1 - Diyaru Alami, S/o Late K. A. Alami, aged about 28 Years, R/o v. 1 - State of Chhattisgarh, Through Police Station Nelasnar, District Bijapur, Chhattisgarh
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2025:CGHC:42913-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1898 of 2017 1 - Diyaru Alami, S/o Late K. A. Alami, aged about 28 Years, R/o Village Kaurgaon, Sarpanchpara, Police Station Nelasnar, District Bijapur, Chhattisgarh. ... Appellant versus 1 - State of Chhattisgarh, Through Police Station Nelasnar, District Bijapur, Chhattisgarh. ... Respondent For Appellant : Mr. S.P. Sahu, Advocate For Respondent : Mr. Devesh G. Kela, Panel Lawyer. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. Judgment on Board 25.08.2025 Per, Amitendra Kishore Prasad, J. 1. This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 17.10.2017 passed in Sessions Trial No.162/2015 by the First Additional 2 Sessions Judge, South Baster, Dantewada, C.G., by which the appellant stands convicted & sentenced as under:- Conviction Sentence Under Section 302 of Indian Imprisonment for life Penal Code (for short, ‘IPC’) Under Section 307 of IPC Rigorous Imprisonment for ten years (Both sentences were directed to run concurrently) 2. Case of the prosecution is that on 27.05.2015 at about 08:00 a.m., accused/appellant- Diyaru Alami, resident of Kaurgaon Sarpanchpara, Police Station Nelsnar, District Bijapur, quarreled with his family members over a domestic dispute and thereafter,
Legal Reasoning
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 1 (1984) 4 SCC 116 15 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 appellant in such a manner that would link the appellant directly to the crime and 16 that no forensic evidence has been produced to establish that the blood on the seized articles belonged to the deceased. The prosecution also 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 appellant 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
with an intent to kill, he attacked his wife/PW-4- Smt. Sundari Alami and his sister-in-law Smt. Masih Alami with a knife, as a result of which, PW-4 Smt. Sundari Alami sustained grievous injuries on her hand and abdomen, while Smt. Masih Alami suffered a fatal chest injury and died on the spot. On the report of PW-3 Daiber Alami, FIR (Ex.P-8) has been registered against the appellant at Police Station Nelsnar, Bijapur under Sections 302 and 307 of IPC. After that, merg intimation vide Ex.P-9 was recorded and inquest proceedings were conducted vide Ex.P-2. Dead body of deceased- Smt. Masih Alami was sent for postmortem examination which was conducted by PW-8 Dr. Abhay Pratap Singh Tomar, who has proved the postmortem report Ex.P-16A. According to PW-8 Dr. Abhay Pratap Singh 3 Tomar, cause of death of deceased- Smt. Masih Alami was haemorrhage shock due to internal bleeding and mode of death of deceased was homicidal in nature. 3. During investigation, accused/appellant was arrested vide Ex.P- 18. Memorandum statement of the appellant was recorded vide Ex.P-4, pursuant to which, one knife and blood like stained clothes of appellant were seized vide Ex.P-5. Seized articles were sent to FSL for chemical examination, but no FSL report has been brought on record. 4. After due investigation, appellant was charge-sheeted before the jurisdictional Criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant abjured his guilt and entered into defence by stating that he has not committed the offence and prayed for trial. 5. The prosecution in order to bring home the offence, examined as many as 9 witnesses in support of its case and exhibited 20 documents. However, the appellant in support of his defence has 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 appellant as mentioned in the opening paragraph of this judgment against which he has preferred the instant appeal under Section 374(2) of the Cr.P.C. 7. Learned counsel for the appellant submits that the learned trial 4 Court is absolutely unjustified in convicting and sentencing the appellant for the aforesaid offences as the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that PW-4 Sundari Alami, the sole eye-witness to the incident, has turned hostile and not supported the prosecution version and that she has also failed to identify the accused/appellant as the assailant. He also submits that though a knife was allegedly recovered pursuant to the memorandum statement of the appellant, but no FSL report has been brought on record to establish that the weapon was stained with human blood or connected to the crime. He also submits that in absence of direct evidence, the entire case rests on suspicion, which cannot take the place of proof. As such, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant 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 appellant and has proved the case beyond reasonable doubt and thus, the appellant has 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. 5 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 report (Ex.P-16A) proved by PW-8 Dr. Abhay Pratap Singh Tomar, 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 appellant is the authors of the crime in question? 12. The entire case for the prosecution primarily rests on the testimony of the sole eye-witness to the incident, namely, PW-4 Sundari Alami. In her deposition before the Court, PW-4 has stated that on the date of the incident, she was engaged in household chores along with her sister-in-law/deceased- Smt. Masih Alami and at that time, an unknown person, who had covered his face, came from behind the house and assaulted both of them with a knife, as a result of which, she sustained grievous injuries on her hand and abdomen, while deceased/Smt. Masih Alami suffered a fatal chest injury and died on the spot. In this way, this witness did not support the prosecution version and failed to identify the accused/appellant as the assailant. She did not attribute any role to the appellant in the commission of the offence. Therefore, the prosecution, declared her hostile. 13. Apart from the above, it is also relevant to note that, 6 pursuant to the memorandum statement of the appellant, a knife and certain clothes bearing blood-like stains were recovered at his instance. These seized articles were subsequently forwarded to the Forensic Science Laboratory (FSL) for chemical examination. However, the prosecution has failed to produce the FSL report on record to establish that the blood-like stains found on the recovered articles matched the blood group or DNA profile of the deceased. In the absence of any conclusive forensic evidence linking the appellant to the crime scene or to the deceased through these recoveries, the evidentiary value of such items remains significantly diminished. The mere recovery of allegedly incriminating articles, without scientific corroboration or any other independent evidence connecting the appellant with the commission of the offence, falls short of the threshold required to establish guilt beyond reasonable doubt. 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 7 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 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 Chhara and thus it cannot be linked to A4. Thus, 8 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:- 9 “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 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.” 10 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. 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 11 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 12 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 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 knife and clothes allegedly bearing blood-like stains, purportedly recovered from the appellant, but there is a complete absence of forensic evidence establishing 13 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: “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 14 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: “153.…. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
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 appellant's guilt beyond reasonable doubt. The trial court erred in convicting the appellant without credible and trustworthy evidence. The chain of circumstances is broken and incomplete, thus the benefit of doubt must be given to the appellant. 17 29. Accordingly, the judgment of conviction and order of sentence awarded to the appellant by the learned trial Court is hereby set aside. The criminal appeal is hereby allowed. The appellant is acquitted of the charges framed against him. 30. The appellant is reported to be on bail. Keeping in view the provision of Section 437-A of CR.P.C., the appellant is directed to forthwith furnish personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- with one surety in the like amount before the trial Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 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