1 CRA No. 1173 of 2015 2025:CGHC:15036-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1173 of 2015 [Arising out of judgment dated 15.09.2015 passed in Sessions Trial No.72/2014 by the 1 st Additional Sessions Judge, Manendragarh, District Korea, Chhattisgarh]  Chandan Kumar Tandiya S/o Late Shri Sudama, aged about 25 years, R/o Chainpur, Police Station Manendragarh, District – Korea, Chhattisgarh. … Appellant versus  State of Chhattisgarh through Station House Officer, Police Station Manendragarh, District – Korea, Chhattisgarh. ... Respondent For Appellant :- Mr. Sunil Otwani, Advocate. For State-Respondent :- Mr. Arvind Dubey, Government Advocate and Mr. H.A.P.S. Bhatia, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (28.03.2025) ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.04.02 10:53:07 +0530 2 CRA No. 1173 of 2015 Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellant herein, is to the legality, validity and correctness of the judgment dated 15.09.2015 passed by the 1st Additional Sessions Judge, Manendragarh, District Korea, Chhattisgarh, in Sessions Trial No.72/2014, by which the appellant herein has been convicted for offence under Section 302 and sentenced thereunder to suffer imprisonment for life with fine of ₹ 1,000/-; in default of payment of fine amount the appellant has to undergo additional simple imprisonment for four months while acquitting the co-acussed Rakesh @ Pintu. Prosecution story:- 2. On 19.03.2014 in the late night at about 2:00 pm the appellant, son of the deceased, along with co-accused Rakesh @ Pintu (the trial Court has acquitted him) at Bakramodi, in furtherance of their common intention assaulted Sudama Panika with knife and axe by which he suffered grievous 3 CRA No. 1173 of 2015 injuries and died. Thereafter to screen themselves from the offence hide the knife and the axe. 3. On the report of Dr. D.K. Singh, Manendragarh Health Center, merg intimation was registered vide Ex.P/2. FIR was registered vide Ex.P/20. Crime details form was prepared vide Ex.p/21. Inquest proceedings (Ex.P/4) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/8) proved by Dr. Archana Kumhare (PW-12), cause of death was haemorrhagic shock on account of excessive blood loss due to cutting of major vessels of the throat (neck) and injury to brain and homicidal in nature. Wheels of investigation started running and the appellant was arrested. Pursuant to memorandum statement of the appellant (Ex.P/11) weapon of offence i.e. knife and his clothes were seized vide Exs.P/13 & 16, respectively. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (not exhibited) ddated 16.07.2014 on the knife (article H) and on the clothes of the appellant herein (articles L & M) only blood was found. 4 CRA No. 1173 of 2015 4. After due investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 5. In order to bring home the offence, prosecution has examined as many as 17 witnesses and exhibited 24 documents, whereas, defence, in support of its case, has not examined any witness but exhibited 1 document. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which the appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. 5 CRA No. 1173 of 2015 Submission of the Parties:- 7. Mr. Sunil Otwani, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. He would also submit that the appellant has been convicted solely on the basis of presumption drawn against him under Section 106 of the Indian Evidence Act, 1872 (for short “IEA”). He would further submit that the dead body of the deceased was found in the open place about 15 km away from the house of the appellant and even as per the statement of Bablu Singh (PW-8) the deceased would often not come to home for several days and also there is no evidence has been brought on record by the prosecution that at the relevant point of time the appellant was with the deceased, therefore, the question of applicability of Section 106 of IEA does not arise. He would further submit that from the possession of the appellant, a knife was seized, but the seizure witnesses have not supported the prosecution case and most importantly, there is no FSL report on record. He would further submit that on the same set of evidence, co- accused Rakesh @ Pintu has been acquitted, therefore, the 6 CRA No. 1173 of 2015 appellant is also entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 8. Mr. Arvind Dubey, and Mr. H.A.P.S. Bhatia, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. They would also submit that the trial Court has rightly invoked Section 106 of the IEA to base the conviction of the appellant as, they used to live together and also from the possession of the appellant weapon of offence i.e. knife was seized on which in FSL report dated 16.07.2014 bloo was found though it has not been exhibited. Therefore, the present appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the with utmost care and circumspection. Discussion & Analysis:- 10.The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court 7 CRA No. 1173 of 2015 in affirmative in relying upon the postmortem report (Ex.P/8) proved by Dr. Archana Kumhare (PW-12), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 11. Now, the question for consideration would be whether the appellant has assaulted the deceased? 12.The case of the prosecution is based on the circumstantial evidence and the trial Court has found incriminating circumstances established. The five golden principles which constitute panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra) in paragraph 153 which state as under:- “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 : 8 CRA No. 1173 of 2015 (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 v. State of Maharashtra1 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 13.To base the conviction of the appellant, the trial Court has invoked Section 106 of the IEA, as the appellant and the 1 (1973) 2 SCC 793 9 CRA No. 1173 of 2015 deceased used to live together and, therefore, the appellant is required to explain in his statement recorded under Section 313 of the CrPC as to how and under what circumstance his father Sudama Panika died. Further relied upon the the incriminating circumsntaces i.e. pursuant to memorandum statement of the appellant blood stained knife was seized and also on the motive of offence. 14.Now, we will examine the correctness of all the incriminating circumsntaces one by one, on the which the trial Court has relied to base the conviction of the appellant? Section 106 of the IEA:- 15.At this stage, it would be appropriate to quote Section 106 of the Evidence Act, which states as under:- “106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 16.The said provision states that when any fact is specially within the knowledge of any person the burden of proving 10 CRA No. 1173 of 2015 that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned. 17.In the matter of Balvir Singh v. State of Uttarakhand 2 their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the IEA, have held that Section 106 has to be applied in criminal cases with care and caution and held in paragraphs 41 to 48 as under:- “41. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in 2 2023 SCC OnLine SC 1261 11 CRA No. 1173 of 2015 any way modified by the provisions contained in Section 106 of the Evidence Act. 42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused. 43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams: “All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.” 44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of 12 CRA No. 1173 of 2015 one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams—Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion—para 527 negative averments and para 528—“require affirmative counter-evidence” at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958. 45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveler himself:see Section 106 of the Evidence Act, illustrations (a) and (b). 46. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may 13 CRA No. 1173 of 2015 shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State reported in 343 U.S. 790=96 L.Ed. 1302, Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed. 1054. WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106 OF THE EVIDENCE ACT? 47. The Latin expression prima facie means “at first sight”, “at first view", or "based on first impression". According, to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evi-Ideuce sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces 14 CRA No. 1173 of 2015 contradictory evidence, the initial claim may be dismissed without any need for a response by other parties. 48. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death.” 18.Similarly, In the matter of Anees v. The State Govt. of NCT3, their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the IEA, have held in paragraphs 47 to 55 as under:- “47. But Section 106 of the Evidence Act has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only to the accused but also to others, if they happened to be present when it took place. The intention underlying the act or conduct of any individual is seldom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived. Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under illustration (a) to this section, it may be assumed that he had that intention, unless he proves the contrary. 48. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence, which if believed by the court, would convince them of the accused's guilt beyond a 3 2024 SCC Online SC 757 15 CRA No. 1173 of 2015 reasonable doubt, the accused, if in a position, should go forward with counter-vailing evidence, if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might arise therefrom. Although not legally required to produce evidence on his own behalf, the accused may, therefore, as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution [See: Balvir Singh v. State of Uttarakhand, 2023 SCC OnLine 1261] ii. What is “ prima facie case ” (foundational facts) in the context of Section 106 of the Evidence Act? 49. The Latin expression prima facie means “at first sight”, “at first view”, or “based on first impression”. According to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the case or charges against the defendant. If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties. 50. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused. 16 CRA No. 1173 of 2015 51. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. 52. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in State of W.B. v. Mir Mohammad and ors. (2000) 8 SCC 382, wherein this Court has observed in paras 36 and 37 respectively as under: “36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.” (Emphasis supplied) 53. We should also look into the decision of this Court in the case of Ram Gulam Chaudhary & Ors. v. State of Bihar, (2001) 8 SCC 311, wherein this Court made the following observations in paragraph 24 as under: “24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said “he is still alive and should be killed”. The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did 17 CRA No. 1173 of 2015 after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr. Mishra.” (Emphasis supplied) 54. Cases are frequently coming before the courts where the husband, due to strained marital relations and doubt as regards the character, has gone to the extent of killing his wife. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, like in the case at hand, even if he is a witness of the crime, would come forward to depose against another family member. 55. If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at a time and in the circumstances of his choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused. It is to resolve such a situation that Section 106 of the Evidence Act exists in the statute book. In the case of Trimukh Maroti Kirkan (supra), this Court observed that a Judge does not preside over a criminal trial 18 CRA No. 1173 of 2015 merely to see that no innocent man is punished. The Court proceeded to observe that a Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character, which is almost impossible to be led, or at any rate, extremely difficult to be led. The duty on the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case.” 19.Recently, in the matter of Manharan Rajwade v. State of Chhattisgarh 4 their Lordships of the Supreme Court on the point of Section 106 of the IEA have held in paragraph 7 to 10 as under:- “7. For invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellant’s presence at the relevant time in his house. In this case, going by the evidence of PW-1, the deceased had already died before 5:00 p.m., and the said witness stated that the appellant came back home at 7:00 p.m. There is no evidence to prove the theory of the last seen together. Therefore, the prosecution has no discharged the burden on it to prove that the appellant was last seen together with the deceased wife. Thus, Section 106 of the Evidence Act cannot be invoked to shift the burden on the appellant. 8. Even the appellant’s answer given to question No.27, if taken in its entirety, does not support the prosecution. The appellant vaguely stated that he came back around 4:00-5:00 p.m. when PW-1 and PW-2 were in the house and told him that the deceased ws not talking and moving. Thus, he reached home after the death of his wife. The allegation was that the death was caused due to strangulation by the appellant. 4 2024 INSC 560 19 CRA No. 1173 of 2015 9. Therefore, the prosecution has miserably failed to porve the only circumstance it relied upon, namely, that the appellant and the deceased were last seen together. Therefore, the prosecution has failed to bring home the charge of the offence of murder punishable under Section 302 of the Indian Penal Code. 10. Hence, the impugned judgments and orders are set aside, and the appellant is acquitted of the offence alleged against him. The appellant shall be forthwith set at liberty unless his detention is required in any other case.” 20.Coming to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above stated judgments, it is quite vivid that the proseuction has been able to prove only the death of Sudama Panika (deceased) to be homicidal in nature and which has righlty been held by the trial Court. It is the case of the prosecution that Sudama Panika (deceased) was the father of the appellant and they used to live together. However, there is no evidence available on record at all that the appellant and the deceased used to live under the same roof and also no evidence has been brought on record by the prosecution that the appellant was with the deceased on the relevant point of time. Only the evidence has been brought on record by the prosecution that 2-3 days prior to the incident, altercation took place between the appellant and his father (deceased) 20 CRA No. 1173 of 2015 and mother. However as per the statement of Bablu Singh (PW-8) the deceased would often not come to home for several days. More particularly the dead body of the deceased was found at Bakramodi square which is an open place and accessible to one and all as per crime detail form (Ex.P/21) and also it is faraway from the house of the appellant. As such, there is no evidence available on record that the appellant used to live with the deceased under the same roof and also no evidence has been brought on record by the prosecution that the appellant and the deceased were last seen together and the appellant was present at the relevant point of time with the deceased. Since the said fact has not been brought on record by the prosecution, the trial Court has wrongly invoked Section 106 of the IEA to base the conviction of the appellant. Accordingly, we hereby reject the said finding of the trial Court. 21.Next piece of is Seizure and forensic evidence :- Pursuant to memorandum statement of the appellant weapon of offence i.e. knife and his clothes were seized on which in the FSL report dated 16.07.2014, though it is not exhibited, blood was 21 CRA No. 1173 of 2015 found. Considering the FSL report, it appears that the weapon of offence and the clothes of the appellant were seized on 20.03.2014, on the very next day of the incident i.e. 19.03.2014, but the same was received by the FSL laboratory on 20.05.2014, after two months. However, no evidence has been brought on record by the prosecution that the said seized articles were kept in a safe custody for two months, as such, possibility of fabrication and manipulation cannot be ruled out. Even otherwise, in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another 5 seizure of knife is of no use to the prosecution as on the said seized knife and the clothes of the appellant human blood was not found in the FSL report dated 16.07.2014. 22.Last piece of evidence brought on record by the prosecution is motive:- It is the case of the prosecution that the deceased used to consume liquor and he did not give money for household expenses as he was engaged in gambling, due to which, quarrel used to take place between the appellant and the deceased. However, in serious offences like murder, the 5 (2019) 7 SCC 781 22 CRA No. 1173 of 2015 Court always searches for the motive and the motive always plays an important role. Motive is of great importance in cases based on circumstantial evidence, and there is absence of such motive, it is always a circumstance in favour of the accused and against the prosecution. Motive, however adequate, cannot sustain a criminal charge in absence of clear and cogent evidence pointing to the guilt of the accused and motive alone can hardly be a ground for conviction in absence of any other circumstantial evidence. [See: Sampath Kumar v. Inspector of Police, Krishnagiri 6 ]. 23.Similarly, in the matter of Vishwajeet Kerba Masalkar v. State of Maharashtra 7 , their Lordships of the Supreme Court has held that solely on the basis of circumstance of motive, a conviction cannot be based and which states as under:- “27. That leaves us with the circumsntace of motive. We find that solely on the basis of circumstance of movie, a conviction cannot be based. As held by this Court in the case of Shard Birdhichand Sharda (supra), a suspicion, however strong it may be, cannot take the place of a proof beyond reasonable doubt. As has been held by this Court in the case of Shard Birdhichand Sharda (supra), there is not only a grammatical but a 6 (2012) 4 SCC 124 7 2024 INSC 788 23 CRA No. 1173 of 2015 legal distinction between “may be proved” and “must be or should be proved”. It is a primary principle that the accused “must be” and not merely “may be” guitly before a court can convict and every possible hypothesis except the guilt of the accused has to be ruled out. In our considered opinion, in the present case, the prosecution has failed to do so. We are therefore of the considered view that the impugned judgment and order of the High Court as well as the trial Court are not sustainable in law.” 24.In that view of the matter, the appellant could not be convicted only on the basis of motive in absence of other corroborative piece of evidence that too for offence under Section 302 of the IPC as in the foregoing paragraphs we have already discussed that the trial Court has wrongly invoked Section 106 of the IEA and also seizure of articles is of no use to the prosecution. As such, the appellant is entitled for acquittal on the basis of benefit of doubt. Conclusion:- 25. In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 15.09.2015 passed by the trial Court convicting and sentencing the appellant for the offence under Section 302 of the IPC, is hereby set aside and the appellant is entitled for 24 CRA No. 1173 of 2015 acquittal on the basis of principle of benefit of doubt. Appellant is stated to be on bail. He need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 26. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit