1 2025:CGHC:6494-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1983 of 2019 {Arising out of judgment dated 23.11.2019 passed in Sessions Trial No.20/2018 by the learned Additional Sessions Judge (F.T.C.) Mahasamund} Chamman Lal Dhruw, S/o. Late Shri Supet Singh Dhruw, Aged About 33 Years, R/o. Village Jhal Khamhariya, Police Station Mahasamund, District Mahasamund, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Police Station House Mahasamund, District Mahasamund, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellant : Mr. Ashok Verma, Advocate with Mr. Gajendra Sahu, Advocate For Respondent : Mr. Vivek Mishra, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (05.02.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.02.06 16:58:31 +0530 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant (A-1) under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 23.11.2019 passed by learned Additional Sessions Judge (F.T.C.) Mahasamund in Sessions Trial No.20/2018, by which while acquitting the other accused Dularibai (A-2) for the offence under Section 201/34 of I.P.C., the appellant has been convicted and sentenced as under : CONVICTION SENTENCE U/s. 302 of I.P.C. : Life imprisonment with fine of Rs. 1000/- in default of payment of fine, additional rigorous imprisonment for 1 month. U/s. 201/34 of I.P.C. : Rigorous imprisonment for 5 years with fine of Rs.1000/-, in default of payment of fine, additional rigorous imprisonment for 1 month. Both the sentence to run concurrently. 2. Case of the prosecution, in short, is that in the intervening night of 27.01.2018 at about 8:15 P.M. to 28.01.2018 at 7:00 A.M. at village Jhal Khamariya, Police Station- Mahasamund, District Mahasamund, the appellant herein caused murder of his brother Lalit @ Lokeshwar (now 3 deceased) by Lathi & Iron Pan and in order to screen himself from the legal punishment put the dead body into the jute bag and threw it near Leelabandha Talab; thereby the offence has been committed. The matter was reported to the police, pursuant to which, Merg Intimation was registered vide Ex.P-1, dead body identification panchnama was prepared vide Ex.P-2, FIR was registered vide Ex.P-30, Spot Map was prepared vide Ex.P-4, Inquest was conducted vide Ex.P-6 and dead body of deceased Lalit @ Lokeshwar was subjected to post-mortem, which was conducted by Dr. Girdhari Chandrakar (PW-17), who proved the post-mortem report vide Ex.P-40, according to which, cause of death was stated to be cardio respiratory failure due to injury to vital organ brain and severe haemorrhage and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-21, weapon of offence i.e. iron pan was recovered vide Ex.P-23, which was sent for chemical examination to FSL along-with other seized articles and as per the FSL report (Ex.P-39), human blood was found on the seized iron pan and other articles. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his 4 guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 18 witnesses and exhibited 40 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Sections 302 & 201/34 of I.P.C. and sentenced as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Mr. Ashok Verma, learned counsel for the appellant, would submit that the incriminating circumstances which have been culled out by the trial Court in paragraph 46 of the impugned judgment are not at all established beyond reasonable doubt and, as such, the appellant is entitled for acquittal on the ground of benefit of doubt and the appeal deserves to be allowed. 6. Mr. Vivek Mishra, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable 5 doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and, as such, the appeal deserves to be dismissed. 7. The wife of appellant herein namely Dularibai Dhruw (A-2) was charged for the offence under Section 201/34 of I.P.C. but she has been acquitted by the impugned judgment, which has not been questioned by the State and that has become final. 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 question for consideration as to whether the death of deceased Lalit @ Lokeshwar was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-40, proved by Dr. Girdhari Chandrakar (PW-17), according to which, cause of death was stated to be cardio respiratory failure due to injury to vital organ brain and severe haemorrhage and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 6 10. The case of the prosecution is not based on direct evidence, it is based on circumstantial evidence. The five golden principles which constitute the 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 v. State of Maharashtra 1 , which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 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: (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 Maharashtra2 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. 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 7 (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.” 11. The trial Court has culled out the following incriminating circumstances in paragraph 46 of its judgment, which states as under : “46- mijksDr lk{; fo'ys"k.k ds vk/kkj ij ;g Li"V :i ls nf'kZr gS fd vfHk;qDr pEeu ds fo:) fuEufyf[kr ifjfLFkfrtU; lk{; izekf.kr ik;k x;k gSA 1& Lora= vfHk;kstu lkf{k;ksa o foospd }kjk vkjksihx.k ds ?kj esa fofHkUu oLrqvksa izn'kZ A,B,D,E,F,G,H,I,J,K,L,M,N,O, P,Q,R,S :bZ] cksjk dk VqdM+k] pM~Mk] iSjnku] rlyk] feV~Vh] lhesaV dkaØhV] cYc] inkZ] nhokj] ?kM+h] yksVk] ckYVh] nhoky dh [kjksp] feV~Vh ,oa rok esa jDr ds /kCcs ik;s tkuk A 2& cpko i{k dh vksj ls mDr laca/k esa dksbZ Li"Vhdj.k izLrqr ugha fd;k tkuk A 3& ,Q0,l0,y0 fjiksVZ izn'kZ ih&39 ds vuqlkj mDr jDr dks ekuo jDr gksuk crk;k tkukA 8 4& nsoarhuckbZ ¼v0lk0 04½ }kjk ?kVuk dh jkf= dks vfHk;qDr nqykjh }kjk mlds ifr pEeu ,oa e`rd ds e/; yM+kbZ >xM+k gksus dh ckr crk;k tkukA 5& lR;ukjk;.k nqcs ¼v0lk0 05½ }kjk ?kVuk dh jkf= es fdlh efgyk ;k cPPkksa dh ph[k lquukA 6& e`rd yfyr ,oa vfHk;qDrx.k dk ,d gh ?kj esa fuokljr gksuk A 7& vfHk;qDrx.k }kjk e`rd yfyr dh e`R;q fdl izdkj gqbZ] bl laca/k esa dksbZ Li"Vhdj.k izLrqr djus esa vlQy jguk ,oa vlR; Li"Vhdj.k izLrqr fd;k tkukA” 12. In order to consider the correctness of the findings so recorded by the trial Court, we will consider the aforesaid incriminating circumstances one by one. 13. The first incriminating circumstance that appellant herein, acquitted accused Dularibai and deceased Lalit @ Lokeshwar all three were residing in the house in question and since the appellant has not explained as to how and in what circumstances, deceased Lalit has died, it has been taken to one of the incriminating circumstance relying upon Section 106 of the Indian Evidence Act to base conviction of the appellant ? 14. 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.” 9 15. The said provision states that when any fact is specially within the knowledge of any person the burden of proving 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. 16. In the matter of Balvir Singh v. State of Uttarakhand 3 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 3 2023 SCC OnLine SC 1261 10 the onus lies on the prosecution to prove the guilt of the accused is not in 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 11 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 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 traveling without a ticket was possessed of a 12 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 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? 13 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 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.” 17. Similarly, In the matter of Anees v. The State Govt. of NCT4, 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 4 2024 SCC Online SC 757 14 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 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? 15 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. 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 16 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 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 17 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 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.” 18 18. Recently, in the matter of Manharan Rajwade v. State of Chhattisgarh 5 their Lordships of the Supreme Court on the point of Section 106 of the IEA have held in paragraph 7 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.” 19. Reverting to the facts of the present case in light of the aforesaid principles of law, it is quite vivid that though the trial Court has recorded a finding that deceased and two accused were residing in the same house but the acquitted accused Dularibai was only charged for the offence under Section 201/34 of I.P.C. and she has been acquitted by the impugned judgment holding that she was not present before and after the time of incident in the house in question and then proceeded to convict the appellant herein for the offence under Section 302 & 201/34 of I.P.C. 5 2024 INSC 560 19 20. It is the contention of learned counsel for the appellant that the theory of last seen together is not established at all, as it is based on the statement of Devantin Bai (PW-4). Devantin Bai (PW-4) has stated that the present appellant, acquitted accused and deceased all three were residing in the house in question, but in the cross-examination in para 6, she has stated that in the night, wife of appellant Dulari Bai came in her house to sleep, as deceased Lalit was quarreling with her husband Chamman (appellant herein). However, in the cross-examination in para 12, she has stated that not only Dularibai, her husband Chamman (present appellant) and their children also came in her house to sleep and in para 15 she has said that on the date & time of offence, which of the persons were there in the appellant's house, she cannot say clearly. However, in the statement recorded under Section 313 of Cr.P.C., it has not been clearly put a question to the accused that on the date & time of offence, he and deceased Lalit both were stayed in the house and no one else was there. As such, the prosecution has clearly failed to establish that on the date & time of offence, appellant and deceased both were alone in the house and no one else was there, as the trial Court has recorded a contradictory finding in para 46.6 and para 55 of its judgment. As such, the prosecution has clearly 20 failed to establish that the appellant and deceased both were alone in the house and none else was there. 21. The next circumstance is that Devantin Bai (PW-4) had seen the appellant Chamman and Dulari Bai (acquitted accused) and deceased Lalit all three were quarreling. However, in this regard, the trial Court has again recorded a contradictory finding as Dulari Bai has been acquitted for the offence under Section 201/34 of I.P.C. in para 55 of its judgment holding that it could not be established that at the time of offence or immediately thereafter, Dulari Bai was in the house and acquitted her for the aforesaid offence. 22. Similarly, Satyanarayan Dubey (PW-5) has stated before the Court that on the date and time of offence, he heard the cry of some woman/children, however, it is of no use to the prosecution. 23. The last incriminating circumstance that has been found proved by the trial Court is that in the house of the appellant from various articles A,B,D,E,F,G,H,I,J,K,L,M,N, O,P,Q,R,S :bZ] cksjk dk VqdM+k] pM~Mk] iSjnku] rlyk] feV~Vh] lhesaV dkaØhV] cYc] inkZ] nhokj] ?kM+h] yksVk] ckYVh] nhoky dh [kjksp] feV~Vh ,oa rok, human blood was found vide Ex.P-39 (FSL report). 21 However, iron pan has been recovered pursuant to memorandum statement of the appellant but the memorandum witnesses Virsingh Nishad (PW-11) and Ashok Kumar (PW-12) have turned hostile and they have not supported the case of the prosecution and mainly because on the iron pan, human blood has been found, the conviction cannot be sustained in light of the decision of the Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh 6 by relying upon its earlier decision rendered in the matter of Mustkeem Alias Sirajudeen v. State of Rajasthan7, wherein Their Lordships of the Supreme Court have clearly held that sole circumstance of recovery of blood-stained weapon cannot form the basis of conviction unless the same is corroborated with other piece of incriminating circumstances that too for the offence under Section 302 of I.P.C. 24. 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 the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court 6 2024 SCC Online SC 67 7 (2011) 11 SCC 724 22 is unjustified in convicting the appellant for offences under Section 302 & 201/34 of I.P.C. being the perpetrator/ author of the crime in question in light of the incriminating circumstances culled out in para 46 of the impugned judgment and same are liable to be set aside. 25. Accordingly, the impugned judgment of conviction and order of sentence dated 23.11.2019 is set aside. The appellant stands acquitted giving him benefit of doubt from the charge framed against him for the offence punishable under Section 302 & 201/34 of I.P.C. The appellant is reported to be in jail, therefore, we direct that he be released from jail forthwith, if not required in any other offence. 26. In the result, the appeal is allowed. 27. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok