Akash Gupta S/o Late Kashichand Gupta, aged about 44 years R/o Brahmroad in front v. State of Chhattisgarh, through P.S. Ambikapur, District- Sarguja
Case Details
1 ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2025:CGHC:30062-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1603 of 2024 Akash Gupta S/o Late Kashichand Gupta, aged about 44 years R/o Brahmroad in front of Goyal Motors, Ambikapur, District-Sarguja (C.G.) --- Appellant versus State of Chhattisgarh, through P.S. Ambikapur, District- Sarguja (C.G.) --- Respondent CRA No. 640 of 2025 Shravan Yadav @ Siddharth Yadav S/o Jugeshwar Yadav Aged About 25 Years R/o Village- Kaskela, Near Panchayat Bhawan, Police Station- Bhatgaon, District- Surajpur (C.G.) --- Appellant Versus State of Chhattisgarh, through- P.S.- Ambikapur, District- Surajpur (C.G.) --- Respondent ________________________________________________________ For Appellants : Mr. Abhishek Sinha, Senior Advocate assisted by Ms. Aditi Singhvi, Advocate For Respondent/State : Mr. Shashank Thakur, Dy. Adv. General For Objector/Complainant : Ms. Sharmila Singhai, Senior Advocate assisted by Mr. Sanjay Agrawal, Advocate ________________________________________________________ Hon'ble Mr. Ramesh Sinha, Chief Justice Hon’ble M r. Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha, Chief Justice 2 03.07.2025 1. 2. Since both the above-captioned appeals arise out of a common factual matrix and common judgment, this Court is disposing of both these appeals by a common judgment. Both these Criminal Appeals have been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) against the impugned judgment of conviction and order of sentence dated 27.06.2024 passed by the learned Second Additional Sessions Judge Ambikapur, District- Surguja (C.G.) in Sessions Case No. 05/2021, by which both the accused/ appellants have been convicted and sentenced in the following matter with a direction to run all the sentences concurrently :- CONVICTION SENTENCE U/s 302 r/w 34 Life imprisonment and fine of Rs.5,000/-, in of IPC default of payment of fine, additional RI for 6 U/s 302 r/w 34 months Life imprisonment and fine of Rs.5,000/-, in of IPC default of payment of fine, additional RI for 6 U/s 120B of IPC U/s 25(1B)(a) of months Life imprisonment and fine of Rs.5,000/-, in default of payment of fine, additional RI for 6 months Rigorous imprisonment for 3 years and fine the Arms Act of Rs.1,000/-, in default of payment of fine, U/s 201 of IPC additional RI for 2 months Rigorous imprisonment for 3 years and fine of Rs.1,000/-, in default of payment of fine, additional RI for 2 months 3. The prosecution case, in brief, is that on 12.04.2020 at around 3 07:00-07:30 pm, Sunil Agarwal and Saurabh Agarwal along with their acquaintance neighbour Akash Gupta and his friend Shravan Yadav went to Akash Gupta's house to eat litti chokha, but did not return till late night. The mobile phones of both of them were also switched off. Even after inquiries by the family members, both of them could not be traced, then on 11.04.2020 morning, a missing person report was lodged in Ambikapur police station, on which missing person report being Case No. 29/2020 (Ex.P-14) was registered and investigation was conducted. In this regard, the photographs given by the deceased are marked as Articles A-1 and A-2. During the investigation, on questioning the family members of the missing person, it was found that there was a dispute between Akash Gupta and deceased Saurabh Agarwal and his family members regarding transaction of land and house sale. Then Akash Gupta was questioned on the basis of suspicion, he told that he was upset and angry as deceased Saurabh Agarwal and his father Balraj Agarwal were not giving him the remaining amount. Due to which accused Akash Gupta along with his friend Shravan Yadav hatched a plan to murder Saurabh Agarwal and his family members. To execute the plan, with the help of his friend Ramesh Agarwal, he purchased pistol and rounds from Shiv Patel. 4. On 10.04.2020 at around 07:30 pm, Saurabh Agarwal and Sunil Agarwal went to Akash Gupta's house with Akash Gupta. Seeing 4 Akash Gupta and Siddharth alias Shravan Yadav both drunk, as per the pre-planned plan, Siddharth alias Shravan Yadav shot Sunil Agarwal with a pistol at the back of the head, due to which he fell on the ground and died. Saurabh Agarwal, on seeing the incident, started protesting, upon which Akash Gupta stabbed him in the stomach with a dagger. Thereafter, their bodies were hidden by burying them in a pre-dug pit in a room of Akash Gupta's house. Siddharth alias Shravan took away the chain worn by deceased Saurabh Agrawal and Rs. 3000/- and took the deceased's purse, mobile and vehicle keys from the spot of incident and took Saurabh's vehicle CG15DM-8489 parked on the roadside in front of the house and went to the vegetable market near Akashvani Chowk, kept the mobile and purse in the vehicle and left the vehicle and came back. Thereafter on interrogating the accused Shravan Yadav, he also gave similar information. 5. On 12.04.2020, memorandum statement of accused Akash Gupta Ex.P-01 and memorandum statement of accused Shravan Yadav alias Siddharth Yadav Ex.P-02 were prepared in front of witnesses. On the said date, spot inspection panchnama Ex.P-03 and excavation panchnama of the dead bodies of the deceased Ex.P-04 were prepared in front of witnesses. Photography was done during the excavation, whose photographs are from Articles A-3 to A-24, the certificate of Section 65-B Evidence Act given in relation to the said photographs is Ex.P-46. Body identification panchnama Ex.P-05 was prepared. Identification panchnama 5 Ex.P-06 was prepared for 01 piece of gold chain, which Shravan Yadav has said to have taken out from the neck of Saurabh Agarwal after his murder. Dehati Nalishi Ex.P-37 and Ex.P-38 were registered, on which merg intimation Ex.P-39 was registered regarding the death of Sunil Agarwal and merg intimation Ex.P-40 was registered regarding the death of deceased Saurabh Agarwal. On the basis of merg intimations, on
Legal Reasoning
12.04.2020, a First Information Report (FIR) 208/2020 was registered against the accused under Sections 302, 201, 120B, 34 IPC and Sections 25, 27 of the Arms Act in connection with the murder of Saurabh Agarwal and Sunil Agarwal, which is Ex.P-81. The acknowledgement of countable notice of which is Exhibit P-8. 6. Notice issued to witnesses under Section 175 Cr.P.C. for their presence in the death inquiry of deceased Saurabh Agarwal is Ex.P-07 and map panchayatnama is Ex.P-08. Notice issued to witnesses under Section 175 Cr.P.C. for their presence in the death inquiry of deceased Sunil Agarwal is Ex.P-09 and map panchayatnama is Ex.P-10. On the said date, postmortem application Exs.P-62 and P-63 were prepared for conducting postmortem of the bodies of deceased Saurabh Agarwal and deceased Sunil Agarwal and sent to District Medical Officer, Ambikapur through constable Makardhwaj. While conducting postmortem of the body of deceased Saurabh Agarwal, the doctor gave postmortem report Ex.P-34, in which the opinion regarding nature of death of the deceased was given as 6 homicidal. While conducting postmortem of the body of deceased Sunil Agarwal, the doctor gave postmortem report Ex.P-36, in which the opinion regarding nature of death of the deceased was given as homicidal. On 12.04.2020, a site map of the incident site Ex.P-30 was prepared. On 24.04.2020, the items preserved after the PM of Sunil Agrawal and Saurabh Agrawal were brought and presented by constable Makardhwaj and seizure memo Ex.P-44, and P-45 were prepared in front of the witnesses. As per the statement of witnesses Balraj Agrawal, Vishal Goswami alias Dudhnath, the site map Ex.P-31 was prepared. 7. On 12.04.2020, the ground floor of the house of the accused Akash Gupta was sealed and a spot seal panchnama Ex.P-11 was prepared. On the said date itself, a Samsung mobile with SIM No. 9009073925 was seized from the possession of Akash Gupta as per seizure memo Ex.P-12. A black colour purse, PAN card, vehicle license, Aadhaar card and cash amount of Rs. 3110, a long chain of gold like metal, a Jio company keypad mobile were seized from the accused Shravan Yadav alias Siddharth as per seizure memo Ex.P-13. An application was sent to the Tehsildar Ambikapur as per Ex.P-32 regarding the preparation of the site of the incident and a written application Ex.P-33 was sent. On the said date itself, site maps of the place and its surroundings were prepared by going to the house of accused Akash Gupta as per Ex.P-30 and Ex.P-31. In relation to which, the Revenue Inspector presented the site map (Ex.P-16) of the 7 incident before the witnesses and Panchnama (Ex.P-17) was prepared before the Panchas. 8. On 13.04.2020, Panchanama Ex.P-18 for opening the seal of the house of accused Akash Gupta and Panchanama for recovery of goods from the house Ex.P-19 were prepared in front of witnesses and Panchanama Ex.P-20 was prepared regarding not finding goods from the house of the accused and Panchanama Ex.P-22 was given for search of the house of the accused. On 12.04.2020, the goods and soil recovered from the grave along with the dead body from the house of accused Akash Gupta at Brahmaroad Ambikapur were seized in front of witnesses and seizure sheet Ex.P-23 was prepared. On the same date, when accused Akash Gupta produced the pistol, magazine, shovel, spade and the key of Innova car, the same were seized in front of witnesses and seizure sheet Ex.P-24 was prepared. On the said date itself, when accused Shravan Yadav alias Siddharth was produced from the house of accused Akash Gupta, his blood- stained half pants and jacket were seized in front of witnesses and seizure sheet Ex.P-25 was prepared. On 13.04.2020, 02 magazines recovered from the pit at the crime scene were seized in front of witnesses and seizure sheet Ex.P-21 was prepared. 9. Ankit Agarwal was given a notice under Section 91 Cr.P.C. Ex. P- 64 for making a certified copy of the land sale deed document. In compliance with the said notice, on presenting the sale deed and contract deed of purchase of land and house, they were seized 8 on 27.06.2020 and seizure memo Ex.P-43 was prepared. After the PM of deceased Saurabh Agarwal, a memo was sent to the Medical College Ambikapur for examination of preserved clothes and seized a sharp knife (gupti), on the basis of the said memo, a query report Ex.P-35 was given. The written complaint sent on 18.06.2020 for examination of the seized pistol with rounds from the hands of constable Arvind Upadhyay and giving its opinion is Ex.P-41. On 11.05.2020, a memo Ex.P-51 was sent to the Joint Director Regional Forensic Science Laboratory for giving an opinion after examining the viscera, the acknowledgment of which is Ex.P-51A. The test report Ex.P-65 was sent by the Joint Director Regional Forensic Science Laboratory on 28.05.2020. On 04.05.2020, a memo Ex.P-47 was sent to the Joint Director Regional Forensic Science Laboratory for giving an opinion after chemical examination of the seized items, the acknowledgement of which is Ex.P-47A. The test report Ex.P-66 was sent by the Joint Director Regional Forensic Science Laboratory on 06.06.2020. 10. On 26.05.2020, written complaint Ex.P-67 was sent to the Superintendent of Police, Surguja, for permission to take 06 bullets (cartridges) for ballistic test. The said permission is ExP-68. On the same date, written complaint Ex.P-69 was sent to Ritesh Saluja Kumar Auto Store for purchasing 06 live bullets (cartridges) caliber, whose purchase bill is Ex.P-70. On 18.04.2020, seized property were sent to the Director, Regional 9 Forensic Science Laboratory vide Ex.P-48 and 49, whose acknowledgment receipt are Ex.P-48A and Ex.P-49A. After finding evidence of crime against the accused, they were arrested as per arrest sheet Exs.P-26, 27, 28, 29. Informations regarding arrest were given to their family members as per Exs.P-71, 72, 73, 74 respectively. 11. On 26.06.2020, through the Superintendent of Police, a written complaint Ex.P-75 was sent to the Nodal Officer of Reliance Company for providing call data, CAF. On 16.06.2020, a written complaint Ex.P-76 was sent by the Nodal Officer of Cyber Cell for providing information related to the CAF of the deceased Sunil Agarwal and Saurabh Agarwal and the accused Ramesh Agarwal and Akash Gupta, in relation to which a report was given as per Ex.P-77. On the same date, a written complaint Ex.P-78 was sent for providing mobile call data, SDR of Idea Company. On the same date, a written complaint Ex.P-79 was sent for providing mobile call data, SDR of Reliance Company. The Nodal Officer provided evidence under Section 65B of the Evidence Act as per Ex.P-60. 12. On 11.04.2020, a memo regarding CDR and CAF of IMEI of mobile number for tracing the missing person of Ambikapur police station was sent to the Nodal Officer as per Ex.P-80. Statements of witnesses were recorded. Report Ex.P-83 was sent regarding matching of fingerprints found from the seized vehicle. Regarding which, the report sent by the Deputy Superintendent of Police, 10 Fingerprint Expert is Ex.P-84. The opinion report given by the Fingerprint Expert Raipur is Ex.P-85 and the report Ex.P-86 has been submitted to the State Forensic Laboratory Raipur regarding the nature of the marks of sharp edged cuts on the full shirt and sando vest of the deceased being similar to the samples made by hitting with a knife. 13. Opinion sent by State Forensic Science Laboratory Raipur is Ex.P-87 and Call Data Record and Certificate of 65-B given by Nodal Officer of Reliance Jio Cellular Company are Exs.P-88 and 89 respectively. Thereafter, through Superintendent of Police Surguja, seized pistol Article A-25 and bullet Article A-26 taken out from the head of deceased Sunil Agarwal, one pistol round Article A-27, 06 pieces of 7.65 caliber KF round Article A-28 purchased for testing, 02 pieces of magazine Article A-29 wrapped in seized cloth, and skin tag of place where bullet hit deceased Sunil Agarwal, is marked as Article A-30. The letter of Superintendent of Police, Surguja regarding call details and CDR from 28.02.2020 to 11.04.2020 is Ex.P-90. On the basis of the letter Ex.P-91 sent by Superintendent of Police Surguja on 26.06.2020 for providing call data, Nodal Officer Reliance had given the information of CDR and CAF which is Ex.P-92. The Customer Application Form provided by Sunil Agarwal and Saurabh Agarwal are Exs.P-93 & 94 and the call details given in relation to it dated 10.04.2020 are Exs.P-95 & 96. 14. The letter sent by the Superintendent of Police, Surguja, for 11 providing the Call Data Records and CAF of the mobile numbers of the accused for different periods is Ex.P-97, in which the holders of the said mobile numbers were found to be Shravan Yadav, Ramesh Agarwal, Lalpyare Yadav, their application forms are Exs.P-98, 99, 100 respectively. The CDR of Shravan Yadav's mobile number is of total 31 pages, which is marked as Ex.P-101. The CDR of Ramesh Agarwal's mobile number is of total 12 pages, which is marked as Ex.P-102. The CDR of Lalpyare Yadav's mobile number is of total 11 pages, which is marked as Ex.P-103. The application for sending the Certificate of 65-B in respect of the said CDR and CAF is Ex.P-104. 15. After completion of other formalities of investigation, a charge- sheet against these accused under Section 302, 201, 120 B, 404, 34 IPC and 25, 27 Arms Act before the Court of Judicial Magistrate First Class, Abmikapur, from where the case was committed to the Court of Sessions and ultimately, the Second Additional Sessions Judge, Ambikapur, received the case on transfer for hearing and disposal in accordance with law. 16. Accused Akash Gupta has been charged under Sections 302/34 (twice), 201, 404, 120B, IPC and Section 25 (1B) (a), 29 (a) of Arms Act and Shravan Kumar Yadav alias Siddharth Yadav has been charged under Sections 302/34 (twice), 201, 404, 120B, IPC and Section 25 (1B) (a), 27 of Arms Act and accused Ramesh Agarwal has been charged under Section 120 (B) IPC 12 and accused Shiv Patel has been charged under Section 25(1-a), 29 (b) of Arms Act. When the chargesheet was read out to them, they denied having committed the offence and demanded trial. 17. When the accused were examined under Section 313 Cr.P.C., they stated that they were innocent and that they were falsely implicated out of malice. No witness was examined on behalf of the accused in their defence. 18. In order to bring home the offence, the prosecution examined as many as 14 witnesses, namely, Ankit Agarwal (PW-1), Sumit Kumar Agarwal (PW-2), Prince Agarwal (PW-3), Sajjan Agarwal (PW-4), Rajat Goyal (PW-5), Nathu Ram Agarwal (PW-6), Teju Prasad Yadav (PW-7), Balraj Agarwal (PW-8), Dr. J.S. Saruta (PW-9), Dr. Santu Bagh (PW-10), Assistant Sub-Inspector Dhananjay Pathak (PW-11), Head Constable, Santosh Kashyap (PW-12), Assistant Sub-Inspector, Ghanshyam Manhare (PW- 13), Lucky Dubey (PW-14), Amit Soni (PW-15), Constable, Balkeshwar Ram (PW-16), Constable, Umashankar Sahu (PW- 17), Constable, Arvind Upadhyay (PW-18), Vishal Goswami Dudhnath (PW-19), Constable, Makardhwaj Singh (PW-20), Head
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Constable, Dharmendra Shrivastava (PW-21), Constable, Alok Gupta (PW-22), Assistant Sub-Inspector, Balmukund Singh (PW- 23), Constable, Amresh Das (PW-24), Assistant Sub-Inspector, Rakesh Kumar Singh (PW-25), Junior Engineer, Dhananjay Prasad Dubey (PW-26), Inspector, William Toppo (PW-27), Pankaj Ramaiya (PW-28), Sanjeev Nema (PW-29). Apart from 13 these ocular evidences, the prosecution has also produced certain documentary evidences, which were marked as Exs.P-1 to P-104. 19. The trial Court after appreciation of oral and documentary evidence available on record, by its judgment dated 27.06.2024, convicted and sentenced the accused/appellant Akash Gupta and Shravan Yadav @ Siddharth Yadav as aforementioned, whereas acquitted accused Ramesh Agrawal and accused Shiv Patel , holding that the prosecution has failed to prove its case against said accused beyond reasonable doubt. 20. Being aggrieved by the impugned judgment of conviction and order of sentence dated 27.06.2024 passed by the learned trial Court, these two appeals have been preferred by the convict/accused. 21. Mr. Abhishek Sinha, learned Senior Advocate assisted by Ms. Aditi Singhvi, learned counsel for the appellants vehemently argued that though there is no eyewitness of the incident and the case prosecution is based on the circumstantial evidence, but the learned trial Court has failed to consider that the chain of circumstance is not complete, which is a requirement under the law. The motive of the offence has also not been proved by the prosecution. He further argued that the learned trial Court has also failed to appreciate that the conviction cannot be based merely on the basis of memorandum statement and subsequent seizures, especially when the motive of the offence has not been 14 proved and they are merely corroborative piece of evidence and cannot be the sole basis to convict the appellants. In this regard, reliance has been placed in the matter of Bijender Vs. State of Haryana, (2022) 1 SCC 92. It has been submitted by learned Senior Advocate that the FSL report only states that human blood has been found, but the blood group of the same has not been determined, as such the same cannot be made basis for conviction. In this regard, reliance has been placed in the case of Madhav Vs. State of M.P., 2021 SCC OnLine SC 613. He also argued that only the related family members are witnesses no other independent witnesses examined and every proceedings have been done by the family members, further memorandum statements of the accused were record and seizure were made in the police station. 22. Mr. Sinha further submitted that so far as accused Shravan Yadav @ Siddharth Yadav is concerned, there is no property dispute with him as such, there is motive against him and further that there is no evidence that he is residing the said premises and has participated in the offence in question, only on the presumption that two persons cannot be murdered by one person, he has been convicted by the trial Court. 23. On the other hand, learned Mr. Shashank Thakur, learned Deputy Advocate General, appearing for the State/respondent opposed the aforesaid submission and submitted that conviction of the appellant is based on direct as well as circumstantial evidence. 15 The prosecution during investigation recorded the statements of the prosecution witnesses in which they have categorically deposed in their statements regarding conduct and commission of offence by the appellants, which is concurrent evidence against the appellants and thus, the learned trial Court has rightly convicted and sentenced the accused/appellants. Therefore, the instant appeal deserves to be dismissed. It has been further submitted that the learned trial Court has come to the conclusion regarding involvement of the accused / appellants in the crime in question under the concluding paras of the judgment in which the learned trial Court has observed all incriminating circumstances against the accused / appellants, which connect them with the instant crime and chain of circumstances are fully linked and completed with each other. Thus, the prosecution has proved its case beyond reasonable doubt and the judgment of the trial Court is just and proper and does not call for any interference by this Court and as such, criminal appeal deserves to be dismissed. 24. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 25. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased Saurabh Agarwal and Sunil Agarwal were homicidal in nature ? 26. In this regard, the evidence of Dr. J.S. Saruta (PW-9) and Dr.Santu Bagh (PW-10), who conducted the post-mortem of the 16 bodies of the deceased as part of the team of doctors of the district hospital, is important. Dr. J.S. Saruta (PW-9) after conducting the post-mortem of deceased Saurabh Agarwal has informed that there was a mark of injury on the left side of the abdomen of the deceased, below the rib, which was present up to the depth of the bone. Its size was 2 X 0.5 cm, which was pointed in shape. On opening the abdomen, it was found that there was a cut mark on the left part of the liver. The entire length of the injury was 15 cm deep. Due to this injury, about 800 grams of blood had accumulated in the peritoneal cavity. He has stated that the injury sustained by the deceased was caused by a hard and sharp object and was before death. The duration of the injury was within 12 hours of death. After examination, it was opined that the death of the deceased was due to excessive bleeding due to injury in the stomach. The period of death was within 32 to 48 hours of doing PM. The nature of death was homicidal. The said witness has accepted his signature on postmortem report of deceased Saurabh Agarwal (Ex.P.34) and that of deceased Sunil Agarwal (Ex.P.36) and has certified both the reports. 27. Dr. Santu Bagh (PW 10) has stated in relation to the postmortem of deceased Sunil Agarwal that the clothes of the dead body had blood stains and mud on them, stiffness was absent and hypostasis was present in the back. Skin was coming out of the right hand, the body had the following injuries: 1. There was a torn wound above the right eye, the size of which was 2 x 0.5 cm. 17 2. There was a small circular wound of 1 x 0.5 cm size on the back of the head, around which there was a black spot (gun powder), on opening the said injury, there was a circular fracture in the bone situated on the back of the skull, blood was coming out from there, on opening the skull, the inner part of the brain was torn due to bullet injury. The presence of bullet was found in the middle part of the brain. Blood clotting was present in the occipital region of the brain. After examination, Dr. Santu Bagh gave the opinion that the death of deceased was due to excessive bleeding and shock caused by injury on his head (due to firearm). Injuries were antemortem. Period of injuries was within 12 hours of death and period of death was within 32 to 48 hours of conducting postmortem. Nature of death was homicidal. The said witness has accepted his signature on postmortem report of deceased Saurabh Agarwal (Ex.P.34) and that of deceased Sunil Agarwal (Ex.P.36) and has certified both the reports. 28. On the basis of the evidence of the above two witnesses and the postmortem reports Ex.P. 34 and Ex.P. 36, it is shown that the death of the deceased Saurabh Agarwal and Sunil Agarwal was not natural but a criminal homicide. 29. The trial Court relying upon the statements of Dr. J.S. Saruta (PW-9) and Dr. Santu Bagh (PW-10), who had conducted the postmortem of the bodies of the deceased as part of the team of doctors of the district hospital and their postmortem reports Ex.P- 18 34 and Ex.P-36 has clearly come to the conclusion that death of both deceased Saurabh Agarwal and Sunil Agarwal were homicidal in nature. 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. 30. It is the case of no direct evidence, rather conviction is based on circumstantial evidence. 31. We may also make a reference to a decision of the Supreme Court in C. Chenga Reddy and Ors. v. State of A.P., (1996) 10 SCC 193, wherein it has been observed thus: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”. 32. In Padala Veera Reddy v. State of A.P. and Ors., AIR 1990 SC 79, it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: 19 “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively 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 none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 33. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out by the Supreme Court that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 34. Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts 20 alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted”. 35. Five golden principles which constitute Panchseel of proof of case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 which state 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; (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; 21 (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.” 36. The Supreme Court in the matter of Suresh and Another v State of Haryana, (2018) 18 SCC 654 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 may 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 22 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.” 37. The Supreme Court in the matter of Sailendra Rajdev Pasvan and Others vs. State of Gujarat Etc., AIR 2020 SC 180 observed that in a case of circumstantial evidence, law postulates two-fold requirements. Firstly, that every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt and secondly, all the circumstances must be consistent pointing out only towards the guilt of the accused. We need not burden this judgment by referring to other judgments as the above principles have been consistently followed and approved by this Court time and again. 38. In the present case, the prosecution has proved the following circumstantial evidence against the appellant:- (i) The deceased were last seen alive with the accused Akash Gupta and Shravan Yadav alias Siddharth Yadav. (Last seen together) (ii) On the basis of the disclosure made by the accused Akash Gupta and Shravan Yadav alias Siddharth Yadav, as stated by them, the bodies of 23 the deceased have been recovered from a room in the house of accused Akash Gupta. (iii) On the basis of the disclosure made by the accused Akash Gupta and Shravan Yadav alias Siddharth Yadav, the weapons used in the murder of the deceased i.e. sharp knife (gupti), pistol, magazine and pistol rounds have been seized as per their details. (iv) On the basis of the disclosure made by the accused Akash Gupta and Shravan Yadav alias Siddharth Yadav, as per their statement, the keys of the Innova car of the deceased Saurabh Agarwal have been seized from the accused Akash Gupta and the gold chain worn by him has been seized from the accused Shravan Yadav alias Siddharth Yadav. (v) Human blood has been found in the weapons used in the incident (Gupti and Bullet) and in the seized half pants and jacket of Shravan Yadav and when the floor of the room in the house of accused Akash Gupta at the incident site was wiped with cotton, human blood was found on that cotton. (vi) The tools (spade & shovel) used in digging the pit for burying the bodies of the deceased in the 24 room of accused Akash Gupta were recovered from the house of accused Akash Gupta. (vii) Accused Akash Gupta had a motive to murder the deceased and as a preparation for this, a pit was dug in a room of the house and weapons were collected. 39. 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:- (a) Homicidal deaths of deceased Saurabh Agarwal and Sunil Agarwal were proved by the prosecution as per postmortem reports Ex.P-34 and Ex.P-36 respectively given by Dr. J.S. Saruta (PW-9) and Dr. Santu Bagh (PW-10), who had conducted post-mortem of the bodies of the deceased as part of the team of doctors of the District hospital. (b) As per the case of the prosecution, the accused Akash Gupta and Shravan Yadav had kept the pistol and dagger with the intention to cause the death of the deceased and the way the bullet was fired in the head, the vital spot of the body, and the wound was inflicted with the dagger to a depth of 15 cm in the stomach of the deceased Saurabh, the intention of the accused was only and only to cause the death of the deceased. 25 (c) After the murder of deceased Saurabh and Sunil, accused Akash Gupta and Shravan Yadav themselves hid the body and the weapon used in the murder, which as per excavation panchnama Ex.P-04, body identification panchnama Ex.P-05, goods recovery panchnama Ex.P-19, seizure sheet Ex.P-21, seizure sheet Ex.P-23, seizure sheet Ex.P-24, were recovered and seized from the house of accused Akash Gupta. There is no explanation from the accused as to how the dead bodies, a sharp knife (gupti) and pistol came in the room inside the house. The accused themselves knew about the dead bodies and weapons being at a specific place in the house, hence it is proved that the accused themselves hid them there. (d) A silver coloured pistol measuring 5.1 inches in length, handle 4.2 inches, length from rim to magazine 16 cm, with a silver coloured magazine fitted in it, length 3.8 inches, width about 1 inch and one pistol round, on the bottom of which KF 7.65 is written, was seized in the presence of witnesses Nathu Ram Agarwal (PW-6) and Rajat Goyal (PW-5) on the production of accused Akash Gupta as per seizure memo Ex.P. 24. (e) The gold chain worn around the neck of deceased Saurabh Agarwal has been recovered from accused Shravan Yadav, in respect of which after preparing 26 seizure memo Ex.P. 13, witnesses Ankit Agarwal (PW-1) and Nathu Ram Agarwal (PW-6) were asked to identify it, Panchnama Ex.P. 06 has been prepared in this regard. Ankit Agarwal (PW-1) and Nathu Ram Agarwal (PW-6) had said that the said chain belonged to Saurabh Agarwal, which Nathu Ram Agarwal (PW-6) has received from the Court on surrender deed. The said gold chain was seized from accused Shravan Yadav as per seizure memo Ex.P. 13, but he neither made any claim regarding the said chain being his nor has he presented any bill or receipt in this regard. The witnesses have identified the said chain as belonging to deceased Saurabh Agarwal. 40. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused ‘must be’ and not merely ‘may be’ proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis 27 except the one to be proved. It has been held that 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 probabilities the act must have been done by the accused. 41. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. 42. In the light of these guiding principles, we will have to examine the present case. 43. On a perusal of the judgment of the Trial Judge, it would reveal that the main circumstance on which the Trial Judge found the appellants guilty of the crime is the recovery of various articles at their instance. The Trial Judge has further found that on the basis of memorandum statement of the appellant – Akash Gupta at his instance, pistol, magazine, shovel, spade and the key of Innova car were seized in front of witnesses as per seizure sheet Ex.P- 24 and when accused Shravan Yadav alias Siddharth was produced from the house of accused Akash Gupta, his blood- stained half pants and jacket were seized in front of witnesses as per seizure sheet Ex.P-25 and 02 magazines recovered from the pit at the crime scene were seized in front of witnesses as per seizure sheet Ex.P-21. Further, the gold chain worn around the 28 neck of deceased Saurabh Agarwal has been recovered from accused Shravan Yadav as per Ex.P. 13, which was identified by witnesses Ankit Agarwal (PW-1) and Nathu Ram Agarwal (PW-6) that the said chain belonged to Saurabh Agarwal. Though, the said gold chain was seized from accused Shravan Yadav as per seizure memo Ex.P. 13, but he neither made any claim regarding the said chain being his nor has he presented any bill or receipt in this regard. 44. Ankit Agarwal (PW-1) and Natthu Ram Agarwal (PW-6) have stated that on bringing the accused Akash Gupta and Siddharth Yadav to Akash Gupta's house and inspecting the scene, the accused Akash Gupta and Siddharth Yadav showed the incident spot and the place of burial of the dead body in front of the Panchas. With the help of cleaning staff and other Panchas, the bricks kept at the place of burial were removed and upon digging, a sharp knife (gupti) along with cover was found. On digging deeper, blanket, sheet, Godra, salt, water etc. were found. On digging a little more, the dead bodies of both Saurabh and Sunil were found in that pit. 45. Police have authenticated the above documents by accepting the signatures of the witnesses of spot inspection panchanama Ex.P-3 and excavation panchanama Ex.P-4, Nathu Ram Agarwal, Ankit Agarwal, Prince Agarwal and Rajat. Two iron magazines wrapped in a checkered cloth inside a plastic sheet recovered from the mud during excavation at the site of the incident were 29 seized and the seizure memo Ex.P-21 prepared has also been authenticated by the witnesses of the above seizure proceedings, Nathu Ram Agarwal and Sajjan Agarwal. 46. Thus, on the basis of facts told by accused Akash Gupta and Shravan Yadav during interrogation, as per the information received from them, the dead bodies of the deceased were recovered from inside the room of Akash Gupta's house after digging the place. Along with that, pistol and live rounds were also recovered from near Akash Gupta's house as told by him. From the pit where the dead bodies were recovered, two magazines and a pistol were also recovered along with other items. Even the keys of Saurabh Agarwal's Innova car and the gold chain worn around his neck have also been seized from accused Akash Gupta and accused Shravan Yadav respectively. 47. The proceedings of recovery and seizure of the said goods and the information given by the accused during interrogation in this regard before that have also been certified by the witnesses during their evidence. 48. At this stage, it would be appropriate to notice Section 27 of the Indian Evidence Act, 1872, which states as under: - “27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 30 Obje 49. Section 27 of the Indian Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered. 50. The Supreme Court in the matter of Asar Mohammad and others v. State of U.P., AIR 2018 SC 5264 with reference to the word “fact” employed in Section 27 of the Evidence Act has held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67 observed as under: - “13. It is a settled legal position that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of Maharashtra1, in particular, paragraphs 23 to 29 thereof. The same read thus: 1 (2015) 1 SCC 253 31 “23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor (supra) has held thus: (IA p. 77) “… it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. xxx xxx xxx xxx xxx xxx xxx xxx xxx” 51. The Supreme Court in the matter of Perumal Raja alias Perumal v. State, Rep. By Inspector of Police, 2024 SCC OnLine SC 12 has defined the ‘custody’. It held that the expression “custody” under Section 27 of the Evidence Act does not mean formal custody. It includes any kind of restriction, restraint or even surveillance by the police. Even if the accused was not formally 32 arrested at the time of giving information, the accused ought to be deemed, for all practical purposes, in the custody of the police. 52. The Supreme Court in the matter of Boby v State of Kerala, 2023 SCC OnLine SC 50 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 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. Section 27 puts a bar to use the confessional statement, but the fact that discovery and information which proved to reliable would be a circumstantial evidence. 53. In the present case, the prosecution has proved that on the basis of the memorandum statement of the accused regarding the seizure/recovery of the dead bodies of the deceased and the weapons used in the incident and the chain and car keys of the deceased Saurabh Agarwal from the place mentioned by them, the information given in this regard and the action taken is certified by the evidence of its witnesses. 54. According to the FSL report of the seized items in the case, it has been confirmed that human blood was found in the bullet, the pistol, the clothes of accused Shravan Yadav and the cotton used to wipe the floor of the crime scene, regarding which there is no 33 explanation from the accused. This reveals that the blood found in all the above mentioned items is of the deceased and it is proved that the seized gupti and pistol were used in the crime and criminal homicide of the deceased was committed. Ghanshyam Manhare (PW-13) has stated that the seized pistol is in working condition. 55. It is an undisputed fact in the case that the house and land of accused Akash Gupta have been purchased by deceased Saurabh Agarwal and his family. Even after the house of accused Akash Gupta was purchased by Saurabh Agarwal's family, accused Akash Gupta was still residing in the said house. There is a dispute between both the parties regarding vacating the house and the amount of the said purchase and sale. The information in this regard has been given by accused Akash Gupta and Shravan Yadav in their interrogation statements Ex.P-1 and Ex.P-2. 56. Witness Balraj Aggarwal (PW-8) has stated in paragraph 10 of his evidence that he had purchased the house and land from accused Akash Gupta by getting 04 registries done in the name of his family members between the years 2016 and 2018, for which he had paid the full amount. Accused Akash Gupta had taken an additional thirteen lakh rupees in lieu of vacating the house, yet he was still occupying the house. He did not want to vacate the house and land. 57. On the basis of the said evidence, internal conflict and animosity 34 between the two parties regarding the land and house is being reflected, due to which the accused Akash Gupta had the motive to murder Saurabh Agarwal and his family members, so that he would not have to vacate the said house. The incident took place on 10.04.2020 at around 08:00 pm and the excavation panchnama was prepared on 12.04.2020 at 08:00 am, according to which the room of the house of accused Akash Gupta was excavated. Accused Akash Gupta himself, along with the family members of the deceased, was searching for the deceased here and there, while the dead body was buried in his house. 58. Considering the difference between the time of the incident and the time of digging and the length, breadth and depth of the pit dug to bury the two bodies, which is visible in the photographs Article A-14, A-15, A-16, it is not possible that the pit was dug after the incident. The accused have also stated in their memorandum statement that the pit was dug beforehand. Similarly, the pistol used in the incident, which is an illegal weapon, was also procured and kept by the accused beforehand, which shows that the accused had made preparations to commit the incident beforehand. 59. Thus, the circumstances of decisive nature shown above, which have been fully established on the basis of evidence, form a chain of circumstances. Each of these links, connecting the circumstances in a chain, establishes the hypothesis that the 35 accused Akash Gupta and Shravan Yadav alias Siddharth Yadav are guilty, apart from this no other hypothesis seems possible. These circumstances seem to form a sequential chain of evidence against the accused Akash Gupta and Shravan Yadav alias Siddharth Yadav, which shows that the death of the deceased Saurabh Agarwal and Sunil Agarwal was caused by the accused Akash Gupta and Shravan Yadav alias Siddharth Yadav. On the basis of all the circumstances mentioned above, all the evidence is considered to be proved. Such a sequential chain has been established, as such, there is no basis to conclude that accused Akash Gupta and Shravan Yadav alias Siddharth Yadav are innocent. Therefore, on the basis of the above circumstantial evidence, it is proved that the death of the deceased has been committed by the accused Akash Gupta and Shravan Yadav alias Siddharth Yadav. 60. Applying the aforesaid well settled principles of law and taking into consideration the facts in totality and considering the facts and circumstances of the case, in our considered view the prosecution was able to establish that accused Akash Gupta and Shravan Yadav had entered into a criminal conspiracy to murder the deceased Saurabh Agarwal and Sunil Agarwal and that they had killed the deceased Saurabh Agarwal and Sunil Agarwal in furtherance of their common intention and that they had destroyed the evidence with the intention of covering themselves from the punishment of murder. The possession of illegal weapon 36 pistol by the accused Akash Gupta and Shravan alias Siddharth Yadav and the use of the said pistol by the accused Shravan Yadav has also been found to be proved beyond reasonable doubt. Thus, the impugned judgment of conviction and order of sentence passed by the trial Court is just and proper warranting no interference of this Court. 61.
Decision
In the result, both the appeals being devoid of merit are liable to be and are hereby dismissed. 62. 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. 63. The trial court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. 64. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail term, to serve the same on the appellant informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Bibhu Datta Guru) Judge (Ramesh Sinha) Chief Justice Chandra