Page No.1 of 20 IN CRA-1307-2019 2025:CGHC:8341-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1307 of 2019 [Arising out of judgment dated 07.08.2019, passed in Sessions Case No.H-21 of 2018, by the Additional Sessions Judge, Bhatapara, District Balodabazar-Bhatapara (CG)] Suresh Miri S/o Aasha Ram Miri Aged About 33 Years R/o Village Khajri, Chowki, Saragaon, Police Station Pathariya, District Mungeli Chhattisgarh At Present R/o Housing Board Colony, Hig 10, Shahid Veernarayan Singh Ward Patpar, Bhatapara, P. S. Bhatapara (City), District Balodabazar-Bhatapara Chhattisgarh, District: Balodabazar-Bhathapara, Chhattisgarh ... Appellant Versus The State Of Chhattisgarh Through The Station House Officer, Police Station Bhatapara (City), Civil And Revenue District Balodabazar-Bhatapara Chhattisgarh, District : Balodabazar- Bhathapara, Chhattisgarh ... Respondent (Cause-title taken from Case Information System [CIS]) ------------------------------------------------------------------------------------------- For Appellant : Mr. Rishi Rahul Soni, Advocate For Respondent : Mr. Ashish Shukla, Addl. Adv. General and Mr. Sharad Mishra, Panel Lawyer ------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justic e Sanjay Kumar Jaiswal Judgment on Board (18.02.2025) Sanjay K. Agrawal, J (1) Invoking criminal appellate jurisdiction of this Court, the sole appellant herein has preferred this criminal appeal under SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.02.21 17:09:01 +0530 Page No.2 of 20 IN CRA-1307-2019 Section 374(2) of Cr.P.C., calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 07.08.2019, passed in Sessions Case No.H-21 of 2018, by the Additional Sessions Judge, Bhatapara, District Balodabazar-Bhatapara (CG), whereby he has been convicted for offence: under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/- and, in default of payment of fine, sentenced to undergo additional rigorous imprisonment for 03 months and also under Section 201 of IPC and sentenced to undergo rigorous imprisonment for 02 years with fine of Rs.1,000/- and, in default of payment of fine, sentenced to undergo additional rigorous imprisonment for 03 months. (2) The case of the prosecution, in short, is that on 17.07.2018, at about 13:00 hours, at HIG-10, Housing Board Colony, Shaheed Veernarayan Singh Ward, Patpar, Bhatapara, District Balodabazar-Bhatapara (CG), the accused-appellant herein suspecting character of his wife, namely, Laxmi Bai (hereinafter referred to as the “deceased”) committed her murder by electrocuting her and, further, in order to screen himself from the legal punishment and also in order to give shape of accident to the said incident, tried to hide the evidence relating to murder of the deceased and, thereby, said to have committed the aforesaid offence. Page No.3 of 20 IN CRA-1307-2019 (3) It is further case of the prosecution that when brother of the deceased, namely, Shiva (PW-02) reported the matter to the police, merg intimations (Ex.P/05 & Ex.P/16) and FIR (Ex.P/17) were registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/01 and inquest proceedings were conducted vide Ex.P/02. Spot map was prepared vide Ex.P/12. The dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. Jayant Toppo (PW-10) and, as per PM report (Ex.P/13), it has been opined that cause of death of the deceased is shock due to electric current, however, nature of death could not been ascertained whether it is homicidal or accidental. The appellant-accused was arrested vide Ex.P/11 and his memorandum statement was recorded vide Ex.P/07. Pursuant to the memorandum statement of the appellant, one GI wire was recovered vide Ex.P/09. Further, on production by the appellant, clothes of the deceased (i.e. petticoat) and one tester (tool) was seized vide Ex.P/10. The seized articles (i.e. GI wire and petticoat belonging to the deceased) were sent for chemical examination and, in FSL report (Ex.P/23), it has been opined that yellow stains were found in petticoat which were marked as Exhibit-A and electric current was found flowing freely in the wire marked as Exhibit-B. After statements of witnesses were recorded and due investigation, the police filed charge-sheet against the appellant in the competent criminal court having Page No.4 of 20 IN CRA-1307-2019 jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 16 witnesses and exhibited 24 documents, whereas the appellant-accused in support of his defence, though not examined any witness, but exhibited 02 documents. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Sections 302 & 201 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Rishi Rahul Soni, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 & 201 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that there is no direct evidence available against the appellant and case of the prosecution is based on circumstantial evidence. The circumstances relied upon by the learned trial Court in Para-39 of Page No.5 of 20 IN CRA-1307-2019 the impugned judgment are based on surmises and conjunctures and there is no material available on record to connect the appellant herein with the aforesaid offences. Learned counsel vehemently argued that even the death of the deceased could not be proved to be homicidal in nature, which is sine qua non for convicting an accused for offence under Section 302 of IPC. Hence, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charges on the basis of benefit of doubt. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Sections 302 & 201 of IPC. Thus, the present appeal deserves to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court had not answered clearly and only concluded in Para-34 of Page No.6 of 20 IN CRA-1307-2019 the judgment that it is the appellant who has electrocuted the deceased with the help of naked/GI electric wire. However, the learned trial Court ought to have answered the issue affirmatively whether the death of the deceased was homicidal in nature or not. It is well settled laws that for holding an accused guilty of murder, prosecution has first to prove that it is a culpable homicide. An accused will come under the mischief of Section 299 only when the act done by him has caused death. (10) At this stage, it would be relevant to notice the definition of 'culpable homicide' which is provided under Section 299 of IPC as under :- “299. Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” (11) Homicide is the killing of a human being by a human being. It is either lawful or unlawful. Unlawful homicide includes culpable homicide not amounting to murder under Section 299 of IPC and murder under Section 300. Halsbury classifies homicide as follows :- “The term “homicide” is used to describe the killing of a human being by a human being. Such a killing may be lawful or it may be unlawful and criminal. Unlawful homicide includes murder, manslaughter, causing death by dangerous driving, killing in pursuance of a suicide Page No.7 of 20 IN CRA-1307-2019 pact, and infanticide.” (12) “Homicide”, as derived from latin, literally means the act of killing a human being. Under Section 299 of the IPC, homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either Section 302, or Section 304 of the IPC which consists of two parts. (See: Chenda @ Chanda Ram v. State of Chhattisgarh1). (13) In the matter of Reaz-ud-din Shaikh v. Emperor2, it has been explained by Shuarf-ud-din J, as under :- “.... all murder is culpable homicide, but all culpable homicide is not murder... subject to the five exceptions to section 300, Indian Penal Code, every act that falls within one or more of the four clauses of section 300, Indian Penal Code, is murder and also falls within the definition of culpable homicide in Section 299, Indian Penal Code. Every act that falls within any one or more of the sets of circumstances described in the five exceptions of that section, is by that fact taken out of section 300, Indian Penal Code but the act notwithstanding continues to be within section 299 and since it is not murder, it is culpable homicide not amounting to murder. Every act that falls within section 299 and does not fall within section 300, since it is not murder, is culpable homicide not amounting to murder.” (14) It is well settled law that in order to convict an accused under Section 302 of the IPC, the first and foremost aspect to be 1 2014 CrLJ 172 2 (1910) 11 CrLJ 295 : HS Gaur Penal Law of India, 10th Edn. Vol. 3, pp 2214-2235 Page No.8 of 20 IN CRA-1307-2019 proved by the prosecution is the homicidal death and if the evidence on record produced by the prosecution falls short of the proof of homicidal death, the accused cannot be convicted under Section 302 of the IPC. (See : Madho Singh v. State of Rajasthan3 and Chandrapal v. State of Chhattisgarh4). (15) Similarly, in the matter of Shobhau alias Shubhau v. State of M.P.5, it has been held by the Madhya Pradesh High Court that to prove an offence of murder the death should be homicidal of which onus in a criminal trial is upon the prosecution. In the absence of legal proof of the death being homicidal, because of the serious lacuna of not obtaining the report of Anatomy Expert to prove homicidal death, the benefit will go to the accused and not to the prosecution, as this seals the fate of the prosecution and on this ground the accused cannot be held to legal criminality of the offence under Section 302 of the Indian Penal Code. (See: The State Government of M.P. v. Ramkrishna Ganpat Rao6, The State of Punjab v. Bhajan Singh7) (16) The Supreme Court, in the matter of Rupinder Singh Sandhu v. State of Punjab and others8, has held that to find a 3 (2010) 15 SCC 588 4 2022 SCC Online SC 705 5 1998 CrLJ 3934 6 AIR 1954 SC 20 7 AIR 1975 SC 258 8 (2018) 16 SCC 475 Page No.9 of 20 IN CRA-1307-2019 man guilty of culpable homicide, the basic fact required to be established is that the accused caused the death. In the matter of M.B. Suresh v. State of Karnataka9, it has been held that for holding an accused guilty of murder, the prosecution has first to prove that it is a culpable homicide. Culpable homicide is defined under Section 299 of the Indian Penal Code and an accused will come under the mischief of this section only when the act done by him has caused death. (17) Further, their Lordships of the Supreme Court in the matter of State of Orisha v. Banabihari Mohapatra and another 10 has clearly observed in Para-13 as under: “13. The post mortem Report of the deceased reveals that the cause of death was electric shock, suffered by the deceased within 24 hours from the time of examination. On post mortem examination, the Doctor found food particles including meat in the stomach of the deceased, and also detected smell of alcohol. The post mortem doctor opined that the deceased was intoxicated with alcohol and the death was either accidental, or homicidal, but not suicidal. There is no conclusive evidence that the death was homicidal. ” (18) The Supreme Court in the matter of Ananda Poojary v. State of Karnataka 11 has further clearly held that in absence of clear certainty about the cause of death, the benefit of doubt has to be given to the accused person and observed in Para-21 as 9 (2014) 4 SCC 31 10 (2021) 15 SCC 268 11 (2015) 1 SCC 235 Page No.10 of 20 IN CRA-1307-2019 under: “21. In the aforesaid scenario, it cannot be said with certainty as to whether Dorathi died of smothering or being a heart patient, the actual cause of death was cardiac arrest. In such circumstances, when there was a possibility of both the causes of death, in the absence of clear certainty about the cause, we are of the opinion that High Court committed an error in not giving benefit of doubt to the accused person.” (19) Reverting to the facts of the present case in light of the above principles of law laid down by their Lordships of the Supreme Court in above judgments, we will now find out as to whether the death of the deceased was homicidal in nature or not, which the learned trial Court did not gave any specific finding in this regard. However, in the PM report (Ex.P/13) the doctor did not state that the death of the deceased was homicidal in nature, indeed, it has been opined that the cause of death of the deceased is shock, due to electric current and time passed after the death is 24-36 hours. But, it has been held that the incriminating circumstance available in the case will decide the nature of the death. Dr. Jayant Toppo (PW-10), who conducted the postmortem of the dead-body of the deceased, in his court’s statement at Para-07 has also reiterated the fact that circumstantial evidence will decide the nature of the death. In cross-examination also he admitted the fact that circumstantial evidence will decide the nature of death of the deceased. He further stated that the injuries found over the body of the deceased may have occurred on account of accident, Page No.11 of 20 IN CRA-1307-2019 but he did not rule-out the fact that death of the deceased could be accidental. He also admitted that Injury No.01 & 07 could also be caused by way of water heater rod, whereas Injuries No.3, 4 & 5 may be caused on account of falling on or coming in contact with the rod and bucket. As such, on the basis of medical evidence available on record, it can safely be held that there is no conclusive evidence to show that death of the deceased was homicidal in nature, as it can be homicidal or accidental in nature. However, death to be homicidal is sine qua non for proving offence under Section 302 of IPC in light of the judgments referred to herein-above by us. We hereby hold accordingly. (20) Though, we have held that the prosecution could not establish that the death of the decesed to be homicidal in nature, yet we will consider whether the accused-appellant herein is the author of the crime in question, which the learned trial Court has answered in affirmative on the basis of following incriminating circumstances as culled out in Para-39 of the impugned judgment: 1. “ अभियु्ሹ तथा मृतितका घटना के समय एक साथ थे। 2. नजरी नक्शा ्ቚदश पी 06 एवं ्ቚदश पी 12 को चुनौती नहीं देने से घटनास्थल अभियु्ሹ के हाउिሺसग बो्ቑ कालोनी पटपर ाटापारा में ቝኌस्थत मकान का बाथरूम होना । 3. मृतितका के नहाते समय मृतितका का असामान्य परिरቝኌस्थतितयों में चोटिटल होकर मृत हो जाना। 4. अभियु्ሹ ्ቛारा मृतितका को ाटापारा में तात्कालिलक तिचटिकत्सा सहायता न टिदलाते हुये टिबलासपुर के अस्पताल ले जाये जाने का कथन Page No.12 of 20 IN CRA-1307-2019 करना। 5. अभियु्ሹ ्ቛारा मृतितका का वॉटर हीटर/ इमरसन रॉ्ቑ दुघटनावश मृत्यु होने का कथन करना, टिकन्तु जांच एवं परी्ቌण हेतु वॉटर हीटर को ज्቎ नहीं कराना। 6. मृतितका को आयी आठ टिव्ቕुत सम्पक के चोटों का अभियु्ሹ ्ቛारा उतिचत स्प्ቖीकरण ्ቚस्तुत नहीं करना । 7. अभियोजन साति्ቌयों के सम्ቌ अभियु्ሹ ्ቛारा चरिर्ቔ शंका पर मृतितका की हत्या करना स्वीकार करना तथा मृतितका के गु्቎ांग में टिव्ቕुत सम्पक ्ቛारा चोट पहुंचाये जाने जाने का जलने का टिनशान होना। 8. मृतितका को आयी चोट वॉटर हीटर के स्थान पर टिव्ቕुत के अनावरिरत तार के सम्पक में आ जाने से उत्प्ቐ िሜचगारी अथवा उष्मा से आयी चोटों के समान होना तथा सी चोटें मृत्यु पूव की होना। 9. टिववेचक ्ቛारा अभियु्ሹ के मेमोरेण््ቑम के आधार पर हत्या में ्ቚयु्ሹ ” टिव्ቕुत तार को ज्቎ टिकया जाना ्ቚमाभिणत करना। (21) Since the present case is based on circumstantial evidence, therefore, before proceeding further, 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 12 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 12 (1984) 4 SCC 116 Page No.13 of 20 IN CRA-1307-2019 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 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.” (22) We shall now consider the above-mentioned incriminating circumstances in light of the above-quoted principles of law laid down by their Lordships of the Supreme Court as also in light of the evidence available on record, in order to ascertain whether the appellant herein has rightly be held guilty for offence in question by the learned trial Court or not. As regards Incriminating Circumstances No.01 to 03 & 06: (23) The first and foremost incriminating circumstance which the Page No.14 of 20 IN CRA-1307-2019 learned trial Court has found proved is that since the dead-body of the deceased was found inside the bathroom of the house of the appellant and, at that time, the appellant and the deceased both were the only inmates in the house and, the appellant failed to explain as to how and in what manner his wife (deceased) suffered injuries and died, therefore, by invoking Section 106 of the Indian Evidence Act, 1872 (for short the “Evidence Act”) has held the appellant guilty for the offence in question. (24) In this regard, learned counsel for the appellant placed reliance upon the decision of the Supreme Court rendered in the matter of Shivaji Chintappa Patil v. State of Maharashtra 13 , in which, it has been held that Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt and observed in Para-23 & 24 as under: “23. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused. 24. In the present case, as discussed hereinabove, the 13 (2021) 5 SCC 626 Page No.15 of 20 IN CRA-1307-2019 prosecution has even failed to prove beyond reasonable doubt, that the death was homicidal.” (25) Admittedly, in the present case, the appellant and the deceased were in the house on the date and time of the offence and, as per the statement of Laxman Dhritlahre (PW-06) also, who was tenant of the appellant and residing in the first floor of the house, on the date and time of the incident, the appellant and the deceased both were residing in the house. Merely, because the appellant and the deceased both the staying together at the time of commission of the offence, it would not absolve the prosecution from discharging its primary burden of proving its case beyond reasonable doubt, which the prosecution has miserably failed to do so in the present case. But still the learned trial Court proceeded to invoke Section 106 of the Evidence Act for holding the appellant guilty for the offence in question, which is completely bad and erroneous under the facts and circumstances of the present case. Accordingly, since the prosecution failed to discharge it primary burden of proving its case beyond reasonable doubt, therefore, the learned trial Court is absolutely unjustified in applying Section 106 of the Evidence Act to convict the appellant herein (Also see: Anees v. The State Govt. of NCT14 and Manharan Rajwade v. State of Chhattisgarh 15 ) . We hereby hold accordingly. 14 2024 INSC 368 [Criminal Appeal No.437 of 2015, decided on 30.05.2024]CC 15 2024 INSC 560 Page No.16 of 20 IN CRA-1307-2019 As regards Incriminating Circumstance No.04: (26) The next incriminating circumstance that has been found proved by the learned trial Court is the conduct of the appellant, whereby after the incident, instead of escorting the deceased to hospital at Bhatapara, the appellant took her directly to the hospital at Bilaspur and, meanwhile, she succumbed to the injuries and died. However, the said conduct of the appellant comes whtihn the purview of “subsequent conduct”, which is relevant fact under Section 08 of the Evidence Act, but true it is that subsequent conduct of the appellant is relevant fact under Section 8 of IE Act and, merely on the basis of subsequent conduct, the appellant cannot be convicted that too for offence under Section 302 of IPC (See: Subramanya vs. State of Karnataka 16 [Para-89]). We hereby hold accordingly. As regards Incriminating Circumstance No.05: (27) The next incriminating circumstance that has been projected by the prosecution and found proved by the learned trial Court that though the appellant had taken defence that the deceased died on account of electrocution by coming into contact with water heater/immersion rod, but the said water heater/immersion rod has not been seized at his instance during the course of investigation. However, a careful perusal of the statement of 16 AIR 2022 SC 5110 Page No.17 of 20 IN CRA-1307-2019 Pritam Dahariya (PW-08) would show that though firstly he turned hostile with regard to nazari naksha (Ex.P/06) and seizure of article vide Ex.P/08 from Semariya Ghat, but in Para-04 he has clearly stated that one water heating rod was seized from the bathroom of the house of the appellant. Similarly, Tukaram Verma (PW-09) has reiterated the said version in Para-04 that one water heating rod was seized by the police from the bathroom of the house of the appellant. (28) The Supreme Court in the matter of Mukhtiar Ahmed Ansari v. State (NCT of Delhi) 17 relying upon its earlier decision in Raja Ram v. State of Rajasthan 18 has held that if a witness is not declared “hostile”, it is always open to the defence to rely on the evidence of the said witness and same will be binding on the prosecution. As such, the finding recorded by the learned trial Court that thought the appellant has taken defence that the deceased died accidentally by coming into contact with water heater rod, but the said water heater rod has not been seized at his instance, is contrary to the well settled law rendered in the decisions of Mukhtiar Ahmed Ansari (supra) and Raja Ram (supra) and also perverse to the record. We hereby hold accordingly. As regards Incriminating Circumstances No.07: 17 (2005) 5 SCC 258 18 (2005) 5 SCC 272 Page No.18 of 20 IN CRA-1307-2019 (29) Similarly, the learned trial Court has also relied upon the aspect of the appellant giving extra-judicial confession to Prem Das (PW-01), Shiva Jangade (PW-02) and Augast Das Koshle (PW- 03). However, a careful perusal of the statements of these witnesses would show that fistly Prem Das (PW-01) and Shiva Jangade (PW-02), both have stated that on being enquired from the appellant, he informed that he caused murder of his wife (deceased) by electrocuting her and, secondly, Augast Das Koshle (PW-03) has stated in Para-04 that on the next day of the date of incident, when police party came to the house of the appellant and enquired from him about the incident, then he stated that he caused murder of his wife by electrocuting her. As such, in our considered opinion, the same cannot be said to be extra-judicial confession for the simple reason that the same is inadmissible in evidence in light of Section 25 of the Evidence Act. Even otherwise, it is the settled principle of criminal jurisprudence that extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a Page No.19 of 20 IN CRA-1307-2019 conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. [See : Sahadevan and another v. State of Tamil Nadu 19 ]. We hereby hold accordingly. As regards Incriminating Circumstances No.08 & 09: (30) The last incriminating that has been found proved by the learned trial Court is that pursuant to the memorandum statement of the appellant recorded vide Ex.P/07, one GI wire was recovered vide Ex.P/09. However, the witnesses to the said memorandum and seizure, namely, Pritam Dahariya (PW-08) and Tukaram Verma (PW-09) have not supported the case of the prosecution to that extent and have turned hostile. Therefore, the recovery of said GI wire is of no help to the prosecution more particularly when it is not the case of the prosecution that said GI wire is of such a unique design or quality or workmanship, which belongs to only and only to the appellant or the same is not easily available in the market (See: Digamber Vaishnav and another v. State of Chhattisgarh 20 [Para-37]). We hereby hold accordingly. (31) In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in 19 (2012) 6 SCC 403 20 (2019) 4 SCC 522 Page No.20 of 20 IN CRA-1307-2019 the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting both the appellants for offences under Sections 302 of IPC being the perpetrator of the crime in question in light of the incriminating circumstances culled out in Para-39 of the impugned judgment and same are liable to be set aside. (32) Accordingly, we hereby set aside the conviction so recorded and the sentence so awarded by the trial Court to the appellant vide the impugned judgment dated 07.08.2019. The appellant is acquitted of the charges under Sections 302 & 201 of the IPC on the basis of benefit of doubt. The appellant is reported to be in jail, therefore, we direct that he be released from jail forthwith, if not required is any other offence/crime. (33) This criminal appeal is allowed. (34) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge s@if