Beohar High Court
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR HIGH COURT OF CHHATTISGARH AT BILASPUR AFR CRA No. 545 of 2019 Judgment Reserved on 20.06.2025 Judgment Delivered on 06.08.2025 1. Chhote Dou @ Ajay, S/o Late Sudershan Khaiwar, aged about 20 Years, 2. Bade Dou @ Shatruhan Khairwar, S/o Late Sudershan Khairwar, aged about 21 Years, Both are R/o Motisagarpara, Korba, Police Station - Kotwali, District Korba Chhattisgarh. versus ...Appellants • State of Chhattisgarh, Through the Station House Officer, Police Station - Kotwali, Korba, District Korba, Chhattisgarh. ... Respondent For Appellants : Mr. Anil Tripathi, Advocate For Respondent : Ms. M. Asha, P.L. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. Per, Amitendra Kishore Prasad, J. CAV Judgment 1. This criminal appeal preferred by the appellants herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 25.01.2019 passed in Sessions Trial No.119/2017 by the Sessions 2 Judge, Korba, District Korba, by which the appellants stand convicted & sentenced as under:- Conviction Sentence Under Section 302 read with 34 Imprisonment for life and fine of of Indian Penal Code (for short, Rs.1,000/- each, in default of ‘IPC’) payment of fine amount to undergo additional imprisonment for three months to each appellants 2. Case of the prosecution, in brief, is that on 04.09.2017 at about 10:30 pm, at Motisagar Para Korba, near one Tarabai's house, accused persons/appellants herein along with one Juvenile, in furtherance of their common intention and due to previous enmity, assaulted Charan Das (hereinafter called as 'deceased') with a stick, belt, sickle and stone, due to which, deceased sustained grievous injuries on his head, face and mouth. After that, the victim was taken to the District Hospital, Korba and then referred to CIMS Hospital, Bilaspur, where he succumbed to his injuries on 05.09.2017. On the basis of report lodged by PW-7 Guddu Bareth, Crime No.579/2017 was registered at Police Station Kotwali, Korba, initially under Section 307 read with 34 of IPC against the accused persons, which was later altered to Section 302/34 of IPC upon the death of deceased. Thereafter, merg intimation vide Exs.P-4 & 5 were recorded and inquest proceedings were conducted vide Ex.P-7. Dead body of 3 deceased- Charan Das was sent for postmortem examination which was conducted by PW-9 Dr. Ajay Bhengra, who have proved the postmortem report Ex.P-18. According to PW-9 Dr. Ajay Bhengra, cause of death of deceased- Charan Das was due to the head injury and mode of death of deceased was homicidal in nature. 3. During investigation, accused persons were arrested vide Exs.P-15 & 16. Memorandum statement of the appellant No.2- Bade Dou @ Shatruhan Khairwar was recorded vide Ex.P-12, but no seizure was made from him. This apart, no memorandum statement of appellant No.1- Chhote Dou @ Ajay was recorded and also no seizure was made from him. From the spot, blood stained piece of cloth, plain soil, one sickle, clubs, piece of brick and belts were seized vide Exs.P-13 & P-14 respectively. From PW-1 Laxmin Bai, blood like stained clothes of deceased- Charan Das was seized vide Ex.P-20. Seized articles were sent to FSL for chemical examination, but FSL report (Ex.P-23) was inconclusive and blood group result could not be determined on the articles marked as “Exs.A, B, C, D & F”. 4. After due investigation, appellants were charge-sheeted before the jurisdictional Criminal Court and the case was committed to
Facts
the trial Court for hearing and disposal in accordance with law, in which appellants abjured their guilt and entered into defence by stating that they have not committed the offence. However, separate charge sheet was also filed against the juvenile (S) 4 before the Juvenile Justice Board. 5. The prosecution in order to bring home the offence, examined as many as 12 witnesses in support of its case and exhibited 24 documents Exs.P-1 to P-24. However, the appellants in support of their defence have examined none and not exhibited any document. 6. The trial Court, after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellants as mentioned in the opening paragraph of this judgment against which they have preferred the instant appeal under Section 374(2) of the CrPC.
Legal Reasoning
accused. Thus, we find that only on the basis of sole circumstance of recovery of bloodstained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt.” 15. Also, the Hon’ble Supreme Court in the matter of Thakore Umedsing Nathusing vs. State of Gujarat 2024 SCC OnLine SC 320 has dealt with the recovery and blood stains not found to be that of the deceased and the relevant para reads as under:- “35. We have gone through the evidence of the concerned police officials associated with the recoveries and find their testimonies to be highly doubtful. The knife which was recovered at the instance of A3 was found from a nala which is a place open and accessible to all. The knife attributed to A4 was presented by one Shobhnaben wife of Kanji 9 Chhara and thus it cannot be linked to A4. Thus, these recoveries in no manner can be treated to be incriminating in nature. In the case of Mustkeem alias Sirajudeen v. State of Rajasthan, reported in (2011) 11 SCC 724, this Court held that the solitary circumstance of recovery of blood-stained weapons cannot constitute such evidence which can be considered sufficient to convict an accused for the charge of murder. We thus find the recoveries to be highly doubtful and tainted. Even if it is assumed for a moment that such recoveries were effected, the same did not lead to any conclusive circumstance in form of Serological report establishing the presence of the same blood group as that of the deceased and hence they do not further the cause of prosecution. In addition thereto, we find that the prosecution failed to lead the link evidence mandatorily required to establish the factum of safe keeping of the muddamal articles and hence, the recoveries became irrelevant.” 16. In the matter of Debapriya Pal vs. State of West Bengal (2017) 11 SCC 31, the Hon’ble Supreme Court has held with the issue that even if blood stain was found, the blood group of accused or deceased was not ascertained. The relevant para reads as under:- “For the sake of argument, we are presuming that they were present at the time when the appellant brought bloodstained clothes from his house and gave the same to the police. What is material is the reliance on these bloodstained clothes for the culpability of the appellant herein. As per the prosecution, the blood 10 group on these bloodstained clothes matched with the blood on the bedsheet on which the body of one of the deceased persons was found. The record reveals that though blood of both the deceased persons was drawn and sent for examination, it is not known as to what was the report thereupon and what was the blood group of the deceased persons. No such blood report has been produced. So much so, blood group of the accused persons was also not ascertained. Even if we presume that the blood on the bedsheet was that of the deceased, the possibility cannot be ruled out that the same blood group as of the appellant-accused thereof. Therefore, mere matching of the blood group on the bloodstained clothes, which was even on the bedsheet, would not lead to the conclusion that it is the appellant who had committed the crime.” 17. In the matter of Shantabai and others vs. State of Maharashtra (2008) 16 SCC 354, the Hon’ble Supreme Court has held as under:- “25. In support of the fifth circumstance, the prosecution has examined Dr. Hanumant, who performed post- mortem on the dead body of the deceased Gunwant on 15-8-1993. The doctor noticed as many as thirteen injuries on the body of the deceased as described in the post-mortem report (Ext. 41). According to the opinion of the doctor, the cause of death was because of shock due to cardio-respiratory failure caused by injury to brain and brain haemorrhage. The chemical analyser's report would reveal that ethyl alcohol was found in the viscera contents of the deceased. 11 26. We may point out that the investigating officer has not cared to collect the fingerprints appeared on the stones and axe, the alleged weapons of offence, at the time of seizure of the articles nor had he taken the fingerprints of the appellants for comparison with the fingerprints, if any, detected on the alleged weapons of offence. The articles collected by the investigating officer from the spot were found lying in the open place which was accessible to all and sundry. The prosecution has not led any evidence to prove that axe, which was the alleged weapon of offence, found on spot in the open place belonged to A-1, A-2 and A-3. Thus, the prosecution has not established beyond reasonable doubt that A-1, A-2 and A-3 had used the recovered weapons of offence in the commission of the crime. 28. The chemical analyser's report (Ext. 72) reveals that human blood of Group 'B' was detected on the clothes, which were seized by the police, allegedly belonging to the appellants. The blood group on those clothes did not tally with the blood of Group 'O', which was found on the clothes of the deceased and on the sample of soil, axe, stones, handles, etc, which were taken from the spot by the investigating officer. The investigating officer has categorically stated that when he along with A-1 and panch witnesses had gone in search of the clothes of the appellants, the lock to the door of the house of the appellants was kept with the Police Patil which was opened by them later on. In this view of the matter, the prosecution has not proved that d the clothes, which were allegedly seized by the police at the instance of A-1 and lying in the open place, were stained with Blood Group 'O' of the deceased found on the deceased's clothes and on the articles which were seized by the investigating officer from the place of occurrence. These circumstances are not proved by the prosecution by lending cogent, satisfactory and convincing evidence to hold A-1, A-2 and A-3 guilty of the offence.” 18. Also, the Hon’ble Supreme Court in the matter of Dhananjay Shanker Shetty vs. State of Maharashtra (2002) 6 SCC 596 has held as under:- “9. Another circumstance which was alleged against the appellant was that bloodstained clothes and 12 weapon were recovered from his house, but the trial court as well as the High Court did not place any reliance upon this circumstance in view of the fact that according to the report of the chemical examiner, the blood group found thereon did not tally with that of the deceased.” 19. Upon perusal of the record and in light of the decisions of the Hon'ble Supreme Court, it is evident that although the prosecution has produced a piece of cloth, one sickle, clubs, a piece of brick, and belts seized from the spot, there is a complete absence of forensic evidence establishing that the blood found on these articles matches the blood group of the deceased. The mere presence of bloodstains, without proof that it is human blood belonging to the deceased, renders the recovery inconsequential. 20. The Hon’ble Supreme Court has consistently held that such failure materially affects the evidentiary value of the alleged recoveries. In Kansa Behera v. State of Orissa, (1987) 3 SCC 480, the Court held: “Unless the blood stains found on the clothes or weapons are proved to be that of the deceased, the discovery cannot be said to incriminate the accused beyond doubt.” 21. Similarly, in Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra, (2008) 3 SCC 210, it was observed: 13 “In the absence of a serological report confirming that the blood on the clothes or weapon belonged to the deceased, the recovery is of no substantial help to the prosecution.” 22. Again, in Vijay Shankar v. State of Chhattisgarh, (2022) 10 SCC 353, the Apex Court reiterated: “The prosecution’s failure to establish, through scientific evidence, that the blood found on the weapon or clothes matched that of the deceased creates a serious doubt about the veracity of the recovery and the guilt of the accused.” 23. These authoritative pronouncements make it abundantly clear that mere recovery of blood-stained articles, without scientific corroboration, is insufficient to sustain a conviction, especially when the case is otherwise based on circumstantial evidence. 24. It is a settled principle of criminal jurisprudence that the prosecution must establish the chain of circumstances with cogent and reliable evidence, particularly in cases based on circumstantial evidence. 25. It is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 1 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under: 1 (1984) 4 SCC 116 14 (1) the circumstances from which the “153.…. conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (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.” 26. In the present case, though certain articles were seized from the spot, but there is no cogent evidence to establish that these articles were either used in the commission of the offence or were last seen in the possession of the deceased or appellants in such 15 a manner that would link the appellants directly to the crime and that no forensic evidence has been produced to establish that the blood on the seized articles belonged to the deceased. The prosecution failed to establish a chain of circumstances to prove the relevance or connection of the seized items to the alleged offence. Therefore, the seizure from the spot remains an isolated circumstance, incapable of establishing the guilt of the appellants beyond reasonable doubt. 27. It is a settled principle of criminal law that suspicion, however grave it may be, cannot substitute for proof. The entire case of the prosecution is based on weak circumstantial evidence, and the chain of circumstances necessary to bring home the guilt of the accused has not been established.
Arguments
7. Learned counsel for the appellants would submit that the learned trial Court is absolutely unjustified in convicting and sentencing the appellants for the aforesaid offences as the prosecution has failed to prove the offences beyond reasonable doubt. He would further submit that there is no cogent and clinching evidence available on record to connect the appellants with the crime in question. He would also submit that no evidence has been brought on record by the prosecution to prove motive of the appellants to commit murder of the deceased persons and furthermore, from the spot, piece of cloth, one sickle, clubs, piece of brick and belts were seized, but as per FSL report, no blood group could not be ascertained on the seized articles, therefore, FSL report is not reliable. As such, the impugned judgment of 5 conviction and order of sentence deserves to be set aside and the appellants be acquitted of the said charges. 8. Learned counsel for the State would support the impugned judgment and submit that the prosecution has brought home the offence against the appellants and has proved the case beyond reasonable doubt and thus, the appellants have rightly been convicted and sentenced for the aforesaid offences. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. The first question for consideration would be whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem reports (Ex.P-18) proved by PW-9 Dr. Ajay Bhengra, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11. Now, the question would be whether the appellants are the authors of the crime in question for which the trial Court has relied upon the circumstantial evidence by delving into the incriminating evidence which have been found to be proved by the trial Court resulting into conviction of the appellants. 12. Now, we shall consider the circumstance found proved by the trial Court against appellants with regard to motive of the 6 offence or previous enmity between deceased and appellants. PW-1 Laxmin Bai, the mother of the deceased, initially stated that the deceased had informed her, while being taken to the hospital, that the appellants had committed the said offence. However, this claim is contradicted by her own admission during cross- examination, where she stated that she did not accompany the deceased in the auto-rickshaw on the way to the hospital. She further admitted that accused persons used to reside in her locality and she knew them since the beginning. She also admitted that accused persons had a cordial relationship with the deceased. She also admitted that on the date of incident, deceased had left the house alone and deceased did not inform her about any quarrel or dispute with the accused persons. Thus, from perusal of statement of this witness, it is evident that deceased had not informed her anything about the quarrel or dispute with the appellants. It is also evident from her evidence that there was cordial relationship between the appellants and the deceased and there was no previous enmity between them. This apart, complainant - PW-7 Guddu Bareth, who lodged the FIR, has also turned hostile and not supported the prosecution's case. Thus, from the above evidence, it appears that the though prosecution has relied upon a previous quarrel between the appellants and deceased to establish motive, but no credible witness has come forward to prove the occurrence or nature of such a quarrel. Mere assertions without supporting evidence do 7 not constitute proof of motive and in absence of reliable evidence demonstrating enmity or any strong motive, this alleged prior quarrel cannot be treated as a substantive circumstance pointing towards guilt. As such, the motive for the offence has not been rightly held to have been proved by the trial Court against the appellants. 13. The next circumstance that has been found proved by the trial Court against the appellants herein is the recovery of piece of cloth, one sickle, clubs, piece of brick and belts from the spot. However, FSL report (Ex.P-23) is inconclusive and no blood group could not be ascertained on the seized articles and that apart, there is no evidence on record to show that the blood like stained found on the seized articles is similar to that of the blood of deceased. That apart, witness to memorandum and seizure made from the spot, namely PW-2 Guddu Bareth & PW-8 Vikas have also not supported the prosecution case and turned hostile. Therefore, the mere recovery of articles from the spot like piece of cloth, one sickle, clubs, piece of brick and belts, without any corroboration linking them directly to the offence or the deceased, is insufficient to establish guilt. Accordingly, the FSL (Forensic Science Laboratory) report does not support the prosecution's case. There is no conclusive forensic evidence linking the appellants to the crime scene or to the deceased through these recoveries. 8 14. The Hon’ble Supreme Court in the matter of Raja Naykar vs. State of Chhattisgarh (2024) 3 SCC 481 has held as under:- “It can thus be seen that, the only circumstance that may be of some assistance to the prosecution case is the recovery of dagger at the instance of the present appellant. However, as already stated hereinabove, the said recovery is also from an open place accessible to one and all. In any case, the blood found on the dagger does not match with the blood group of the deceased. In Mustkeem v. State of Rajasthans, this Court held that sole circumstance of recovery of bloodstained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the
Decision
28. In view of the above precedents, laws laid down by the Hon’ble Supreme Court as well as the facts and circumstances of the case, the failure to establish a forensic link between the recovered articles and the deceased persons fatally weakens the prosecution’s case. The conviction cannot be sustained solely on the basis of uncorroborated recovery. The prosecution has failed to prove the appellants' guilt beyond reasonable doubt. The trial court erred in convicting the appellants without credible and trustworthy evidence. The chain of circumstances is broken and incomplete, thus the benefit of doubt must be given to the appellants. 16 29. Accordingly, the appeal is allowed, and the judgment of conviction and order of sentence dated 25.01.2019 passed by the Sessions Judge, Korba, District Korba, in Sessions Trial No. 119/2017 is hereby set- aside. The appellants are acquitted of the charge under Section 302 read with 34 IPC and shall be released forthwith unless wanted in any other case. 30. In compliance with Section 437-A Cr.P.C., the appellants are directed to furnish a personal bond of ₹25,000/- each with two sureties of the like amount before the concerned court. The bond shall be effective for six months and include an undertaking that in case of filing a Special Leave Petition or grant of leave against this judgment, the appellants will appear before the Supreme Court upon receipt of notice. 31. Registry is directed to transmit the lower court record along with a copy of this judgment to the trial court forthwith for information and necessary compliance. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha