Chattisgarh High Court
Kishor @ Kishan vs State Of Chhattisgarh on 19 October, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012
Page 1 of 23
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.872 of 2012
{Arising out of judgment dated 1-9-2012 in Sessions Trial No.49/2012
of the 2nd Additional Sessions Judge, Baloda Bazaar}
Kishor @ Kishan, S/o Dukhitram Barbhe, aged 23 years, R/o Village
Rajgamarg, Korba, P.S. Balco, District Korba (C.G.)
---- Appellant
Versus
State of Chhattisgarh, Through P.S. Bilaigarh, District Raipur (C.G.)
---- Respondent
Criminal Appeal No.1102 of 2012
Indra Pal @ Bhakhlu, Aged about 20 years, S/o Sitaram Jahire, R/o
Village Karmandi, P.S. Shivrinarayan, District Janjgir-Champa (C.G.)
---- Appellant
Versus
State of Chhattisgarh, Through Station House Officer, P.S. & Tahsil
Bilaigarh, District Raipur {Now:- Baloda Bazar-Bhatapara} (C.G.)
---- Respondent
Criminal Appeal No.1004 of 2012
Ajay @ Khorbahara, S/o Maniram Joshi, Aged 28 years, R/o Village
Karmandi, P.S. Sheorinarayan, District Janjgir-Champa (C.G.)
---- Appellant
Versus
State of C.G., through P.S. Bilaigarh, Police Station & Tahsil Bilaigarh,
District Balodabazar-Bhatapara (C.G.)
---- Respondent
Criminal Appeal No.779 of 2012
Gita Ram @ Raj Kumar, S/o Bhuru Ram Barbhe, aged 27 years,
Labour Worker, R/o Village Dhobani, Police Station Bilaigarh, Distt.
Baloda Bazar/Bhatapara (C.G.)
---- Appellant
Versus
Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012
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State of Chhattisgarh, through the Station House Officer, Bilaigarh,
Distt. Raipur (Now Baloda Bazar/Bhatapara Collector Baloda
Bazar/Bhatapara) (C.G.)
---- Respondent
AND
Criminal Appeal No.863 of 2012
1. Sukwara Bai, W/o Dev Ram Tandon, aged 65 years,
2. Deo Ram, S/o Bed Ram Tandon, aged 67 years,
Both R/o Village Pathariya, P.S. Bilaigarh, Distt. Baloda Bazar/
Bhatapara (C.G.)
---- Appellants
Versus
State of Chhattisgarh, through the Station House Officer,
Bilaigarh, Distt. Raipur (Now Baloda Bazar/Bhatapara Collector
Baloda Bazar/Bhatapara) (C.G.)
---- Respondent
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For Appellant in Cr.A.No.872/2012: -
Mr. Uttam Pandey, Advocate.
For Appellants in Cr.A.Nos.1102/2012 & 863/2012: -
Mr. Hemant Gupta, Advocate.
For Appellant in Cr.A.No.1004/2012: -
Mr. Sumit Singh, Advocate.
For Appellant in Cr.A.No.779/2012: -
Mr. Satya Prakash Verma, Advocate.
For State / Respondent in all appeals: -
Ms. Ruchi Nagar, Deputy Govt. Advocate.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Deepak Kumar Tiwari, JJ.
Judgment On Board (19/10/2022) Sanjay K. Agrawal, J.
1. Since all the five criminal appeals have arisen out of one and same impugned judgment dated 1-9-2012 passed by the 2 nd Additional Sessions Judge, Baloda Bazaar in Sessions Trial No.49/2012 and since common question of fact and law is Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 3 of 23 involved in all the five appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.
2. These five criminal appeals have been preferred by the accused / appellants (A-1 to A-5) under Section 374(2) of the CrPC against the impugned judgment convicting them for the offence punishable under Section 302 read with Section 120B of the IPC and sentencing them to undergo imprisonment for life with fine of ₹ 1,000/- each, in default, to further undergo imprisonment for six months. Appellants Kishore @ Kishan & Indrapal @ Bhakhlu have also been convicted for offences punishable under Sections 25(1B)(b) & 27(1) of the Arms Act and sentenced to undergo imprisonment for two years with fine of ₹ 200/- each, in default to further undergo imprisonment for six months and to undergo imprisonment for five years with fine of ₹ 500/- each, in default, to further undergo imprisonment for six months, respectively.
3. Sole appellant in Cr.A.No.872/2012 namely Kishore @ Kishan (A-1), sole appellant in Cr.A.No.1102/2012 namely Indrapal @ Bhakhlu (A-2), sole appellant in Cr.A.No.1004/2012 namely Ajay @ Khorbahra (A-3), sole appellant in Cr.A.No.779/2012 namely Geetaram @ Rajkumar (A-4) and two appellants in Cr.A. No.863/2012 namely Devram (A-5) & Sukwara Bai (A-6) have assailed their conviction for offences under Section 302 read with Section 120B of the IPC and Sections 25(1B)(b) & 27(1) of the Arms Act.
Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 4 of 23
4. It is admitted position on record that deceased Santosh Tandan was son of Devram (A-5) out of his wedlock with his second wife Sonia Bai and step son of Sukwara Bai (A-6). It is the case of the prosecution that Devram (A-5) retired from SECL and has received ₹ 7 lakhs as pensionary benefits out of which deceased Santosh Tandan was expecting some money for starting some business which Devram (A-5) & Sukwara Bai (A-6) were not willing to give. Further, it is the allegation that despite unwillingness of Devram (A-5), the deceased came to the house of Devram (A-5) & Sukwara Bai (A-6) and started residing in some portion of it for which in order to remove him from there and to get rid of him, A-5 & A-6 conspired with Ajay (A-3) & Geetaram (A-4) and hired Kishore (A-1) & Indrapal (A-2) to murder Santosh Tandan for an amount of ₹ 20,000/- and in furtherance of their conspiracy, on 13-8-2010 between 10 a.m. and 2 p.m., A-1 to A-4 assaulted Santosh Tandan by knife & khukhri in the field of Kapil Chauhan located in between Village Manahi and Village Nagarda by which he suffered injuries and died. Ramnath (PW-1) appeared in Police Station Bilaigarh and registered morgue intimation Ex.P-1 and informed about the dead body of unknown person lying in the outskirts of Village Nagarda pursuant to which Abhinav Kant Singh (PW-15) reached to the spot along with police party and dead body was identified to be of Santosh Tandan vide identification panchnama Ex.P-12. Thereafter, inquest was conducted vide Ex.P-4 and dead body was recommended by the panchas to be sent for postmortem to Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 5 of 23 ascertain cause of death and accordingly, it was sent for postmortem. Meanwhile, on same day, dehati nalishi was registered vide Ex.P-23 and Hero Honda CD Delux motorcycle along with its attached articles was seized from the spot vide Ex.P-21 and other articles were also seized vide Exs.P-6 & P-7. Thereafter, FIR was registered vide Ex.P-25 in the police station, Meanwhile, postmortem was conducted by Dr. Om Prakash Aditya (PW-4) vide his postmortem report Ex.P-8 and according to the doctor conducting postmortem, cause of death was shock due to haemorrhage as a result of multiple severe injuries to vital organs and death was homicidal in nature. Thereafter, memorandum statements of accused persons were recorded. Memorandum statement of accused Devram (A-5) was recorded vide Ex.P-14 pursuant to which mobile phone of accused Kishore (A-1) and one another mobile phone were seized from his possession vide Ex.P-18. Similarly, pursuant to the memorandum statement (Ex.P-15) of accused Kishore (A-1), knife with bloodstains and clothes were seized vide Ex.P-19. Pursuant to the disclosure statement (Ex.P-16) of accused Indrapal (A-2), bloodstained khukhri was seized vide Ex.P-20 and pursuant to the memorandum statement (Ex.P-17) of accused Ajay (A-3), motorcycle used in the offence was seized vide Ex.P- 21 and it was sent for forensic examination. Seized articles were sent for chemical analysis to the State FSL, Raipur by the Superintendent of Police, Raipur vide memo Ex.P-38 and it has also been received by the State FSL, Raipur on 12-10-2010 vide Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 6 of 23 acknowledgment receipt Ex.P-39, but the FSL report has not been brought on record for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded under Section 161 of the CrPC and the appellants were charge- sheeted for the aforesaid offences before the jurisdictional criminal court. The appellants abjured the guilt and entered into defence. Their defence was that they have not committed the offence and they have been falsely implicated in the offences in question.
5. In order to bring home the offence, the prosecution has examined as many as 15 witnesses and exhibited 39 documents Exs.P-1 to P-39. The defence has examined none, but exhibited two documents Exs.D-1 & D-2 i.e. statements of Khikram & Dujmati, respectively.
6. The trial Court after appreciating oral and documentary evidence on record, convicted and sentenced the appellants under Section 302 read with Section 120B of the IPC and Sections 25(1B)(b) & 27(1) of the Arms Act in the manner mentioned in the opening paragraph of this judgment against which these five appeals have been preferred.
7. Mr. Uttam Pandey, learned counsel appearing for appellant Kishore @ Kishan (A-1) in Cr.A.No.872/2012, would submit that the fact of conspiracy has not been proved beyond reasonable doubt and furthermore, recovery of knife and clothes vide Ex.P- 19 has also not been proved as Bandhan Kurre (PW-10) -
Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 7 of 23 witness of memorandum & recovery, has turned hostile and Paklu @ Santram (PW-12) - another witness of memorandum & recovery, is relative witness being brother-in-law of the deceased and therefore he being related witness, it would not be safe to rest conviction relying upon the said witness. He would further submit that the bloodstained knife which was seized and other articles and clothes were sent for chemical analysis to the FSL, but for the reasons best known to the prosecution, FSL report has not been brought on record, therefore, it could not be established that the said knife has been used in the weapon of offence in the crime in question. He would also submit that call details of the mobiles seized have not been collected and memorandum is not reliable as seizure has been made from Village Dhobini Dih, whereas the seizure states that it has been seized from Village Dhobini, which is a material contradiction, therefore, memorandum has not been proved beyond reasonable doubt.
8. Mr. Hemant Gupta, learned counsel appearing for appellant Indrapal @ Bhakhlu (A-2) in Cr.A.No.1102/2012, would submit that memorandum Ex.P-16 pursuant to which bloodstained khukhri is said to have been seized vide Ex.P-20, is not proved as reliable document, and moreover, though it has not been sent for chemical analysis, but the same has not been proved to be used as the weapon of offence and therefore conviction of the appellant is liable to be set aside.
Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 8 of 23
9. Mr. Sumit Singh, learned counsel appearing for appellant Ajay @ Khorbahra (A-3) in Cr.A.No.1004/2012, would submit that the present appellant has been convicted on the memorandum of Devram (A-5) which is not admissible evidence in the eyes of law, even the alleged memorandum of Ajay (A-3) by which motorcycle has been seized vide Ex.P-21 has not been proved in accordance with law. Even otherwise, discovery is a weak piece of evidence. He would rely upon the decisions of the Supreme Court in the matters of Mani v. State of Tamil Nadu1 and Vijay Thakur v. State of Himachal Pradesh2 to buttress his submission and he submits that his appeal be allowed.
10. Mr. Satya Prakash Verma, learned counsel appearing for appellant Gitaram @ Raj Kumar (A-4) in Cr.A.No.779/2012, would submit that there is no evidence at all of hatching conspiracy against the present appellant (A-4) and he has been convicted only with the aid of Section 120B of the IPC and there is no evidence of murder having been committed, against the present appellant and no overt act is said to have been attributed to him, as such, his conviction is liable to be set aside and the appeal be allowed.
11. Ms. Ruchi Nagar, learned Deputy Govt. Advocate appearing for the State / respondent, would submit that the prosecution has proved the offences charged against the appellants beyond reasonable doubt and motive of the offence has been 1 (2009) 17 SCC 273 2 (2014) 14 SCC 609 Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 9 of 23 established as there was enmity between the deceased and Devram (A-5) & Sukwara Bai (A-6) which has been established by the statements of Dujmati Bai (PW-6), Paklu @ Santram (PW-
12) & Badri Prasad (PW-13). Furthermore, the prosecution has also proved the seizure pursuant to the memorandum statements of Kishore (A-1) & Indrapal (A-2) which has been established as per the statement of Paklu @ Santram (PW-12). It is not the case of false implication, as FIR was registered against unknown person and it is only when the investigation was conducted, it was revealed that A-5 & A-6 were having grudge against deceased Santosh Tandan for illegally demanding money from the retiral dues of ₹ 7 lakhs which A-5 has received from SECL and therefore they have hatched up a conspiracy with the help of A-1 to A-4 for committing his murder for ₹ 20,000/- and furthermore, on the basis of memorandum of A-1 to A-3, knife, khukhri & motorcycle have been recovered which has duly been proved by Paklu @ Santram (PW-12). On the basis of postmortem report Ex.P-8 and statement of Dr. Om Prakash Aditya (PW-4), death is proved to be homicidal in nature. She would rely upon the decisions of the Supreme Court in the matters of Saju v. State of Kerala3, State of Punjab v. Jugraj Singh and others4 and Mohd. Rojali Ali and others v. State of Assam, Ministry of Home Affairs through Secretary 5 to submit that evidence of related witnesses cannot be discredited and 3 (2001) 1 SCC 378 4 (2002) 3 SCC 234 5 (2019) 19 SCC 567 Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 10 of 23 their testimony has to be relied upon to prove the case of the prosecution and as such, all the appeals be dismissed.
12. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
13. The first question would be, whether the death of the deceased was homicidal in nature?
14. The trial Court after appreciating oral and documentary evidence on record and taking into consideration the statement of Dr. Om Prakash Aditya (PW-4), who conducted postmortem of the deceased vide Ex.P-8, considering that the injuries were caused by sharp-edged weapon and cause of death is shock due to haemorrhage as a result of multiple severe injuries to vital organs holding the nature of death of the deceased to be homicidal, came to the conclusion that death of the deceased was homicidal in nature which is correct finding of fact based on the evidence available on record. We do not find any infirmity in the said finding warranting any interference and we hereby affirm the said finding that the death of the deceased was homicidal in nature.
15. There are total six appellants. We will now, take-up the appeals of all the appellants simultaneously, as there is only one set of evidence.
Criminal Appeal No.863/2012
16. While the appeals are taken-up for hearing, it was informed by Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 11 of 23 Mr. Hemant Gupta, learned counsel, that the appellants in Cr.A. No.863/2012 namely Devram (A-5) & Sukwara Bai (A-6) died on 15-5-2017 & 17-9-2017, respectively, which has been verified and the verification report has been brought on record by which A-5 & A-6 are reported to be dead on the aforesaid dates. In that view of the matter, the appeal of Devram (A-5) & Sukwara Bai (A-6) being Cr.A.No.863/2012 stands finally disposed of having been abated.
17. The trial Court has found the motive of the offence proved against Devram (A-5) & Sukwara Bai (A-6). Deceased Santosh Tandan is son of A-5 and step-son of A-6. Devram (A-5) had received an amount of ₹ 7 lakhs as pensionary benefits and the deceased was expecting some money out of it which A-5 & A-6 were not willing to give pursuant to which they conspired with A-1 to A-4 and caused the murder of Santosh Tandan which has been proved by Dujmati Bai (PW-6), Paklu @ Santram (PW-12) & Badri Prasad (PW-13).
18. The trial Court has also found that offence under Section 120B of the IPC has been established and the appellants have been convicted for offence under Section 120B of the IPC. Section 120B of the IPC provides as under: -
"120B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 12 of 23 such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
19. The essential ingredients of the offence of criminal conspiracy would be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. (See Chaman Lal and others v. State of Punjab and another 6.)
20. To substantiate the charge under Section 120B of the IPC, there must be criminal conspiracy at least between two or more persons. It has been held that meeting of mind is essential to constitute an offence under Section 120B of the IPC, mere knowledge or discussion would not be sufficient.
21. Recently, in the matter of Ram Sharan Chaturvedi v. The State of Madhya Pradesh7, the Supreme Court has held that the principal ingredient of the offence of criminal conspiracy under Section 120B of the IPC is an agreement to commit an offence, such an agreement must be proved through direct or circumstantial evidence, and some kind of physical manifestation of agreement 6 AIR 2009 SC 2972 7 2022 LiveLaw (SC) 709 Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 13 of 23 is required to be established. It has been observed in paragraphs 22, 25 and 26 as under: -
"22. The principal ingredient of the offence of criminal conspiracy under Section 120B of the IPC is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial evidence. Court has to necessarily ascertain whether there was an agreement between the Appellant and A- 1 and A-2. In the decision of State of Kerala v. P. Sugathan and Anr., (2000) 8 SCC 203, this Court noted that an agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation:
"12. ... As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. ... A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy...
13. ... The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..."
(emphasis supplied)
25. It is not necessary that there must be a clear, categorical and express agreement between the accused. However, an implied agreement must manifest upon relying on principles established in the cases of circumstantial evidence. Accordingly, in the Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 14 of 23 majority opinion of Ram Narayan Popli v. CBI, (2003) 3 SCC 641, this Court had held:
"354. ... For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..."
26. In view of the clear enunciation of law on the criminal conspiracy by this Court, we find that the prosecution has failed to produce any evidence whatsoever to satisfy the Court that there was a prior meeting of minds between the Appellant and A-1 and A-2. There is no physical manifestation of such a concurrence extractable from surrounding circumstances, declarations, or the conduct of the Appellant. The evidence is shorn of even a passive acknowledgment of conspiracy of the Appellant with the accused, let alone heralding a clear and conscientious participation of the Appellant in the conspiracy. As noted above, this Court has cautioned against replacing mere suspicion with the legal requirement of proof of agreement."
22. Reverting to the facts of the present case in light of the aforesaid proposition of law for proving the offence of criminal conspiracy under Section 120B of the IPC, we find that though the trial Court from paragraphs 23 to 29, 32 and 34 to 36 has considered the ingredients of conspiracy read with Section 120B of the IPC & Section 10 of the Evidence Act, but no specific finding has been recorded holding that criminal conspiracy was hatched except holding that the deceased used to demand money from his father A-5, which A-5 has received as pensionary benefits and further relied upon the memorandum statements of A-1 to A-4 pursuant to which recoveries have been made. However, the prosecution was obliged to produce legal evidence of clinching nature to hold Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 15 of 23 and satisfy the Court that there was meeting of mind between A- 1 to A-6 and further required to establish that the appellants have agreed to pursue a course of conduct which they knew was leading to the commission of a crime by one or more persons to the agreement, of that offence. We further find that the prosecution has miserably failed to produce any legal evidence to satisfy that there was meeting of mind between A-1 to A-4 and merely on the basis of suspicion that A-5 & A-6 wanted to get rid of deceased Santosh Tandan, the legal requirement of manifestation of agreement of A-5 & A-6 with other appellants cannot be held to be established. The prosecution has further failed to establish the existence of agreement between A-1 to A-6 which is sine qua non for charge under Section 120B of the IPC and in absence of such agreement, even by inference by circumstantial evidence, offence under Section 120B of the IPC cannot be said to be established only on the basis of alleged unwillingness of A-5 & A-6 to get rid of Santosh Tandan on his demand of some money from A-5 out of the pensionary benefits for carrying out business. As such, the prosecution has failed to establish the offence of criminal conspiracy under Section 120B of the IPC against appellants A-1 to A-4 and the learned trial Court is absolutely unjustified in convicting appellants A-1 to A-4 for the offence under Section 120B of the IPC.
23. The next circumstance which is heavily relied upon by the trial Court is the memorandum statement (Ex.P-15) of accused Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 16 of 23 Kishore (A-1) pursuant to which bloodstained knife, one pant & one shirt have been seized which is said to have been proved by Bandhan Kurre (PW-10) & Paklu @ Santram (PW-12). Bandhan Kurre (PW-10) has not supported the case of the prosecution and has been declared hostile, however, Paklu @ Santram (PW-
12) who is brother-in-law of the deceased has been examined as a witness to prove the memorandum statement and consequent recovery. Admittedly, Paklu @ Santram (PW-12) is a relative witness.
24. In Mohd. Rojali Ali (supra), their Lordships of the Supreme Court have pointed out difference between "interested" and "related" witnesses and it has been held in paragraph 13 by holding that a related witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim, a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that witness has a direct or indirect interest in seeing accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate accused.
25. In Jugraj Singh's case (supra), it has been held that related witnesses cannot be discarded merely on the ground of being relations, their testimony is acceptable when they were natural witnesses to the event and stood corroborated by medical evidence.
26. A careful perusal of the record would show that from the Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 17 of 23 memorandum statement of accused Indrapal (A-2), one bloodstained khukhri has been seized vide Ex.P-20 and bloodstained knife & clothes have been seized from Kishore (A-
1) vide Ex.P-19, which were sent for forensic examination to the State FSL, Raipur vide Ex.P-38 dated 29-9-2010 and which was received by the State FSL on 12-10-2010 vide Ex.P-39, but the FSL report has not been brought on record and no explanation has been furnished as to why the FSL report has not been produced before the court as it was necessary to ascertain as to whether the weapons of offence - knife & khukhri were actually used in the commission of offence or not.
27. In the matter of State of Rajasthan v. Wakteng 8, the Supreme Court has considered the issue where the sword recovered was not sent for forensic examination, no report was exhibited and no question in that regard was put to the accused and in that regard, it was held in paragraphs 17 & 18 as under: -
"17. So far as recovery of the sword is concerned, the same was not sent for any examination by the Forensic Science Laboratory and the report if any was not exhibited and even no question in that regard was put to the accused while he was examined under Section 313 of the Code.
18. Above being the position, the High Court has rightly held that the prosecution has failed to establish the accusations against the respondent. The appeal is sans merit and is dismissed."
28. Similarly, in the matter of Balwan Singh v. State of Chhattisgarh 8 (2007) 14 SCC 550 Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 18 of 23 and another9, their Lordships of the Supreme Court while reviewing the earlier case laws held that if the recovery of bloodstained 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. It was further held that 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. In that case, their Lordships observed in paragraph 24 as under: -
"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."
29. In the instant case, it is quite vivid that though recovery of knife from Kishore (A-1) and khukhri from Indrapal (A-2) has been found established by the evidence of Paklu @ Santram (PW-12), who is related witness, but not interested witness, however, considering the discrepancy pointed out on behalf of the learned 9 (2019) 7 SCC 781 Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 19 of 23 counsel for the appellants in the statement of Paklu @ Santram (PW-12) who happens to be brother-in-law of the deceased and considering that bloodstained knife & khukhri were sent for forensic examination to the FSL, but no FSL report was brought on record, therefore, it could not be established that both the weapons / material objects were having blood much less human blood and as such, there is complete absence of material indicting that the bloodstains were of the human origin and it is difficult for us to hold and rely upon the aspect of alleged recovery of weapons.
30. In Mani (supra), the Supreme Court has held that the discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery and once the discovery fails, there would be literally nothing which would support the prosecution case.
31. Furthermore, in Vijay Thakur (supra), the Supreme Court has held that it is difficult to convict the appellant only on the basis of doubtful recoveries and observed in paragraph 18 as under: -
"18. It is to be emphasized at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. Insofar as these two appellants are concerned, there is no circumstance attributed except Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 20 of 23 that they were with Rajinder Thakur till Sainj and the alleged disclosure leading to recoveries, which appears to be doubtful. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries."
32. Recently, in the matter of Bijender alias Mandar v. State of Haryana10, the Supreme Court has considered the issue as to whether the conviction of the appellant on the strength of the purported disclosure statement and the recovery memo, in the absence of any corroborative evidence, can sustain and their Lordships pertinently answered the question in paragraphs 16 & 17 as under: -
"16. We have implored ourselves with abounding pronouncements of this Court on this point. It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt. We may hasten to add that circumstances such as: (i) the period of interval between the malfeasance and the disclosure;
(ii) commonality of the recovered object and its availability in the market; (iii) nature of the object and its relevance to the crime; (iv) ease of transferability of the object; (v) the testimony and trustworthiness of the attesting witness before the Court and/or other like factors, are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery. (See: Tulsiram Kanu v. State11, Pancho v.
State of Haryana12, State of Rajasthan v. Talevar13 and Bharama Parasram Kudhachkar v. State of 10 (2022) 1 SCC 92 11 1951 SCC 92 12 (2011) 10 SCC 165 13 (2011) 11 SCC 666 Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 21 of 23 Karnataka14)
17. Incontrovertibly, where the prosecution fails to inspire confidence in the manner and/or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused. It is nearly three centuries old cardinal principle of criminal jurisprudence that "it is better that ten guilty persons escape, than that one innocent suffer"15. The doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that " the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent ".
33. Reverting to the facts of the present case in light of the aforesaid parameters laid down by their Lordships of the Supreme Court in the aforesaid judgments including that of Bijender alias Mandar (supra), it is quite vivid that in the present case, the fact of discovery and recovery has not been proved by independent witnesses - Bandhan Kurre (PW-10), who has turned hostile, and it is said to have been proved by Paklu @ Santram (PW-12), who is related witness but not interested witness, however, there are number of discrepancies, even this witness Paklu has gone to the extent of saying that the memorandum statement has been recorded as stated by him. Furthermore, recovered articles khukhri & knife are common objects which are easily available in villages as well as in the market. In this case, the incident is said to have happened on 13-8-2010 and recovery has been made on 21-8-2010, thus, there is 8-9 days delay in making recovery after the date of commission of offence and it would be unacceptable 14 (2014) 14 SCC 431 15 W. Blackstone, Commentaries on the Laws of England, Book IV, c. 27 (1897), p. 358. Ed.: see R. v. John Paul Lepage, 1995 SCC OnLine Can SC 19.
Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 22 of 23 that the accused of the offence of murder would keep the said instrument in his custody for more than eight days. Furthermore, there is no other evidence on record which connects the appellants with the offence in question and moreover, except the alleged recovery of motorcycle, nothing has been brought on record to connect appellant Ajay (A-3) with the offence in question. As such, merely on the basis of recovery being weak piece of evidence and it has not been established beyond doubt, it is unsafe for us to convict A-2 & A-3. Concludingly, we hold that the prosecution has not been able to prove the offence under Section 302 read with Section 120B of the IPC beyond reasonable doubt except the allegation upon A-5 & A-6 to hatch conspiracy of causing murder of his son, there is no clinching evidence of conspiracy having been brought on record. Further, it has not been established that there was meeting of mind between A-1 to A-4 to kill deceased Santosh Tandan and ultimately they have killed Santosh Tandan and moreover, recoveries of knife & khukhri have not been established in accordance with law, as FSL report has not been brought on record and it has not been established that knife & khukhri have been used in the commission of offence. In that view of the matter, we are unable to sustain conviction of A-1 to A-4 for offence under Section 302 read with Section 120B of the IPC.
34. In view of the finding arrived herein holding that recovery of knife / khukhri have not been established beyond reasonable Cr.A.No.872/2012, 1102/2012, 1004/2012, 779/2012 & 863/2012 Page 23 of 23 doubt, we are unable to sustain the conviction of appellants A-1 & A-2 for offence under Sections 25(1B)(b) & 27(1) of the Arms Act.
35. In the result, conviction recorded and sentences awarded against A-1 to A-4 under Section 302 read with Section 120B of the IPC and Sections 25(1B)(b) & 27(1) of the Arms Act against Kishore @ Kishan & Indrapal @ Bhakhlu, are hereby set aside and they are acquitted of the said charges. They are on bail. They need not surrender. However, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.
36. The criminal appeals are allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Soma