Challenge
This appeal challenges the judgement and order dated 22nd July, 2015, passed by the Division Bench of the High Court of Chhattisgarh, Bilaspur in CRA No. 223 of 2012, thereby dismissing the appeal filed by the Appellant, namely, Raja Naykar (Accused No. 1) and confirming the judgment and order of conviction and sentence awarded to him by the Court of Additional Sessions Judge, Durg (Chhattisgarh) (hereinafter referred to as “Trial Judge”) in Sessions Trial No. 14 of 2010 on 23rd November, 2011.
FIR registered against unknown persons
2.1.On 21st October, 2009, the half-burnt body of Shiva alias Sanwar (hereinafter referred to as ‘deceased’) was found behind Baba Balak Nath temple near Shastri Nagar ground. Based on the information given by one, Pramod Kumar (P.W.3), merg intimation Ex. P-33 was registered against unknown persons.
Case of the prosecution and conclusion of trial court and appellate court
2.2.The prosecution case, in a nutshell, is that Mohan – the husband of Accused No. 2 and brother of the Appellant was killed by the deceased; and as its offshoot, on 21st October, 2009 at about 12.00 a.m., the Appellant committed the murder of the deceased by causing 24 stab wounds on his body. He then wrapped the body in a blanket with the help of other accused persons, took it behind the Baba Balak Nath temple near Shastri Nagar ground where the half burnt body of the deceased was found in the following afternoon. Postmortem examination of the body of the deceased was conducted on 23rd October, 2009 by Dr. Ullhas Gonnade (P.W.11) who observed as many as 24 injuries on the deceased. According to P.W.11, after commission of murder, the body of the deceased was burnt and his death was homicidal in nature. It was further the case of the prosecution that an electricity bill in the name of one, Alakh Verma was found from the body of the deceased, on the basis of which the police proceeded with further investigation. In pursuance of the disclosure statements of the accused persons, seizure was effected and the police concluded that the deceased was murdered by the Appellant and that the body was then taken to the Baba Balak Nath temple with the help of the other accused persons where an attempt was made to burn the body.
2.3.At the conclusion of the investigation, a charge-sheet came to be filed in the Court of Judicial Magistrate First Class, Durg. Since the case was exclusively triable by the Sessions Court, the same came to be committed to the Sessions Judge.
2.4.The accused persons were examined under Section 313 of the Code of Criminal Procedure, 1973 (“Cr.P.C”) wherein they pleaded not guilty and claimed to be tried. The prosecution examined 18 witnesses to bring home the guilt of the accused.
“The Learned trial Judge convicted the Appellant for offences punishable under Sections 302 and 201 read with 120B of the Indian Penal Code, 1860 (“IPC” for short). On the appeal the Hon’ble High court has allowed the other accused appeals and dismissed the appeal preferred by the appellant and confirmed the Life sentence. Hence this appeal”.
6.With the assistance of the learned counsel for the parties, we have scrutinized the evidence on record.
Case rests in circumstantial evidence
7.Undoubtedly, the prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra [(1984) 4 SCC 116=1984 INSC 121], wherein this Court held thus:
“paras. 152, 153, 154…………..”
Guiding principles: ‘Must be proved’ and not ‘May be proved’
8.It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused ‘must be’ and not merely ‘may be’ proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that 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 probabilities the act must have been done by the accused.
Guiding principles: Suspicion cannot take place of proof
9.It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent 9 unless proved guilty beyond a reasonable doubt.
10.In the light of these guiding principles, we will have to examine the present case.
Recovery of articles at the instances of accused and his absence of giving explanation to the same
11.On a perusal of the judgment of the Trial Judge as well of the High Court, it would reveal that the main circumstance on which the High Court and the Trial Judge found the appellant guilty of the crime is the recovery of various articles at his instance. They have further found that the pieces of blanket recovered from the place of incident and the place where the dead body was subsequently taken for being burnt, were found to be identical/similar. The High Court has observed that specific questions were put to the appellant in his examination under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) regarding recovery of various articles at his instance and also regarding the FSL report, but he has failed to give an explanation with regard thereto.
Motive and murder as per the confession of the appellant
12.The motive attributed to the appellant by the prosecution is that the appellant was under an impression that the deceased Shiva had caused the murder of his elder brother Mohan. It is the prosecution case that, on the date of the offence, deceased Shiva was working in a hotel owned by the sister-in-law of the appellant. The appellant gave money to the deceased to buy liquor. They both had consumed liquor. After having dinner, his sister-in-law, her daughter along with the baby went to bed in the middle-room of the house. He slept on the cot. He asked Shiva to sleep on the spread bed on the floor. It is the prosecution case that, at about 10.30 p.m., the appellant gave several blows to Shiva with a dagger. Thereafter, he wrapped the dead body of Shiva in a blanket and a homemade mattress and called his friend Chandan Sao. Thereafter, they broke the lock of the rickshaw parked near Chawni Chowk and took the rickshaw to the house from Chawni Chowk for disposing off the dead body. Thereafter, the appellant along with other accused persons lifted the dead body of the deceased and placed the same on the rickshaw. The rickshaw was then taken to the garbage dumping ground where he threw the dead body. Thereafter, he concealed the dagger in the garbage scattered inside the boundary wall. Following which, he again went to the place where he had thrown the dead body and burnt the clothes wrapped around the dead body and came back to his sister-in law’s house.
13.The aforesaid story is narrated in the Memorandum of the appellant under Section 27 of the Evidence Act. However, as held by the Privy Council in the locus classicus case of Pulukuri Kotayya and others v. King-Emperor [1946 SCC OnLine 47=AIR 1947 PC 67], only such statement which leads to recovery of incriminating material from a place solely and exclusively within the knowledge of the maker thereof would be admissible in evidence.
Dead body was found much prior to the confession
14.Undisputedly, the dead body was found much prior to the recording of the Memorandum of the appellant under Section 27 of the Evidence Act. Therefore, only that part of the statement which leads to recovery of the dagger and the rickshaw would be relevant.
15.The Property Seizure Memo would show that the dagger was seized from a place accessible to one and all. According to the prosecution, the incident took place on 21st October, 2009 and the recovery was made on 25th October, 2009.
FSL report does not show that the blood group of the dagger was that of deceased
16.As per the FSL report, the blood stains found on the dagger were of human blood. However, the FSL report does not show that the blood found on the dagger was of the blood group of the deceased. Apart from that, even the serological report is not available.
Recovery from open place accessible to all
17.Insofar as the recovery of rickshaw is concerned, it is again from an open place accessible to one and all. It is difficult to believe that the owner of the rickshaw would remain silent when his rickshaw was missing for 3-4 days. As such, the said recovery would also not be relevant.
19.It can thus be seen that, the only circumstance that may be of some assistance to the prosecution case is the recovery of dagger at the instance of the present appellant. However, as already stated hereinabove, the said recovery is also from an open place accessible to one and all. In any case, the blood found on the dagger does not match with the blood group of the deceased. In the case of Mustkeem alias Sirajudeen v. State of Rajasthan [Musthakeen454323c1161289581fc80c9772d0afd0c18249c2e84c981b5a1f0db6c6e3530e1706452977], this Court held that sole circumstance of recovery of blood-stained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused. Thus, we find that only on the basis of sole circumstance of recovery of blood-stained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt.
It is only after the prosecution discharges its initial burden beyond all reasonable doubt the false explanation or non-explanation could be taken into consideration
21.Insofar as the finding of the High Court that the appellant has failed to give any explanation in his statement under Section 313 Cr. P.C. is concerned, we find that the High Court has failed to appreciate the basic principle that it is only after the prosecution discharges its duty of proving the case beyond all reasonable doubt that the false explanation or non-explanation of the accused could be taken into consideration. In any case, as held by this Court in the case of Sharad Birdhichand Sarda (supra), in a case based on circumstantial evidence, the non-explanation or false explanation of the accused under Section 313 Cr.P.C. cannot be used as an additional link to complete the chain of circumstances. It can only be used to fortify the conclusion of guilt already arrived at on the basis of other proven circumstances.
Party
RAJA NAYKAR STATE OF CHHATTISGARH – CRIMINAL APPEAL NO. 902 OF 2023 – 2024 INSC 56 – JANUARY 24, 2024.
