JUDGMENT (28m April, 2010) The following iudqment of the Court was delivered bv T.P. Sharma. J: - V . Since the'aforesaid three criminal appeals are arising cut of the same judgment of conviction & order of sentence dated 8—2-2006 passed by the 13‘ Additional Sessions Judge, .Mahasamund, in Sessions Trial No.163/2005, they are being disposed of by this common judgment. . Challenge in these three criminal appeals is to the judgment of conviction & order of sentence ‘dated 8-2-2006 passed by the 15‘ Additigl Sessions Judge, Mahasamund, in Sessions Trial No.163/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Kumari Bai & Digeshwari and concealing the evidence of criminal case, convicted appetlants Purushottam &.Sho'bhlt Ram under SeCtions 302 of the l.P.C. (for death of Kumari Bai), 302 of the l.P.C. (for death of Digeshwari) & 201 read with Section 34 of the l.P.C., and sentenced each of them to undergo imprisonment for life & pay fine of Rs‘.‘l,000/-, in default of payment of fine to further undergo R.l_ for five months; to undergo imprisonment for life & pay tine of Rs.f,OOO/- ,_r*: default of payment of dne to further undergo R.l. for five months; and to undergo R.l: for seven years & pay fine of Rs.500/—, in default of payment of fine to further undergo R.l. for five months, respectively. Learned Additional Sessions Judge has aiso convicted appellant Girish Chand Sahu under Section 201 read with Section 34 of the l.P.C. and sentenced him to undergo R.l. for seven years & pay fine of Rs.’500/—, in default of payment of dne to further undergo Rl for one month. ga ‘3: Conviction is‘impugned on the ground that without any clinching and credible evidence. the trial Court has convicted & sentenced the appellants and thereby committed illegality. 4. The appellants herein were also tried for commission of the offence of culpable homicide amounting to murder of Ram Prasad Sahu — husband of Kumari Bai (since deceased) & grand—daughter of Digeshwari (since deceased) and concealing the evidence of criminal case in Sessions Trial No.164/2005 and were convicted under Sections 302 & 201 of the l‘P.C. and sentenced to imprisonment for life with other sentences. l ‘ 5t Case of the prosecution, in brief, is that in the intervening night of 30-12- 2004 & 1—1-2005 Kumari Bai (since deceased) v wife of Ram Prasad, Digeshwari (since deceased) — grand-daughter of Ram Prasad & Ram Prasad (since deceased) were present in their house at village Kachardih, appellant Purushottam came to their, house and impressed Ram Prasad for digging the property buried under the land the appellants took him With them along With spade & gaiti near the nala and committed his murder by use of hammer & other weapons. They buried the dead body of Ram Prasad in the sand and came to the house of Ram Prasad where Kumari Bai & Digeshwari were present. They assaulted Kumari Bai by hammer and caused her death. After hearing the sound, Digeshwari came out from the house, they also, killed ; Digeshwari and snatched ornaments from the dead body of Kumari Bai and after opening the lock of' room, they opened the'suit case and took Rs.2,800/- & silver ornaments. ' They sold silver ornaments in two jewellery shops of Mahasamund. Again they went to Kasdol to co- accused Girish Chand and they sold some ornaments to Girish Chand and took Rs.1,040l— from him. House of Kumari Bai was closed from / inside. Villagers suspected and tried to see inside the house by hole of ; wxui the door where one person was lying covered with cloih. Finally they intimated to the police, police came and recorded dehati nalsi vide EX.P— 20 and on the basis of dehati nalsi, F.I.R. was registered. Me'rg intimations Exs.P-18 & P-19 of the dead bodies of Kumari Bai & Digeshwari found inside the house, were recorded. After summoning the witnesses, inquest over the dead bodies of Kumari Bai & Digeshwari were prepared vide Exs.P-1 & P-2. Spot map was prepared vide EXP-3. Bloodstained crow bar & one bucket were seized from the spot vide l t ‘ EXP-4. Two litres of water and blood stained bucket Were seized the the field of Ghanshyam near the well vide EXP-21. Spot panchanam was prepared 'vide Ex.P~22, Spade & gaiti were seized from the‘spot where the dead body of Ram Prasad (deceased in S.T.No.164/2005) ~ was found vide Exs.P-23 & P—24. Blood stained & plain soil and crow bar were seized from the spot vide Exs.P-26 & P—27.‘ Blood mixed water and cotton were seized from the spot vide EXP-28. Dead bodies of Kumari Bai & Digeshwari were sent for autopsy vide Exs.P-3OA & P~31A. Dr. R.K. Kuruwanshi (PW~6) conducted autopsy on the dead body ‘of Kumari Bai vide Ex.P‘3O and found following injuries: - (1) One stab wound of 2" x 1" x 3" below the left eye. (2) One stab wound of 1 1/2” x 1/2” x 1“ below the right eye. (3) Lacerated wound of 1" x 1/2” x W over forehead. 1(4) Two lacerated'wounds of 1” x 1A" x 1A” over left side of chin. (5) One lacerated wound of 1" x 1/2" x 1/4“ over left side of forehead. (6) Lacerated wound of 2" x 1/2” x 1/5" over right ear. (7) Confusion of 2" x 2" over abdomen. (8) Abrasion with contusion of 8" x1 V2” over left hand. On internal examination, fracture of forehead, nose and upper jaw were found. Bone below the left and right hands, lower jaw and teeth were also broken. Cause of death of Kumari Bai was shock and death was homicidal in nature. l 5 6. Dr. R.K. Kuruwanshi (PW—6) also conducted autopsy on the deadrbody of Digeshwari vide Ex.P-31 and found following injuries: - (1) One stab wound of 1 1/2" x 1/2" x 1" below left hand. (2) One stab wound of 1 1/2” x 1/2” x 1/2” below right hand. (3) Lacerated wound of 1/2” x 1/2“ over middle of nose. (4) Lacerated wound of 1/2” x 1/2" over right side of chin. (5) Lacerated wound of 3” x _‘/z” on the top of head. (6) Two lacerated wounds of 1 1/2" x 1/2 x 1A" over occipital region of head. (7) Nine small confusions of 1” x 1" each on abdomen & pelvic region. (8) Tooth from (4) its socket detached from lowerjaw. Cause of death of Digeshwari was also shock and death was homicidal in nature. . During the course of investigation, bucket & crowbar found in thehouse of Kumari Bai were identified by the witnesses as the property of Ram Prasad, vide Ex.P-4. Appellant Purushottam was taken into custody, he made discloser statement vide Ex.P—5 on the basis of which TVS Champ moped was seized vide EXP-8‘ clothes were‘ seized vide Ex.P~9 and hammer & sweater were seized vide Ex.P~12. Rs.1,200/— were seized from Gauri Bai vide EXP-13. Silver ornaments & copy were seized from Prabhu Jewellers, Kasdol vide EXP—14. License to sale & purchase gold/silver ornaments was seized from Purushottam Soni vide EXP-16. Appellant Shobhit Ram made discloser statement vide EXP—Glen the basis of which clothes & hammer were seized from him. vide Exs.P-1O & P—11, respectively. Appellant Girish Chand made discloser statement vide Ex.P-7. Patwari prepared spot map vide Ex.P—34. Sealed clothes of the deceased were seized vide EXP-3.5. Copy of register was seized vide EXP-38. Cepy of Prabhu Jewellers Article A-1 was seized. Seized articles were sent for chemical analysis and presence of blood over the property and articles seized was confirmed vide EXP-23. Pair of silver mamuww x ainthi was identified by Ram Sharan Chandrakar & Lakhan Lal vide Ex.P~29. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. 8. After completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Mahasamund, who in turn, committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge, Mahasamund, received the case on transfer for trial. . ln order to prove the guilt of the appellants, the prosecutlori‘eh‘ examined as many as 21 witnesses. The accused were examined under £ Section 313 of the Cr.P.C. in which they denied the circumstances 5 i , appearing against them, pleaded innocence and false implication. The accused have examined defence witness Punit Ram Sahu (DW—t) in their defence. 10.After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants as aforementioned. 11.We have heard learned counsel for the parties, perused the judg impugned and record of the trial Court. 12.Mr. B.D. Badgayan, learned counsel for appellant Shobhit Ram and Mr. Sunil Sahu, learned counsel for appellant Purushottam Sahu vehemently argued that as per the case of the prosecution, three persons namely, Kumari Bai, Digeshwari & Ram Prasad have been murdered and separate trial’was conducted in S.T.No.164/2005 against the appellants herein. After conclusion of trial, the trial Court has convicted ‘& sentenced appellants Shobhit Ram & Purushottam Sahu for commission of=culpable homicide amounting to murder of Kumari Bai & Digeshwari in / S.T.No.163l2005 and in S.T.No.164/2005 for the murder of Ram Prasad, and for concealing the evidence of criminal case in‘ both the sessions triais‘ Virtually this is a case of triple murder and the prosecution is required for strict proof of the case against the appellants. Conviction is based on circumstantial evidence. ln case of conviction based on ciréumstantial evidence, the prosecution ~is under obligation to prove complete chain of circumstances so as to enable the Court to reach to a ‘conclusion that only the appellants have committed the offence and except the appellants none else has committed the offence But in the present case, the prosecution has utterly failed to adduce any evidence against the appellants to connect them with the offence. ln case of circumstantial evidence, motive of the offence plays great role. ln the present case, the prosecution has proved presence of blood on the articles seized at the instance of the appellants, but has not proved that the blood found on the said articles and the blood of the deceased persons are of same group, in absence of such proof mere presence of human blood on the articles is of no use. Learned counsel placed reliance in the matter of Kansa Behera v. State of Orissa1 in which the Apex Court has held that evidence of blood group is only conclusive to connect bloodstains with accused, in absence of such group no reliance could be placed on the circumstance. Learned counsel further placed reliance in the matter of Dawa Tshering Tamang and another v. State of Sikkim2 in which the Sikkim High Court has held that in case of only evidence that witness has seen the deceased lying injured in ginger field which was at a distance of 3/4 miles from his house, no evidence of witnesses that they had seen accused persons and deceased together, chain of events is not complete and conviction of accused persons is not proper. Learned counsel also placed reliance in the matter of Saniya 1AIR 1987 sc 1507 2 2004 Crs.L.J. 2810 Ram v. State of C.G.3 in which this Court has held that in case of 1 circumstantiai evidence body found in an open place, extra judicial confession made in the presence of the police during investigation, and absence of any evidence relating to human blood and of the same blood group as that of the deceased, recovery of articles at the instance of the accused is no use. Learned counsel relied upon the matter of Dilbodh Nagesia v. State of M.P. (now Chhattisgarhf in which this Court has held that only on the evidence of presence of human blood on the shirt of accused, accused cannot be connected with the murder of deceased? 13.Mr. Awadh Tripathi, learned counsel for appellant Girish Chand Sahu, vehemently argued that the prosecution was under obligation to prove the fact against this appellant that he was found in possession of stolen article having knowledge or reason to believe‘ that the same has been stolen. The prosecution was under obligation to-adduce evidence that ‘ L the appellant has intentionally screened the evidence of criminal case in sharing common intention. But in the present case, the prosecution has not adduced. any evidence in support of the case and therefore, conviction & sentences imposed upon appellant Girish Chand Sahu under Section 201 read with Section‘34 of the l.P.C. are not sustainable under the law. ; 14.0n the other hand, Mr. Praveen Das, learned Deputy Govt. Advocate appearing on behalf of the State/respondent, opposed the appeals and a 6? submitted that under allurement appellants Purushottam & Shobhit Ram took Ram Prasad (since deceased) from his house and have killed him near the nala, thereafter, they came back to the house of Kumari Bai and have committed robbery and killed Kumari Bai & Digeshwari and also 3 2004(2) c.G.L.J. 124 4 2004 (1) M.P.H.T. 26 (CG) concealed the evidence of criminal case. The prosecution has proved its case beyond ail reasonable doubts and the trial Court has rightly convicted and sentenced the appellants. 15. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 16in the present case, homicidal death of Kumari Bai & Digeshwari as a result of ante-mortem fatal injuries has not been substantially disputed on behalf of the appellants, othenNise also it is established by the evidence of Dr. R.K. Kuruwanshi (PW—6) and autopsy reports Exs.P-30 & P-31 that the death of both the persons was homicidal in nature. 17.As regards complicity of the appellants in the crime in question, conviction is substantially based on the circumstantial evidence. As held by the Apex Court in the matter of C. Changa Reddy v. State of A.P.5, in case of conviction based on circumstantial evidence, the prosecution is required to adduce evidence and such evidence must satisfy the following tests: - (1) the circumstances from which an inference of guilt is sought to be ‘3‘ drawn, must be cogently and firmly established; (2)those circumstances should of a definite tendency unerringly pointing towards the guilt of the accused; (3)the circumstances taken cumulatively should form a chain sov complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 5 AIR 1996 SC 3390 : (1996) 10 SCC 193 AWf” 10 18.ln the present case, factum of presence of dead bodies of Kumari Bai & DigeShwari, as ‘a result of homicidal death, lying in their house and that the house was closed from inside is also not disputed. As per the evidence of Alakhram Sahu (PW-1), Sudhuram Sahu (PW-3) & Harilal (PW-4), dead bodies of both the deceased persons were found inside the house and they intimated to the police, Sudhuram also came and police party entered in the house of Ram Prasad from back side of the house. After four days, the dead body of Ram Prasad was recovered near Kedar nala. Villagers were regularly searching for the accused persons, but appellant Purushottam, relative of deceased Ram Prasad, was not coming for search and his behaviour was abnormal. The police interrogated Purushottam & Shobhit Ram. 19.R.L. Chauhan (PW~19) — Sub Inspector who has conducted investigation has deposed in his evidence that on 4-2-2005 he interrogated accused Purushottam who made confessional statement vide EXP—5. He has further deposed that he has seized TVS Champ moped from accused Purushottam vide Ex.P-8, shirt stained with blood from accused Purushottam vide Ex.P-9 and Rs.1,200/- from Gauri Bai — wifel of Purushottam vide EXP-13. On 6-2-2005 he has seized melted (lump) silver from Purushottam Soni (PW-20) and purchase copy vide EXP-14 in which it has been mentioned that Girish Chand has sold silver articles. He has also seized one pair of ainthi (silver article) at the instance of appellant Purushottam vide EXP-15, from Vijay Jewellers, Mahasamund along with purchase copy and license bearing signature of appellant Purushottam, copy of entries is EXP—38C. This witness has also deposed relating to confessional statement of appellant Shobhit Ram that Shobhit Ram has made discloser statement vide EXP—6 and at: the instance of Shobhit Ram, he has seized clothes stained with blood vide %13 11 Ex.P—10. He has also seized one hammer stained With blood & Rs.300/- from Shobhit Ram vide Ex.P—11 and one hammer & sweater from the house of Purushottam vide EXP-12. This witness has further deposed that he has recorded the discloser statement of appellant Girish Chand vide Ex.P-7 and has tried to search the artificial waist belt (kardhan), but he did not find the same. 20.Ex.P-5, the confessional statement of Purushottam and Ex.P-6, the ~‘u confessional statement of Shobhit Ram are relating to confession of crime and discloser statement. Confessional statement relating to commission of crime is not admissible in evidence in terms of Section 25 of the Evidence Act. Therefore, confessional part of the statements of Exs.P-5 & P-6 is rejected. As per Exs.P-5 & P-6, recoveries have been made from different persons on 4-2-2005 and nothing has been recovered on the basis of confessional statement of Girish Chand Ex.P— 7, dated 6~2-2005. 21.Alakhram Sahu (PW-1) has substantially corroborated the evidence of W R.L. Chauhan (PW-19) relating to discloser statements of the acoused persons and recoveries of articles at the instance of the accused persons. Sudhuram Sahu (PW-3) has also corroborated the evidence of R.L. Chauhan (PW-19) relating to discloser statements of the accused M persons and recoveries at their instance. 22.Ramsharan (PW-5) has deposed in his evidence that the police gave silver article for identification to the Tahsiidar‘ and the Tahsildar conducted identification of article in his Tahsil Office. The person has identified his silver article ainthi vide EXP-29, but in his cross- examination Ramsharan (PW-5) has specifically admitted that at the time of identification police were present. 12 23‘Devendra Kesharwani (PW-21) who has conducted identification has deposed in his evidence that he has conducted identification of the ainthi after mixing the same with other ainthis of same descripticn and Chitruram has identihed the ainthi vide EXP-29. In his detaiied cross— examinatidn he has denied the presence of police officer at the time of identification. 24.Chitruram (PW-12) has deposed in his evidence that he has identified the ainth'i vide EXP—29 in the Tahsil Office. He has denied the suggestion that at the time of identification, police were present inside the room. He has specifically stated that at the time of identification the Tahsildar has ousted the police ofdcer and he (this witness) has identified the ainthi belonging to his mother Kumari Bai (since deceased) amongst the other ainthis of same design. 25.Evidence of R.L. Chauhan (PW—19) corroborated by the evidence of Alakhram Sahu (PW-1) & Sudhuram Sahu (PW—3) is sufficient to establish the fact that appellants Shobhit Ram & Purushotlam have .made discloser statements vide Exs.P—5 & P—6 and on the basis of their disctoser statements, one pair of ainthi along with other articles Here seized from different persons, especially one pair of ainthi was seized from Vijay Kumar Chandrakar along with register, which reveals the signature of accused Purushottam. The ainthi was identified by Chitruram (PW-12) as the ainthi of his mother Kumari Bai'(since deceased). (h 26.ln the present case, the prosecution has substantially collected evidence against appellants Shobhit Ram & Purushottam that on the basis of their discloser statements one pair of ainthi was recovered from Vijay Kumar Chandrakar (PW—17) vide EXP-15. As per the evidence of Viiay Kumar ^t^H-y^ 13, ^ l3>/ Chandrakar (PW-17), appellant Purushottam has sold the article to him and has received Rs.1,250/- and he has signed on the document Ex.P- 38. Evidence adduced on behalf of the prosecution is sufficient to establish that appellant Purushottam took the police to the shop of Vijay Kumar Chandrakar at Mahasamund and the ainthi was seized at the instance of Purushottam on the basis of the statements of Purushottam & Shobhit Ram. Exceptthis evidence.the prosecution has not proved any other fact against the appellants. Bjscloser statement of appellant Girish Chandis of no use in absence of any recovery and other articles have been recovered before recording his discloser statement. As held by this Court in the matter of Saniya (supra), in absence of proof of any definite blood group, seizure of other articles is of no use and is not I'ncriminating circunasfance againstthe appellants. 27.Appellants Purushottam & Shobhit Ram have not offered any explanation that how they were in possession of the ainthi belonging to Kumari Bai (since deceased) which they have sold to Vijay Kumar Chandrakar. Virtually, Ex.P-5 discloser statement of Purushottam reveals that it was recorded on 4-2-2005 at 2.15 p.m. and discloser statemerit of Shobhit Ram Ex.P-6 was recorded on the same day at 2.25 p.m. It further reveals that at the time of recording the discloser statement of Shobhit Ram, police was having information relating to discloser of the fact of ainthi, even otherwise, Ex.P-38 register relating to selling of a/n i reveals the signature of Purushottam and not of Shobhit Ram. The prosecution is required to adduce definite evidence conclusive in nature to connect the accused with the crime in question. In the present case, except recovery of ainthi belonging to deceased Kum.ari Bai, at the instance of Purushottam, the prosecution has not adduced any other substantive evidence against the appellants. •^ '-( 28.Appellant Purushottam has not offered any explanation relating to presence of ainthi, that too sening of such ainthi to the jeweHers on 8-1~ 2005 i.e. within six days of the incident. Purushottam has also not offered any explanation that he has purchased the ainthi from any other person or somebody has given the ainthi to him or that he found the same at any place. As per the evidence of the prosecution, Kumari Bai was wearing the ainthi which was found in the possession of appellant Purushottam, before her death. ln these circumstances, Purush‘ ottam was under obligation to offer satisfactory explanation relating to recent possession of ainthi, but he has not offered any explanation which is the strongest circumstance against appellant Purushottam and is sufficient for drawing inference that appellant Purushottam was the person who has revealed the ainth/ from the body of deceased Kumari Bai at the time of incident, and this circumstance is also sufficient for drawing inference that Purushottam is the person who has committed the murder of Kumari Bai. Dead body of Digeshwari was also found murdered in the same premises within close distance where the dead body of Kumari Bai was lying. This is also a strong circumstance against appellant Purustwttam that in the course of commission of murder of Kumari Bai, Purushottam has also committed the murder of ten years aged girl Digeshwari in the course of removing valuable articles from the body of Kumari Bai. Subsequent conduct of Purushottam as per the evidence ofAlakhram Sahu (PW-1) is also suspicious and is relevant under Section 8 of the Evidence Act. w 29.ln the present case, the circumstantial evidence adduced on behalf of the prosecution is sufficient for drawing inference that: appellant Purushottam has committed the murder of Kumari Bai & Digeshwari and has removed the silver articles from the body of Kumari Bai. However, the evidence adduced on behalf of the prosecution is not sufficient for drawing inference that appeiiant Purushottam has concealed the evidence of criminal case or that other accused Shobhit Ram & Girish Chand have committed any offence. Suspicion howsoever grave cannot take the piace of legal proof and the prosecution is required to prove its case by adducing substantive evidence sufficient to connect the accused/appellants with