Chattisgarh High Court
Mohit Thakur vs State Of Chhattisgarh on 27 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
Digitally signed
by V
PADMAVATHI
Date: 2026.05.02
13:39:29 +0530 1
2026:CGHC:19265-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 686 of 2024
1. Mohit Thakur S/o Lakhan Thakur Aged About 33 Years R/o
Village- Mundra, Police Station, Ranchirai, Dist.- Balod,
Presently Residing- Malay Jains New Live Farm House,
Koliharpuri, P.S. Pulgaon, Dist. Durg, C.G.
... Appellant (In Jail)
versus
1. State Of Chhattisgarh Through- Station House Officer, P.S.-
Pulgaon, Dist. Durg, C.G.
... Respondent
For Appellant : Mr. Sandeep Yadav, Advocate
For Respondent : Mr. Shailendra Sharma, Panel Lawyer
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
27.04.2026
1. This criminal appeal under Section 374(2) of the CrPC is
directed against the impugned judgment of conviction
and order of sentence dated 14.2.2024 passed by the 8 th
2
Upper Sessions Judge, Durg District Durg (C.G.) in
Sessions Trial No.202/2021, convicting
accused/appellant for the offence punishable under
Section 302 of the Indian Penal Code (for short ‘IPC‘)
and sentencing him to undergo rigorous imprisonment for
life with a fine of Rs.1,000/-, in default to undergo
additional R.I. for 06 months.
2. The prosecution case, in brief, is that complainant Salik
Ram Sahu appeared at Police Station Pulgaon, District
Durg on 13.06.2021 and lodged a report stating that on
13.06.2021 at about 08:00 a.m. when he was in his
house, PW-3 Mahendra Nishad and PW-4 Tikesh Sahu
informed him over mobile phone that dead body of a
male is lying behind under-constructed Rishabh Market,
New Life Farm Road. He had informed the said fact to
Sarpanch Jawala Prasad Deshmukh and thereafter they
reached the spot and found that dead body is of Ajay
Kumar Kothari, who was working as Security Guard in
the Farm House of Suresh Kothari; there were several
bleeding injuries on his body caused by sharp edged
weapon. Based on aforementioned information, FIR
came to be registered under Crime No.206/2021 for the
3
offence punishable Section 302 of IPC. In the course of
investigation, dead body was sent for postmortem
examination which was conducted by PW-19 Dr. Kajal
Jain and as per postmortem report, Ex.P-18, cause of
death was hypovalemic shock due to stab injury to vital
organ and death was homicidal in nature.
Accused/appellant was arrested and his memorandum
statement was recorded vide Ex.P-10. Statements of
witnesses were recorded under Section 313 CrPC.
3. In the course of investigation, an offence under Section
302 IPC was found to be made out against the accused.
After completion of investigation, the charge-sheet was
filed before the Court of Judicial Magistrate First Class,
Durg on 09.08.2021, from where the case was committed
to the committal Court vide order dated 26.08.2021 and
thereafter it was received by the competent Court on
04.09.2021 for trial. On 22.12.2021 charge under
Section 302 of IPC was framed against accused Mohit
Thakur. He denied the charge and sought trial. His plea
was recorded in his own words.
4. In order to prove its case, the prosecution had examined
as many as 20 witnesses before the trial Court, namely
4
Jwala Prasad Deshmukh (PW-1), Salik Ram Sahu (PW-
2), Mahendra Nishad (PW-3), Tikeshwar Sahu (PW-4),
Anil Yadav (PW-5), Gannu Ram Sahu (PW-6), Akeshwar
Sahu (PW-7), Smt. Manju Yadav (PW-8), Raju Yadav
(PW-9), Nandkumar Thakur (PW-10), Ajit Yadav (PW-11)
Patwari Purushottam Sahu (PW-12), Constable Eman
Chandrakar, Constable Lokesh Kumar Diwakar (PW-14),
Constable Mehfooz Khan (PW-15), Pawan Verma (PW-
16), Dushyant Chandrakar (PW-17) Assistant Sub
Inspector Narendra Singh (PW-18), Dr. Kajal Jain (PW-
19) and retired Assistant Sub Inspector Domaar Ram
Sahu (PW-20).
5. Statement of accused/appellant was recorded under
Section 313 of the Code of Criminal Procedure, 1973 in
which he again pleaded innocence and false implication.
Accused/appellant also expressed his willingness to
adduce evidence in defence, however, subsequently he
did not lead any evidence in his defence.
6. The trial Court after appreciating the evidence, oral and
documentary, available on record, by the judgment dated
14.02.2024, convicted and sentenced the appellant for
the offence under Section 302 of the IPC in the manner
5
as described in opening paragraph of this judgment,
against which, this criminal appeal has been preferred by
accused/appellant.
7. Mr. Sandeep Yadav, learned counsel for the appellant
submitted that there is no direct evidence against the
appellant and the entire case of prosecution rests upon
circumstantial evidence i.e. last seen theory. He submits
that last seen theory comes into play where the time gap
between the point of time when the accused and
deceased were seen last alive and when the deceased is
found dead is so small that possibility of any person other
than the accused being the author of crime becomes
impossible. He submits that in the present case, the
conviction has been based by the learned trial Court
merely on the evidence of “last seeing the appellant with
deceased Ajay Kumar Yadav. However, the evidence of
last seen witnesses, namely, PW-8 Smt. Manju Yadav,
wife of deceased, and PW-11 Ajeet Yadav, brother-in-law
of deceased, who have allegedly seen the deceased last
time alive in the company of accused-appellant, does not
inspire confidence for the reason that time gap between
the last seen by these witnesses and recovery of dead
6
body of deceased is so long, the possibility of any person
other than the appellant being the author of crime cannot
be ruled out. Therefore, it cannot be said with any
degree of certainty that it was accused/appellant alone
who had committed the offence.
8. Learned counsel for the appellant next contended that a
person conscious of his/her alleged involvement would,
in the ordinary course, seeks to avoid any proximity to
the scene so as to minimize the risk of detection or
identification, therefore, it is wholly unnatural and highly
improbable that an accused after murdering the
deceased would visit the spot. Even otherwise, such a
conduct would be oppose to normal human conduct and
inherently inconsistent with the basic instinct of self-
preservation that governs human behavior, particularly in
the aftermath of a grave criminal act like murder.
However, in case at hand, on being informed by
Mahendra Nishad (PW-3) and Tikesh Sahu (PW-4) that
dead body of male is lying in the middle of road in
Kolihapuri, accused/appellant informed said fact to
complainant (PW-2), visited the spot and also identified
the body to be of Ajay Kumar Yadav.
7
9. Learned counsel for the appellant further contended that
evidence with regard to recovery of weapon on the
alleged disclosure statement of appellant is also not
significant as the weapon has been recovered from an
open place accessible to all and therefore, the recovery
is suspicious and does not show that it was made at the
instance of the accused/appellant. He further contended
that FSL report is not available on record confirming that
human blood tallying with the blood group of the
deceased was found alleged weapon of offence, knife.
Hence, alleged recovery of weapon is not at all falling
within the category of an incriminating circumstance
against accused/appellant.
10. Learned counsel for the appellant also submits that there
was no evidence or allegation to the effect that there was
any dispute or previous animosity between appellant and
deceased, rather it has come in evidence of PW-8 Manju
Yadav, widow of deceased, that there was friendship
between appellant and deceased. Thus, it can be safely
presumed that there was no motive of appellant to kill the
deceased and absence of motive raises a strong
presumption of innocence. However, this aspect has
8
been altogether ignored by learned trial Court.
11. Learned counsel for appellant also contended that apart
from above, there is no other evidence available on
record to connect the appellant with crime in question,
except alleged own confession of appellant recorded in
memorandum statement, Ex.P-10. It is well settled that
unless recovery based on disclosure is legally proved,
inculpatory inferences against an accused cannot be
drawn. In case at hand, recovery of knife pursuant to
memorandum of appellant is not proved as per law,
therefore, memorandum of appellant recorded under
Section 27 of the Evidence Act has no evidentiary value
and even the same is not admissible under Section 25 of
the Evidence Act.
12. Learned counsel for the appellant lastly submits that from
the above it is evident that the prosecution utterly failed
to bring on record any cogent or reliable evidence on the
aspect of last seen together and similarly recovery of
alleged weapon of offence on the memorandum
statement of appellant, may not be sufficient to convict
the appellant in the absence of report of chemical
examination. In other words, the circumstances brought
9
on record and relied by prosecution were not conclusively
proved and do not form a complete chain to prove the
involvement of accused/appellant. Conviction of the
appellant is not based on a sound foundation of
evidence. The benefit of doubt must be extended to
appellant, as the prosecution has failed to prove its case
beyond a reasonable doubt. The learned Trial Court did
not appreciate the evidence in its correct perspective and
convicted the Appellant. Therefore, it is prayed that the
conviction be set aside, and the appellant be acquitted of
all charges.
13. On the other hand, Mr. Shailendra Sharma, learned
Panel Lawyer, appearing for the State/respondent
opposed the aforesaid submissions and supported the
judgment of learned trial Court. He would submit that
there is positive evidence of by PW-8 and PW-10 that
the deceased was last seen alive in the company of
accused/appellant and thereafter his dead body was
recovered. Witnesses of last seen had duly supported the
case of the prosecution. Thus, it was clearly established
that the accused was last seen alive in the company of
the deceased. The time gap between the accused being
10
seen with the deceased and the occurrence is so minimal
that the possibility of any third-party intervention is
completely ruled out. Therefore, the burden shifted upon
the accused to explain how the deceased met with such
an unnatural death. Appellant has not answered the
question put to him in his examination under Section 313
of the Cr.P.C. to explain the circumstance of last seen
together, therefore, his silence provides missing link and
the appellant has rightly been convicted.
14. Learned Panel Lawyer further submits that weapon of
offence is seized at the instance of accused/appellant
and in the query report obtained from doctor, it has been
opined that injuries found on the body of deceased could
have been caused by said knife. Accused/appellant
admitted in his memorandum statement that deceased
demanded money from him for drinking liquor, he refused
to give money, owing to which a quarrel ensued between
them and in that process he took out knife from his attire,
stabbed deceased 4-5 times, which caused his death.
15. Learned Panel Lawyer further contended that absence of
motive in a case based on circumstantial evidence is not
fatal and if the prosecution could not adduce evidence on
11
the motive, it does not indicate innocence of the
appellant. He submits that the circumstances on record,
including last seen evidence, recovery of knife and failure
to explain as to when and where he had left the company
of the deceased and as to where deceased had gone
thereafter, form a complete and unbroken chain
consistent only with the hypothesis of guilt. The learned
trial Court has meticulously appreciated both oral and
documentary evidence available on record and has
rightly recorded the finding of guilt which is fully justified
being based on a complete chain of circumstantial
evidence which unerringly points towards guilt of the
ceased and the same does not suffer from any perversity
or illegality. Therefore, the present appeal being devoid of
merit deserves to be dismissed, and the conviction and
sentence under Section 302 IPC ought to be affirmed.
16. We have heard learned counsel appearing for the parties,
considered their rival submissions made herein-above
and also went through the records with utmost
circumspection.
17. Following points arise for consideration in this appeal:
• Whether the deceased died due to homicidal injuries?
12
• Whether the prosecution has successfully established
a complete chain of circumstances pointing unerringly
towards the guilt of the appellant?
• Whether the conviction based on “last seen together”
theory and other circumstantial evidence is
sustainable in law?
• Whether appellant is entitled to the benefit of doubt?
18. To establish homicidal death of deceased Ajay Yadav, the
prosecution has examined Dr. Kajal Jain (PW-19), who
conducted autopsy over dead body of deceased;
submitted and proved postmortem report Ex.-P-18. In
her deposition, the doctor has deposed that during
postmortem examination, she noticed one stab wound of
the size of 3×6 cm, present over right side of chest; stab
wound of the size of 1.5×1 cm at the upper part of right
side of chest; one lacerated wound below right eyelid of
the size 1 x 0.5 cm; stab injury over left temporal parietal
region of the size 3x1cm, bone deep,; lacerated wound of
2x1cm at left temporal region; irregular lacerated wound
in between ear and cheek; lacerated wound of 2×1 cm.
Size on left occipital region; lacerated wound of 2×2 cm
size at the upper side of left arm. This witness has opined
13
that the death was due to hypovalemic shock due to
injuries sustained on vital organs; all the injuries were
ante-mortem and death was homicidal in nature. Duration
of death was 16-20 hours prior to postmortem
examination. From the above medical evidence, it is clear
that cause of death of the deceased was homicidal in
nature and occurred due to stab injuries on vital organs.
Even, homicidal death of deceased has not been
disputed on behalf of accused-appellant. Thus, it stands
established that death of deceased was homicidal in
nature.
19. As per the prosecution case, a quarrel took place
between the accused/appellant and the deceased when
the accused/appellant allegedly expressed his inability to
give money to deceased on his demand for drinking
liquor and in that process, appellant caused stab injuries
with knife to deceased which ultimately resulted in his
death. According to evidence of PW-8 Smt. Manju Yadav
and PW-10 Nandkumar Thakur, they had seen the
deceased last time alive in the company of deceased.
Thus, present being not a case of direct evidence, rather
hinges upon circumstantial evidence i.e. “last seen
14
together” theory and when a case totally hinges on
circumstantial evidence, it is the duty of the Court to see
the circumstances which lead towards the guilt of the
accused should have been fully established or not.
20. However, before coming to the evidence available on
record which the prosecution has adduced to bring home
the charge against the appellant, and the alleged
incriminating circumstances appearing against the
accused, it would be apt to discuss first as to in case
which hinges on circumstantial evidence, how and under
what circumstances, an accused can be held guilty for
the commission of offence.
21. In the matter of Sharad Birdhichand Sarda v. State of
Maharashtra1 Hon’ble Supreme Court 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;
1 (1984) 4 SCC 116
15
(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.”
22. In the matter of Arjun Marik v. State of Bihar2, it has
been held by their Lordships of the 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 the2 1994 Supp (2) SCC 372
16house 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.”
23. In the matter of State of Goa v. Sanjay Thakran 3 the
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 guilty3 (2007) 3 SCC 755
17of 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 the accused, being the
18author 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. “
24. Similarly in the matter of Kanhaiya Lal v. State of
Rajasthan4, their Lordships of the Supreme Court have
clearly held that the circumstance of last seen together
does not by itself and necessarily lead to the inference
4 (2014) 4 SCC 715
19
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 be maintained 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 Rajasthan5.
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
5 (2010) 15 SCC 588
20
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.”
25. Finally in the matter of Anjan Kumar Sarma v. State of
Assam6 their Lordships of the 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.
26. Reverting back to the facts of present case. Jwala Prasad
Deshmukh (PW-1) is the person who had intimated the
police through telephone about presence of a dead body
in the farm house. He is also witness to notice,Ex.P-1,
seizure memo Ex.P-3, Ex.P-4 and Ex.P-5.
27. Salik Ram Sahu (PW-2) is the lodger of FIR (Ex.P-6). He
has deposed that on being informed by Mahendra Nishad
6 (2017) 14 SCC 359
21
(PW-3) and Tikesh Sahu (PW-4), that a dead body is
lying on road outside the farm house, accused-appellant
informed me through telephone that a dead body is lying
on road outside New Life Farm House. Upon receiving
such information, he went to the farm house and saw that
dead body of Ajay Yadav is lying. Accused Mohit Yadav
told him that dead body is of Ajay Yadav. He is also
witness of inquest (Ex.P-2), seizure memos (Ex.P-3 and
Ex.P-4), merg intimation (Ex.P-7), spot map (Ex.P-8),
map prepared by Patwari vide Ex.P-9.
28. Mahendra Nishaad (PW-3) is the witness of
memorandum statement of accused (Ex.P-10). He has
deposed that he knows the accused/appellant. Police
interrogated accused/appellant in the police station in his
presence. Memorandum statement, Ex.P-10, bears his
signature at A to A part. In the cross-examination, this
witness has admitted that police had not interrogated
accused/appellant in his presence and on being informed
by the police, he came to know that accused/appellant
had murdered the deceased. He further admitted that he
did not read the documents signed by him in police
station.
22
29. Tikeshwar Sahu (PW-4), is another witness to
memorandum statement of accused/appellant. Though
this witness has deposed in examination-in-chief that
police interrogated the accused/appellant in the police
station in his presence, however, in the cross-
examination he admitted that when he and Mahendra
Nishad reached police station, accused/appellant was
there in the custody of police and they were informed by
the police that accused/appellant had confessed that he
has killed the deceased. This witness has also admitted
that he did not read the documents signed by him in
police station.
30. Anil Yadav (PW-5), Gannu Ram Sahu (PW-6), Akeshwar
Sahu (PW-7), Raju Yadav (PW-9), Purushottam Sahu
(PW-12) and Dushyant Chandrakar (PW-17) were formal
witnesses and they have deposed as to various aspects
of the investigation.
31. PW-8 Smt. Manju Yadav, widow of deceased, has
deposed that around one year prior to date of recording
of her evidence, her husband (deceased) returned in the
evening from the house of his employer situated in
Padmanabhpur, along with plants for garden. After
23
drinking liquor and eating egg curry, which he brought
along with him from outside, he demanded Rs.500/- from
her and thereafter left the house. She saw her husband
going along with accused/appellant on a bicycle. She
waited for return of her husband for whole night, but he
did not return. She received three calls of
accused/appellant in the mobile phone of her husband,
which he had left at the house. Accused/appellant
informed her over mobile phone that her husband had
quarrelled with him and had also torn his clothes.
Thereafter, she was informed by her family members that
her husband is murdered by some person in Kolihapuri.
In the cross-examination, this witness has admitted that
her husband and accused/appellant had not gone
together and she is not aware as to whether there was
any kind of dispute or quarrel between her husband and
the accused/appellant.
32. Nandkumar Thakur, PW-10, is an another witness of last
seen. He deposed that on the fateful day, deceased
asked him to go to his wife and bring Rs.500/-, thereafter
the deceased, accused/appellant and this witness had
gone to Potiya liquor kiln, consumed liquor and thereafter
24
at about 7:00 p.m. he left their company. Meaning
thereby, he is not aware as to what happened thereafter.
33. Ajit Yadav, PW-11, is the person who allegedly separated
the deceased and accused/appellant when they were
quarreling at liquor kiln. This witness has not supported
the prosecution case and declared hostile. However, in
the cross-examination by defence, this witness has
deposed that he had seen accused/appellant near the
Potiya liquor kiln, he was alone and nobody was with
him.
34. PW-19, Dr. Kajal Jain is the doctor who conducted
autopsy on the body of deceased and issued postmortem
report Ex.P-18. In the opinion of the doctor, the death
was due to hypovolemic shock following ante mortem
stab injury to vital organ along with multiple stab injuries.
Duration between death and postmortem examination
was recorded as 16-20 hours.
35. PW-13 Constable Eman Chandrakar, PW-14 Constable
Lokesh Kumar Diwakar, PW-15 Constable Mehfooz
Khan, PW-16 Constable Pawan Verma, PW-18 ASI
Narendra Singh and PW-20 Domar Ram Sahu are the
police personnel who took part in the process of
25
investigation and they have deposed the facts regarding
the respective role played by them during investigation.
36. A careful appreciation of the testimonies of above PW-8
Smt. Manju Yadav and PW-10, Nandkumar,
demonstrates that, at best, it establishes that deceased
was seen in the company of accused/appellant in the
evening of 12.6.2021. Dead body of deceased was found
on 13.6.2021 in an under-constructed market located on
New Life Farm Road in village Kolihapuri. Both these
witnesses have not deposed that they had seen the
appellant with the deceased just before the dead body
was found that too at the place where from it was
recovered. They have also not deposed that they have
seen the quarrel between the deceased and
accused/appellant. In fact, it has come in the evidence of
PW-8 Smt. Manju Yadav that there was friendship
between the deceased and accused/appellant.
Therefore, merely because aforementioned witnesses
had seen the deceased and appellant together a day
prior to recovery of dead body of deceased, it is not
sufficient to give rise to an inference that it is the
accused-appellant who committed murder of deceased.
26
Had it been the case where, after being seen by these
witnesses, this appellant was also seen by someone at or
near the place from where the dead body was recovered
or it is he who got recovered the body of deceased, the
position would have been different. In case at hand, the
dead body was firstly seen by Mahendra Nishad (PW-3)
and Tikeshwar Sahu (PW-3) and only after being
informed by them, accused-appellant had informed PW-2
Salik Ram, lodger of FIR, that a dead body is lying on
road.
That apart, there is a time gap of more than 12
hours and considerable distance between the two
locations, that is to say, place of last seen i.e. Potiya
liquor kiln, and under-constructed market place from
where dead body of deceased was recovered. The last-
seen theory comes into play where the time-gap between
the point of time when the accused and the deceased
were last seen alive and when the deceased is found
dead is so small that possibility of any person other than
accused being the author of the crime becomes
impossible. Long time gap between the last seen
together and recovery of dead body; considerable
27
distance between the place of last seen and the place
from where dead body is recovered, the possibility of any
third person coming in between is very much there and
therefore, it is very much difficult, if not impossible, to
conclude that it was the appellant alone who is
responsible for homicidal death of the deceased.
In case of State of Goa vs Sanjay Thakran and
another, reported in (2007) 3 SCC 755, there was
considerable time gap of approximately 8½ hours when
the deceased was last seen alive with the accused
persons and in such a situation, Hon’ble Supreme Court
has held that there being a considerable time gap
between the persons seen together and the proximate
time of crime, the circumstance of last seen together,
even if proved, cannot clinchingly fasten the guilt on the
accused.
37. The circumstance of recovery of weapon of offence i.e.,
knife, pursuant to memorandum statement of
accused/appellant has been found proved by the learned
trial Court and even the doctor who examined seized
knife has opined that injuries suffered by deceased could
have been caused by said knife, but report of chemical
28
examination to ascertain presence of bloodstains, that
too of blood group of deceased, has not been produced
by the prosecution so as to connect the knife with
commission of offence. In the absence of linkage through
scientific evidence between the seized knife and the
injuries suffered by deceased, mere recovery of a knife
based on memorandum statement cannot be treated as
incriminating evidence against the appellant. Therefore, it
is not such circumstance which would be sufficient to
sustain appellant’s conviction for committing the murder
of deceased.
38. It is true that memorandum statement of accused-
appellant was recorded vide Ex.P-10 under Section 27 of
the Evidence Act in the presence of two witnesses
namely Mahendra Nishad (PW-3) and Tikeshwar Sahu
(PW-4) wherein accused-appellant himself has admitted
that on the fateful day of incident, in the process of
quarrel, he took out knife from his attire and stabbed the
deceased 4-5 times which resulted in his death. From
the evidence of witnesses of memorandum statement of
accused-appellant, as discussed in preceding paragraph,
it is evident that though it has come in Para`14 of the
29
cross-examination of Tikeshwar Sahu (PW-4) that the
police had interrogated accused-appellant in presence of
various persons including him and Mahendra Nishad
(PW-3). However, Mahendra Nishad (PW-3) has
deposed in Para-6 of the cross-examination that the
police did not interrogate accused Mohit Thakur in his
presence and on being informed by police, he came to
know that it is accused Mohit Thakur who had killed Ajay
Yadav. Both these witnesses have also admitted in the
cross-examination that they have signed Ex.P-10 without
reading the same nor the same were read over to them
by police personnel. Therefore, it is highly doubtful that
these two witnesses were even present at time of
recording of memorandum statement of accused/apelant
or not. This apart, there is mention in memorandum
statement of accused-appellant that while he and
deceased were quarreling, Ajeet Yadav (PW-11)
intervened and separated them. However, Ajeet Yadav
(PW-11) in his evidence has denied to have seen anyone
with the accused/appellant on the fateful night and stated
that he had seen the accused-appellant alone near
country-made liquor shop. Hence, the contents of
memorandum of accused-appellant and the evidence in
30
this regard available on record, are contradictory which
renders the entire proceedings of recording
memorandum doubtful.
39. That apart, Section 25 of the Indian Evidence Act, 1872
says that no confession made to a police officer, shall be
proved as against a person accused of any offence.
Thus, Section 25 of the Evidence Act makes the
confessional statement of accused before police officers
inadmissible in evidence which cannot be brought on
record by prosecution to obtain conviction. In the matter
of Aghnoo Nagesia v. State of Bihar, reported in AIR
1966 SC 119, Hon’ble Supreme Court has 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……The terms of Section 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
31the 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…..”
40. As such, the memorandum statement (Ex. P/10) of the
appellant/accused under Section 27 of the Evidence Act
is inadmissible in evidence being hit by Section 25 of the
Evidence Act in view of the decision rendered by the
Supreme Court in Aghnoo Nagesia (supra) and therefore,
cannot be made basis for upholding the conviction.
41. In Kali Ram v. State of Himachal Pradesh 7 the Hon’ble
Supreme Court held that if two views are possible, the
one favorable to the accused must be adopted. The
present case clearly admits of such doubt.
42. Upon a comprehensive evaluation of the evidence on
record, this Court is of the considered opinion that the
prosecution has failed to establish a complete and
unbroken chain of circumstances. The evidence does not
conclusively point towards the guilt of the appellant and
leaves room for reasonable doubt. The conviction
recorded by the learned trial Court is therefore
7 (1973) 2 SCC 808
32
unsustainable in law.
43. Accordingly, criminal appeal is allowed. The judgment of
conviction and order of sentence dated 14.02.2024
passed by the learned trial Court under Section 302 IPC
are hereby set aside. Appellant is acquitted of the charge
by extending him benefit of doubt. He shall be released
forthwith, if not required to be detained in any other case.
44. Appellant is directed to furnish personal bond for a sum
of Rs.25,000/- and one surety in the like amount to the
satisfaction of the Court concerned in compliance with
Section 437-A of the Code of Criminal
Procedure, 1973 (Section 481 of the Bharatiya Nagarik
Suraksha Sanhita, 2023).
45. Let a copy of this judgment and original record be
transmitted to trial court concerned forthwith for
necessary information and compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
padma/-
