Chattisgarh High Court
Sukhu Bhaina vs The State Of Chhattisgarh on 5 May, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:20812-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1184 of 2018
1. Omprakash @ Onkar Bhaina S/o Chhedi Bhaina Aged About 26
Years R/o- Village-Chhatauna, Outpost- Belgahna, Police Station-
Kota, District- Bilaspur, Chhattisgarh., District : Bilaspur,
Chhattisgarh
2. Neera Bai W/o Onkar Bhaina Aged About 24 Years R/o- Village-
Chhatauna, Outpost- Belgahna, Police Station- Kota, District-
Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh
--- Appellant(s)
versus
State of Chhattisgarh Through- Station House Officer, Police Station-
Kota, District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh
--- Respondent(s)
CRA No. 1143 of 2018
Sukhu Bhaina S/o Pawan Bhaina Aged About 60 Years R/o- Village
Chhatouna, Police Chowki- Belgahana, Police Station- Kota, District-
Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh
—Appellant(s)
versus
The State of Chhattisgarh Through- The Station House Officer, Police
Station Kota, District- Bilaspur, Chhattisgarh., District : Bilaspur,
Chhattisgarh
Digitally
signed by
— Respondent(s)
BRIJMOHAN
BRIJMOHAN MORLE
MORLE Date:
2026.05.07
11:11:29
+0530
2CRA No. 1222 of 2018
Vinod Baina S/o Daduram Bhaina Aged About 26 Years R/o Village
Chhatouna, Police Chowki Belgahana, Police Station Kota District
Bilaspur Chhattisgarh, District : Bilaspur, Chhattisgarh
—Appellant(s)
versus
The State of Chhattisgarh Through The Station House Officer, Police
Station Kota District Bilaspur Chhattisgarh, District : Bilaspur, Chhattisgarh
—Respondent(s)
(Cause-titles taken from Case Information System)For Appellant(s) : Mr. Anurag Bajpai and Mr. Abhipreet
Bajpai, Advocates in CRA No. 1184 of
2018 and Mr. Rajkumar Pali, Advocate in
CRA Nos. 1143 of 2018 & 1222 of 2018.
For Respondent/State : Mr. Priyank Rathi, Government
Advocate.
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Bibhu Datta Guru, Judge
Judgment on BoardPer Ramesh Sinha, Chief Justice
05.05.2026
1. Since all the criminal appeals arise out of the same crime, they are
being clubbed together, heard analogously, and decided by this common
judgment.
2. Although the present appeals are listed today in the motion hearing
list, and the applications for suspension of sentence and grant of bail were
allowed by the Coordinate Bench of this Court in CRA Nos.1184 of 2018
and 1143 of 2018, and by the learned Single Judge in CRA No. 1222 of
32018, it appears that CRA Nos. 1184 of 2018 and 1143 of 2018 were
inadvertently not formally admitted by the Coordinate Bench. CRA No.
1222 of 2018, however, has already been admitted.
3. In view of the foregoing, CRA Nos. 1184 of 2018 and 1143 of 2018
are hereby admitted. As the parties are ready for final hearing, the matters
are taken up for final disposal.
4. Heard Mr. Anurag Bajpai and Mr. Abhipreet Bajpai, learned counsel
for the appellants in CRA No. 1184 of 2018; Mr. Rajkumar Pali, learned
counsel for the appellant in CRA Nos. 1143 of 2018 and 1222 of 2018;
and Mr. Priyank Rathi, learned Government Advocate, appearing for the
State/respondent in all the appeals.
5. These criminal appeals, preferred 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 19.04.2018
passed by the learned 5th Additional Sessions Judge, Bilaspur, District
Bilaspur (C.G.) (for short, ‘learned trial Court’), in Sessions Trial No. 101 of
2017, whereby the appellants have been convicted and sentenced as
follows:
Conviction under Section Sentence
Section 302/34 of the Indian :Rigorous imprisonment (for short,
Penal Code (for short, 'IPC') 'R.I.') for life imprisonment and fine
(applicable only to the of Rs.300/-, to each default of
appellants in CRA Nos. 1184 of payment of fine, 01 month S.I.
2018 and 1143 of 2018) more.
4
Section 201/34 of the IPC R.I. for 07 years and fine of
Rs.300/- to each, in default of
payment of fine, 01 month R.I.
more.
All the sentences run concurrently.
6. Brief facts of the case are that, on 18.11.2016, the complainant,
Kalam Singh (PW-2), son of Samay Lal Bhaina, aged about 30 years,
resident of Village Chhatauna, presently residing at Khairjhiti, appeared
along with his father at Police Outpost Belgahna and lodged an oral report
stating that his younger brother, Ved Singh, aged about 28 years, had
gone missing. It was reported that prior to his disappearance, on
10.11.2016, a dispute had arisen between the deceased Ved Singh and
certain family members, namely Tiharu, Jankaram, Durjan, and Itmar,
regarding cultivation of land at Village Chhatauna, during which
altercations and exchange of abuses took place. It was further informed
by Bachan Singh Bhaina (PW-3) that on the evening of 15.11.2016, the
appellant Omprakash had taken Ved Singh from his house.
7. On the basis of the said information, an entry was made in the daily
diary (Rojnamcha Sanha No. 390), and a missing person report was
registered. Subsequently, on 15.12.2016, the complainant reported that,
while searching along with villagers at Matha Pahad, the dead body of
Ved Singh was found lying in a ravine on the other side of the hill in a
decomposed condition, emitting a foul smell.
8. Upon this information, an unnumbered merg intimation was
recorded at Police Outpost Belgahna, and inquest proceedings were
5
conducted. The dead body was sent for postmortem examination.
Thereafter, on 16.12.2016, Merg No. 150/16 under Section 174 of the
Cr.P.C. was registered at Police Station Kota.
9. During investigation, the spot map and other necessary proceedings
were carried out. On the basis of the medical report and surrounding
circumstances indicating homicidal death, an FIR bearing Crime No.
29/2017 (Ex.P/20) was registered on 22.01.2017 against unknown
persons under Sections 302 and 201 of the IPC.
10. During the course of investigation, on 25.05.2017, the appellant
Omprakash @ Onkar Bhaina was taken into custody and interrogated. In
his memorandum statement (Ex.P/12), he disclosed that the deceased
Ved Singh, who was his distant relative, used to frequently visit his house
and had been casting an evil eye upon his wife, Neera Bai, and had also
misbehaved with her. He further stated that in the month of November,
during the night, the deceased again attempted to molest his wife, upon
which he assaulted Ved Singh with a stick, causing him to fall to the
ground. His grandfather, Sukhu Singh, declared him dead. Thereafter, the
appellant called his neighbour Vinod Bhaina, and in furtherance of their
common intention, the accused persons, namely Omprakash, his wife
Neera Bai, his grandfather Sukhu Bhaina, and Vinod Bhaina, disposed of
the dead body by throwing it into Matha Pahad. It was also disclosed that
kerosene oil was brought by Neera Bai in a jerrycan and the private parts
of the deceased were burnt. The sticks used in the commission of the
offence were thrown at the spot. On the basis of the memorandum
statement, the sticks used in the offence were seized.
6
11. During investigation, witness Kaleshiya, wife of appellant Vinod
Bhaina, corroborated the prosecution case by stating that appellant
Omprakash assaulted the deceased on the head with a stick due to the
issue relating to misconduct with his wife, resulting in his death, and
thereafter, with the assistance of the co-accused persons, disposed of the
dead body in Matha Pahad.
12. Upon completion of investigation, sufficient evidence was found
against the appellants. Accordingly, they were arrested on 25.05.2017 and
produced before the Court of Judicial Magistrate First Class, Takhatpur,
District Bilaspur (C.G.), and were remanded to judicial custody.
13. After completion of investigation, a charge-sheet was filed on
22.08.2017 under Sections 302, 201, and 34 of the IPC. The case was
then committed to the Court of Sessions for trial, from where it was
transferred to the Court of the learned 5th Additional Sessions Judge,
Bilaspur, District Bilaspur (C.G.), for trial, hearing, and disposal in
accordance with law.
14. The learned trial Court framed charges against the appellants,
namely Omprakash @ Onkar Bhaina, Sukhu Bhaina, and Neera Bai,
under Sections 302/34 and 201/34 of the IPC, and against appellant Vinod
Bhaina under Section 201/34 of the IPC. The charges were read over and
explained to the appellants, who denied the same and claimed to be tried.
15. Their statements under Section 313 of the Cr.P.C. were recorded,
wherein they pleaded innocence and alleged false implication. The
appellants did not adduce any evidence in their defence.
7
16. In order to prove its case, the prosecution examined 17 witnesses
and exhibited 39 documents. However, the defence did not examine any
witness.
17. Upon appreciation of the oral and documentary evidence on record,
the learned trial Court, by its judgment dated 19.04.2018, convicted the
appellants, namely Omprakash @ Onkar Bhaina, Sukhu Bhaina, and
Neera Bai, for the offences punishable under Sections 302/34 and 201/34
of the IPC, and appellant Vinod Bhaina under Section 201/34 of the IPC,
and sentenced them as mentioned in paragraph 05 of this judgment. The
present criminal appeals have been filed challenging the said judgment of
conviction and order of sentence.
18. Mr. Anurag Bajpai, learned counsel, assisted by Mr. Abhipreet
Bajpai, learned counsel for the appellants in CRA No. 1184 of 2018,
submits that the impugned judgment of conviction and order of sentence
passed by the learned trial Court are unsustainable both on facts and in
law. It is contended that the conviction of the accused/appellants rests
primarily upon the memorandum statement (Ex.P/12) of Omprakash @
Onkar Bhaina and the alleged recovery of a jerrycan. It is further
submitted that the independent witnesses to the memorandum and
seizure proceedings have not supported the prosecution case and have
been declared hostile, thereby rendering the recovery proceedings
doubtful. It is urged that the prosecution has failed to establish a complete
and unbroken chain of circumstantial evidence so as to bring home the
guilt of the appellants beyond reasonable doubt. Accordingly, in the
absence of cogent, reliable, and trustworthy evidence, the conviction of
8
the appellants is liable to be set aside.
19. Mr. Rajkumar Pali, learned counsel appearing for the appellants in
CRA Nos. 1143 of 2018 and 1222 of 2018, submits that the implication of
the appellants is based solely on the memorandum statement (Ex.P/12) of
co-accused Omprakash @ Onkar Bhaina, and there is no independent
evidence connecting them with the alleged offence. It is contended that
nothing incriminating has been seized from the present appellants. He
further submits that Dr. D.P. Dhruw (PW-9), in his report (Ex.P/16), has
stated that the dead body was found in a highly decomposed condition,
infested with maggots, and no definite opinion could be given regarding
the cause and nature of death. In such circumstances, the involvement of
the appellants becomes highly doubtful.
20. It is also contended that the material prosecution witnesses have
not supported the prosecution case, and the prosecution has failed to
establish any motive or intention on the part of the appellants. This,
according to the learned counsel, clearly indicates that the appellants
were not present with the deceased at the relevant time, and a false case
has been concocted on the basis of an alleged illicit relationship with the
wife of appellant Omprakash. It is further submitted that the dead body of
the deceased was recovered from an open place, and the possibility of
death having been caused by some other person, or otherwise, cannot be
ruled out. Hence, the appellants cannot be held responsible for the
alleged offence.
21. Per contra, learned State counsel supports the impugned judgment
and order of conviction passed by the learned trial Court. It is submitted
9
that the trial Court has properly appreciated the oral and documentary
evidence available on record, and the findings recorded do not suffer from
any legal infirmity. It is further submitted that the memorandum statement
(Ex.P/12) of Omprakash @ Onkar Bhaina, duly recorded under Section 27
of the Evidence Act, led to the recovery of incriminating articles, which
constitute a significant circumstance against the accused persons. The
recovery at the instance of the accused is a highly incriminating piece of
evidence, which has rightly been relied upon by the learned trial Court.
22. It is further contended by the learned counsel, appearing for the
State that Bachan Singh (PW-3) is a crucial and reliable witness in the
present case. He has categorically stated that on the date of the incident,
the deceased Ved Singh had come to his house for dinner, and after
taking his meal, the accused Omprakash @ Onkar called him and took
him along. This testimony is duly corroborated by Kalam Singh Bhaina
(PW-2), who has also stated that on the evening of 15.11.2016, the
deceased had gone to the house of Bachan Singh for dinner. The
assertion made by Bachan Singh (PW-3), that on the night of the incident
the accused Omprakash called and took the deceased Ved Singh with
him, has remained unshaken and uncontroverted in cross-examination,
thereby establishing the “last seen” circumstance against the appellant
Omprakash @ Onkar Bhaina.
23. It is thus submitted that the prosecution has successfully
established a complete chain of circumstances leading to the only
irresistible conclusion that it was none other than the accused/appellants
who committed the offence in question. Therefore, the conviction recorded
10
by the learned trial Court is fully justified and does not call for any
interference by this Court.
24. We have heard learned counsel appearing for the parties,
considered their rival submissions made hereinabove, and carefully
perused the entire record with utmost circumspection.
25. The first question that arises for consideration is whether the death
of the deceased Ved Singh was homicidal in nature.
26. In this regard, the learned trial Court has relied upon the testimony
of Dr. D.P. Dhruw (PW-9), who conducted the postmortem examination
and proved his report (Ex.P/16). He deposed that on 15.12.2016, the
dead body of the deceased Ved Singh Bhaina was produced before him in
a highly decomposed condition. The body was lying in a supine position,
with maggot infestation and extensive decomposition of both external and
internal organs.
27. The Doctor further noticed burn-like injuries on the genital organs
and right knee, as well as an injury on the muscle of the left arm.
However, due to the advanced stage of decomposition, he did not give
any definite opinion regarding the cause or nature of death. He opined
that the death had occurred approximately 2-3 weeks prior to the
postmortem examination. The samples were preserved for forensic
examination. The FSL report (Ex.P/35) indicates that kerosene residues
could not be detected in the skin samples; however, the same does not
negate the presence of burn injuries observed during the postmortem.
28. Though the medical expert could not opine the exact cause of
11
death, it is well settled that such inability, particularly in cases involving
highly decomposed bodies, is not fatal to the prosecution. In the present
case, despite decomposition, the presence of burn injuries on sensitive
parts of the body and antemortem injury on the arm clearly indicate that
the death was not natural.
29. The nature and location of the injuries, coupled with the surrounding
circumstances, exclude the possibility of a natural death and firmly
establish that the death of the deceased was homicidal in nature.
30. After hearing learned counsel for the parties and considering their
rival submissions, we are of the considered opinion that the finding
recorded by the learned trial Court regarding the death of the deceased
cannot be said to be perverse or contrary to the material available on
record. Although the medical evidence does not conclusively establish the
exact cause or nature of death, the circumstances brought on record,
including the condition of the dead body and the injuries noticed, clearly
indicate that the death did not occur under normal circumstances. The
said finding, being based on a proper appreciation of the evidence, does
not warrant interference and is accordingly affirmed.
31. The next question for consideration is whether the recovery of
incriminating articles pursuant to the memorandum statement of appellant
Omprakash @ Onkar Bhaina (Ex.P/12) is admissible in evidence and can
be relied upon against the appellants.
32. In order to examine the admissibility and evidentiary value of the
said memorandum and the consequent recovery, it is necessary to
12
scrutinize the testimony of the witnesses to the memorandum and seizure,
as well as the surrounding circumstances in which such recovery is
alleged to have been effected.
33. Chunnilal Bhaina (PW-5), a witness to the memorandum, has
deposed in his examination-in-chief that the appellant, Omprakash @
Onkar Bhaina, in his presence, disclosed before the police that he had
assaulted Ved Singh with a stick, committed his murder, and thereafter
disposed of the dead body in the forest. He further stated that the stick
allegedly used in the commission of the offence and a jerrycan were
seized at the instance of the appellant, and he affixed his thumb
impression on the seizure memo (Ex.P/13). However, it is significant to
note that the disclosure attributed to the appellant is in the nature of a
confessional statement made before the police. During cross-examination,
although the witness reiterated the said version, his testimony does not
clearly establish that the recovery was made strictly in consequence of
any distinct and specific information leading to discovery, as contemplated
under law.
34. Similarly, Chatur Singh Bhaina (PW-8), another memorandum
witness, has stated in his examination-in-chief that the appellant disclosed
during interrogation that, on account of alleged misconduct with his wife,
he had assaulted the deceased and disposed of the body in a hilly area.
He further deposed that the appellant indicated that the articles used in
the offence could be recovered, pursuant to which the memorandum
(Ex.P/12) and seizure memo (Ex.P/13) were prepared. However, in cross-
examination, this witness admitted that the police did not interrogate the
13
appellant in his presence. This admission casts a serious doubt on the
authenticity of the alleged disclosure and the manner in which the
memorandum was recorded.
35. Thus, even though coercion has not been specifically alleged, the
absence of clear and reliable evidence regarding a voluntary and distinct
disclosure leading to recovery substantially weakens the prosecution
case. The prosecution has also relied upon the FSL report (Ex.P/39),
which indicates that human blood was detected on the tendu stick (Ex.’B’).
However, as the blood group could not be determined, this circumstance
does not conclusively connect the article with the deceased.
36. The learned trial Court has further sought to rely upon the contents
of the memorandum statement (Ex.P/12) to establish motive as well as
the manner of occurrence. As per the said statement, the deceased
allegedly used to visit the house of the appellant, Omprakash @ Onkar
Bhaina and had misbehaved with his wife, which led to the assault.
37. However, it is trite law that such a statement, being in the nature of
a confession made to the police, is hit by Sections 25 and 26 of the
Evidence Act and is inadmissible except to the limited extent permissible
under Section 27. The incriminating portions of the statement, including
motive and alleged assault, cannot be read in evidence. Even otherwise,
no independent and reliable evidence has been adduced by the
prosecution to establish such motive.
38. At this stage, it would be appropriate to notice Section 27 of the
Indian Evidence Act, 1872, which states as under: –
14
“27. How much of information received from
accused may be proved.–Provided 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.”
39. Section 27 of the Indian Evidence Act is applicable only if the
confessional statement relates distinctly to the fact thereby
discovered.
40. The Hon’ble 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: –
“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 to1 AIR 2018 SC 5264
2 AIR 1947 PC 67
15“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:
“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)
“… 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 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
16commission 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.
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx"
41. Reverting to the facts of the present case in light of the principles
laid down by the Hon’ble Supreme Court in Asar Mohammad (supra),
following the Privy Council decision in Pulukuri Kotayya (supra), only that
part of the information which leads to the discovery of an object, the place
from which it is produced, and the knowledge of the accused as to its
existence would be admissible. The incriminating portion of the statement,
including the allegation that the appellant had assaulted the deceased,
does not relate to the fact discovered and is, therefore, clearly
inadmissible under Section 27 of the Evidence Act.
42. The Hon’ble 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:-
“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 found3 AIR 1966 SC 119
17generally 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 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
18distinctly 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
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.”
Their Lordships further held as under:-
“18. If the first information report is given by the
accused to a police officer and amounts to a
19confessional 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
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”
43. Reverting to the facts of the present case in light of the principles
laid down by the Hon’ble Supreme Court in Asar Mohammad (supra),
following the decision of the Privy Council in Pulukuri Kotayya (supra), it
is evident that the prosecution has failed to establish that the alleged
recovery was made in consequence of any distinct and specific
information supplied by the appellant. The evidence of the memorandum
witnesses does not clearly prove the existence of such information leading
to discovery, and the disclosure attributed to the appellant is largely
confessional in nature. As such, except to the limited extent permissible
under Section 27 of the Evidence Act, the alleged recovery cannot be
treated as a reliable incriminating circumstance against the appellants.
44. Having considered the entire evidence on record, including the
memorandum statement (Ex.P/12) and the recovery effected pursuant
thereto, it emerges that although certain circumstances have been
brought on record by the prosecution, the same do not form a complete
and unbroken chain leading to the only hypothesis of the guilt of the
appellants. The circumstances relied upon are not of such a conclusive
nature as to exclude every other possible hypothesis consistent with the
innocence of the appellants.
45. The recovery of the alleged incriminating articles, even if accepted
20
to a limited extent, does not inspire full confidence. The same is not
supported by any independent witness of the locality, and the testimony of
the seizure witnesses suffers from inconsistencies, thereby diminishing its
evidentiary value. Moreover, the prosecution has failed to conclusively
connect the seized articles with the crime through reliable scientific
evidence, inasmuch as the blood detected on the stick has not been
matched with that of the deceased. In such circumstances, the recovery
cannot be treated as a determinative incriminating circumstance against
the appellants.
46. The learned trial Court has also placed reliance on the presence of
blood on the seized articles. However, in the absence of serological
examination establishing that the blood was of human origin and of the
same group as that of the deceased, such evidence remains inconclusive.
At best, it raises suspicion, but suspicion, howsoever strong, cannot take
the place of proof.
47. The next question that arises for consideration is whether the
learned trial Court was justified in convicting the appellants solely on the
basis of the “last seen together” theory, as deposed by Bachan Singh
(PW-3), and treating the same as duly established.
48. Bachan Singh (PW-3) is undoubtedly an important witness, who has
stated that on the date of the incident, the deceased Ved Singh had come
to his house for dinner and, after having his meal, the appellant,
Omprakash @ Onkar called him and took him along. This version finds
some corroboration from Kalam Singh Bhaina (PW-2), who has also
stated that the deceased had gone to the house of Bachan Singh on the
21
evening of 15.11.2016. Thus, it may be accepted that the deceased was
last seen in the company of the appellant Omprakash. However, it is well
settled that the “last seen together” circumstance, by itself, cannot form
the sole basis of conviction unless it is coupled with other incriminating
circumstances forming a complete chain. In the present case, there is a
considerable time gap between the alleged last seen and the recovery of
the dead body, which was found after about one month in a highly
decomposed condition. The prosecution has failed to establish the
proximity of time between the point when the deceased was last seen with
the appellant and the time of death, which is a crucial requirement for
applying the “last seen” theory.
49. Further, as discussed hereinabove, the other circumstances relied
upon by the prosecution, particularly the memorandum and recovery, do
not inspire full confidence and cannot be treated as conclusive. In
absence of any reliable and clinching evidence connecting the appellant
with the crime, the “last seen” circumstance remains a weak piece of
evidence.
50. The Hon’ble Supreme Court in the matter of Sharad Birdhichand
Sarda v. State of Maharashtra4 has clearly laid down the factors to be
taken into account in adjudication of cases of circumstantial evidence,
which states as under:-
“(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned “must” or “should” and not
“may be” established;
4 (1984) 4 SCC 116
22
(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;
(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.”
51. In the matter of Arjun Marik v. State of Bihar5, it has been held by
their Lordships of the Hon’ble Supreme Court have held that conviction
cannot be made solely on the basis of theory of ‘last seen together’ and
observed in paragraph 31 as under:-
“31. Thus the evidence that the appellant had gone to
Sitaram in the evening of 19-7-1985 and had stayed in
the night at the house of deceased Sitaram is very
shaky and inconclusive. Even if it is accepted that they
were there it would at best amount to though a number
of witnesses have been examined be the evidence of
the appellants having been seen last together with the
deceased. But it is settled law that the only
circumstance of last seen will not complete the chain of
circumstances to record the finding that it is consistent
only with the hypothesis of the guilt of the accused
and, therefore, no conviction on that basis alone can
be founded.”
5 1994 Supp (2) SCC 372
23
52. Likewise in the matter of State of Goa v. Sanjay Thakran6 the
Hon’ble Supreme Court has held that the circumstance of last seen
together would be a relevant circumstance in a case where there was no
possibility of any other persons meeting or approaching the deceased at
the place of incident or before the commission of crime in the intervening
period. It was observed in paragraph 34 as under:-
“34. From the principle laid down by this Court, the
circumstance of last-seen together would normally be
taken into consideration for finding the accused guilty of
the offence charged with when it is established by the
prosecution that the time gap between the point of time
when the accused and the deceased were found
together alive and when the deceased was found dead
is so small that possibility of any other person being
with the deceased could completely be ruled out. The
time gap between the accused persons seen in the
company of the deceased and the detection of the
crime would be a material consideration for appreciation
of the evidence and placing reliance on it as a
circumstance against the accused. But, in all cases, it
cannot be said that the evidence of last seen together is
to be rejected merely because the time gap between
the accused persons and the deceased last seen
together and the crime coming to light is after a
considerable long duration. There can be no fixed or
straight jacket formula for the duration of time gap in
this regard and it would depend upon the evidence led
by the prosecution to remove the possibility of any other
person meeting the deceased in the intervening period,
that is to say, if the prosecution is able to lead such an
evidence that likelihood of any person other than the6 (2007) 3 SCC 755
24accused, being the author the crime, becomes
impossible, then the evidence of circumstance of last
seen together, although there is long duration of time,
can be considered as one of the circumstances in the
chain of circumstances to prove the guilt against such
accused persons. Hence, if the prosecution proves that
in the light of the facts and circumstances of the case,
there was no possibility of any other person meeting or
approaching the deceased at the place of incident or
before the commission of the crime, in the intervening
period, the proof of last seen together would be relevant
evidence. For instance, if it can be demonstrated by
showing that the accused persons were in exclusive
possession of the place where the incident occurred or
where they were last seen together with the deceased,
and there was no possibility of any intrusion to that
place by any third party, then a relatively wider time gap
would not affect the prosecution case.”
53. Similarly in the matter of Kanhaiya Lal v. State of Rajasthan7, their
Lordships of the Hon’ble Supreme Court have clearly held that the
circumstance of last seen together does not by itself and necessarily lead
to the inference that it was the accused who committed the crime and
there must be something more establishing connectivity between the
accused and the crime. Mere non-explanation on the part of the appellant
in our considered opinion, by itself cannot lead to proof of guilt against the
appellant. It has been held in paragraphs 15 and 16 as under:-
“15. The theory of last seen – the appellant having gone
with the deceased in the manner noticed hereinbefore, is
the singular piece of circumstantial evidence available
against him. The conviction of the appellant cannot be7 (2014) 4 SCC 715
25maintained merely on suspicion, however strong it may
be, or on his conduct. These facts assume further
importance on account of absence of proof of motive
particularly when it is proved that there was cordial
relationship between the accused and the deceased for
a long time. The fact situation bears great similarity to
that in Madho Singh v. State of Rajasthan8.
16. In view of the aforesaid circumstances, it is not
possible to sustain the impugned judgment and
sentence. This appeal is allowed and the conviction and
sentence imposed on the appellant-accused Kanhaiya
Lal are set aside and he is acquitted of the charge by
giving benefit of doubt. He is directed to be released
from the custody forthwith unless required otherwise.”
54. Finally in the matter of Anjan Kumar Sarma v. State of Assam9
their Lordships of the Hon’ble Supreme Court have clearly held that in a
case where other links have been satisfactorily made out and
circumstances point to guilt of accused, circumstance of last seen
together and absence of explanation would provide an additional link
which completes the chain. In absence of proof of other circumstances the
only circumstance of last seen together and absence of satisfactory
explanation, cannot be made basis of conviction.
55. Reverting to the facts of the present case in light of the aforesaid
decisions rendered by the Hon’ble Supreme Court, particularly in Anjan
Kumar Sarma (supra), it is quite clear that the circumstance of “last seen
together” and absence of explanation can only operate as an additional
link in the chain of circumstances, provided other incriminating
8 (2010) 15 SCC 588
9 (2017) 14 SCC 359
26
circumstances are firmly established. In the present case, except the
homicidal nature of death and the alleged last seen evidence of Bachan
Singh (PW-3), no other reliable incriminating circumstance has been
proved. The prosecution has failed to establish a complete chain of
circumstances leading only to the hypothesis of guilt of the appellants.
56. The next circumstance relied upon by the learned trial Court is the
recovery of two sticks pursuant to the memorandum statement of the
appellant, Omprakash @ Onkar Bhaina. In this regard, the prosecution
has placed reliance on the FSL report (Ex.P/39), which indicates that
human blood was detected on the tendu stick (Ex.’B’). However, it is
significant to note that the blood group of the said blood could not be
determined. In the absence of such determination, the prosecution has
failed to establish any definite nexus between the seized article and the
deceased. As such, this circumstance, at best, raises a suspicion but does
not constitute a conclusive incriminating link against the appellants.
57. At this stage, pertinent decision of the Supreme Court on this point
in the matter of Balwan Singh v. State of Chhattisgarh and another 10
may be noticed herein, in which the Hon’ble Supreme Court has
summarized the law on this point after taking into the decision of the
Hon’ble Supreme Court (Constitution Bench) in the matter of Raghav
Prapanna Tripathi v. State of U.P. 11. In Raghav Prapanna Tripathi
(supra), the Constitution Bench of the Hon’ble 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
10 (2019) 7 SCC 781
11 AIR 1963 SC 74
27
blood group as that of the accused.
58. The aforesaid decision of the Hon’ble Supreme Court i.e. Raghav
Prapanna Tripathi (supra) was followed in Balwan Singh (supra) in
which it was observed as under:-
“23. From the aforementioned discussion, we 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.”
59. Thereafter, the Hon’ble 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:-
“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
28recovery of the weapons and tabbal, and such recovery
does not help the case of the prosecution.”
60. Reverting to the facts of the present case, it is evident that the
prosecution has failed to establish that the blood found on the seized
tendu stick (Ex.’B’) was that of the deceased. In the absence of any
serological examination or scientific evidence establishing such linkage,
the alleged recovery loses its probative value and cannot be treated as a
conclusive incriminating circumstance.
61. Even otherwise, the said recovery is referable only to the
memorandum statement of appellant Omprakash @ Onkar Bhaina and
cannot be extended to the other appellants. There is no independent and
reliable evidence on record to connect the co-accused/appellants, namely
Sukhu Bhaina, Neera Bai, and Vinod Bhaina, with either the said recovery
or the commission of the offence. No overt act, participation, or specific
role has been attributed to them by any trustworthy evidence.
62. The alleged motive, namely the improper conduct of the deceased
towards the wife of appellant Omprakash, also remains unproved in
accordance with law, as it emerges only from the memorandum
statement, which has limited admissibility and cannot be treated as
substantive evidence. Further, the statement of co-accused Vinod Bhaina
recorded under Section 164 Cr.P.C. (Ex.P/31-C), even if taken into
consideration, does not constitute substantive evidence against the
present appellants and, in absence of independent corroboration, cannot
be made the basis of conviction.
63. Thus, the entire case against the other appellants rests on weak,
29
inadmissible, or uncorroborated material. Even qua appellant Omprakash,
the recovery is not of such a nature as to conclusively connect him with
the crime.
64. On a cumulative assessment of the entire evidence on record, this
Court finds that the prosecution has failed to establish a complete and
unbroken chain of circumstances so as to lead only to the hypothesis of
guilt of the appellants. The circumstances relied upon, including the
memorandum and alleged recovery, the FSL report, the “last seen
together” evidence, and the alleged motive, are either not proved in
accordance with law or are too weak and inconclusive to form a coherent
chain.
65. It is a settled principle of criminal jurisprudence that suspicion,
however strong, cannot take the place of proof. In the present case, the
evidence on record, at best, raises a suspicion against the appellants, but
falls short of establishing their guilt beyond reasonable doubt. The
appellants are, therefore, entitled to the benefit of doubt.
66. Accordingly, the appeals are allowed. The impugned judgment of
conviction and order of sentence dated 19.04.2018 passed by the learned
trial Court are set aside. The appellants are acquitted of all the charges
levelled against them.
67. The appellants are reported to be on bail. In view of their acquittal,
they are not required to surrender. However, in compliance with the
provisions of Section 437-A of the Cr.P.C. (now Section 481 of the
Bharatiya Nagarik Suraksha Sanhita, 2023), their bail bonds shall remain
30
in force for a further period of six months from today.
68. The Registry is directed to forthwith transmit the record of the trial
Court along with a certified copy of this judgment to the Court concerned
for information and necessary compliance.
Sd/- Sd/-
(Bibhu Datta Guru) (Ramesh Sinha)
Judge Chief Justice
Brijmohan
