Full Judgment Text
REPORTABLE
2025 INSC 256
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1258-1259 OF 2015
STATE OF CHHATTISGARH …APPELLANT(S)
VERSUS
ASHOK BHOI ETC. …RESPONDENT(S)
J U D G M E N T
1. The present set of two appeals have been filed by
the State of Chhattisgarh challenging the impugned common
judgment and order passed by the High Court of
Chhattisgarh at Bilaspur in Criminal Appeal No.601 of
2007 and Acquittal Appeal No.1 of 2009, whereby the High
Court has allowed the Criminal Appeal No.601 of 2007
filed by the respondent – accused – Ashok Bhoi, and has
acquitted him from the charges levelled against him, and
dismissed the Acquittal Appeal No.1 of 2009 preferred by
the State against the acquittal of the respondent –
accused – Vikash Khubwani.
2. As per the case of the prosecution, the PW-1 –
Signature Not Verified
Digitally signed by
RAVI ARORA
Date: 2025.03.04
17:21:43 IST
Reason:
Uttamlal had two sons - Swapnil and Suhash (deceased). On
15.01.2006, Swapnil had gone somewhere out and had not
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returned, and therefore, the father - Uttamlal (PW-1)
sent his second son - Suhash to find him out. After
sometime, Swapnil came back home, however, Suhash did not
return. At about 9.00 p.m., a telephone call was received
on the mobile phone of Swapnil, demanding a ransom of
Rs.2 lakhs for getting Suhash back. Since Suhash did not
return home, an F.I.R. was lodged by the father –
Uttamlal in the Police Station Bhilai at about 10.45 p.m.
3. It appears that there were two juvenile accused,
i.e., Jivrakhan and Ukesh, who were taken into custody on
the basis of suspicion and from their statements, further
investigation was carried out. Thereafter at the instance
of the juvenile offender – Jivrakhan, the dead body of
the deceased was found in an abandoned house on
17.01.2006. On the further investigation carried out, the
respondent – accused – Ashok Bhoi was taken into custody
and recovery of blood-stained blade, nails & T-shirt were
made at his instance from the room of the house from
where the dead body was found. On the basis of
disclosure statement made by the co-accused, other
respondent – accused – Vikash Khubwani was also arrested.
4. It appears that the trial of the two juvenile
accused was separated. So far as the present respondents-
accused were concerned, the Sessions Court being the
Fifth Additional Sessions Judge, Durg (C.G.), after
appreciating the evidence on record adduced by the
prosecution convicted the accused – Ashok Bhoi for the
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offences under Sections 364-A and 302 of IPC, and
acquitted the accused – Vikash Khubwani, vide the
judgment and order dated 29.06.2007. The two appeals as
stated above were preferred by the accused – Ashok Bhoi
and the State of Chhattisgarh, which came to be disposed
of vide the impugned judgment and order.
5. Though, it is sought to be submitted by the learned
counsel appearing for the appellant – State that the High
Court had misappreciated the evidence on record and
committed gross error in acquitting both the accused, it
is difficult to accept his submission.
6. Admittedly, the entire case of the prosecution
hinged on the circumstantial evidence, because there was
no eye-witness to the alleged incident. Much reliance
has been placed on the evidence of PW-18, who had seen
the deceased alongwith the accused – Ashok Bhoi at about
6-7 p.m. on the date of the incident, i.e., 15.06.2006.
Reliance has also been placed on the recovery of the
blade and nails & T-shirt with blood stains made at the
instance of the accused – Ashok Bhoi.
7. At the outset, it may be noted that there was no
evidence whatsoever produced by the prosecution to prove
the guilt of the accused - Vikash or to connect him with
the alleged crime and therefore, the High Court has
rightly confirmed the judgment and order of acquittal
passed by the Trial Court.
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8. So far as the accused – Ashok Bhoi is concerned, it
is significant to note that except the theory of “last
seen together”, there was hardly any reliable evidence
adduced by the prosecution, to prove the charges levelled
against the accused. Though, it is true that the PW-18
had stated that he had seen the accused Ashok Bhoi with
the deceased in the evening on the day of incident, the
said evidence alone would not be sufficient to hold him
guilty of the alleged offence. As rightly held by the
High Court, even the concerned person from the STD-PCO
was not examined to substantiate the allegation that the
phone call was made by the respondent – accused – Ashok
Bhoi. The recovery of blade, nails and T-shirt with
blood stains after two days of the incident also does not
inspire any confidence.
9. Undoubtedly, as per Section 106 of the Evidence
Act, the burden of proof lies on the person who has
special knowledge of a specific fact. The entire theory
of “last seen together” is based on Section 106 of the
Evidence Act. It is also true that if the prosecution
proves by leading reliable evidence that the accused was
last seen with the deceased, the burden would be shifted
on the accused to explain the said incriminating evidence
either in his statement under Section 313 of Cr.P.C. or
by leading evidence in his defence or even by bringing
out the facts during the course of cross examination of
the prosecution witnesses. The accused’s failure to
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present evidence on his behalf may be treated by the
court as confirming the presumptions that may arise
therefrom, nonetheless, that presumption alone, taking
recourse to Section 106, would not be sufficient to
convict an accused. The prosecution has to discharge its
burden to prove the other circumstances in the case based
on circumstantial evidence, to prove the guilt of the
accused beyond reasonable doubt by leading cogent and
clinching evidence.
10. It is true that Justice cannot be made sterile on
the plea that it is better to let hundred guilty escape
than punish an innocent. Letting guilty escape on
fanciful doubts is not doing justice according to law.
However, it is also well settled that suspicion howsoever
strong cannot take place of proof. In the case based on
circumstantial evidence, the entire chain of
circumstances must be clearly established by the
prosecution by leading clinching and reliable evidence,
and the circumstances so proved must form a chain of
events from which only irresistible conclusion that could
be drawn, should be the guilt of the accused and no other
hypothesis against the guilt.
11. The High Court having rightly appreciated the
evidence as well as the legal position, we do not find
any illegality or infirmity in the judgment and order
passed by the High Court.
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12. In that view of the matter, both the appeals
deserve to be dismissed and are accordingly dismissed.
13. Pending application(s), if any, shall stand
disposed of.
......................J.
(BELA M. TRIVEDI)
......................J.
(PRASANNA B. VARALE)
NEW DELHI;
TH
27 FEBRUARY, 2025.
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