1 2025:CGHC:44203-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 963 of 2016 Judgment Reserved on 12.08.2025 Judgment Delivered on 01.09.2025 1 – Atmaram, S/o Bajeram Rohidas, aged about 40 Years, R/o - Village - Sirki, P. S. - Dipka, Distt. Korba Chhattisgarh. 2 - Ashish Kumar Mourya, S/o Rajendra Mourya, aged about 25 Years, R/o - Khapri, P.S. Torwa, Distt. - Bilaspur Chhattisgarh Presently Resided at Pragatinagar, P.S. - Dipka, Distt. – Korba, Chhattisgarh. ...Appellants versus 1 - State of Chhattisgarh, Through the Police Station - Bango, Distt. Korba, Chhattisgarh. ... Respondent For Appellants : Mr. Akhtar Hussain, Advocate For Respondent/State : Mr. Afroz Khan, P.L. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. CAV Judgment Per, Amitendra Kishore Prasad, J. VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 1. This criminal appeal preferred by the appellants herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 12.07.2016 passed in Sessions Trial No.64/2015 by the Additional Sessions Judge, Katghora, C.G., by which the appellants stand convicted & sentenced as under:- Conviction Sentence Under Section 302 of Indian Penal Code (for short, ‘IPC’) Imprisonment for life and fine of Rs.1,000/- each, in default of payment of fine amount to undergo additional rigorous imprisonment for two months to each appellant Under Section 201 of IPC Rigorous Imprisonment for one year and fine of Rs.200/-, in default of payment of fine amount to undergo additional rigorous imprisonment for one month to each appellant. (Both sentences were directed to run concurrently) 2. Case of the prosecution, in brief, is that deceased Sunita Yadav alias Bhantin Yadav was the second wife of Rajendra alias Munna Maurya. Since she frequently quarreled with Rajendra Maurya and his family after consuming liquor, accused- Ashish Maurya conspired with co-accused Atmaram to eliminate her, promising to pay him Rs.10,000/-. On 17.04.2015, accused- Ashish Maurya took the deceased on his motorcycle to Village 3 Kendai, after taking accused- Atmaram on the way. The three visited Matin temple and thereafter went to Kendai Waterfall. At the spot, accused- Ashish Maurya assaulted the deceased on the head with a stone, and while holding her hand, enabled accused- Atmaram to slit her throat with a blade and caused her death. Thereafter, both the accused persons threw the dead body of deceased into the waterfall and thereafter, both the accused persons consumed liquor and returned home. On 19.04.2015, the dead body of an unknown woman was recovered from Kendai Waterfall, and during investigation it was identified as that of deceased-Sunita Yadav. Upon further inquiry and identification of clothes and articles, FIR (Exs.P-21& P-24) was registered against accused persons- Ashish Maurya and Atmaram under Sections 302, 201 and 34 IPC. Thereafter, inquest proceedings were conducted vide Ex.P-3. Dead body of deceased- Sunita Yadav was sent for postmortem examination which was conducted by PW-14 Dr. Anil Benarjee, who have proved the postmortem report Ex.P-19. According to PW-14, Dr. Anil Benarjee, the cause of death of the deceased, Sunita Yadav, was hemorrhagic shock resulting from a forceful attack with a sharp weapon on the lower side of the neck. and mode of death of deceased was homicidal in nature. 3. During investigation, spot map was prepared vide Ex.P-13 and accused persons were arrested vide Exs.P-30 & 31. Memorandum statement of appellant No.2, Ashish Kumar 4 Mourya, was recorded vide Ex.P-17, pursuant to which one white T-shirt bearing blood-like stains and mud, along with a piece of brick attached to the T-shirt, was seized vide Ex.P-14. Vide Ex.P- 15, full pant of appellant No.2 Ashish, motorcycle and related documents of it were seized. Likewise, memorandum statement of appellant No.1 Atmaram was recorded vide Ex.P-18, consequent to which, one blade was seizaed vide Ex.P-12. Vide Ex.P-22, one clothes of deceased were seized. Vide Ex.P-7 plain and blood stained soil and other articles were seized from the spot. Vide Ex.P-11 one stone was also seized from the accused- Ashish. Seized articles were sent to FSL for chemical examination, but FSL report (Ex.P-49) was inconclusive and blood group result could not be determined on the articles marked as “Exs.G & H”. 4. After due investigation, appellants were charge-sheeted before the jurisdictional Criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellants abjured their guilt and entered into defence by stating that they have not committed the offence. 5. The prosecution in order to bring home the offence, examined as many as 22 witnesses in support of its case and exhibited 24 documents Exs.P-1 to P-22 and Articles A to D. However, the appellants in support of their defence have examined none and not exhibited any document. 5 6. The trial Court, after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellants as mentioned in the opening paragraph of this judgment against which they have preferred the instant appeal under Section 374(2) of the CrPC. 7. Learned counsel for the appellants would submit that the learned trial Court is absolutely unjustified in convicting and sentencing the appellants for the aforesaid offences as the prosecution has failed to prove the offences beyond reasonable doubt. He would further submit that the entire case of the prosecution rests upon a weak chain of circumstantial evidence, which does not constitute a complete chain of circumstances pointing unerringly towards the guilt of the appellants. He would also submit that the learned trial Court committed a grave error in convicting the appellants for the alleged offences. He would also submit that the circumstances relating to the theory of “last seen together”, the memorandum, and seizure of razor blade and stone have not been proved beyond reasonable doubt. Even otherwise, the FSL report does not establish the blood group so as to connect the seized articles with the deceased. He would further contend that there is no established motive attributable to the appellants. As such, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellants be acquitted of the said charges. 6 8. Per contra, learned counsel for the respondent/State would support the judgment of conviction and submit that the trial Court has minutely evaluated the oral and documentary evidence on record and has rightly held that the chain of circumstances is well connected, establishing the guilt of the appellants. It is further submitted that there is no infirmity or perversity in the impugned judgment, warranting interference by this Court. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. The first question for consideration would be whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem reports (Ex.P-19) proved by PW-14 Dr. Anil Benarjee, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11. Now, the question would be whether the appellants are the authors of the crime in question? 12. The first question that arises for our consideration is whether the deceased was last seen in the company of the accused persons. According to the prosecution, PW-2 Smt. Dhanbai is the 'last seen' witness, who allegedly saw the accused persons along with the deceased. In her examination, PW-2 Smt. 7 Dhanbai stated that she identified the accused persons solely on the basis of their clothing. It is pertinent to note that her identification is not based on any direct or distinctive features of the accused persons, but merely on the clothes allegedly worn by them at the relevant time. Such identification, being inherently weak in nature, cannot be treated as conclusive evidence, particularly in the absence of a proper Test Identification Parade (TIP) to corroborate her version. In the absence of corroboration from other reliable witnesses or material evidence, her statement does not inspire confidence sufficient to connect the appellants with the commission of the offence. 13. Apart from this, PW-3 Smt. Lavkesari @ Novkesari has also been projected by the prosecution as another 'last seen' witness. However, in her testimony, she has categorically stated that she could only identify the clothes and was unable to identify the accused persons seen along with the deceased. This statement, therefore, fails to establish that the appellants were in the company of the deceased at the relevant time. Accordingly, the testimonies of PW-2 Smt. Dhanbai and PW-3 Smt. Lavkesari @ Novkesari indicate that, on the date of the incident, these witnesses did not see the deceased in the company of the accused persons. Their testimonies, therefore, not only fail to strengthen the prosecution’s case but also create a serious dent in the chain of circumstances sought to be relied upon. 8 Furthermore, the prosecution has also failed to establish any clear motive for the alleged offence on the part of the appellants. 14. Besides above, PW-8 Rakesh Kumar has been examined as the witness of Test Identification Parade (Exhibit P-9). However, in his testimony, he has categorically stated that he had already seen accused- Ashish when he was with the police party. Such an admission renders the entire process of test identification meaningless, as the very purpose of holding a TIP is to test the memory of the witness in identifying an accused unknown to him, without any aid or influence. Once the witness had prior opportunity of seeing the accused in police custody, the TIP stands vitiated and carries no evidentiary value. The Hon’ble Supreme Court in Budhsen v. State of U.P., (1970) 2 SCC 128 and State of Maharashtra v. Suresh, (2000) 1 SCC 471 has held that if the witness has seen the accused prior to the test identification, the value of TIP is seriously impaired and cannot be relied upon. Accordingly, the testimony of PW-8 Rakesh Kumar also does not advance the prosecution case in any manner. 15. That apart, although, pursuant to the memorandum statements of the accused persons/appellants, one white T-shirt, a piece of brick, a full pant, a motorcycle, blade and a stone were seized, but PW-1 Madansai Gada, who is a witness to the seizure of the clothes, slippers, and stone, was declared hostile at certain stages of his testimony. In his cross-examination, PW-1 categorically stated that he had no knowledge about the articles 9 that were seized. Likewise, PW-5 Doojram, who is a witness to the identification and seizure of the blade and stone allegedly used in the commission of the offence, fairly admitted during cross-examination that the said articles were not seized from the possession of the appellants. Similarly, PW-7 Rishi Prajapati, who was examined as a witness to the memorandum statements of the appellants and the seizure made pursuant thereto, has not supported the prosecution case. On the contrary, he categorically denied that any blood-stained stone was seized from appellants/accused persons in his presence. 16. The admissions made by the above witnesses strike at the root of the prosecution’s case with respect to the recovery of the alleged weapons. In the absence of seizure from the appellants, and in the absence of any scientific evidence connecting the seized articles with the crime or the deceased, the recovery loses its evidentiary value. Consequently, the alleged seizure of the blade and stone cannot be relied upon as an incriminating circumstance against the appellants. 17. Apart from that, seized articles were sent to FSL for chemical examination, however, FSL report (Ex.P-49) is inconclusive and no blood group could not be ascertained on the seized articles and that apart, there is no evidence on record to show that the blood like stained found on the seized articles is similar to that of the blood of deceased. Therefore, the mere recovery of articles, without any corroboration linking them 10 directly to the offence or the deceased, is insufficient to establish guilt. Accordingly, the FSL (Forensic Science Laboratory) report does not support the prosecution's case. There is no conclusive forensic evidence linking the appellants to the crime scene or to the deceased through these recoveries. 18. The Hon’ble Supreme Court in the matter of Raja Naykar vs. State of Chhattisgarh (2024) 3 SCC 481 has held as under:- “It can thus be seen that, the only circumstance that may be of some assistance to the prosecution case is the recovery of dagger at the instance of the present appellant. However, as already stated hereinabove, the said recovery is also from an open place accessible to one and all. In any case, the blood found on the dagger does not match with the blood group of the deceased. In Mustkeem v. State of Rajasthan, this Court held that sole circumstance of recovery of bloodstained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused. Thus, we find that only on the basis of sole circumstance of recovery of bloodstained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt.” 19. Also, the Hon’ble Supreme Court in the matter of Thakore Umedsing Nathusing vs. State of Gujarat 2024 SCC OnLine 11 SC 320 has dealt with the recovery and blood stains not found to be that of the deceased and the relevant para reads as under:- “35. We have gone through the evidence of the concerned police officials associated with the recoveries and find their testimonies to be highly doubtful. The knife which was recovered at the instance of A3 was found from a nala which is a place open and accessible to all. The knife attributed to A4 was presented by one Shobhnaben wife of Kanji Chhara and thus it cannot be linked to A4. Thus, these recoveries in no manner can be treated to be incriminating in nature. In the case of Mustkeem alias Sirajudeen v. State of Rajasthan, reported in (2011) 11 SCC 724, this Court held that the solitary circumstance of recovery of blood-stained weapons cannot constitute such evidence which can be considered sufficient to convict an accused for the charge of murder. We thus find the recoveries to be highly doubtful and tainted. Even if it is assumed for a moment that such recoveries were effected, the same did not lead to any conclusive circumstance in form of Serological report establishing the presence of the same blood group as that of the deceased and hence they do not further the cause of prosecution. In addition thereto, we find that the prosecution failed to lead the link evidence mandatorily required to establish the factum of safe keeping of the muddamal articles and hence, the recoveries became irrelevant.” 12 20. In the matter of Debapriya Pal vs. State of West Bengal (2017) 11 SCC 31, the Hon’ble Supreme Court has held with the issue that even if blood stain was found, the blood group of accused or deceased was not ascertained. The relevant para reads as under:- “For the sake of argument, we are presuming that they were present at the time when the appellant brought bloodstained clothes from his house and gave the same to the police. What is material is the reliance on these bloodstained clothes for the culpability of the appellant herein. As per the prosecution, the blood group on these bloodstained clothes matched with the blood on the bedsheet on which the body of one of the deceased persons was found. The record reveals that though blood of both the deceased persons was drawn and sent for examination, it is not known as to what was the report thereupon and what was the blood group of the deceased persons. No such blood report has been produced. So much so, blood group of the accused persons was also not ascertained. Even if we presume that the blood on the bedsheet was that of the deceased, the possibility cannot be ruled out that the same blood group as of the appellant- accused thereof. Therefore, mere matching of the blood group on the bloodstained clothes, which was even on the bedsheet, would not 13 lead to the conclusion that it is the appellant who had committed the crime.” 21. In the matter of Shantabai and others vs. State of Maharashtra (2008) 16 SCC 354, the Hon’ble Supreme Court has held as under:- “25. In support of the fifth circumstance, the prosecution has examined Dr. Hanumant, who performed post-mortem on the dead body of the deceased Gunwant on 15-8- 1993. The doctor noticed as many as thirteen injuries on the body of the deceased as described in the post-mortem report (Ext. 41). According to the opinion of the doctor, the cause of death was because of shock due to cardio-respiratory failure caused by injury to brain and brain haemorrhage. The chemical analyser's report would reveal that ethyl alcohol was found in the viscera contents of the deceased. 26. We may point out that the investigating officer has not cared to collect the fingerprints appeared on the stones and axe, the alleged weapons of offence, at the time of seizure of the articles nor had he taken the fingerprints of the appellants for comparison with the fingerprints, if any, detected on the alleged weapons of offence. The articles collected by the investigating officer from the spot were found lying in the open place which was accessible to all and sundry. The prosecution 14 has not led any evidence to prove that axe, which was the alleged weapon of offence, found on spot in the open place belonged to A-1, A-2 and A-3. Thus, the prosecution has not established beyond reasonable doubt that A-1, A-2 and A-3 had used the recovered weapons of offence in the commission of the crime. 28. The chemical analyser's report (Ext. 72) reveals that human blood of Group 'B' was detected on the clothes, which were seized by the police, allegedly belonging to the appellants. The blood group on those clothes did not tally with the blood of Group 'O', which was found on the clothes of the deceased and on the sample of soil, axe, stones, handles, etc, which were taken from the spot by the investigating officer. The investigating officer has categorically stated that when he along with A-1 and panch witnesses had gone in search of the clothes of the appellants, the lock to the door of the house of the appellants was kept with the Police Patil which was opened by them later on. In this view of the matter, the prosecution has not proved that d the clothes, which were allegedly seized by the police at the instance of A-1 and lying in the open place, were stained with Blood Group 'O' of the deceased found on the deceased's clothes and on the articles which were seized by the investigating officer from the place of occurrence. These circumstances are not 15 proved by the prosecution by lending cogent, satisfactory and convincing evidence to hold A-1, A-2 and A-3 guilty of the offence.” 22. Also, the Hon’ble Supreme Court in the matter of Dhananjay Shanker Shetty vs. State of Maharashtra (2002) 6 SCC 596 has held as under:- “9. Another circumstance which was alleged against the appellant was that bloodstained clothes and weapon were recovered from his house, but the trial court as well as the High Court did not place any reliance upon this circumstance in view of the fact that according to the report of the chemical examiner, the blood group found thereon did not tally with that of the deceased.” 23. Upon perusal of the record and in light of the decisions of the Hon'ble Supreme Court, it is evident that although the prosecution has produced a piece of brick, stone, blade, clothes of appellants and deceased, but there is a complete absence of forensic evidence establishing that the blood found on the articles i.e. G & H (stone and blade) matches the blood group of the deceased. The mere presence of bloodstains, without proof that it is human blood belonging to the deceased, renders the recovery inconsequential. 24. The Hon’ble Supreme Court has consistently held that such failure materially affects the evidentiary value of the alleged 16 recoveries. In Kansa Behera v. State of Orissa, (1987) 3 SCC 480, the Court held: “Unless the blood stains found on the clothes or weapons are proved to be that of the deceased, the discovery cannot be said to incriminate the accused beyond doubt.” 25. Similarly, in Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra, (2008) 3 SCC 210, it was observed: “In the absence of a serological report confirming that the blood on the clothes or weapon belonged to the deceased, the recovery is of no substantial help to the prosecution.” 26. Again, in Vijay Shankar v. State of Chhattisgarh, (2022) 10 SCC 353, the Apex Court reiterated: “The prosecution’s failure to establish, through scientific evidence, that the blood found on the weapon or clothes matched that of the deceased creates a serious doubt about the veracity of the recovery and the guilt of the accused.” 27. These authoritative pronouncements make it abundantly clear that mere recovery of blood-stained articles, without scientific corroboration, is insufficient to sustain a conviction, especially when the case is otherwise based on circumstantial evidence. 17 28. It is a settled principle of criminal jurisprudence that the prosecution must establish the chain of circumstances with cogent and reliable evidence, particularly in cases based on circumstantial evidence. 29. It is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 1 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under: “153.…. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. 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, (1973) 2 SCC 793 where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may 1 (1984) 4 SCC 116 18 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.” 30. In the present case, though certain articles were seized, but there is no cogent evidence to establish that these articles were either used in the commission of the offence or were last seen in the possession of the deceased or appellants in such a manner that would link the appellants directly to the crime and that no forensic evidence has been produced to establish that the blood on the seized articles belonged to the deceased. The prosecution 19 failed to establish a chain of circumstances to prove the relevance or connection of the seized items to the alleged offence. Therefore, the seizure from the spot and accused persons remains an isolated circumstance, incapable of establishing the guilt of the appellants beyond reasonable doubt. 31. It is a settled principle of criminal law that suspicion, howsoever grave it may be, cannot substitute for proof. The entire case of the prosecution is based on weak circumstantial evidence, and the chain of circumstances necessary to bring home the guilt of the accused has not been established. 32. In view of the above precedents, laws laid down by the Hon’ble Supreme Court as well as the facts and circumstances of the case, the failure to establish a forensic link between the recovered articles and the deceased persons fatally weakens the prosecution’s case. The conviction cannot be sustained solely on the basis of uncorroborated recovery. The prosecution has failed to prove the appellants' guilt beyond reasonable doubt. The trial court erred in convicting the appellants without credible and trustworthy evidence. The chain of circumstances is broken and incomplete, thus the benefit of doubt must be given to the appellants. 33. Accordingly, the appeal is allowed, and the impugned judgment of conviction and order of sentence passed by the learned trial Court is hereby set- aside. The appellants are acquitted of the 20 charge under Sections 302 & 201 IPC on the basis of benefit of doubt and they shall be released forthwith unless wanted in any other case. 34. In compliance with Section 437-A Cr.P.C., the appellants are directed to furnish a personal bond of ₹25,000/- each with two sureties of the like amount before the concerned court. The bond shall be effective for six months and include an undertaking that in case of filing a Special Leave Petition or grant of leave against this judgment, the appellants will appear before the Supreme Court upon receipt of notice. 35. Registry is directed to transmit the lower court record along with a copy of this judgment to the trial court forthwith for information and necessary compliance. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha 21 HEADNOTE Forensic evidence plays a vital role in coming to conclusion regarding establishing guilt of accused. In absence of the same, it is difficult to hold conviction in a case of circumstantial evidence.