Mohammad Rasid @ Raju Vs State of Chhattisgarh

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RAGHVENDRAJAT Digitallysigned byRAGHVENDRAJAT

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 909 of 2011

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Judgment Reserved on: 15.9.2025

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Judgment Delivered on: 17.10.2025

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Hari Ram Sahu S/o Gangadhar Prasad Sahu aged about 30 years, Occupation-Shop R/o Village-Kewdabadi, Sivanagar, Thana Kotwali Raigarh, District-Raigarh at present-House of Vivek Thakur, Near Bavali Well, Raigarh, District-Raigarh, C.G.

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--- Appellant(s)

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versus

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State of Chhattisgarh through P.S. Kotwali, Raigarh, DistrictRaighar, C.G.

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--- Respondent(s)

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CRA No. 941 of 2011

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Mohammad Rasid @ Raju S/o Mohammad Safi Pathan, aged about 38 years, R/o Laxmipur, Saraswati Shishu Mandir Road, Raigarh, Police Station-Kotwali, Raigarh, District-Raigarh, C.G.

---Appellant(s)

versus

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State of Chhattisgarh through P.S. Kotwali, Raigarh, DistrictRaighar, C.G.

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--- Respondent(s)

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For Appellant(s) : Mr. Ashish Gupta, Advocate. For Respondent(s)/State : Mr. Ashish Shukla, Addl. A.G.

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Division Bench

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Hon’ble Smt. Justice Rajani Dubey, J &

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Hon’ble Shri Justice Amitendra Kishore Prasad, J.

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C A V Judgment

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Per, Amitendra Kishore Prasad, J.

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The present are two criminal appeals under Section 374 (2) of Cr.P.C. CRA No. 909/2011 has been filed by Hariram Sahu and CRA No. 941/2011 has been filed by Mohammad Rasid @ Raju.

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Since these appeals have arisen out of the same impugned judgment passed by the 1^st Upper Sessions Judge, Raigarh, District-Raigarh, C.G. and the question of law and facts also being similar in these appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

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Challenge in the present appeals is to the legality, validity and correctness of the judgment of conviction and order of sentence dated 23.11.2011, passed by the 1^st Upper Sessions Judge, Raigarh, C.G., in Sessions Trial No. 28/2011, by which, Hariram Sahu and Mohammad Rasid @ Raju both have been convicted and sentence as under:-

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Conviction		Sentence
Under Section 302/34 of IPC	Imprisonm	ent for life.
Under Section 201/34 of IPC	Rigorous	Imprisonment for 7
	years.

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Both the sentences run concurrently

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Brief facts of the case, is that, on 26.11.2010, in the morning, the

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informant Ravish Singh Bhatia informed Balya Swabhav Singh Bhatia, resident of Sonia Nagar Kotara Road, Naraygarh, that Damodar Devangan came to his house and told him that near Mahadev Temple, in the water of the rally bari, a dead body was found lying, and there was a blue-colored Hero Honda Fashion motorcycle parked there, on which was written "Police / Anchal" with the number CG 11/B 5229. Behind the temple, there was a lot of blood spilled, and it appeared that the person was beaten to death there, the body was dragged and thrown into the stagnant water, with the head underwater and both feet outside. Upon hearing this, they went to the spot along with Damodar Devangan to see the body and informed the City Kotwali Police Station, Raigarh. Based on this information, a Zero Report was registered at the spot by the Narag Police Station of Kotwali Raigarh, and accordingly, under Sections 302 and 201 of the Indian Penal Code, a case was registered at the Rural Nalasi Police Station. The case was taken to City Kotwali Police Station and registered as Case No. 99/10 under Section 174 of the Criminal Procedure

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Code, and investigation was carried out. Based on the Dehati Nalasi report, a case No. 869/10 was registered at Kotwali Police Station under Sections 302 and 201 of the IPC, and investigation was conducted. After investigation, the accused were found guilty of offenses under Sections 302, 201 read with Section 34 of the IPC. Charge sheet No. 59/11 was prepared and submitted on 11.02.2011 before the Judicial Magistrate First Class, Raigarh. The criminal case No. 74/11 was registered as State of Chhattisgarh vs. Hariram Sahu and another. The Sessions Judge found the case fit for trial and committed the case. Subsequently, the case was registered as Criminal Case No. 28/11 before the Hon’ble Sessions Judge, Raigarh, against the State of Chhattisgarh vs. Hariram and another on 07.03.2011. The case was transferred to the Third Additional Sessions Judge, Raigarh, for proper disposal, and thereafter transferred to the First Additional Sessions Judge, Raigarh, for trial, where it was received for consideration.

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After completion of investigation, appellants were charge-sheeted for the aforesaid offences before the jurisdictional Criminal Court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the

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appellants abjured their guilt and entered into defence by stating that they have not committed any offence and they have been falsely implicated.

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In order to bring home the offence, prosecution examined as many as witnesses and exhibited documents. Statements of the appellants were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants for the offences as mentioned in the opening paragraph of the judgment, against which these appeals have been preferred by the appellants questioning the impugned judgment of conviction and order of sentence.

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Learned counsel for the appellants submits that the conviction has been founded on a notably weak and insubstantial base of circumstantial evidence. The prosecution has primarily relied on two key circumstances to implicate the appellants, firstly, the recovery of blood-stained clothes purportedly at the instance of one of the appellants, Hariram, and secondly, the alleged phone call made by Hariram to the deceased in Raigarh. However, it was strongly argued that the prosecution failed to convincingly

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establish the testimony of Geeta Sahu (PW-11), the deceased’s wife, regarding the telephonic communication, thereby casting significant doubt on this piece of evidence. Furthermore, the mere fact that the deceased traveled to Raigarh on his motorcycle does not, in any way, corroborate or link the appellants to the crime. Crucially, the prosecution did not prove the presence of human blood on the seized clothes nor establish that the blood belonged to the deceased by identifying the relevant blood group, rendering this evidence highly tenuous. Given the fragility and insufficiency of the prosecution’s evidence, the trial court erred in convicting the appellants, and therefore, they are rightfully entitled to acquittal, with the impugned judgment deserving to be set aside in the interest of justice.

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On the other hand, learned counsel for the State, while opposing the submissions advanced on behalf of the appellants, submits that the trial Court, after a threadbare appreciation of the entire evidence available on record, has rightly arrived at the conclusion of guilt against the appellants. He further submits that the trial Court has taken into consideration every relevant aspect of the matter and has meticulously analyzed the chain of circumstances which, when taken cumulatively, unerringly point towards the guilt of the appellants. Learned counsel further submits that the circumstances proved against the appellants stand firmly

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established and are consistent only with the hypothesis of his guilt, thereby excluding every other possibility. The so-called weaknesses pointed out by the learned counsel for the appellants are without any substance and have already been duly dealt with and repelled by the trial Court with cogent reasons. It is therefore argued that the impugned judgment is well-reasoned, based on proper appreciation of evidence, and does not suffer from any perversity or illegality warranting interference by this Hon’ble Court. Accordingly, the conviction recorded against the appellants deserves to be upheld and the appeal is liable to be dismissed at the threshold.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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The first question for consideration would be whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem reports (Ex.P-10) proved by PW-5 Dr. Anil Kumar Tirki, 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.

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Vinod Yadav, identified as PW-1 and an auto rickshaw driver by profession, has testified that approximately five to six months ago,

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Hariram had called him to a marriage venue called Manglam, where Hariram had set up his bettal shop. However, when confronted with his earlier police statement recorded under Section 161 of the Criminal Procedure Code, Vinod clarified that in that statement, he did not mention any details about the death of the deceased nor did he confirm his own presence at the relevant time. He expressed uncertainty and claimed ignorance about how these particular statements regarding the deceased's death and his involvement were recorded by the police, implying that those portions may have been inaccurately or improperly documented. He has been declared hostile by the prosecution as he has not supported the case of the prosecution.

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Dilip Yadav, identified as PW-2, served as the memorandum and seizure witness, as evidenced by Exhibits P/5, P/6, and P/7. However, despite his initial involvement, the prosecution declared him hostile due to his failure to corroborate their case. During cross-examination, Dilip Yadav explicitly stated that he signed all the relevant documents in a single session at the police station, between 9 and 10 a.m. Notably, he did not substantiate or verify the contents of the memorandum and seizure documents, thereby undermining their evidentiary value and casting doubt on the prosecution’s claims.

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Dheeraj Gupta, also known as Dheeru and identified as witness PW-3, has been officially declared a hostile witness in the case. During his testimony, he denied the suggestion that, on the date of the incident at approximately 9:00 pm, the appellant, Hariram, was present at his Bettal shop, which he operated within the marriage hall where the deceased, Rajesh Sahu, was also present. Despite being a witness expected to support the prosecution, Dheeraj Gupta’s statements contradicted the earlier allegations, leading to his classification as hostile by the court.

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Ravi Vishwakarma, identified as PW-4, has been formally declared a hostile witness. Despite having previously recorded a statement before the police under Section 161 of the Criminal Procedure Code, he has now disavowed the contents of that statement. Specifically, he has denied having made the statements attributed to him during the police interrogation, asserting that the recorded version does not reflect his actual testimony or words. This contradiction has raised significant questions about the reliability and consistency of his testimony in the ongoing proceedings.

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Dr. Anil Kumar Tirki, identified as PW-5, is the medical professional who performed the post-mortem examination of the deceased. Upon thorough analysis, he concluded that the cause of death was syncope resulting from a cut to the treclua, further

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categorizing the death as homicidal in nature. However, during cross-examination, Dr. Tirki conceded that the query report, marked as Exhibit P/11, did not specify whether the weapon of offense had been received by him in a sealed condition, thereby leaving a procedural detail unaddressed in the documentation.

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Uma Gupta, who has been formally designated as Prosecution Witness number 6 (PW-6), holds the position of Sub-Inspector. In her official capacity, she undertook the critical responsibility of documenting and registering the First Information Report (FIR) pertaining to the incident. This report specifically addresses the involvement of unidentified individuals whose roles and actions are central to the ongoing investigation. Her detailed recording of these initial facts has been instrumental in laying the groundwork for further legal and investigative procedures.

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Radheshyam Kamal, who is identified as Constable No. 530 and designated as PW-7, served as the official witness during the seizure documented as Exhibit P/17.

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Smt. Prunika Meha, holding the position of Patwari for PW-9, was responsible for preparing the spot map as documented in Exhibit P/20. Upon thorough examination and inquiry, no substantial or significant information could be derived or elucidated from the prepared spot map or related proceedings.

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Anjor Sai Sahu PW-10 is the father of the deceased he has been declared hostile by the prosecution, however, in the cross examination he has stated that he has been informed his son deceased Rajesh Sahu has met with an accident. Earlier when his son and his cousin brother Ramkrishna met with an accident in which Ramkrishna has died and the deceased Rajes Sahu has sustained injuries a claim petition was filed against the offending vehicle dumper and for recording evidence he was regularly been called by the father of Ramkrishna. Thereafter the claim petition was decided. He further stated that in his police statement he has doubt upon the accused persons, however, if the same is not available in the police statement he is not knowing about the same.

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Geeta Sahu PW-11 is the widow of the deceased this witness has informed about the accidental death of her husband on the day of Janmasthmi in the year 2007 her maternal uncle Gangadhar has called the deceased along with documents of accident of his brother-in-law who died in motor accident. She has raised doubt against the appellant Hariram Sahu as he has called the deceased for his share in the claim case upon which her husband has said that he will come after a week. However, she has stated that all the doubts have been stated in the police statement which is missing and the reason for missing of the statement is not

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knowing to her. She has admitted this fact that on the instruction of concerned police she is making statement against the accused persons. She has not seen the incident.

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Vijay Yadav, PW-12 is the witness of seizure memo vide Ex.P/22 who has been declared hostile.

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Sushanti Banarji PW-13 is the I.O. who has conducted the investigation in the matter. He has admitted this fact that in the FIR as well as in the Dehati Nalsi has been recorded unknown person. However, subsequently during investigation on the basis of memorandum and seizure the accused persons have been made accused.

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The Hon’ble Supreme Court in the mater of Raja Khan vs State of Chhattisgarh reported in 2025 SCC Online SC 260 has held as under:-

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“16…the entire case of the prosecution rests on circumstantial evidence, as there is neither any eyewitness nor any judicially admissible confession. It is well settled law that where the case rests entirely on circumstantial evidence, the chain of evidence must be so far complete, such that every hypothesis is excluded but the one proposed to be proved and such circumstances must show that the act has been done by the Appellant-accused within all human probability (See Hanumant v. State of Madhya Pradesh, (1952) 2 SCC 71). In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116,

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this Court outlined five essential principles, often referred to as five golden principles, which must be satisfied for circumstantial evidence to conclusively establish the guilt of the Appellant-accused:

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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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(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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17. To prove the charges, the prosecution has laid emphasis on recovery of weapon of assault (stone as well as the gandasa) and gold chains belonging to the deceased, on the basis of statement (Ex. P-23) given by the Appellant-accused while in custody.

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18. Sections 25 and 26 of the Evidence Act stipulate that confession made to a police officer is not admissible. However, Section 27 is an exception to Sections 25 and 26 and serves as a proviso to both these sections [Delhi Administration v. Bal Krishan, (1972) 4 SCC 659].

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19. This Court is of the view that Section 27 lifts the ban, though partially, to the admissibility of confessions. The removal of the ban is not of such an extent so as to absolutely undo the object of Section 26. As such the statement whether confessional or not is allowed to be given in evidence but that portion only which distinctly relates to discovery of the fact is admissible. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the Appellant-accused as to its existence (Udal Bhan v. State of Uttar Pradesh, AIR 1962 SC 1116).

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20. The essential ingredients of Section 27 of the Evidence Act are threefold:

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i. The information given by the accused must led to the discovery of the fact which is the direct outcome of such information.

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ii. Only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused.

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iii. The discovery of the facts must relate to the commission of such offence.

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21. The question as to whether evidence relating to recovery is sufficient to fasten guilt on the accused was considered by this Court in Bodhraj Alias Bodha v. State of Jammu & Kashmir, (2002) 8 SCC 45, wherein it has been held as under: -

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"18... Section 27 of the Indian Evidence Act, 1872 (in short "Evidence Act") is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn v. Balakrishan ((1972) 4 SCC 659] and Mohd. Inayatullah v. State of Maharashtra ((1976) 1 SCC 828]. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive

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powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken in to custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given

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by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor [AIR 1947 PC 67], is the most quoted authority of supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [See State of Maharashtra v. Dam Gopinath Shirde, (2000) 6 SCC 269]. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to

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make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.

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(emphasis supplied)”

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25. The Hon’ble Supreme Court in the matter of Raja Naykar vs. State of Chhattisgarh (2024) 3 SCC 481 has held as under:-

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“It can thus be seen that, the only circumstance that may be of some assistance to the prosecution case is the recovery of dagger at the instance of the present appellant. However, as already stated hereinabove, the said recovery is also from an open place accessible to one and all. In any case, the blood found on the dagger does not match with the blood group of the deceased. In Mustkeem v. State of Rajasthans, this Court held that sole circumstance of recovery of bloodstained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused. Thus, we find that only on the basis of sole circumstance of recovery of bloodstained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt. ”

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Also, the Hon’ble Supreme Court in the matter of Thakore Umedsing Nathusing vs. State of Gujarat 2024 SCC OnLine

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SC 320 has dealt with the recovery and blood stains not found to be that of the deceased and the relevant para reads as under:-

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“35. We have gone through the evidence of the concerned police officials associated with the recoveries and find their testimonies to be highly doubtful. The knife which was recovered at the instance of A3 was found from a nala which is a place open and accessible to all. The knife attributed to A4 was presented by one Shobhnaben wife of Kanji Chhara and thus it cannot be linked to A4. Thus, these recoveries in no manner can be treated to be incriminating in nature. In the case of Mustkeem alias Sirajudeen v. State of Rajasthan, reported in (2011) 11 SCC 724, this Court held that the solitary circumstance of recovery of blood-stained weapons cannot constitute such evidence which can be considered sufficient to convict an accused for the charge of murder. We thus find the recoveries to be highly doubtful and tainted. Even if it is assumed for a moment that such recoveries were effected, the same did not lead to any conclusive circumstance in form of Serological report establishing

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the presence of the same blood group as that of the deceased and hence they do not further the cause of prosecution. In addition thereto, we find that the prosecution failed to lead the link evidence mandatorily required to establish the factum of safe keeping of the muddamal articles and hence, the recoveries became irrelevant.”

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In the matter of Debapriya Pal vs. State of West Bengal (2017) 11 SCC 31, the Hon’ble Supreme Court has held with the issue that even if blood stain was found, the blood group of accused or deceased was not ascertained. The relevant para reads as under:-

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“For the sake of argument, we are presuming that they were present at the time when the appellant brought bloodstained clothes from his house and gave the same to the police. What is material is the reliance on these bloodstained clothes for the culpability of the appellant herein. As per the prosecution, the blood group on these bloodstained clothes matched with the blood on the bedsheet on which the body of one of the deceased persons was found. The record reveals that though blood of both the deceased persons was drawn and sent for examination, it is not known as to

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what was the report thereupon and what was the blood group of the deceased persons. No such blood report has been produced. So much so, blood group of the accused persons was also not ascertained. Even if we presume that the blood on the bedsheet was that of the deceased, the possibility cannot be ruled out that the same blood group as of the appellant-accused thereof. Therefore, mere matching of the blood group on the bloodstained clothes, which was even on the bedsheet, would not lead to the conclusion that it is the appellant who had committed the crime.”

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In the matter of Shantabai and others vs. State of Maharashtra (2008) 16 SCC 354, the Hon’ble Supreme Court has held as under:-

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“25. In support of the fifth circumstance, the prosecution has examined Dr. Hanumant, who performed post-mortem on the dead body of the deceased Gunwant on 15-8-1993. The doctor noticed as many as thirteen injuries on the body of the deceased as described in the post-mortem report (Ext. 41). According to the opinion of the doctor, the cause of death was because of shock due to cardio-

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respiratory failure caused by injury to brain and brain haemorrhage. The chemical analyser's report would reveal that ethyl alcohol was found in the viscera contents of the deceased.

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26. We may point out that the investigating officer has not cared to collect the fingerprints appeared on the stones and axe, the alleged weapons of offence, at the time of seizure of the articles nor had he taken the fingerprints of the appellants for comparison with the fingerprints, if any, detected on the alleged weapons of offence. The articles collected by the investigating officer from the spot were found lying in the open place which was accessible to all and sundry. The prosecution has not led any evidence to prove that axe, which was the alleged weapon of offence, found on spot in the open place belonged to A-1, A-2 and A-3. Thus, the prosecution has not established beyond reasonable doubt that A-1, A-2 and A-3 had used the recovered weapons of offence in the commission of the crime.

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28. The chemical analyser's report (Ext. 72) reveals that human blood of Group 'B' was detected on the clothes, which were seized by the police, allegedly

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belonging to the appellants. The blood group on those clothes did not tally with the blood of Group 'O', which was found on the clothes of the deceased and on the sample of soil, axe, stones, handles, etc, which were taken from the spot by the investigating officer. The investigating officer has categorically stated that when he along with A-1 and panch witnesses had gone in search of the clothes of the appellants, the lock to the door of the house of the appellants was kept with the Police Patil which was opened by them later on. In this view of the matter, the prosecution has not proved that d the clothes, which were allegedly seized by the police at the instance of A-1 and lying in the open place, were stained with Blood Group 'O' of the deceased found on the deceased's clothes and on the articles which were seized by the investigating officer from the place of occurrence. These circumstances are not proved by the prosecution by lending cogent, satisfactory and convincing evidence to hold A-1, A-2 and A-3 guilty of the offence.” ”

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Also, the Hon’ble Supreme Court in the matter of Dhananjay Shanker Shetty vs. State of Maharashtra (2002) 6 SCC 596

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has held as under:-

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“9. Another circumstance which was alleged against the appellant was that bloodstained clothes and weapon were recovered from his house, but the trial court as well as the High Court did not place any reliance upon this circumstance in view of the fact that according to the report of the chemical examiner, the blood group found thereon did not tally with that of the deceased.”

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The Hon’ble Supreme Court has consistently held that such failure materially affects the evidentiary value of the alleged recoveries. In Kansa Behera v. State of Orissa, (1987) 3 SCC 480, the Court held:

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“Unless the blood stains found on the clothes or weapons are proved to be that of the deceased, the discovery cannot be said to incriminate the accused beyond doubt.”

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Similarly, in Sattatiya @ Satish Rajanna Kartalla v. State of

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Maharashtra, (2008) 3 SCC 210 , it was observed:

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“In the absence of a serological report confirming that the blood on the clothes or weapon belonged to the

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deceased, the recovery is of no substantial help to the prosecution.”

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Again, in Vijay Shankar v. State of Chhattisgarh, (2022) 10 SCC 353 , the Apex Court reiterated:

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“The prosecution’s failure to establish, through scientific evidence, that the blood found on the weapon or clothes matched that of the deceased creates a serious doubt about the veracity of the recovery and the guilt of the accused.”

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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 Maharashtra reported in (1984) 4 SCC 116 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

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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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From the perusal of the evidence, it seems that Dehati Nalsi, Merg as well as FIR was recorded against unknown persons and thereafter subsequently the name of the accused persons have been stated only on the basis of doubt and suspicion there is no any cogent evidence in order to convict the appellants. The trial

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Court has based its conviction only on the basis of two circumstantial evidence i.e. memorandum and seizure of the blood stained clothes, however, the seizure based on memorandum has not been proved in accordance with law. So far as the other circumstances is concerned that the wife of the deceased has stated that the accused persons have called the deceased by their phone is also not established by the prosecution there is material omissions and contradictions in the statement of the witnesses especially Geeta Sahu (PW-11) the sole witness which the trial Court has based its judgment of conviction and order of sentence. It is trite law that suspicion howsoever grave cannot form the basis of truth. The prosecution has to prove the case beyond all reasonable doubt which it has utterly failed. Time and again, the Hon’ble Supreme Court has held in order to establish a case in respect of circumstantial evidence. The chain of circumstances should be link with each other and unless and until the links have been proved and link together conviction cannot be made.

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In the present matter, the prosecution has utterly failed to prove

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the guilt of the accused persons beyond all reasonable doubt. The circumstances which has been formed basis for conviction is not proved there was no link of chain of circumstances, the blood stained clothes were not found to be proved neither in the FSL

¶144

28

¶145

report there was no any matching of blood stains. Further the telephonic call made to the deceased was also not confirmed.

¶146

Accordingly, the appeals are allowed , and the judgment of conviction and order of sentence dated 23.11.2011 passed by the

¶147

1^st Upper Sessions Judge, Raigarh, C.G., in Sessions Trial No. 28/2011 is hereby set- aside. The appellants are acquitted of the charge under Sections 302 and 201/34 of Indian Penal Code and shall be released forthwith unless wanted in any other case.

¶148

The appellants are reported to be on bail.

¶149

In compliance with Section 437-A Cr.P.C., the appellants are directed to furnish a personal bond of Rs. 25,000/- each with two sureties of the like amount before the concerned court. The bond shall be effective for six months and include an undertaking that in case of filing a Special Leave Petition or grant of leave against this judgment, the appellants will appear before the Supreme Court upon receipt of notice.

¶150

Registry is directed to transmit the lower court record along with a copy of this judgment to the trial court forthwith for information and necessary compliance.

¶151

Sd/Sd/-

¶152

(Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge

¶153

Raghu Jat

Mohammad Rasid @ Raju v. State of Chhattisgarh

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Mohammad Rasid @ Raju v. State of Chhattisgarh

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