Chattisgarh High Court
G.Deepak Rao And Anr vs State Of Chhattisgarh on 7 May, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2025:CGHC:20911-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 178 of 2014
1 - Ravindra Nath Mukharji S/o Late Shailendra Nath Mukharji Aged About 63
Years R/o Qtr. No. 9/a Road, No. 43 Sector-7, Bhilai Nagar C.G. Ciovil And
Revernue Distt. Durg C.G. , Chhattisgarh
--- Appellant(s)
versus
1 - G. Deepak Rao And Ors. S/o G. Soma Rao Telgu Aged About 26 Years R/o
Sector-4, Road No. 26, Qtr. No. 2 E, Bhilai P.S. Bhatti Distt. Durg C.G. ,
Chhattisgarh
2 - Ajay Prakash S/o Vishal Das Satnami Aged About 22 Years R/o Sector -3,
Road No. 10, Quter No. -2-E, Bhilai P.S. Bhatti Distt. Durg C.G. , District : Durg,
Chhattisgarh
3 - State Of C.G. S/o Through Aarakshi Kendra Rajhara Distt. Balod C.G. ,
District : Balod, Chhattisgarh
-- Respondent(s)
CRA No. 609 of 2014
1 – G.Deepak Rao And Anr. S/o G. Soma Rao Telgu Aged About 22 Years R/o
Sector Sadak No. 26, Qtr. No. 17e, Bhilai, Ps Bhatti, Distt. Durg C.G. ,
Chhattisgarh
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2 – Ajay Prakash S/o Vishal Das Satnami Aged About 22 Years R/o Sector – 3,
Sadak 10 Qtr. No. 2e, Bhilai, Ps Bhatti, Distt. Durg C.G. , District : Durg,
Chhattisgarh
—Appellant(s)
Versus
1 – State Of Chhattisgarh S/o Through Sho, Police Of Ps Rajhara, Distt. Balod
C.G. , Chhattisgarh
…Respondent(s)
In ACQA No. 178 of 2014
For Appellant-complainant : Mr. Vikas A. Shrivastava, Advocate.
For Respondent/State : Mr. Malay Jain, P.L.
In CRA No. 609 of 2014
For Appellants-accused : Mr. B.P. Singh, Advocate
For Respondent/State : Mr. Malay Jain, P.L.
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Arvind Kumar Verma Judge
Judgment on Board
Per Arvind Kumar Verma, Judge
07.05.2025
1. Heard Mr. Vikas A. Shrivastava, learned counsel for the appellant-
complainant in ACQA No. 178/2024 and Mr. B.P. Singh, learned counsel
for appellants-accused in CRA No. 609 of 2014. Also heard Mr. Malay
Jain, learned Panel Lawyer, appearing for the respondent/State.
2. Acquittal Appeal No. 178 of 2014 has been filed on behalf of the
complainant, challenging the legality, validity and propriety of judgment
dated 28.06.2014 passed by the Session Judge Balod Chhattisgarh in
Sessions Trial No78/2013, whereby the learned Sessions Judge has
acquitted the accused/respondents from the charges 302, 450, 302/34,
Digitally
signed by
JYOTI JHA
Date:
2025.05.16
13:29:31
+0530
3394 r/w Section 397 of the Indian Penal Code ( for short ‘the IPC‘),
however, convicted him under Section 411of IPC and sentenced to
undergo RI for 03 years and to pay fine of Rs.50,000/-, in default of
payment of fine, additional RI for 06-06 months.
3. Criminal Appeal No. 609 of 2014 has been filed by the
appellants-accused, challenging the legality, validity and propriety of very
same judgment dated 28.06.2014 passed by the learned Session Judge,
Balod District Balod Chhattisgarh in Sessions Trial No. 78/2013, whereby
the learned Sessions Judge convicted accused/appellants under Section
411 of IPC and sentenced him to undergo RI for 03 years and to pay fine
of Rs.50,000/-, in default of payment of fine, additional RI for 06-06
months
4. The prosecution case, in brief, is that on 17.03.2023, one
Deverndar Kumar Purohit has been informed at about 11:50 by the
Principal of Chikhlakasa that the door of the deceased was opened and
after that Devendra Kumar Purohit has tried to contract to the deceased
with her mobile which was found silent and thereafter he reached near the
house of deceased where he has found that the articles in the house are
kept disturbed and thereafter he has informed to the Police Station
Rajhara and the dead body of the deceased was found into the bad room
of the house. Police has lodged merg intimation (Ex.P-32) and FIR
bearing crime No. 55/13 was lodged against the unknown person (Ex.P-
33). A spot map (Ex.P/015) was prepared by the Patwari. The accused
was taken into custody vide Ex.P/ 25 & 26, and Property seizure memo
vide Ex.P/9 to 13. A crime details form was prepared by the Police vide
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Ex.P/31. The seized property was sent to the State Forensic Laboratory
for examination and the report was received vide Ex.P/30.
5. Dead body of the deceased was sent for postmortem to PHC
Chikhalakasa District Balod (C.G.), where Dr. R. Ramteke (PW-9)
conducted postmortem over the body of the deceased vide Ex.P/9 and
found following injuries:-
Injuries:
1. Injuries on neck:- (I) cut injuries four numbers discrete
multiple curved, spindle shaped skin deep present on
lower part of neck, base filled with clotted blood in size of
10-13 mmm X 3-4 mm are simple injuries. Multiple
abrasion with contused borders Dots line, 5 numbers
sizes 3-4 mm width not penetrating the skin foiled with
clotted blood.
2. Two injuries on right chest, abrasion with contused
boarders measuring 3-4 mm width.
3. Cut Injury on right lower waist measuring 3cm x 0.5
cm, spindle shaped skin deep filled with clotted blood.
4. Abrasion 2cm x 5cm on right wrist.
5. Abrasion four dots in size of 3-4 mm on abdomen on
front.
6. Injuries on chin 4 Numbers dots like abrasion and
contused borders with clotted blood.
All the above injuries were antemortem (before death).
Dr. R. Ramteke (PW-9) opined that all the injuries were ante-
mortem. The mode and cause of the death is asphyxia due to suffocation
caused by smothering. Homicidal in nature.
The death of the deceased occurred within 18-48 hours of the
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examination.
6. After due investigation, the Police filed charge-sheet against the
appellants before the trial Court. The trial Court has framed charges
against the appellants for the offences punishable under Section 450, 302
of IPC and 302 r/w34, 394 r/w397 of IPC and proceeded on trial. The
appellants abjured the guilt and entered into defence stating that he has
not committed any offence and he has been falsely implicated.
7. In order to bring home the offence, the prosecution examined as
many as 12 witnesses and exhibited 33 documents. The
appellants/accused examined none in their defence.
8. The trial Court upon appreciation of oral and documentary evidence
available on record, by its judgment dated 28.06.2024, convicted the
accused/appellants for the offence punishable under Sections 411 of the
IPC and sentenced them as aforementioned, against which, this criminal
appeal has been filed.
9. In CRA No. 609/2014, learned counsel for the appellants submits
that the case is based on circumstantial evidence and in this case, there is
no any connecting link, therefore after six months of the incident, the
properties were seized and on that basis conviction has been passed
under Section 411 of IPC which is not according to law. The learned trial
Court is absolutely unjustified in convicting the appellants for the offence
punishable under Sections 411 of the IPC, as the prosecution has failed to
prove the offence beyond reasonable doubt. He further submits that the
stolen property has been defined in Section 410 of Indian Penal Code and
any person dishonestly receiving stolen property is guilty of the offence
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under Section 411 of IPC and where there is no evidence to identify the
property seized from the accused person to be stolen property, conviction
against the accused under Section 411 of IPC cannot be sustained. In this
case, the property in question are not properly identified. The seizure of
the ornaments is alleged from the appellant No. 1 has not properly proved
and not properly identified. He further submits that mobile phone which is
alleged to be seized from the appellant No. 2 Ajay Prakash, but no call
detailed of the mobile were found and no any mobile of appellant No. 2
was also seized from him, even no any prosecution witness has stated
about the mobile number of appellant No. 2. The articles seized from the
open place, therefore seizure is doubtful and the memorandum is also
doubtful, therefore conviction under Section 411 of IPC is not sustainable
according to the law.
10. In ACQA No. 178/2014, learned counsel for the appellant-
complainant submits that the PW-03 Amit Jain fully supported prosecution
case as well as seizure and memorandum of accused. On the basis of
recovery, it can be held that accused persons were present at the place of
occurrence. Further Durgesh Kumar Bhavgadhe PW-10 clearly depose in
his court statement that the mobile which recovers from the possession of
accused No. 1 was traced at the place of occurrence at the point of time,
which clearly shows that the accused persons were present at the spot at
the point of time. Learned counsel for the appellant-complainant submits
that learned trial Court has erred in convicting the accused persons under
Section 411 whereas the recovery of robbed article was seized from the
possession of accused persons and they have not given any explanation
about possession. Therefore, the appellants-accused may also be
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convicted under Section 302 of IPC.
11. On the other hand, learned Penal Lawyer would support the
judgment, finding and sentence passed by the trial Court mainly
contending that the prosecution has proved its case beyond reasonable
doubt and the appellant has rightly been convicted for the offence
committed by him which does not warrant interference by this Court.
12. We have heard learned counsel appearing for the parties,
considered their rival submissions made hereinabove and also went
through the records with utmost circumspection.
13. The entire case of the prosecution rests on circumstantial evidence,
as there is neither any eye-witness nor any judicially admissible
confession. It is well settled law that where the case rests entirely on
circumstantial evidence, the chain of evidence must be so far complete,
such that every hypothesis is excluded but the one proposed to be proved
and such circumstances must show that the act has been done by the
Appellant-accused within all human probability, this has been held by the
Hon’ble Supreme Court in the case of Hanumant vs. State of Madhya
Pradesh, (1952) 2 SCC 71). And also in Sharad Birdhichand Sarda
vs. State of Maharashtra, (1984) 4 SCC 116, this Court outlined five
essential principles, often referred to as five golden principles, which must
be satisfied for circumstantial evidence to conclusively establish the guilt
of the Appellant-accused:
“(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established……
(2) the facts so established should be consistent only with the
8hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the one
to be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.”
14. To prove the charges, the prosecution has laid emphasis on
recovery of gold ornaments (four gold bangles, gold chain, gold ring, gold
earnings and two chain of ear) belonging to the deceased, on the basis of
memorandum statement (Ex. P-7) given by the appellant- G. Deepak Rao
and on recovery of mobile phone belonging to the deceased, on the basis
of memorandum statement (Ex.P-9) given by the appellant – Ajay
Prakash.
15. Sections 25 and 26 of the Evidence Act stipulate that confession
made to a police officer is not admissible. However, Section 27 is an
exception to Sections 25 and 26 and serves as a proviso to both these
sections.
16. This Court is of the view that Section 27 lifts the ban, though
partially, to the admissibility of confessions. The removal of the ban is not
of such an extent so as to absolutely undo the object of Section 26. As
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such the statement whether confessional or not is allowed to be given in
evidence but that portion only which distinctly relates to discovery of the
fact is admissible. A discovery of a fact includes the object found, the
place from which it is produced and the knowledge of the Appellant-
accused as to its existence.
17. The essential ingredients of Section 27 of the Evidence Act are
three-fold:
i. The information given by the accused must led to the
discovery of the fact which is the direct outcome of such
information.
ii. Only such portion of the information given as is distinctly
connected with the said recovery is admissible against the
accused.
iii. The discovery of the facts must relate to the commission of
such offence.
18. The question as to whether evidence relating to recovery is
sufficient to fasten guilt on the accused was considered by the Hon’ble
Supreme Court Court in Bodhraj Alias Bodha & Ors. v. State of Jammu &
Kashmir, (2002) 8 SCC 45, wherein it has been held as under:-
“18… Section 27 of the Indian Evidence Act, 1872 (in
short “Evidence Act“) is by way of proviso to Sections 25
to 26 and a statement even by way of confession made in
police custody which distinctly relates to the fact
discovered is admissible in evidence against the
10accused. This position was succinctly dealt with by this
Court in Delhi Admn v. Balakrishan [(1972) 4 SCC 659]
and Mohd. Inayatullah v. State of Maharashtra [(1976) 1
SCC 828]. The words “so much of such information” as
relates distinctly to the fact thereby discovered, are very
important and the whole force of the section concentrates
on them. Clearly the extent of the information admissible
must depend on the exact nature of the fact discovered to
which such information is required to relate. The ban as
imposed by the preceding sections was presumably
inspired by the fear of the Legislature that a person under
police influence might be induced to confess by the
exercise of undue pressure. If all that is required to lift the
ban be the inclusion in the confession of information
relating to an object subsequently produced, it seems
reasonable to suppose that the persuasive powers of the
police will prove equal to the occasion, and that in
practice the ban will lose its effect. The object of the
provision i.e. Section 27 was to provide for the admission
of evidence which but for the existence of the section
could not in consequence of the preceding sections, be
admitted in evidence. It would appear that under Section
27 as it stands in order to render the evidence leading to
discovery of any fact admissible, the information must
come from any accused in custody of the police. The
requirement of police custody is productive of extremely
11anomalous results and may lead to the exclusion of much
valuable evidence in cases where a person, who is
subsequently taken in to custody and becomes an
accused, after committing a crime meets a police officer
or voluntarily goes to him or to the police station and
states the circumstances of the crime which lead to the
discovery of the dead body, weapon or any other
material fact, in consequence of the information thus
received from him. This information which is otherwise
admissible becomes inadmissible under Section 27 if the
information did not come from a person in the custody of
a police officer or did come from a person not in the
custody of a police officer. The statement which is
admissible under Section 27 is the one which is the
information leading to discovery. Thus, what is
admissible being the information, the same has to be
proved and not the opinion formed on it by the police
officer. In other words, the exact information given by the
accused while in custody which led to recovery of the
articles has to be proved. It is, therefore, necessary for
the benefit of both the accused and prosecution that
information given should be recorded and proved and if
not so recorded, the exact information must be adduced
through evidence. The basic idea embedded in Section
27 of the Evidence Act is the doctrine of confirmation by
subsequent events. The doctrine is founded on the
12principle that if any fact is discovered as a search made
on the strength of any information obtained from a
prisoner, such a discovery is a guarantee that the
information supplied by the prisoner is true. The
information might be confessional or non-inculpatory in
nature but if it results in discovery of a fact, it becomes a
reliable information. It is now well settled that recovery of
an object is not discovery of fact envisaged in the
section. Decision of Privy Council in Palukuri Kotayya v.
Emperor [AIR (1947) PC 67], is the most quoted authority
of supporting the interpretation that the “fact discovered”
envisaged in the section embraces the place from which
the object was produced, the knowledge of the accused
as to it, but the information given must relate distinctly to
that effect. [See State of Maharashtra v. Dam Gopinath
Shirde and Ors, (2000) 6 SCC 269]. No doubt, the
information permitted to be admitted in evidence is
confined to that portion of the information which “distinctly
relates to the fact thereby discovered”. But the
information to get admissibility need not be so truncated
as to make it insensible or incomprehensible. The extent
of information admitted should be consistent with
understandability. Mere statement that the accused led
the police and the witnesses to the place where he had
concealed the articles is not indicative of the information
given.
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19. In the present case, the prosecution has produced Amit Jain (PW-3)
as the panch witnesse to prove the recovery pursuant to the disclosure
made by the Appellant-accused G Deepak Rao.
20. Amit Jain (PW-3) has deposed that memorandum of accused
Deepak Rao was recorded in his presence (Ex.P-7)the question were
asked to the accused in his presence by the Investigation Officer in Police
Station Bhilai Bhatti and accused Deepak Rao had told that he had
hidden jewelry of the deceased in the bushes and thereafter it has been
recovered.
21. Further, a perusal of the disclosure statement made by the
Appellant- accused indicates that the Appellant-accused had allegedly
hidden the gold/ornaments allegedly belonging to the deceased by hiding
them in bushes. The seizure memo states that the police took possession
of the articles after they were taken out by the Appellant-accused in
presence of the witnesses.
22. From perusal of the statements of the memorandum witnesses, it is
apparent that the seized ornaments were identified by Ravindranath
Mukherjee (PW-1) and no proper TIP was conducted. Further the call
details which are produced and said to be of accused G. Deepak Rao, no
mobile or sim has been seized or produced, therefore, this is no chain to
convict this accused on the basis of call details. Ravindranath Mukherjee
(PW-1) has stated that no notice for identifying the sized ornaments and
no other ornaments except the ornaments shown him in the Court were
shown.
23. Therefore, from the above evidence it is apparent that neither the
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prosecution has been able to establish the guilt on the basis of call details
nor the proper TIP was conducted. The Hon’ble Supreme Court has
consistently ruled that a memorandum, like a disclosure statement,
cannot be a standalone, material piece of evidence for conviction unless
it’s supported by other cogent and corroborating evidence. Further, the
Hon’ble Supreme Court in ‘n’ number of cases has categorically held that
the memorandum like a disclosure statement cannot be corroborative
piece of evidence for conviction unless it is supported by other cogent and
corroborative evidence.
24. Therefore, on examination of the over all facts and evidence of the
case the following facts emerged:-
1- The Recovery was made after six months that too from a open place.
2- No proper TIP was conducted to identify the seized ornaments.
3- The prosecution has failed to prove that the mobile which was seized
was actually belonging to the deceased.
4- Though the call details of the accused G. Deepak Rao were received,
however, no mobile phone or sim was seized to complete the chain.
5- The appellants have been arrested after six months.
25. Therefore, from the above facts benefit of doubt leans in favour of
the appellants because in the instant case no TIP was conducted and the
ornaments were seized after a gap of six months, which raises a doubt.
26. From the overall consideration of the evidence which have come on
record, it would reveal that there are a lot of broken links in the
prosecution’s case which does not complete the chain of circumstances
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for conclusively reaching to the conclusion that it was the Appellants alone
to have stolen the ornaments. In the light to all the infirmities in the
prosecution case and in absence of complete chain of events, it would be
difficult for upholding the conviction of the appellants only on the basis of
circumstantial evidence of strong suspicion which have come on record.
In a case of circumstantial evidence, conviction cannot be based on
suspicion.
27. It is settled principles of law that prosecution has Burden to prove its
case beyond reasonable doubt and where two views are possible, arising
on the basis of the same evidence, the view which is favoruable to the
accused should be taken into consideration and the accused should be
given benefit of doubt. In the matter of Digambar Vaishnav vs. The
State of Chhattisgarh it has been held as under :
“It is also well-settled principle that in criminal cases, if two
views are possible on evidence adduced in the case, one
binding to the guilt of the accused and the other is to his
innocence, the view which is favourable to the accused,
should be adopted. This principle has a special relevance in
cases wherein the guilt of the accused is sought to be
established by circumstantial evidence
28. It is a settled proposition that when 2-3 views came to fore, the
evidence which favours the accused is required to be admitted. This
proposition has been been laid down in the matter of Kali Ram vs.
State of H.P. reported in (1973) 2 SCC 808 and has been reiterated in
the matter of Pradeep Kumar vs. State of Chhattisgarh reported in
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(2023) 5 SCC 350 wherein, relevant para-27 reads as under :-
“27. It is important to note that the cardinal
principles in the administration of criminal
justice in cases where heavy reliance is
placed on circumstantial evidence, is that
where two views are possible, one pointing to
the guilt of the accused and the other towards
his innocence, the one which is favourable to
the accused must be adopted.”
Conclusion
29. Thus, in view of the foregoing, we are of the considered opinion
that so far as the conviction of accused persons under Section 411 IPC is
concerned, when the recovery of the ornaments itself is doubtful as no
TIP was conducted and there are various components which are
missing from the chain of circumstantial evidence., therefore, the
conviction of the appellants cannot be recorded against them.
Accordingly, the appeal is allowed. The appellants are acquitted of the
charges under Section 411 IPC.
30. The acquittal appeal ACQA No. 178/2014 filed by the complainant
against the order of acquittal of the accused persons from the charge
under Sections 302, 450, 302 read with Section 34, 394 read with Section
397 IPC is concerned, it is a settled law that if, on appreciation of
evidence, two views are possible, the view in favour of the accused has to
be adopted. This proposition has been laid down by the Hon’ble Supreme
Court in the matter of Bodhraj alias Bodha & Ors. Vs. State of Jammu
& Kashmir {(2002) 8 SCC 45}. It is also settled law that order of
acquittal should not normally be interfered with unless there are
compelling and substantial reasons for doing so. We do not find any
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compelling and substantial reasons in the present case so as to interfere
in the order of acquittal of the accused persons of the charge under
Sections 302, 450, 302 read with Section 34, 394 read with Section 397
IPC. Accordingly, the Acquittal Appeal preferred by the complainant
Ravindranath Mukherjee (PW-1) is liable to be and is hereby dismissed.
31. In the result, as regards Acquittal Appeal in respect of the appellant
-complainant Ravindra Nath Mukharji is dismissed and as regards
criminal appeal in respect of the appellants G Deeppak Rao and Ajay
Prakash is allowed.
32. The appellants are reported to be on bail. Their bail bonds shall
remain operative for a period of 6 months in view of Section 437A of CrPC
(now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023).
33. The trial Court record along with the copy of this judgment be sent
back immediately to the trial court concerned for compliance and
necessary action.
Sd/- Sd/-
(Arvind Kumar Verma) (Ramesh Sinha)
Judge Chief Justice
Jyoti