1 2025:CGHC:43504-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1257 of 2019 Judgment Reserved on : 30.06.2025 Judgment Delivered on : 28.08.2025  Lakshmi alias Lakshmin Bai, aged about 30 years, resident of village – Chodha, Police Station – Kharsiya, District Raigarh (C.G.). ... Appellant versus  The State of Chhattisgarh Through Station House Officer, Police Station- Kharsiya, District Raigarh (C.G.) ... Respondent And CRA No.1324 of 2019  Sandeep Rathiya, S/o Girdhari Rathiya, aged about 25 years, R/o village Chorha, Police Station Kharsiya, District Raigarh (C.G.). ... Appellant versus  The State of Chhattisgarh Through Station House Officer, Police Station- Kharsiya, District Raigarh (C.G.). ... Respondent For Appellants : Mr. Prahlad Panda, Advocate in CRA No.1257/2019 and Ms. Manju Nayak in CRA No.1324/2019. For Respondent : Mr. Ajay Pandey, Govt. Advocate. 2 Hon'ble Smt. Justice Rajani Dubey & Hon'ble Shri Justice Amitendra Kishore Prasad (C A V Judgment) Per Rajani Dubey, J 1. Since the aforesaid appeals arise out of the same judgment of conviction and order of sentence dated 31.07.2019 passed by the 5th Additional Sessions Judge, Raigarh (C.G.), in Sessions Trial No.113/2018, they are being heard together and disposed of by this common judgment. 2. By the impugned judgment, the appellants have been convicted and sentenced as under : Conviction Sentence Under Section 302/34 of IPC R.I. for life and to pay fine of Rs.1,000/- each, in default of payment of fine amount to undergo additional R.I. for 01 year. Under Section 201 of IPC R.I. for 07 years and to pay fine of Rs.1,000/- each, in default of payment of fine amount to undergo additional R.I. for 01 year. (Both the sentences were directed to run concurrently.) 3. The prosecution story, in brief, is that on 17.07.2018, informant Nandu Rathia lodged a report in Police Station – Kharsiya to the effect that on 17.07.2018 at around 02.00 3 P.M., he received a call from Sanjay Gupta who was B.D.C. of village Kudekela that his sister deceased Jaganmati and nephew Jeetu have been murdered. Thereafter, he along with his mother Rambai went to village Chhodha and after reaching the spot they saw the dead body of his sister Jaganmati lying on ground in pool of blood and his nephew Jeetu aged around 05 years was also lying dead on bed. The blood had oozed from the head of his sister Jaganmati and blueish compression mark was present on the neck of his deceased nephew Jeetu. Further case of the prosecution is that when he inquired from Beer Singh Rathia, then he informed that he had gone to Kharsiya on account of ill health of his father and stayed in the hospital whole night and when he came at around 10.00 AM in the house, he saw that the door of his house was locked from outside and after opening the lock, he saw his wife Jaganmati and son Jeet were lying dead and then he informed other villagers. Thereafter, the polie recorded the statement of Beer Singh, husband of deceased Jaganmati and father of deceased Jeetu, wherein he suspected the appellants to be the author of crime. After issuing the summons vide Ex.P-4, inquest on the bodies of deceased Jaganmati and Jeet were prepared vide Ex.P-5 and Ex.P-6 & dead bodies of deceased were sent for postmortem 4 examination to Community Health Center, Kharsiya vide Ex.P-27 & P-25 respectively, where Dr. Sourabh Agrawal (PW-7) conducted postmortem examination on the body of deceased Jeetu and gave his report under Ex.P-26 noticing following injuries :- (In respect of deceased Jeetu) (i) Contusion L-shaped in the size of 50 x 4 cm over chest. (ii) Ligature mark in the size of 23 x 4 cm all around neck. (iii) Contusion over chin in the size of 5 x 2 cm. (iv) Semi lunar abrasion in the size of 3 x 1 cm over left side fo neck (can be caused by finger nail). (v) Contusion in the size of 15 x 3 cm over left arm and elbow. (vi) Diffuse contusion over both leg and skin of abdomen cyanosed. The autopsy surgeon opined the cause of death of deceased to be throttling due to asphyxia and the death was homicidal in nature. Dr. Sourabh Agrawal (PW-07) conducted postmortem examination on the body of deceased Jaganmati and gave his report under Ex.P-28 noticing following injuries :- (In respect of deceased Jaganmati) (i) Contusion of 4 x 3 cm over left clavicle. 5 (ii) Contusion of 5 x 4 cm over right cubital fossa. (iii) Contusion of 3 x 2 over right anterior elbow. (iv) Contusion (semi circular) of 6 x 2 cm over posterior part of right elbow (can be bite mark). (v) Swelling of 5 x 5 cm over left forearm. (vi) Semicircular contusion of 4 x 1 cm over center of forehead and 1 x 1 cm over left anterior of nose. (vii) Contusion of 2 x 2 cm over left angle of mouth. (viii) Lower lip bite in the size of 1 x 1 cm. (ix) Incised looking wounds in the size of 2 x 2 cm over right temporo-parietal with skull fracture in the size of 1 x 1 cm. (x) Star shaped incised would looking in the size of 8 x 4 x 2 cm over left parieto temporal occipital region. (xi) Incised wound looking in the size of 7 x 3 x 2 cm over left occipital parietal region. bodies of deceased and gave his report under Ex.P-26 in respect of deceased Jeetu and Ex.P-27 in respect of deceased Jaganmati. (xii) Incised wound looking in the size fo 5 x 3 cm over right fronto temporal region. The autopsy surgeon opined the cause of death of deceased to be strangulation and head injuries due to 6 hypovolemic shock and asphyxia and death was homicidal in nature. 4. Police prepared spot map under Ex.P-8. Memorandum statements of appellant Sandeep Rathiya in CRA No.1324/2019 and Lakshmi Bai in CRA No. 1257/2019 were recorded vide Ex.P-12 and P-13 respectively, based on which, one axe used in the commission of crime, bloodstained clothes of the appellants were seized vide Ex.P-14 and P-15. Appellant Sandeep Rathiya and Laxmi Rathiya were arrested vide arrest memo Ex.P-16 and P-17 respectively. The weapon of offence axe seized at the instance of appellant Laxmi Rathiya was subjected to query from doctor vide Ex.P-29, and according to the query report Ex.P-30, the injuries sustained by deceased Jaganmati could be inflicted by this kind of article. One uterus, vaginal slides, vaginal swabs and hair of deceased Jaganmati were seized vide Ex.P-31. The seized articles were sent for its chemical examination to FSL, Bilaspur, and a FSL report with respect to the seized articles was obtained from the FSL vide Ex.P-39, according to which, human sperm was found in the vaginal slides of deceased Jaganmati.. 5. After completing usual investigation, charge sheet was filed against the accused-appellants under Sections 302, 201, 34 of IPC, to which the accused-appellants abjured their guilt 7 and pleaded for trial. 6. After filing of the charge sheet, the learned trial Court framed charges against the appellants under Sections 302/34 and 201 of the IPC. 7. So as to hold the accused-appellants guilty, the prosecution has examined as many as 08 witnesses. Statements of the accused-appellants were also recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. No defence witness was examined by the appellants in their defence. 8. The learned trial Court after hearing counsel for the respective parties and considering the material available on record, has convicted and sentenced the accused- appellants as mentioned in para 2 of this judgment. Hence, this appeal. 9. Learned counsel for the appellant Lakshmi in CRA No.1257 submits that she is innocent and has been falsely implicated in the crime in question. The impugned judgment is full of surmises and conjectures. The impugned judgment of conviction and order of sentence is illegal being not based upon the evidence on record. Learned counsel further submits that mere presence of appellant Lakshmi in the 8 house itself not an incriminating circumstance to warrant her conviction. The evidence has come on record which shows that in the previous night two other persons were found consuming liquor with deceased Jaganmati. The house was stated to be locked from outside does not involve the appellant which shows that someone else locked the house from outside. The husband of the deceased himself has stated that the relation between the appellant and her sister- in-law (deceased) was cordial and there was no quarrel between them. Therefore, there was no motive to kill the deceased but the learned trial Court did not appreciate oral and documentary evidence properly. Learned counsel also submits that the learned trial Court totally ignored the evidence that on the fateful day i.e. 16.07.2018 at around 10-11 PM, Premlal (PW-3) and one Bhuru were present on the spot taking liquor from deceased Jaganmati and also informing about his husband and father-in-law and specifically denied presence of the appellant at the time of occurrence. The learned trial Court totally ignored the fact that the deceased was selling liquor 24-7 from her home. The learned trial Court ought to have considered that the extra judicial confession and memorandum statement made under Section 27 of the Evidence Act and its seizure of the weapon and other material have not been proved in 9 accordance with the law. So, the impugned judgment of conviction and order of sentence is liable to be set aside. In support of his submission, learned counsel placed reliance on the decisions of Hon’ble Apex Court in the matter of Sujit Biswas Vs. State of Assam reported in AIR 2013 SC 3817, The State of Odisha Vs. Banabihari Mohapatra and Anr. reported in (2021) 15 SCC 265 : 2021 SCC OnLine SC 121, Raja Khan Vs. State of Chhattisgarh reported in 2025 INSC 167 , and the judgment dated 24.01.2024 passed in CRA No. 902/2023 [Raja Naykar Vs. State of Chhattisgarh]. 10. Learned counsel for appellant Sandeep Rathiya in CRA No.1324/2019 submits that as far as the appellant Sandeep Rathiya is concerned, conviction is not sustainable because the memorandum witnesses namely Radhelal Rathiya (PW- 2) and Damrudhar Rathiya (PW-4) both have not supported the prosecution case and turned hostile, and the alleged recovery of articles from the house of the appellant itself is not circumstantial evidence made against the appellant. Learned counsel further submits that the learned trial Court wrongly believed the statement of the prosecution witnesses. The learned trial Court failed to appreciate the statement of witnesses who have clearly stated that at the time of incident, appellant Sandeep Rathiya was not present 10 in the village. The prosecution witnesses have identified the present appellant on the basis of their earlier meeting. Learned counsel also submits that Beer Singh (PW-1), husband of deceased Jaganmati and father of deceased Jeetu, has clearly stated that his house was locked from outside and he opened his house by another key. The prosecution has not proved that the present appellant has committed murder and after commission of crime he locked the house from outside and no any fact has been disclosed as per memorandum made by the appellant and also the prosecution has failed to prove that the key has been recovered as per information made by the present appellant. Learned counsel also submits that the learned trial court did not consider that deceased Jaganmati was selling liquor and the prosecution witnesses have clearly admitted that prior to one day of incident at around 10.00 PM, Premlal (PW-3) and Gurubir Singh had gone to the house of deceased Jaganmati to consume liquor and had stayed there about half an hour. The prosecution witnesses have clearly admitted that daily many persons visited the house of deceased Jaganmati to consume the liquor and dispute was arisen due to payment of liquor. Learned counsel also submits that Investigating Officer (PW-8) also clearly admitted that as per the statement made by witnesses 11 under Section 161 of Cr.P.C., no allegation was made against the present appellant and the FIR was registered against the unknown person. The learned trial Court ought to have considered the statement of Dr. Saurabh Agrawal (PW-7), who has clearly stated that he has not mentioned the time of injury which was present on the body of deceased persons. The learned trial Court has convicted the appellant only on the ground of presumption and suspicious. There is no sufficient evidence on record which could establish the guilt of the appellant. So, the impugned judgment of conviction and order of sentence is liable to be be set aside. In support of her submission, learned counsel placed reliance on the decisions of Hon’ble Apex Court in the matter of Sujit Biswas Vs. State of Assam reported in AIR 2013 SC 3817, The State of Odisha Vs. Banabihari Mohapatra and Anr. reported in (2021) 15 SCC 265 : 2021 SCC OnLine SC 121, Raja Khan Vs. State of Chhattisgarh reported in 2025 INSC 167 , and the judgment dated 24.01.2024 passed in CRA No. 902/2023 [Raja Naykar Vs. State of Chhattisgarh]. 11. On the other hand, learned State counsel opposing the argument of both the appellants submits that deceased Jaganmati and her minor son Jeetu were found dead in the 12 house and the manner in which the assault was given, it proves homicidal death. The weapon axe has been recovered from the house of appellant - Sandeep Rathiya, and Lakshmin Bai was throughout present in the house and they failed to explain how the incident occurred. There is un- controverted testimonies of the witnesses that the key of the lock used to remain with deceased Jaganmati and her husband Beer Singh (PW-1). When her husband Beer Singh (PW-1) came to house at about 11 O’clock next morning, the house was found locked from outside which was opened by Beer Singh and the dead bodies of his wife and son were found inside the house. So, the prosecution has successfully proved its case beyond reasonable doubt against both the appellants and the learned trial Court minutely appreciated oral and documentary evidence and has rightly convicted the appellants. The impugned judgment is well merited and no interference is call for by this Court. 12. We have heard learned counsel for the parties and perused the material available on record. 13. It is clear that from the record of the learned trial Court that the learned trial court framed charges under Sections 302 read with Section 34 and 201 of IPC against both the appellants and after appreciation of oral and documentary 13 evidence, the learned trial Court convicted the appellants under Section 302 read with section 34 and Section 201 of IPC. 14. The first question we have to consider that whether the death of deceased Jaganmati and Jeetu were homicidal in nature or not. 15. Beer Singh (PW-1) has stated that appellant Sandeep Rathiya and Lakshmin Bai are his brother and sister-in-law respectively, and deceased Jaganmati and Jeetu were his wife and son respectively. They all reside in the same house. They have common courtyard and the exist way is also one. On the date of incident, he and his brother Dhan Singh had taken their father to Kharsiya as he was ill and they admitted him in hospital. He has also stated that he and his brother had stayed there whole night and at around 10-11 AM, they came back to home. The house was locked from outside. One key was with him and another with his wife Jaganmait. When he opened the lock with his key, he found that his wife Jaganmati was lying dead in pool of blood and his 05 year son Jeetu was lying dead on bed. He has also stated that the blood had oozed from her head. At the spot, his brother, father, villagers and Sarpanch of the village were also present there. They had also seen the dead body of his wife Jaganmati and the village Sarpanch 14 informed the police over phone. He has also stated that the police had taken him along with them. 16. Nandu (PW-5) is the brother of deceased Jaganmati. He has stated that he was informed about the incident by B.D.C. Sanjay Gupta. Sanjay Gupta had told him that his sister Jaganmati has been murdered, thereafter, he along with his mother went to village Chodha in his sister’s in-law house on motorcycle. He has also stated that when he entered the room, he saw that his nephew was lying dead on bed, who was killed after pressing his neck and his sister Jaganmati was lying dead in her room and blood had oozed from her head. He has also stated that on the date of incident itself, he went to police station Kharsiya and lodged the FIR (Ex.P-24) and admitted his signature on merg intimation (Ex.P-37, P-38) and FIR (Ex.P-24). 17. A.K. Singh (PW-8) is the Inspector, S.H.O. – Kharsiya and the Investigating Officer of the case. He has stated that on the information of Nandu (PW-5), merg intimation Nos.71/18 and 72/2018 (Ex.P-37 and P-38) was recorded by S.K. Dubey, Sub Inspector, and he identified the signature of S.K. Dubey on ‘A to A’ part in Ex.P-37 and P-38 & identified the signature of Nandu (PW-5) on ‘B to B’ part. He has also stated that on the same day, S.K. Dubey, Sub Inspector, registered the FIR being No. 409/18 for the offence under 15 Section 302 of IPC against unknown person and identified signature of S.K. Dubey on ‘A to A’ part in FIR. He has also stated that on receipt of case diary on 14.07.2018, he went to village Kudekela and issued notice under Section 175 of Cr.P.C. to panch witnesses vide Ex.P-3 and P-4 for inquest of bodies of deceased and before panch witnesses he prepared inquest memo vide Ex.P-5 and P-6 & gave application for postmortem examination vide Ex.P-25 and P- 26 & admitted his signature on ‘A to A’ and ‘B to B’ part respectively. 18. Dr. Saurabh Agrawal (PW-7) conducted postmortem examination on the bodies of deceased Jeetu and Jaganmati & gave his report vide Ex.P-26 and P-28 respectively, opining the cause of death of deceased Jaganmati to be strangulation and head injuries due to hypovolemic shock and asphyxia & death was homicidal in nature. The autopsy surgeon also opined the cause of death of deceased Jeetu to be throttling due to asphyxia and the death was homicidal in nature. He has admitted in his query report (Ex.P-30) that while performing postmortem on the body of deceased Jaganmati, he found the cut marks on her body and those injuries could have been caused by the seized weapon axe and the injuries caused by that weapon could have caused the death of the deceased. In cross- 16 examination, the doctor has also admitted the suggestion of defence that the injuries found on the body of deceased Jaganmati were grievous in nature and he did not mention the time and duration of those injuries in his postmortem report. He has also admitted that in accidental cases such injuries could have been occurred and he also admitted this suggestion that in postmortem reports of the deceased, he did not mention that the marks present on the neck of both the deceased came from which article and neither any query was made in this regard, but it is clear from the statement of Dr. Sourabh Agrawal (PW-7), postmortem report (Ex.P-26 & P-28) and query report (Ex.P-30) that death of deceased Jaganmati and Jeetu were homicidal in nature and the death was due to injuries and throttling. Thus, from the aforesaid analysis of the prosecution witnesses including the postmortem reports and query report, the prosecution has been successful in proving this fact that the death of both the deceased were homicidal in nature. 19. The next question which arises for consideration by this Court whether it is the appellants and the appellants only who caused murder deceased Jaganmati and Jeetu. 20. It is clear from the FIR (Ex.P-24) that the same was lodged against unknown person. Beer Singh (PW-1), husband of deceased Jaganmati and father of deceased Jeetu, has 17 stated that when he came back from hospital at around 10- 11 AM, he found that the door of his house was locked from outside. One key of lock used to remain with deceased and another with him. He opened the lock of the door by his key and found that his wife deceased Jaganmati was lying on the floor in bloodbath condition and his 05 year old son Jeetu was lying dead on bed. This witness has only identified his signature on identification panchanama (Ex.P- 1). The prosecution has declared this witness hostile and cross-examined him but he denied this suggestion of prosecution that there was any quarrel between deceased Jaganmati and appellant Lakshmi. He has also denied this suggestion that appellant Lakshmi had told him that she had pargetted the bloodstained with cow dung water and she had no information about the incident. He has also denied this suggestion that he had suspicion that appellant Lakshmi in connivance with some other committed murder of his wife and son. This witness has denied his statement marked as ‘A to A’ and ‘B to B’ part of his police statement (Ex.P-2). He has admitted the suggestion of defence in para 12 of his cross-examination that there are many members lived in the house. The room of his brother Dhan Singh and his room are far away. He has also admitted that the sound cannot be heard from one room to another. Further, in para 13 of his 18 cross-examination, he admitted that his wife deceased Jaganmati used to prepare Mahua liquor at home and sell it & many villagers used to come to purchase liquor. He has also admitted that the his wife deceased Jaganmati’s and appellant Lakshmi’s maternal home are the same and they both are cousin sisters. This witness has also admitted in para 16 that Premlal (PW-3) and Bhuru accompanied him to hospital and at around 10.00 PM, they (Premlal and Bhuru) came back to village. He has also they (Premlal and Bhuru) had gone to his house for consuming liquor. He has also admitted that police were suspecting him and had taken him with them to police station. 21. Premlal (PW-3) has stated that prior to one day of the incident, due to ill health of Samaru Rathia, father of PW-1, they had taken him to hospital and admitted him in the hospital, thereafter he along with Bhuru came back at around 10.00 PM. He has also stated that thereafter they went to the house of deceased Jaganmati, purchased liquor and consumed it there. In the house, deceased Jaganmati and Jeetu were sleeping on bed and after consuming liquor, they came back to their house and next morning, he came to know that Jaganmati and Jeetu were murdered. The prosecution declared this witness hostile and cross- examined him then he admitted that appellant Lakshmin Bai 19 and deceased Jaganmati used to sell Mahua liquor illegally but he denied this suggestion that prior to one day of incident, he and Bhuru purchased liquor from appellant Lakshmin Bai and consumed it & went from there after informing about the health condition of her father-in-law. He has also denied this suggestion that appellant Lakshmin Bai had told him that there was blood stain on the wall of shed, which she had pargetted with cow dung water. This witness has denied ‘A to A’ and ‘B to B’ part of his police statement (Ex.P-21). He has admitted the suggestion of defence that appellant Jaganmati had dispute with many villagers regarding the money for drinking and serving alcohol. He has admitted that when he and Bhuru wen to the house of deceased Jaganmati, there was no male member in her home and they took half an hour for consuming liquor. This witness has denied this suggestion that he and Bhuru committed the incident after drinking alcohol at the deceased’s house. 22. Nandu (PW-5), brother of deceased, has stated that after receiving the information from B.D.C. Sanjay Gupta, he along with his mother went to village Chodha at his sister in- laws’ house on motorcycle. When he entered the room, he saw that his sister deceased Jaganmati and nephew Jeetu were lying dead. On the very day, he went to police station 20 Kharsiya and lodged merg intimation (Ex.P-24). This witness, in para 6, has admitted that appellant Lakshmin Bai always used to quarrel with deceased Jaganmati and he has suspicion that his aunt appellant Lakshmin Bai may have committed the murder of deceased Jaganmati. In para 10 of his cross-examination, he has admitted that many villagers used to come to his sister’s house for consuming liquor. 23. Rambai (PW-6), mother of deceased Jaganmati, has also made similar statement as has been made by Nandu (PW- 5). 24. Radhelal Rathiya (PW-2) has stated that the police recorded memorandum statement of appellant Sandeep Rathiya and Lakshmin Bai vide Ex.P-12 and P-13 & he admitted his signature on ‘A to A’ and ‘B to B’ part. As per the memorandum statement of the appellants, police had seized axe and clothes of appellants vide seizure memo Ex.P-14 and Ex.P-15 respectively. The prosecution declared this witness hostile and cross-examined him then he admitted this suggestion that when he reached the place of occurrence, there was blood stain on the wall which was pargetted with cow dung water. He has also admitted that being asked, appellant Lakshmi told that she does not know about the incident and she told that at morning she 21 pargetted the blood stain with cow dung water. He has also admitted that at the time of incident appellant Lakshmin Bai was alone in the house and therefore, all the villagers were suspecting that appellant Lakshmin Bai caused the incident due to some rivalry. He has also admitted this suggestion of prosecution that the appellants gave their memorandum statements (Ex.P-12 and P-13) to the police before him. He denied this suggestion that at the instance of appellants, the police seized axe before him vide seizure memo (Ex.P-14) but he self stated that police and village Kotwar had gone to get the axe. Again in para 27 of cross-examination, this witness has stated that on 20.07.2018, appellant Sandeep Rathiya had not given memorandum statement (Ex.P-12) before him near public podium at village Chodha, and he stated that when he signed on memorandum statement, at that time, appellants were not present there. 25. Damrudhar Rathiya (PW-4) has admitted his signature on memorandum statement (Ex.P-12 and P-13) but he denied recording of any memorandum statement of appellants before him and also admitted his signature on seizure memo Ex.P-14 and P-15 but he denied any seizure before him. The Prosecution declared this witness hostile and cross-examined him but he denied all suggestions of prosecution in cross-examination and stated that he signed 22 the documents at the behest of police. 26. It is clear from the memorandum statements of the appellants that FIR (Ex.P-24) was lodged on 17.07.2018 and the memorandum statement of the appellants were recorded by the prosecution on 20.07.2018 vide Ex.P-12 and P-13, pursuant to which, recovery and seizure were made on 20.07.2018. The prosecution did not produce FSL report before the learned trial Court. This Court also tried to call for the FSL report but the FSL report regarding the clothes of accused persons did not receive and as per report dated 27.02.2020 J.M.F.C., Kharsiya, this Court found that FSL report was not with regard to clothes, article and weapon of offence and FSL report (Ex.P-39) was only with respect to vaginal slides of deceased Jaganmati and, as per this report, human sperm was found in vaginal slides of deceased Jaganmati. 27. Close scrutiny of the evidence of prosecution witnesses, it is clear that the case of the prosecution is based upon circumstantial evidence and the prosecution has only proved this fact that appellant Lakshmin Bai was living in same house. As per memorandum statements of both the appellants, clothes and weapon were recovered but it is clear that memorandum and seizure witnesses PW-2 Radhelal Rathiya and PW- 4 Damrudhar Rathiya have not 23 supported the memorandum and seizure, as such, the seizure loses its efficacy. They have only admitted their signature on memorandum and seizure but the denied any memorandum statement being recorded before them. There is no last seen witness to the incident. PW-1 Beer Singh, husband of deceased, has clearly stated that when he reached the house at around 10-11 AM, he found that the door was locked from outside and as per Premlal (PW-3), at about 10.00 PM, he went with Bhuru to the house of deceased Jaganmati and they consumed Mahua liquor with her and they remained with deceased Jaganmati for half an hour there. There is no last seen evidence in the case and the prosecution has also not been able to prove the motive behind the crime as to why the appellants would cause death of deceased. Further, it has come on record that there was two keys of the lock of the deceased’s house. One was used to be with husband (PW-1) of deceased Jaganmati and another was with deceased herself. The prosecution story with regard to another key which used to be with deceased Jaganmati is silent. Though there is disclosure of key in the memorandum statement of appellant Lakshmi but when we look at the seizure memo (Ex.P-14 and P-15), we found that no recovery of such key was made by the prosecution. 24 28. Hon’ble Apex Court in the matter of Sujit (supra) held in para 6, 7, 8, 9 and 11 as under :- “6. 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 dispassionate 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 25 be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979). 7. In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773, this Court observed as under: "Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence." 8. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, this Court held as under: The facts so established should be consistent only with the hypothesis of the ? guilt of the accused. There should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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 26 human probability the act must have been done by the accused." 9. In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200, this Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused, and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt. Similarly, in Sharad Birdhichand Sarda (Supra), this Court held as under: Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence. 10. xxxx 27 11. This Court in Babu v. State of Kerala, (2010) 9 SCC 189 has dealt with the doctrine of innocence elaborately, and held as under: 27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact. 28. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabove, that the burden of proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution.” 28 29. Hon’ble Apex Court in the matter of Raja Naykar (supra) held in para 18 as under :- “18. Another circumstance relied on by the Trial Judge is with regard to recovery of blood-stained clothes on a Memorandum of the appellant. The said clothes were recovered from the house of the appellant’s sister-in-law. The alleged incident is of 21st October, 2009, whereas the recovery was made on 25th October, 2009. It is difficult to believe that a person committing the crime would keep the clothes in the house of his sister-in-law for four days.” 30. Hon’ble Apex Court in the matter of Banabihari (supra) held in para 36, 38 and 39 as under :- “36. In Shanti Devi v. State of Rajasthan reported in (2012) 12 SCC 158, this Court held that the principles for conviction of the accused based on circumstantial evidence are : “10.1The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established. 10.2 The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. 10.3 The circumstances taken cumulatively must 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. 10.4 The circumstantial evidence in order to sustain conviction must be complete and 29 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.” 37. xxxx 38. It is well settled by a plethora of judicial pronouncement of this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt. This proposition has been reiterated in Sujit Biswas V. State of Assam reported in AIR 2013 SC 3817. 39. IN Kali Ram v. State of Himachal Pradesh reported in AIR 1973 SC 2773, this Court observed : “Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought is to be established by circumstantial evidence.” 31. In the light of above judicial pronouncement of Hon’ble Apex Court, in the present case also no motive has been proved by the prosecution against the appellants. There is no last seen statement available in the present case. It is clear from 30 the spot map that in the same house, other persons were also resides and many villagers used to come to consume liquor in the house of deceased Jaganmati, as such, presumton of Section 106 of Evidence Act cannot be involed against appellant Lakshmin Bai. The police recorded memorandum statement of the appellants on 20.07.2018 i.e. after three days of the incident, and as per Raja Naykar (supra), it is difficult to believe that a person committing the crime would keep the clothes in his house for four days. The prosecution has also failed to prove FSL regarding blood- stained clothes. So, there is no any clinching and legally admissible evidence available on record against both the appellants to prove their complicity in the commission of crime beyond all reasonable doubt. 32. Hon’ble Apex Court held in para 19 of Raja Naykar (supra) that only on the basis of sole circumstance of recovery of blood-stained weapon, it cannot be said that the prosecution has discharged its burden or proving the case beyond reasonable doubt. That apart, Beer Singh (PW-1) had raised suspicion upon appellant Lakshmi that she may have caused the death of deceased as there used to be quarrel between them but in cross-examination this witness denied the suggestion of any quarrel between them and it is settled in law that the suspicion howsoever may strong cannot 31 place take of evidence. Merely on the basis of suspicion, the conviction would not be tenable as Hon’ble Apex Court held in para 20 of Raja Naykar (supra) that ‘….. it is the duty of the prosecution to prove beyond all reasonable doubt that it is only the accused and the accused alone who has committed the crime.’ 33. In the light of afore-quoted judicial pronouncement of Hon’ble Apex Court and the discussion of evidence, we find that the prosecution has utterly failed to prove its case beyond all reasonable doubt against both the appellants and the benefit of doubt, of course, has to go to the appellants. 34. In the result, the aforesaid appeals are allowed. Impugned judgment of conviction and order of sentence are set aside and the appellants are acquitted from the charges levelled against them by extending them benefit of doubt. 35. Appellant Lakshmi @ Lakshmin Bai in CRA No. 1257/2019 is in jail. She be set at liberty forthwith, if not required in any other case. The appellant Sandeep Rathiya in CRA No. 1324/2019 is on bail. 36. Keeping in view the provisions of Section 437-A Cr.P.C. (481 of the B.N.S.S.), both the appellants are directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- each with one surety in the like amount before the Court 32 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. 37. The Lower Court records along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.08.28 16:38:15 +0530