Jharkhand High Court
Vijay Indwar @ Vijay Inderwar vs The State Of Jharkhand on 20 July, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
--------
Cr. Appeal (DB) No. 387 of 2019
------
(Against the Judgment of conviction and order of sentence dated
07.08.2018 passed by learned Additional Sessions Judge-XII,
Hazaribagh, in Sessions Trial No. 346 of 2014)
------
Vijay Indwar @ Vijay Inderwar, aged about 32 years, s/o Late Retma
Indwar, R/o village-Karanjtangri, P.O. & P.S. Bharno, District-Gumla.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellant : Mr. Rajeev Ranjan Tiwary, Advocate
Mr. Ranjit Kumar, Advocate
For the Resp.-State : Mr. Pankaj Kumar, PP
.....
C.A.V./Reserved on 13.07.2023 Pronounced on 20/07/2023
Per Sujit Narayan Prasad, J.:
1. The instant appeal, under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the Judgment of conviction and order of sentence dated 07.08.2018 passed by learned Additional Sessions Judge-XII, Hazaribag, in Sessions Trial No. 346 of 2014, whereby and whereunder, the appellant has been sentenced to undergo rigorous imprisonment for life alongwith fine of Rs.50,000/- and in default of payment of fine, has been further directed to undergo simple imprisonment for one year.
2. The prosecution story in brief as per the allegation made in the Fard Beyan by one Banshi Mehta, the informant, read as under:
It is alleged that on 17.04.14 after casting his vote, he came back to his house along with Devtati @ Devanand Tati (deceased) at 14:00 hrs. At about 11:00 p.m., Dulla Rama came and informed that Devtat Munshi was murdered by knife. On this he went to the owner Mundrika Mehta and informed about the incident. They went to see and saw 2 Cr. Appeal (DB) No. 387 of 2019 wound on chest and cheek of left side was cut and blood was oozing and found dead. On that place Vijay Indwar @ Wangra was seen moving around on suspicion condition. When people started gathering, on seeing this Vijay Indwar tried to flee away but he didn't succeed.
The information was given to Padma O.P. Quarrel used to happen between Vijay Indwar and Devtat Tati. It was told by Devtat Tati to informant that Vijay Indwar has suspicion that there is illicit relation with him (deceased) and Vijay Indwar can murder him anytime.
On the basis of fard-bayan of informant Barhi (Padma) P.S Case No. 115/14 registered u/s 302 of the IPC: against accused Vijay Indwar. After investigation charge-sheet: No. 66/14 dated 30.06.2014 was submitted against accused Vijay Indwar. Cognizance of the offence has been taken on 16.07.2014 and the case is committed to the court of sessions on 24.07.2014 for trial. Accordingly, charge framed under Section 302 of the IPC against accused appellant to which he pleaded not guilty and claimed to be tried.
3. The statement of the appellant was recorded under Section 313 of Cr.P.C. Accordingly, the trial proceeded and the appellant was found guilty for the offence under Section 302 of IPC and in view thereof, sentenced to undergo rigorous imprisonment for life alongwith fine of Rs.50,000/-.
4. Learned counsel for the appellant has taken the following grounds for interfering with the finding recorded by the learned trial court in the impugned judgment:
(i) It is evident from the perusal of the testimony of the prosecution witnesses that it is not the case of the eye witnesses rather it is the case based upon the circumstantial evidence, as such, the law is well settled that in the case of circumstantial evidence, more care and circumspection is to be taken by the learned trial court in passing the judgment of conviction;
3 Cr. Appeal (DB) No. 387 of 2019
(ii) It has been contended that the parameter for proving the charge in the case of circumstantial evidence is that the chain is to be completed.
5. Herein, although none of the witnesses has seen the commission of crime, however, the conviction is based upon the report of the FSL wherein, the sample have been taken marked as Ext.-A, B and C of the blood stained earth, blood stained sabal and blood stained gamchha cuttings respectively. The FSL report reflects that so far as the Ext.-A is concerned, the blood is found to be of human having Group-B; Ext.-B is also having human blood of Group-B and the Ext.-C is also found to be of human being but there is no description of blood group. For ready reference, the result of serological examination is being referred as under:
Sl. Exhibit(s) Nature of Origin Grouping Remarks No. Marked Stains/tissue Species ABO Others (Particularly of origin Grouping when Results Results origin/Grouping not determined)
1. A Blood HUMAN Group-B -
2. B Blood HUMAN Group-B -
3. C Blood HUMAN Could not - Result of test be for blood determined grouping inconclusive
6. It has been submitted that since the case is based upon the circumstantial evidence, therefore, merely on the ground that the blood stained earth or blood stained gamchha and sabal, which has been reported to be the blood of human being having Group-B is not sufficient to prove the guilt beyond all shadow of doubt unless the same would have been corroborated by conducting DNA test.
Submission has also been made that even the sabal which has been said to be recovered on confession made by the accused person along with gamchha but even no finger print on the sabal has been taken and hence, the culpability of the commission of crime of the appellant cannot be said to be established in absence of these requirements but without taking into consideration these aspect of the 4 Cr. Appeal (DB) No. 387 of 2019 matter, the judgment of conviction has been passed, therefore, the same requires interference.
7. While, on the other hand, Mr. Pankaj Kumar, learned Public Prosecutor has submitted that the conviction is based upon the confession leading to recovery of gamchha and sabal from the house of the appellant. The argument has been advanced that Section 27 of the Evidence Act is very explicit in this regard that if the confession leading to recovery is there, the conviction cannot be said to suffer from error.
Further argument has been made that not only the confession leading to recovery is there but the culpability of the appellant has also been proved from the FSL report since in the serological examination, human blood has been found.
Emphasis has been given upon the argument that the blood stain from the earth which was taken as a sample from the place of occurrence has been found to be of a human being, and if the conviction is based upon the aforesaid evidence, the same cannot be said to suffer from error.
8. In response to the aforesaid argument, the learned counsel for the appellant has submitted that it is not in dispute that the sample of blood stained earth had not been taken sample but the requirement to look into before coming to conclusion is that the place of occurrence must have been proved but the place of occurrence has not been proved as would appear from the testimony of the investigating officer. Since, in one line, it has been deposed that the investigating officer had gone to the place of occurrence but there is no description of the place of occurrence and in that view of the matter, no conclusion can be arrived at that the sample of blood stained earth/soil has been taken from the place of occurrence.
9. We have heard the learned counsel for the parties, perused the documents available on record as also the LCR and the finding recorded by the learned trial court in the impugned order.
5 Cr. Appeal (DB) No. 387 of 2019
10. This Court, deems it fit and proper to refer certain important facts which has got bearing on the issue. The learned trial court during the trial has altogether examined 12 witnesses and testimony of the same is required to referred herein, as follows:
(i) P.W.-1 Banshi Mehta happens to be the informant of this case.
He has stated in examination-in-chief that he knows Dev Kumar @ Devlal Munshi, deceased. On 17.04.2014 he went to cast his vote and stayed at Saraiya Bhattha in the evening. At about 11:00 p.m Dulwa Rana came and informed that Devlal was murdered by knife. They went to the owner Mundrika and informed about the incident. Thereafter, 8-10 persons went to Sarai Bhatha where they found Devlal dead and the said information was given to police. He further stated that the accused Vijay Indwar used to live with Devlal and have food together. He also stated that quarrel used to happen between them and on the basis of suspicion accused-Vijay Indwar was brought to the police station where he confessed his guilt. He has proved his signature on the fard-bayan which has been marked as Ext-1.
During his cross-examination, he stated that after murder his statement was recorded in police station on 18.05.2014. He has also stated that Vijay Indwar used to work in bhatha (brick clin). The witness denied the suggestion of defence that he implicated accused in a false case.
(ii) P.W.-2 is Mundrika Prasad Mehta. He has stated in examination- in-chief that he know Devlal Tati @ Devanand Tati, deceased. He has stated that he was told by Banshi Munshi that Devlal Tati was murdered. He went to the place of occurrence and saw wound on neck and hand of deceased. He has stated that he has put his signature on the inquest report. He further stated that a person, namely, Vijay was trying to escape from the place of occurrence but people apprehended him.
During his cross-examination, he has deposed that he has not seen the occurrence and has deposed whatever he had heard. He had signed on a blank paper.
6 Cr. Appeal (DB) No. 387 of 2019
(iii) P.W.-3 is Anil Kumar Mehta. He has stated in examination-in- chief that he know Devlal Tati, deceased, who used to work as Munshi. On hulla he went to the place of occurrence and saw that Devlal Tati was dead in front of the office and blood was coming out from his nose. Later on, he came to know that a person named Vijay was apprehended by the police.
During his cross-examination, he has deposed that he not seen the occurrence. He cannot say who killed Devlal Tati and the police has not inquired him. He has also stated that Vijay used to work in his Bhatha (brick clin) so he knows him.
(iv) P.W.-4 is Lal Bahadur Tati. He has stated in examination-in- chief that incident took place on 17.04.2014 in between 10:00-11:00 p.m. and at that time he was in his village. He received information about the murder of Devlal Tati. Devlal Tati was his nephew and worked in brick bhatha at Padma. He has further deposed that there was illicit relation with Anita who used to work in the Bhatha and her husband, Vijay Indwar, came to know about the illicit relation and as a result Devanand was murdered. The witness came to know the Vijay was arrested by police and he was told by accused Vijay that Devanand had illicit relation with his wife therefore he killed Devanand.
During his cross-examination, he has deposed that he has not seen the occurrence and he cannot say if anyone has seen the occurrence. The witness denied the suggestion of defence that Vijay has not murdered his nephew.
(v) P.W.-5 is Shivdeo Ram. He has stated in examination-in-chief that incident took place on 17.04.2014 at about 10:00-11:00 p.m. On that day he was on leave and had gone to his house. Devanand was also working on that Bhatha as a Munshi. Further he stated that on 18.04.2014 he received information about the murder of Deva Tati. Then they reached at Padma O.P and saw Devanand Tati in dead condition. Accused Vijay was in police station and he himself said the he committed the murder of Devanand Tati by inflicting Sabal.
7 Cr. Appeal (DB) No. 387 of 2019 Accused had suspicion that there is illicit relationship of his wife with the deceased. Accused also worked in JMD bhatha as a labour.
During his cross-examination, the has deposed that he told to the police that he came to know about the incident in the night of 18.04.2014 and after one week of the incident he returned to Padma. After one day of the incident, police had recorded his statement in police station. The witness denied the suggestion of defence that he deposed falsely.
(vi) P.W.-6 is Rajnikant Kumar. He has stated in examination-in- chief that the deceased Devanand Tati was his father. The incident took place on 17.04.2014. On that very day he was in his village Nalanda. His father used to work as Munshi at Padma JMD Bhatha. Muni Mahto was the owner of the Bhatha. His father was working in that bhatha from 10-12 years. His co-villager Shivdev Ram got information about the murder of his father at JMD Bhatha. He along with 10-12 persons came by vehicle at night and he saw the dead body of his father. He came to know that Vijay Indrawar has committed the murder. He also came to know that there was illicit relationship between his father and the wife of Vijay Indrawar. His father was murdered by means of Sabal. Bhatha owner Muni Mahto told to this witness that Vijay Indrawar has committed the murder. Postmortem was conducted at Hazaribag hospital thereafter they took the dead body to house.
During his cross-examination, he has deposed that he does not know anything about Vijay Indrawar. He has deposed as was told by the owner of brick bhatha. He has no personal knowledge the there was illicit relation between his father and wife of accused. The witness denied the suggestion of defence he was told false by the owner of brick bhatha.
(vii) P.W.-7 is Triveni Prasad Mehta. He has stated in examination-in- chief that he is not the owner of brick Bhatha. At about 3:00 night he came to know that the murder of Dev Kumar @ Devanand Tati has been committed at Jai Mata Di brick bhatha. The dead body was lying 8 Cr. Appeal (DB) No. 387 of 2019 outside the labourer's rooms. There was injury on the head apart from this he does not know anything about the incident. This witness declared hostile on request of prosecution.
(viii) P.W.-8 is Dr. Anwar Ekram. He has stated in examination-in- chief that on 18.04.2014 he was posted at Sadar Hospital, Hazaribag and on the same day at about 11:05 AM he conducted the postmortem of Deo Kumar, aged about 40 years S/o Choote Lal Turi Village- Harnaut P.S- Chandi District- Nalanda and found the eye closed, mouth partially open, Rigor mortis present upper and lower limb.
External Examination:-
1. Incised wound 1" x 2" on right side of face.
2. Incised wound 1" x 2" on right side of face.
3. Incised wound 2 ½" x 1/2" on lower part of front of neck with rapture of trachea and cutting of major vessel.
4. Incised wound 2" X 1/2" on right claviecale area.
Injuries are antimortem in nature caused by sharp weapon.
Internal Examination:-
1. Both lungs intact and pale
2. Liver intact and pale
3. Heart both chamber empty
4. Spleen intact and pale
5. Both kidneys intact and pale
6. Stomach wall normal contain mucoid fluid
7. Urinary bladder empty.
The doctor has opined that the cause of is Hemorrhage and shock due to above injuries. The doctor has further stated that the time since death is 6-12 hours and the postmortem report was prepared by him and bears his signature which has been marked as Ext-2.
During his cross-examination, he has deposed that sharp cutting wound was found on the deceased body. No alcohol was found in 9 Cr. Appeal (DB) No. 387 of 2019 deceased's stomach. The witness denied the suggestion of defence that his postmortem report is not true.
(ix) P.W.-9 is Parduman Sao. He has stated in examination-in-chief that earlier he was working as a Munshi in JMD brick bhatha. He know Devlal Tati who works as a labour. Devlal Tati was murdered three years ago. He does not know who kill Devlal Tati. On request of prosecution this witness has been declared hostile.
(x) P.W.-10 is Md. Riyazuddin. He has stated in examination-in- chief that incident took place three years ago. It was election time. At 6:00 a.m. he was crossing from the place of occurrence. He saw crowd and heard hulla that murder had happened at the brick bhatha of Mundrika Mehta. He had not seen the dead body. The witness was told by a labour Bagra that police has seized gamcha, Sabal which contained soil. He has stated that he was informed that the deceased was munshi of Brick bhata and the person who murdered him was labour of brick bhatha. Seizure list was prepared which bears his signature and marked as Ext.-3.
During his cross-examination, he has deposed that he had not seen who committed murder. He does not remember the colour of Gamcha and the Sabal was about 4 feet long. The witness denied the suggestion of defence that nothing was seized in front of him.
(xi) P.W.-11 is Roy Soumitra Pankaj Bhushan. He has stated in examination-in-chief that on 18.04.2014 he was posted as officer-in- charge at Padma O.P. On that day he received information at 4:10 a.m. on mobile that at village-Saraiya situated at JMD brick bhatha a murder was committed. After registered Sanha No. 03 dated 18.04.2014 he along with police force for its verification went to place of occurrence and dead body was found there. He has recorded fardbayan of the informant, Banshi Mehta in front of witness Triveni Prasad Mehta. He has proved his signature and writing on the fardbeyan which has been marked as Ext-1/1.
10 Cr. Appeal (DB) No. 387 of 2019 He took the charge of investigation himself at the place of occurrence. During investigation he prepared inquest report of deceased Dev Kumar. He has visited the place of occurrence which is the courtyard of the JMD bhattha and he found the stain of blood. He further stated that the accused confessed his guilt that he killed Devlal Tati with gamcha and Sabal. On disclosure of accused Vijay Indwar, green coloured gamcha with blood stain and an iron sabal on which blood stain was on the pointed side was seized and accordingly, the seizure list was prepared. Confessional statement of the accused was written by him which has been marked as Ext-4. Seizure list is in writing and bears his signature has been marked as Ext-3/1. Forwarding on the fardbeyan has been marked as Ext-1/2. Endorsement on fardbeyan has been marked as Ext-1/3. Signature of Noor Alam on formal FIR has been marked as Ext-5. In course of investigation he recorded the statement of witnesses Rajnikant, Lal Bahadur, Shiv Dev Rai, Triveni. Prasad, Md. Riyazuddin, Sunil Kumar, Prabhutan Sao, Anil- Kumar Mehta. Seized material was sent to FSL. He received postmortem report of deceased. After finding sufficient evidence against accused and accordingly, he submitted charge-sheet.
During his cross-examination, he has deposed that dead body of deceased was recovered at the place of occurrence and Gamcha was seized from accused and Sabal was seized from the house of the accused. He has also deposed that during the entire investigation no eye witness was found. The witness denied the suggestion of defence that his investigation is full of error.
(xii) P.W.-12 is Sanatan Murmu. He has stated in examination-in- chief that he brought the seized material of Barhi (Padma) P.S Case No.115/14. Iron sabal has been marked as Material Ext-1. Green coloured gamcha contained blood stain has been marked as Material Ext-II. Soil contain blood in an envelop has been marked as Material Ext-III. The letter to produce seized material in the court has been written and signed by officer-in-charge Barhi (Padma O.P) Pankaj Kumar Das, marked as Ext-7.
11 Cr. Appeal (DB) No. 387 of 2019 During his cross-examination, he has deposed that he brought the seized material on instruction of officer-in- charge.
11. Before dealing with the argument advanced on behalf of the parties as referred above, this Court, deems it fit and proper to refer the settled position of law regarding the principle to be adopted in the matter of guilt to be proved in the case of circumstantial evidence. The most fundamental and basic decision of the Hon'ble Apex Court is Hanumant son of Govind Nargundlar vs. State of Madhya Pradesh, AIR 1952 SC 343 wherein it has been held that "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances 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 circumstances 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 reasonable 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."
12. The same view has been taken by the Hon'ble Apex Court in Bakhshish Singh vs. State of Punjab, (1971) 3 SCC 182 wherein the Hon'ble Apex Court has observed that the principle in a case resting on circumstantial evidence is well settled that the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. These circumstances 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 reasonable 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.
12 Cr. Appeal (DB) No. 387 of 2019 The Hon'ble Apex Court while laying down such proposition in the said case has considered the factual aspect revolving around therein and while considering the fact has only found the incriminating evidence against the appellant was his pointing the place where the dead body of the deceased had been thrown which the Hon'ble Apex Court has not considered to be a circumstantial evidence though undoubtedly it raises a strong suspicion against the appellant. the Hon'ble Apex Court while coming to such conclusion has observed that even if he was not a party to the murder, the appellant could have come to know the place where the dead body of the deceased had been thrown. Hence anyone who saw those parts could have inferred that the dead body must have been thrown into the river near about that place. In that pretext, the law has been laid down at paragraph-9 thereof, which reads as under:
"9. The law relating to circumstantial evidence has been stated by this Court in numerous decisions. It is needless to refer to them as the law on the point is well-settled. In a case resting on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again those circumstances 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 reasonable 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."
13. It is, thus, evident from the close analysis of the aforesaid judgments the following conditions must be fulfilled before a case fulfilled before a case against an accused can be said to be fully established:
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(ii) 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,
(iii) the circumstances should be of a conclusive nature and tendency,
(iv) they should exclude every possible hypothesis except the one to be proved, and 13 Cr. Appeal (DB) No. 387 of 2019
(v) 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.
14. The Hon'ble Apex Court has reiterated the said principle again in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 holding all the above five principles to be the golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence.
The Hon'ble Apex Court in the said case as under paragraph-155, 156, 157, 158 and 159 has been pleased to hold that if these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. Paragraphs-155, 156, 157, 158 and 159 of the said judgment read as under:
"155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry [1952 NZLR 111] thus:
"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for."
156. Lord Goddard slightly modified the expression "morally certain"
by "such circumstances as render the commission of the crime certain".
157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry case [1952 NZLR 111] was approved by this Court in Anant Chintaman Lagu v. State of Bombay [AIR 1960 SC 500 :
(1960) 2 SCR 460 : 1960 Cri LJ 682] . Lagu case [AIR 1960 SC 500 :
(1960) 2 SCR 460 : 1960 Cri LJ 682] as also the principles enunciated by this Court in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 :
1952 SCR 1091 : 1953 Cri LJ 129] have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases -- Tufail case [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] , Ramgopal case [(1972) 4 SCC 625 : AIR 1972 SC 656] , Chandrakant Nyalchand Seth v. State of Bombay [ Criminal Appeal No 120 of 1957, decided on February 19, 1958], Dharambir Singh v. State of Punjab [ Criminal Appeal No 98 of 1958, decided on November 4, 1958 printed on green papers in bound volumes]. There are a number of other cases where although Hanumant 14 Cr. Appeal (DB) No. 387 of 2019 case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration [(1974) 3 SCC 668, 670 : 1974 SCC (Cri) 198, 200 :
(1974) 2 SCR 694, 696] , Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607, 609 : 1974 SCC (Cri) 643, 645 : AIR 1974 SC 1144, 1146] , Shankarlal Gyarasilal Dixit v. State of Maharashtra [(1981) 2 SCC 35, 39 : 1981 SCC (Cri) 315, 318-19 : (1981) 2 SCR 384, 390 : 1981 Cri LJ 325] and M.G. Agarwal v. State of Maharashtra [AIR 1963 SC 200 : (1963) 2 SCR 405, 419 : (1963) 1 Cri LJ 235] -- a five-Judge Bench decision.
158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor General relying on a decision of this Court in Deonandan Mishra v. State of Bihar [AIR 1955 SC 801 :
(1955) 2 SCR 570, 582 : 1955 Cri LJ 1647] to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:
"But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation,. . . such absence of explanation or false explanation would itself be an additional link which completes the chain."
159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation."
The foremost requirement in the case of circumstantial evidence is that the chain is to be completed.
15. Recently, the Hon'ble Apex Court in the case of Laxman Prasad @ Laxman vs. The State of Madhya Pradesh in Criminal Appeal No. 821 of 2012 dated 14.06.2023 has held at paragraphs-3 & 4 as follows:
"3. We do not find such conclusion of the High Court to be strictly in accordance with law. In a case of circumstantial evidence, the chain has to be complete in all respects so as to indicate the guilt of the accused and also exclude any other theory of the crime. The law is well settled on the above point. Reference may be had to the following cases: (i) Sharad Birdhichand Sarda vs. State of Maharashtra,(1984) 4 SCC 116; (ii) Sailendra Rajdev Pasvan vs. State of Gujarat Etc., AIR 2020 SC 180
4. Thus, if the High Court found one of the links to be missing and not proved in view of the settled law on the point, the conviction ought to have been interfered with."
15 Cr. Appeal (DB) No. 387 of 2019
16. This Court is now proceeding to examine as to whether on the basis of the testimony of the prosecution witnesses, it can be said to have the chain completed so as to uplhold the judgment of conviction.
17. According to the appellant, the chain is to be completed in the facts and circumstances of the case since there is no corroborating evidence save and except the circumstantial evidence, as such, the same is required to be considered in the light of the serological examination.
18. The fact of the case as per the consideration made by the learned trial court is that the appellant has confessed about the commission of crime as also on the basis of his confession, the blood stained sabal and blood stained gamchha were recovered from his house, therefore, the learned trial court has considered the implication of Section 27 of the Evidence Act.
19. The law is well settled with respect to the applicability of Section 27 of the Evidence Act as per the judgment rendered by the Hon'ble Apex Court in Earabhadrappa v. State of Karnataka, AIR 1983 SC 446. Paragraph-7 of the said judgment reads as under:
"7. There is no controversy that the statement made by the appellant Ex. P-35 is admissible under Section 27 of the Evidence Act. Under Section 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word "fact" means some concrete or material fact to which the information directly relates. As explained by Sir John Beaumont in Pulukuri Kotayya v. King-Emperor [(1947) 74 IA 65 : AIR 1947 PC 67 : 230 IC 135] :
"... it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.""
Further, in Nisar Khan @ Guddu v. State of Uttaranchal, 2006 (9) SCC 386, the Hon'ble Apex Court at paras-6 to 8 has been pleased to observe which read as under:
"6. Regarding the second contention that the recovery of arms has not been proved by the prosecution has also no substance. It is evidence on record that the accused were arrested on 17-12-1999 and pursuant to a disclosure statement made by them, the arms were recovered from the bank of Gaula river where these had been hidden under the sand and covered by the stones. All the arms were recovered as pointed out by each accused hidden under the stones. The High Court fell in error 16 Cr. Appeal (DB) No. 387 of 2019 in holding that the recovery has not been proved as these were recovered from a place which is frequented by the public. This finding of the High Court is contrary to the evidence on record. It is now well- settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. In Dhananjoy Chatterjee v. State of W.B. [(1994) 2 SCC 220 : 1994 SCC (Cri) 358] it is held that the entire statement made by an accused person before the police is inadmissible in evidence being hit by Sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. It is also held that the Court must disregard the inadmissible part of the statement and take note only of that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further held that the discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to its existence.
7. In Golakonda Venkateswara Rao v. State of A.P. [(2003) 9 SCC 277 : 2003 SCC (Cri) 1904] this Court reiterated the view and held that the discovery statement of an accused leading to recovery of crime articles from concealed place, even though the discovery statement and the recovery memo did not bear the accused's signature, the fact of recovery from the well and dug out was from a place which was pointed out by the appellant and, therefore, such discovery was voluntary. That the recovery was in consequence to the information given was fortified and confirmed by the discovery of the apparel worn and skeletal remains of the deceased and, therefore, the information and statement cannot be held to be false. In the present case on the recovery memo the signatures of all the accused have been obtained. In Praveen Kumar v. State of Karnataka [(2003) 12 SCC 199 : 2004 SCC (Cri) Supp 357] the same view has been reiterated.
8. As already noted, in the instant case the discovery of the arms was pursuant to the disclosure statement made by the accused immediately after the arrest and the offending arms were recovered at the place pointed out by each of the accused which were concealed under the sand and covered by the stones. The High Court in this regard fell in grave error by disbelieving the recovery memo solely on the ground that the place is a common place which is frequented by the public. The High Court failed to take notice that the recovery has been made from underneath the sand covered by the stones pursuant to the disclosure statement pointed out by each of the accused."
20. It is evident from the aforesaid proposition that the confession leading to recovery is very weak piece of evidence and it is to be relied only in a case where the other corroborating evidence are there.
21. Here, in the facts and circumstances of the case, the confession of the appellant leading to recovery of sabal and gamchha are there. The blood stained sabal and blood stained gamchha as also the blood stained earth/soil had been sent for serological examination. The report has been considered by the learned trial court wherefrom it is evident that from the blood stained earth/soil and blood stained sabal, the blood 17 Cr. Appeal (DB) No. 387 of 2019 contained therein has been found to be of a human being having Blood Group-B and so far as blood stained gamchha is concerned, no group has been reported rather only the reference of blood to be of human being is reported. For ready reference, the report of serological examination is being referred although the same is quoted above but at the cost of repetition, the same is being referred as under:
Sl. Exhibit(s) Nature of Origin Grouping Remarks No. Marked Stains/tissue Species ABO Others (Particularly of origin Grouping when Results Results origin/Grouping not determined)
1. A Blood HUMAN Group-B -
2. B Blood HUMAN Group-B -
3. C Blood HUMAN Could not - Result of test be for blood determined grouping inconclusive
22. The learned trial court has passed the judgment of conviction on the basis of confession leading to recovery and the report of the serological examination as referred above has been treated to be in corroboration with the same.
But, the learned trial court has failed to appreciate that merely on the basis of the blood to be of a human being having Group-B, the same cannot be said to be a justifiable reason to convict a person unless there is corroborating evidence by way of conducting DNA test which admittedly has not been conducted.
23. This Court, therefore, is of the view that in absence of any corroborating piece of evidence, in absence of any DNA test, merely on the basis of blood of human being having a particular group, cannot be said to be a conclusive evidence reason being that there might be blood of human having particular group but it cannot be said with authenticity that the said blood was of the deceased in absence of any DNA test.
Further, the sabal which has been said to be recovered from the house of appellant on the confessional statement being made by him, but, the prosecution has not conducted any examination of sabal for the purpose of ascertaining by taking finger print over there.
18 Cr. Appeal (DB) No. 387 of 2019
24. The presumption will always be there that the sabal is commonly used equipment and the probability is of its availability cannot be ruled out in any house. Therefore, the requirement of the prosecution to prove the guilt by taking finger print of the appellant over the sabal and in that case only if the report would have been there that the finger print of the appellant was present in the sabal then the sabal must be said to be used in the commission of crime and then only, it could have been said that the chain has been completed. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Sattatiya alias Satish Rajanna Karalla vs. State of Maharashtra, (2008) 3 SCC 210 wherein at paragraph-26, the Hon'ble Apex Court has observed which reads as under:
"26. The next thing which is to be seen is whether the evidence relating to the recovery of clothes of the appellant and the half blade, allegedly used for commission of crime, is credible and could be relied on for proving the charge of culpable homicide against the appellant. In this context, it is important to note that the prosecution did not produce any document containing the recording of statement allegedly made by the appellant expressing his desire to facilitate recovery of the clothes and half blade. The prosecution case that the accused volunteered to give information and took the police for recovery of the clothes, half blade and purchase of handkerchief is highly suspect. It has not been explained as to why the appellant gave information in piecemeal on three dates i.e. 3-10-1994, 5-10-1994 and 6-10-1994. Room No. 45 of "Ganesh Bhuvan" from which the clothes are said to have been recovered was found to be unlocked premises which could be accessed by anyone. The prosecution could not explain as to how the room allegedly belonging to the appellant could be without any lock. The absence of any habitation in the room also casts serious doubt on the genuineness and bona fides of recovery of clothes. The recovery of half blade from the roadside from beneath the wooden board in front of "Ganesh Bhuvan" is also not convincing. Undisputedly, the place from which half blade is said to have been recovered is an open place and everybody had access to the site from where the blade is said to have been recovered. It is, therefore, difficult to believe the prosecution theory regarding recovery of the half blade. The credibility of the evidence relating to recovery is substantially dented by the fact that even though as per the chemical examiner's report the bloodstains found on the shirt, pants and half blade were those of human blood, the same could not be linked with the blood of the deceased. Unfortunately, the learned Additional Sessions Judge and the High Court overlooked this serious lacuna in the prosecution story and concluded that the presence of human bloodstains on the clothes of the accused and half blade were sufficient to link him with the murder."
25. The Hon'ble Apex Court in the aforesaid judgment has laid down that only on the basis of blood sample having a particular group. There cannot be conviction in case of circumstantial evidence.
19 Cr. Appeal (DB) No. 387 of 2019
26. This Court, therefore, on discussion of the judicial pronouncement of the Hon'ble Apex Court as referred above and coming to the factual aspect of this case wherein conviction is based upon the confession leading to recovery, thereby, the provision of Section 27 of the Evidence Act has been made applicable as also the report of serological examination of blood having found to be of a human being of Group-B, cannot be said to substantive piece of evidence in order to prove the guilt due to the reason that the case is based upon the circumstantial evidence and in absence of any DNA test and the finger print has not been taken from the sabal, the chain cannot be said to have completed.
27. This Court considering the statement recorded under Section 313 of Cr.P.C. as also the consideration so made by the learned trial court in the impugned judgment, has found therefrom that the statement so recorded of the accused in defence has not properly been appreciated by the learned trial court.
The law is well settled that the statement made under Section 313 of Cr.P.C. cannot be said to be merely formal observation of the requirement rather the same has got important bearing in the matter of convicting a person by taking away its liberty and as such, the same is required to be considered in the light of the testimony recorded by the prosecution witnesses and if there is any iota of doubt in accepting the version of the prosecution witnesses, the defence of the accused as recorded under Section 313 of Cr.P.C. is required to be considered.
28. The learned trial court has failed to appreciate the aforesaid fact and as such, according to our considered view, the impugned judgment requires interference.
29. Accordingly, the judgment of conviction and order of sentence dated 07.08.2018 passed by learned Additional Sessions Judge-XII, Hazaribagh, in Sessions Trial No. 346 of 2014, is hereby, quashed and set aside.
30. In consequence thereof, the appellant is acquitted and discharged from his criminal liability and directed to be released from judicial custody 20 Cr. Appeal (DB) No. 387 of 2019 in connection with Sessions Trial No. 346 of 2014, if not required in any other case.
31. Let this order/judgment be communicated forthwith to the court concerned along with the Lower Court Records (Sujit Narayan Prasad, J.) I agree, (Subhash Chand, J.) (Subhash Chand, J.) Jharkhand High Court, Ranchi Dated: 20/07/2023 Saurabh /A.F.R.