1. Appellant- Firuram Sahu has preferred this criminal appeal under Section 374(2) of the CrPC questioning the impugned judgment dated 01.07.2023 passed by the Additional Sessions Judge (FTSC), Sakti, District – Janjgair-Champa (C.G.) in Sessions Trial No. 47/2022, by which the appellant has been convicted and sentenced in the following manner with a direction to run all the sentences concurrently.

2. Case of the prosecution, in nutshell, is that accused Firuram Sahu lodged a report in Police Station, Hasaud that the deceased, wife of his younger brother Safed Ram Sahu, lives alone in the house adjacent to his house and her son lives in Korba and doing a private job. On 09.05.2022, his wife Savitri Sahu and granddaughter Jessica Sahu slept at night after taking dinner and his wife has seen the deceased in her house at 6 o’clock in the evening, who was doing some work. After that, on 10.05.2022, at 6 A.M., accused Firuram got up and went to bathroom, his wife Savitri Sahu also got up and was going towards lanter to check water, then suddenly she shouted that the deceased has been murdered. Thereafter, accused Firuram, Dashrath Karsh, Savitri and Kalawati ran towards the house of the deceased and found that the house was locked from inside. Thereafter, Kalavati entered into house of the deceased by jumping the boundary wall and opened the door from inside and they went straight to the courtyard and saw that the deceased was lying in unconscious state on the cot, there was serious injury on her head, skull was torn, there was lot of blood clot under the cot, some unknown person had entered into the house of the deceased and committed her murder by hitting over her head by some hard object. On the basis of said report, after recording information about famine and sudden death as Merg No.19/2022 vide Ex.P-21, FIR under Section 302 of IPC was registered against unknown person vide Ex.P-22 and investigation was started. During the course of investigation, inquest over the dead body of the deceased was prepared vide Ex.P-10. Dead body of the deceased was sent for postmortem to Community Health Centre, Jaijaipur vide Ex.P-4 and application for conducting postmortem was given vide Ex.P-5. Thereafter Dr. Sashiprabha Banjare (PW-10) has conducted postmortem vide Ex.-P-6 and found following injuries :

(i) Rigor mortis present over both extremities, eye close, pupil fully dilated and fixed, mouth close, dry blood present in both nostril and mouth;

(ii) Fronto-parietal region of skull is crushed and brain matter is evacuated;

(iii) Externally no injury seen except mentioned as above;

(iv) Cervix and vagina found healthy, hymen is teared and healed

(v) No bleeding seen

(vi) No definite opinion was given regarding rape. For confirmation two vaginal slides were prepared, sealed packed and handed over to on duty constable for serochemical analysis along with blood stained purple colour sari, blood stained cream colour blouse and red colour petticot of the deceased.

The doctor opined that cause of death was cardio-respiratory arrest due to cranio-cerebral trauma (head injury) and the death was homicidal in nature. No definite opinion was given regarding rape.

3. After due investigation, to identify the unknown an informer was appointed, to whom the complainant – Firuram Sahu himself told that he had murdered his sister-in-law (babhi) due to land dispute. Thereafter on interrogation, accused Firuram told that he had murdered the deceased. His memorandum statement was recorded vide Ex.P-11, in which he has accepted that due to land dispute, he entered into the house of the deceased at 2.00 P.M. in the intervening night of 09- 10.05.2022 and assaulted the deceased by Tessie (brick cutter) three times on her head, who was sleeping alone in her courtyard and when the deceased passed out, after closing the courtyard door of house from inside, he jumped over the wall, took Tessie with him to his house, washed & hide it behind the bathroom and slept in his room.

4. On the basis of aforesaid memorandum statement, Tessie (brick cutter) with wooden handle and full sleeve shirt were seized at the instance of the accused/appellant vide Ex.P-12 and after having found that the accused has committed abovementioned crime, Sections 540, 201 of IPC were added in the FIR and the accused/appellant was taken into custody. Spot map was prepared by Patwari vide Ex.P-3. Blood stained soil and plain soil were recovered from the place of incident vide Ex.P-15. Three pieces of hair found in the half-opened fist of the deceased and a white towel kept near the head of the deceased were seized vide Ex.P-16. Deceased’s saree, blouse, petticoat and two pieces of vaginal slides were seized vide Ex.P-1. Seized articles were sent for chemical examination to Forensic Science Laboratory, Bilaspur and in the report, human sperm was found in the vaginal slides. After taking permission from the Court, virility test of the accused/appellant was conducted from Community Health Centre, Sakti and since he was found capable to commit intercourse, offence under Section 376 IPC has also been added. As per FSL report, bloodstains were also found in bloodstained soil, handle of Tessie (brick cutter), shirt of the appellant, towel kept near the head of the deceased, saree, blouse & petticoat of the deceased.

5. After completion of investigation, charge-sheet was filed against the accused/appellant under Sections 302, 450, 201, 376 of the IPC before the Court of Judicial Magistrate First Class, Jaijaipur, who in turn committed the case to the Court of Additional Sessions Judge (FTSC), Sakti for trial.

6. In order to bring home the offence, the prosecution examined as many as 22 witnesses and exhibited 43 documents Exs.P-1 to P-43. The appellant had examined 04 defence witnesses and exhibited 06 documents in his support.

7. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 01.07.2023, convicted and sentenced the appellant as aforementioned, against which, this criminal appeal has been preferred.

8. Mr. Rahil Kochar, learned counsel appearing for the appellant submitted that the conviction of the appellant is based on alleged interested witnesses adapted by the prosecution, whereby PW-15 Bajrangi Sahu and PW-16 Khojram Sahu are the witnesses to the memorandum statement. The learned trial Court has failed to appreciate that the statements of witnesses are not credible and suffer from various contradictions and omissions. Bajrangi Sahu (PW-15) is an interested witness and Khojram Sahu (PW-16) has not supported the case of the prosecution. He further submitted that suspicion however grave cannot be the basis of conviction. Merely on the ground of suspicion, the appellant has been falsely roped in the present case. The appellant is the brother-in-law of the deceased, accused is the informant in the present case, when PW-13 Savitri Sahu, who saw the dead body for the first time, informed the relatives and the appellant, he immediately went to the police station and lodged the FIR. There is delay in recording the memorandum statement which is fatal to the case of the prosecution, there are material contradictions and omissions in the statement of material witnesses which are not corroborating. PW-15 Bajrangi Sahu and PW-20 Yogesh Patel have stated that there has been suspicion on the accused on the next date of incident, but the Investigation Officer has failed to prove the delay of 15 days in conducting the investigation. In the present case, the accused was the informant and part of the initial investigation but there has been no witnesses who have stated anything against the appellant and merely on the ground of suspicion, a false case has been concocted against the appellant.

9. Mr. Kochar argued that in the present case medical version is not corroborated with the ocular version. The deceased was medically examined by the Medical Officer and there were no signs of internal or external injury on the body of the deceased. The prosecution has taken the vaginal slides of the deceased and during the investigation there were sperms found in the slides, whereby Section 376 (2) (f) IPC was added during the investigation. It is submitted that there has been no DNA report conducted by the prosecution under Section 53A of the CrPC to connect the accused with the crime in question. As per the judgment laid down by the Supreme Court in the matter of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 170, the prosecution has to conduct DNA test to make a full proof case against the accused person.

10. Mr. Kochar further argued that the witness to memorandum PW-15 Bajrangi Sahu is not credible and is an interested witness. This witness in para 2 of his evidence has stated that he was not present during the incident and he was informed the other day about the incident. He has also narrated that when he woke up next morning, sniffer dogs were there and they went to the house of the accused, but there has been no enquiry report prepared by the Investigating Officer regarding the sniffer dog and neither any panchnama has been prepared on the date of incident. It is also submitted that pointing out by dog squad in circumstance of the case, do not conclusively lead to guilt of accused as per the judgment laid down by the Supreme Court in the matter of Surinder Pal Jain v. Delhi Administration (1993) 3 SCC 681 [LQ/SC/1993/212] . In para 3 this witness has stated that the police has investigated the matter and enquired about the incident to the accused and he has stated that he has not committed the crime and Investigating Officer recorded his statement and took signatures on the blank paper. This shows the abnormal conduct of the Investigating Officer which dents the prosecution case. There has been no motive alleged on the part of the appellant. The prosecution has failed to prove the motive and the story of land dispute of the appellant and the deceased is not corroborated with the testimony of material witnesses. The prosecution has tried to prove the motive of land dispute between the parties which has not been proved beyond reasonable doubt. All the material witnesses examined by the prosecution have narrated that there has been cordial relationship between the parties. Rohit Yadav (PW-1) and Sureet Yadav (PW-2) have also stated in their cross-examination that they have only heard about the dispute and they do not know about it. This shows that these are the hearsay witness which cannot be relied upon.

11. Mr. Kochar contended that the memorandum witness PW-16 Khojram Sahu is not a credible witness to the memorandum Ex.P-11 and Ex.P- 12 seizure. The prosecution has failed to examine any independent witness, whereas the witnesses to the memorandum have stated that they have not been called by the police for the enquiry on that day. Khojram Sahu (PW-16) has not supported the case of prosecution regarding the recovery and memorandum of the accused. The conviction is based on interested witness PW-15 Bajrangi Sahu and suspicion. Suspicion, however grave cannot be the basis of conviction. Learned trial Court has failed to appreciate the evidence and the appellant has been falsely roped into the present case. As per merg intimation Ex P-21 (dehati merg intimation), the accused has narrated the incident on the instance of Savitri Sahu PW-13. Investigating Officer Yogesh Patel (PW-20) in para 20 of his evidence has stated that on Mukhbir information they have started the investigation against the accused, whereby there is delay of 15 days in recording the statement and there is inordinate delay which is fatal to the case of prosecution. The incident took place on 10.05.2022 whereas the memorandum statement of the accused was recorded on 25.05.2022. He has been falsely implicated due to the enmity. If the entire case of the prosecution is taken as it is, conviction of the accused under Sections 302 and 376 (2)(f) of the IPC is not made out. The conviction is based on doubtful memorandum witnesses and except that there is no other incriminating evidence against the appellant. The evidence with regard to incident are all improvements in diary statement. Yogesh Patel (PW- 20) has not narrated anything about the sniffer dogs and the enquiry initiated by him on the next date of incident which creates doubt in the story of the prosecution. He lastly submitted that apart from doubtful, interested witnesses and seizure of Iron Tessie (brick cutter) after a delay of 15 days which does not have any serologist report regarding the grouping of blood, neither it has been stated in the FSL report that there was human blood. Therefore, relying upon judgment of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh (2019) 7 SCC 781, [LQ/SC/2019/1198] no other connecting links have been made out leading to the hypothesis of guilt of the appellant. Only the interested witnesses cannot be made the sole basis of conviction as it is unsafe to convict only on the memorandum statement of accused and it is well settled law that motive may be an important circumstance in a case based on circumstantial evidence but it cannot take place of conclusive proof. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. He placed reliance on the judgment passed by the Hon’ble Supreme Court in the matters of Devi Lal v. State of Rajasthan 2019 (1) SCR 168, Sujit Biswas v. State of Assam 2013 (3) SCR 830 [LQ/SC/2013/602] and Ram Kumar Pande v. State of MP AIR 1975 SC 1026 [LQ/SC/1975/57] .

12. On the other hand, Mr. Wasim Miyan, learned Panel Lawyer, appearing for the respondent/State would support the impugned judgment and submit that the conviction of the appellant / accused is based on circumstantial evidence. The prosecution during investigation recorded the statements of the prosecution witnesses in which they have categorically deposed in their statements regarding conduct and commission of offence by the accused / appellant, which is concurrent evidence against the accused/appellant and thus, the learned trial Court has rightly convicted and sentenced the accused/appellant. He would further submit that the prosecution has proved its case beyond reasonable doubt and the judgment of the trial Court is just and proper and does not call for any interference by this Court and as such, criminal appeal deserves to be dismissed.

13. We have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

14. The first question for consideration would be, whether the trial Court was justified in holding that death of the deceased was homicidal in nature

15. The trial Court relying upon the statement of Dr. Sashiprabha Banjare (PW-10), who has conducted postmortem on the body of deceased vide Ex.P-6, has clearly come to the conclusion that death of deceased was homicidal in nature. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellant. We hereby affirm the said finding.

16. The next question is whether the chain of circumstances are proved to connect and convict the appellant for offence under Section 302 of the IPC

17. It is well settled law that in a case based on circumstantial evidence, 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, forming a chain 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. The principle of circumstantial evidence has been reiterated by the Supreme Court in number of cases. In the matter of Bodhraj v. State of J&K (2002) 8 SCC 45 [LQ/SC/2002/898] the Supreme Court has quoted a number of judgments and held as under:-

“10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incrimi- nating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99, [LQ/SC/1977/71] Eradu v. State of Hyderabad AIR 1956 SC 316 [LQ/SC/1955/94] , Earabhadrappa v. State of Kar-nataka (1983) 2 SCC 330, [LQ/SC/1983/82] State of U.P. v. Sukhbasi 1985 Supp SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 [LQ/SC/1986/487] and Ashok Kumar Chatterjee v. State of M.P. 1989 Supp (1) SCC 560) 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 con- nected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR 1954 SC 621 [LQ/SC/1954/21] it was laid down that where the case depends upon the con- clusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the inno- cence of the accused and bring home the offences beyond any reasonable doubt.

11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, [LQ/SC/1996/1068] wherein it has been observed thus: (SCC pp. 206-07, para 21)

'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 na- ture. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circum- stances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.' ”

19. In the matter of of Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, [LQ/SC/2006/929] the Supreme Court held as under: (SCC p. 689, para 12)

“12. In the case in hand there is no eyewitness of the occur- rence and the case of the prosecution rests on circumstan- tial evidence. The normal principle in a case based on cir- cumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be in- capable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their inno- cence.”

20. The same principles were reiterated by the Supreme Court in the matters of Sunil Clifford Daniel v. State of Punjab (2012) 11 SCC 205, [LQ/SC/2012/796] Sampath Kumar v. Inspector of Police (2012) 4 SCC 124, [LQ/SC/2012/255] and Mohd. Arif v. State (NCT of Delhi) (2011) 13 SCC 621 [LQ/SC/2011/1041 ;] and a number of other decisions.

21. The trial Court in para 87 of its judgment has proved the chain of circumstances. The translated version of the said paragraph reads as follows :

“87. The prosecution has thus been able to prove the full range of circumstances which relate the accused to the offence, namely :-

1. It is undisputed that the deceased’s husband were four brothers, one of whom is accused Firuram and at present, except accused Firuram, the other three brothers have died.

2. It is also undisputed that oral partition has taken place between the four brothers, but the accounts have not been divided and the proceeding of immediate transfer of names of the deceased are pending in the Tehsil Court.

3. The son of the deceased and the heirs of the remaining brothers of the accused Firuram have sold the land of their joint ownership to the accused Firuram through Ex.D.-7.

4. The deceased and her son have also sold 6 decimals out of 13 decimals of their share of land in Bharri farm to accused Firuram through Ex.D-8.

5. The deceased had sold 8 decimals out of 90 decimals of her share of land in Limha Kanhar farm near the canal to the accused’s brother Hariram and this land is the disputed land, which the accused wanted to purchase from the deceased. But the deceased did not sell it to the accused but sold it to another brother of the accused, Hariram, whose son is Sitaram, and regarding this land, the accused was angry with the deceased and for giving consent to purchase the said land by Hariram, another person Ram Swaroop Sahu had mediated, then the accused had agreed.

6. It is absolutely clear from the evidence of the son of the deceased (PW-14) that in the night of the incident, at 9-9.30 pm, he had talked to his deceased mother on mobile in which the deceased had told him that the accused gets angry if he is asked to update the records and talks nonsense and the deceased was sleeping in the courtyard on that day due to the cooler being broken and it being summer time.

7. Next day at 6.30 in the morning, a person from his village called the son of the deceased and informed him that his mother had been murdered, which gets confirmed by the evidence of the deceased’s son and all the above witnesses and Doctors’ medical evidence, from which it is clear that the deceased was murdered by hitting her on the head with a sharp and solid object.

8. The information about the murder of the deceased was given by the accused Firuram and after the 10th day rituals of the deceased, the accused Firuram was interrogated and the iron Tessi was recovered from the accused himself.

9. Human blood was found in the towel, lying in the cot of the deceased at the time of the incident, the saree blouse and petticoat she was wearing and in the iron Tessi which was recovered from the accused, human blood was also found in it.

10. The accused has not given any explanation as to where the human blood came from in the iron Tessi kept hidden in his bathroom, whereas the deceased was his younger brother’s wife and lived near his house. In such a situation, the accused should have given an explanation as to how human blood came in an iron Tessi kept in the bathroom owned and occupied by him.”

22. Thus, from the above chain of circumstantial evidence, it is quite vivid that the accused was angry with the deceased for not selling her share of the land near the canal to him and when the accused was asked to come to Tahsil Court for mutation proceedings, he used to get angry on the deceased and due to these reasons accused Firuram himself entered the courtyard of the deceased’s house when she was sleeping on the cot in the courtyard of her house in the night of the incident and with the help of brick cutter (tessie) murdered the deceased by hitting her on the head. Thus, the prosecution has succeeded in proving beyond doubt the allegation against the accused that he entered the house of the deceased with an intention of killing the deceased on the night of the incident and killed the deceased by hitting her with brick cutter (tessie).

23. Similarly, after analyzing the above evidence, it has also been proved as circumstantial evidence that human sperm was found in the vaginal slide of the deceased on the night of the incident. Since it has become clear from the above that it is the accused who has committed the murder of the deceased, the only conclusion that can be drawn is that the accused has raped the deceased and caused her death by causing injury to the head of the deceased with brick cutter (tessie). Thus, the allegation against the appellant of raping the deceased on the night of the incident is also found proved beyond doubt.

24. According to the above, it has become clear that the accused has kept brick cutter (tessie) with which he had murdered the deceased and hidden the same in his bathroom in order to conceal the evidence. This proves beyond doubt that the accused had hidden brick cutter (tessie) in his bathroom only to protect himself from legitimate punishment of the crime of murder of the deceased. Thus, through circumstantial evidence, all the allegations against the accused are being proved beyond doubt.

25. Thus, from the above chain of circumstantial evidence, the prosecution has charged the accused with the crime of causing death of the deceased between 6 P.M. of 09.05.2022 and 6 A.M. of 10.05.2022, which is an offence punishable with death or life imprisonment to commit house trespass by breaking into the house of the deceased to rape the deceased against her will and without her consent being his sister-in-law, to cause death of the deceased with an intention of causing her death by brick cutter and concealing the same from lawful punishment for the offence of causing death of the deceased by hitting her on the head with a brick cutter and knowing that the death of the deceased has been caused, which is an offence punishable with death or imprisonment for life.

26. As such, the judgments relied upon by the learned counsel form the appellant i.e. Krishna Kumar Malik (supra), Surinder Pal Jain (supra), Balwan Singh (supra), Devi Lal (supra), Sujit Biswas (supra) and Ram Kumar Pande (supra) are not helpful to the accused and are distinguishable to the facts of the present case.

27. Considering the submissions advanced by the learned counsel for the parties, taking into consideration the evidence adduced by the prosecution and material available on record, we are satisfied that the prosecution has been able to prove its case beyond reasonable doubt that it is the appellant who after committing house trespass by breaking into the house of the deceased committed rape on the deceased and thereafter caused her death and concealed the alleged weapon (brick cutter) and the trial Court has rightly convicted the appellant for offence under Sections 450, 302, 376(2)(p) and 201 IPC.

28. For the foregoing reasons, the criminal appeal filed on behalf of appellant - Firuram Sahu is dismissed. He is in jail, he shall serve out the sentence as ordered by the concerned trial Court.

29. The trial Court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.