High Court allowed the criminal appeal in a murder case, acquitting the accused as the prosecution failed to establish a complete chain of evidence. The court found the DNA report and knife recovery insufficient and inconsistent with the acquitted rape charge.
Appellant acquitted of murder charge and directed to be released from jail forthwith.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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2024:CGHC:31959-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1823 of 201 8
(Arising out of judgment dated 07.07.2018 passed in Sessions Trial No. 82/2017 by the learned Sessions Judge, Balod)
Neelmani Sahu @ Mani S/o Devi Prasad Sahu, aged about 30 years, R/o Village Nahar Khapri, P.S. Ranchirai, District – Balod, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh, Through – P.S. Gunderdehi, District – Balod, Chhattisgarh.
---Respondent
| For Appellant |
:- Ms. Aditi Singhvi, |
Advocate through |
|---|---|---|
| Video Conferencing | and | |
| Ms. Chetna Sharma | , Advocate. | |
| For State-Respondent | :- Mr. Sharad Mishra, |
Panel Lawyer. |
Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment on Board (22.08.2024 )
Sanjay K. Agrawal, J.
1 . This criminal appeal filed by the appellant-accused, under
Section 374(2) of Cr.P.C., is directed against the impugned
Digitally signed by HEERA LAL SAHU Date: 2024.08.24 15:02:54 +0530
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judgment of conviction and order of sentence dated 07.07.2018, passed by learned Sessions Judge, (in-charge F.T.C.) Balod, District - Balod (C.G.) in Sessions Trial No. 82/2017, whereby the appellant has been convicted for offence punishable under Sections 302 of IPC and sentenced to undergo life imprisonment with fine of Rs. 1000/- and in default of payment of fine amount additional rigorous imprisonment for six months.
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accused took her on his motorcycle to Jhalmala via Bhatgaon's big canal and from there, sitting in a field at some distance, both of them again had physical relations with each other and then from there they reached the bank of Haldi Khar canal where the accused ate food, the deceased did not eat food, after this, the deceased started insisting that the accused take her home with him and keep her as his wife, then the accused/appellant stabbed her with a knife and injured her neck and throat, then the accused strangled the deceased to death, the next day i.e. 20.05.2017 the body of the deceased was found lying in Chumman Satnami's paddy field on the bank of Haldi Khar Tandula canal, the Kotwar, Loman Das (PW-1) was informed, the police was called, then as per the information given by Kotwar, Loman Das Manikpuri (PW-1), Dehati Merg Intimation was registered vide Ex. P-1 against unknown deceased. On the same day, the dead body of the deceased was identified vide Ex.P-10 by Chandrakumar (PW-4), husband of the deceased. The dead body panchnama was prepared vide Ex.P-12 in the presence of the witnesses. On the same day, at about 2:40 PM, the mobile phone (Nokia company) of the deceased with SIM card mobile No. 7049935437, her footwear and her bangles were seized from the spot vide Ex. P-14 in the presence of witnesses Chandrakumar (PW-4) and Manohar (PW-5).
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Inquest was conducted vide Ex.P-12. On the same day, the dead body of the deceased was sent for postmortem examination which was conducted by, Dr. Prabha Burman (PW-10) vide Ex.P-22 in which the cause of death was opined to be hemorrhagic shock due to stab injury found on the right side of the neck and the nature of death was homicidal. Thereafter, FIR was registered vide Ex. P-28 against unknown person. On 22.05.2017 at about 03:00 pm, memorandum statement of the appellant was recorded vide Ex.P-5. The Mobile Phone of the accused/appellant with 2 SIMs, motorcycle and one shirt with blood stains were seized vide Ex.P-8. A knife was also seized vide Ex. P-6 from canal drain area pursuant to memorandum statement of the appellant. The appellant-accused was arrested vide Ex.P-25. The seized articles were sent for chemical examination to FSL. On 15.06.2017, FSL report (Ex.P-33) was received wherein human blood was found on the knife and semen stains were also found on the seized petticoat and slide of the deceased. On 21.07.2017, the blood sample of the appellant was taken for DNA profiling vide Ex.P-16 and on 15.01.2018 DNA report (Ex.P-36) was received wherein the DNA of the appellant matched with the DNA of semen found in the slide and petticoat of the deceased.
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witnesses and exhibited 38 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellant-accused in support of his defence has exhibited only 4 documents (Exs.D-1 to D-4).
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with human blood. The group and origin of so called human blood found on the knife has not been reported in the FSL report. The call details of the appellant with the deceased on 19.05.2017 the date on which deceased died as per the postmortem report, only shows that the appellant and the deceased has some talk. The other mobile call details have not been investigated by the investigating authority. Lastly, it is contended that upon preliminary enquiry I/O (PW-11) lodged FIR and he conducted major part of the investigation which was later on completed by another I/O (PW-12). As the informant had conducted major part of the investigation, the investigation itself is vitiated. As such, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal.
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10. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex.P-22 proved by Dr. Smt. Prabha Burman (PW-10) that the death of the deceased was homicidal in nature, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.
11. Now, the question would be whether the appellant is the author of the crime in question?
12. In the instant case, there is no direct evidence available on record and case of the prosecution is solely 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. The relevant paragraph 153 of the said judgment reads as under: -
1 (1984) 4 SCC 116
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(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.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
13. Now the circumstantial evidence against the appellantaccused is as under which the trial Court has culled out in para 41:-
2 (1973) 2 SCC 793
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14. Reverting to the facts of this case, we will consider the incriminating circumstances found proved by the trial Court, one by one, the first incriminating circumstances that have been found proved by the learned Trial Court is that the appellant and the deceased both were known to each other and they used to talk through mobile phone and on 19.05.2017 the appellant had lastly called the deceased through mobile phone, thereafter the deceased went missing and on 20.05.2017 at 12:10 PM the dead body of the deceased was recovered as per Ex.P-1, Dehati Merg Intimation. Further, the case of the prosecution is that the mobile phone of the deceased was seized from the spot and a SIM card was found by which the appellant and deceased used to talk. As such, the incriminating circumstances one of the circumstances found established by the trial Court. First of all, it came to
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notice that from the place of occurrence, the mobile phone of the deceased has been seized vide Ex. P-14, according to which the phone No. was 7049935437 and SIM No. was 89911100000060480697, however, phone No. 7049935437 and SIM No. 89911100000060480697 were registered in the name of one Khileshwar (Ex.P-18) which has been proved by Vibhore Rastogi (PW-7). As such, the said mobile & SIM number recovered from the place of occurrence near the dead body of the deceased was not registered in the name of the deceased. Furthermore, the our attention has been invited to the statement of Deputy Superintendent of Police, Mayank Tiwari (PW-12), who has admitted that the aforesaid mobile number was registered in the name of one Khileshwar but he has not taken the statement of Khileshwar Dheemar and however, the affidavit has been filed on behalf of the prosecution vide Ex. D-4 in which on 29.05.2017 it was sworn by Khileshar Dheemar that it was being used by his sister-in-law, Dileshwari Dheemar, it goes to show that the mobile No. 7049935437 was not registered in the name of Dileshwari Dheemar (deceased), therefore, it could not be proved that it was belonging to the deceased. Furthermore, the call details vide Exs.P-19 & 20 have been filed.
15. The Supreme Court in the matter of Kiriti Pal vs. State of West Bengal3 , considered the issued of admissibility and relevancy of telephonic conversation made between the
3 2015 (11) SCC 178
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persons as evidence and observed in paragraphs 30 to 33 as
under:-
“30. Apart from telephonic conversation, no other evidence was adduced by the prosecution to bring home that first accused hatched a conspiracy. There is no evidence to prove as to how the appellants 2 and 3 (Siddique Mia and Mustaque Mia) had gone to the place of occurrence and what was their subsequent conduct. Their presence near the scene of occurrence could have been established by the prosecution either by examining some witnesses near and around the place of occurrence or by proving the location of the calls so as to establish the proximity of the accused with the scene of occurrence. Apart from the extract of the call records, no other evidence was adduced by the prosecution to establish the conspiracy.
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the other witnesses for being identified as that of Anjali. No other evidence was adduced by the prosecution to substantiate the recovery of objects and the seizure list.
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appellants 2 and 3 (Siddique Mia and Mustaque Mia) do not form a complete chain connecting the accused with the crime and the conviction of the appellants under Section 302 IPC read with Section 120B IPC cannot be sustained and deserves to be set aside. Likewise, conviction of fourth appellant-Durga Sutradhar under Section 120B cannot be sustained and is liable to be set aside.”
16. In view of the aforesaid decision of the Hon’ble Supreme Court in the matter of Kiriti Pal (supra) and considering the material available on record it is established that the SIM number that was recovered from the spot did not belong to the deceased, therefore, the telephonic conversation Exs. P-19 & P-20 are of no use to the prosecution. Merely, ground for conviction cannot take place, as such, the alleged recovery of the telephone of the deceased and conversation with the appellant is of no use to the prosecution. The next piece of evidence is that from the memorandum of the appellant, the knife was seized on which in the FSL report (Ex.P-33) human blood was found.
17. The Hon’ble Supreme Court in the matter of Mustkeem alias Sirajudeen vs. State of Rajasthan 4, it has been held that such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence and held in paragraphs 25 to 27 as under:-
4 (2011) 11 SCC 724
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“25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.
"...it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the 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."
18. As such, in the absence of the connecting link that the weapon of offence was seized in connection with the offence the recovery of the said blood-stained article is of no use to the prosecution.
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19. The last incriminating circumstances that have been found proved by the trial Court is that in the vaginal slides of the deceased, the stains of semen and human sperm were found in the FSL examination and the DNA of the appellant matched with the DNA found on the semen and human sperm which was found on slide and petticoat of the deceased. Therefore, the appellant is guilty of the offence of murder. It is appropriate to mention here that the appellant has been acquitted of the offence punishable under Section 376 of IPC. However, a careful perusal of the FSL report (Ex.P-33) would show that on Petticoat & slide (Articles G & I) of the deceased semen and human sperm was found. The date of the incident was 19.05.2017 whereas the articles were received by the Forensic Science Laboratory, Raipur on 03.06.2017 vide Ex. P-32, however, attention has been invited to the statement of Awadhram Sahu (PW-11) who stated the seized property was kept in the Malkhana before sending to the FSL, but he admitted that no documents have been brought on record to that effect, a similar statement has been made in paragraph 22 of his deposition. As such, there is a delay of about 11 days in sending the articles to FSL, but no documents have been brought on record to show that before sending the articles to FSL, the articles were put in safe custody, as such there is a chance of fabrication and the manipulation cannot be
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ruled out. Similarly, more particularly, the appellant has been acquitted of the offence punishable under Section 376 of the IPC.
20. Lastly, the DNA examination (Ex.P-36) states as under:-
डी.एन.ए. ्ቚोफाइिሴलग हे�ु ्ቚा् ्ቚ)शL प� ़በकये गये प�ी्ቌण एवं ्ቚा् परि�णामों के आधा� प� ़በनम्नलिललिQ� ़በन्ቐयात्मक परि�णाम ्ቚा् हुये हैं-
21. However, Mayank Tiwari (PW-12) admitted that firstly, the samples were sent for the FSL examination from where samples were received in sealed condition and thereafter it has been sent for DNA profiling. As per Ex.P-36(1), it was not sent on 21.07.2017 and the same was received in the forensic science laboratory on 22.07.2017, whereas the date of the incident was 19.05.2017 and the seizure of the petticoat and slide of the deceased was made on 27.05.2017.
22. Very recently, in the matter of Rahul v. State of Delhi, Ministry of Home Affairs 5, their Lordships of the Supreme Court (three-Judges Bench), while considering the evidentiary value of DNA evidence and taking note of decision of Manoj v. State of Madhya Pradesh6, held that the DNA evidence is in the nature of opinion evidence like
6 (2023) 2 SCC 353
5 (2023) 1 SCC 83
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any other opinion evidence, its probative value varies from
case to case and held in para-38 as under:
“38. It is true that PW 23 Dr. B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ex. PW-23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the Investigating Officer on 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. During this period, they remained in the Malkhana of the Police Station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the Trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion.”
23. In view of aforesaid legal position qua DNA profiling report and its probative value, the prosecution is duty bound to prove the guilt of the accused beyond reasonable doubt and burden is always upon the prosecution to lead evidence by taking all the precautions for proving DNA evidence. It is necessary for the prosecution as the entire process of collecting the blood samples for DNA profiling is controlled and done by the human agencies i.e. doctors and the investigating officers. Every step to preserve the sample
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from manipulation/contamination has to be proved, as absence of those steps may cause prejudice to the accused. The prosecution is required to put all the positive evidence regarding the fact that all the precautions have been taken by the doctors as well as by the police officials regarding the preservation of the DNA samples. As held in the matter
of Pattu Rajan vs. state of Tamil Nadu 7, DNA report is “an opinion” and its probative value varies from case to case. The science of DNA is at a developing stage, as such, it will be risky to solely rely upon the DNA report to base conviction in absence of any substantive piece of evidence.
24. Lastly, the recovery of blood stained shirt could not implicate the appellant in the crime in question unless other connecting links are established by the prosecution. In that view of the matter, we are of the considered opinion that the trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 of IPC.
25. Accordingly, we are of the considered opinion that the appellant is entitled for acquittal on the ground of benefit of doubt. The conviction of the appellant for the offence under Section 302 of I.P.C. is hereby set aside and he is acquitted of the said charge. Since the appellant is in jail from 22.05.2017, we direct that he be released from jail forthwith, if not required in any other case.
7 (2019) 4 SCC 771
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26. Accordingly, this Criminal Appeal is allowed.
27. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where he lodged and suffering jail sentence, forthwith for information and necessary action, if any.
Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge
H.L. Sahu
3 issues framed by the court
Whether the trial court was justified in convicting the appellant for murder based solely on circumstantial evidence and DNA analysis?
Whether the recovery of the knife and DNA evidence sufficiently proved the appellant's guilt beyond reasonable doubt?
Whether the link between the recovered weapon and the murder was established?
Colour shows how this judgement treated each authority
Sharad Birdhichand Sarda v. State of MaharashtraReferred¶40
(1984) 4 SCC 116 · Who else cites this
Kiriti Pal vs. State of West BengalApplied¶58
(2015) 11 SCC 178 · Who else cites this
Mustkeem alias Sirajudeen vs. State of RajasthanFollowed¶73
(2011) 11 SCC 724 · Who else cites this
Rahul v. State of DelhiApplied¶91
(2023) 1 SCC 83 · Who else cites this
Manoj v. State of Madhya PradeshApplied¶91
(2023) 2 SCC 353 · Who else cites this
Pattu Rajan vs. state of Tamil NaduReferred¶99
(2019) 4 SCC 771 · Who else cites this
2 provisions across 2 enactments
Neelmani Sahu @ Mani Sahu
State of Chhattisgarh
Sanjay K. Agrawal
Sanjay Kumar Jaiswal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
