1 - Ramesh Shukla S/o Padumnath Shukla, Aged About 44 Years, R/o Village Mohtara v. 1 - State of Chhattisgarh Through- Police Station Kasdol, District- Balodabazar- Bhatapara
Case Details
1 2025:CGHC:14067-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1832 of 2024 1 - Ramesh Shukla S/o Padumnath Shukla, Aged About 44 Years, R/o Village Mohtara, Thana Kasdol, District- Balodabazar- Bhatapara ( C.G.). --- Appellant versus 1 - State of Chhattisgarh Through- Police Station Kasdol, District- Balodabazar- Bhatapara ( C.G.). --- Respondent CRA No. 1863 of 2024 1 - Niket @ Nikku S/o Krishandatt Shukla, Aged About 27 Years, R/o Village-Mohtara, Thana-Kasdol, District-Balodabazar-Bhatapara (C.G.) 2 - Smt. Subhashini W/o Ramesh Shukla, Aged About 30 Years, R/o Village-Mohtara, Thana-Kasdol, District-Balodabazar-Bhatapara (C.G.) ---Appellants Versus 1 - State of Chhattisgarh Through-Police Station- Kasdol, District- Balodabazar-Bhatapara (C.G.) ... Respondent (Cause-title taken from Case Information System) For Appellants : Mr.Vikas Pandey, Advocate. For State/Respondent : Mr. Shashank Thakur, Deputy Advocate General. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 24-03-2025 Digitally signed by MOHAMMAD AADIL KHAN 2 1. Both these appeals are arising out of the same crime number, same sessions trial and by the common judgment, therefore, they are being heard and decided together. 2. Both these appeals are arising out of the impugned judgment of conviction and order of sentence dated 26-09-2024 passed by the learned Second Additional Sessions Judge, Balodabazar (C.G.) in S.T. No.70/2019 whereby the appellants have been convicted and sentenced in the following manner with a direction to run all the jail sentences concurrently:- Conviction and sentence awarded to appellant Ramesh Shukla:- Conviction Sentence U/s 363 of the IPC R.I. for 7 years and fine of Rs.1000/-, U/s 120-B of the IPC R.I. for 6 months and fine of Rs.1000/-, U/s 201 of the IPC R.I. for 3 years and fine of Rs.1000/-, U/s 302 of the IPC Life Imprisonment and fine of Rs.5000/-, in default of payment of fine, further R.I. for 6 months, If the appellant fails to pay the fine, he has been directed to undergo an additional imprisonment of 6 months. Conviction and sentence awarded to appellants Niket @ Nikku and Smt. Subhashini:- Conviction Sentence U/s 363 of the IPC R.I. for 7 years and fine of Rs.1000/-, U/s 120-B of the IPC R.I. for 6 months and fine of Rs.1000/-, U/s 201 of the IPC R.I. for 3 years and fine of Rs.1000/-, If these appellants fail to pay the fine, they have been directed to undergo an additional imprisonment of 5 months. 3. Brief facts of the case are that on 16-04-2018 deceased 3 Bhupendra @ Rinku, a boy aged about 5 years was playing with his friends and during their play, he received some injury on his head by the cricket bat of his friend Monu who was the son of present appellant Ramesh Shukla and went in unconsciousness. When Monu informed the incident to his father the preset appellant, Ramesh Shukla, and Niket @ Nikku took him to their house and tried to bring his consciousness, but they did not succeed. Due to fear that the father of the deceased would not trust them if they disclosed the actual incident, they murdered the deceased by causing suffocation by pressing his nose and mouth and concealing the dead body in a drum at their washroom and in the night they threw the dead body in a filed having distance about 2 km. from their house. On 16-04-2018 a missing report Ex.-P/31 was lodged by Ashok Kumar Sen (PW-25), the father of the deceased, in which he alleged that his minor son Bhupenra @ Rinku is missing since morning and his whereabouts could not be traced out, police registered offence under Section 363 of the IPC against the unknown person and started investigation. During search of the missing person on 19-04-2018 dead body of the deceased was seen by Rajesh Kumar Sen, which was almost in decomposed condition, lying in the field of one Bachchan Manikpuri, and he lodged dehati merg intimation Ex.-P/1 to Police Station Kasdol where unnumbered merg was recorded. In the said dehati merg intimation Ex.-P/1, he disclosed that the dead body was identifiable by its face and the clothes worn by the deceased at the time when he was missing, and it was the dead body of his nephew Rinku @ 4 Bhupendra. The dead body recovery panchnama Ex.-P/2 was prepared in the presence of the witnesses and the inquest of the dead body Ex.- P/6 was also prepared in the presence of the witnesses. The dead body was sent for its postmortem, where PW-29 Doctor Snighdha Jain conducted the postmortem of the dead body of the deceased and gave postmortem report Ex.-P/7. During the postmortem, she found that the dead body was in an advanced state of decomposition and after conducting its postmortem, she opined that the cause of death results pending the viscera and clothes examination and is also subject to circumstantial evidence as the body is in highly decomposed condition. The time since death is approximately 3 to 5 days from the postmortem examination. Spot map Ex.-P/3 and Ex.-P/29 were prepared by the police, and Ex.-P/25 was prepared by Patwari. Blood-stained and plain soil was seized from the spot vide seizure memo Ex.-P/4. The viscera of the deceased vide seizure memo Ex.-P/22. From a distance of about 100 meters of the place of the incident, one saree was seized vide seizure memo Ex.-P/24 on 22-04-2018. The blood stains were also scratched from the wall of the pooja room of the house of the deceased and seized vide seizure memo Ex.-P/23 on 20-04-2018. One pen drive having videography done on 11-07-2019 was also seized from the videographer Navin Domane vide seizure memo Ex.-P/27. Two CDs with respect to the videography of the children who were concerned with the incident have also been seized vide seizure memo Ex.-P/29 from the Constable who took it from the Cyber cell. A mobile phone in which the photography of the conversation between the children was done has also been seized vide seizure memo Ex.-P/30 on 06-09-2019. 5 The viscera of the deceased were sent to State FSL, Raipur, for its chemical examination, from where report Ex.-P/37 was received and no poisonous substance was found on the viscera of the deceased. The query was also raised from the doctor who conducted the postmortem vide the memo Ex.-P/44, and the doctor has replied to the queries as under: “mRrj 01%& e`rd HkwisUnz dk 'ko lM+h xyh voLFkk esa Fkk vkSj xys dh peM+h lkcqr Fkh ij ml ij dksbZ foPNsnu ugh FksA 'ko ds lM+ tkus ds dkj.k FkzksVfyax dk vfHker nsuk laHko ugh gSA mRrj 02 ,oa mRrj 03 %& 'ko dh lM+u dh otg ls asphyxia/ coma (mode of death) ,oa uspj vkWQ MsFk dk vfHker nsuk laHko ugh gSA uspj vkWQ MsFk iqfyl vuqla/kku dk fo"k; gSA mRrj 04%& e`rd ds flj ds ihNs dh vksj ,oa lkeus dh vksj ,oa [kksiM+h ds peM+h ds uhps Hkkx ij ykfyek ekStwn Fkh ftldk mYys[k ih-,e- fjiksVZ ds dafMdk ua- 04 esa fd;k x;k gSa vr% e`R;q dk dkj.k flj esa vkbZ pksV dh laHkkouk gSA mRrj 05%& foljk dh tkWp esa dksbZ fo"k ugha ik;k x;k gSA vr% e`R;q dk dkj.k poisoning ugha gSA” One Gamchha was also sent for its query report to the doctor and vide query report Ex.-P/66 she referred it for its chemical examination. On 11-07-2019 the appellant Niket @ Nikku Shukla and Ramesh Shukla were taken into custody and their memorandum statements Ex.-P/8 and P/9 respectively were recorded in which they disclosed the commission of the offence and throwing the dead body in the field. They also 6 disclosed that the basket in which they took the dead body was thrown and the mobile phone of the deceased was also thrown at Mahanadi River. Based on the memorandum statement of Niket @ Nikku one bamboo basket has been seized from the shrubs of the field of Bachchan Manikpuri vide seizure memo Ex.-P/10. From the appellant Ramesh Shukla one Gamchha and one hand-made cricket bat have been seized vide seizure memo Ex.-P/11. One plastic drum has also been seized from the appellant Ramesh vide seizure memo Ex.-P/12. As per the information disclosed in the memorandum statement of the accused persons, the police had tried to search the mobile phone in Mahanadi River, but the same could not be recovered, and talasi panchnama Ex.-P/13 and Ex.-P/14 were prepared. The clothes of the deceased, blood stained and plain soil seized from the spot were sent for its chemical examination to State FSL, Raipur, from where report Ex.-P/34 was received and according to the FSL report in the T-shirt and jeans pant of the deceased and blood stained soil were found to be stained with blood. The hair piece found on the T-shirt of the deceased was also sent for forensic examination to State FSL, Raipur, and the report has been obtained by the police with the effect that the hair article (B4) stuck to the T-shirt is human head hair. In the State FSL report, no semen or sperm were found on the clothes of the deceased. The hand- made cricket bat and gamchha seized from the appellant Ramesh Shukla were also sent for its chemical examination to State FSL, Raipur, from where report Ex.-P/51 was received, but no blood was found on those articles. Statement of the witnesses under Section 161 of the Cr.P.C. has been recorded, and after completion of the usual 7 investigation charge sheet was filed before the learned Judicial
Facts
Magistrate First Class Kasdol for the offence under Section 363, 302, 201, 120-B of the IPC against the present appellants. The case was committed to the Court of Learned Sessions Judge Balodabazar from where the same has been transferred to the learned trial Court for its trial. 4. The learned trial Court has framed the charge against the accused persons for the offence under Section 363, 302, 201/120-B of the IPC. The accused persons denied the charge and claimed trial. 5. In order to prove the charge against the accused persons the prosecution has examined as many as 29 witnesses. Statement of accused persons under Section 313 of the Cr.P.C. have been recorded in which they denied the circumstances appearing against them, pleaded innocence and have submitted that they are innocent and have been falsely implicated in the offence. They have been implicated in the offence under the political rivalry after about 18 months of the alleged incident. Two defence witnesses Rajkumar Banjare, DW-1 and Gotilal DW-2 have been examined by the appellants in their defence. 6. After appreciation of oral as well as documentary evidence led by the prosecution the learned trial Court has convicted the appellants and sentenced them as mentioned in the earlier part of this judgment. Hence, this appeal. 7. Learned counsel for the appellants would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of 8 prosecution witnesses which cannot be made basis to convict the appellants for the offence in question. He would further submit that after about 18 months of the incident, the police has restarted its investigation and implicated the present appellants on political pressure. In the first incident, neither boys were interrogated, with whom the deceased was playing, nor did anything come into the investigation that the deceased was being taken by the appellants and committed his murder. The dead body of the deceased was found in highly decomposed condition in an open place, i.e., the field of one Bachchan Manikpuri. There is no specific cause of death of the deceased, i.e., his death was homicidal in nature. The statements of the witnesses have been recorded after about one and ½ years of the alleged incident, which cannot be relied upon to convict the appellants. There is no eye- witness to the incident, and the case of the prosecution is based on circumstantial evidence, and a number of links is missing from the chain of circumstances. The prosecution ought to have investigated the matter from the boys with whom the deceased was playing, and it is quite natural that they would have disclosed the fact that the present appellants took the deceased with them when he went into unconsciousness, but nothing is there on record. The police have seized the blood stains from the wall of the pooja room of the deceased, for which no satisfactory explanation has been given by the prosecution, whereas witnesses have stated that the father of the deceased have scolded him and beaten him on the issue that he had taken his mobile phone. He would further submit that from the scientific evidence of the FSL report also, the involvement of the appellants is nowhere 9 connected that they have committed the murder of the deceased. The seizure of the bamboo basket is also from an open place, which reflects that it was seized from the nearby place where the dead body was found and when it is stated that it was recovered on the instance of the appellants after about one and ½ years the same is doubtful that the said bamboo basket would have remained lying there for about one and ½ years and no one has seen it. He would also submit that in between the period of one and ½ years, nothing had come during the investigation that the appellants had committed the murder of the deceased. Therefore, in the absence of any cogent and clinching evidence against the appellants, their conviction is bad in law, and they are entitled for acquittal. 8. On the other hand, learned counsel for the State opposes the submission made by the learned counsel for the appellants and submitted that but for minor omissions or contradictions, the evidence of prosecution witnesses is reliable. The chain of circumstances is also complete to connect the appellants with the offence in question. Though some delay has occurred in recording the statements of the witnesses, in view of the nature of the evidence of the witnesses who are minor children, the delay is without any deliberation. From the evidence available on record, as well as the FSL reports and electronic evidence of videography, the guilt of the appellants has duly been proved by the prosecution, which has rightly been considered by the learned trial Court, and the appeals of the appellants are liable to be dismissed. 9. So far as the nature of the death of the deceased is concerned, we examine the evidence of the doctor who conducted the postmortem and other evidence with respect to the same. 10 10. PW-23 Raviraj Pandey, Police Constable has stated in his evidence that during the search of the missing person when they came to know about the dead body, they went to the spot where they found the dead body of the deceased lying in a highly decomposed condition where Rajesh Kumar PW-1 has given merg intimation Ex.-P/1. 11. PW-27 Ramgopal Soni, who was a Police Inspector stated that on 16-04-2018 at about 17:40 hours, he recorded the missing report and registered the FIR Ex.-P/31 for the offence under Section 363 of the IPC and on 19-04-2018, the dead body was recovered from the field of Bachchan Manikpuri and recovery panchnama Ex.-P/2 was prepared. The inquest of the dead body was conducted by the Executive Magistrate, and thereafter, the dead body was sent for its postmortem to CHC Kasdol. 12. PW-20 Shankar Lal Sinha, Tahsildar has also proved the inquest Ex.-P/6 and stated that a highly decomposed dead body was found in the field of Bachchan Manikpuri and sent it for its postmortem report. 13. PW-29 Doctor Snigdha Jain who conducted the postmortem of the dead body of the deceased has stated in her evidence that on 20-04- 2018 she conducted the postmortem of the deceased and opined about the decomposed position of the dead body, edible items found in the stomach of the deceased. Mode, nature and cause of death and any sexual offences with the victim. While conducting the postmortem she noticed that the dead body was in highly composed condition, megets were found, it was the body of a male person, and mummification of limbs was found on his elbows and face. After describing the entire 11 condition of the dead body and initial examination, she gave report Ex.- P/7 and opined that the cause of death is reserved for the viscera and clothes examination and is also subject to circumstantial evidence as the body is in a highly decomposed condition. The time since death is approximately 3 to 5 days from the postmortem examination. Viscera was preserved for its chemical examination. She also gave query report Ex.-P/47 and opined that the injuries found on the head of the deceased would have been caused by hand-made cricket bat which was produced before her. Another query was made from her and she replied through query report Ex.-P/45 and opined that the nature and mode of death could not be given as the dead body was in a decomposed condition. The nature of death is based on investigation, and since she found redness on the skull of the deceased, there is the possibility that he received injuries on his head, since no poisonous substance were found in his viscera, his death was not due to poison. 14. From the aforesaid evidence that the dead body of the deceased was found in highly decomposed condition in the field, the doctor has opined that redness was found on the skull of the deceased, and she also opined that death might have been caused due to the injuries found on the head of the deceased and the entire circumstance in which the dead body was recovered, death of the deceased is found to be in unnatural circumstance and his death was not natural. 15. So far as evidence regarding the involvement of the appellants in the offence in question is concerned, we again examine the evidence available on record and go through the same with utmost circumspection. 12 16. The case of the prosecution is based on circumstantial evidence, and there is no eye-witness to the incident the incident is alleged to have occurred on 16-04-2018, whereas the dead body was recovered on 19-04-2018 and the appellants were arrested on 11-07-2019. 17. There is no eyewitness in the present case. The case of the prosecution rests on the circumstantial evidence. The Hon’ble Supreme Court in the case of Ravindra Singh Vs. State of Punjab, 2022 (7) SCC 581 has held in para 10 that:- 10. The conviction of A2 is based only upon circumstantial evidence. Hence, in order to sustain a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent. This court has consistently held in a long line of cases [See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa @ Krishnappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh @ Dalbir Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890)] that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 10.1. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt.
Legal Reasoning
10.2. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed that: “21. 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 13 only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”. 18. In the matter of para Surendra Kumar and Another Vs. State of Uttar Pradesh, 2021 (20) SCC 430, the Hon’ble Supreme Court has held in 11 and 12 that:- “11. As the case against the appellants is entirely based on circumstantial evidence, it is necessary to determine whether the available evidence lead only to the conclusion of guilt and exclude all contrary hypothesis. The enunciation on the law of circumstantial evidence stood the test of time since Hanumant Vs. State of Madhya Pradesh1 where Mahajan J., has written as under:- “10…………It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused……………” 12. The nature, character and essential proof required in criminal cases was discussed in detail by Fazal Ali J in Sharad Birdhichand Sarda vs. State of Maharashtra2 and the proposition of law culled out on circumstantial evidence was approved in many subsequent judgments and was recently reiterated by Krishna Murari J., writing the opinion for a three Judges Bench in Shailendra 1 AIR 1952 SC 343 2 (1984) 4 SCC 116 Rajdev Pasvan & Ors. Vs. State of Gujarat & Ors. 3 where it was succinctly laid down as under:- “17. It is well settled by now that in a case based on circumstantial evidence the courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to 14 the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.” 19. In the matter of Digambar Vaishnav and Another Vs. State of Chhattisgarh, 2019 (4) SCC 522, the Hon’ble Supreme Court has held that:- “14.One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt. 15. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. 16. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied: i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and 15 iii.) 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 it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 17. In Varkey Joseph v. State of Kerala, 1993 Suppl (3) SCC 745, this Court has held that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt. 18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under: "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dis- passionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely prob- able doubt, but a fair doubt that is based upon reason and common sense". 16 20. The Hon’ble Supreme Court, in the case of Madhu Vs. State of Kerala, 2012 (2) SCC 399 has held in paragraph 5 that:- “5. The care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to the benefit of doubt.” 21. In the matter of Nagendra Sah Vs. State of Bihar, 2021 (10) SCC 725 in paragraphs 17 and 18 replying upon the golden principles enumerated in case Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116, the Hon’ble Supreme Court has held as under: “17. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In the case of Sharad Birdhichand Sarda v. State of Maharashtra2, in paragraph 153, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Paragraph 153 reads thus : - “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the 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 where the following observations were made: 19…..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 17 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.” (emphasis added). 18. Paragraphs 158 to 160 of the said decision are also relevant which read thus : “158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. State of Bihar, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: 9…….But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, . . . such absence of explanation or false explanation would itself be an additional link which completes the chain." 159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied : (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation. 18 160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal case where this Court observed thus: 30……..Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused." (emphasis added)” 22. Reverting to the facts of the present case, we examined the evidence available in the case. The PW-1 Rajesh Kumar Sen is the uncle of the deceased. He stated in his evidence that on the date of incident, he was informed by his brother Ashok Kumar Sen that his son Bhupendra Singh is missing, and when they could not find his whereabouts, they lodged the missing report to Police Station Kasdol. After 2-3 days, they found his dead body in the field of Bachchan Manikpuri, in which some part of the body was burnt. He lodged dehati merg intimation Ex.-P/1, and the dead body was recovered in his presence and recovery panchnama Ex.-P/2 was prepared. Inquest of the dead body was also prepared in his presence, which is Ex.-P/6 and the photographs of the dead body Article A1 and A2 were also taken in his presence. Subsequently, he came to know that his nephew was killed by appellants Ramesh Shukla and Niket @ Nikku. Since there was a dispute between his family and the family of the appellants, they committed the murder of the child, and the appellants had also threatened him earlier. In cross-examination, he admitted that the appellants are their neighbours, and for the last 10 years, their relation has been cordial. Their children were playing with each other, and till the dead body was recovered, their relation was good. He admitted that the 19 dead body was seen by the police, and he too was with the police party. In para 8 of his evidence, he stated that after about one and ½ years he came to know that the appellants had committed the murder of the deceased and police persons had informed him of the same. He further admitted that after seeing the dead body, he felt that it was burnt and the place from which the dead body was found is an open place. He showed his ignorance about the fact that a number of criminal cases are pending against his brother Ashok Kumar Sen. He denied that on the date of the incident, his brother Ashok Kumar Sen came into the house in a drunken condition and started quarrelling with his wife and at that time his son came with the mobile phone and due to angerness, he dashed his head in the wall of his pooja room by which blood was spread over in the wall which has been seized by the police. Nothing specific has come in his evidence against the appellants that the appellants are involved or even conspired to commit the murder of the deceased. 23. PW-2, Sonbai Sen, grandmother of the deceased, stated in her evidence that on the date of the incident, she was working in her house, and when the deceased came, she asked him to get the mobile plugged in for charging, but he left the house with the mobile phone and had gone to play. When he could not return till evening, she informed her family members and lodged his missing report. After about 3 days, his dead body was found in the field. She did not know as to who had committed his murder. When she was in search of the deceased, she went to the house of the appellants, the appellant Ramesh and his sister-in-law hiding something in their house, and when she asked 20 about the deceased, they showed their ignorance. At this stage, this witness has been declared hostile and cross-examined by the prosecution; then, she stated that on Thursday, the dead body of the deceased was found. She denied that the police had enquired from her in the months of May and June 2019. She also denied that the children have disclosed that while they were playing, the deceased received injuries on his head, and then Ramesh took the deceased into his house. She also denied that on 11-07-2019, police again enquired from Ramesh and Niket, and they disclosed that they had committed the murder of the deceased. She denied recovery and seizure from the appellants. She further stated that appellant Ramesh, Niket and Subhashini conspired together and committed the murder of her grandson. She also admitted that all three appellants were helped in searching for the deceased when he was missing. In cross-examination, she stated that on the date of the incident, her grandson took the mobile phone of his father and went to play and they were scared that on returning of his father Ashok if he did not find his mobile phone, he would beat his son. She denied that her son Ashok had beaten the deceased by dashing his head on the wall. She too has admitted that after about one and ½ years, she came to know about the involvement of the appellants in the offence in question. She further admitted that whenever her son Ashok went inside the jail, her husband got him released on bail on her surety. Nothing in her evidence also which connects the appellants with the offence in question except the suspicion. 24. PW-3 Balmukund Sen is the grandfather of the deceased, who 21 stated in his evidence that after 3 days of missing of his grandson, his dead body was found in the field, and after about one year of the date of the incident, the appellants Ramesh and Nitesh had confessed their guilt before the police officers and at that that time a number of injuries were present there. From the house of the appellants, one plastic drum, basket and gamchha have been seized. At this stage, this witness has been declared hostile, and thereafter, he stated that appellant Ramesh Shukla had given a cricket bat, gamchha and drum to the police by taking it from his house. He admitted to the incident that the appellant took the dead body of victim Rinku in the bamboo basket from their house to the field. He also admitted that at the time when they were in search of the deceased, the appellants were also in search of the deceased. In cross-examination, he admitted that the appellants are his neighbours. On the date of the incident, he had gone to the village Somnidih in his work. He further admitted in cross-examination that the seizure of the drum, basket and gamchha was not made in his presence, and he came to know from the police persons. He came to know about the involvement of the appellants in the incident after one year. He admitted that on 16-04-2018, his grandson took the expensive mobile phone of his father and fled from the house. He also admitted that after about 7 days of the incident, the police seized the blood scratches from the wall of the pooja room of his house. He explained that it was the blood stains of the he-goat which has been sacrificed in every 3 years. The evidence of this witness is also shaky as he was not present on the date of the incident in his house and in cross- examination, he stated that he came to know about the incident and involvement of the appellants in the offence in question after about 1 22 year from the police persons. 25. PW-4 Deepak Kumar Sen is the elder brother of the deceased, he stated in his evidence that on the date of the incident, he along with Rinku, Monu, Moni, Gaanu, Deepak and Bhavna, were playing in the field. His father had gone to the village Somnidih and grandfather had gone to Chichpol. Rinku took the mobile phone of his father and went towards the lane and thereafter they started searching him, but he could not be found. He admitted in his cross-examination that he was informed that the police has caught his father. He further admitted that on the date of incident, his brother had fled along with the mobile phone of his father. 26. PW-5, Parmeshwari Sen is the mother of the deceased who has stated in her evidence that on the date of the incident, her elder son had informed her that her younger son Rinku had fled along with the mobile phone, and then she started searching him in nearby places, but he could not be found. When she went to the house of the appellants and asked about her son, they disclosed that they did not know Rinku and appellant Ramesh did not permit her to talk to his children. During his search, the appellants were misguiding them. Upto the evening when he could not be found, they lodged the missing report to the police station and for about 4 days the police searched him in every house of the village, septic, bore, well and pond, but he could not be found. Even the dog squad also could not trace her son. On 4th day, the dead body of her son was found in the field. Near about 3 months, the offender could not be traced by the police even after enquiry from various places. 23 After about one and ½ years when the offender could not be traced out by the police, her husband made another complaint, and then a special team was constituted for the investigation. The elder son of appellant Ramesh had disclosed to the police that when the deceased as well as his nephew were playing, during their playing the cricket bat hit on the head of the deceased by which he fell down on the ground, his two teeth were broken and he went unconscious. When the incident was informed to Ramesh, he, along with his nephew, took the deceased to his house and tried to get his consciousness back and thereafter, when the police enquired from the appellants, they disclosed the entire incident and the manner in which they committed the offence. In cross- examination, she admitted that her husband had made a complaint to search for the offender to the Chief Minister and thereafter, the investigation was again started. She was not there at the time when the appellants gave their statement to the police. She too has admitted in her cross-examination that within a week of the the date of incident, the police has taken the blood spot from the wall of pooja room of her house. She also explained that in every three months, they sacrificed a he-goat in their pooja room. She also admitted that when the police came to her house at that time, one month had already lapsed from the sacrifice of the he-goat. She also admitted that on the date of the incident, her son had gone along with the expensive mobile phone of his father, and she also admitted that she and her mother-in-law were afraid of the fact that if it comes into knowledge of father of Rinku he will beat him. She also admitted that till the time when she came to know the involvement of the appellants in the offence in question the 24 appellants were used to visit her house and their behaviour was normal. 27. PW-6 who is a friend of the deceased and was playing with him on the date of incident has stated that on the date of incident they were playing cricket along with Rinku. Monu was in batting side and by the cricket bat Rinku has got some injury on his head and he started crying and thereafter his father came there and took the deceased with him by assaulting him. Since the Rinku was having mobile phone his father has started assaulting him. He was taken to pooja room where he was assaulted and the incident was witnesses by him, brother of Rinku and then they also fled away due to fear. 28. PW-7 Satish is also a witness of same facts that at the time of incident they were playing cricket along with deceased Rinku, he has got injured by the cricket bat and his father assaulted him on the issue that he came there along with his mobile phone and took him to his house by beating and his father has assaulted him in the house in pooja room and they fled away from the place. Both these witnesses, PW-6 and PW-7 have been declared hostile and not supported the prosecution's case. 29. PW-8 Kanchhedi Lal is a witness to the memorandum Ex.-P/8 and P/9 and seizure of articles through Ex.-P/10, P/11 and P/12. He stated that no talashi panchnama was prepared in his presence. This witness has also been declared hostile and after denial of the prosecution’s case, subsequently, he stated that on the instance of appellant Niket one bamboo basket has been seized, from appellant Ramesh one hand-made cricket bat has been seized and on the instance of appellant Ramesh one blue colour plastic drum has also been seized. In cross- 25 examination he again deviated from his earlier statement and stated that from appellant Ramesh and Niket basket has not been seized and the police has obtained his signature over the paper after showing the articles. The house of Ramesh and Niket has not been searched in his prsence. 30. PW-10 Shiva, PW-11 Digesh Shukla, PW-13 Kalpana Shukla are child witnesses who were playing with the deceased at the time of the incident. All of them have turned hostile and stated that it is father of the deceased who had taken him by beating towards his house and he was beaten by his father in his pooja room. 31. PW-14 Digeshwari Shukla is witness of seizure of blood spot from the wall of pooja room of the house of the deceased and proved the seizure memo Ex.-P/23. 32. PW-16 Ramfal Kaiwartya is witness to the inquest Ex.-P/6 and seizure of blood stained soil from the spot through Ex.-P/2 and also the spot map Ex.-P/25. This witness has also been declared hostile and only supported the seizure of blood stained soil from the spot. He was the Upsarpanch of the village at the time of the incident. 33. PW-17 Chaturdas Manikpuri is the witness of seizure memo of blood spot from the wall of the pooja room of the house of the deceased. 34. PW-19 Ganga Prasad Bandhe, who is Patwari has prepared the spot map Ex.-P/25 and proved the same. 35. PW-20 Shankar Lal Sinha was the Tahsildar, Kasdol at the time of incident and he conducted the inquest proceeding Ex.-P/6. 36. PW-21 Navin Dhomane is the photographer who has done the photography and videography of the spot and taken it in a pen drive and 26 gave it to the police. 37. PW-25 Asok Kumar Sen is father of the deceased who stated in his evidence that on 16-04-2018 he had gone to his work to village Sonaidih. He was informed through mobile phone that his son is missing since morning and then they started searching him, but could not find him and in the evening at about 4:00 p.m. they had lodged the missing report to the police. On 19-04-2018 his dead body was found in the field situated at the distance of about 2 km. He made a complaint to the D.G. and then a team came to his village for investigation, then they came to know that the appellants took his son to his house, assaulted him by cricket bat on his head and committed his. murder by strangulation. After commission of the offence they kept the dead body of the deceased in drum and poured kerosene oil over it and thereafter they threw the dead body in the field of Chaindas Manikpuri. At this stage, he too has been declared hostile and then he stated that police seized a bamboo basket from appellant Niket and had taken him to river where the mobile phone was thrown. In cross-examination he denied that on 16-04-2018 his statement was recorded by the police and stated that after about 4 days of the incident his statement was recorded. He admitted that even after making application to the D.G. none of the police officials have recorded his statement. He admitted that at the time of recovery of the dead body he had not gone near the dead body. He denied seizure of blood stains from pooja room of his house. He also denied that Chaturdas and Dikeshwari Shukla were witness of seizure of blood stains from pooja room of his house. He admitted that before 27 the incident the relations between him and the accused persons were cordial and they used to visit house of each other. He was not having any grudge against the appellants before the incident. He also admitted that after about 1 and ½ years of the incident he made an application to the D.G., but has not named the appellants in his application. He denied all the suggestions given by the defence, even he denied the criminal case pending against him. Nothing clinching has come in his evidence which connects the appellants with the offence in question. 38. PW-27 Ramgopal Soni was the S.H.O. of Police Station Kasdol. He recorded the missing report Ex.-P/31 and prepared the spot map Ex.-P/29. On 19-04-2018 he recovered the dead body and prepared the panchnama Ex.-P/2. Dehati merg intimation was recorded. Spot map Ex.-P/3 was prepared and sent dead body for postmortem. On 19-04- 2018 the blood stains and plain soil have been seized from the spot vide seizure memo Ex.-P/4 and on 20-04-2018 blood stains were also scratched and seized from the wall of pooja room of the house of the deceased. On 21-04-2018, 5 sealed boxes have been seized vide seizure memo Ex.-P/22. On 22-04-2018 one blue colour saree has been seized vide seizure memo Ex.-P/24. During investigation the seized articles were sent for its FSL examination to State FSL, Raipur through memo Ex.-P/32 and obtained the FSL report Ex.-P/34. The viscera of the deceased was also sent to FSL Raipur, and obtained FSL report Ex.-P/37. During investigation he recorded the statement of Ashok Sen, Rajesh Sen, Parmeshwari Sen and Bhauram Sen. In his cross-examination he admitted that the offence has been registered against unknown person on the basis of missing report lodged by Ashok 28 Kumar Sen. It is also there in the FIR that the deceased had taken expensive mobile phone with him and he left his house. He has proved the initial part of the investigation upto recovery of the dead body, but has not stated in his evidence that during his investigation he found any evidence against the present appellants that they have involved in commission of the offence. 39. PW-28 Deenbandhu Uike is the S.H.O. of Police Station Kasdol and Investigating Officer of the case. He stated in his evidence that when he received the case diary for further investigation he issued notice to the witnesses of memorandum and seizure. He also issued notice Ex.-P/40 to witness Navin Domane for video recording of the proceeding. On 11-07-2019 he recorded the memorandum statement of Niket, Ex.-P/8 and Ramesh Shukla, Ex.-P/9. On the basis of memorandum statement of Niket one bamboo basket has been seized from the field vide seizure memo Ex.-P/10 and one cricket bat and gamchha from appellant Ramesh Shukla. One blue colour plastic drum has also been seized on the basis of his memorandum vide seizure memo Ex.-P/12. He also prepared talashi panchnama Ex.-P/14 of the house of appellant Ramesh Shukla and Ex.-P/13 of the house of appellant Niket @ Nikku. On 06-09-2019 he also seized the mobile phone from Constable Naresh Khunte in which the video of children of village Mohtara was recorded. On 06-09-2019 one pen drive has also been seized vide seizure memo Ex.-P/27 from videographer Navin Dhomane and said article is article A1 and CD is article A/2. Two other CDs have also been seized vide seizure memo Ex.-P/29 from Constable Manoj Painkara. The seized mobile phone was given in 29 Supurdnama to Constable Naresh Khunte through the document Ex.- P/42. A query was also made from the doctor Snigdha Jain who conducted the postmortem on dead body of the deceased through the query Ex.-P/44 and obtained its report Ex.-P/45. The cricket bat was also sent for its report from the forensic department, Raipur through document Ex.-P/46 and query report is Ex.-P/47. The seized cricket bat and gamchha were sent for its FSL report to State FSL, Raipur through document Ex.-P/48 and its acknowledgment is Ex.-P/49 and on 03-09- 2019 gamchha was also sent to FSL, Raipur for confirming of presence of blood through document Ex.-P/55. During the investigation he recorded the supplementary statement of Ashok Sen, Shiva Karsh, Smt. Cheetabai, Kalpana @ Moni Shukla, Parmeshwari Sen, Balmukund Sen, Sonabai Sen and the statement of witnesses Satish @ Monu, Dikesh Kumar Shukla, Devendra Shukla, Kanhaiya Lal Sahu, Kanchhedi Lal Painkara and Prakash Sen and after completion of the investigation charge sheet was filed against the accused persons. In his cross-examination he stated that he was posted as S.H.O. at Police Station Kasdol from July, 2019 upto November, 2020. Although he denied that before receiving the case diary by him, closure was proceeded in the case, but has admitted that after 14-15 months from 16-04-2018 he started investigation. He has not interrogated the accused Subhashini, but recorded memorandum of two other accused persons. When this witness was asked the basis on which he recorded the memorandum statement of the accused persons he stated that he could not remember as he has already retired two years back. He admitted that on 06-09-2019 the mobile phone was seized from 30 Constable Naresh Khunte in which he has recorded the video of the children on 06-05-2019 and after 3-4 months of recording of said video the said mobile phone was seized on 06-09-2019. He also admitted that the CD and pen drive have not been supplied to the defence and it was prepared in only one copy. When the said pen drive was playing in the Court, an objection was raised by the defence and copy of the pen drive was made available to the defence in their pen drive. In further cross- examination he admitted that upto 10-07-2019 the names of the appellants have not come in the statement of any of the witnesses nor there was any material in the case diary. The FIR was also registered against unknown person. During investigation the mobile phone could not be recovered. In the query report obtained from the doctor Ex.-P/45 she opined that nature of death is subject to police investigation and since in the memorandum statement of accused persons it has come that the deceased was murdered he added Section 302, 201, 120-B and 34 of the IPC in the case. He admitted that the Superintendent of Police had constituted a team of 6 to 7 members, but there is no document of constitution of team in the investigation. 40. From close scrutiny of the evidence it does not reflects that the appellants have committed murder of the deceased and thrown the dead body in the field. The incident is said to have occurred on 16-04- 2018 and till 11-07-2019 there was no evidence against the appellants in the case diary during investigation. There was no evidence on record that on 16-04-2018 when the deceased was missing, his friends were not interrogated or asked about the deceased as to whether he had gone because they were playing together and if the deceased received 31 injuries on his head by cricket bat of Monu and the appellants took the deceased with him, there was no reason for not disclosing the fact to the police by the children who were playing with the deceased. There is no evidence that the friends of the deceased were interrogated by the police. Further, blood stains have been seized after scratching the wall of pooja room of the house of the deceased and the witnesses are saying that the father of the deceased had taken him by beating as he brought his mobile phone with him. Recording of their statement after about more than 1 year and 3 months itself creates doubt upon the genuineness of the prosecution’s case. The bamboo basket was seized from an open place and there is no other connecting link which directly connects the appellants with the offence in question. No blood has been found on the cricket bat or the gamchha. There is no evidence that the deceased was lastly seen in the company of the appellants or the appellants had taken him to their house. The children were the best witnesses who could say that it is the appellants who had taken the deceased with them when he received injuries on his head, but there is no evidence to that effect, rather they pointed towards guilt of father of the deceased that he had taken the deceased to his house by beating as he has taken his mobile phone and further the blood stains have also been recovered from pooja room of the house of the deceased. All that evidence goes to show that there is no cogent and clinching evidence against the appellants that they have committed murder of the deceased and thrown the dead body in the field. 41. Relying upon the aforesaid judgment passed by the Hon’ble Supreme Court with respect to consideration of circumstantial evidence 32 and also under the facts and circumstances of the case this Court is of the opinion that there is lack of various components in the chain of circumstantial evidence and leads a broken link in the prosecution's case which does not complete the chain of circumstances for conclusively reaching to the conclusion that it was the appellants who have conspired and committed murder of the deceased and tried to conceal the evidence. In the light of all the infirmities in the prosecution case and in absence of complete chain of events, it would be difficult for this Court for upholding the conviction and sentence of the appellants only on the basis of circumstantial evidence of strong suspicion. 42. It is settled principles of law that prosecution has Burden to prove its case beyond reasonable doubt and where two views are possible, arising based on the same evidence, the view which is favoruable to the accused should be taken into consideration and the accused should be given benefit of doubt. In the matter of Digambar Vaishnav (Supra) it has been held as under : “19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808]. Thus, in view of the foregoing, we are of the considered opinion that there are various components which are missing from the chain of circumstantial evidence. Therefore, by giving the benefit of doubt to the appellants, Criminal Appeal No.1832 of 2024 and Criminal Appeal No.1863 of 2024 are allowed. The impugned judgment of conviction 33 and order of sentence passed against the appellants is set aside and appellants Ramesh Shukla (appellant in CRA No.1832 of 2024) and Niket @Nikku and Smt. Subhashini (appellants in CRA No.1863 of 2024) are acquitted from all the offences. The appellants are reported to be in jail since 26-09-2024. They be released forthwith if not required in any other case. 43. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellants Ramesh Shukla, Niket @ Nikku and Smt. Subhashini are directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety each in the like amount before the 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 appellants, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 44. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) Judge Chief Justice (Ramesh Sinha) Aadil