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
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.
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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
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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.
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• 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,
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.
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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
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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
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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
9prosecution 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;
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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
11must 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,
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(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
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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
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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:
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“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.
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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
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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
29murder. 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
32back 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
38received 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
