Santosh Kumar Vs State of Chhattisgarh

(Arising out of Judgment dated 19.10.2016 passed by Additional Judge to the Additional Sessions Judge, Ramanujganj, District Surguja (Ambikapur) in Sessions Case No.103/2014)

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Santosh Kumar, S/o Rajkumar Panika, aged about 25 years, Occupation- Labour,

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Rajkumar, S/o Manohar Panika, aged about 52 years, Occupation- Labour

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Both are R/o Village Basantpur Thana, Basantpur, District Balrampur-Ramanujganj (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Station House Officer, Police Station Basantpur, District BalrampurRamanujganj (C.G.)

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... Respondent(s)

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-------------------------------------- For Appellants	------------------------------------------- :- Mr. Abhishek Sinha,
	Senior Advocate, with
	Mr. Prasoon Agrawal &
	Ms. Khushboo Dua,
	Advocates.
For Respondent-State	:- Mr. Ashish Shukla,
	Addl. Advocate General,
	with Mr. H.A.P.S. Bhatia,
	Panel Lawyer.

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(Cr. A. No. 827 of 2018)

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(Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal

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[C A V Judgment]

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Sanjay K. Agrawal, J.

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1. Assail in the present Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘CrPC’) is to the legality, validity and correctness of the Judgment dated 19.10.2016 passed

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by learned Additional Judge, Ramanujganj to the Additional Sessions Judge, Ramanujganj, District Surguja (Ambikapur) (for brevity ‘Trial Court’) in Sessions Case No.103/2014.

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2. By impugned Judgment, each of the two Appellants herein i.e. Santosh (A-1) and Rajkumar (A-2) has been convicted for offence under Section 460 of the Indian Penal Code, 1860 (for brevity ‘IPC’) and sentenced thereunder to suffer Rigorous Imprisonment for 10 years and to pay fine of Rs.5000/- and in default of payment of fine to suffer additional Rigorous Imprisonment for 03 months for jointly committing lurking house-trespass by night in the house owned by Panipati (D-1) and further each of them also has been convicted for offence under Section 302 (three counts) of IPC and sentenced thereunder to suffer

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Imprisonment for Life with fine of Rs.15,000/- and in default of payment of fine to suffer additional Rigorous Imprisonment for 09 months, for causing death of Panpati (D-1) and her two daughters Ku. Bindu (D-2) and Ku. Kintu (D-3) in the intervening night of 25^th & 26^th of July, 2014.

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Prosecution case, in brief:-

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3. A-1 Santosh is the son of A-2 Rajkumar who is brother-in-law (jeth) of D-1 Panpati. PW-1 Shankar Prasad, who is brother of D-1 Panpati, lodged Merg Intimation (Ex. P-2) on 26.7.2014 at 8:30 a.m. in Police Station Basantpur stating inter alia that on the date of offence in the morning around 7:30 a.m., PW7 Mahendra Dewangan informed him on phone regarding some untoward incident happened in the house of his sister (D-1). On such information, PW-1 Shankar Prasad reached D-1 Panpati’s house at Basantpur and when he along with other persons entered into her house pushing the door, he found that the dead-bodies of D-1 Panipati, D-2 Ku. Bindu and D-3 Kintu were lying inside the house and their death was caused by some unknown person using sharp edged weapon inflicting multiple injuries on the vital parts of their bodies. Subsequently, at 8:50 a.m.,

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on 26.7.2014, a named FIR (Ex. P-1) was registered at the instance of PW-1 Shankar Prasad against A-1 Santosh and A-2 Rajkumar for offence under Section 460 and 302 of IPC on the accusation that since A-2 Rajkumar had an ongoing land dispute with D-1 Panpati and therefore both A-2 Rajkumar and his son A-1 Santosh might have entered into the house of D-1 Panpati in the intervening of 25^th & 26^th of July, 2014 and killed her and her two daughters (D-1 & D-2). Crime Details Form (Ex. P-3) was prepared by the Investigating Officer, PW-12 Om Prakash Kujur and Nazri Naksha (Ex. P-4) was prepared by the Patwari, PW-11 Ram Kumar. Inquest Panchnamas (Exbts. P-9, P-10 & P-11) were prepared in presence of the panchwitnesses and the dead-bodies of three deceased persons were subjected to post-mortem. PW-14 Dr. R.B. Prajapati conducted the post-mortem examination of D-1 Panpati vide Ex. P-19A, D-2 Ku. Bindu vide Ex. P-20A and D-3 Ku. Kintu vide Ex. P-21A and opined the cause of their death to be syncope as a result of multiple incised wounds which were homicidal in nature. Seizure of blood-mixed and control earth was made from the spot vide Ex. P-23. Statements of the concerned witnesses were

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recorded. Memorandum statement of A-1 Santosh was recorded vide Ex. P-12 pursuant thereto, bloodstained wooden handle and axe were recovered vide seizure memo (Ex. P-14) and bloodstained fullpant and T-shirt also were recovered vide seizure memo (Ex. P-15). Similarly, pursuant to the memorandum statement (Ex. P-13) of A-2 Rajkumar, a bloodstained steel knife was recovered vide seizure memo (Ex. P-16). Arrest of A-1 Santosh and A-2 Rajkumar was made vide Arrest Memos (Exbts. 17 & 18) and the information of which was given to Smt. Basanti (wife of A-2 Rajkumar and mother of A-1 Santosh) vide Ex. P-22. Vide query reports (Exbts. P-25A, P-26A & P-27A), PW-14 Dr. R.B. Prajapati opined that the injuries inflicted on the bodies of three deceased persons may be caused by seized knife and axe and advised for the forensic examination of the knife, axe and wooden handle to establish the presence of blood on them. In the Forensic Science Laboratory (for brevity ‘FSL’) report dated 28.11.2014 (not exhibited), blood was found on the axe, wooden handle, T-shirt and full-pant seized from A-1 Santosh and on the knife seized from A-2 Rajkumar.

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4. On completion of the investigation, both the Appellants were charge-sheeted before the concerned Magistrate, who took cognizance on the charge-sheet and the case being exclusively triable by the Sessions Court, was committed to the court of Sessions for trial. After committal, the Appellants appeared before learned Trial Court where charges were framed against them for offences under Sections 460 and 302 (three counts) of IPC or in alternative 302 read with Section 34 of IPC to which they denied and entreated for trial.

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5. During the course of trial, in order to prove its case, the prosecution examined as many as 14 witnesses as PW-1 to PW-14 and exhibited documents vide Exhibits P-1 to P-30. After closure of the prosecution evidence, statements of the accused/Appellants were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication. However neither any witness has been examined nor any document has been relied upon on behalf of the defence.

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6. On conclusion of the trial, learned Trial Court finally by impugned Judgment dated 19.10.2016, after appreciating the oral and documentary evidences available on record, found both the Appellants (A-1 & A-2) guilty of committing the offences under Section 460 and 302 (three counts) and accordingly convicted and sentenced them as mentioned above in the second paragraph of this judgment. Feeling dissatisfied and aggrieved by impugned Judgment of conviction and sentence, the present appeal by the Appellants.

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:Submissions of parties

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7. Mr. Abhishek Sinha, learned Senior Counsel appearing on behalf of the Appellants, would submit that the conviction of the Appellants recorded by learned Trial Court is absolutely unjustified, as there is no eye-witness who has seen the Appellants committing alleged offences. There is no documentary evidence brought on record by the prosecution to establish motive of the offence, except for unsubstantiated oral statements of the prosecution witnesses of there being a land dispute between D-1 Panpati and the Appellants and therefore in absence of corroboration with any material circumstance,

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(Cr. A. No. 827 of 2018)

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conviction cannot be based merely on the basis of motive. Similarly, as regards the conduct of the Appellants threatening the victims as alleged by the prosecution witnesses though may be a relevant fact under Section 8 of the Indian Evidence Act, 1872 (for brevity ‘IEA), but that alone cannot form the basis of conviction in absence of proof of other circumstances, in light of the decision of the Supreme Court rendered in the matter of Subramanya v. State of Karnataka 1. Likewise, the alleged recovery of the weapons of offence and clothes at the instance of the Appellants, on which only blood has been found in the FSL report, has not been fully proved by the memorandum and seizure witnesses and in absence of human blood, their recovery would not come to the rescue of the

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Appellants in view of Balwan Singh v. State of Chhattisgarh and Another2 . So also, the statement of PW-6 Shanti Devi cannot be safe to be relied upon as she had allegedly seen only A-2 Rajkumar along with one person who had covered his face with black cloth and that too on the lights of the vehicles and they were unarmed and going on a different way than the house of the deceased persons and therefore only on

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1 (2023) 11 SCC 255

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2 (2019) 7 SCC 781

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that basis it cannot be said to be established that the Appellants are the perpetrators of the crime. Thus, learned Senior Counsel would submit that since the prosecution has not been able to prove the alleged offences against the Appellants beyond reasonable doubt, the incriminating circumstances, as culled out by learned Trial Court in paragraph-14 of the impugned Judgment as per the prosecution evidence and found proved, cannot be said to be duly established and therefore the Appellants are entitled to be acquitted of the alleged offences on the basis of benefit of doubt and the appeal deserves to be allowed.

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8. Mr. Ashish Shukla, learned Additional Advocate General appearing for the Respondent-State, would however submit that the prosecution has been able to bring home the offences against the Appellants beyond reasonable doubt and the incriminating circumstances culled out by learned Trial Court have been duly established and the finding recorded in this regard is well merited. Therefore, the conviction and sentence awarded to the Appellants for the aforesaid offences are absolutely justified and the Appellants are not at all entitled to get any benefit of doubt to be

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acquitted of the said offences and the appeal being devoid of merit is liable to be dismissed.

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9. We have heard learned counsels appearing for parties, considered their rival submissions made herein above and also perused the record of the case with utmost care and circumspection.

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Discussion and Analysis

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10. As is apparent from the evidence available on record, the present case is not based on direct evidence rather it is a case which rests on the circumstantial evidence. Hence, it would be profitable to notice herein the decision rendered by a three-Judge Bench of the Supreme Court in the matter of Sharad Birhichand Sarda v. State of Maharashtra3 in which

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the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been catalogued in paragraph 153 which reads as under:-

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:-

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

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3 (1984) 4 SCC 116

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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 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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(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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11. The first and foremost question, as to whether the death of D-1 Panpati, D-2 Ku. Bindu and D-3 Ku. Kintu was homicidal in nature, has been answered by learned Trial Court in affirmative relying upon the statement of PW-14 Dr. R.B. Prajapati who has conducted the post-mortem examination of the said three deceased persons respectively vide Exbts. P-19A, P-20A & P-21A in which he had opined the cause of their death to be syncope as a result of hemorrhage from the multiple incised wounds inflicted on their bodies and has stated that the nature of their death was homicidal. Thus, in view of the medical evidence of PW-14 Dr. R.B. Prajapati, who has conducted and proved the post-mortem examinations of D-1 Panpati, D-2 Ku. Bindu and D-3 Ku. Kintu and on examining the injuries inflicted on their bodies has found the nature of their death to be homicidal, we are of the considered opinion that the death of three deceased persons (D-1, D-2 & D-3) was homicidal and the finding recorded by learned Trial Court in this regard is correct finding of fact based on medical evidence supported by other material evidence came on record and which is neither perverse nor contrary to record.

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12. Further, in order to form the basis of conviction of the Appellants for the aforesaid offences, learned Trial Court after appreciation of the evidence, both oral and documentary, including medical and forensic evidence available on record, found the following incriminating circumstances, as catalogued in paragraph-14 of the impugned Judgment, duly proved and established:-

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(i) e`frdk ikuifr ,oa vfHk;qDrx.k ds e/; tehu laca/kh fookn gksus ds dkj.k laca/k lkekU; ugha FkkA

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(ii) ?kVuk fnukad dks fnu esa vfHk;qDr jktdqekj us e`frdk ikuifr dks ekjus dh /kedh fn;k FkkA

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(iii) ?kVuk ds iwoZ vfHk;qDr larks”k us dgk Fkk fd og rhukas e`frdk dks ekjsxkA

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(iv) ?kVuk fnukad dks jkr esa xokg ‘kkafrnsoh us vfHk;qDr jktdqekj ,oa ,d O;fDr dks e`frdkx.k ds ?kj dh vksj tkrs ns[kh FkhA

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(v) vfHk;qDrx.k ds cjkenxh Kkiu ds vk/kkj ij ?kVuk esa iz;qDr gfFk;kj ,oa muds diM+s tIr fd;k x;k FkkA

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13. Now, we will consider the correctness of the aforesaid incriminating circumstances culled out by learned Trial Court and decide the same one by one herein after.

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1 st Incriminating Circumstance

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14. The first incriminating circumstance which the learned Trial Court has found proved qua motive of the offence is that there was an existing land dispute between D-1 Panpati and the Appellants. In this

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(Cr. A. No. 827 of 2018)

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regard, learned Trial Court has relied upon the testimonies of PW-2 Bhagwan Das, PW-4 Ramkeshwar and PW-5 Dhaneshwar supported by PW-1 Shankar Prasad, PW-3 Ramashankar and PW-6 Shanti Devi. As per the statement of PW-2 Bhagwan Das (father of D-1 Panpati), his daughter (D-1) had a dispute with regard to the partition of land with A-2 Rajkumar who is her brother-in-law (jeth). His daughter (D-1) was constructing a house which was objected by A-2 Rajkumar and he had also obtained a stay order in this regard and pursuant thereto the Patwari had inspected and measured the disputed land property and found that some part of the land on which his daughter (D-1) was constructing her house was belonging to the Appellants and that the field which was in possession of the Appellants was belonging to his daughter (D-1) and it was a joint property and its partition was not done. On the said field, his daughter (D-1) had sown paddy for which the Appellants were threatening her to life. The said witness (PW-2) has admitted in his cross-examination that though he himself has not seen the Appellants quarreling/threatening to his daughter (D-1), but his daughter (D-1) had informed him that the Appellants

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used to threaten her. PW-4 Ramkeshwar (neighbour of the deceased and the appellants) has also stated that two months prior to the incident, she (D-1) was constructing a raw house and at that time there was a dispute raised by the Appellants regarding the land on which construction of the house was being made by her and the Patawri had made measured the land and found that some part of the land on which the house was being built by D-1 Panpati was belonging to A-2 Rajkumar and some part of the land of A-2 Rajkumar was belonging to D-1 Panpati and she was doing agriculture work on the land belonging to A-2 Rajkumar. Though in his cross-examination he has stated that he had heard about the said fact from the villagers, but it has been clearly admitted by him that there was a village meeting held in respect of the land dispute between D-1 Panpati and the Appellants and in the said meeting it was advised to A-2 Rajkumar that he should leave his possession over the said land as D-1 Panpati had already constructed her house on that land, though later A-2 Rajkumar had obtained a stay order in this regard through a court case. PW-5 Dhaneshwar (brother-in-law of D-1 Panpati) has made a similar statement that the land dispute between the

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Appellants and D-1 Panpati arose when she started construction of her house and the Patwari had inspected and measured the disputed land belonging to D-1 Panpati. The statements of the aforesaid witnesses also find support from the statement of PW-1 Shankar Prasad (brother of D-1 Panpati), PW-3 Ramashankar (nephew of D-1 Panpati) and PW-6 Shanti Devi (neighbour of the deceased and the appellants) who have stated that there was a land dispute between D-1 Panpati and the Appellants. As such, though there is no documentary evidence produced by the prosecution regarding the said land dispute, but from the oral statements of the aforesaid witnesses who are relatives and immediate neighbours of D-1 Panpati and who have clearly stated that the Patwari had inspected and measured the disputed land properties belonging to D-1 Panpati and A-2 Rajkumar and that A-2 Rajkumar had objected D-1 Panpati on her constructing a house on the disputed land and thereafter he had also threatened her on her doing agriculture work on the part of his land as per the statement of PW-2 Bhagwan Das, it is quite established that there was a strong and adequate motive of a land dispute

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available between the Appellants and D-1 Panpati and on account of which their relationship was not cordial but strained. As such, though there was a strong motive available for the Appellants for committing murder of the deceased persons and it has been established by the prosecution and the finding recorded by learned Trial Court in this behalf is well merited and therefore the same is hereby affirmed.

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2 nd Incriminating Circumstances

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15. The second incriminating circumstance which has been found proved by learned Trial Court is that on the date of offence A-2 Rajkumar had threatened D-1 Panpati to her life. In this regard, learned Trial Court has relied upon the statement of PW-2 Bhagwan Das, PW-4 Ramkeshwar and PW-5 Dhaneshwar. According to the statement of PW-2 Bhagwan Das (father of D-1 Panpati), on the date of offence his daughter (D-1) had come to his house and informed him that the Appellants were threatening her to life and on which he advised her to lodge a report at police station, but on the very night the incident happened. However, in his cross-examination he has admitted that he has

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not personally seen or heard the Appellants threatening to his daughter (D-1) and has further admitted that he has not seen the incident and only on the basis of suspicion has made the statement that the Appellants has committed the said offences. PW-4 Ramkeshwar (neighbour of the deceased and the appellants), has stated in his statement that he has a tea-stall situated beside the police station and on Friday (25.7.2014) A-2 Rajkumar had come to his teastall in a day time and said in a threatening term that even if he gets jail sentence but he will see D-1 Panpati and in the same night the incident occurred. He has also stated in paragraph-5 of his statement that on Friday (25.7.2014) A-2 Rajkumar was roaming in the village streets and threatening D-1 Panpati and her two daughters (D-2 Ku. Bindu & D-3 Ku. Kintu) to their life. However, in his cross-examination, this witness (PW-4) has admitted that he has not informed to anyone about A-2 Rajkumar threatening D-1 Panpati to her life in a drunken state in a day time on the date of incident and has also admitted that he does not know the police personnel of their name, which is hard to believe as admittedly he has his teastall situated just beside the police station. Similarly,

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though PW-5 Dhaneshwar (brother-in-law of D-1 Panpati) has stated in his statement that on 25.7.2014 A-2 Rajkumar was threatening D-1 Panpati near her house because of her sowing paddy on the field, but in his cross-examination he has clearly admitted that he has not personally heard the said threat made by A-2 Rajkumar near the house of D-1 Panpati and that he had heard about that from someone else. He has further admitted that he had also not heard A-2 Rajkumar saying near the house of D-1 Panpati that if she had sown paddy in the field then he would also cultivate the field by tractor and sow paddy on the field. This incriminating circumstance, as such, is not established by the prosecution at all.

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3 rd Incriminating Circumstance

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16. Similarly, with regard to incriminating circumstance that prior to the date of incident A-1 Santosh had threatened the three deceased persons (D-1, D-2 & D- 3) that he would kill all them, learned Trial Court has relied upon the statement of A-3 Ramashankar who is nephew of D-1 Panpati and has stated in paragraph-2 of his statement that many days prior to the date of incident, A-1 Santosh had stated before him that if he

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is to kill then he would kill not one but all three of the deceased persons (D-1, D-2 & D-3). This witness also has in his cross-examination admitted that he had not informed to her aunt (D-1) or anyone else regarding the said threat made by A-1 Santosh of killing all three deceased persons and has also admitted that the said threat was made many days prior to the date of incident. As such, this incriminating circumstance is not at all established by the prosecution.

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4 th Incriminating Circumstance

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17. So far as the fourth incriminating circumstance which has been relied upon by learned Trial Court is concerned, PW-6 Shanti Devi, who is a neighbour of D-1 Panpati, has stated in her statement that in the Friday (25.7.2014) night at about 10:00 she was in her house which is situated near the road and it was raining heavily in that night. At that time, according to her, A-2 Rajkumar along with one other person who had covered his face with black cloth was going towards Gautiya hotel and that she had identified A-2 Rajkumar from the lights of the vehicles moving on the road. However, in her cross-examination, she has clearly admitted that A-2 Rajkumar and the other

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person who was along with him were not going towards the house of D-1 Panpati and that she had identified A-2 Rajkumar from the lights of the vehicle moving on the road. It is not her statement that A-2 Rajkumar or the other person who was along with him, anyone of them was carrying any weapon with them. It also does not clearly establish from her statement that the other person who was going along with A-2 Rajkumar while his face covered with black cloth was actually A-1 Santosh. Thus, even if we rely upon the statement of PW-6 Shanti Devi assuming that it was A-2 Rajkumar who was seen by her going somewhere in the night when the incident had happened, that alone would not lead to the guilt of the Appellants, as admittedly A-2 Rajkumar/A-1 Santosh were not last-seen in the company of any of the deceased persons, but he along with one other person was seen by PW-6 Shanti Devi going somewhere and that too other than the house of D-1 Panpati and they were not seen armed with any type of weapon as well as the identity of the other person whom she had seen along with A-2 Rajkumar is not proved at all. Thus, only on the basis of the statement of PW-6 Shanti Devi that A-2 Rajkumar was seen by her roaming

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around in the night of occurrence at 10:00 p.m., it cannot be held that A-2 Rajkumar and A-1 Santosh had visited the house of the deceased persons (D-1, D-2 & D-3) and committed the offences alleged. The theory of last-seen together must be established beyond reasonable doubt.

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18. In this regard, their Lordships of the Supreme Court in the matter of Navaneethakrishnan v. State by Inspector of Police4 , have held that though the evidence of last seen together could point to the guilt of the accused, but this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration, and observed in paragraph-22 as under:-

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19. “22 . PW 11 was able to identify all the three accused in the court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross-examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW 11 is established and inspires full confidence, it is well established that it is the accused who were last

(2018) 16 SCC 161

4

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seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration. ”

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5 th Incriminating Circumstance

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20. The last incriminating circumstance which the learned Trial Court has found proved is the recovery of bloodstained weapons and clothes pursuant to the memorandum statements of the Appellants. Memorandum statement of A-1 Santosh was recorded vide Ex. P-12 pursuant thereto, a wooden handle stained with blood like spots and an axe were recovered from the well belonging to one Bulla vide seizure memo (Ex. P-14) and one set of black colour full-pant and T-shirt stained with blood like spots also were recovered vide seizure memo (Ex. P-15). Similarly, pursuant to the memorandum statement

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(Ex. P-13) of A-2 Rajkumar, one steel knife stained with blood like spots was recovered from his house vide seizure memo (Ex. P-16). PW-9 Dilip Kumar and PW-10 Santosh Kumar are the two witnesses of memorandum and seizure proceedings. Though both these witnesses have admitted their signatures on the memorandum and seizure memos (Exbts. P-12 & P-13 and P-14, P-15 & P-16), but they have clearly stated that no memorandum and seizure proceeding was done in their presence and therefore they were declared hostile. However, on the leading question put to them though they have stated that the recovery of axe was made in their presence at the instance of A-1 Santosh from the well of Bulla, but the wooden handle and clothes were not seized from A-1 Santosh in their presence and recovery of knife was also not made in their presence from A-2 Rajkumar. PW-9 Dilip Kumar has in paragraph-8 of his statement stated that his signatures were obtained on the memorandum statements and seizure memos at the police station itself. Similarly, PW-10 Santosh Kumar, has stated in paragraph-6 of his statement that seizure of knife was made at police station by showing him the said knife. So far as the recovery of axe is

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(Cr. A. No. 827 of 2018)

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concerned, PW-9 Dilip Kumar has stated in his examination-in-chief that there was a crowd gathered near the well of Bulla in village Basantpur and therefore he had gone there and on being asked by the police, he had bring out the axe from inside the well. In his cross-examination, he has stated that he does know as to whom the axe, which was recovered from the well of Bulla, actually belongs to. The well was situated at an open place and therefore it was accessible to all and therefore the recovery of axe cannot be said to be unimpeachable. The said well out of which the axe was recovered, from its name “Bulla ka Kuan” seems to be of one Bulla, who has not been examined by the prosecution. As such, the recoveries of alleged weapon of offences i.e. axe, wooden handle & knife and the clothes at the instance of the Appellants cannot be said to be duly established beyond reasonable doubt.

¶138

21. Moreover, in the FSL report dated 28.11.2014 (not exhibited), blood was found on the axe (Art. G), wooden handle (Art. H), T-shirt (Art. J) and full-pant (Art. K) allegedly seized at the instance of A-1 Santosh and on the knife (Art. I) alleged to have been seized from A-2 Rajkumar and apart from that blood was

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(Cr. A. No. 827 of 2018)

¶141

also found on the blood mixed earth and on the clothes of three deceased persons. As such, in absence of human blood on the alleged weapons of offence and clothes seized at the instance of the Appellants, their recovery would not be helpful for the prosecution in this case inasmuch as there is no evidence to show that the said weapons of offence were stained with human blood, and more particularly with blood of the same blood group as that of the deceased persons, as held by the Supreme

¶142

Court in Balwan Singh (supra). Therefore, the recovery of alleged weapons of offence i.e. axe, wooden handle and knife or for that matter the clothes at the instance of the Appellants, would be of no use to the prosecution unless the same are connected to the offence allegedly committed by the Appellants.

¶143

22. Another fact which needs to be considered at this stage is that though pursuant to the memorandum statements of the Appellants, the recovery of axe, wooden handle, knife and clothes were made on 26.7.2014 but these articles along with other seized articles were received at the Office of Forensic Science Laboratory, Surguja (Ambikapur) on 24.9.2014 as per receipt (Ex. P-30) i.e. after a period of about two

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(Cr. A. No. 827 of 2018)

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months. There is no evidence on record that the seized articles were kept in a safe custody during the said period and there is no reason shown for keeping the seized articles for around two months with the police without any rhyme or reason and therefore possibility of fabrication and tampering with the alleged weapons of offence also cannot be ruled out.

¶147

Conclusion:

¶148

23. From the discussion above, the facts which are quite apparent are that the death of three deceased persons i.e. D-1 Panpati, D-2 Ku. Bindu and D-3 Ku. Kintu was homicidal in nature and which is established beyond doubt. So far as the first incriminating circumstance qua the motive of offence is concerned, the strong and adequate motive for commission of alleged offences by the Appellants is well established. However, as regards the second and third incriminating circumstances that on the date of offence A-2 Rajkumar had threatened D-1 Panpati to her life and that prior to the date of offence A-1 Santosh had also threatened the three deceased persons (D-1, D-2 & D-3) to their life, both these incriminating circumstances are not at all found to be established beyond reasonable doubt. Similarly, as

¶149

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¶150

(Cr. A. No. 827 of 2018)

¶151

regards the fourth incriminating circumstance, from the statement of PW-6 Shanti Devi also it is not established that it was A-2 Rajkumar and A-1 Santosh who had visited the house of the deceased persons (D-1, D-2 & D-3) on the date of offence and caused their death and, as such, the theory of lastseen together is also not found to be established beyond reasonable doubt. Likewise, the fifth incriminating circumstance as regards the recoveries of alleged weapon of offences i.e. axe, wooden handle & knife and the clothes at the instance of the Appellants, as discussed herein-above, the same also is not established beyond reasonable doubt.

¶152

24. Thus, apart from the death of three deceased persons found established to be homicidal, only incriminating circumstance qua motive of offence has been found to be established and the other incriminating circumstances viz., the alleged threat made by the appellants to the deceased persons, the theory of lastseen together as also the recoveries of alleged weapon of offences i.e. axe, wooden handle & knife and the clothes at the instance of the appellants are not at all established beyond reasonable doubt. The motive however adequate cannot sustain a criminal charge in

¶153

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(Cr. A. No. 827 of 2018)

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absence of clear and cogent evidence pointing to the guilt of accused and motive alone can hardly be a ground for conviction in absence of any other v. circumstantial evidence. [See: Sampath Kumar

¶156

Inspector of Police, Krishnagiri5 ]

¶157

25. Even otherwise, since it is a case of triple murder we have also gone through the entire record of the case, but there is no other incriminating circumstance which is available on record and not considered by learned Trial Court. As such, apart from the above incriminating circumstances considered by learned Trial Court, no other incriminating circumstance is available on record pointing out the guilt of the appellants to the commission of the alleged offences.

¶158

26. It is settled position of law that for proving a case based on circumstantial evidence it is necessary for the prosecution to establish each and every circumstances beyond reasonable doubt and the circumstances so proved must form a complete chain of evidence, in view of the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence as held by the Supreme Court in the matter of Sharad Birdhi Chand Sarda

¶159

(supra). As such, the prosecution has utterly failed to 5 (2012) 4 SCC 124

¶160

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(Cr. A. No. 827 of 2018)

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prove the aforesaid incriminating circumstances beyond reasonable doubt.

¶163

27. In view of the five incriminating circumstances decided above, case of the prosecution seems to be based only on suspicion, as is apparent from Merg Intimation (Ex. P-2) lodged by PW-1 Shankar Prasad, brother of D-1 Panpati, on 26.7.2014 at 8:30 a.m. wherein he has stated that the death of D-1 Panpati, D-2 Ku. Bindu and D-3 Ku. Kintu has been caused by some unknown person using sharp edged weapon after entering into their house in the intervening night of 25th & 26th of July, 2014. Subsequently, after 20 minutes at 8:50 a.m., on 26.7.2014, a named FIR (Ex. P-1) was lodged by him (PW-1) against A-1 Santosh and A-2 Rajkumar again on the basis of suspicion on account of an existing land dispute between A-2 Rajkumar and D-1 Panpati. In his cross-examination he has admitted that he had lodged the report at Police Station Basantpur against the Appellants on the basis of suspicion. PW-2 Bhagwan Das, father of D-1 Panpati, also has admitted in his crossexamination that only on the basis of suspicion he has made the statement that the offence was caused by the Appellants. Similarly, as per the statements of

¶164

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¶165

(Cr. A. No. 827 of 2018)

¶166

other prosecution witnesses also there seems to be suspicion against the Appellants on the basis of their previous conduct and on the ground that A-2 Rajkumar was seen by PW-6 Shanti Devi on the road in front of her house in the fateful night and that had caused their implication in the crime. The land dispute between the deceased persons and the appellants has also been suspected to be the motive of the offence allegedly committed by the Appellants. The recovery of bloodstained articles have not been duly proved in the instant case.

¶167

28. Recently, the Supreme Court in the matter of Guna

¶168

6

¶169

Mahto v. State of Jharkhand , relying upon its

¶170

decision in the matter of Sharad Birdhichand Sarda (supra), has reiterated that it is a settled principle of criminal jurisprudence that in a case revolving around circumstantial evidence, the prosecution must prove the guilt of the accused beyond reasonable doubt and the circumstances relied upon must point out only towards one hypothesis, that is, the guilt of the accused alone and none else. Their Lordships have further, relying upon earlier decisions of the Supreme Court, reiterated that suspicion howsoever grave it

¶171

may be, remains only a doubtful pigment in the story 6 (2023) 6 SCC 817

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(Cr. A. No. 827 of 2018)

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canvassed by the prosecution for establishing its case beyond any reasonable doubt and also held that it is our bounden duty to ensure that miscarriage of justice is avoided at all costs and the benefit of doubt, if any, given to the accused.

¶175

29. Accordingly, we are of the considered opinion that finding of conviction recorded by learned Trial Court is not based on correct and complete appreciation of evidence and is absolutely unjustified and therefore both the Appellants are entitled to be acquitted of the offences under Sections 460 and 302 (three counts) on the basis of benefit of doubt and it is accordingly held so.

¶176

30. In the result, this Criminal Appeal is allowed and the impugned Judgment dated 19.10.2016 is hereby setaside. Consequently, the conviction and sentence of the Appellants for offences under Sections 460 and 302 (three-counts) also stand set-aside and they are acquitted of the said offences. They are stated to be in jail since 27.7.2014. We direct them to be released forthwith, if they are not required in connection with any other offence.

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(Cr. A. No. 827 of 2018)

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31. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also served with a copy of this judgment, for information and necessary action, if any, at the

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earliest.

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Sd/- Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

¶182

sharad

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Digitally signed SHARAD by SHARADKUMAR YADAV KUMARYADAV Date:2025.01.1312:59:04 +0530

Santosh Kumar v. State of Chhattisgarh

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Santosh Kumar v. State of Chhattisgarh

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