Brijesh @ Bijju Markam vs State Of Chhattisgarh on 28 July, 2026

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    Chattisgarh High Court

    Brijesh @ Bijju Markam vs State Of Chhattisgarh on 28 July, 2026

    Author: Ramesh Sinha

    Bench: Ramesh Sinha

              Digitally signed
              by ALOK
    ALOK   SHARMA
    SHARMA Date:
           2026.08.05
              12:07:09 +0530
    
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                                 CGHC010353562025                                            2026:CGHC:32241-DB
                                                                                                            NAFR
    
                                              HIGH COURT OF CHHATTISGARH AT BILASPUR
    
    
                                                              CRA No. 1702 of 2025
    
                                 Brijesh @ Bijju Markam S/o Nilkamal Markam Aged About 21 Years R/o
                                 Medhpar Village, Thana - Hirri, District - Bilaspur Chhattisgarh
                                                                                                 ... Appellant(s)
    
                                                                         versus
    
                                 State of Chhattisgarh Through Police Station Kota District - Bilaspur
                                 Chhattisgarh
                                                                                    ... Respondent(s)

    (Cause-title taken from Case Information System)

    For Appellant (s) : Mr. Rajeev Kumar Dubey, Advocate along with
    Ms. Maya Chaturvijani, Advocate

    SPONSORED

    For State : Ms. Anusha Naik, Dy. Govt. Advocate

    Hon’ble Shri Ramesh Sinha, Chief Justice
    Hon’ble Shri Ravindra Kumar Agrawal, Judge
    Judgment on Board

    Per Ramesh Sinha, Chief Justice.

    28/07/2026

    1. Though the matter is listed for hearing on I.A. No. 01 of 2025, which is

    an application for suspension of sentence and grant of bail to the

    appellant, considering the fact that the appellant is in jail since

    22.03.2021, therefore, with the consent of learned counsel for the

    parties, the appeal is heard finally. Accordingly, I.A. No. 01 of 2025 is

    disposed of.

    2

    2. The present appeal under Section 415(2) of the Bharatiya Nagarik

    Suraksha Sanhita, 2023 has been filed by the appellant against the

    impugned judgment of conviction and sentence dated 17.04.2025

    passed by the learned Second Additional Sessions Judge, Bilaspur,

    District Bilaspur in Sessions Case No. 247/2021, whereby the

    appellant has been convicted and sentenced in the following manner:-

    Conviction Sentence
    Under Section 302 of Indian Imprisonment for life with fine of Rs.
    Penal Code. 500/- and in lieu additional R.I. for 6
    months.

    Under Section 364 of Indian R.I. for 10 years with fine of Rs. 300
    Penal Code. and in lieu additional R.I. for 03
    months.

    Under Section 201 of Indian R.I. for 7 years with fine of Rs. 200/-

         Penal Code.                 and in lieu, additional R.I. for 1
                                     month.
                         All the sentences are run concurrently.
    
    

    3. The prosecution case, in brief, is that on 19.03.2021, PW-1 Dhajaram,

    father of the deceased, lodged a missing report to the police that his

    daughter is missing since 12.03.2021, and on the next day his son

    received a message on his mobile phone that they should not search

    for her as she had proceeded far away from them. On 19.03.2021,

    another message was received by his son on his mobile phone about a

    threat to his daughter, and then he lodged a missing report, which has

    been recorded in Rojnamcha at police station Kota, which is Ex.P/27.

    During inquiry of missing person from the statement of the witnesses

    when it revealed that the deceased was having love affair with the

    accused Brijesh alias Bijju and he engaged with another girl for

    marriage and to eliminate the deceased, he called her on 12.03.2021

    at about 01:00 AM, in her mobile phone took her to field at village

    Merpal and committed her murder by strangulation and burned the
    3

    dead body by paddy straw. The accused was taken into custody, and

    his memorandum statement Ex.P/3 was recorded in which he

    disclosed the entire incident to the police in the presence of the

    witnesses. Dehati Merg intimation Ex.P/28 and Dhati Nalishi Ex.P/29

    were recorded by the police on 21.03.2021. On the basis of the

    memorandum statement of the accused, the burned pieces of human

    bones have been recovered, and recovery panchnama Ex.P/4 was

    prepared; another panchnama regarding the disclosure made by the

    accused and pointing to the place of incident has been prepared, which

    is Ex.P/5. Spot map Ex.P/1 and Ex.P/2 were prepared by the police,

    and Ex.P/7 was prepared by the Patwari. Blood-stained and plain soil

    have been seized from the spot vide seizure memo Ex.P/19. The

    clothes seized along with the burned pieces of human bones were

    identified by the mother of the deceased that it belongs to the

    deceased, and identification panchnama Ex.P/10 was prepared in the

    presence of the witnesses. Inquest Ex.P/12, of the remains of bones

    have been prepared in the presence of the witnesses; the remains of

    bones were sent for its forensic examination to the forensic medicine

    department CIMS, Bilaspur along with the memo Ex.P/23 from where

    report Ex.P/25 was received and according to the forensic report, the

    doctor has opined that:

    • 12. Cause of death. 1. Dead body burnt skeletal remain
    showing effect of high degree burn, charring but antemortem
    or postmortem can not be comment due to effect of burn. 2.
    Thyroid and hyoid and cervical vertebra not available to
    comment on throttling. 3. Skull show square opening with
    regular margin 50% area rest irregular over right side of
    occipital region. no definite opinion that it is injury or not.

    4

    • 13. Manner of death appears to be unnatural death
    according to location of burnt bone piece received to the
    police for investigation.

    • 14. Preservation; Nil.

    • 15. No definite opinion can be given regarding cause, mode,
    manner and duration of death at this stage of investigation.
    evidence of burn, opening in occipital bone of skull present.
    age comes under range with the history, female
    characteristic features are seen. Dead body was identified
    before expert opinion.

    4. No definite opinion can be given regarding cause, mode, manner, and

    duration of death at this stage of investigation. Evidence of burn,

    opening in occipital bone of skull present; age comes within the range

    with the history; female characteristic features are seen. The dead

    body was identified before expert opinion. From the accused, his

    motorcycle and iron pickaxe have been seized vide seizure memo

    Ex.P/14, his mobile phone and one confessional letter, and another

    mobile phone have been seized vide seizure memo Ex.P/15. The

    handwriting script of the accused has also been seized vide seizure

    memo Ex.P/16. The notebook of the accused has also been seized

    vide seizure memo Ex.P/17, and certificate Ex.P/18 was also seized by

    the police from the maternal uncle of the accused in confirmation of the

    fact that said notebook belongs to the accused. A panchnama with

    respect to the operation of the mobile of the accused has also been

    prepared in the presence of the witnesses, in which the IMEI number of

    the mobile phone has been extracted, which is Ex.P/13. The

    screenshot of the WhatsApp message from the mobile phone has also

    been taken out, which is Ex.P/30. Numbered FIR Ex.P/32 was

    registered at Police Station Kota for the offence under Section 364, 302

    and 201 of IPC. A memo was also sent to the service provider
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    company/cyber cell for CDR of the seized mobile numbers. The

    confessional note seized from the accused which was kept in mobile

    phone, and specimen handwriting were sent for its examination

    through the State Examiner of questioned documents, PHQ, Raipur

    from where report Ex.P/38 was received and as per the handwriting

    experts report the confessional note seized from the accused and his

    specimen handwriting is found matched and opined that it was the

    common authorship between both the sets.

    5. Statements of the witnesses under Section 161 of Cr.P.C. have been

    recorded, and after completion of the usual investigation, charge-sheet

    was filed against the accused before the learned Judicial Magistrate

    First Class, Kota, District Bilaspur, for the offences under Sections 364,

    302 and 201 of IPC.

    6. The case was committed to the Court of the learned Sessions Judge,

    Bilaspur, from where the same has been transferred for its trial to the

    learned trial Court. The learned trial Court has framed charges against

    the accused for the offences under Sections 302, 364 and 201 of the

    IPC. The accused denied the charge and claimed trial.

    7. In order to prove the charge against the accused, the prosecution has

    examined as many as 17 witnesses. Statement of the accused under

    Section 313 of Cr.P.C. has been recorded, in which he denied the

    circumstances appearing against him, pleaded innocence and have

    submitted that he has been falsely implicated in the offence.
    6

    8. After appreciation of oral as well as documentary evidence led by the

    prosecution, the learned trial Court convicted and sentenced the

    appellant/accused as has been mentioned in the earlier part of this

    judgment. Hence, this appeal.

    9. Learned counsel appearing for the appellant submitted that the

    prosecution has failed to prove its case beyond reasonable doubt.

    There are material omissions and contradictions in the evidence of the

    prosecution witnesses, which cannot be made the basis to convict him

    for the offence in question. There is no eyewitness to the incident, and

    the chain of circumstances is also not completed and there are various

    missing links. The prosecution could not establish that the remains of

    bones belong to the deceased. No DNA test has been conducted by

    the prosecution to prove that the remains of bones seized from the

    spot was that of the deceased’s bones, for which the accused was

    discharged. The identification is doubtful, and therefore the appellant

    cannot be held liable for the commission of murder of the deceased.

    There is no definite opinion that the deceased died due to homicidal

    death, and until it has been proved to the prosecution that the death of

    the deceased was homicidal, no liability can be fastened upon the

    accused for her murder. The seizure of the confessional note from the

    mobile phone allegedly seized from the accused itself creates a doubt

    that no one can preserve the evidence against himself and further that

    the seizure of the mobile phone as well as the confessional note have

    not been proved by the prosecution in accordance with law. Before

    arresting the accused, his memorandum statement was recorded on

    21.03.2021, whereas the accused was arrested on 22.03.2021, which
    7

    also proves that the accused is implicated in the offence after thought.

    He would further submit that the deceased was allegedly missing from

    12.03.2021. However, her missing report has been lodged only on

    19.03.2021. There is no connecting link that it is the accused and none

    other than the accused has committed the murder of the deceased.

    There is no evidence that the accused and the deceased have last

    seen together, and thus the circumstances relied upon by the

    prosecution are very weak and inconsistent, which are not sufficient.

    There is also no sufficient evidence regarding the motive to commit

    murder of the deceased. In such insufficient evidence, the appellant

    cannot be convicted for the alleged offence of kidnapping and murder

    of the deceased, and he is entitled to acquittal.

    10. Per Contra, learned counsel appearing for the State opposed the

    submissions made by learned counsel for the appellant and submitted

    that the prosecution has proved its case beyond reasonable doubt.

    Barring minor omissions or contradictions, the evidence of the

    prosecution witnesses is reliable and sufficient to hold the appellant

    guilty of the alleged offences. There is sufficient evidence regarding

    motive to commit the murder of the deceased, as the deceased was

    having a love affair with the appellant and the appellant engaged with

    someone else, and in order to eliminate her, he committed her murder.

    The motive has been proved by PW-1 Dhajaram, father of the

    deceased, PW-2 Rajmati, mother of the deceased, and PW-3 Amit

    Kumar, brother of the deceased. The burned pieces of bones have

    been seized on the instance of the appellant, and the clothes seized

    along with the bones have been identified by the family members of the
    8

    deceased that the clothes belong to the deceased. The remains of

    bones were identified that it has female characteristic features. The

    confessional note seized from the appellant was also proved by the

    prosecution that it was in the handwriting of the appellant, which has

    been proved by the report of State Examiner of questioned document

    and further that from the screen shot of whatsApp messages it has

    been duly proved by the prosecution that the deceased was with the

    appellant at the relvant point of time and the appellant has not

    explained in his 313 Cr.P.C. Thus, all the circumstances are closely

    connected with other and form a complete of chain of circumstances

    which pointing towards guilt of the appellant. The learned trial Court

    has rightly appreciated the evidence and held the appellant has

    kidnapped the deceased, committed her murder and concealed the

    evidence of the offence, which does not suffer from any perversity or

    illegality and the appeal is liable to be dismissed.

    11. We have heard learned counsel for the parties and perused the record

    of the trial Court.

    12. In the present case, there is no eye-witness to the incident, and the

    case of the prosecution is based on circumstantial evidence.

    13. The Supreme Court in case of Madhu Vs. State of Kerala, 2012 (2)

    SCC 399 has held in paragraph 5 as under:

    “5. The care and caution with which circumstantial
    evidence has to be evaluated stands recognized by judicial
    precedent. Only circumstantial evidence of a very high
    order can satisfy the test of proof in a criminal prosecution.
    In a case resting on circumstantial evidence, the
    9

    prosecution must establish a complete unbroken chain of
    events leading to the determination that the inference
    being drawn from the evidence is the only inescapable
    conclusion. In the absence of convincing circumstantial
    evidence, an accused would be entitled to the benefit of
    doubt.”

    14. In the matter of Digambar Vaishnav and Another Vs. State of

    Chhattisgarh, 2019 (4) SCC 522, the Hon’ble supreme Court has held

    :-

    “14.One of the fundamental principles of criminal
    jurisprudence is undeniably that the burden of proof
    squarely rests on the prosecution and that the general
    burden never shifts. There can be no conviction on the
    basis of surmises and conjectures or suspicion howsoever
    grave it may be. Strong suspicion, strong coincidences
    and grave doubt cannot take the place of legal proof. The
    onus of the prosecution cannot be discharged by referring
    to very strong suspicion and existence of highly suspicious
    factors to inculpate the accused nor falsity of defence
    could take the place of proof which the prosecution has to
    establish in order to succeed, though a false plea by the
    defence at best, be considered as an additional
    circumstance, if other circumstances unfailingly point to
    the guilt.

    15. This Court in Jaharlal Das v. State of Orissa, (1991) 3
    SCC 27, has held that even if the offence is a shocking
    one, the gravity of offence cannot by itself overweigh as far
    as legal proof is concerned. In cases depending highly
    upon the circumstantial evidence, there is always a danger
    that the conjecture or suspicion may take the place of legal
    proof. The court has to be watchful and ensure that the
    conjecture and suspicion do not take the place of legal
    proof. The court must satisfy itself that various
    circumstances in the chain of evidence should be
    established clearly and that the completed chain must be
    such as to rule out a reasonable likelihood of the
    innocence of the accused.

    16. In order to sustain the conviction on the basis of
    circumstantial evidence, the following three conditions
    must be satisfied:

    i.) the circumstances from which an inference of guilt
    is sought to be drawn, must be cogently and firmly
    established;

    10

    ii.) those circumstances should be of a definite
    tendency unerringly pointing towards the guilt of the
    accused; and
    iii.) the circumstances, taken cumulatively, should
    form a chain so 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 it should also be incapable of explanation
    on any other hypothesis than that of the guilt of the
    accused.

    17. In Varkey Joseph v. State of Kerala, 1993 Suppl (3)
    SCC 745, this Court has held that suspicion is not the
    substitute for proof. There is a long distance between ‘may
    be true’ and ‘must be true’ and the prosecution has to
    travel all the way to prove its case beyond reasonable
    doubt.

    18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406,
    this Court, while examining the distinction between ‘proof
    beyond reasonable doubt’ and ‘suspicion’ has held as
    under:

    “13. Suspicion, however grave it may be, cannot
    take the place of proof, and there is a large differ-

    ence between something that “may be” proved, and
    something that “will be proved”. In a criminal trial,
    suspicion no matter how strong, cannot and must
    not be permitted to take place of proof. This is for
    the reason that the mental distance between “may
    be” and “must be” is quite large, and divides vague
    conjectures from sure conclusions. In a criminal
    case, the court has a duty to ensure that mere
    conjectures or suspicion do not take the place of
    legal proof. The large distance between “may be”

    true and “must be” true, must be covered by way of
    clear, cogent and unimpeachable evidence pro-
    duced by the prosecution, before an accused is
    condemned as a convict, and the basic and golden
    rule must be applied. In such cases, while keeping
    in mind the distance between “may be” true and
    “must be” true, the court must maintain the vital
    distance between mere conjectures and sure con-
    clusions to be arrived at, on the touchstone of dis-
    passionate judicial scrutiny, based upon a com-
    plete and comprehensive appreciation of all fea-
    tures of the case, as well as the quality and credi-
    bility of the evidence brought on record. The court
    11

    must ensure, that miscarriage of justice is avoided,
    and if the facts and circumstances of a case so de-
    mand, then the benefit of doubt must be given to the
    accused, keeping in mind that a reasonable doubt is
    not an imaginary, trivial or a merely prob- able
    doubt, but a fair doubt that is based upon reason
    and common sense”.

    15. In the matter of Nagendra Sah Vs. State of Bihar, 2021 (10) SCC 725

    in paragraphs 17 and 18 replying upon the golden principles

    enumerated in case Sharad Birdhichand Sarda Vs. State of

    Maharashtra, 1984 (4) SCC 116, the Supreme Court has held as

    under:

    “17. As the entire case is based on circumstantial evidence, we
    may make a useful reference to a leading decision of this Court
    on the subject. In the case of Sharad Birdhichand Sarda v. State
    of Maharashtra2
    , in paragraph 153, this Court has laid down five
    golden principles (Panchsheel) which govern a case based only
    on circumstantial evidence. Paragraph 153 reads thus : –

    “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.

    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 & Anr. v. State of Maharashtra
    where
    the following observations were made:

    19…..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,
    12

    (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.” (emphasis added).

    18. Paragraphs 158 to 160 of the said decision are also relevant
    which read thus :

    “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
    , 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:

    9…….But in a case like this where the various links
    as started 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.

    160. 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.
    On the facts and circumstances of the present case, this
    13

    does not appear to be such a case. This aspect of the
    matter was examined in Shankarlal case where this Court
    observed thus:

    30……..Besides, falsity of defence cannot take the
    place of proof of facts which the prosecution has to
    establish in order to succeed. A false plea can at
    best be considered as an additional circumstance, if
    other circumstances point unfailingly to the guilt of
    the accused.” (emphasis added)”

    16. In the matter of para Surendra Kumar and Another Vs. State of

    Uttar Pradesh, 2021 (20) SCC 430, the Hon’ble supreme Court has

    held in 11 and 12 as under:-

    “11. As the case against the appellants is entirely based on
    circumstantial evidence, it is necessary to determine whether the
    available evidence lead only to the conclusion of guilt and
    exclude all contrary hypothesis. The enunciation on the law of
    circumstantial evidence stood the test of time since Hanumant
    Vs. State of Madhya Pradesh1
    where Mahajan J., has written as
    under:-

    “10…………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 nature, character and essential proof required in criminal
    cases was discussed in detail by Fazal Ali J in Sharad
    Birdhichand Sarda vs. State of Maharashtra2
    and the proposition
    of law culled out on circumstantial evidence was approved in
    many subsequent judgments and was recently reiterated by
    Krishna Murari J., writing the opinion for a three Judges Bench in
    Shailendra 1 AIR 1952 SC 343 2 (1984) 4 SCC 116 Rajdev
    14

    Pasvan & Ors. Vs. State of Gujarat & Ors. 3 where it was
    succinctly laid down as under:-

    “17. It is well settled by now that in a case based on
    circumstantial evidence the courts ought to have a
    conscientious approach and conviction ought to be
    recorded only in case all the links of the chain are
    complete pointing to the guilt of the accused. Each link
    unless connected together to form a chain may suggest
    suspicion but the same in itself cannot take place of proof
    and will not be sufficient to convict the accused.”

    17. There is no eyewitness in the present case. The case of the

    prosecution rests on the circumstantial evidence. The Supreme Court

    in case of Ravindra Singh Vs. State of Punjab, 2022 (7) SCC 581

    has held in para 10 as under:-

    10. The conviction of A2 is based only upon circumstantial
    evidence. Hence, in order to sustain a conviction, it is imperative
    that the chain of circumstances is complete, cogent and
    coherent. This court has consistently held in a long line of cases
    [See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063);

    Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316);
    Earabhadrappa @ Krishnappa v. State of Karnataka (AIR 1983
    SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224);
    Balwinder Singh @ Dalbir Singh v. State of Punjab (AIR 1987 SC

    350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC
    1890)] that where a case rests squarely on circumstantial
    evidence, the inference of guilt can be justified only when all the
    incriminating facts and circumstances are found to be
    incompatible with the innocence of the accused. The
    circumstances from which an inference as to the guilt of the
    accused is drawn have to be proved beyond reasonable doubt
    and have to be shown to be closely connected with the principal
    fact sought to be inferred from those circumstances.
    10.1.
    In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it
    was laid down that where the case depends upon the conclusion
    drawn from circumstances, the cumulative effect of the
    circumstances must be such as to negate the innocence of the
    accused and bring the offence home beyond any reasonable
    doubt.

    10.2. We may also make a reference to a decision of this Court
    in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC
    193, wherein it has been observed that:

    15

    “21. In a case based on circumstantial evidence, the
    settled law is that the circumstances from which the
    conclusion of guilt is drawn should be fully proved and
    such circumstances must be conclusive in nature.
    Moreover, all the circumstances should be complete and
    there should be no gap left in the chain of evidence.
    Further the proved circumstances must be consistent only
    with the hypothesis of the guilt of the accused and totally
    inconsistent with his innocence….”.

    18. In view of the law laid down by the Hon’ble Supreme Court with respect

    to the consideration of evidence where the case of the prosecution is

    based on circumstantial evidence, we examine the evidence produced

    by the prosecution against the appellant.

    19. The first circumstance arises for consideration regarding the

    identification of the dead body as to whether the remains of bone

    recovered from the spot belong to the deceased of the present case,

    and that has been proved by the prosecution by leading cogent

    evidence. The remains of bones belonging to the deceased in the

    present case is said to have been proved by the prosecution on the

    basis of the clothes seized from the spot, and that cloth were identified

    by PW-1, PW-2 and PW-3, who are the family members of the

    deceased and stated that the clothes seized from the spot belonged to

    the deceased. The further piece of evidence produced by the

    prosecution is that the remains of bones had female characteristics as

    per the forensic report Ex.P/25, submitted by Dr. Ulhas Gonade, PW-

    13. It is important here to note that there is no DNA report produced by

    the prosecution to prove scientifically that the remains of bones belong

    to the deceased who was the daughter of PW-1 and PW-2.
    16

    20. PW-1, the father of the deceased, deposed that on the night of

    12.03.2021 his daughter left the house without informing anyone and

    could not be traced despite a search by the family members. His son

    Amit subsequently received messages from her mobile phone stating

    that she had gone far away and later that she was being threatened

    and taken towards a forest, following which a missing report was

    lodged on 19.03.2021. PW-1 further stated that during police

    interrogation, the accused allegedly confessed that he had called

    Bharati through messages, taken her on his motorcycle to a field near

    village Medpar Dhanha, strangulated her to death, burnt her body with

    straw, and thereafter sent false messages from her mobile phone to

    mislead the family. He also stated that the accused informed the place

    where he burned the dead body of the deceased. In his evidence,

    nothing is there with respect to identification of remains of bones or any

    clothes. In cross-examination, he admitted that he had never

    personally seen his daughter in the company of the accused, that the

    missing report was lodged seven days after she went missing, and that

    the mobile number from which the messages were sent was registered

    in his name but was being used by his daughter. He denied making

    certain statements attributed to him in his police statement (Exhibit D-

    1).

    21. PW-2, Rajmati, the mother of the deceased, deposed that her daughter

    used to reside with her maternal uncle in village Pipperkhuti for her

    studies. She stated that on an earlier occasion, while returning from a

    Gauri-Gaura festival, the accused stopped them on the way, expressed

    his love for her daughter/deceased, insisted on speaking to her alone,
    17

    and claimed that she belonged to him and should not be sent

    anywhere. She further stated that on the night following Mahashivratri

    in March 2021, the deceased missing from the house while the family

    was asleep. Despite searching at various places, she could not be

    traced. Her daughter had left wearing a black T-shirt, red lower,

    carrying a reddish-brown towel (gamchha) and a mobile phone. She

    stated that her son Amit received messages from mobile phone of her

    daughter saying that she had gone far away and later that several boys

    had taken her to the forest near Chirmiri and intended to kill her. She

    also identified her clothes during the identification proceedings

    conducted by the Tahsildar (Exhibit P-10). In cross-examination, she

    denied that her daughter was in love with the accused and that the

    accused had been falsely implicated due to caste differences. She

    admitted that she had not personally seen her daughter sending the

    messages, as she came to know about them through her son Amit, and

    further stated that although similar towels were easily available in the

    market, the towel recovered near the body had been purchased by her

    and belonged to her daughter. She denied that the police had supplied

    the towel or that she was falsely deposing against the accused.

    22. PW-3, Amit Kumar Vishvakarma, the brother of the deceased, identified

    the accused and deposed that the accused, who resided with his

    maternal uncle in village Pipperkhuti, had earlier professed his love for

    the deceased during the Gauri-Gaura festival in 2020, claimed a right

    over her, and threatened the family when they refused the relationship

    on account of caste differences. He stated that the deceased went

    missing on 12.03.2021 and that messages were received from her
    18

    mobile phone stating that she had gone near Pendra and later that she

    had been taken to the Chirmiri forest by several boys who intended to

    kill her. He informed the family, and a missing report was lodged on

    19.03.2021. PW-3 further stated that during police interrogation, the

    accused disclosed that he had taken the deceased on his motorcycle

    to Medpar, strangulated her after digging a pit, burnt her body with

    straw to destroy evidence, and thereafter sent false messages from her

    mobile phone. Pursuant to the disclosure, the accused led the police

    and the witnesses to the place of occurrence, where remains of bones,

    a red gamchha belonging to the deceased, and her mobile phone were

    recovered, and he proved the memorandum, recovery panchnamas,

    spot map, arrest memo, and other seizure documents (Exhibits P-2 to

    P-11). In cross-examination, he admitted that he had not personally

    seen the accused taking the deceased away or sending the messages,

    that the missing report was not lodged on the date of her missing, and

    that he could not say who possessed deceased’s mobile phone when

    the messages were sent. He denied that the accused had been falsely

    implicated due to caste differences, though he admitted that the

    deceased had expressed her desire to marry the accused because of

    their love relationship.

    23. PW-4 Nepal Singh, a resident of the same village, deposed that after

    deceased went missing on 12.03.2021, he accompanied her family to

    Police Station Kota on 19.03.2021 to lodge the missing report. On

    21.03.2021, he witnessed the police interrogation of the accused,

    during which the accused allegedly confessed that he had lured the

    deceased to Medpar on his motorcycle, strangulated her to death
    19

    under a Parsa tree in the field of Sevakdas, dug a pit, burnt the body

    with straw to destroy evidence, and concealed her mobile phone at his

    maternal uncle’s house, besides disclosing the locations of the red

    gamchha, motorcycle and spade. Pursuant to the disclosure, the police

    recovered the remains of bones, the gamchha, the deceased’s mobile

    phone, the motorcycle and the spade, and stated about the

    memorandum statement, recovery and seizure panchnamas, spot

    map, body identification proceedings, mobile inspection panchnama,

    seizure memo and other related documents (Exhibits P-3 to P-14). In

    cross-examination, he admitted that the place where the remains of

    bones were found was an open field accessible to anyone, that he did

    not know the ownership or cultivation details of the field, the IMEI

    number or model of the mobile phone, or the registration details of the

    motorcycle, and that he had signed several documents on the same

    day at the instance of the police.

    24. PW-5, Tikaram Meshram, who knew both the accused and the

    deceased, deposed that he was informed by father of the deceased

    that messages had been received on Amit’s mobile phone indicating

    that his daughter had been kidnapped. He accompanied the family to

    Police Station Kota to lodge the report and later went to Medpar, where

    he saw the burnt skull and remains of bones of the deceased and

    signed the recovery panchnama. He further stated that during police

    interrogation, the accused allegedly confessed that he had

    strangulated deceased in a field at Medpar and burnt her body, and

    that the police recovered a mobile phone from the house of the

    accused’s maternal uncle along with a handwritten note. He identified
    20

    his signatures on the spot map, memorandum statement, recovery

    panchnama, Patwari map, panchnama and seizure memo (Exhibits P-

    1, P-3, P-4, P-7, P-8 and P-15), though he denied witnessing the

    seizure of certain other documents referred to by the prosecution. In

    cross-examination, he admitted that he had neither seen the deceased

    on the day she went missing nor knew with whom she had gone, that

    he signed several documents together at the instance of the police

    without knowing their contents, and that he did not know from where

    the police had brought the mobile phone.

    25. PW-6, Gajanand Singh, deposed that, according to the disclosure

    made by the accused before him and other witnesses on 21.03.2021,

    the accused had called the deceased to Medpar on the night of

    12.03.2021, informed her that his marriage had been arranged and

    asked her to end their relationship. When she insisted on continuing

    the relationship, the accused allegedly strangulated her to death,

    attempted to bury the body by digging a pit, but instead burnt it with

    straw to destroy the evidence and returned the next day to burn the

    remaining skull. Pursuant to this disclosure, he accompanied the police

    and other witnesses to the field at Medpar where skeletal remains were

    recovered, and he witnessed the preparation of the memorandum

    statement, recovery panchnama, notice for inquest proceedings and

    inquest panchnama, identifying his signatures on Exhibits P-3, P-4, P-6

    and P-12. In cross-examination, he admitted that he had not seen the

    deceased leaving her house or going with the accused, had no

    personal knowledge of when or with whom she had left, and that the

    place where the remains of bones were found was an open field
    21

    accessible to anyone. He further stated that he had signed the

    documents together at the instance of the police.

    26. PW-11, the Medical Officer posted at the Community Health Centre,

    Kota, deposed that on 22.03.2021, the police produced the burnt bone

    remains of the deceased before him for expert opinion. He referred the

    remains to the Head of the Department of Forensic Medicine, CIMS

    Bilaspur, for specialized examination. In cross-examination, he

    admitted that merely by examining bones it is not possible to determine

    whether they belong to a male or a female, and that the identity of the

    deceased can only be established through DNA profiling followed by

    comparison with the DNA samples of the relatives.

    27. PW-12, Richa Singh, who was posted as the Tahsildar, Kota at the

    relevant time, deposed that on 11.06.2021, she conducted an

    identification parade of the clothes allegedly recovered from the spot.

    During the identification parade, the witnesses Rajmati and Dhajaram

    identified the clothes as those worn by their daughter/deceased, and

    the identification panchnama (Exhibit P-10) was prepared. In cross-

    examination, she admitted that no notices had been issued to the

    witnesses or the identifying persons, that Exhibit P-10 did not record

    the names, addresses or particulars of the witnesses, nor did it

    describe the colour, size or details of the clothes or the articles used for

    comparison, and that it also did not mention from whom or when the

    articles had been received or returned.

    22

    28. PW-13, Dr. Ulhash Gonnade, Assistant Professor of Forensic Medicine,

    deposed that he examined the burnt human bone remains forwarded

    by the police in connection with the present case and submitted his

    expert opinion (Exhibit P-25). He stated that the sealed packet

    contained extensively burnt bone remains, including the skull, ribs,

    vertebrae, long bones and other bones, which appeared to belong to a

    single human body. Based on the condition of the teeth and cranial

    sutures, he opined that the remains were likely of a female aged

    approximately 14 to 25 years. However, due to the extensive burning,

    he could not determine the cause, manner, nature or time of death, nor

    could he opine whether the death had occurred before or after burning

    or whether strangulation had taken place, as the relevant neck

    structures were absent. He observed that the skeletal remains

    indicated an unnatural death but stated that a definite opinion

    regarding the cause of death was not possible. In cross-examination,

    he admitted that the identity of the deceased could not be established

    merely from the bones and that DNA examination was the appropriate

    method for identification. He further admitted that his report did not

    mention the number or size of the bones, that the bones had shrunk

    due to burning, and that without soft tissues it was impossible to

    comment on disease, treatment, marital status or the identity of the

    individual.

    29. PW-15, Melaram Kathotiya, Assistant Sub-Inspector, Police Station

    Kota and the Investigating Officer, deposed that on 19.03.2021 he

    registered the missing person report of Bharati Vishwakarma on the

    oral report of her father Dhajaram and commenced investigation by
    23

    recording the statements of her family members. On 21.03.2021, the

    accused made a memorandum statement admitting that he had lured

    Bharati through mobile messages, taken her on his motorcycle to a

    field at Medpar, strangulated her, burnt her body with paddy straw, later

    re-burnt the partially burnt skull, concealed her mobile phone at his

    maternal uncle’s house, and kept the motorcycle and spade at his

    house. Pursuant to the disclosure, the witness prepared the spot map,

    recovered the skeletal remains from the place pointed out by the

    accused, registered the merg intimation and FIR for offences under

    Sections 364, 302 and 201 IPC, and collected the chat records

    exchanged from the deceased’s mobile phone with her brother. In

    cross-examination, he admitted several procedural deficiencies,

    including non-production of the missing report register, absence of

    records showing intimation to police headquarters or neighbouring

    police stations, failure to record statements of the owner of the field or

    nearby landowners, omission to mention distances and ownership

    details in the spot maps, non-issuance of notices to memorandum

    witnesses, absence of station diary entries regarding the accused’s

    movement, non-conduct of DNA examination, failure to seize or seal

    the recovered bones or mention their number and size, absence of

    malkhana records, non-seizure of the red cloth allegedly used, lack of

    a certificate under Section 65B of the Evidence Act for the chat

    records, and non-seizure of the mobile phone.

    30. PW-16, Prakash Kant, the then Station House Officer, Police Station

    Kota, deposed that he registered the merg intimation on 13.03.2021,

    registered FIR on 21.03.2021, and carried out various investigative
    24

    including preparation of the spot map and inquest, seizure of ashes,

    bones, soil and other articles from the place of occurrence, seizure of

    the accused’s motorcycle, iron pickaxe, mobile phone, handwritten

    documents and notebook, arrest of the accused, issuance of notices

    for post-mortem, and recording of statements of witnesses. He also

    stated that requisitions were sent for call detail records and that the

    seized disputed documents were subsequently forwarded to the State

    Examiner of Questioned Documents, whose opinion was later received

    and produced before the Court. In cross-examination, he admitted that

    the recovered bones and ashes were never subjected to DNA

    examination, the owner of the field (Sevadas Satnami) and

    neighbouring landowners were not examined, no independent local

    witnesses were associated with certain proceedings, several seizure

    memos lacked material particulars, the seized mobile phones were not

    sent for forensic or cyber examination, no call details, CAF or location

    records of the SIM cards were obtained, relevant roznamcha,

    malkhana records and other supporting documents were not produced,

    and several procedural omissions existed regarding the merg, seizure

    and investigation.

    31. The first circumstance which the prosecution was required to establish

    was that the burnt bone remains recovered from the place allegedly

    pointed out by the accused were in fact those of deceased Bharati

    Vishwakarma. Unless this fact is proved, every subsequent

    circumstance relied upon by the prosecution loses its evidentiary value.

    The prosecution case is that on the basis of the memorandum

    statement of the accused (Ex.P/3), burnt pieces of bones were
    25

    recovered from an open agricultural field and the clothes recovered

    along with the bones were identified by the parents and brother of the

    deceased in identification proceedings (Ex.P/10). However, except

    such identification of clothes and the opinion that the bone remains

    possessed female characteristics, there is no scientific evidence on

    record to conclusively establish that the recovered bones belonged to

    Bharati Vishwakarma. In a criminal trial, particularly where the

    prosecution rests entirely upon circumstantial evidence, the identity of

    the deceased cannot be left to conjectures or probabilities.

    32. PW-13 Dr. Ulhash Gonnade, Assistant Professor, Department of

    Forensic Medicine, who examined the bone remains, has categorically

    deposed that the sealed packet contained extensively burnt human

    bones appearing to belong to one individual. He opined that on the

    basis of the condition of the teeth and cranial sutures, the remains

    were probably of a female aged between 14 to 25 years. However, he

    also stated that because of the extensive burning, he could not

    determine the cause, manner or time of death, nor could he state

    whether the death had occurred before or after burning. More

    importantly, in his cross-examination he admitted that the identity of the

    person could not be established merely from the bones and that DNA

    examination was the appropriate method for establishing identity. He

    further admitted that without DNA examination he could not say that

    the recovered bones belonged to Bharati Vishwakarma. Thus, the

    medical expert himself has ruled out the possibility of identifying the

    deceased merely on the basis of the skeletal remains.
    26

    33. Likewise, PW-11, Dr. Sandeep Dwivedi admitted in his evidence that

    merely by examining bones it is not possible to determine whether they

    belong to a male or female and that the identity of the deceased can

    only be established through DNA profiling by comparing the biological

    samples of the relatives. Thus, even according to the prosecution

    witnesses themselves, DNA examination was the only reliable scientific

    method available for establishing the identity of the skeletal remains.

    Despite such evidence, the investigating agency did not undertake

    DNA profiling although admittedly the parents of the missing girl were

    available throughout the investigation. This omission assumes

    considerable significance because the identity of the dead body itself

    was seriously in issue.

    34. The prosecution has sought to establish the identity of the deceased

    through identification of the clothes allegedly recovered from the spot.

    PW-2 Rajmati (mother of the deceased) stated that the deceased had

    left the house wearing a black T-shirt, red lower and carrying a red

    Gamchha and she identified those clothes during the identification

    proceedings. However, the evidence of PW-12 Richa Singh, Tahsildar,

    who conducted the identification proceedings, reveals serious

    procedural irregularities. She admitted that no notice was issued to the

    identifying witnesses; the identification panchnama does not mention

    the names and particulars of the witnesses; it also does not contain

    any description regarding colour, size or distinctive features of the

    clothes; nor does it mention from whom the articles were received or

    when they were returned. She further admitted that the proceedings do

    not disclose the comparative articles mixed with the seized clothes.
    27

    These admissions substantially diminish the evidentiary value of the

    identification proceedings. Identification of ordinary clothes which is

    easily available in the open market by interested family members,

    particularly after such defective proceedings, cannot be regarded as

    conclusive proof of the identity of the deceased.

    35. The evidence of the Investigating Officers further creates serious doubt

    regarding the recovery itself. PW-15 admitted in his cross-examination

    that DNA examination was never conducted; the recovered bones were

    neither properly sealed nor their number and dimensions recorded;

    malkhana records were not produced; no independent owner of the

    field or neighbouring landowners were examined; and several

    procedural safeguards were ignored during investigation. Likewise,

    PW-16 admitted that the recovered bones were never subjected to

    DNA examination and several important investigative, including

    forensic examination of the seized mobile phones and collection of

    location data, were not undertaken. Such omissions are not merely

    procedural irregularities but go to the root of the prosecution case

    because the identity of the deceased remained scientifically

    unestablished throughout the investigation. It is also noteworthy that

    the place from where the skeletal remains were recovered was

    admittedly an open agricultural field accessible to all. PW-4 and PW-6

    have admitted in their cross-examination that anybody could have

    access to the said place. Therefore, mere recovery of burnt bones from

    an open place at the instance of the accused, without establishing by

    scientific evidence that such bones belonged to Bharati Vishwakarma,

    cannot be treated as an incriminating circumstance against the
    28

    accused. At best, the prosecution has proved that certain burnt human

    bones were recovered from an open field, but it has failed to prove

    whose bones they were.

    36. In the case of Rama Nand and others v. State of Himachal Pradesh,

    1981 (1) SCC 511, the Hon’ble Supreme Court held that discovery of

    the dead body of the victim bearing physical evidence of violence has

    never been considered as the only mode of proving the corpus delicti

    in murder. It has been held that the ‘body’ doctrine is merely a rule of

    caution and not of law. It has also been held that where the dead body

    of the victim in a murder is not found, other cogent and satisfactory

    proof of homicidal death of the victim must be adduced by the

    prosecution. But where the fact of corpus delicti or homicidal death is

    sought to be established by circumstantial evidence alone, or by both,

    the circumstances must be of a clinching and definitive character

    unerringly leading to the inference that the victim concerned has met a

    homicidal death. The Hon’ble Supreme Court held that:-

    “28. This means that before seeking to prove that the accused is
    the perpetrator of the murder, it must be established that
    homicidal death has been caused. Ordinarily, the recovery of the
    dead body of the victim or a vital part of it, bearing marks of
    violence, is sufficient proof of homicidal death of the victim.
    There was a time when under the old English law, the finding of
    the body of the deceased was held to be essential before a
    person was convicted of committing his culpable homicide. “I
    would never convict,” said Sir Mathew Hale, “a person of murder
    or manslaughter unless the fact were proved to be done, or at
    least the body was found dead.” This was merely a rule of
    caution, and not of law. But in those times when execution was
    the only punishment for murder, the need for adhering to this
    cautionary rule was greater. Discovery of the dead body of the
    victim bearing physical evidence of violence, has never been
    considered as the only mode of proving the corpus delicti in
    29

    murder. Indeed, very many cases are of such a nature where the
    discovery of the dead body is impossible. A blind adherence to
    this old “body” doctrine would open the door wide open for many
    a heinous murderer to escape with impunity simply because they
    were cunning and clever enough to destroy the body of their
    victim. In the context of our law, Sir Hale’s enunciation has to be
    interpreted no more than emphasising that where the dead body
    of the victim in a murder case is not found, other cogent and
    satisfactory proof of the homicidal death of the victim must be
    adduced by the prosecution. Such proof may be by the direct
    ocular account of an eyewitness, or by circumstantial evidence,
    or by both. But where the fact of corpus delicti, i. e. ‘homicidal
    death’ is sought to be established by circumstantial evidence
    alone, the circumstances must be of a clinching and definitive
    character unerringly leading to the inference that the victim
    concerned has met a homicidal death. Even so, this principle of
    caution cannot be pushed too far as requiring absolute proof.
    Perfect proof is seldom to be had in this imperfect world, and
    absolute certainty is a myth. That is why under Section 3,
    Evidence Act, a fact is said to be “proved”, if the court
    considering the matters before it, considers its existence so
    probable that a prudent man ought, under the circumstances of
    the particular case, to act upon the supposition that it exists. The
    corpus delicti or the fact of homicidal death, therefore, can be
    proved by telling and inculpating circumstances which definitely
    lead to the conclusion that within all human probability, the victim
    has been murdered by the accused concerned. In the instant
    case, circum-stances (1) to (5), in their cumulative effect, are not
    only inconsistent with the innocence of Rama Nand appellant,
    but ineluctably and rationally compel the conclusion that Sumitra
    has died and it is Rama Nand appellant who has intentionally
    caused her death. Circumstance (3) involves an admission by
    Rama Nand and Shish Ram accused that Sumitra has met an
    unnatural death. The only difference between the prosecution
    version and the defence version is as to whether Sumitra
    committed suicide or had been killed by Rama Nand appellant. It
    has been found that the story of the suicide set up by the
    accused is false. The articles salwar (Ex.P-14) and the shoes
    (Ex. P-15) do not belong to her. They were planted by the
    accused to lay a false trail and to misdirect the investigation. This
    circumstance taken in conjunction with the others, irresistably
    and rationally leads to the conclusion that she has been
    murdered by Rama Nand appellant and her dead body has been
    disposed of by the appellants Shish Ram and Kali Datt.”

    30

    37. The principle of law laid down in Rama Nand (supra) has been

    reiterated and followed by the Hon’ble Supreme Court in the case of

    Ramjee Rai and others v. State of Bihar 2006 (13) SCC 229, and

    also in the case of Rishi Pal v. State of Uttarakhand 2013 Cri.L.J.

    1534, following Rama Nand (supra) and it has been held that absence

    of corpus delicti is insignificant if cogent and satisfactory proof of

    homicidal death of victim is adduced. The decision of the Hon’ble

    Supreme Court in Rama Nand (supra) has further been followed in the

    case of Sanjay Rajak v. State of Bihar, 2019 (12) SCC 552.

    38. However, in S. Kaleeswaran v. State by the Inspector of Police

    Pollachi Town East Police Station, Coimbatore District, Tamil

    Nadu, 2022 SCC OnLine SC 1511, the Hon’ble Supreme Court have

    made exception to the rule of corpus delicti that if the entire chain is

    duly proved by cogent evidence, the conviction could be recorded even

    if the corpus is not found, but when as per the case of the prosecution,

    the dead body of the victim was discovered from the place shown by

    the accused, it is imperative on the part of the prosecution to prove that

    the dead body or the skeleton found at the instance of the accused

    was that of the victim and of none else, and it was held as under: –

    “14. It is well settled that if there is considerable time gap
    between the persons seeing together and the proximate time of
    the crime, the circumstances of last seen together, even if proved
    cannot clinchingly fasten the guilt of the accused. (State of Goa
    v. Sanjay Thakran
    .”

    39. At this stage, the submission of learned counsel for the appellant that

    identification of the deceased made by gamchha is not in accordance
    31

    with law and in order to identify the body of the deceased, DNA test of

    bone remains ought to have been conducted by the prosecution and

    failure to conduct DNA test will vitiate the conviction recorded and

    sentences awarded to the appellant herein, has to be noted for

    consideration.

    40. In the matter of Rambraksh alias Jalim v. State of Chhattisgarh,

    2016 (12) SCC 251, the Hon’ble Supreme Court has held that the

    investigating officer did not make any attempt to conduct DNA analysis

    of bones to prove that the bone remains seized was that of Ramsevak,

    and their Lordships have held that the prosecution has failed to prove

    the death of Ramsevak either homicidal or otherwise.

    41. Similarly, in the matter of Rajendra Pralhadrao Wasnik v. State of

    Maharashtra, 2019 (12) SCC 460, the Hon’ble Supreme Court

    referring to Sections 53-A and 164-A of the CrPC, held that DNA

    profiling has now become a part of the statutory scheme and for the

    prosecution to decline to produce DNA evidence would be a little

    unfortunate particularly when the facility of DNA profiling is available in

    the country, and observed that:-

    “54. For the prosecution to decline to produce DNA evidence
    would be a little unfortunate particularly when the facility of DNA
    profiling is available in the country. The prosecution would be
    well advised to take advantage of this, particularly in view of the
    provisions of Section 53-A and Section 164-A CrPC. We are not
    going to the extent of suggesting that if there is no DNA profiling.
    the prosecution case cannot be proved but we are certainly of
    the view that where DNA profiling has not been done or it is held
    32

    back from the trial court, an adverse consequence would follow
    for the prosecution.

    55. In Mukesh1 a separate opinion was delivered by Banumathi,
    J. and in para 455 of the Report it was held that DNA profiling is
    an extremely accurate way of comparing specimens and such
    testing can make a virtually positive identification. It was stated:

    (SCC p. 234)

    “455……… DNA profiling is an extremely accurate way to
    compare a suspect’s DNA with crime scene specimens,
    victim’s DNA on the bloodstained clothes of the accused or
    other articles recovered, DNA testing can make a virtually
    positive identification when the two samples match. A DNA
    fingerprint is identical for every part of the body, whether it
    is the blood, saliva, brain, kidney or foot or any part of the
    body. It cannot be changed; it will be identical no matter
    what is done to a body. Even relatively minute quantities of
    blood, saliva or semen at a crime scene or on clothes can
    yield sufficient material for analysis. The experts opine that
    the identification is almost hundred per cent precise. Using
    this i.e. chemical structure of genetic information by
    generating DNA profile of the individual, identification of an
    individual is done like in the traditional method of
    identifying fingerprints of offenders.” (emphasis
    supplied)

    56. In the context of importance of scientific and technological
    advances having been made, we may recall the observation of
    this Court in Selvi v. State of Karnataka2 in para 220 of the
    Report that “The matching of DNA samples b is emerging as a
    vital tool for linking suspects to specific criminal acts.”

    1 ( 2017) 6 SCC 1: (2017) 2 SCC (Cri.) 673
    2 (2010) 7 SCC 263 : (2010) 3 SCC (Cri.) 1
    33

    42. Reverting to the facts of the present case in the light of the aforesaid

    principles, it is evident that the prosecution has utterly failed to

    establish that the burnt bone remains allegedly recovered at the

    instance of the accused were those of deceased Bharati Vishwakarma.

    Dr. Ulhas Gonade (PW-13), who examined the bone remains and

    submitted the forensic report (Ex.P/25), merely opined that the bones

    appeared to be of a female aged between 14 to 25 years. However, he

    categorically admitted in his cross-examination that the identity of the

    individual could not be established merely from the bones and that

    DNA examination was the appropriate and reliable method for such

    identification. Similarly, Dr. R.K. Sahu (PW-11) also admitted that the

    identity of the deceased could only be established through DNA

    profiling by comparing the biological samples of the relatives. Despite

    such categorical medical evidence, the Investigating Officers, PW-15

    and PW-16, admitted that no DNA examination of the recovered bones

    was ever conducted, though the parents of the missing girl were

    available for collection of reference samples. Instead of adopting the

    best scientific evidence available, the prosecution sought to establish

    the identity of the deceased merely on the basis of identification of

    certain clothes by the parents during identification proceedings, which

    themselves suffer from material procedural deficiencies as admitted by

    PW-12, the Tahsildar. Such identification of ordinary wearing apparel

    cannot be regarded as a substitute for scientific identification of bone

    remains.

    43. Where the prosecution alleges murder and seeks to establish the

    corpus delicti through recovery of bone remains, it is under a legal

    obligation to prove by cogent, reliable and scientific evidence that the
    34

    recovered remains belonged to the alleged deceased and none else. In

    the present case, the prosecution has failed to discharge that burden.

    The recovery was effected from an open place accessible to all; no

    DNA profiling was conducted; the identity of the bones remained

    unestablished; and even the medical experts were unable to opine

    either the cause of death or the identity of the deceased. Consequently,

    the prosecution has failed to prove the fact that the recovered bone

    remains were those of Bharati Vishwakarma. Once the identity of the

    alleged deceased itself remains shrouded in doubt, the prosecution

    cannot be said to have proved either the corpus delicti or that Bharati

    Vishwakarma met with a homicidal death at the hands of the accused.

    The very first and most essential link in the chain of circumstantial

    evidence, therefore, remains unproved, entitling the accused to the

    benefit of doubt.

    44. In Digambar Vaishnav and Another v. State of Chhattisgarh, 2019

    (4) SCC 522, the Hon’ble Supreme Court reiterated that suspicion,

    however grave, cannot take the place of legal proof and if two views

    are possible, the one favourable to the accused must necessarily be

    adopted. In para 19, it has been held that:-

    “19. It is also well-settled principle that in criminal cases, if two
    views are d possible on evidence adduced in the case, one
    binding to the guilt of the accused and the other is to his
    innocence, the view which is favourable to the accused, should
    be adopted. This principle has a special relevance in cases
    wherein the guilt of the accused is sought to be established by
    circumstantial evidence [see Kali Ram v. State of H.P.3].”

    3 (1973) 2 SCC 808 : 1973 SCC (Cri) 1048
    * Ed.: Para 20 corrected vide Official Corrigendum No. F.3/Ed.B.J./17/2019 dated 15-03-2019.
    35

    45. The prosecution has also failed to establish the circumstance of “last

    seen together”, which is one of the important links in a case resting on

    circumstantial evidence. A careful appreciation of the evidence of PW-1

    Dhajaram (father), PW-2 Rajmati (mother), PW-3 Amit Kumar (brother),

    PW-4 Nepal Singh, PW-5 Tikaram and PW-6 Manoj Kumar reveals that

    none of these witnesses has deposed that they had seen the deceased

    in the company of the accused on or immediately prior to her going

    missing on the intervening night of 11/12.03.2021. On the contrary, the

    witnesses have admitted in their cross-examination that they had never

    personally seen the deceased with the accused. The prosecution has

    attempted to rely upon certain WhatsApp messages allegedly

    exchanged from the mobile phone of the deceased; however, the

    person who actually sent those messages has not been established,

    the mobile phone was not subjected to forensic examination, no Call

    Detail Records (CDRs), location data or certificate under Section 65B

    of the Evidence Act were produced, and even the Investigating Officer

    (PW-15) admitted these omissions during cross-examination. In the

    absence of any reliable evidence establishing the factum of last seen,

    the liability cannot be fastened upon the accused unless the evidence

    coupled with other circumstances is established. In the present case,

    since the very fact of the deceased having been last seen in the

    company of the accused has not been proved, this vital circumstance

    is wholly absent, thereby leaving another missing link in the

    prosecution case.

    46. The prosecution has further relied upon the memorandum statement of

    the accused (Ex.P/3) and the consequent recovery of burnt bones and
    36

    other articles under Section 27 of the Indian Evidence Act as an

    incriminating circumstance. It is well settled that under Section 27, only

    that portion of the information which distinctly relates to the fact thereby

    discovered is admissible in evidence. However, the evidentiary value of

    such discovery depends upon the nature of the article recovered and

    the place from where it is recovered. In the present case, the evidence

    of PW-4 Nepal Singh and PW-6 Manoj Kumar clearly establishes that

    the place from where the burnt bones were recovered was an open

    agricultural field accessible to everyone. Both the witnesses have

    admitted in their cross-examination that the place of recovery was an

    open place and anybody could have access to it. Even the

    Investigating Officers, PW-15 and PW-16, admitted that the owner of

    the field and the neighbouring landowners were not examined, the

    recovered bones were not subjected to DNA examination, and several

    material procedural safeguards relating to seizure and preservation of

    the articles were not followed. Thus, the recovery was not effected from

    any place exclusively within the knowledge or possession of the

    accused. When the articles are recovered from an open and accessible

    place, the discovery loses much of its incriminating value, as such

    recovery cannot be said to be a fact exclusively known to the accused.

    Moreover, the prosecution has also failed to establish that the

    recovered bones belonged to the deceased, thereby further diluting the

    evidentiary significance of the alleged discovery.

    47. The Hon’ble Supreme Court in Anter Singh v. State of Rajasthan,

    (2004) 10 SCC 657, has held that for a discovery under Section 27 to

    acquire evidentiary value, the prosecution must establish that the
    37

    information supplied by the accused led to the discovery of a fact which

    was within his exclusive knowledge. It has been held that:-

    “11. The scope and ambit of Section 27 of the Evidence Act were
    illuminatingly stated in Pulukuri Kottaya v. Emperor4 in the
    following words, which have become locus classicus: (AIR p. 70,
    para 10)

    “[I]t 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.
    Information as to past user, or the past history, of the
    object produced is not related to its discovery in the setting
    in which it is discovered. Information supplied by a person
    in custody that ‘I will produce a knife concealed in the roof
    of my house’ does not lead to the discovery of a knife;
    knives were discovered many years ago. It leads to the
    discovery of the fact that a knife is concealed in the house
    of the informant to his knowledge, and if the knife is proved
    to have been used in the commission of the offence, the
    fact discovered is very relevant. But if to the statement the
    words be added ‘with which I stabbed A’ these words are
    inadmissible since they do not relate to the discovery of
    the knife in the house of the informant.”

    12. The aforesaid position was again highlighted in Prabhoo v.
    State of U.P.5

    13. Although the interpretation and scope of Section 27 has been
    the difficulty. It will, therefore, be worthwhile at the outset, to have
    a short and cases in the background events proved therein is not
    always free from swift glance at Section 27 and be reminded of
    its requirements. The section says:

    “27. Provided that, when any fact is deposed to as
    discovered in in the custody of a police officer, so much of
    such information, whether it b consequence of information
    4 AIR 1947 PC 67 : 74 IA 65 : 48 Cri LJ 533
    5 AIR 1963 SC 1113 : (1963) 2 Cri LJ 182
    38

    received from a person accused of any offence. amounts
    to a confession or not, as relates distinctly to the fact
    thereby discovered, may be proved.”

    14. The expression “provided that” together with the phrase
    “whether it amounts to a confession or not” shows that the
    section is in the nature of an exception to the preceding
    provisions particularly Sections 25 and 26. It is not necessary in
    this case to consider if this section qualifies, to any extent, c
    Section 24, also. It will be seen that the first condition necessary
    for bringing this section into operation is the discovery of a fact,
    albeit a relevant fact, in consequence of the information received
    from a person accused of an offence. The second is that the
    discovery of such fact must be deposed to. The third is that at
    the time of the receipt of the information the accused must be in
    police custody. The last but the most important condition is that
    only d “so much of the information” as relates distinctly to the fact
    thereby discovered is admissible. The rest of the information has
    to be excluded. The word “distinctly” means “directly”,
    “indubitably”, “strictly”, “unmistakably”. The word has been
    advisedly used to limit and define the scope of the provable
    information. The phrase “distinctly” relates “to the fact thereby
    discovered” and is the linchpin of the provision. This phrase
    refers to that e part of the information supplied by the accused
    which is the direct and immediate cause of the discovery. The
    reason behind this partial lifting of the ban against confessions
    and statements made to the police, is that if a fact is actually
    discovered in consequence of information given by the accused,
    it affords some guarantee of truth of that part, and that part only,
    of the information which was the clear, immediate and proximate
    cause of the f discovery. No such guarantee or assurance
    attaches to the rest of the statement which may be indirectly or
    remotely related to the fact discovered. (See Mohd. Inayatullah v.
    State of Maharashtra.6
    )

    15. At one time it was held that the expression “fact discovered”

    in the section is restricted to a physical or material fact which can
    be perceived by the senses, and that it does not include a mental
    fact, now it is fairly settled g that the expression “fact discovered”

    includes not only the physical object produced, but also the place
    from which it is produced and the knowledge of the accused as
    to this, as noted in Pulukuri Kottaya case and in Udai Bhan v.
    State of U.P.7

    6 (1976) 1 SCC 828 : 1976 (Cri) 199 : AIR SC 483
    7 AIR 1962 SC 1116 : (1962)

    39

    16. The various requirements of the section can be summed up
    as follows:

    (1) The fact of which evidence is sought to be given
    must be relevant to the issue. It must be borne in mind that
    the provision has nothing to do with the question of
    relevancy. The relevancy of the fact discovered must be
    established according to the prescriptions relating to
    relevancy of other evidence connecting it with the crime in
    order to make the fact discovered admissible.

    (2) The fact must have been discovered,

    (3) The discovery must have been in consequence of
    some information received from the accused and not by
    the accused’s own act.

    (4) The person giving the information must be accused of
    any offence.

    (5) He must be in the custody of a police officer.

    (6) The discovery of a fact in consequence of information
    received from an accused in custody must be deposed to.

    (7) Thereupon only that portion of the information which
    relates distinctly or strictly to the fact discovered can be
    proved. The rest is inadmissible.

    17. As observed in Pulukuri Kottaya case it can seldom happen
    that d information leading to the discovery of a fact forms the
    foundation of the prosecution case. It is one link in the chain of
    proof and the other links must be forged in a manner allowed by
    law.
    To similar effect was the view expressed in K. Chinnaswamy
    Reddy v. State of A.P.8

    8 AIR 1962 SC 1788 : (1963) 1 Cri LJ 8
    * From the judgment and Order dated 31-3-1998 of the Karnataka High Court in WAs Nos. 9706 and 6915 of
    1996 : (1998) 6 Karn LJ 438
    40

    48. Similarly, in Mustkeem alias Sirajudeen v. State of Rajasthan, (2011)

    11 SCC 724, the Supreme Court observed that recovery of articles

    from an open place accessible to all is a weak piece of evidence and,

    by itself, cannot form the basis of conviction unless corroborated by

    other reliable circumstances. It has been held that:-

    25. With regard to Section 27 of the Act, what is important is
    discovery of the material object at the disclosure of the accused
    but such disclosure alone would not automatically lead to the
    conclusion that the offence was also committed by the accused.

    In fact, thereafter, burden lies on the prosecution to establish a
    close link between discovery of the material object and its use in
    the commission of the offence. What is admissible under Section
    27
    of the Act is the information leading to discovery and not any
    opinion formed on it by the prosecution.

    26. If the recovery memos were prepared at the police station
    itself then the same would lose their sanctity as held by this
    Court in Varun Chaudhary v. State of Rajasthan9.

    27. The scope and ambit of Section 27 were also illuminatingly
    stated in Pulukuri Kotayya v. King Emperor10 reproduced
    hereinbelow: (IA p. 77)

    “… 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.
    Information as to past user, or the past history, of the
    object produced is not related to its discovery in the setting
    in which it is discovered. Information supplied by a person
    in custody that ‘I will produce a knife concealed in the roof
    of my house’ does not lead to the discovery of a knife;
    knives were discovered many years ago. It leads to the
    discovery of the fact that a knife is concealed in the house

    9 (2011) 12 SCC 545 : AIR 2011 SC 72
    10 (1946-47) 74 IA 65 : AIR 1947 PC 67
    41

    of the informant to his knowledge, and if the knife is proved
    to have been used in the commission of the offence, the
    fact discovered is very relevant. But if to the statement the
    words be added ‘with which I stabbed A’, these words are
    inadmissible since they do not relate to the discovery of
    the knife in the house of the informant.”

    The same were thereafter restated in another judgment of this
    Court in Anter Singh v. State of Rajasthan11.”

    49. The Supreme Court in case of Abdul Sattar Vs. Union Territory,

    Chandigarh, 1986 CrLJ 1072 has observed in para 4 of its judgment

    as under:

    “4……..the pant and the shirt had been removed from the body
    and hidden there. Recovery is said to have been made more
    than three weeks after the occurrence. Admittedly, the place from
    where these two things are said to have been recovered was a
    public place and appears to have been very much accessible to
    people of the locality. It is difficult to believe that these two had
    been so concealed that they were not noticed and were available
    to be collected from the very place such a long time after.”

    50. Applying the aforesaid principles, this Court is of the considered

    opinion that the recovery of burnt bones and other articles from an

    open place, unaccompanied by scientific identification or other

    independent corroboration, does not constitute a strong incriminating

    circumstance against the accused and cannot be treated as a vital link

    in the chain of circumstantial evidence.

    51. The prosecution has also failed to establish a convincing motive for the

    commission of the alleged offence. Though PW-1, PW-2 and PW-3

    have deposed that the accused and the deceased were acquainted

    with each other and that the accused had expressed his desire to

    marry the deceased despite opposition from her family, such evidence
    11 (2004) 10 SCC 657 : 2005 SCC (Cri) 597
    42

    merely indicates the existence of a prior relationship and cannot, by

    itself, lead to the irresistible conclusion that the accused had a motive

    to commit her murder. No independent witness has been examined to

    establish that the accused had recently threatened the deceased or

    that any incident had occurred immediately before her disappearance

    which could furnish a strong motive for the alleged crime. There is also

    no evidence that the engagement of the accused with another girl had

    taken place immediately before the incident or that any quarrel had

    occurred between the accused and the deceased on that account. It is

    well settled that although motive is not a sine qua non where there is

    direct evidence, in a case resting entirely on circumstantial evidence,

    motive assumes considerable significance and its absence or weak

    proof is an important circumstance in favour of the accused. In the

    case of Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238, and

    Babu v. State of Kerala, (2010) 9 SCC 189, the Hon’ble Supreme

    Court held that when the prosecution relies solely upon circumstantial

    evidence, failure to establish a convincing motive is a relevant factor

    while appreciating whether the chain of circumstances has been

    proved beyond reasonable doubt. In the present case, the alleged

    motive remains based on conjectures and assumptions rather than

    cogent evidence.

    52. From the foregoing considerations, this Court is of the considered

    opinion that the prosecution has failed to establish the most

    fundamental circumstance, namely, that the bone remains recovered

    from the spot belonged to deceased Bharati Vishwakarma. The

    medical evidence completely rules out identification from the bones in
    43

    the absence of DNA examination. The investigating agency, despite

    being aware of this requirement, failed to undertake DNA profiling. It

    has also not been proved that the person whose bone remains

    recovered from the spot died due to homicidal death, as Dr Ulhas

    Gonade, PW-13, opined that, because of the extensive burning, he

    could not determine the cause, manner or time of death, nor could he

    state whether the death had occurred before or after burning. The

    identification of ordinary clothes by close relatives through defective

    identification proceedings cannot substitute for scientific proof of

    identity. Consequently, the prosecution has failed to prove the corpus

    delicti beyond reasonable doubt. Once the identity of the alleged

    deceased itself remains unproved, the prosecution cannot be said to

    have established that Bharati Vishwakarma died a homicidal death by

    the accused. In such circumstances, it would be wholly unsafe to

    sustain the conviction of the accused under Sections 302, 364 and 201

    of the IPC merely on suspicion, howsoever strong it may appear. The

    accused is, therefore, entitled to the benefit of doubt.

    53. As a fallout, the appeal filed by the appellant is allowed. The impugned

    judgment of conviction and sentence are hereby set aside. The

    appellant is acquitted of all the charges. The appellant is reported to be

    in jail since 22.03.2021, he shall be released forthwith if not required in

    any other case.

    54. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik

    Suraksha Sanhita, 2023, the appellant- Brijesh @ Bijju Markam is

    directed to furnish a personal bond for a sum of Rs. 25,000/- with one

    surety in the like amount before the Court concerned which shall be

    effective for a period of six months along with an undertaking that in the
    44

    event of filing of Special Leave Petition against the instant judgment or

    for grant of leave, the aforesaid appellant, on receipt of notice thereof,

    shall appear before the Hon’ble Supreme Court.

    55. The trial Court record along with a copy of this judgment be sent back

    to the trial Court concerned for compliance and necessary action.

                       Sd/-                                   Sd/-
    
            (Ravindra Kumar Agrawal)                     (Ramesh Sinha)
                     Judge                                Chief Justice
    
    
    
    
    Alok
     



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