Sadhelal Sonwani vs State Of Chhattisgarh
2022 Latest Caselaw 6970 Chatt

                                         1
                                                                 Cr.A. No. 34 of 2013


                                                                               AFR
                     HIGH COURT OF CHHATTISGARH, BILASPUR
                           Criminal Appeal No. 34 of 2013
                          Judgment reserved on : 09/11/2022
                          Judgment delivered on : 21/11/2022

      Sadhelal Sonwani, S/o Umend Sonwani, aged about 30 years, R/o
       Koylari (Kampa), P.S. - Pandatarai, District Kabirdham, Chhattisgarh

                                                                   ---- Appellant
                                     Versus
      State of Chhattisgarh : through District Magistrate, Kabirdham, District
       Kabirdham, Chhattisgarh
                                                              ---- Respondent

For Appellant : Mrs. Indira Tripathi, Advocate

For Respondent : Mr. Arjit Tiwari, Panel Lawyer

DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Rakesh Mohan Pandey C.A.V. Judgment

Per Rakesh Mohan Pandey. J.

1. This Criminal Appeal under Section 374(2) of Cr.P.C. has been filed

against the impugned judgment of conviction and order of sentence

dated 12.12.2012 passed in Sessions Trial No. 29/2012 by the learned

Sessions Judge, Kabirdham, District Kabirdham (C.G.) whereby the

learned trial court has convicted the appellant herein for the offence

punishable under Section 302 of I.P.C. and sentenced him to life

imprisonment and fine of Rs. 1000/- and in default of payment of fine

amount, further rigorous imprisonment for 6 months.

2. The case of the prosecution, in brief, is that on the intervening night of

26-27.04.2012 the appellant committed murder of his wife Gotimbai,

with the use of axe.

3. Further case of the prosecution, in brief, is that Santan (P.W. 1), who is

Cr.A. No. 34 of 2013

the father of the deceased, lodged the FIR (Ex.P/1) at Police Station -

Pipariya on 27.04.2012 at about 6:15 AM to the effect that the

appellant herein had come to his house along with the deceased and

their three children to attend the marriage. Further, Santan (P.W. 1)

had advanced Rs. 2 lakhs for selection of his son Manoj (P.W. 7) as

Police officer, however, his son could not get selected, and therefore

he demanded the money back. In night of 26.04.2012, the deceased

also asked the appellant herein to refund the said amount, due to

which quarrel took place between them. On 27.04.2012, in morning

hours, the wife of Santan (P.W. 1) apprised him that the deceased is

lying dead. Santan (P.W. 1) also went to the spot and saw the

deceased dead lying face up on the earth and the blood stained axe

(tangiya) was also kept near her dead body. The appellant was

missing from the house; therefore, Santan (P.W. 1) on the basis of

strong suspicion lodged the FIR (Ex.P/1) against the appellant herein.

4. On the basis of FIR (Ex.P/1), Merg Intimation (Ex.P/2) was registered

and the investigation begun to run. ASI, Vishnu Prasad Sharma (P.W.

11) prepared the Inquest vide Ex.P/9. Thereafter, the body of the

deceased was sent for postmortem to District Hospital, Kawardha.

Spot map was prepared vide Ex./P15. Blood stained soil, plain soil,

and iron axe (tangiya) were seized vide seizure memo Ex.P/11. Vide

postmortem report Ex.P/13, Dr. P.C. Prabhakar (P.W. 10) had opined

that the deceased died due to excessive bleeding, which was result of

chopping off of her cervical and artery bone. On 27.04.2012 the

clothes worn by deceased were seized vide Ex.P/16, the appellant

herein was arrested, his memorandum statement was recorded vide

Cr.A. No. 34 of 2013

Ex. P/3, and pursuant thereto lungi worn by him was recovered from

his possession vide Ex.P/5. Also, one gold locket and gold nose pin

(fulli) was recovered from the conscious possession of the appellant

vide Ex.P/4. The seized articles were sent for F.S.L. and identification

of gold locket and nose pin was conducted by Nayab Tahsildar, P.R.

Bhaskar (P.W. 5), wherein Santan (P.W. 1) and his son Manoj (P.W. 7)

identified those articles as belonging to the deceased. After due

investigation, charge sheet was filed for offence punishable under

Section 302 of IPC against the appellant/accused before Chief Judicial

Magistrate, Kawardha, which was committed to the Court of Session,

Kabirdham, District Kabirdham, C.G. for hearing and disposal in

accordance with law. The learned trial court framed charge under

Section 302 of IPC against the appellant/accused. The appellant

abjured the guilt and entered into defence.

5. In order to bring home the offence, the prosecution examined as many

as 12 witnesses and brought 20 documents into record. Statement of

the appellant/accused was recorded under Section 313 of Cr.P.C.,

wherein he denied the guilt, and got exhibited 05 documents D/1 to

D/5.

6. Learned trial Court, after appreciating the oral and documentary

evidence on record, convicted the appellant herein for the offence

punishable under Section 302 of IPC, finding the following

circumstances established :-

(i) That, five years back amount of Rs. 2 lakh was advanced by the parents of deceased to the appellant for providing job to Manoj (P.W. 7), who is brother of deceased,

(ii) That, there arose dispute, one night prior to the incident,

Cr.A. No. 34 of 2013

firstly, at about 7-8 PM, and secondly, at about 1-1:30 AM, between the appellant herein and the deceased with regard to refund of amount so advanced,

(iii) That, dead body of the deceased was found in field of Narayan, situated at back side of the house on 27.04.2012 at about 5 AM,

(iv) That, appellant and deceased were sleeping in different rooms, however, soon after the incident, the appellant went missing as he was neither present at place of occurrence nor in the house, and for the very same, no explanation has been offered by him,

(v) That, the gold locket and nose pin worn by deceased and lungi worn by the appellant and also the axe were seized only on the basis of his memorandum statement (Ex.P/3),

(vi) That, further, the said locket and pin were identified by Santan (P.W. 1) and Manoj (P.W. 7),

(vii) And that, as per the FSL report, the seized lungi contained blood on it.

7. Learned counsel appearing for the appellant submits that there is no

direct evidence against the appellant herein and the conviction is

based upon circumstantial evidence. She would further submit that the

chain of the circumstances is not complete and mere seizure of axe

(tangiya) and some jewellery on the instance of the appellant are not

sufficient to record the order of conviction. It is also submitted that the

memorandum and seizure witnesses have not supported the case of

the prosecution, thus she would pray for the acquittal of the appellant.

8. Per Contra, learned counsel on behalf of the respondent/State, would

submit that the learned trial court after appreciating the entire evidence

on record, has convicted the appellant. There was seizure of axe and

jewellery from the conscious possession of the appellant. The doctor

Cr.A. No. 34 of 2013

(P.W. 10) has proved the cause of death of the deceased as homicidal

in nature and further, the chain of the circumstances is complete. He

would further submit that in the FSL report (Ex.P/20) blood is found on

axe, lungi of the appellant and Saree and blouse of the deceased.

Thus, he would support the judgment passed by the learned trial court.

9. We have heard learned counsel for the parties, considered their rival

submissions made hereinabove and went through the records

carefully.

10. At the very outset, it is pertinent to mention here that this case is

based upon circumstantial evidence and in a case of circumstantial

evidence, the entire chain of evidence must be complete and the

conclusions which are arrived at after examining the chain of evidence

must point towards culpability of the accused. A few extracts of the law

that emerges in a case based upon circumstantial evidence from the

recent decision of the Hon'ble Supreme Court in Munikrishna alias

Krishna v. State by Ulsoor P.S. reported in 2022 SCC OnLine SC

1449 is quoted herein below :-

15. In a case of circumstantial evidence, the Court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of an evidence and the evidence must point towards only one conclu- sion, which is the guilt of the accused. In other words, a very heavy duty is cast upon the prosecution to prove its case, beyond reasonable doubt. As early as in 1952, this Court in its seminal judgment of Hanu- mant Govind Nargundkar v. State of Madhya Pradesh1 had laid down the parameters under which the case of circumstantial evidence is to be evalu- ated. It states:--

"... It is well to remember that in cases where the evidence is of a circumstantial nature, the cir-

Cr.A. No. 34 of 2013

cumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circum-

stances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any rea- sonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused..."

16. Hanumant (supra) has been consistently followed by this Court. To name a few, Tufail (Alias) Simmi v. State of Uttar Pradesh2, Ram Gopal v. State of Maharashtra3 and Sharad Birdhichand Sarda v. State of Maharashtra4.

17. In Musheer Khan @ Badshah Khan v. State of Madhya Pradesh5 dated 28.01.2010, this Court while discussing the nature of circumstantial evidence and the burden of proof of prosecution stated as under:--

"39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evi- dence. While appreciating circumstantial evi- dence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evi- dence" and proof in such a case is derivable by inference from circumstances.

40. Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical for- mula" since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gos-

samer thread, light and as unsubstantial as the air itself and may vanish with the merest of

Cr.A. No. 34 of 2013

touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.

41. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circum- stantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a net- work from which there is no escape for the ac-

cused. The facts evolving out of such circumstan- tial evidence must be such as not to admit of any inference except that of guilt of the accused. (See Raghav Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1 Cri LJ 70])

42. The second principle is that all the links in the chain of evidence must be proved beyond rea-

sonable doubt and they must exclude the evi-

dence of guilt of any other person than the ac- cused. (See State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : 1992 Cri LJ 3693], SCC p. 309, para

20.)

43. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. King Emperor [(1916-17) 21 CWN 1152 : 43 IC 241] (IC at para 14) that when in a criminal case there is conflict between presumption of in- nocence and any other presumption, the former must prevail.

44. The next principle is that in order to justify the in- ference of guilt, the inculpatory facts must be in- compatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt.

45. When a murder charge is to be proved solely on circumstantial evidence, as in this case, pre- sumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy v. King

Cr.A. No. 34 of 2013

Emperor [(1906-07) 11 CWN 1085] it was held that the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circum-

stantial evidence against the accused, but it is an error of law to hold that the burden of proving in- nocence lies upon the accused under such cir- cumstances. It seems, therefore, to follow that whatever force a presumption arising under Sec- tion 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the domi- nant presumption of innocence.

46. The same principles have been followed by the Constitution Bench of this Court in Govinda Reddy v. State of Mysore [AIR 1960 SC 29 :1960 Cri LJ 137] where the learned Judges quoted the principles laid down in Hanumant Govind Nar- gundkar v. State of M.P. [AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio in Govind [AIR 1952 SC 343 : 1953 Cri LJ 129] quoted in AIR para 5, p. 30 of the Report in Govinda Reddy [AIR 1960 SC 29 :

1960 Cri LJ 137] are:

"5. ... '10. ... in cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the ac- cused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothe-

sis but the one proposed to be proved. In other words, there must be a chain of evi-

dence so far complete as not to leave any rea-

sonable ground for a conclusion consistent with the innocence of the accused and it must be [shown] that within all human probability the act must have been [committed] by the ac-

cused.' [As observed in Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 at pp. 345-46, para 10.]"

Cr.A. No. 34 of 2013

The same principle has also been followed by this Court in Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607 : 1974 SCC (Cri) 643 : AIR 1974 SC 1144]"

11. The first question for consideration would be whether the death of

deceased Gotimbai was homicidal in nature?

Learned trial court recorded an affirmative finding with regard to

this question on the basis of postmortem report (Ex.P/13) wherein, Dr.

P.C. Prabhakar (P.W. 10), who conducted the postmortem, has clearly

stated that the cause of death is excessive bleeding owing to chopping

off of cervical and artery bone and the nature of death is said to be

homicidal and further, nothing contrary has come in his cross-

examination. After hearing learned counsel for the parties and going

through the postmortem report (Ex. P/13) as well as the evidence of

Dr. P.C. Prabhakar (P.W. 10), we are satisfied that learned trial Court

has rightly held the death of Gotimbai to be homicidal in nature. We

hereby affirm the said finding recorded by the trial Court.

12. The next question for consideration would be whether the trial Court is

justified in holding that appellant is the person who committed murder

of the deceased and, thereby, convicting him for offence under Section

302 of IPC?

13. Now we would scrutinize each and every chain of circumstance one by

one.

14. As noticed above, in order to base the conviction of the appellant,

learned trial court has considered circumstances as mentioned above

in order to connect the appellant with the offence in question.

Cr.A. No. 34 of 2013

The circumstance No. (i) and (ii) -

15. The circumstance regarding motive as relied by the learned trial court

is that, five years back the appellant had taken amount of Rs. 2 lakhs

from the brother of the deceased for providing job, and when the

deceased compelled the appellant herein to refund the money, dispute

arose one night prior to date of the incident, and on the very next day

at about 5 AM, dead body of deceased Gotimbai was found in the field

of Narayan which is situated behind the house of Santan (P.W. 1). It is

undisputed that on the date of incident, many persons were staying in

the house of father of the deceased i.e Santan (P.W. 1). In para 8 of

the cross-examination, Santan (P.W. 1) has stated that there were 2-3

marriages going on in his house, and many relatives were present and

10-15 persons were sleeping along with the appellant, therefore, it

can't be held that the appellant herein alone had an opportunity to

commit murder of his wife i.e deceased. Further, Radha Bai (P.W. 2) in

para 6 of her cross- examination admitted that the alleged amount was

not taken by the appellant herein, but by his brother, Ghanshyam.

Therefore, it makes suspicious that amount of Rs. 2 lakhs was given to

the appellant, and also, the prosecution has not established beyond

reasonable doubt by adducing any cogent and clinching evidence that

the alleged amount was actually given to appellant herein. Even if, for

an instance, it is assumed that the amount of Rs. 2 lakh was given to

the appellant or his brother and that too 5 years ago, then mere its

demand by deceased is not sufficient to hold the appellant guilty for

the aforesaid.

Cr.A. No. 34 of 2013

The circumstance No. (iii) and (iv) -

16. The dead body of deceased was found on 27.4.2012 in the field of

Narayan just behind the house of Santan (P.W. 1) and appellant was

missing from house. Santan (P.W. 1) himself has admitted that on

account of marriage there were many relatives staying in his house.

The male members and female members were sleeping in different

rooms and no one has seen the appellant in company of the deceased

therefore, on mere suspicion, it would not be safe to hold the appellant

guilty for offence of murder of his wife.

17. Next is the failure of the appellant herein to offer explanation regarding

his absence from the house soon after the incident. Though, the

appellant hasn't offered any explanation where was he just after the

incident, however in Shivaji Chintappa Patil v. State of

Maharasthtra reported in 2021 (5) SCC 626 the Hon'ble Supreme

Court has observed that failure of the appellant to give any explanation

cannot be used as a link to complete the chain. It was held therein as

under :-

25. Another circumstance relied upon by the prosecution is that the appellant failed to give any explanation in his statement under Section 313 CrPC. By now it is well- settled principle of law, that false explanation or non-

explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain. Reference in this respect could be made to the judgment of this Court in Sharad Birdhichand Sarda [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487]

Cr.A. No. 34 of 2013

The circumstance No. (v) - As to Recovery of Gold Locket, Nose

Pin, and Lungi -

18. In the case in hand, pursuant to memorandum statement (Ex.P/3) of

the appellant recorded on 27.04.2012 at about 1 PM, gold locket and

nose pin worn by deceased, were recovered from his possession vide

seizure memo (Ex.P/4) on 27.04.2012 at about 1:20 PM and lungi

worn by him was recovered from the field of Kartik vide seizure memo

(Ex.P/5) on 27.04.2012 at about 2 PM. Witnesses to seizure of gold

locket, nose pin and lungi, Vinod (P.W. 3) and Panchu (P.W. 4) turned

hostile and even when leading questions were asked by the

Prosecutor, they have not stated anything regarding above stated

articles.

19. Further, one axe was seized from the spot vide seizure memo

(Ex.P/11) on 27.04.2012 itself at about 8:15 AM. Witness to such

seizure, namely Bhagwat- Village Kotwar (PW 8); has supported the

case of the prosecution and his evidence couldn't be demolished even

in cross examination, whereas, other witness Santan (P.W. 1), has not

stated anything about it. Perusal of seizure memo (Ex.P/11) and

memorandum statement (Ex.P/3) makes it amply clear that the axe

was seized from the spot, whereas, memorandum statement of the

appellant herein has been recorded subsequently, therefore, the same

would not tantamount to discovery for the purposes of Section 27 of

Evidence Act.

20. In Mani v. State of T.N. reported in AIR 2008 SUPREME COURT

1021 their lordships of the Hon'ble Supreme Court have held that "the

discovery is a weak kind of evidence and cannot be wholly relied upon

Cr.A. No. 34 of 2013

and conviction in such a serious matter cannot be based upon the

discovery. Once the discovery fails, there would be literally nothing

which would support the prosecution case."

Apart from the seizure of the gold locket and nose pin and also

the lungi worn by the appellant, we will have to scrutinize other

incriminating material available on record against the appellant.

The circumstance No. (vi) - Identification of articles -

21. Coming to the next ground taken by the learned court below i.e.

identification of gold locket and one nose pin. The gold locket as well

as the nose pin were seized from the pocket of the appellant pursuant

to his memorandum statement (Ex.P/3) vide seizure memo (Ex.P/4)

on 27.04.2012. As discussed earlier, the seizure witnesses of the

aforesaid articles turned hostile and thus the prosecution couldn't be

benefitted from their evidence. Identification of the above articles was

conducted on 08.05.2012 at about 2:10 PM. P. R. Bhaskar, Nayab

Tahsildar (P.W. 5) has proved the identification of articles vide

identification memo (Ex.P/8) but in cross-examination he has admitted

that the police officials brought Santan (P.W. 1) and Manoj (P.W. 7)

along with the articles and thus, the identification of the articles got

vitiated. Further, the testimony of Santan (P.W. 1) and Manoj (P.W. 7)

is not congruent with the identification memo (ExP/8) as to date of said

identification as well as number of articles kept for the said purpose,

as Santan (PW 1) has stated that he was called after 4 days of the

incident for identification, on the other hand, Manoj (P.W. 7) states that

he was called 10-15 days after the incident. This contradiction creates

serious doubt on the case of the prosecution.

Cr.A. No. 34 of 2013

The circumstance No. (vii) - F.S.L. report -

22. Next circumstance is the FSL report (Ex.P/20) in which the blood found

on the articles is blood but it is not proved that it was of human origin.

The Hon'ble Supreme Court in the case of Balwan Singh v. State of

Chhattisgarh reported in AIR 2019 SUPREME COURT 3714 while

dealing with the issue as to effect of failure of the prosecution to

establish the blood as being of human origin or its blood group, has

observed as under :-

8.The prosecution also relies upon the evidence relating to recovery of sticks and tabbal which were blood-stained. Such evidence may not be helpful to the prosecution in this case inasmuch as there is no evidence to show that these articles were stained with human blood, and more particu- larly with blood of the same blood group as that of the de- ceased. As per the Forensic Science Laboratory Report, the blood stains were disintegrated, and their origin could not be determined.

In Sattatiya v. State of Maharashtra, (2008) 3 SCC 210 : (AIR 2008 SC 1184), one of the crucial factors that had led this Court to reverse the conviction was that the blood- stains on the items seized in the recovery could not be linked with the blood of the deceased. This factor was treated as a serious lacuna in the case of the prosecution. Similarly, in Shantabai and Ors. v. State of Maharashtra, (2008) 16 SCC 354 : (AIR 2008 SC 1571), the blood-stains on some of the clothes seized from the accused in recov- ery belonged to a different blood group from that of the blood group of blood-stains found on the clothes of the de- ceased and on the sample of soil, axe, stones etc. which were taken from the spot by the investigating officer. As a result of this mismatch, it was held that this circumstance was not proved against the accused.

Cr.A. No. 34 of 2013

It is also important to note the following observations made by a Constitution Bench of this Court in Raghav Prapanna Tripathi and Ors. v. State of U.P., AIR 1963 SC 74:

"21. In this connection, reference may also be made to circumstances 9 and 10, relating to the re- covery of the blood-stained earth from the house. The blood-stained earth has not been proved to be stained with human blood. Again, we are of opinion that it would be farfetched to conclude from the mere presence of bloodstained earth that earth was stained with human blood and that the human blood was of Kamla and Madhusudhan. These cir- cumstances have, therefore, no evidentiary value."

(Emphasis supplied) Therefore, the five judge bench had ruled that in that case the prosecution needed to prove that the blood-stains found on the earth or the weapons were of a human origin and were of the same blood group as that of the deceased.

9. We are also conscious of the fact that, at times, it may be very difficult for the serologist to detect the origin of the blood due to the disintegration of the serum, or insuffi- ciency of bloodstains, or haematological changes etc. In such situations, the Court, using its judicious mind, may deny the benefit of doubt to the accused, depending on the facts and circumstances of each case, if other evidence of the prosecution is credible and if reasonable doubt does not arise in the mind of the Court about the investigation. Thus, in the case of R. Shaji v. State of Kerala, (2013) 14 SCC 266 : (AIR 2013 SC 651, Para 17), this Court had ob- served:

"31. A failure by the serologist to detect the origin of the blood due to disintegration of the serum does not mean that the blood stuck on the axe could not have been human blood at all. Sometimes it is pos-

Cr.A. No. 34 of 2013

sible, either because the stain is insufficient in it-

self, or due to haematological changes and plas- matic coagulation, that a serologist may fail to de- tect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable di- mension which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. Once the re- covery is made in pursuance of a disclosure state- ment made by the accused, the matching or non- matching of blood group(s) loses significance." Similar observations were made by this Court in the case of Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 : (AIR 2001 SC 330), wherein it was observed that it was not possible to accept the submission made on behalf of the accused that in the absence of the report regarding the origin of the blood, the accused could not have been convicted, inasmuch as it was only because of the lapse of time that blood could not be classified successfully. In the case of Jagroop Singh v. State of Punjab, (2012) 11 SCC 768 : (AIR 2012 SC 2600), this Court had ruled that as the recovery was made pursuant to a disclosure statement made by the ac- cused, and the serological report had found that the blood was of human origin, the non determina- tion of the blood group had lost its significance. In the case of State of Rajasthan v. Teja Ram and Others, (1999) 3 SCC 507 : (AIR 1999 SC 1776), the Court had observed that the failure of the serol- ogist to detect the origin of the blood, due to disin- tegration of the serum, did not mean that the blood stuck on the weapon could not have been human blood at all. In this context, it was noted that it could not be said that in all cases where there was

Cr.A. No. 34 of 2013

a failure in detecting the origin of blood, the circum- stance arising from recovery of the weapon would stand relegated to disutility. It was thus observed that unless the doubt was of a reasonable dimen- sion which a judicially conscientious mind enter- tained with some objectivity, no benefit could be claimed by the accused.

10.However, we cannot lose sight of the fact that the ac- cused would be in a disadvantageous position in case if the aforementioned dictum laid down by this Court in the cases of R. Shaji (AIR 2013 SC 651) (supra), Gura Singh (AIR 2001 SC 330) (supra), Jagroop Singh (AIR 2012 SC 2600) (supra) and Teja Ram (AIR 1999 SC 1776) (supra) relating to the bloodstains is applied in each and every case. Non- confirmation of bloodgroup or origin of the blood may as- sume importance in cases where the accused pleads a de- fence or alleges mala fides on the part of the prosecution, or accuses the prosecution of fabricating the evidence to wrongly implicate him in the commission of the crime.

11. In the case of John Pandian v. State Represented by Inspector of Police, Tamil Nadu, (2010) 14 SCC 129 : (AIR 2011 SC (Supp) 531), this Court, on facts, observed that the evidence of recovery of weapons was credible. The Forensic Science Report (FSL) report had disclosed that the blood was of human origin. The Court proceeded to conclude that since the evidence of recovery of weapon was proved to the satisfaction of the Court, it was sufficient that the prosecution had proved that the blood-stains were of human origin, even though the blood group could not be ascertained.

12. The cases discussed above highlight the burden that the prosecution would ordinarily have to discharge, de- pending on the other facts and circumstances of the case, for the evidence relating to recovery to be considered against the accused. At the same time, as mentioned

Cr.A. No. 34 of 2013

above, we are conscious of the fact that it may not always be possible to inextricably link the bloodstains on the items seized in recovery to the blood of the deceased, due to the possibility of disintegration of bloodstains on account of the timelapse in carrying out the recovery. For this reason, in Prabhu Dayal v. State of Rajasthan, (2018) 8 SCC 127 : (AIR 2018 SC 3199), where one of us (Mohan M. Shan- tanagoudar J.) had the occasion to author the judgment, this Court, relying on Teja Ram (AIR 1999 SC 1776) (supra), had held that the failure to determine the blood group of the blood-stains collected from the scene of of- fence would not prove fatal to the case of the prosecution. In Prabhu Dayal case (AIR 2018 SC 3199) (supra), al- though the FSL report could not determine the blood group of the blood-stains on account of disintegration, the report clearly disclosed that the blood-stains were of human ori- gin, and the chain of circumstantial evidence was com- pleted by the testimonies of the other witnesses as well as the reports submitted by the Ballistic Expert and the Foren- sic Science Laboratory regarding the weapon used to com- mit murder.

13. From the aforementioned discussion, we can sum- marise that if the recovery of blood-stained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The Court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match. Since the prosecution has utterly failed to link the blood- stains found on the lungi with the blood of the deceased, we are of the considered view that prosecution couldn't es-

Cr.A. No. 34 of 2013

tablish the complete chain of evidences so as to hold the appellant guilty for the aforestated.

23. "One of the fundamental principles of criminal jurisprudence is

undeniably that the burden of proof squarely rests on the prosecution

and that the general burden never shifts. There can be no conviction

on the basis of surmises and conjectures or suspicion howsoever

grave it may be. Strong suspicion, strong coincidences and grave

doubt cannot take the place of legal proof. The onus of the prosecution

cannot be discharged by referring to very strong suspicion and

existence of highly suspicious factors to inculpate the accused nor

falsity of defence could take the place of proof which the prosecution

has to establish in order to succeed, though a false plea by the

defence at best, be considered as an additional circumstance, if other

circumstances unfailingly point to the guilt." (See. Digamber

Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 : (2019) 2

SCC (Cri) 300 : 2019 SCC OnLine SC 316 at page 527)

24. In view of the aforesaid discussion, we are of the considered opinion

that firstly, the motive of the appellant for killing his own wife i.e. the

deceased, could not be established by the prosecution. Secondly,

failure of appellant to explain his absence from the house after the

incident, would have supplied an additional circumstance, as

discussed above, however, same cannot be used as a link to complete

the chain. Thirdly, alleged recovery of gold locket and nose pin from

the possession of the appellant and its identification is not free from

suspicion and even if they are accepted as gospel truth on the sole

testimony of ASI, Vishnu Sharma (P.W. 11), then also in totality of facts

Cr.A. No. 34 of 2013

and circumstances of the case, the conviction of the appellant as

aforesaid cannot be sustained, and lastly, the FSL report does not

establish that blood stains found on lungi worn by appellant was blood

of human origin. The conviction has to be based upon sound judicial

principles and not mere on conjectures. The prosecution ought to have

established entire chain of evidence in order to bring home the charge

of Section 302 of IPC against the appellant, which is certainly missing

from the present matter.

25. As such, we are of the considered opinion that prosecution has

miserably failed in establishing the complete chain of circumstances

so as to hold the appellant herein criminally liable for murder of his

wife i.e. the deceased. In that view of the matter, we have no

hesitation in setting aside the impugned judgment recording conviction

of the appellant for offence punishable under Section 302 of IPC and

awarding life sentence. The appellant is acquitted of the charge

punishable under Section 302 of IPC and he be released forthwith, if

not required in any other case.

26. Accordingly, the criminal appeal is allowed.

                    Sd/-                                             Sd/-
            (Sanjay K. Agrawal)                            (Rakesh Mohan Pandey)
                   Judge                                            Judge




R/-