JUDGMENT : [Sanjay K. Agrawal, J.] 1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant against impugned judgment dated 16/08/2013 passed by learned Sessions Judge, Raipur in Sessions Trial No. 141/2012 whereby he has been convicted for offence punishable under Sections 302 (two times) and 450 of IPC and sentenced to undergo life imprisonment with fine of Rs. 5000/- (twice) and in default of payment of fine, further R.I. for 2 months; and R.I. for 5 years with fine of Rs. 2000/- and in default of payment of fine, further R.I. for 2 months, respectively. 2. Case of the prosecution, in brief, is that on 17/02/2012, the appellant herein murdered Smt. Seema Rajput, wife of Krishna Singh (P.W.-2) at her house and also caused the death of her minor son Shivam alias Chintu and thereby, committed the aforesaid offences. 3. It is admitted position on record that Sahdev Singh (P.W.-1), father of deceased Smt. Seema Rajput as well as her husband Krishna Singh (P.W.-2), both worked as Labour and Driver at S.K.S. Company, Siltara and stayed at a house that the company provided to its employees in labour colony wherein deceased Smt. Seema Rajput and Shivam also stayed with them. It is also admitted position on record that deceased Smt. Seema Rajput used to run a kirana shop from her house. 4. Further case of the prosecution is that on 17/02/2012 at about 8 AM, Sahdev Singh (P.W.-1) and Krishna Singh (P.W.- 2), both had gone to work and meanwhile, deceased Smt. Seema Rajput was at home along with her son Shivam. At about 08:30 PM, Sahdev Singh (P.W.-1) returned to his home from work and found that the house was locked from outside. He looked nearby and when he could not find his daughter Smt. Seema Rajput, he thought she must have gone nearby to do some work and so he waited outside. Thereafter, at 9 PM, his son-in-law Krishna Singh (P.W.-2) also returned from work. As they were waiting outside, after some time, they heard the whining sounds of Shivam coming from inside the house. When they looked inside from the window, they saw that Smt. Seema Rajput was lying on the floor soaked in blood and Shivam was lying on bed. Thereafter, at 9 PM, his son-in-law Krishna Singh (P.W.-2) also returned from work. As they were waiting outside, after some time, they heard the whining sounds of Shivam coming from inside the house. When they looked inside from the window, they saw that Smt. Seema Rajput was lying on the floor soaked in blood and Shivam was lying on bed. With the help of neighbours, they broke the lock and went inside and saw that there was blood all over on the floor and Smt. Seema Rajput had suffered severe injuries on her head, eyes and face and she had already died, however, Shivam was alive but he had suffered injury on the back of his head. When they escorted Shivam to the hospital, he succumbed to death. 5. Upon receiving the information about the incident, Police reached the spot and registered dehati nalishi (Ex. P/1) and registered merg intimations with regard to Shivam vide Ex. P/2 and with regard to Smt. Seema Rajput vide Ex. P/3. Inquest was conducted vide Ex. P/4 and P/5 and their dead bodies were subjected to postmortem. Dr. S.K. Bagh (P.W.-5) conducted postmortem of deceased Seema Singh and he opined in the postmortem report (Ex. P/12) that cause of death was hemorrhage and shock as a result of multiple injuries on the head and nature of death was homicidal. Postmortem of deceased Shivam was conducted by Dr. Rajkumar Patel (P.W.-11) and as per the postmortem report (Ex. P/29), cause of death is also said to be hemorrhage and shock as a result of head injury and the death is said to be homicidal in nature. During investigation, a broken lock was seized from the spot vide Ex. P/11, a pair of blood stained slippers and a red coloured cotton gamchha were seized from the spot vide Ex. P/12, blood stained bangles of the deceased, wooden rolling pin, blood stained white shirt and two weights of 1 kg each were seized from the spot vide Ex. P/13. After taking the appellant into custody, his memorandum statement was recorded vide Ex. P/6 and a key was seized from his possession vide Ex. P/7. From the said key, the lock placed on the house of the deceased was opened in front of witness Gaurishankar (P.W.-3) and panchnama was prepared vide Ex. P/8. P/13. After taking the appellant into custody, his memorandum statement was recorded vide Ex. P/6 and a key was seized from his possession vide Ex. P/7. From the said key, the lock placed on the house of the deceased was opened in front of witness Gaurishankar (P.W.-3) and panchnama was prepared vide Ex. P/8. The said seized articles were sent for FSL and human blood was found on weights, slippers and gamchha. After recording the statements of the witnesses and after due investigation, the appellant was charge-sheeted for offence punishable under Sections 302 (two times) and 450 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence. 6. In order to bring home the offence, prosecution examined as many as 12 witnesses and brought on record 30 documents. Statement of the appellant under Section 313 of CrPC was recorded wherein he denied guilt, however, he examined none in his defence and only brought 1 document on record. 7. Learned trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for offences punishable under Sections 302 (two times) and 450 of IPC and sentenced them as aforesaid. 8. Mrs. Ranjana Jaiswal, learned counsel for the appellant, would submit that the trial Court has erred in convicting the appellant for the aforesaid offences as the key allegedly seized vide Ex. P/7 pursuant to the memorandum statement of the accused has been seized from an open place which is accessible to one and all and moreover, Krishna Singh (P.W.-2) has himself stated that they called their neighbours and after breaking the lock, he entered inside the house, as such, the said lock could not have been opened by the Police with the said key and therefore, this piece of incriminating circumstance, found proved by the trial Court, is inadmissible in evidence. She would further submit that the pair of slippers as well as cotton gamchha was seized from the appellant on 17/02/2012 vide Ex. P/10 and it was sent for FSL on 14/05/2012 vide Ex. P/27, however, it has not been proved by the prosecution that the said articles were sealed and kept in safe custody, as such, tampering with the said articles cannot be ruled out. P/10 and it was sent for FSL on 14/05/2012 vide Ex. P/27, however, it has not been proved by the prosecution that the said articles were sealed and kept in safe custody, as such, tampering with the said articles cannot be ruled out. Moreover, the two weights of 1 kg each were not recovered from the possession of the appellant pursuant to his memorandum statement, therefore, merely because human blood was found on it vide FSL report (Ex. P/30), the conviction of the appellant cannot be based on that. As such, the instant appeal be allowed and appellant be acquitted of the charges levelled against him. 9. Per contra, Mr. Sudeep Verma, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt and as such, the trial Court has rightly relied upon the circumstantial evidence and convicted the appellant for the aforesaid offences. Therefore, the instant appeal be dismissed. 10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 11. The first question for consideration would be, whether the death of both the deceased persons namely Smt. Seema Rajput and her son Shivam was homicidal in nature ? 12. Learned trial Court has recorded an affirmative finding in this regard and held that the death of both of the deceased persons is homicidal in nature relying upon their postmortem reports (Ex. P/12 and P/29) which have been proved by Dr. S.K. Bagh (P.W.-5) and Dr. Rajkumar Patel (P.W.-11), respectively. In both of their reports, cause of death is said to be hemorrhage and shock and nature of death is said to be homicidal. Looking to the severe injuries suffered by both the deceased persons as well as looking to their postmortem reports (Ex. P/12 and P/29) and the expert medical opinions of Dr. S.K. Bagh (P.W.-5) and Dr. Rajkumar Patel (P.W.-11), we are of the considered opinion that the trial Court has rightly held the death of Smt. Seema Rajput and her son Shivam to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court, more so, when it has not been seriously disputed by learned counsel for the appellant. 13. Rajkumar Patel (P.W.-11), we are of the considered opinion that the trial Court has rightly held the death of Smt. Seema Rajput and her son Shivam to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court, more so, when it has not been seriously disputed by learned counsel for the appellant. 13. The next question for consideration would be whether the trial Court has rightly held the appellant to be the author of the crime in question and convicted him for the aforesaid offences ? 14. There is no direct evidence available on record and the instant case is based on circumstantial evidence. The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 has laid down the five golden principles that constitute the panchsheel of the proof of a case based on circumstantial evidence, which state as under :- “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. XXX XXX XXX (2) the facts so established should be consistent only with the hypothesis of 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, (4) they should exclude every possible hypothesis except the one to be prove, 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.” 15. In the instant case, learned trial Court, in light of the decision rendered by the Supreme Court in Sharadchand Birdichand Sarda (supra) has found the following six circumstances proved against the appellant, which we will consider one by one :- ^^1- vfHk;qDr }kjk /kkjk 27 lk{; vf/kfu;e ds varxZr fn;k x;k Kkiu iz-ih-&6A 2- vfHk;qDr dh fu’kkunsgh ij pkch dh tIrh iz-ih-&10A 3- vfHk;qDr dh fu’kkunsgh ij iz-ih-&10 ds vuqlkj lkf{k;ksa ds le{k pIiy vkSj xeNs dh tIrhA 4- vfHk;qDr dh fu’kkunsgh ij tIr pkch ls rkyk [kksyus ds fo”k; esa iapukek iz-ih-&8 ,oa rkys dh tIrh dh dk;Zokgh iz-ih-&9A 5- ?kVukLFky ls ckVksa dh tIrh] tks [kwu vkywnk gksdj ?kVuk dkfjr djus esa gfFk;kj ds :i esa iz;qDr of.kZr gSA 6- mijksDr tIr pIiy] xeNs ,oa ckV ij jDr dk ik;k tkuk ,oa ik;s x;s jDr ds lewg dh e`frdk ds jDr ds lewg ls ,d:irkA^^ Circumstances No. 1, 2 and 3 :- 16. Pursuant to memorandum statement of the appellant vide Ex. P/6, a key was seized vide Ex. P/7 and a pair of slippers and cotton gamccha was seized from the appellant vide Ex. P/10 though it has been contended on behalf of the appellant that the said key was recovered from an open place. A careful perusal of Ex. P/7 would show that the said key was found in the shrubs grown near the drain. The said seizure has been proved by Gaurishankar (P.W.-3), who has stated before the Court that the key was recovered from the shrubs grown near the drain. Though it is an open place, but the key was found in the shrubs which cannot be said to be accessible to one and all. Gaurishankar (P.W.-3) has further stated that appellant himself took out the key from the shrubs, as such, recovery of key vide Ex. P/7 is established and the trial Court is justified in holding so. Similarly, vide Ex. P/10, a pair of slippers and a cotton gamchha has been recovered from the appellant's house, which has also been duly proved by Gaurishankar (P.W.-3), therefore, no exception can be taken herein also to dispute the recovery of the said articles vide Ex. P/10. Thus, the trial Court is justified in recording a finding that the first three circumstances have been found proved by the prosecution. Circumstance No. 4 :- 17. P/10. Thus, the trial Court is justified in recording a finding that the first three circumstances have been found proved by the prosecution. Circumstance No. 4 :- 17. It is the case of the prosecution that the key recovered vide Ex. P/7 pursuant to memorandum statement of the appellant was used to open the lock placed on the door of the house of deceased and the same has been recorded in panchnama (Ex. P/8). 18. The investigating officer Mohd. Asrar has been examined before the Court as P.W.-10. In his cross-examination, he has clearly admitted in paragraph 7 that he has mentioned in dehati nalishi (Ex. P/1) that Sahdev Singh (P.W.-1) and Krishna Singh (P.W.-2) entered the house after breaking the lock with the help of neighbours. A careful perusal of dehati nalishi (Ex. P/1) would also show that it has been clearly recorded therein that the house was locked from outside and Sahdev Singh (P.W.-1) and Krishna Singh (P.W.-2) took help from the neighbours to break the lock and thereafter, they entered inside the house. As such, it has been established from the aforesaid evidence available on record that the lock was already broken by Sahdev Singh (P.W.-1) and Krishna Singh (P.W.-2) on the date of the incident itself and once a lock has been broken by use of force, it would naturally become useless. Thus, this circumstance suffers from discrepancy and has not been duly established by the prosecution and therefore, the trial Court has clearly recorded an erroneous finding which is not based on evidence available on record and it is liable to be set aside. Circumstances No. 5 and 6 :- 19. Two blood-stained weights of 1 kg each were seized from the spot vide Ex. P/11 and pursuant to the memorandum statement of the appellant, a pair of slippers as well as a cottom gamchha were seized from his house vide Ex. P/10. These three articles were sent for FSL vide Ex. P/27 and as per the FSL report (Ex. P/30), human blood of A group was found on the weight and slippers whereas only human blood was found in the cotton gamchha as blood group could not be ascertained. P/10. These three articles were sent for FSL vide Ex. P/27 and as per the FSL report (Ex. P/30), human blood of A group was found on the weight and slippers whereas only human blood was found in the cotton gamchha as blood group could not be ascertained. However, it has been vehemently contended on behalf of the appellant that the seized articles, particularly, the slippers and the gamchha were not sealed properly and were not kept in safe custody, as such, they have been tampered with and there is serious infirmity and perversity in the finding recorded by the trial Court. 20. In this regard, the investigating officer Mohd. Asrar (P.W.-10) has admitted in paragraph 13 of his cross-examination that in property seizure memo (Ex. P/10), he has not recorded that he has kept the seized slippers and gamchha in a sealed condition. He has further admitted that he has not brought any document on record to show as to where the said seized articles were kept from the date of seizure i.e. 17/02/2012 till the date on which they were sent for FSL i.e. 14/05/2012 and though the seized articles are usually kept in malkhana but he has not brought malkhana register on record to prove the said fact nor has he examined the Police officer who maintains the records of malkhana so as to prove that the said articles were kept in the malkhana. 21. Seizure of the said articles vide Ex. P/10 has though been proved by Gourishankar (P.W.-3), however, he too has nowhere mentioned that the said articles were seized and thereafter, kept in a sealed condition. 22. Thus, it is quite established that though the investigating officer Mohd. Asrar (P.W.-10) has made a self-serving statement that the slippers and gamchha which were seized vide Ex. P/10 were sealed, but it has not been recorded in the seizure memo itself (Ex. P/10) and furthermore, it has not been proved by the prosecution that from the date of seizure till the date on which they were sent for FSL i.e. from 17/02/2012 to 14/05/2012, where the said seized articles were kept or if they were kept in safe custody at all. P/10) and furthermore, it has not been proved by the prosecution that from the date of seizure till the date on which they were sent for FSL i.e. from 17/02/2012 to 14/05/2012, where the said seized articles were kept or if they were kept in safe custody at all. It was the duty of the prosecution to adduce evidence that after seizure the articles were sealed and the prosecution should also have led link evidence to the effect that till being sent to the chemical analyst, the articles were kept throughout in a sealed condition. This should have been done to eliminate the suspicion that blood was not put on the articles subsequent to the recovery and prior to being sent to the Chemical Analyst. 23. In the matter of Amarjit Singh v. State of Punjab, 1995 Supp. (3) SCC 217, the Supreme Court has held that non-sealing of the revolver at the spot was a serious infirmity as the possibility of tampering could not be ruled out and observed in paragraph 7 as under :- “7. The entire prosecution case, thus, is clouded with number of infirmities which compel this Court not to accept such an unworthy evidence. These infirmities have been brushed aside by the Designated Court by observing that since the model number of the revolver was noted down, the non-sealing of the revolver or the handing over of the same to some other police official or a private person, who has not been examined are of no consequence. We are unable to agree and subscribe to this view in a case of this nature. The non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. The report of PW 4 that the weapon is capable of being fired is insignificant since it cannot be said with certainty as to what was the condition of the weapon at the time of the recovery, apart from the evidence of PW 4 that he did not test-fire the revolver.” 24. In that view of the matter, even though human blood has been found on the pair of slippers and gamchha vide FSL report (Ex. In that view of the matter, even though human blood has been found on the pair of slippers and gamchha vide FSL report (Ex. P/30), but no evidence has been brought on record to prove that the said seized articles were sealed and kept in safe custody and as such, it raises suspicion of tampering and the possibility that the said articles could have been tampered with, in between the date of seizure till the date on which they were sent for FSL, cannot be ruled out in light of the decision rendered by the Supreme Court in Amarjit Singh (supra) and thus, this piece of evidence is now of no use to the prosecution. 25. Now, the only circumstance that is left to be considered is the human blood that has been found on the weight seized from the spot vide Ex. P/11. Even if it is held to be one of the incriminating circumstances as human blood was found in the weapon of offence, but the panchsheel principles to prove a case based on circumstantial evidence as laid down by the Supreme Court in Sharadchand Birdichand Sarda (supra) would not be established as solely relying upon this piece of evidence, it cannot be held that appellant is the author of the crime in question. 26. In view of the aforesaid legal analysis, we are unable to sustain the conviction recorded and sentence awarded to the appellant vide the judgment impugned, therefore, the impugned judgment is hereby set aside and appellant is acquitted of the charges levelled against him. He be released forthwith, if his detention is not required in any other case. 27. Accordingly, this criminal appeal stands allowed.