[Cites 17, Cited by 0]
Madhya Pradesh High Court
Jiwanlal Yadav vs The State Of Madhya Pradesh on 2 April, 2026
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
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1 CRA-3358-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 2 nd OF APRIL, 2026
CRIMINAL APPEAL No. 3358 of 2017
JIWANLAL YADAV
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ram Prakash Yadav - Advocate for the appellant.
Shri Ajay Shukla - Govt. Advocate for respondent State.
Shri Rajesh Kumar Mishra, learned counsel for the Objector.
ORDER
Per: Justice Avanindra Kumar Singh
Heard on I.A No. 2934/2026, which is the first application for
suspension of sentence and grant of bail to the sole appellant.
Learned counsel for the appellant seeks withdrawal of the aforesaid
application.
I.A No. 2934/2026 is accordingly dismissed as withdrawn.
With consent of learned counsel for the parties, this appeal is finally
heard.
This appeal has been filed by the appellant-accused being aggrieved of
the judgment dated 26th July, 2017 passed in Special Case No. 7/2016 by the
learned Special Judge under SC/ST Act in the case of State of M.P. through
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Police Station Jaithari, district Anuppur v. Jivanlal whereby the accused has
been convicted for murdering Veersai Panika by use of an axe on 24.12.2015
between 5 to 7 p.m. at village Kholadi. Learned trial Court has convicted the
accused under Section 302 I.P.C read with Section 3 (2) (v) of Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act and punished
him to undergo Life Imprisonment with fine of Rs.30,000/- and in default to
undergo one year R.I.
On perusal of record, it is seen that accused remained in judicial
custody from 27.12.2015 to 26.07.2017, i.e., date of judgment of the trial
Court and thereafter the accused is in jail. Therefore, he has remained in jail
for about more than 10 years.
2. In short the prosecution case is that on 25.12.2015, complainant
Budhram Panika (P.W.-5) father of the deceased Veersai Panika lodged a
report in Police Station that on 24.12.2015, his son Veersai Panika at about
12 O'clock at taken six oxen for grazing. At about 6:00 p.m. four oxen had
returned but two oxen and his son Veersai Panika did not come back. On
inquiry, Mangal Singh (P.W.-4) informed him that he saw accused Jivanlal
and Veer Sai at about 5 p.m. on 24.12.2015 were warming themselves
through fire in the field of Sukkhu Gond; therefore he went to the field of
Sukkhu Gond at 10:00 p.m. and when he reached the filed of Sukkhu Gond
he saw that Veersai was lying dead in the field. On the neck and behind the
right ear there were cut injuries on the body of Veersai and near the place
where they were warming themselves with fire there was blood stanes.
It is the further case of prosecution that about 15 days before, accused
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was threatening his son Veersai by a Tangi (Sharped steal weapon) because
he suspected that Veersai had illicit relations with the wife of accused
Jivanlal. Therefore, on his information police registered F.I.R (Ex. P-13),
Merg (Ex. P-12) was registered, body of the deceased was sent for p.m.,
statement of witnesses were recorded, accused was arrested and under
Section 27 of Evidence Act (Ex. P-10) memorandum was made and seizure
memo (Ex. P-11) was prepared after recovering an iron axe from the
accused Jivanlal the weapon was sent for query report to doctor and query
report (Ex. P-16-A) was received according to which the injury on the bodies
of deceased Veersai could have been caused by the seized iron axe, from the
spot blood soaked soil and normal soil, bamboo stick, iron axe and blood
stained cloths of the deceased were recovered and were sent for chemical
examination by letter No. 26 of S.P. Anuppur (Ex. P-28) F.S.L report was
received according to which on T-shirt of deceased Article E-1 there was
human blood but on the other cloths of the deceased, i.e., Jeans E-2, Baniyan
E-3, underwear E-4, Axe (Art. D) stick iron C, no human blood was found.
After completing the remaining investigation charge-sheet was filed.
3. When the charges were framed against the accused by the learned
trial Court, he denied the charges and sought trial. After prosecution
evidence when examined under Section 313 Cr.P.C accused again stated that
he is innocent and sought time to produce his defence witnesses but has not
produced any witness.
4. Against the judgment of conviction and sentence appeal has been
filed on the ground that prosecution case is full of omission and
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contradiction. There is no reliable evidence of previous enmity and there are
no eye witness, on the axe no human blood was found. Conduct of the so
called last seen witness Mangal Singh (P.W.-4) is doubtful because in Court
he has stated that he saw that Jivanlal assaulted Veersai with a Tangi which
caused injury on the neck of Veersai and Veersai had expired but he did not
try to save the deceased neither he immediately inform the father of the
deceased. Therefore, prayer is made either to acquit the appellant/accused
from the charges for which he has been convicted and as an alternative it is
prayed that as the accused is a young boy at the time of incident , therefore,
even accepting the prosecution case, the case would fall under Section 304
Part I, I.P.C as the quarrel suddenly arose.
5. On the other hand learned counsel for the State supports the
impugned judgment and prays for dismissal of the appeal.
6. As per statement of Mangal Singh (P.W.-4) he saw that by use of a
Tangi, Jivanlal caused death of Veersai and he also threatened him that if he
(Mangal Singh -P.W.-4) informs anyone then he will kill him but when
father of Veersai met him and queried about Veersai then he narrated the
entire incident to him. In cross-examination he denied that he had given Part
A to A in his statement under Section 161 Cr.P.C (Ex. D-1) that when he was
coming back after grazing cattle then the accused assaulted the deceased.
7. On perusal of statement (Ex. D-1) it is seen that Mahendra Singh
gave this statement to Police that when at about 4:30 p.m. in the evening he,
Veersai Panik, Pyarelal and Sukkhu Gond were warming themselves by use
of fire and Devaniya Bai and Anjoriya Bai were also there and they had gone
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away at about 5 p.m. one of his cow started going towards the house then
Veersai directed him to get back the cow, therefore, he went to get back the
cow. At that point of time Jivanlal went behind the back of Veersai Panika
and said that Veersai Panika had done wrong work with his (Jivanlal's) wife,
therefore, he (Jivanlal) would not leave him and, thereafter by axe which was
with accused Jivanlal, he (Jivanlal) assaulted Veersai on the neck twice and
Veersai died there and he also threatened him that if he informs this incident
to anyone, then he will finish him also. Therefore, he went to his house but
at about 6.00 P.M. in the evening when father of the deceased Veersai, viz.,
Budhram Panika (P.W.-5) inquired about Veer Sai then he narrated Budhram
Panika (P.W.-5) that he had seen that Veersai had gone towards the filed of
Sukkhu Singh Gond but he did not inform the whole incident to P.W.-5
because of threat. He also went along with Budhram (P.W.-5) to search
Veersai. Now Court evidence of Mangal Singh (P.W.-4) in sum and
substance is contradictory to his statement Ex. D-1 although regarding the
natural conduct, it is well settled view of Hon'ble Supreme Court that
different people react differently in a given situation and there is no standard
of humans conduct in a given situation.
8. Hon'ble Supreme Court in Bahadur Singh v. State of Madhya
Pradesh [2014 (6) SCC 639] held that if eye witness on account of threat by
the accused did not try to save the deceased then it is a natural conduct of the
witness (Specific paragraphs 7 and 11)
7. The learned Senior Counsel appearing for the appellants
contended that PW 7 Shanti Lal could not have witnessed the
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occurrence and his presence at the place of the occurrence is
doubtful and his conduct in not going to rescue of the deceased is
not natural and no reliance can be placed on his testimony and the
first information report has been brought into existence by putting
ante-date and the presence of some of the accused has been
doubted by the High Court and that would affect the substratum of
the prosecution case and the conviction and the sentence imposed
on the appellants are liable to be set aside.
11. Babu Lal was intercepted and attacked by the appellants armed
with deadly weapons and on seeing the same, PW 7 Shanti Lal and
Shiv Narayan shouted at them and they were threatened not to
come near lest they would also be killed and on account of fear
they did not attempt to rescue Babu Lal at the time of occurrence.
In fact, they also witnessed the attack made by the assailants on
servant Bhanwar and in such circumstances, the conduct of PW 7
Shanti Lal in not going near his brother Babu Lal during the
occurrence due to fear is quite natural and the contention raised by
the appellants cannot be accepted. The other contention that non-
examination of Shiv Narayan affects the prosecution case is also
devoid of merit. PW 7 Shanti Lal withstood the lengthy cross-
examination and nothing could be elicited to discredit his
testimony. We are satisfied that the testimony of PW 7 Shanti Lal
is natural, trustworthy and credible and has rightly been relied on
by the courts below.
9. It is seen that as per Arrest Memo (P.-23) accused Jivanlal was
arrested on 26.12.2015. The incident is of 24.12.2015. Although human
blood stains have not been found but Dr. Rajesh (P.W.-6) as per his Court
statement and postmortem (Ex. P-14) has opined the death is homicidal and
verified that on the basis of query report (Ex. P-16) that from the seized axe
injuries to the deceased could have been caused. In cross-examination there
is nothing substance on the basis of which postmortem report could be
doubted five injuries on the body of the deceased are described below:-
1 चोट वाउं ड 6 गुणा 2 से0मी0 गुणा 4 से0मी0 के आकार का, दा हने
कान के पीछे , मे टोएड हड़ड के उपर मौजूद था, जो काफ गहर था और
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काफ पेने े टेड था । मे टोएड हड़ड टू ट हुई थी, घाव का मा जन
लयर था, खूून का थ का घाव के उपर मौजूद था ।
2 चोट वाउं ड 6 गुणा 3 गुणा 4 से0मी0 के आकार का, गदन के पीछे क
ओर ांसवश सी फोर सी फाइव के लेवल पर था, उसके नीचे क सभी
संरचनाऍं कट हुई थी, घाव का मा जन लयर था, खून का थ का घाव
म जमा हुआ था ।
3 िछलनदार चोट 4से0मी 0 गुणा 3 से0मी0 के आकार क , छाती के
बायी ओर 11वीं और 12 पसिलय के उपर मौजूद थी ।
4 िछलनदार चोट, 10 से0मी0 गुणा 5 से0मी0 के आकार क , छाती के
दायी ओर िन पल के नीचे मौजूद थीा
5 एक इनसाई ड वाउं ड 2से0मी 0.5 गुणा 0.5 से0मी0 के आकार का,
दा हने कान के बीच म, लाल रं ग का मौजूद था।
10. On perusal of record, it is further seen that there are material
contradictions and omissions in this case. On perusal of merg intimation
(Ex. P-12) lodged by P.W.-5 Budhram Panika father of the deceased Veersai
Panika, two important points emerges out. The first is that in the merg
intimation recorded by the police and copy sent to S.D.M Jaithari in the
column date and time of information only date is written as below:
"25-12-15 Ke...."
Now why this column of time is left blank is highly suspicious in the
facts of this case. In this merg intimation it is mentioned that he (P.W.-5
Budhram Panika) has complete suspicion on Jivanlal Yadav (accused) that he
had murdered his son Veersai Panika, F.I.R (Ex. P. -13) is also lodged by
P.W. -5 Budhram Panika father of the deceased, it is seen that information in
the Police Station was given on 25.12.2015 at 2:13 a.m. and contents of merg
intimation (Ex. P-12 and P-13), are identical. Now one has to see as to what
P.W.-5 Budhram Panika stated in the Court statement.
11. P.W.-5 Budhram Panika in the Court has made some important
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contradictory statements in examination-in-chief and cross-examination
which had not been clarified by the prosecution by re-examining him. For
example in paragraph 2 of examination in chief he has stated that when his
son and two oxen did not return then about 7.00 p.m. he went to the house of
Mangal (P.W.-4 eye-witness as per prosecution), Mangal told him that
Veersai was with Jivan Yadav then he asked Mangal to come along with him
for searching his son then Mangal took him to the filed of Sukkhu-Pyarelal,
there he saw the dead body of his son Veersai. On the neck and behind the
neck there were injuries. In paragraph 3 of examination-in-chief he further
stated that on seeing the dead body of his son he became perturbed;
therefore, he did not ask anything to Mangal. After this when he asked
Mangal as to who has killed Veersai then Mangal told him the Jivanlal has
killed Veersai because he suspected that Veersai had illicit relation with the
wife of Jivanlal, therefore, he (Jivanlal) has killed him with Tangi.
Thereafter they searched Jivanlal but he was not at his home. Then they went
to Jaithari Police Station and Police recorded merg intimation (Ex. P-12) and
F.I.R (Ex,. P-13). Therefore, looking to the examination-in-chief it is clear
that before they went to the Police Station, father of the deceased P.W.-5
Budhram was having definite knowledge from the information given by
P.W.-4 Mangal Singh that it was Jivanlal who killed Veersai. When Budhram
had already this information from P.W.-4 Mangal Singh then it should have
been mentioned in Ex. P-12 merg intimation and Ex. P-13 F.I.R. There was
no occasion if the statement of P.W.-5 Budhram is to be believed for only
suspecting that Jivanlal has killed his son. In fact he should have mentioned
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in the F.I.R itself that he has been informed by P.W.-4 Mangal that he
(Mangal) saw Jivanlal assaulting his son Veersai on neck by an axe/Tangi.
12. Now on analyzing the statement of P.W.-4 Mangal Singh, it is
seen that it is not clear whether Police has tried to project him only as a last
seen witness or as an eye witness. Same person for the same incident cannot
be in the legal parlance both - eye-witness also last seen witness. P.W.-4
Mangal Singh in the Court statement has stated that in the evening he went
for grazing the oxen and before that Jivanlal, Veersai, Devania and Anjoriya
were warming themselves by the side of the fire. In the evening when he
went to graze the oxen then he saw that Jivanlal assaulted and caused injury
on Veersai by use of a Tangi on neck and Veersai died on the spot and
accused threatened him that if he told anyone about this incident then he will
kill him also. Therefore, he came back to his house. When father of the
deceased Veersai (P.W.-5 Budhram) met him and asked for Veersai then he
informed him that Veersai was with Jivanlal. He also took Budhram to the
spot where dead body of Veersai was lying. Other persons also came. In
cross-examination in paragraph 7 this witness stated that in his police
statement under Section 161 Cr.P.C (Ex. D-1), he never informed Police that
while he was going to his house after grazing the animals then Jivanlal
assaulted Veersai from the behind and he denied giving statement in Ex.D-1
part A to A "At the time ........ came from behind." In paragraph 8 this
witness denied that it is wrong to say that when in the evening he was at
home and father of Veersai came then he narrated entire incident to him. He
only informed him that he saw Jivanlal and Veersai together at the fields.
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Whereas P.W.-5 Budhram in Cross-examination paragraph 11 stated that it is
correct to say that when he went to the house of P.W.-4 Mangal then he
immediately did not inform him about the true incident but after then he told
him the true incident because they created pressure on P.W.-4 Mangal then
he narrated the correct and entire incident. In cross-examination paragraph
14 P.W.-5 further stated that after he saw dead body of his son then he did
not discuss anything with P.W.-4 Mangal therefore, on analyzing the
prosecution case and statement of P.W.-4 and P.W.-5, it is seen that there are
important contradiction and omission. As per Ex. D-1 of P.W.-4 Mangal, it
has been recorded by Police when Budhram asked him to get the cattle which
had gone away then he went for getting back the cattle. At that time Jivanlal
assaulted Veersai from the back stating that he has done " Bura Kam" with
his wife, therefore, he will not spare him thereafter assaulted him with axe
causing two injuries. Now, either P.W.-4 Mangal had gone away then his
evidence would be in the nature of last seen evidence and if he has seen the
assault and murder of the deceased Veersai by Jivanlal then he would be an
eye-witness.
13. It is further seen that in Ex. D-1 Mangal stated that on account of
the threat by Jivanlal (appellant/accused) he did not narrate the true incident
to father of the deceased but day before yesterday he informed the correct
incident to Budhram Panika, Sarpanch Husband Lallu Singh Gond, , Nandau
Kol. Now Ex. D-1 statement of police was recorded on 27.12.2015 and if
ultimately Mangal Singh Gond immediately did not inform the true entire
sequence to the father of the deceased, i.e., on 24.12.2015, then he informed
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him (P.W.-5) the correct total incident on 25.12.2025 and merg intimation
(Ex. P-12) in which as stated above time is not mentioned and Ex. P-13 F.I.R
written on 2:13 a.m. then it should have been recorded as mentioned above
that Jivanlal is killer of his son as informed by P.W.-4 Mangal and not
simply raising only a suspicion on Jivanlal (accused/appellant).
It is further seen that as per F.S.L report (Ex. P-28) there is no human
blood on the axe (Art. D) as seized by the Police during investigation. Even
otherwise axe is not a weapon but axe is commonly found in the families
who are villagers and doing farming work involving chopping of wood etc.
14. In the case of Balwan Singh v. State of Chhattisgarh and another
[2019 (7) SCC 781], a Three Judges Bench of Hon'ble Supreme Court has
held in paragraphs 11 to 28 thus:
11. The prosecution also relies upon the evidence relating to
recovery of sticks and tabbal which were bloodstained. 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 particularly with blood of the
same blood group as that of the deceased. As per the forensic
science laboratory report, the bloodstains were disintegrated, and
their origin could not be determined.
12. In Sattatiya v. State of Maharashtra [Sattatiya v. State of
Maharashtra, (2008) 3 SCC 210 : (2008) 1 SCC (Cri) 733] , one of
the crucial factors that had led this Court to reverse the conviction
was that the bloodstains 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.
13. Similarly, in Shantabai v. State of
Maharashtra [Shantabai v. State of Maharashtra , (2008) 16 SCC
354 : (2010) 4 SCC (Cri) 289] , the bloodstains on some of the
clothes seized from the accused in recovery belonged to a different
blood group from that of the blood group of bloodstains found on
the clothes of the deceased and on the sample of soil, axe, stones,
NEUTRAL CITATION NO. 2026:MPHC-JBP:26379
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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.
14. It is also important to note the following observations made by
a Constitution Bench of this Court in Raghav Prapanna
Tripathi v. State of U.P. [Raghav Prapanna Tripathi v. State of
U.P., AIR 1963 SC 74 : (1963) 1 Cri LJ 70] : (AIR p. 78, para 21)
"21. In this connection, reference may also be made to
Circumstances 9 and 10, relating to the recovery of the
bloodstained earth from the house. The bloodstained
earth has not been proved to be stained with human
blood. Again, we are of opinion that it would be far-
fetched 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 circumstances 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 bloodstains found on the
earth or the weapons were of a human origin and were of the same
blood group as that of the deceased.
15. 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 insufficiency 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.
16. Thus, in R. Shaji v. State of Kerala [R. Shaji v. State of Kerala ,
(2013) 14 SCC 266 : (2014) 4 SCC (Cri) 185] , this Court had
observed: (SCC pp. 279-80, para 31)
"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 possible, either
because the stain is insufficient in itself, or due to
haematological changes and plasmatic coagulation, that
a serologist may fail to detect the origin of the blood in
question. However, in such a case, unless the doubt is of
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a reasonable dimension which a judicially conscientious
mind may entertain with some objectivity, no benefit
can be claimed by the accused in this regard. Once the
recovery is made in pursuance of a disclosure statement
made by the accused, the matching or non-matching of
blood group(s) loses significance."
(emphasis in original)
17. Similar observations were made by this Court in Gura
Singh v. State of Rajasthan [Gura Singh v. State of Rajasthan ,
(2001) 2 SCC 205 : 2001 SCC (Cri) 323] , 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.
18. In Jagroop Singh v. State of Punjab [Jagroop Singh v. State of
Punjab, (2012) 11 SCC 768 : (2013) 1 SCC (Cri) 1136] , this
Court had ruled that as the recovery was made pursuant to a
disclosure statement made by the accused, and the serological
report had found that the blood was of human origin, the non-
determination of the blood group had lost its significance.
19. In State of Rajasthan v. Teja Ram [State of Rajasthan v. Teja
Ram, (1999) 3 SCC 507 : 1999 SCC (Cri) 436] , the Court had
observed that the failure of the serologist to detect the origin of the
blood, due to disintegration 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 a failure in detecting the origin of blood, the
circumstance arising from recovery of the weapon would stand
relegated to disutility. It was thus observed that unless the doubt
was of a reasonable dimension which a judicially conscientious
mind entertained with some objectivity, no benefit could be
claimed by the accused.
20. However, we cannot lose sight of the fact that the accused
would be in a disadvantageous position in case if the
aforementioned dictum laid down by this Court in R. Shaji [R.
Shaji v. State of Kerala , (2013) 14 SCC 266 : (2014) 4 SCC (Cri)
185] , Gura Singh [Gura Singh v. State of Rajasthan , (2001) 2
SCC 205 : 2001 SCC (Cri) 323] , Jagroop Singh [Jagroop
Singh v. State of Punjab , (2012) 11 SCC 768 : (2013) 1 SCC (Cri)
1136] and Teja Ram [State of Rajasthan v. Teja Ram , (1999) 3
SCC 507 : 1999 SCC (Cri) 436] relating to the bloodstains is
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14 CRA-3358-2017
applied in each and every case. Non-confirmation of blood group
or origin of the blood may assume importance in cases where the
accused pleads a defence 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.
21. In John Pandian v. State [John Pandian v. State, (2010) 14
SCC 129 : (2011) 3 SCC (Cri) 550] , this Court, on facts, observed
that the evidence of recovery of weapons was credible. The
forensic science laboratory (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 bloodstains were of human origin, even though the
blood group could not be ascertained.
22. The cases discussed above highlight the burden that the
prosecution would ordinarily have to discharge, depending 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 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 time
lapse in carrying out the recovery. For this reason, in Prabhu
Dayal v. State of Rajasthan [Prabhu Dayal v. State of Rajasthan ,
(2018) 8 SCC 127 : (2018) 3 SCC (Cri) 517] , where one of us
(Mohan M. Shantanagoudar, J.) had the occasion to author the
judgment, this Court, relying on Teja Ram [State of
Rajasthan v. Teja Ram , (1999) 3 SCC 507 : 1999 SCC (Cri) 436] ,
had held that the failure to determine the blood group of the
bloodstains collected from the scene of offence would not prove
fatal to the case of the prosecution. In Prabhu Dayal case [Prabhu
Dayal v. State of Rajasthan , (2018) 8 SCC 127 : (2018) 3 SCC
(Cri) 517] , although the FSL report could not determine the blood
group of the bloodstains on account of disintegration, the report
clearly disclosed that the bloodstains were of human origin, and
the chain of circumstantial evidence was completed by the
testimonies of the other witnesses as well as the reports submitted
by the ballistic expert and the forensic science laboratory
regarding the weapon used to commit murder.
23. From the aforementioned discussion, we can summarise that if
the recovery of bloodstained articles is proved beyond reasonable
doubt by the prosecution, and if the investigation was not found to
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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.
24. In the instant case, then, we could have placed some reliance
on the recovery, had the prosecution at least proved that the blood
was of human origin. As observed supra, while discussing the
evidence of PWs 9 and 16, the prosecution has tried to concoct the
case from stage to stage. Hence, in the absence of positive
material indicating that the stained blood was of human origin and
of the same blood group as that of the accused, it would be
difficult for the Court to rely upon the aspect of recovery of the
weapons and tabbal, and such recovery does not help the case of
the prosecution.
25. What remains is the evidence of PW 11 and PW 12, who have
deposed about the preparation of conspiracy of the accused to
commit the murder of the deceased. As mentioned earlier, all the
accused were acquitted for the offence of conspiracy, which
means that there are concurrent findings of both the courts below
that the prosecution has failed to prove the aspect of conspiracy of
the accused to commit the murder of the deceased. Once the
conspiracy to commit the murder of the deceased is absent, there
is no material on record to show as to why the accused had
gathered in the house of Balwan Singh.
26. In view of the above material which is shaky, suspicion arises
in the mind of the Court about the genesis of the case of the
prosecution. In our considered opinion, the trial court and the High
Court were not justified in relying upon the evidence of the
eyewitnesses as well as of PW 11 and PW 12. Similarly, their
reliance on the aspect of recovery was also not justified, for the
reasons mentioned earlier.
27. Accordingly, the appeals are allowed. The impugned
judgments of the trial court and the High Court are set aside. The
appellants are directed to be released forthwith, if not required in
any other case.
28. We find that the appellants in these appeals are Accused 1,
Accused 2 and Accused 7. Other accused in ST No. 57 of 2010
have not preferred an appeal. Since in respect of the appellants
herein we find that the prosecution has not proved the charges
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16 CRA-3358-2017
beyond reasonable doubt, the benefit of this judgment should also
enure to the other accused who were convicted in ST No. 57 of
2010. Accordingly, the other accused in ST No. 57 of 2010, who
have not preferred appeals before this Court, shall also be released
forthwith, if not required in any other case."
1 5 . Therefore, for the various reasons mentioned in detail and
discussed as above this Court is of the view that the judgment of the trial
Court against appellant for the murder of Veersai cannot be sustained.
Hence appeal is allowed. Accused is acquitted from the charges for which he
has been convicted and sentenced by the learned trial Court.
16. If not wanted in other case, let him be release from jail. Disposal
of the property shall be as per judgment of the trial Court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
VKT
