1 2025:CGHC:57704-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1531 of 2024 Satyanarayan Rajwade @ Sundur S/o Ramjatan Rajwade Aged About 24 Years R/o Village- Lahpatra (Akhra Tikrapara), Police Station- Lakhanpur, District- Sarguja, C.G. ... Appellant versus State of Chhattisgarh Through - Station House Officer, Police Station- Lakhanpur, District- Sarguja, C.G. ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Anmol Sharma, Advocate For Respondent/State : Mr. Soumya Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 27 . 11 .202 5 1. This criminal appeal under Section 415 (2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘BNSS’) is directed against the judgment of conviction and order of sentence dated 28.06.2024 passed by the learned 1st Additional Sessions Judge, Ambikapur, District – Sarguja (C.G.) in Sessions Trial No.49/2022, whereby the learned trial Court has convicted the appellant for ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 offence punishable under Sections 302 of the IPC and sentenced him to undergo life imprisonment & fine of Rs.500/-, in default of payment of fine, additional R.I. for 03 months. 2. Case of the prosecution, in brief, is that complainant Trilochan Rajwade (PW-1) lodged a First Information Report at the Lakhanpur Police Station on 17.11.2021 stating that the his younger brother Ajay Kumar Rajwade had left home on 16.11.2021 at about 15:30 hrs. and had not returned home till evening. His mobile phone was lost on 15.11.2021, due to which his whereabouts were not known. His friend Brijesh, who was in the village, was also not known. On 17.11.2021, at 6 a.m., Punit Rajwade of the village reported that Ajay Rajwade was lying dead and covered in blood on the road near the village hospital in Lapatara. Blood oozed from his ears and nose and was spread on the ground. Upon hearing of the incident, family members, including his father Shivprakash, son Yadaram, and neighbors went to inspect him. He was found murdered by an unknown person by inflicting severe head injuries with a hard object. 3. Trilochan Rajwade (PW-1) reported the matter to Lakhanpur police station, where inquest report Ex.P.-1 was registered and considering the nature of death, FIR Ex.P.-2 was also registered against unknown person under section 302 IPC simultaneously. 4. After summoning the witnesses vide Ex.P-3A, inquest over the dead body of the deceased was prepared vide Ex.P.-3 and the 3 dead body of the deceased was sent to Community Health Centre, Lakhanpur for conducting postmortem of the body vide Ex.P-15, wherein postmortem was conducted by Dr. Sameer Shrivastava (PW-12), who found following injuries : (i) Bleeding under the scalp on right parietal, temporal and occipital region; (ii) Multiple fractures on right side of skull on right parietal temporal and occipital region; (iii) Extradural and subdural hemorrhage over right parieto- temporal occipital region approx 15cm x 10 cm; and (iv) Diffuse intracerebral hemorrhage on right parieto- temporal occipital region. The Doctor opined that the cause of death was hemorrhagic shock due to blunt force head injury most likely and the mode of death is homicidal in nature. The postmortem report is marked as Ex.P-24. 5. During the investigation, Patwari Panchnama of the incident spot Ex.P.-5 and Sight Map Ex.P.-6 were prepared. Plain soil and blood stained soil were recovered from the incident spot in the presence of witnesses Muneshwar Rajwade (PW-3) and Anand Ram Rajwade and seizure memo Ex.P.-10 was prepared. During the investigation, Durga Rajwade (PW-6) of the village informed the Investigating Officer that on the night of the incident, deceased Ajay Rajwade and accused Sundur alias Satyanarayan had come to her house, but she had refused to meet him from inside the house as he was drunk. Then the deceased and the accused and 4 Ramprasad, who had come at the same time, all three together went to Sunil Chaudhary's house to drink more alcohol. Ramprasad (PW-5) told during interrogation that accused Sundur had killed the deceased by hitting him with a stick. Later, Ramprasad's written statement Ex.P.-13 was also recorded before the Judicial Magistrate. 6. The Investigating Officer took the accused Sundur alias Satyanarayan into judicial custody and after questioning him in the presence of witnesses Muneshwar Rajwade (PW-3) and Panmeshwar Rajwade (PW-1), recorded his memorandum statement vide Ex.P.-7. Based on the information given by the accused, a dry wooden peg/stick was seized from near the Lahapatara culvert in the presence of the same two witnesses and seizure memo Ex.P.-4 was prepared. On production of the accused, the clothes worn at the time of the incident were seized as seizure memo Ex.P.-1 and the clothes of the deceased Ajay Rajwade were also seized and seizure memo Ex.P.-17 was prepared. The wooden peg/stick used in the incident was examined. According to the query report Ex.P.-25 given by the doctor, it was possible that the blow that hit the deceased came from the said stick. The materials recovered in the case were sent to the FSL for chemical testing. FSL report Ex. P-22 is attached. 7. Statements of the witnesses were recorded and after completion of investigation, charge-sheet was filed against the accused under Section 302 of the IPC in the Court of Judicial Magistrate First 5 Class, Ambikapur, from where the case sent to the Court of Sessions Judge, Ambikapur, wherefrom the case was received on transfer to the Court of 1st Additional Sessions Judge, Ambikapur for trial. 8. During the trial, charges were framed against the accused under Section 302 of the IPC. The accused denied the said charge and sought trial. Then, in support of its case, the prosecution examined 18 witnesses including Trilochan Rajwade (PW-1), Yad Ram (PW-2), Muneshwar Rajwade (PW-3), Ram Bharosh (PW-4), Ram Prasad (PW-5), Durga Rajwade (PW-6), Sunil Ram Chaudhary (PW-7), Ram Bihari Singh (PW-8), Panmeshwar (PW-9), Sandeep Kaushik (PW-10), Mohd. Shamim Ansari (PW-11) and Dr. Sameer Srivastava (PW-12). Documents from Ex.P-1 to Ex.P.25 were presented as documentary evidence. 9. In the trial, under Section 313 of the CrPC, though the accused had declared himself as innocent and stated that he been falsely implicated, but he did not give any evidence in their defence. 10. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 28.06.2024 has convicted and sentenced the accused/appellant as mentioned in opening paragraph of this judgment, against which, this criminal appeal has been preferred by the accused/appellant. 11. Mr. Anmol Sharma, learned counsel for the appellant vehemently argued that there is no eyewitness of the incident and the case prosecution is based on the circumstantial evidence, but the 6 learned trial Court has failed to consider that the chain of circumstance is not complete, which is a requirement under the law. The motive of the offence has also not been proved by the prosecution. He further argued that the learned trial Court has also failed to appreciate that the conviction cannot be based merely on the basis of memorandum statement and subsequent seizures, especially when the motive of the offence has not been proved and they are merely corroborative piece of evidence and cannot be the sole basis to convict the appellants. In this regard, reliance has been placed in the matter of Bijender Vs. State of Haryana1. It has been further submitted that the FSL report only states that human blood has been found, but the blood group of the same has not been determined, as such the same cannot be made basis for conviction. In this regard, reliance has been placed in the case of Madhav Vs. State of M.P.2. He also argued that most of the witnesses of the incident are interested witnesses, but there are contradictions, omissions and improvements in their statements. He would also submits that witness of last seen together Durga Rajwade (PW-6) has also not supported the case of prosecution. As such, conviction without any evidence is unsustainable and liable to be set aside. 12. On the other hand, Mr. Soumya Sharma, learned Panel Lawyer, appearing for the State/respondent opposed the aforesaid submission and submitted that the conviction of the appellant is 1 (2022) 1 SCC 92 2 2021 SCC OnLine SC 613 7 based circumstantial evidence and the prosecution during investigation recorded the statements of the prosecution witnesses in which they have categorically deposed in their statements regarding conduct and commission of offence by the appellant, which is concurrent evidence against the appellant and thus, the learned trial Court has rightly convicted and sentenced the accused/appellant. Therefore, the instant appeal deserves to be dismissed. It has been further submitted that the learned trial Court has come to the conclusion regarding involvement of the accused / appellant in the crime in question under the concluding paras of the judgment in which the learned trial Court has observed all incriminating circumstances against the accused / appellant, which connect him with the instant crime and chain of circumstances are fully linked and completed with each other. Thus, the prosecution has proved its case beyond reasonable doubt and the judgment of the trial Court is just and proper and does not call for any interference by this Court and as such, criminal appeal deserves to be dismissed. 13. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 14. Conviction of the accused-appellant is substantially based on the circumstantial evidence, recovery of peg/stick and the jacket worn by the accused during the incident, in which human blood was present and last seen theory as stated by PW-6 Durga Rajwade. 8 15. The first question for consideration would be, whether death of deceased Ajay Kumar Rajwade was homicidal in nature ? 16. The trial Court, after appreciating oral and documentary evidence available on record particularly relying upon the statements of Dr. Sameer Shrivastava (PW-12), who had conducted postmortem over the dead body of the deceased Ajay Kumar Rajwade vide Ex.P-24, has come to the conclusion that cause of death of the deceased was homicidal in nature. After hearing learned counsel for the parties and after considering the submissions advanced by learned counsel for the parties, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Ajay Kumar Rajwade was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm the said finding. 17. The next question for consideration would be, whether recovery of peg/stick and the jacket worn by the accused during the incident at the instance of accused pursuant to memorandum statement of the accused is admissible and it can be used against him or not ? 18. Memorandum statement of the accused/appellant (Ex.P-7) has been proved by the Investigating Officer Sandeep Kaushik (PW-10) and on that basis, the appellant has been convicted. 19. A careful perusal of memorandum statement of the appellant 9 (Ex.P-7) would show that it has been recorded by Investigating Officer Sandeep Kaushik (PW-10) at Community Health Centre, Lakhanpur in presence of two panch witnesses Muneshwar Rajwade (PW-3) and Panmeshwar Rajwade (PW-9) in which the appellant was said to have stated as under : “He live in village Akhra Tikra Para of village Lahpatra and work as a labourer and play the sound system of Lochan Rajwade of village Mendra Kalan in every village. On 16.11.2021 at around 12 o'clock in the night, while he was returning home after gambling from Palgadi, then Ajay Rajwade was sitting in Bhitka behind Durga Rajwade's house, whom he met, who said to him, how he was, then he said okay, at the same time Ramprasad Rajwade came from Ramnath Rajwade's house and said what you guys were doing here, let's go and drink wine, then they went to Sunil Chaudhary’s house to search for wine, when they did not get wine, then all three of them were going back home, as soon as they reached near the old building of the village hospital, Ajay Rajwade said to Ramprasad Rajwade, his motorcyle is standing in the shade at Nandu's house, give it to him, then while Ramprasad Rajwade, was going to bring the motorcyle of Ajay Rajwade, at that very moment a dispute started between him and Ajay Rajwade regarding an old matter, so he picked up the stick lying there and hit Ajay twice on the back of his head, Ajay fell on the ground, then Ramprasad came towards him and started saying why did he kill Ajay Rajwade, then he said you run away from here or else he will kill him too, then Ramprasad ran away from there, after that he went to Sunil Chaudhary's house, Ramprasad Rajwade 10 was already sitting in his house, then Sunil Chaudhary asked him why did he kill Ajay, he said he had an old animosity with Ajay Rajwade, that's why he killed him, after that he went to the well near Sunil Chaudhary's house, in which he washed his hand and feet and ran away, the stick with which he killed Ajay Rajwade, he had thrown that stick in a pit in the field near Lahkhatra culvert on the side of the main road (main route from Anupur to Bilaspur), come with him, he will find it and give it to him.” 20. At this stage, it would be appropriate to notice Section 27 of the Indian Evidence Act, 1872, which states as under: - “27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 21. Section 27 of the Indian Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered. 22. The Supreme Court in the matter of Asar Mohammad and others v. State of U.P.3 with reference to the word “fact” employed in Section 27 of the Evidence Act has held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical 3 AIR 2018 SC 5264 11 material object”. It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor4 observed as under: - “13. It is a settled legal position that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of Maharashtra reported in (2015) 1 SCC 253, in particular, paragraph 23 thereof. The same read thus: “23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor (supra) has held thus: (IA p. 77) “... it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the 4 AIR 1947 PC 67 12 place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. xxx xxx xxx xxx xxx xxx xxx xxx xxx” 23. Reverting to the facts of the case in light of the principles of law laid down by their Lordships of the Supreme Court in Asar Mohammad (supra), only discovery of an object, the place from which it is produced and knowledge of the accused as to this extent would be admissible and incriminating part of the accused statement that he has inflicted injuries to deceased would not be admissible under Section 27 of the Evidence Act. In the present 13 case, no incriminating article has been seized pursuant to the memorandum statement of the appellant (Ex.P-14). As such, that part of evidence would not be admissible. 24. The Supreme Court in the matter of Aghnoo Nagesia v. State of Bihar5 has clearly held that confession to police whether in course of investigation or otherwise and confession made while in police custody would be hit by Section 25 of the Evidence Act and observed as under:- “9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Ss. 24 to 30 of the Evidence Act and Ss. 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in Ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides : "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of S. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has 5 AIR 1966 SC 119 14 begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by S. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Ss. 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of S. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under S. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by 15 S. 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under S.25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by S. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.” Their Lordships further held as under:- “18. If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of S. 25 is lifted by S.27” 25. In the case in hand, confessional statement (Ex.P-7) made by the appellant before the police officer is hit by Section 25 of the Evidence Act and no part of it is admissible under Section 27 of the Evidence Act. As such, we are of the considered opinion that alleged memorandum statement of the appellant (Ex.P-7) is hit by 16 Section 25 of the Evidence Act and no part of it is admissible under Section 27 of the Evidence Act in view of decisions rendered by Privy Council in Pulukuri Kotayya (supra) followed by the the Supreme Court in Asar Mohammad (supra). Even otherwise, no other incriminating piece of evidence is available on record to convict the appellant for offence under Sections 302 of the IPC. 26. Now the next question for consideration would be whether the trial Court is justified in convicting the appellant only on the basis of theory of 'last seen together' as stated by Durga Rajwade (PW-6), finding it to be duly established ? 27. Durga Rajwade (PW-6), who is stated to witness of last seen, has stated in her examination-in-chief that she know the accused, Satyanarayan alias Sundur, who is from his village. She also know the deceased, Ajay Kumar Rajwade alias Bandhiya, who is the son of her sister-in-law's sister. Therefore, she know him. She further stated that the incident occurred approximately one and a half years ago. The deceased Ajay would occasionally visit her sister-in-law’s house in her village. She had lent Ajay three to four thousand rupees two to four months ago. He had come to her to return the money. At that time, the accused Sundur and Ramprasad arrived and told Ajay to go for a drink and then took him with them. She also stated that the police took her statement; the photo attached to the statement is mine. The next morning, she learned that Ajay Singh had been murdered. This witness in 17 paragraph 6 of her cross-examination has specifically admitted that the house in which she live has only one door in the front and there is no other door. She further admitted that there is no door or window at the back of the house. She denied that without seeing the person going from the back of the house, it cannot be known who is coming or going. She further admitted that she did not see any person coming or going from the back. The witness voluntarily says that she can identify by the voice. In paragraph 7 of her cross-examination, this witness has admitted that she met the deceased Ajay occasionally. She further admitted that she did not have much interaction or conversation with the deceased Ajay. She also admitted that she did not meet the deceased Ajay on 16.11.2021 and did not see the deceased Ajay with her own eyes. 28. The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 6 has clearly laid down the factors to be taken into account in adjudication of cases of circumstantial evidence, which states as under :- “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (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; 6 (1984) 4 SCC 116 18 (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.” 29. In the matter of Arjun Marik v. State of Bihar7, it has been held by their Lordships of the Supreme Court have held that conviction cannot be made solely on the basis of theory of 'last seen together' and observed in paragraph 31 as under :- “31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to though a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.” 30. Likewise in the matter of State of Goa v. Sanjay Thakran 8 the Supreme Court has held that the circumstance of last seen together would be a relevant circumstance in a case where there 7 1994 Supp (2) SCC 372 8 (2007) 3 SCC 755 19 was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was observed in paragraph 34 as under :- “34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the 20 circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. ” 31. Similarly in the matter of Kanhaiya Lal v. State of Rajasthan 9 , their Lordships of the Supreme Court have clearly held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the appellant. It has been held in paragraphs 15 and 16 as under :- “15. The theory of last seen – the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be 9 (2014) 4 SCC 715 21 maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan10. 16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise.” 32. Finally in the matter of Anjan Kumar Sarma v. State of Assam 11 their Lordships of the Supreme Court have clearly held that in a case where other links have been satisfactorily made out and circumstances point to guilt of accused, circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction. 33. Reverting to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court particularly in the matter of Anjan Kumar Sarma (supra), it is quite established that the prosecution has only proved that death of deceased Ajay 10 (2010) 15 SCC 588 11 (2017) 14 SCC 359 22 Kumar Rajwade was homicidal in nature and no other incriminating circumstance which leads to the hypothesis of guilt against the appellant have been proved. The evidence of Durga Rajwade (PW-6), with regard to last seen together was not admissible as in paragraph 7 of her cross-examination, she has specifically admitted that she did not meet the deceased Ajay on 16.11.2021 and did not see the deceased Ajay with her own eyes, whereas the another witness Trilochan Rajwade (PW-1) and Yad Ram are the hearsay witness, the prosecution has failed to establish the chain of circumstantial evidence. 34. Now the next circumstance that the trial Court has found proved and which has also been made basis for conviction of the appellant is that stick and jacket were recovered from the possession of the appellant vide Ex.P-8 and Ex.P-9 respectively, on which human blood was found. True, it is that pursuant to memorandum statement of the appellant (Ex.P-7), stick was seized vide Ex.P-8 and jacket was seized vide Ex.P-9, which were sent for chemical examination to the State Forensic Laboratory vide Ex.P-20 and vide report dated 29.12.2021 (Ex.P-22) it has been reported that in stick and jacket, human blood was found. However, the same were not sent for Serology test and as such, it is not proved that blood found in stick and jacket was blood of deceased Ajay Kumar Rajwade. 35. At this stage, pertinent decision of the Supreme Court on this point in the matter of Balwan Singh v. State of Chhattisgarh 23 and another 12 may be noticed herein, in which the Supreme Court has summarized the law on this point after taking into the decision of the Supreme Court (Constitution Bench) in the matter of Raghav Prapanna Tripathi v. State of U.P.13. In Raghav Prapanna Tripathi (supra), the Constitution Bench of the Supreme Court has held that in case the prosecution needed to prove that the bloodstains found on the earth or the weapons were of a human origin and were of the same blood group as that of the accused. 36. The aforesaid decision of the Supreme Court i.e. Raghav Prapanna Tripathi (supra) was followed in Balwan Singh (supra) in which it was observed as under:- “23. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match.” 37. Thereafter, the Supreme Court in Balwan Singh (supra) relying upon the fact that the prosecution has failed to prove that the blood was of human origin declined to rely upon the aspect of recovery of the weapons from the accused therein. It was observed as under:- 12 (2019) 7 SCC 781 13 AIR 1963 SC 74 24 “24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.” 38. Reverting to the facts of the present case as the prosecution has failed to prove that the blood found on stick (Article 'C') and jacket (Article 'D') was of blood of the deceased Ajay Kumar Rajwade. These circumstances cannot be held to be found proved against the accused / appellant, whereas it has been taken as an adverse circumstance and incriminating evidence by the trial Court. 39. Furthermore, the trial Court has also held that since multiple fractures have been found over the temporal parieto occipital region of deceased Ajay Kumar Rajwade, which can be caused by the accused / appellant, we are of the considered opinion, unless it is proved that the appellant has caused injuries, it cannot be taken as adverse incriminating circumstance to convict the appellant / accused for offence under Section 302 of the IPC. 40. Finally, reverting to the facts of the present case, since motive for the aforesaid offence has not been proved except there was some previous animosity between the appellant and the deceased, which the appellant himself has stated in his memorandum statement recorded under Section 27 of the Evidence Act, motive has not been established, particularly the evidence of Durga 25 Rajwade (PW-6), with regard to last seen together was not admissible as in paragraph 7 of her cross-examination, she has specifically admitted that she did not meet the deceased Ajay on 16.11.2021 and did not see the deceased Ajay with her own eyes, whereas the another witness Trilochan Rajwade (PW-1) and Yad Ram are the hearsay witness. Moreover, human blood found on stick (Article 'C') and jacket (Article 'D') was not further established to be blood of the deceased Ajay Kumar Rajwade without there being any Serologist report. As such, it would be unsafe to convict the appellant for offence under Section 302 of the IPC and the learned trial Court has committed legal error in convicting the appellant under Section 302 of the IPC as the prosecution has failed to prove the offence under Section 302 of the IPC beyond reasonable doubt. 41. As a fallout and consequence of the aforesaid legal analysis, the criminal appeal filed on behalf of appellant – Satyanarayan Rajwade @ Sundur is allowed. Impugned judgment of conviction and order of sentence dated 28.06.2024 passed by the learned 1st Additional Sessions Judge, Ambikapur, District – Sarguja (C.G.) in Sessions Trial No.49/2022, convicting and sentencing the appellant for offence under Sections 302 of the IPC is hereby set aside. The accused /appellant is acquitted of the said charge levelled against him. He is in jail. He shall be set at liberty forthwith if no longer required in any other criminal case. 42. The appellant is directed to file personal bond and two sureties 26 each in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973. 43. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra