted the appellants (A-1, A-2 & A-3) for the aforesaid offences as all the incriminating circumstances were found to be established and, as such, the appeal deserves to be dismissed.

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

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10. The case of the prosecution is not based on direct evidence, it is based 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

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by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 ,

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which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 as under: -

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be 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 Sahabrao Bobade v. State of Maharashtra² 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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2 (1973) 2 SCC 793

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1 (1984) 4 SCC 116

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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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11. The trial Court has found established the following incriminating circumstances :

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(i) That, appellant Ramlal (A-3) has given extra-judicial confession to Nand Kumar (PW-1) that he along-with other co-accused persons have committed murder of deceased Mukesh Kumar.

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(ii) That, non-explanation on the part of the accused persons about the incident.

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(iii) That, recovery of rope from Madhuri (A-3) and blood was found from the other seized articles i.e. wooden juwa, bamboo stick, screw driver and shirt of Ramlal pursuant to their memorandum statements.

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(iv) Motive of the offence.

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12. We will discuss the aforesaid incriminating circumstances one by one.

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13. The first incriminating circumstance is extra-judicial confession. The so called extra-judicial confession is said to have given by Ramlal (A-3) to father of deceased Nandkumar (PW-1) on 11.01.2016 as per Ex.P-1 i.e. written complaint made by Nandkumar (PW-1) and as per Ex.P-9 i.e. statement of Nandkumar (PW-1) recorded under Section 161 of Cr.P.C. with a delay of 2 months and 11 days, but there is no explanation for such in ordinate delay in making the extra-judicial confession.

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14. The Supreme Court in the matter of Subramanya v. State of Karnataka 3 has declined to accept the extra-judicial confession and held in para 51 to 56 as under :-

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“ 51. The date of the alleged crime is 23-8-2010. The so-called extra-judicial confession, said to have been made by Seetharam Bhat (Accused 3) is dated 9-12-2010. We fail to understand why all of a sudden Seetharam (Accused 3) after a period of almost four months, thought fit to make an extra-judicial confession before PW 7 H.T. Yogesh involving himself and the appellant herein in the alleged crime.

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52. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be

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3 (2023) 11 SCC 255

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proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.

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53. Extra-judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra-

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judicial confession is voluntary, it can be acted upon to base the conviction.

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54. Considering the admissibility and evidentiary value of extra-judicial confession, after referring to various judgments, in Sahadevan v. State of T.N. [(2012) 6 SCC 403 : (2012) 3 SCC (Cri) 146], this Court held as under : (SCC pp. 410-11, para 15)

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“ 15 . … 15.1 . In Balwinder Singh v. State of Punjab , [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59] 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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15.4 . While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated the principle that : (SCC p. 192, para 19)

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‘ 19 . An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.’

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The Court further expressed the view that : (SCC p. 192, para 19)

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‘ 19 . … Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused,…’

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15.6 . Accepting the admissibility of the extrajudicial confession, the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604 : (2011) 1 SCC (Cri) 79] held that : (SCC p. 611, para 29)

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‘ 29 . There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma & Thimma Raju v. State of Mysore [(1970) 2 SCC 105 : 1970 SCC (Cri) 320] , Mulk Raj v. State of U.P. [1959 SCC OnLine SC 23 : AIR 1959 SC 902], Sivakumar v. State of T.N. [(2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470], paras 40 & 41, Shiva Karam Payaswami Tewari v. State of Maharashtra [2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320] and Mohd. Azad v. State of W.B. [(2008) 15 SCC 449 : (2009) 3 SCC (Cri) 1082]’ ”

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(emphasis supplied)

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55. It is well settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. An extra-judicial confession of accused need not in all cases be corroborated. In Madan Gopal Kakkad v. Naval Dubey [ Madan Gopal Kakkad v.

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Naval Dubey , (1992) 3 SCC 204 : 1992 SCC (Cri) 598] , this Court after referring to Piara Singh v. State of Punjab [ Piara Singh v. State of Punjab , (1977) 4 SCC 452 : 1977 SCC (Cri) 614] , held that the law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. The rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated.

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56. The sum and substance of the aforesaid is that an extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with 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 like the case in hand. The Courts generally look for an independent reliable corroboration before placing any reliance upon an extra-judicial confession.

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15. Even otherwise, the extra judicial confession is a weak piece

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of evidence and requires appreciation with a great deal of care and caution. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. In the present case, the extra-judicial confession was made on 11.01.2016 and the incident is of intervening night of 29.10.2015 to 02.11.2015 and, as such, there is unexplained delay of more than 2 months in making extra-judicial confession and therefore, it would be inappropriate to accept the extra-judicial confession as incriminating piece of

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evidence. In that view of the matter, the delayed extra-judicial confession is of no use to the prosecution to base the conviction.

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16. The second incriminating circumstance is that the trial Court has applied Section 106 of the Indian Evidence Act on the ground that explanation has not been offered with regard to the incident.

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17. Section 106 of the Indian Evidence Act states as under:

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“ 106. Burden of proving fact especially within knowledge. —When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

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18. In this regard, the Supreme Court in the matter of Manharan

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Rajwade v. State of Chhattisgarh4 on the point of invoking Section 106 of the Indian Evidence Act have held in paragraph 7 as under:-

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“7. For invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellant’s presence at the relevant time in his house. In this case, going by the evidence of PW1, the deceased had already died before 5:00 p.m., and the said witness stated that the appellant came back home at 7:00 p.m. There is no evidence to prove the theory of the last seen together. Therefore, the prosecution has not discharged the burden on it to prove that the

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4 2024 INSC 560

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appellant was last seen together with the deceased wife. Thus, Section 106 of the Evidence Act cannot be invoked to shift the burden on the appellant.”

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19. It is not the case of the prosecution that the appellants were seen in the house of deceased Mukesh Kumar on the date and time of offence and merely because of explanation has not been given by the appellants, Section 106 of the Evidence Act would not be applicable. As such, the trial Court has wrongly invoked Section 106 of the Evidence Act to base the conviction of the appellants and the findings in this regard is hereby set aside.

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20. The third incriminating circumstance is that pursuant to memorandum statement of the appellants, wooden juwa was recovered from Ashok Kumar (A-1), nylon rope was recovered from Smt. Madhuri (A-2) and screw driver & shirt was recovered from Ramlal (A-3). However, the trial Court has taken the statement made in the memorandum of the appellants, whereby they have stated that they have caused the death of Mukesh Kumar. In this regard, the decision rendered in the matter of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka5 may be noticed herein, wherein the Supreme Court has held in para 61 as under :

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5 (2024) 8 SCC 149

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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] .

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21. In that view of the matter, the statement made in the memorandum statement is of no use to the prosecution except the recovery of articles from the appellants, however it cannot be held that seized articles were used in commission of offence in absence a close link between discovery of material object and its use in commission of offence in light of decision of the Supreme Court in the matter of Mustkeem Alias Sirajudeen v. State of Rajasthan 6. Therefore, the incriminating statement made in the memorandum cannot be relied upon to base the conviction and also the seizure of articles are of no use to the prosecution to base the conviction of the appellant.

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22. The fourth incriminating circumstance is the motive of offence. So far as the motive of offence is concerned, the appellants (A-1 & A-2) have the strong motive of property dispute

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6 (2011) 11 SCC 724

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pending before the Court, but it cannot be alone ground to base the conviction for the offence under Section 302 of I.P.C.

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23. In serious offences like murder, the Court always searches for the motive and the motive always plays an important role. Motive is of great importance in cases based on circumstantial evidence, and there is absence of such motive, it is always a circumstance in favour of the accused and against the prosecution. Motive, however adequate, cannot sustain a criminal charge in absence of clear and cogent evidence pointing to the guilt of the accused and motive alone can hardly be a ground for conviction in absence of any other circumstantial evidence. [See: Sampath Kumar v. Inspector of Police, Krishnagiri 7 ]

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24. Similarly, only blood was found in the T-shirt of Ramlal (A-3), but it was not ascertained that blood was human blood. In the matter of Balwan Singh v. State of Chhattisgarh & Anr.⁸ their Lordships of the Supreme Court have clearly held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, then it may be sufficient if the prosecution shows that the blood found on the articles is

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7 (2012) 4 SCC 124

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8 (2019) 7 SCC 781

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of human origin, even though the blood group is not proved and held as under :-

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“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.”

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25. Thus, in view of the decision of Supreme Court in the matter of Balwan Singh (supra), the recovery of blood-stained articles is of no use to the prosecution, as no human blood was found.

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26. In that view of the matter, the trial Court is absolutely unjustified in convicting the appellants (A-1, A-2 & A-3) for the offences in question, as the prosecution has failed to complete the chain of circumstances as enumerated in Sharad Birdhichand Sarda (supra) and, as such, the appellants are entitled for acquittal on the basis of benefit of doubt.

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27. In view of the above, the impugned judgment of conviction and order of sentence dated 28.09.2018 is set aside. The appellants (A-1, A-2 & A-3) stand acquitted giving them benefit of doubt from the charges framed against them for the offence under Section 302 read with Section 34 and offence under Section 201 read with Section 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 437A of the Cr.P.C.

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28. In the result, both the criminal appeals are allowed.

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29. 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.

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Sd/Sd/- (Sanjay K. Agrawal) (Arvind Kumar Verma) Judge Judge

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Ashok

Ashok Kumar v. State of Chhattisgarh

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Ashok Kumar v. State of Chhattisgarh

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