THE STATE OF CHATTISGARHversusASHOK BHOI ETC.

          [2025] 2 S.C.R. 1785 : 2025 INSC 256

                 The State of Chattisgarh
                            v.
                     Ashok Bhoi Etc.
         (Criminal Appeal No(s). 1258-1259 of 2015)
                        27 February 2025
    [Bela M. Trivedi and Prasanna B. Varale, JJ.]


                     Issue for Consideration
Whether the High Court was justified in allowing the criminal appeal
preferred by accused-respondent and dismissing acquittal appeal
preferred by the State, thereby acquitting both the accused persons.

                            Headnotes†
Code of Criminal Procedure, 1973 – Whether the prosecution
established entire chain of circumstances to prove the guilt of
the accused persons as the case is based on Circumstantial
Evidence – Correctness:
Held: The entire case of the prosecution hinged on the circumstantial
evidence, there was no eye-witness to the alleged incident – So
far as accused-AB is concerned, prosecution relied on evidence
of PW-18, who had seen the deceased alongwith the accused
at the date of incident and 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-AB – 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, said evidence alone would not be sufficient to hold him
guilty of the alleged offence – The accused’s failure to 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 – Moreover, the recovery of blade,
nails and T-shirt with blood stains after two days of the incident
also does not inspire any confidence, thus, the prosecution failed to
establish entire chain of circumstances that would lead to the guilt
of the accused – There was no evidence whatsoever produced by
the prosecution to prove the guilt of the accused-V or to connect
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                          Supreme Court Reports


     him with the alleged crime therefore, the High Court has rightly
     confirmed the judgment of acquittal for V – Thus, 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 passed by
     High Court. [Paras 6, 8, 9, 10, 11]

                                 List of Acts
     Penal Code, 1860; Code of Criminal Procedure, 1973.

                              List of Keywords
     Circumstantial Evidence; Last seen theory; Prove the guilt of the
     accused beyond reasonable doubt.

                             Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
     1258-1259 of 2015
     From the Judgment and Order dated 19.10.2012 of the High
     Court of Chhattisgarh at Bilaspur in CRA No. 601 of 2007 and
     AA No. 1 of 2009

                         Appearances for Parties
     Advs. for the Appellant:
     Ravi Sharma, D.A.G., Prashant Singh.
     Advs. for the Respondents:
     Rajeev Kumar Bansal, Arun Kumar Arunachal, Vikas Singh Jangra.

                Judgment / Order of the Supreme Court

                                 Judgment

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.
[2025] 2 S.C.R.                                                       1787

               The State of Chattisgarh v. Ashok Bhoi Etc.


2.   As per the case of the prosecution, the PW-1 – Uttamlal had two
     sons - Swapnil and Suhash (deceased). On 15.01.2006, Swapnil had
     gone somewhere out and had not 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 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 – Ashok
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     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.
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 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.
[2025] 2 S.C.R.                                                           1789

                  The State of Chattisgarh v. Ashok Bhoi Etc.


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.
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.

     Result of the case: Appeals Dismissed.




     †
         Headnotes prepared by: Gaurav Upadhyay, Hony. Associate Editor
                                 (Verified by: Shadan Farasat, Sr. Adv.)