Ranjeet Swami @ Motu Vs State of Chhattisgarh

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Page No.1 of 20 IN CRA-1103-2019

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2025:CGHC:10032-DB

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Digitally signed by SAIFAN SAIFAN KHAN Date: KHAN 2025.03.06 16:48:19 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 1103 of 2019

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[Arising out of judgment dated 31.05.2019, passed in Sessions Case No.73 of 2018 (State of Chhattisgarh v. Ranjeet Swami @ Motu and 03 others) by 1^st Addl. Judge to the Court of 1^st Addl. Sessions Judge, Raipur (CG)]

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1 - Ranjeet Swami @ Motu S/o Late Ravi Swami Aged About 38 Years R/o Opp. Vivekanand Shopping Complex, Pensionbada, Police Station - Kotwaili, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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2 - Rashid Ali @ Raja Baijhad S/o Sayyed Sabir Ali, Aged About 24 Years R/o Tajnagar, Santoshi Nagar, Police Station - Tikrapara Raipur District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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3 - Pooja Sachdev W/o Balli Gauli, Aged About 25 Years R/o O. C. M. Chowk, Infront Idgah Maidan, Police Station - Kotwali District - Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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4 - Monu @ Bhavesh Sachdev S/o Sewaram Sachdev Aged About 28 Years R/o O. C. M. Chowk, Infront Idgah Maidan, Police Station - Kotwali, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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... Appellants

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Versus

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State of Chhattisgarh Through, Station House Officer, Police Station- Kotwali, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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[ Cause-title taken	from	Case	... Respondent Information System (CIS)]
-----------------------------------	------	--------	--------------------------------------------
For Appellant	:	Mr.	Sanjay Agrawal, Advocate
For Respondents -----------------------------------	: ------	Mr. --------	Arvind Dubey, Govt. Advocate --------------------------------------------

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Page No.2 of 20 IN CRA-1103-2019

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (28.02.2025)

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Sanjay K. Agrawal, J

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(1) In this criminal appeal filed under Section 374(2) of CrPC, total 04 appellants/accused are calling in question legality, validity and correctness of impugned judgment of conviction and order of sentence dated 31.05.2019, passed in Sessions Case No.73 of 2018 (State of Chhattisgarh v. Ranjeet Swami @ Motu and 03 others) by 1^st Addl. Judge to the Court of 1^st Addl. Sessions Judge, Raipur (CG), whereby they all have been convicted for offence under Section 302 read with Section 34 of IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/- and, in default of payment of fine amount, sentenced to undergo additional imprisonment for 01 month.

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(2) The case of the prosecution, in a nutshell, is that on 11.08.2017, between 12:10 AM to 02:00 AM in the night, in the house of the appellants No.03 & 04, situated at OCM Chowk, in front of Edigah Ground, which comes within the ambit of Police Station Kotwali, District Raipur (CG), the 04 appellants herein firstly shared common intention with each other for killing one Santosh Dubey (herein after referred to as the “deceased”) and, in furtherance thereof, assaulted the deceased in the first floor of the house of appellants No.03 & 04 and committed his murder and,

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thereafter brought him down in the ground floor and, thereby, said to have committed offence under Sections 302 & 201/34 of IPC.

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(3) It is further case of the prosecution that Gulshan Nayak (PW02) reported the matter to the police to the effect that in the night of 11.08.2017, when he alongwith the deceased were in the house of the deceased, the deceased received a phone call from appellant No.03- Pooja Sachdev, who called the deceased to her house. Thereafter, when Gulshan Nayak (PW-02) alongwith the deceased reached to the house of appellant No.03- Pooja Sachdev by motorcycle, the deceased went up to the house of the appellant No.03, situated on the upper floor of the building, while Gulshan Nayak (PW-02) remained on the ground floor. Gulshan Nayak (PW02) saw all the four accused/appellant in the Balkani of the house of the appellant No.03 and, after sometime, when Gulshan Nayak (PW-02) heard quarreling sound from the house of the appellant No.03, he rushed in fear to the house of the deceased and informed the matter to the family members of the deceased and other neighbours. Thereafter, again Gulshan Nayak (PW-02) alongwith others reached to the house of the appellant No.03, the door of the house was found locked with pool of blood, pursuant to which, when the door was broken, the dead-body of the deceased was found lying on the floor with grave stabbing injuries on his body.

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(4) On the basis of aforesaid information so given by Gulshan Nayak (PW-02), merg intimation (Ex.P/01) and FIR (Ex.P/02) were

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registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/28 and inquest proceedings were also conducted vide Ex.P/29. Spot map was also prepared vide Ex.P/31. The dead-body of the deceased was sent for postmortem examination and in the postmortem report (Ex.P/22), conducted by Dr. M. Nirala (PW-06), it has been opined that the cause of death of the deceased is hemorrhage and shock as a result of multiple stab injuries and nature of death is homicidal. Notices under Section 160 of CrPC were also issued vide Ex.P/24 & Ex.P/28. The accused-appellants were arrested vide Ex.P/14 to Ex.P/16 & Ex.P/27. Confessional statements of appellants No.01 to 03 were recorded vide Ex.P/06 to Ex.P/08 respectively, whereas memorandum statement of appellant No.04 was recorded vide Ex.P/25. From the possession of appellants following articles were seized as under:

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Name of Accused	Seizure vide Exhibit
Ranjeet Swami @ Montu(A-1)	Blood-stained shirt and pant vide Ex.P/09
Rasheed Ali @ Raja Bhaijad(A-2)	Blood stained t-shirt and jeans vide Ex.P/13
Pooja Sachdev(A-3)	Blood stained kurti and jeans
	and mobile phone vide Ex.P/10 &
	Ex.P/11
Monu@Bhavesh Sachdev(A-4)	Knife vide Ex.P/26

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(5) Further, from the place of incident: (i) pieces of mattress with blood stain, (ii) cotton and cloth, (iii) black and maroon blanket with

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blood stain, (iv) watch and shoes, (v) blood-stained soil, (vi) plain soil; & (vii) pair of shoes and sandal were seized vide Ex.P/04. One cover of knife was also seized vide Ex.P/05 from the Eidgah ground, situated in front of the house in question. The seized articles were sent for chemical analysis to FSL, Raipur and, as per FSL report (Ex.P/38) it has been opined as under:

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Seized Article		Result	of anal	ysis
Clothes of the	deceased[A1]	Human was fou	blood nd.	having “O” group
Clothes of the	deceased[A2 to	Human	blood	was found.
A5]
Articles seized	from the spot[B,	Human	blood	having “O” group
D, F, G, H, J]		was fou	nd.
Articles seized K]	from the spot[E &	Human	blood	was found
Clothes seized	from Rasheed Ali	Human	blood	having “O” group
@Raja Bhaijad	(A-2) [L1 & L2]	was fou	nd.
Clothes seize	d from Ranjeet	Human	blood	having “O” group
Swami @ Mont	u (A-1)[M1 & M2]	was fou disinteg found in	nd in rated M2.	M1, whereas only blood stain was
Cloth (kurti)	seized from Pooja	Disinteg	rated	blood stain was
Sachdev(A-3) [	N]	found.

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(6) Call details report was also seized vide Ex.P/19 and certificate under Section 65(B) of the Indian Evidence Act was obtained vide Ex.P/20. Statement of Gulshan Nayak (PW-02) under Section 164 of CrPC was recorded vide Ex.P/17. The knife seized from the appellant No.04 was subjected for query to an expert and, as per Query Report (Ex.P/23) it has been opined that the injuries found

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over the body of the deceased may be caused by the said knife and death is also possible. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against all the appellants in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated.

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(7) The prosecution in order to prove its case examined as many as 14 witnesses and exhibited 38 documents, whereas the appellants/accused in support of their defence, have neither examined any witness nor exhibited any document.

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(8) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellants for offences under Section 302/34 of IPC and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellantsaccused questioning the impugned judgment of conviction and order of sentence.

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(9) Mr. Sanjay Agrawal, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Sections 302/34 of IPC, as the prosecution has failed to prove the said

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offences beyond reasonable doubt. Learned counsel vehemently argued that the theory of last seen together is not established beyond reasonable doubt, as Gulshan Nayak (PW-02), who has lodged the report, has not at all stated that he has seen all the appellants herein alongwith the deceased on the place of occurrence while lodging merg intimation (Ex.P/01) and FIR (Ex.P/02), indeed, it has only been mentioned that the incident took place in the house of the appellant No.03. Furthermore, in the present case, Gulshan Nayak (PW-02) and Shikha Dubey (PW-01) [wife of the deceased] alongwith others have broken the door of the house without informing the matter to the police, which raises a serious doubt, as they could have immediately informed the matter to the police. The theory of last seen together is also not established because as per site map (Ex.P/03) there is no mention as to from which place Gulshan Nayak (PW-02) has seen all the accused/appellants alongwith the deceased in the house of appellants No.03 & 04. Moreover, the ownership of the house in question to be that of appellant No.03 & 04 is also not established, yet the learned trial Court proceeded to convict the appellants on the basis of incriminating circumstances as culled out in Para-36 of the impugned judgment. Learned counsel vehemently argued that the circumstances relied upon by the learned trial Court in Para-36 of the impugned judgment are based on surmises and conjunctures and there is no material available on record to connect the

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appellants herein with the aforesaid offences. Hence, in view of aforesaid illegalities and perversity in the impugned judgment, the present appeal deserves to be allowed and the appellants are liable to be acquitted of the said charge on the basis of benefit of doubt.

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(10) Per-contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. In view of statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellants for offences under Sections 302/34 of IPC and, therefore, the present appeal deserves to be dismissed.

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(11) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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(12) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/22), wherein it has been opined that cause of death of deceased is hemorrhage and shock as a result of multiple stab injuries and nature of death is homicidal., which is duly proved by the statement of Dr. M. Nirala (PW-06). Accordingly, taking into consideration the postmortem report (Ex.P/22) and the

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statement of Dr. M. Nirala (PW-06), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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(13) Now, the next question would be whether the accusedappellants herein are the authors of the crime in question or not, which the learned trial Court has answered in affirmative by relying on the following incriminating circumstances as culled out in Para36 of the impugned judgment:

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1. घटनाद�ना ि ं ककोअभ�य ि ु्ሹ ापजासच� ू े वक े घरम ें मतककाजाना। ृ

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2. अभ�य ि ु्ሹ ापजासच� ू े वक े घरम ें चारो ं अभ�य ि ु्ሹ गणको� े खाजाना। -

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3. पजासच� ू े वक े घरक े उपरीम ं जजलक ि े कमर े स े लडाई ़ झगड ़े की

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आवाजआना।

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4. लडाई ़ झगड ़े कीआवाजस ु नकरग ु लशननायक ारामतक ृ

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कपर े रवारएव ि ं अन ् यलोगो ं कोस ू चचतकरना। ि

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5. घटनाकीरातमौक े परआकर� े खन े परअभ�य ि ु्ሹ ापजाक ू े घरका �रवाजाम ें तालालगाहोनाऔरतालातोड ़ कर�खन े े परचोदटलअवस ि था ् म ें मतककीलाशअभ ृ �य ि ु्ሹ ापजाक ू े घरम ें दमलना। ि

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- 6. अभ�य ि ु्ሹ ापजाक ू े घरम ें तीसरीम ं जजलक ि े कमर े स े � तलतकख ू न एव ं अन ् यसामाद5यो ि ं काज ्቎ ीहोना।

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7. अभ�य ि रजीतस ं वामीउ ् ्ቛ8 मोन ् ट , राभश�अलीउ ि ्ቛ8 राजाबझड ै ़ एव अभ�य ि ु्ሹ ापजासच� ू े वक े कपड ़ ो ं म ें मानवख ू नकाहोनापायाजाना। 8. अभ�य ि मोन ू उ ्ቛ8 �ावशसच� े े वक कटीकरणक े आधारपर अपराधम य होना। चाक ू काज

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9. अभ�य ि मोन ू उ ्ቛ8 �ावशसच� े े वस े ज ्቎ श�ाचाक ु ू स े मतकक ृ शरीरपरआय े चोटो ं कीप ु द= ि होना।

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(14) Since the present case is based on circumstantial evidence, therefore, before proceeding further, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra1 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under:

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“153.…. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made:

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"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."

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(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,

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(3) the circumstances should be of a conclusive nature and tendency.

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(4) they should exclude every possible hypothesis except the one to be proved, and

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1 (1984) 4 SCC 116

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(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.”

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(15) We shall now consider the above-mentioned incriminating circumstances in light of the above-quoted principles of law laid down by their Lordships of the Supreme Court as also in light of the evidence available on record, in order to ascertain whether the appellant herein have rightly be held guilty for offence in question by the learned trial Court or not.

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As regards Incriminating Circumstances No.01 & 02:

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(16) The first two incriminating circumstance that the learned trial Court has found proved is that according to Gulshan Nayak (PW02), on the date of offence, the deceased went to the house of appellant No.03- Pooja, where he saw all the four accusedappellants herein alongwith the deceased. In this regard the findings of the learned trial Court may be noticed, whereby it has been held that since all the appellants were present in the house in question, as seen by Gulshan Nayak (PW-02), therefore, ownership of the said house in question to be owned by the appellant No.03 pales into insignificance. However, since it is the case of the prosecution that on the date of offence the deceased went inside the house of appellant No.03- Pooja and Gulshan Nayak (PW-02) has seen all the four accused-appellants in the said house, therefore, it

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was mandatorily required for the prosecution to establish that the house in question was actually owned and exclusively possessed by the appellant No.03 on the date of offence, more particularly, when the dead-body of the deceased was found on the ground floor of the said building/house. The prosecution failed to establish that the house in question where the incident is said to have taken place was actually owned and was in exclusive possession of the appellant No.03, which ought to have been established by the prosecution in the present case. There is no evidence available on record except the allegation that the said house in question was owned and possessed by the appellants No.03 herein.

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(17) The Supreme Court in the matter of Santosh @ Bhure v. State (GNCT) of Delhi2 has clearly held that mere tenancy of the apartment/house in question with the accused therein, by itself, would not constitute a chain in order to infer that in all human probability the deceased was killed by the accused and no one else and observed in Para-95 as under:

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“ 95. Insofar as Santosh is concerned barring the tenancy of that apartment being with him, rest of the circumstances relied by the prosecution have not been found proved beyond reasonable doubt. In our view, mere tenancy of that apartment being with Santosh, by itself, would not constitute a chain so far complete as to logically infer that in all human probability the deceased was killed by Santosh and no one else, because —

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a) The accommodation from where body was recovered

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2 2023 SCC Online SC 538

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was found open. There is no evidence that it was under lock and key of Santosh or that its access was controlled and no one other than Santosh could have had access to the apartment. Thus, possibility of some third person entering the apartment and committing murder is not ruled out.

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b) Mere presence of a dead body in an apartment is not enough to convict a tenant or owner of that apartment for murder, particularly when there is no admissible evidence to prove that around the plausible time of murder the accused was present there, or was last seen with the deceased, and had motive to finish off the deceased;

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c) From the testimony of PW4 it is proved that the deceased was alone in that apartment between noon and 1.00 p.m. on 11.09.2000 and, at that time, Santosh was not present there. The body of the deceased was found in the morning of 12.09.2000. There is no evidence that in between noon of 11.09.2000 and discovery of the dead body next day morning, the appellant Santosh or co-accused Neeraj entered that apartment or were seen in the vicinity;

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d) The prosecution led no evidence to prove any motive for the crime which, in a case based on circumstantial evidence, provides an important link to the chain of circumstances;

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e) At the time of lifting the dead body from that apartment, number of articles present there including whisky bottle and plates etc. were lifted. Many of those articles could have carried fingerprints. Yet no evidence was brought on record to rule out presence of any other person than the accused or to confirm the presence of fingerprints of any of the two accused on those articles;

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f) The circumstance that the accused remained at large till 23.09.2000 by itself is not a conduct reflective of a guilty mind, particularly, when there existed no evidence to show physical presence of the appellant Santosh in that apartment, or in the vicinity, on 11.09.2000 or any time thereafter, till recovery of the dead body on

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12.09.2000. Otherwise also, the incriminating circumstance in respect of abscondence, if any, has not been put to any of the two accused while recording their statement under Section 313 of the Code.”

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(18) In view of above-stated legal position, since in the present case the prosecution has miserably failed to establish that subject house (ground floor/gallery), where the dead-body of the deceased was found and where all the appellants herein were allegedly seen by Gulshan Nayak (PW-02), was owned and exclusively possessed by appellant No.03-Pooja and, in absence of which, incriminating circumstances No.01 & 02 are not established at all to connect the appellants herein for the offence in question. We hereby hold accordingly.

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As regards Incriminating Circumstances No.03 & 04:

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(19) So far as incriminating circumstances No.03 & 04 are concerned, it is stated that when Gulshan Nayak (PW-02) heard the sound of quarrel from the house in question (allegedly owned by the appellant No.03), he immediately rushed in fear and informed about the same to the family members of the deceased, as also to the others. However, in the present case, merg. intimation (Ex.P/01) has been recorded by Tulsi Ram Sahu (PW-09) at the instance of Gulshan Nayak (PW-02), in which, Gulshan Nayak (PW-02) has only informed to the police that on the date of offence when he alongwith the deceased had gone to the house in question (allegedly to be that

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of appellant No.03-Pooja), the deceased went up to the house in question, situated on the upper floor of the building, while he [Gulshan Nayak (PW-02)] remained on the ground floor/gallery and, immediately after hearing quarreling sound from the house in question, he informed about the same to the family members of the deceased and other, upon which, when again he [Gulshan Nayak (PW-02)] alongwith others reached to the house in question, the door of the house was found locked and, when the door was broken, the dead-body of the deceased was found lying on the floor in injured condition. However, the fact that Gulshan Nayak (PW-02) had seen all the four accused/appellants in the house in question is completely missing in the merg intimation (Ex.P/01), which was lodged immediately after the incident on 11.08.2017 at about 02:30 AM. Similarly, in the FIR (Ex.P/02), which was also lodged by Gulshan Nayak (PW-02) immediately after 05 minutes of lodging the merg intimation (Ex.P/01), it is nowhere stated that Gulshan Nayak (PW-02) had seen all the four accused-appellants herein in the house in question (allegedly owned and possessed by appellant No.03-Pooja), which is significant omission from his court’s statement as also in merg intimation (Ex.P/01) and FIR (Ex.P/02) and the same is relevant fact under Section 11 of the Indian Evidence Act, 1872.

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(20) Thus, in view of the fact that Gulshan Nayak (PW-02), who lodged merg intimation (Ex.P/01) and FIR (Ex.P/02) immediately

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after the incident, has not stated that he had seen all the four appellants herein in the house in question (allegedly owned and possessed by appellant No.03- Pooja) either in the merg intimation (Ex.P/01) or in the FIR (Ex.P/02), therefore, it would be unsafe and risky to hold that Gulshan Nayak (PW-02) has seen all the four appellants herein in the house in question on the date and time of the offence. Even otherwise, in the site map (Ex.P/03) also it is not shown as to from which place Gulshan Nayak (PW-02) has seen all the four accused-appellants herein in the house in question on the date and time of the offence, which also castes a serious doubt on the statement of Gulshan Nayak (PW-02) that he had seen all the four accused-appellants in the house in question (allegedly owned and possessed by appellant No.03- Pooja) alongwith the deceased on the date and time of the offence (See: Shingara Singh v. State of

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Haryana and another3 and Baldev Singh and another v. State of MP4 ). As such, incriminating circumstances No.03 & 04 are also not established by the prosecution in order to hold the appellants herein guilty for the offence in question. We hereby hold accordingly.

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As regards Incriminating Circumstance No.5:

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(21) The next incriminating circumstance which the leaned trial Court has found proved is that on the date and time of the offence when Gulshan Nayak (PW-02) alongwith Shikha Dubey (PW-01),

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3 (2003) 12 SCC 758

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4 (2003) 9 SCC 45

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Smt. Kamla Dubey (PW-04) and Arun sona (PW-07) reached to the house in question, they found the door of the house locked and, upon breaking the door, they found the dead-body of the deceased lying on the floor in injured condition. However, upon finding the door of the house in question locked and before breaking the said doors, Gulshan Nayak (PW-02), Shikha Dubey (PW-01), Smt. Kamla Dubey (PW-04) and Arun sona (PW-07) could have informed the matter to the police and, thereafter, could have broken the door of the house in question with the aid and in presence of the police authorities, which is also clearly established from the statement of Tulsi Ram Sahu (PW-09), who has registered the merg intimation (Ex.P/01) and FIR (Ex.P/02). Breaking the lock of the house in question in absence of police authorities and information/reporting of the matter/incident by Gulshan Nayak (PW-02) to the police thereafter also creates a doubt on the prosecution case, as Gulshan Nayak (PW-02) and family members of the deceased i.e. Shikha Dubey (PW-01), Smt. Kamla Dubey (PW-04) and Arun Sona (PW-07) could have awaited for arrival of the police to break the lock of the house in question. As such, for the aforesaid reason, incriminating circumstance No.05 is also not found establish beyond reasonable doubt in order to hold the appellants herein guilty for the offence in question. We hereby hold accordingly.

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As regards Incriminating Circumstance No.06:

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(22) The next incriminating circumstance which the learned trial Court has found proved is that from the house of appellant No.3Pooja- (i) pieces of mattress with blood stain, (ii) cotton and cloth, (iii) black and maroon blanket with blood stain, (iv) watch and shoes, (v) blood-stained soil, (vi) plain soil; & (vii) pair of shoes and sandal were seized. However, in the present case, in view of the discussion already made by us in above paragraphs, since the ownership and exclusive possession of the house in question to be of appellant No.03- Pooja is not at all established, therefore, recovery of aforesaid articles from the house in question is of no help to the prosecution that too when there is no material available on record to show that the aforesaid seized articles were used in commission of offence in any manner. We hereby hold accordingly.

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As regards Incriminating Circumstances No.07 to 09:

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(23) The last incriminating circumstance which the learned trial Court has found proved is the seizure of blood-stained clothes (tshirts, pant/jeans & kurti) from appellants- 01 to 03 vide Ex.P/09, Ex.P/10 & Ex.P/13 respectively, in which, as per FSL report (Ex.P/38), stains of human blood having “O” group and disintegrated blood stains were found respectively and, further, pursuant to the memorandum statement of appellant No.04- Monu @ Bhavesh recorded vide Ex.P/25, one knife has been seized vide Ex.P/26, which was further subjected for query to an expert and, as

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Page No.19 of 20 IN CRA-1103-2019

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per Query Report (Ex.P/23), it has been opined that the injuries found over the body of the deceased may be caused by the said knife and death is also possible. However, there is no evidence available on record to show that the said seized articles (clothes and knife) were used in commission of the offence in question at any point of time by any of the accused-appellants herein. Even otherwise, the Supreme Court in the matter of Raja Nayka v. State of Chhattisgarh5 by relying upon its earlier decision rendered in the matter of Mustkeen @ Sirajudeen v. State of Rajasthan6 has held that sole circumstance of recovery of blood-stained article cannot form the basis of conviction that too for offence under Section 302 of IPC unless the same is corroborated with other piece of incriminating circumstances. Consequently, the recovery of aforesaid articles is also of no help to the prosecution. We hereby hold accordingly.

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(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 is unjustified in convicting the appellants for offence under Section 302/34 of IPC being the authors of the crime

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5 2024 SCC Online SC 67

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6 (2011) 11 SCC 724

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Page No.20 of 20 IN CRA-1103-2019

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in question in light of above-mentioned incriminating circumstances and same is liable to be set aside.

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(26) Accordingly, the conviction and sentence of all the appellants for offence punishable under Section 302/34 of IPC, as imposed upon them by the learned trial Court, are hereby set aside. They are acquitted of the said charges on the basis of benefit of doubt. Since the appellants are in jail, we direct that they be released from jail forthwith, if not required in any other matter/case.

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(27) This criminal appeal is allowed .

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(28) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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s@if

Ranjeet Swami @ Motu v. State of Chhattisgarh

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Ranjeet Swami @ Motu v. State of Chhattisgarh

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