Chattisgarh High Court
Smt. Baby Mandle vs State Of Chhattisgarh on 1 May, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2025:CGHC:20054-DB
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 145 of 2021
1 - Kumari Megha Goyal D/o. Mohan Goyal Aged About 20 Years R/o. Dayalband,
Gurunanak School, Near Fci Godown, Lingiyadih, Bilaspur, District Bilaspur
Chhattisgarh., District : Bilaspur, Chhattisgarh
--- appellants(s)
versus
1 - State Of Chhattisgarh Through Police Station Sarkanda, District Bilaspur
Chhattisgarh., District : Bilaspur, Chhattisgarh
--- Respondent(s)
CRA No. 437 of 2021
1 – Smt. Baby Mandle W/o Balaram Mandle Aged About 40 Years R/o Village
Amne, Police Station Kota, District Bilaspur Chhattisgarh, Present Address Near
Gurughasidas Mandir, Tarbahar, Police Station Tarbahar, District Bilaspur Chhat-
tisgarh., District : Bilaspur, Chhattisgarh
2 – Yogesh Mandle S/o Balaram Mandle Aged About 26 Years R/o Village Amne,
Police Station Kota, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattis-
garh
3 – Balaram Mandle S/o Late Sahasram Mandle Aged About 46 Years R/o Village
Amne, Police Station Kota, District Bilaspur Chhattisgarh, Present Address Rajk-
ishore Nagar, Police Station Sarkanda, District Bilaspur Chhattisgarh., District :
Bilaspur, Chhattisgarh
2
4 – Abhishek Mandle S/o Balaram Mandle Aged About 21 Years R/o Near Gu-
rughasidas Mandir Tarbahar, Police Station Tarbahar, District Bilaspur Chhattis-
garh., District : Bilaspur, Chhattisgarh
—appellants(s)
Versus
1 – State Of Chhattisgarh Through Station House Officer Police Station Sarkanda,
District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh
…Respondent(s)
In CRA No. 145/2021
For appellants : Mr. Siddhant Tiwari, Advocate.
For Respondent/State : Mr. S.S. Baghel, Dy. G.A.
In CRA No. 437/2021
For appellantss : Mr. Shivendu Pandya, Advocate
For Respondent/State : Mr. S.S. Baghel, Dy. G.A.
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Arvind Kumar Verma Judge
Judgment on Board
Per Arvind Kumar Verma, Judge
01.05.2025
1. Heard Mr. Siddhant Tiwari, learned counsel for appellants in CRA No.
145/2021 and Mr. Shivendu Pandya, learned counsel for the appellantss in
CRA No. 437/2021. Also heard Mr. S. S. Baghel, Dy. G.A., appearing for the
respondent/State.
2. This criminal appeal filed by the appellantss/accused under Section
374(2) of the Code of Criminal Procedure, 1973 (now Section 415(2) of the
Bharatiya Nagarik Suraksha Sanhita, 2023) is directed against the
impugned judgment of conviction and order of sentence dated 19.01.2021,
3
passed by Court of learned 1st Additional Sessions Judge, Bilaspur District
Bilaspur (C.G.) in Sessions Case No. 66/2019, whereby the appellantss
have been convicted and sentenced as under:-
Conviction under Sections Sentence Section 364 of the Indian Rigorous imprisonment (for short, Penal Code (for short, 'IPC') 'R.I.') for 10 years (for all the appellantss) and fine of Rs. 500/-, in default of payment of fine, one month additional R.I. to each appellantss Section 328 of the Indian Rigorous imprisonment for 10 years Penal Code (for short, 'IPC') (for all the appellantss) and fine of Rs. 500/-, in default of payment of fine, one month additional R.I. to each appellantss Section 302 read with Rigorous imprisonment for life (for all Section 120-B of the Indian the appellantss) and fine of Rs. Penal Code (for short, 'IPC') 500/-, in default of payment of fine, one month additional R.I. to each appellantss Section 201 of the Indian Rigorous imprisonment for 3 years Penal Code (for short, 'IPC') (for all the appellantss) and fine of Rs. 500/-, in default of payment of fine, one month additional R.I. to each appellantss 4
3. Case of the prosecution, in brief, is that missing report was registered
as Missing Report No. 01/2019 in Police Station Sarkanda, District Bilaspur
(C.G.) by complainant Rajkumari Ratde stating inter-alia that her son Tarun
Ratde went to his work of Computer Operator at Traffic Police Station
Bilaspur on 01.01.2019 at about 2:00pm and when he did not returned back
till 10:00pm, the family members inquired about him and when no
information was received, a missing complaint was filed before P.S.
Sarkanda bearing missing person complaint No. 1/19 on 02.01.2019
wherein suspicion was raised against the co-accused Baby Mandle.
4. On the basis of memorandum statement of Balaram, the body was
recovered (Ex.P-12), Merg intimation was recorded vide Ex.P45 and FIR
under Section 365/34, 120 IPC bearing No. 9/2019 was registered vide
Ex.P/46 &. Ex.P47. Spot map (Ex.P/27) was prepared by the Patwari. The
accused was taken into custody vide Ex.P/ 20 to 24, and Property seizure
memo vide Ex.P/ 32, 35, 41 & 42. A crime details form was prepared by the
Police vide Ex.P/50. The seized property was sent to the State Forensic
Laboratory for examination vide Ex.P/51 and the report was received.
Investigation Officer left for scene of occurrence and after summoning the
witnesses, inquest over the dead body of deceased was prepared.
5. Dead body of the deceased was sent for postmortem to the
Community Health Centre, Kota, District Bilaspur (C.G.). Dr. Pradeep
Agrawal (PW-19) conducted postmortem vide Ex.P-44 and found following
injuries :-
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(i) The external examination of the dead body, it was
found that neck and legs of the deceased were bent and
tied towards the front. Both hands were tied at the back
with a rope and dupatta. Both legs were tied near the
heels with a green towel and a white dupatta was tied
around neck, which was pasted with leucoplast.
(ii) There was no post mortem stiffness on the dead
body, there was bleeding from nose and mouth, face was
swollen, eyes was closed, cornea of the eye had turned
white, conjunctiva was congested and blood had accumu-
lated beneath it, eyeballs were protruding out, mouth was
half open, tongue was out and it was chewed between the
teeth, face was congested, nails were congested, stom-
ach was bloated, skin was peeing off from chest at many
places, upper part of chest was more congested, on re-
moving ligature from the neck, skin of neck was torn from
the front side, ligature mark was present on the back side
of the neck. Salt was present on the clothes.
He opined that cause of death was Asphyxia caused by throttling and
death was homicidal in nature.
6. Statements of the witnesses were recorded under Section 161 of the
Cr.P.C. After investigation, it was found that Tarun Ratde died on account of
Asphyxia caused by throttling by the accused/appellants. The accused was
arrested for offence under Sections 302, 201, 365, 120B, 328, 342, 364 of
IPC, 1860 and arrest/court surrender memo was prepared vide Ex.P/20 to
6
24. Thereafter, charge-sheet was filed before the 1st Additional Session
Judge, Bilaspur District Bilaspur (C.G.) for hearing and disposal in accor-
dance with law.
7. The accused/appellants abjured the guilt and entered into witness. In
order to bring home the offence, the prosecution examined as many as 30
witnesses and exhibited 70 documents. The defence has neither examined
any witness nor has exhibited any document.
8. The trial Court upon appreciation of oral and documentary evidence
on record and considering that it is the appellantss who has committed the
murder of her husband, convicted and sentenced her under Section 302 r/w
120 B, 201, 328, 364 of the IPC, against which the instant appeal under
Section 374(2) of the Cr.P.C. has been preferred.
Relation between the appellantss and family of deceased:-
S. No. Particular Relation 1 Baby Mandle (accused No. 1) (appel- • wife of Balram Mandle (ac- lants No. 1 herein) cused / appellants No. 3 herein) • Mother of Nilesh Mandle (died), Yogesh Mandle (ac- cused / appellants No. 2) & Abhishek Mandle (accused/ appellants No. 4) • Second wife of Shantanu Ratde (PW-2) • Step mother of deceased "Tarun Ratde" 2 Megha Goyal (accused No. 05) • Allegedly earlier was in love re- lation with Nilesh Mandle (died) • Allegedly had an love relation with the deceased "Tarun 7 Ratde" 3 Tarun Ratede (deceased) • Son of Shantanu Ratde (PW-2) & Rajkumari Ratde (PW-1) • Brother of Pooja Ratde (PW-3) • Step son of Baby Mandle (ac- cused No. 1)
9. Mr. Siddhant Tiwari, learned counsel for appellants and Mr. Shivendu
Pandya, learned counsel for the appellantss argued jointly that the story of
the prosecution is based on the fact that the chloroform was purchased from
the shop of Mehta by producing her adhar card, however the owner of the
shop PW-16 has specifically stated that the police did not seize any docu-
ment apart from a bottle of chloroform and the purchase bill. As per the
seizure memo (Ex.P-19), a glass bottle with a tag in English stating chloro-
form was seized from co-accused Baby Mandle, however the Investigating
Officer (PW-23) has specifically stated in his cross examination that the bot-
tle had a tag with a name Glycerin. The mobile number used during the time
of offence i.e. 7440882496 belonged to PW-10 and the prosecution has not
been able to prove that how the same came to be used by the present ap-
pellants.
10. Learned counsels further submit that on the basis of suspicion the ac-
cused persons were implication in crime in question only on the basis of
memorandum statement of witnesses and seizure. The most important wit-
ness of the complainant Rajkumari Ratde gave a contradictory statement
before the learned trial Court to her statement under Section 161 of Code of
Criminal Procedure, therefore her statement cannot be relied upon and the
case of the prosecution became highly doubtful. Moreover, they submit that
the investigating officer produced a CD (article 1) with the charge-sheet con-
8
taining photographs and video of crime scene but the same could not relied
upon as the same has not been supported by a certificate under Section 65-
B on Indian Evidence Act, 1875.
11. Learned counsels for the appellants submit that there is no eye wit-
ness or last seen in the instant matter and the entire case is based on cir-
cumstantial evidence but the chain of circumstances to implicate the present
appellants with the aforesaid crime could not be completed by the prosecu-
tion. It is well settled principles of law laid down by the Hon’ble Supreme
Court in the matter of Vijay Shankar v. State of Haryana (2015) 12 SCC
644 stating that when there is no eyewitness to the occurrence and the en-
tire case is based upon circumstantial evidence. The normal principle is that
in a case based on circumstantial evidence the circumstances from which
an inference of guilt is sought to be drawn must be cogently and firmly estab-
lished; that these circumstances should be of a definite tendency unerringly
pointing towards the guilt of the accused; that the circumstances taken cu-
mulatively should form a chain so complete that there is no escape from the
conclusion that within all human probability the crime was committed by the
accused and they should be incapable of explanation of any hypothesis
other than that of the guilt of the accused and inconsistent with their inno-
cence. Therefore, the present appellants are entitled to be acquitted from
crime in question. Therefore, even if the entire case is taken at its face
value, the case would not travel beyond Section 304 Part-II of the IPC. Evi-
dence adduced on behalf of the prosecution is suspicious in nature and
same is not safe for placing reliance that too for conviction of the appellants
for commission of heinous offence of murder, therefore, the appellants is en-
titled for benefit of doubt. He further submits that seizure witness (PW-7) has
9
turned hostile. The prosecution has failed to prove by cell phone location
that the present appellants was involved in commission of the offence.
12. On the other hand, Mr. Wasim Miyan, learned Panel Lawyer, appear-
ing for the respondent/State, supports the impugned judgment and submits
that the statement of the prosecution witnesses namely Smt. Rajkumari
Ratde (PW-1), Shantanu Ratde (PW-2), Pooja Ratde (PW-3), Viplav Yadav
(PW-4), Imran (PW-7), SI R.A. Yadav (PW-23), Dilip Tiwari (PW-17), Manoj
Kumar Garewal (PW-18), Dr. Pradeep Agrawal (PW-19), Dr. Sandeep
Dwivedi (PW-20), ASI Naresh Sahu (PW-25), Ramesh Kumar (PW-9)
clearly proved that the deceased has been murdered by the accused/
present appellant. The accused/appellants has failed to explain the death of
the deceased. The FIR of the incident was lodged by Rajkumari Ratde (PW-
1) mother of the deceased. He contended that the prosecution has been
able to bring home the offence beyond reasonable doubt and the trial Court
has rightly convicted the appellants for offence under Section 302 r/w 120 B,
201, 328, 364 of the IPC and therefore, the appeal deserves to be dis-
missed.
13. In order to appreciate the arguments advanced on behalf of the par-
ties, we have to examine the evidence adduced on behalf of the prosecution.
14. The first question for consideration would be, whether the trial Court
was justified in holding that death of deceased Tarun Ratde was homicidal
in nature ?
15. The trial Court, relying upon the statement of Dr. Pradeep Agrawal
(PW-19), who has conducted postmortem on the body of deceased Tarun
Ratde, vide Ex.P/44, has clearly come to the conclusion that death of de-
10
ceased Tarun Ratde was homicidal in nature due to strangulation. The said
finding recorded by the trial Court is a finding of fact based on evidence
available on record, which is neither perverse nor contrary to record. Even
otherwise, it has not been seriously disputed by the learned counsel for the
appellants. We hereby affirm the said finding.
16. The next question for consideration would be, whether the trial Court
has rightly held that the appellants are author of the crime by relying upon
the following circumstances:- (i) Homicidal death was proved by the prose-
cution as per postmortem report (Ex.P/44) of Dr. Pradeep Agrawal (PW-19),
who conducted postmortem. (ii) As per the case of the prosecution, the fact
of death of deceased Tarun Ratde was within the knowledge of the appel-
lants, however, there was no any explanation given by the appellants in their
statement under Section 313 of the Cr.P.C. Thus, burden of proof was on
the appellants to explain such circumstance, which they failed to explain.
21. In the present case, homicidal death as a result of strangulation has
not been substantially disputed on behalf of the appellants. On the other
hand, it is also established by the evidence of accused/appellants in their
memorandum statements, Investigating Officer R. A. Yadav (PW-23), FIR
(Ex.P/12), Dr. Pradeep Agrawal (PW-19) and the postmortem report (Ex.P/
44) that the death of deceased Tarun Ratde was homicidal in nature.
17. As regards complicity of the appellants in crime in question, conviction
of the appellants is substantially based on the evidence of Rajkumari Ratde
(PW-1) Viplov Yadav (PW-4), Investigating Officer R. A. Yadav (PW-19) and
Dr. Pradeep Agrawal (PW-19) Viplav Yadav (PW-04) and also the
11
accused/appellants themselves have narrated the whole incident in their
memorandum statement.
18. Rajkumari Ratde (PW-1) is the mother of the deceased and has stated
that on 01.01.2019, her son left house for his work at 02:00 pm in the after-
noon. When he did not return home, then on 02.01.2019 she along with her
daughter went to Police Station Sarkanda for filing missing report. She
states that when she returned home from the Police Station, she came to
know that her husband Shantanu had a fight with Baby Mandle and her hus-
band had started living in a separate rented house in the same locality and
she also came to know that Baby Mandle had a son who had died, in whose
connection, the appellants suspected her husband and deceased Tarun. On
03.01.2019, the police told her husband Shantanu that the accused/appel-
lants had kidnapped her son Tarun, murdered him and buried the body by
digging a pit in village Amne, then her husband and his friend went with the
policemen to the spot place where the body was buried.
19. Viplov Yadav (PW-4) is the friend of the deceased and has stated in
his statement that Baby Mandle’s son Nilesh Mandle was murdered a few
days ago, the appellants suspected Tarun Ratde for his murder and in order
to take revenge for the same, they killed Tarun Ratade. The statement of
him is unchallenged and unrebutted in cross-examination.
20. Investigating Officer R.A. Yadav (PW-23) has stated that during inves-
tigation, he called the accused Baby Mandle, Balram Mandle, Abhishek
Mandle, Ms. Megha Goyal and Yogesh Mandle to Chhath Ghat Police As-
sistance Center and after questioning them in the presence of witnesses
Viplav Yadav and Imran, the accused Balaram Mandle had given memoran-
12
dum statement (Ex.P-7) wherein the accused Balaram Mandle stated that on
01.01.2019 they buried the Tarun Ratde in his pump house in village Amne.
Panchnama (Ex.P-11) of the place mentioned by the accused was prepared
and on digging, the body of the deceased was seen and lumpy salt was
found in the soil, which was probably put to decay the body quickly. he had
hidden the spade, shovel and crowbar used in digging the pit to hide the
dead body in the pump house of his field. As per the statement of accused
Balram Mandle, one piece of iron crowbar, one piece of shovel and one
piece of shovel and one piece of crowbar were seized from his pump house
in village Amne in front of witnesses Viplav and Imran. He stated in his state-
ment that Abhishek Mandle give memorandum statement (Ex.P4) and told
about the hiding the dead body of Tarun, mobile of accused Megha, mobile
of deceased Tarun, motorcycle No. CG 10 NA 0652, shoes, bandage wheel
and these mobiles, motorcycle, shoes, bandage wheel have been seized
vide Ex. P-16 and Ex.P-17. He stated that the accused Ms. Megha Goyal
had given a memorandum statement (Ex.P-9) before the witnesses that she
has given a photocopy of the Aadhar Card to buy chloroform in the shop of
Mehta and the same has been seized (Ex.P-29). He stated that accused Yo-
gesh Mandle had given his memorandum statement (Ex.P-10), he had hid-
den the car bearing number CG 10 ZD 1631 in which he had taken the dead
body to village Amne and had got recovered, on the basis of this, he had
seized car and a Bajaj Company motorcycle as per the details in the seizure
memo (Ex.P-18). He stated that the accused Baby Mandle has given her
memorandum (Ex.P-6) and stated therein that she has hidden the chloro-
form bottle in a rented house and as per her statement, he had seized a 500
13
ml bottle containing 150 ml chloroform and a mobile with sim number
……..881 from the rented house in Rajkishore Nagar (Ex.P-19).
21. Viplav Yadav (PW-04) who is the friend of deceased and memoran-
dum statement of accused/appellants was recorded in front of him, has
stated that the accused Abhishek told him that he hid the shoes and ban-
dage chakri of deceased Tarun, with which his mouth was wrapped, in a
pond near village Ghutkur and hid the motorcycle and mobile phone of the
deceased Tarun near a pond near village Sendri. The shoe and bandage
chakri of deceased Tarun Ratde were seized from the Accused Abhishek
Mandle.
22. Irfan Khan (PW-7) who is also the friend of deceased and memoran-
dum statement was recorded in front of him, stated in his statement that ac-
cused Baby Mandle has told the police that the bottle of chloroform was kept
in a rented house at Rajkishore Nagar, then he went along with the police
officials and took out the chloroform bottle in which some chloroform was left,
the chloroform bottle was seized from accused Baby Mandle, whose seizure
memo (EX.P-19)
23. Dr. Pradeep Agrawal (PW-19) conducted postmortem vide Ex.P/44
and found above stated injuries on the body of the deceased and opined
that cause of death was Asphyxia caused by throttling and death was homi-
cidal in nature.
24. It is the case of no direct evidence, rather conviction is based on cir-
cumstantial evidence. Five golden principles which constitute Panchseel of
proof of case based on circumstantial evidence have been laid down by the
14
Supreme Court in the matter of Sharad Birdhichand Sarda v. State of
Maharashtra1, which state as under :-
“(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established. The circum-
stances concerned “must” or “should” and not “may be”
established;
(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 hypoth-
esis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature
and tendency;
(4) they should exclude every possible hypothesis ex-
cept 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.”
25. On 03.01.2019, the memorandum of appellants were recorded vide
Ex.P-6, Ex.P-7, Ex.P-8 Ex.P-9 and Ex.P-10, earlier the accused Megha
Goyal was in love with Tarun Ratde who has called the Tarun Ratde for to a
rented house at Rajkishore Nagar, where the deceased was administrated
1 (1984) 4 SCC 116
15
sleeping pills in a coffee and the deceased was made to smell chloroform af-
ter which his hands and leg were tied with the rope and the deceased was
killed. Later on the deceased was taken to village Amne in car bearing No.
CG 10 ZD 1631 and the deceased was buried in the field of accused
Balaram Mandle at village Amne. As per statement of the accused persons,
the dead body of the deceased was recovered (Ex.P-12), seizures of spade,
mobile phone, car used for the offence, motorcycle and shoes of the de-
ceased, bottle of chloroform etc., were made and the postmortem of the
dead body of the deceased was conducted.
26. It is a well settled law that when an accused points out the place
where a dead body or an incriminating material was concealed without stat-
ing that it was concealed by himself. There are three possibilities; One is that
he himself would have concealed it. Second is that the accused would have
seen somebody else concealing it. And the third is that he would have seen
told by another person that it was concealed there. But if the accused de-
clines to tell the criminal Court that his knowledge about the concealment
was on account of one of the last two possibilities, the criminal Court can
presume that it was concealed by the accused himself.
27. In this case, from the memorandum statement of the accused-appel-
lants specially Balaram stated before the police officials, it transpires that the
dead body of the deceased was recovered from the field of Balaram ac-
cused-appellant and the deceased was buried in the field of Balaram’s
House, this information was only within the knowledge of the accused/appel-
lants and all the accused in their memorandum statement stated about bury-
ing of the deceased-Tarun Ratde. There is no explanation given by the ac-
16
cused/appellants, they have seen somebody else for concealing him. There-
fore, the accused-appellants themselves would have concealed it.
28. The Supreme Court in the matter of Perumal Raja alias Perumal v
State, Rep. By Inspector of Police2 has defined the ‘custody’. It held that the
expression “custody” under Section 27 of the Evidence Act does not mean for-
mal custody. It includes any kind of restriction, restraint or even surveillance by
the police. Even if the accused was not formally arrested at the time of giving
information, the accused ought to be deemed, for all practical purposes, in the
custody of the police.
29. According to the Investigating Officer PW-23 R. A. Yadav when the in-
vestigation in respect of missing person was made he heard that Baby Man-
dle’s son Nilesh Mandle was murdered a few days ago, the appellants sus-
pected Tarun Ratde for his murder and in order to take revenge for the
same, the appellants killed Tarun Ratade. and on that basis strict investiga-
tion was made, therefore, the memorandum statement made by the accused/
appellants vide Ex.P/6 to Ex.P/10 would be memorandum under Section 27 of
the Evidence Act. In the memorandum the narration of incident and commis-
sion of offence was made by the accused/appellants, however, such confes-
sional statement would not be admissible in evidence. The finding of dead
body inside the well would be the fact discovered, which would be relevant.
30. The Supreme Court in the matter of Boby v State of Kerala3 held that
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 principle
that if any fact is discovered as a search made on the strength of any informa-
tion obtained from a prisoner, such a discovery is a guarantee that the informa-
2 2024 SCC OnLine SC 12
3 2023 SCC OnLine SC 50
17
tion 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 reli-
able information. Section 27 puts a bar to use the confessional statement, but
the fact that discovery and information which proved to reliable would be a cir-
cumstantial evidence.
31. According to the prosecution, the incident happened inside the room and
buried in a field. The map of the place of incident is Ex.P/25 & 26. It shows
that Panchnama (Ex.P-11) of the place mentioned by the accused was pre-
pared and on digging, the body of the deceased was seen and lumpy salt
was found in the soil, which was probably put to decay the body quickly.
Seizures of spade, mobile phone, car used for the offence, motorcycle and
shoes of the deceased, bottle of chloroform , was seized at the instance of ac-
cused/appellant in the memorandum statement. The seized articles were sent
for FSL. These articles, which were sent for FSL, recovered from the spot in
normal circumstances would not contain the bloodstains.
32. The Supreme Court in the matter of Mehboob Ali and Another v State
of Rajasthan4 had an occasion to deal such mental state of fact wherein the
Court observed that for application of Section 27 of the Evidence Act, the ad-
missible portion of confessional statement has to be found as to a fact which
were the immediate cause of the recovery, only that would be part of legal evi-
dence and not the rest. Section 27 of the Evidence Act refers to the ‘Fact’. The
word ‘Fact’ has been defined in Section 3 of the Evidence Act which is repro-
duced hereunder:-
“Fact”–“Fact” means and includes–
(1) any thing, state of things, or relation of things, capable
of being perceived by the senses;
4 (2016) 14 SCC 640
18
(2) any mental condition of which any person is conscious.
Illustrations
(a) That there are certain objects arranged in a certain
order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain
intention, acts in good faith, or fraudulently, or uses a
particular word in a particular sense, or is or was at a
specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.”
33. The Supreme Court in the matter of Mehboob Ali (supra) has observed
that the discovery of facts under Section 27 information regarding other ac-
cused persons, to establish charge of conspiracy, in furtherance of common in-
tention would be admissible. The Supreme Court in such case at paras 16, 17
& 18 has held as under :
“16. This Court in State (NCT of Delhi) v. Navjot Sandhu
has considered the question of discovery of a fact referred
to in Section 27. This Court has considered plethora of
decisions and explained the decision in Pulukuri Kottaya V.
Emperor AIR 1947 PC 67] and held thus : (Navjot Sandhu
(2005) 11 SCC 600, SCC p. 704, paras 125-27)
“125. We are of the view that Kottaya case [AIR 1947
PC 67] is an authority for the proposition that “discovery
of fact” cannot be equated to the object produced or
found. It is more than 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.
126. We now turn our attention to the precedents of this
Court which followed the track of Kottaya case. The
ratio of the decision in Kottaya case reflected in the
underlined passage extracted supra was highlighted in
several decisions of this Court.
127. The crux of the ratio in Kottaya case was explained
by this Court in State of Maharashtra v. Damu, (2000) 6
SCC 269. Thomas J. observed that: (SCC p. 283, para
35)
’35 …The decision of the Privy Council in Pulukuri
19Kottaya v. Emperor, AIR 1947 PC 67 is the most
quoted authority for 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.’
In Mohd. Inayatullah v. State of Maharashtra [1976 1
SCC 828], Sarkaria, J. while clarifying that the
expression “fact discovered” in Section 27 is not
restricted to a physical or material fact which can be
perceived by the senses, and that it does include a
mental fact, explained the meaning by giving the gist of
what was laid down in Pulukuri Kottaya case, AIR 1947
PC 67. The learned Judge, speaking for the Bench
observed thus: (SCC p. 832, para 13)
’13…Now it is fairly settled that the expression
‘fact discovered’ includes not only the physical
object produced, but also the place from which it
is produced and the knowledge of the accused as
to this (see Pulukuri Kottaya v. Emperor, AIR
1947 PC 67; Udai Bhan v. State of U.P. [1962
Supp (2) SCR 830]).”
17. In State of Maharashtra v. Damu [AIR 2000 SC 1691]
the statement made by the accused that the dead body of
the child was carried up to a particular spot and a broken
glass piece recovered from the spot was found to be part of
the tail lamp of the motorcycle of co-accused alleged to be
used for the said purpose. The statement leading to the
discovery of a fact that accused had carried dead body by a
particular motorcycle up to the said spot would be
admissible in evidence. This Court has laid down thus :
(SCC pp. 282-83, paras 35-38)
“35. 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
principle that if any fact is discovered in 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. Hence the legislature permitted
such information to be used as evidence by restricting
the admissible portion to the minimum. It is now well
settled that recovery of an object is not discovery of a
fact as envisaged in the section. The decision of the
Privy Council in Pulukuri Kottaya v. Emperor AIR 1947
PC 67 is the most quoted authority for supporting the
interpretation that the “fact discovered” envisaged in the
section embraces the place from which the object was
20produced, the knowledge of the accused as to it, but the
information given must relate distinctly to that effect.
36. 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. In this case, the fact discovered
by PW 44 is that A-3 Mukinda Thorat had carried the
dead body of Dipak to the spot on the motorcycle.
37. How did the particular information led to the
discovery of the fact? No doubt, recovery of dead body
of Dipak from the same canal was antecedent to the
information which PW 44 obtained. If nothing more was
recovered pursuant to and subsequent to obtaining the
information from the accused, there would not have
been any discovery of any fact at all. But when the
broken glass piece was recovered from that spot and
that piece was found to be part of the tail lamp of the
motorcycle of A-2 Guruji, it can safely be held that the
Investigating Officer discovered the fact that A-2 Guruji
had carried the dead body on that particular motorcycle
up to the spot.
38. In view of the said discovery of the fact, we are
inclined to hold that the information supplied by A-2
Guruji that the dead body of Dipak was carried on the
motorcycle up to the particular spot is admissible in
evidence. That information, therefore, proves the
prosecution case to the abovementioned extent.”
18. In Ismail v. Emperor [AIR 1946 Sind 43] it was held that
where as a result of information given by the accused
another co-accused was found by the police the statement
by the accused made to the Police as to the whereabouts of
the co-accused was held to be admissible under Section 27
as evidence against the accused.”
34. Further more call details have been made. Vide Article 04, Mobile No. …
5084 was in the name of Megha Goyal and Mobile No. …..2496 was in the
name of Radheshyam Dewan. From the IMEI Numbers, it transpires that both
the numbers were used by accused Ms. Megha Goyal from the same mobile
number. From perusal of the call details of the Mobile No. 2496 of accused Ms.
Megha Goyal (Ex.P-70) and call details of the Mobile No. ……3326, it is proved
that three call were made from Mobile No. 2496 to deceased Tarun Ratde’s
21
mobile No. …….3326. On 01.01.2019 from 14:27:18 to 14:47:14 that was the
last call on deceased’s phone. It is proved that the deceased last talked to ac-
cused Ms. Megha Goyal from Mobile No. ……2496.
35. Further more, Mobile Number …….881 was issued in the name of ac-
cused Abhishek Kumar Mandle and the said mobile phone was seized from
him on the basis of the recovery memo of accused Baby Mandle. On perusing
the call details of the said phone number from 01.11.2018 to 03.01.2019 (Ex.P-
77) and the call details of mobile number ……084 issued in the name of ac-
cused Ms. Megha Goyal from 01.11.2018 to 03.01.2019, it makes it clear that
the accused Ms. Megha Goyal was in contact with accused Abhishek Mandle
or his mother accused Baby Mandle. On 01.01.2019, both the mobile numbers
were in frequent ten times contact between 11:14:17 to 13:13:56. It transpires
that the accused Megha Goyal had called Tarun Ratde on phone and called
him to the rented house at Rajkishore Nagar, which makes it clear that Tarun
Ratde was called to the rented house by deceitful means.
36. The conspiracy is not hatched in an open place. It has to be gathered
from the circumstances. The stepwise incidents which happened according to
the witnesses is that Baby Mandle’s son Nilesh Mandle was murdered a few
days ago, the appellants suspected Tarun Ratde for his murder thereby a
dispute aggravated which has been stated by Viplav Yadav (PW-4). On the
date of incident 01.01.2019 tarun Ratde went to his work of Computer Opera-
tor at Traffic Police Station Bilaspur on 01.01.2019 at about 2:00pm and
when he did not returned back till 10:00pm, the family members inquired
about him and when no information was received, a missing complaint was
filed before P.S. Sarkanda. When the missing report was being investigated
by the police, the Investigating Officer PW-23 R. A. Yadav came to know about
22
the relation between the deceased and the appellants. Thereafter, the investi-
gation was made by the police and on pressurizing it was disclosed that the
appellant- Baby Mandle along with co-accused started planning and called the
accused Ms. Goyal for contacting Tarun Ratde. On the date of incident, Ms.
Megha Goyal called the deceased to a rented house at Rajkishore Nagar,
Bilaspur and Baby Mandle hid somewhere in the rented house and Abhishek
Mandle and Yogesh Mandle and Balaram were hid outside the rented house
and when the deceased came to the rented house, the deceased was ad-
ministered sleeping pills in a coffee by accused -Ms. Goyal and when he was
not sleeping then the deceased was made to smell chloroform by the appel-
lants after which his hands and leg were tied with the rope and the deceased
was killed. Lateron the deceased was taken to village Amne in car and the
deceased was buried in the field of accused Balaram Mandle.
37. No doubt, in the case of conspiracy there cannot be any direct evidence.
The ingredients of offence are that there should be an agreement between per-
sons who are alleged to conspire and the said agreement should be for doing
an illegal act or for doing by illegal means an act which itself may not be illegal.
Therefore, the essence of criminal conspiracy is an agreement to do an illegal
act and such an agreement can be proved either by direct evidence or by cir-
cumstantial evidence or by both, and it is a matter of common experience that
direct evidence to prove conspiracy is rarely available. Therefore, the circum-
stances proved before, during and after the occurrence have to be considered
to decide about the complicity of the accused.
38. The Supreme Court in the matter of Ram Narayan Popli v Central Bu-
reau of Investigation5 held thus at paras 344 & 345 :
5 (2003) 3 SCC 641
23
344. In Halsbury’s Laws of England (vide 4th Edn., Vol. 11,
p. 44, para 58), the English law as to conspiracy has been
stated thus:
“58. Conspiracy consists in the agreement of two or
more persons to do an unlawful act, or to do a lawful
act by unlawful means. It is an indictable offence at
common law, the punishment for which is
imprisonment or fine or both in the discretion of the
court.
The essence of the offence of conspiracy is the fact of
combination by agreement. The agreement may be
express or implied, or in part express and in part
implied. The conspiracy arises and the offence is
committed as soon as the agreement is made; and the
offence continues to be committed so long as the
combination persists, that is until the conspiratorial
agreement is terminated by completion of its
performance or by abandonment or frustration or
however it may be. The actus reus in a conspiracy is
the agreement to execute the illegal conduct, not the
execution of it. It is not enough that two or more
persons pursued the same unlawful object at the same
time or in the same place; it is necessary to show a
meeting of minds, a consensus to effect an unlawful
purpose. It is not, however, necessary that each
conspirator should have been in communication with
every other.”
345. There is no difference between the mode of proof of
the offence of conspiracy and that of any other offence. It
can be established by direct or circumstantial evidence.
[See : Bhagwan Swarup Lal Bishan Lal v. State of
Maharashtra [AIR 1965 SC 682 : (1965) 1 Cri LJ 608] (AIR
at p. 686).]
39. The recovery of dead body was not from an open place. It was inside in-
side the field of accused Balaram. More so the dead body was buried in a pit
which was dug in the field of Balaram. When the police officials and witnesses
went to the spot the field was found i.e. discovery of fact. Thereafter, on dig-
ging, the body of the deceased was seen and lumpy salt was found in the
soil, which was probably put to decay the body quickly. The said discovery
of fact was made by accused Balaram Mandle. Dead body having been taken
24
out it was identified to be the dead body of Tarun Ratde by PW-2 Shantanu
Ratde. Thereafter it was sent for postmortem. In the postmortem, PW-19 Dr.
Pradeep Agrawal opined that the cause of death was Asphyxia caused by
throttling and death was homicidal in nature.
40. At the instance of the accused/appellants, recovery were made i.e.
spade, three mobile phones, car used for the offence, motorcycle and shoes of
the deceased, bottle of chloroform from which the incident happened. There is
no any explanation given by them.
41. The law on conviction based upon the circumstantial evidence is quite
clear which provides circumstantial evidence can be the basis of a conviction if
it is consistent with the guilt of the accused and inconsistent with any other ra-
tional hypothesis. In the instant case there is ample of circumstances which
forms a complete chain which repeatedly indicates towards the guilt of the ac-
cused. All the aforementioned circumstances indicate towards the guilt of the
accused which makes the conduct of the accused/appellants in most precise
manner and completes the chain of circumstances.
42. The Supreme Court in the matter of Suresh and Another v State of
Haryana6 has observed that cases of circumstantial evidence, the courts are
called upon to make inferences from the available evidence, which may lead to
the accused’s guilt. The court at paras 41 and 42 has observed thus :
41. The aforesaid tests are aptly referred as Panchsheel of
proof in Circumstantial Cases (refer to Prakash v. State of
Rajasthan). The expectation is that the prosecution case
should reflect careful portrayal of the factual circumstances
and inferences thereof and their compatibility with a
singular hypothesis wherein all the intermediate facts and
the case itself are proved beyond reasonable doubt.
42. Circumstantial evidence are those facts, which the court
6 (2018) 18 SCC 654
25may infer further. There is a stark contrast between direct
evidence and circumstantial evidence. In cases of
circumstantial evidence, the courts are called upon to make
inferences from the available evidence, which may lead to
the accused’s guilt. In majority of cases, the inference of
guilt is usually drawn by establishing the case from its
initiation to the point of commission wherein each factual
link is ultimately based on evidence of a fact or an inference
thereof. Therefore, the courts have to identify the facts in
the first place so as to fit the case within the parameters of
“chain link theory” and then see whether the case is made
out beyond reasonable doubt. In India we have for a long
time followed the “chain link theory” since Hanumant case ,
which of course needs to be followed herein also.
43. Applying the aforesaid well settled principles of law and considering the
statements of the prosecution witnesses, the finding recorded by the trial
Court in its judgment, the fact that the appellants has not offered any expla-
nation under Section 313 of the Cr.P.C. and considering memorandum
statements of the accused/appellants disclosing the fact of the accused/ap-
pellants that how they conspired the whole incident and the deceased was
administrated sleeping pills and thereafter he was made to smell chloroform
and killed him and thereafter buried him and and at the instances of the ac-
cused/appellants, aforesaid seizure were made, therefore, the act of the ac-
cused/appellants by pressing the neck of the deceased clearly shows the in-
tention of the accused/appellants to kill the deceased therefore, it is clearly
and reliably shown that it was the accused/appellants, who caused the
death of the deceased by throttling as aforesaid, in addition to this, it is also
notable that the evidence shows that the deceased was the stepson of the
accused-Baby Mandle, in such a case, the knowledge of the fact that the de-
ceased died due to the injuries found on the neck of the deceased as afore-
said, is a fact of specific knowledge and in this regard, there is no defence
on the part of the accused/appellants has been taken during the examination
26
and therefore, we are of the considered opinion that the prosecution has
proved its case beyond reasonable doubt and the trial Court has rightly con-
victed the accused/appellants for the offence under Sections 302 r/w 120 B,
201, 328, 364 of the IPC. We do not find any illegality or irregularity in the
findings recorded by the trial Court.
44. For the foregoing reasons, both the criminal appeals, sans substratum,
are liable to be and are hereby dismissed.
45. It is stated at the Bar that the appellants are in jail, they shall serve out
the sentence as ordered by the learned trial Court.
46. Let a copy of this judgment and the original record be transmitted to
the trial court concerned forthwith for necessary information.
Sd/- Sd/-
(Arvind Kumar Verma) (Ramesh Sinha)
Judge Chief Justice
Digitally signed
by JYOTI JHA
Date:
2025.05.09
10:48:30 +0530
Jyoti
27
CRA No. 145 of 2021
KUMARI MEGHA GOYAL versus STATE OF CHHATTISGARH
&
CRA No. 437 of 2021
SMT. BABY MANDLE versus STATE OF CHHATTISGARH
HEAD NOTE
The custody under Section 27 of the Evidence Act is not only restricted to
formal custody and it includes any kind of restriction restrain and even sur-
veillance by the police.
Lkk{; vf/kfu;e dh /kkjk 27 ds rgr vfHkj{kk ek= vkSipkfjd vfHkj{kk rd gh lhfer ugha gS vkSj blesa
fdlh Hkh izdkj dk fucZa/ku vojks/k vkSj ;gkW rd fd iqfyl }kjk fuxjkuh Hkh ‘kkfey gSA
In cases of the circumstantial evidence the Courts are called upon to make in-
ferences from the available evidence, which may lead to guilt of accused.
ifjfLFkfrtU; lk{; ds ekeyksa esa U;k;ky;ksa ls vis{kk dh tkrh gS fd os miyC/k lk{; ls fu”d”kZ fud
kys] ftlls fd vfHk;qDr dk nks”k fl) gks ldsA