Raja Naykar, vs State Of Chattisgarh,

2024 INSC 56 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 902 OF 2023

RAJA NAYKAR …APPELLANT(S)

VERSUS

STATE OF CHHATTISGARH …RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. 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.

Signature Not Verified

2. Digitally signed by Narendra Prasad Shorn of details, the facts leading to the present appeal are Date: 2024.01.24 16:37:30 IST Reason:

as under:

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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.

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

2 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.

2.5 At the conclusion of trial, the Trial Judge found that the

prosecution had succeeded in proving that the Appellant

3 had committed the murder of the deceased. The

prosecution further proved that the accused persons

committed criminal conspiracy to destroy the evidence, and

threw the body of the deceased after burning the same

behind the Baba Balak Nath temple. The prosecution also

proved that accused no. 2 helped in throwing the body of

the deceased and destroying evidence by way of cleaning

the blood stains etc. of the deceased. Thus, the 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) and was awarded a maximum

sentence of life imprisonment; whereas Accused Nos. 2 to 4

were convicted for offences punishable under Sections 201

read with 120B of IPC and were sentenced to undergo

rigorous imprisonment for five years and fine of Rs.1,000/-.

2.6 Being aggrieved thereby, the Appellant and other accused

persons preferred appeals before the High Court through

CRA No. 223 of 2012 and CRA No. 38 of 2012 respectively.

The High Court by the common impugned judgement,

although allowed the appeal filed by the accused nos. 2 to

4; however, it dismissed the appeal filed by the present

4 Appellant and affirmed the order of conviction and sentence

awarded to the him by the Trial Judge.

2.7 Being aggrieved thereby, the present appeal.

3. We have heard Shri Sameer Shrivastava, learned counsel

for the appellant-Raja Naykar and Shri Sumeer Sodhi, learned

counsel for the respondent-State of Chhattisgarh.

4. Shri Sameer Shrivastava submitted that both the Trial

Judge as well as the High Court have grossly erred in convicting

the appellant. It is submitted that there is no evidence at all

which establishes the guilt of the appellant beyond reasonable

doubt. It is submitted that the finding of guilt of the appellant

as recorded by the Trial Judge is based on conjectures and

surmises and, therefore, not sustainable in law. Learned counsel

further submitted that, from the evidence of the father and

brother of the deceased, it would reveal that the dead body of the

deceased has not been identified and the prosecution has failed

to prove that the dead body found in the garbage was that of

Shiva.

5. On the contrary, Shri Sumeer Sodhi submitted that both

the Trial Judge and the High Court, upon correct appreciation of

evidence, have found the accused-appellant guilty of the charges

5 levelled against him. It is submitted that, as per the FSL report,

human blood was present on the dagger which was recovered at

the instance of the present appellant. It is further submitted that

the recoveries made on the basis of the Memorandum under

Section 27 of the Indian Evidence Act, 1872 (hereinafter referred

to as “the Evidence Act”) would establish the guilt of the accused-

appellant beyond reasonable doubt. He, therefore, submits that

no interference would be warranted with the impugned judgment

in the facts and circumstances of the present case.

6. With the assistance of the learned counsel for the parties,

we have scrutinized the evidence on record.

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 Maharashtra1, wherein this Court held

thus:

“152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court 1 (1984) 4 SCC 116=1984 INSC 121 6 is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 :

1953 Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :

“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.”

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

7 It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) 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, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

8. It can thus clearly be seen that it is necessary for the

8 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.

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.

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.

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

10 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

11 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-Emperor2, 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.

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.

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.

2 1946 SCC OnLine 47=AIR 1947 PC 67

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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.

18. Another circumstance relied on by the Trial Judge is with

regard to recovery of blood-stained clothes on a Memorandum of

the appellant. The said clothes were recovered from the house of

the appellant’s sister-in-law. The alleged incident is of 21st

October 2009, whereas the recovery was made on 25th October,

2009. It is difficult to believe that a person committing the crime

would keep the clothes in the house of his sister-in-law for four

days.

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

13 of Rajasthan3, 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.

20. As already discussed hereinabove, merely on the basis of

suspicion, conviction would not be tenable. It is the duty of the

prosecution to prove beyond all reasonable doubt that it is only

the accused and the accused alone who has committed the

crime. We find that the prosecution has utterly failed to do so.

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

3 AIR 2011 SC 2769=2011 INSC 487

14 (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.

22. In the result, the appeal is allowed. The impugned

judgment and order dated 22nd July, 2015, passed by the

Division Bench of the High Court of Chhattisgarh, Bilaspur in

CRA No. 223 of 2012 is quashed and set aside. The appellant is

directed to be released forthwith, if not required in any other

case.

..............................J (B.R. GAVAI)

..............................J (SANDEEP MEHTA)

NEW DELHI;

JANUARY 24, 2024

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