JUDGMENT ON BOARD Sanjay K. Agrawal, J. 1. The present Criminal Appeal under Section 374(2) of the Code of Criminal Procedure (in short ‘CrPC’) has been preferred by the three Appellants herein i.e., A-1 Jaswant Dewar, A-2 Rajkumar Pal and A-3 Ajuba Dewar, assailing Judgment & Order dated 16.10.2015 passed by learned Second Additional Sessions Judge, Durg (in short ‘Trial Court’) in Sessions Case No.190/2014, by which each of them has been convicted for the offences punishable under Sections 382, 460 and 302 read with Section 34 of the Indian Penal Code (in short ‘IPC’) and sentenced as under:- Conviction Sentence 1. Under Section 382 of IPC. 1. Rigorous Imprisonment for 10 years. 2. Fine of Rs.250/- 3. In default of payment of fine, to undergo additional Six months’ Rigorous Imprisonment. 2. Under Section 460 of IPC. 1. Rigorous Imprisonment for 10 years. 2. Fine of Rs.250/- 3. In default of payment of fine, to undergo additional Six months’ Rigorous Imprisonment. 3. Under Section 302/34 of IPC. 1. Rigorous Imprisonment for Life. 2. Fine of Rs.250/- 3. In default of payment of fine, to undergo additional Six months’ Rigorous Imprisonment. All substantive Sentences have been directed to run concurrently. Facts of the case, in brief: 2. The three Appellants herein were tried before the Trial Court for the aforesaid offences under Sections 382, 460 & 302/34 of IPC on the charges that on 1.8.2014 at about 12 O’clock in the midnight, in furtherance of their common intention, they committed trespass by entering into an under construction Maruti showroom situated at bypass road, Khapri Khar, Anjora within the jurisdiction of Police Station Pulgaon and in the course of which, caused death of two guards, Bahur Singh Thakur and Ashwani Kumar Dewangan, who were on their night duty at the said Maruti showroom, by use of hammer and iron jointer and thereafter stole iron jointers, aluminum strips etc., total amounting to Rs.20,000/-, thereby committed the aforesaid offences. 3. The matter was reported by PW-1 Hariram Sinha, who also said to have been working as a guard in the said under construction Maruti showroom. According to him, on 2.8.2014, he attended his duty at 7:00 am and during the course of his duty when he reached at the spot, he found ensanguined dead-bodies of two guards, Bahur Singh Thakur and Ashwani Kumar Dewangan, lying there covered with pant, shirt and bicycle. According to him, on 2.8.2014, he attended his duty at 7:00 am and during the course of his duty when he reached at the spot, he found ensanguined dead-bodies of two guards, Bahur Singh Thakur and Ashwani Kumar Dewangan, lying there covered with pant, shirt and bicycle. He informed the incident to PW-2 Bhupendra Singh Thakur (PW-2), son of deceased Bahur Singh Thakur, who came to the spot and identified the dead body of his father and then the matter was reported to the police. Dehati Nalishi was prepared by Exhibit P-1 and Sketch Map of the occurrence site was prepared vide Exhibit P-28. Dehati Merg Intimations were recorded vide Exhibits P-2 & P-3 in respect of deceased Bahur Singh Thakur and Ashwani Kumar Dewangan and sent to Police Station Pulgaon where Merg Intimations were recorded vide Exhibits P-44 & P-45 and FIR was registered vide Exhibit P-12. Witnesses were summoned vide Exhibit P-24 and Inquest Panchnama was prepared vide Exhibit P-25. Vide Exhibit P-26, blood-soaked & plain soil and bicycle were seized from the place of incident. Similarly, vide Exhibit P-29, torches, an iron jointer, shawls etc., were recovered from the spot. 4. Dead-bodies of two deceased persons were subjected to post-mortem. PW-16 Dr. B.N. Dewangan, conducted post-mortem examination of deceased Ashwani Kumar Dewangan vide Exhibit P-15(A) and opined his cause of death to be due to ante-mortem head injuries and the nature of death to be homicidal. Similarly, PW-14 Dr. R.K. Nayak conducted post-mortem examination of deceased Bahur Singh Thakur vide Exhibit P-51(B) in which his cause of death has been opined to be shock due to extensive head and visceral injuries and fractures. Nazri Naksha was prepared by Patwari (PW-6) vide Exhibit PW-31. 5. Statement of the complainant PW-1 Hariram Sinha and other witnesses conversant with the facts of the case was recorded. On basis of secret information and on suspicion, the three Appellants herein were nabbed and their memorandum statement was recorded. Pursuant to memorandum statement (Exhibit P-5) of A-1 Jaswant Dewar, iron jointers were seized vide Exhibit P-8, hammer was seized vide Exhibit P-11 and a bicycle and his clothes were recovered vide Exhibit P-13. Similarly, pursuant to memorandum statement (Exhibit P-6) of A-2 Rajkumar Pal, also certain iron jointers were recovered vide Exhibit P-9 and a bloodstained iron jointer was seized vide Exhibit P-14. Similarly, pursuant to memorandum statement (Exhibit P-6) of A-2 Rajkumar Pal, also certain iron jointers were recovered vide Exhibit P-9 and a bloodstained iron jointer was seized vide Exhibit P-14. Further, pursuant to the memorandum statement of A-3 Ajuba Dewar recorded vide Exhibit P-7, aluminum strips were seized vide Exhibit P-10, an iron rod was recovered vide Exhibit P-12 and a bicycle and his clothes were also seized vide Exhibit P-15. 6. The seized articles were sent for chemical analysis to the Forensic Science Laboratory (in short ‘FSL’). In the FSL report (Exhibit P-51), human blood was found on the soil (A & B) seized from the spot; full-pant (D1) and shirt (D2) of deceased Bahur Singh Thakur; full-pant (E1), shirt (E2), vest (E3), underwear (E4) and thread (E6) belonging to deceased Ashwani Kumar Dewangan and on the pant (G) of A-1 Jaswant Dewar. Whereas, blood was found on the vest (D3) of deceased Bahur Singh Thakur; belt (E5) of deceased Ashwani Kumar Dewangan; hammer (F) recovered from A-1 Jaswant Dewar; iron rod (H) & pant (I) seized from A-3 Ajuba Dewar as well as on the iron jointer (J) recovered from A-2 Rajkumar Pal. Fingerprints found on the spot were examined by PW-8 Dr. S.K. Jain, Fingerprint Expert, who vide his report Exhibit P-36 opined that fingerprints (S-1-A) on Exhibit P-40 were identical to that of A-3 Ajuba Dewar. 7. After completion of the investigation, the Appellants were charge-sheeted before the concerned Magistrate Court from where the matter, being triable by the Sessions Court, committed to the Trial Court where charges were framed against the Appellants for the offences punishable under Sections 382, 460 & 302/34 of IPC which were read out and explained to the Appellants who abjured their guilt, took a plea of false implication and entreated for trial. 8. During the course of trial, in order to bring home the offence, the prosecution examined as many as 16 witnesses as PW-1 to PW-16 and exhibited 51 documents vide Exhibits P-1 to P-51(B). Statement of the accused Appellants was recorded under Section 313 of CrPC, in which they denied the circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication. In defence, Jaswant Dewar and Ajuba Dewar have been examined as DW-1 & DW-2 resepctively and the statement of Khemlal Verma has been relied upon as Exhibit D-1. 9. In defence, Jaswant Dewar and Ajuba Dewar have been examined as DW-1 & DW-2 resepctively and the statement of Khemlal Verma has been relied upon as Exhibit D-1. 9. After conclusion of the trial, the Trial Court, by impugned Judgment & Order dated 16.10.2015, on appreciation of the evidence available on record, both oral and documentary, found the Appellants guilty of the offences punishable under Sections 382, 460 & 302/34 of IPC and accordingly convicted and sentenced them in the manner as mentioned at the table shown in the opening paragraph of this Judgment, which led to filing of the present appeal by the Appellants. Submissions of learned Counsel for parties: 10. Mrs. Indira Tripathi, learned Counsel appearing for A-1 Jaswant Dewar and A-3 Ajuba Dewar, would submit that PW-3 Bhupendra Singh Thakur has not seen A-1 Jaswant Dewar and A-3 Ajuba Dewar entering into the under construction Maruti showroom. Further, the conviction of A-3 Ajuba Dewar is based on the report (Exhibit P-36) of the Fingerprint Expert, PW-8 Dr. S.K. Jain, which is not a substantive of piece of evidence and in absence of corroborative evidence, his conviction for the offence punishable under Section 302 of IPC could not have recorded by the Trial Court. Furthermore, the iron jointers and hammer seized from A-1 Jaswant Dewar and the iron rod and aluminum strips seized from the possession of A-3 Ajuba Dewar have not been identified by PW-5 Shashank Shes and the owner of those articles have also not been examined, hence, the seizure would not come to the rescue of the prosecution. Moreover, in the FSL report (Exhibit P-51), only blood has been found on the hammer recovered from A-1 Jaswant Dewar and on the iron rod & pant seized from A-3 Ajuba Dewar, therefore, only on the basis that blood has been found on those articles sans human blood, the conviction of the said two Appellants would not be made out in absence of other corroborative piece of evidence. In addition, though human blood has been found on the pant of A-1 Jaswant Dewar but in absence of serologist report or any other evidence showing that the blood found on the said pant was of the blood group of the deceased persons, the said seizure also would be of no consequence. In addition, though human blood has been found on the pant of A-1 Jaswant Dewar but in absence of serologist report or any other evidence showing that the blood found on the said pant was of the blood group of the deceased persons, the said seizure also would be of no consequence. Thus, learned Counsel appearing for A-1 Jaswant Dewar and A-3 Ajuba Dewar would submit that in view of the said facts and circumstances and also looking to the fact that the said two Appellants are in jail since 4.8.2014, they are entitled for acquittal on the basis of benefit of doubt and their appeal deserves to be allowed. 11. Mr. B.P. Singh, learned Counsel appearing for A-2 Rajkumar Pal, would submit that PW-3 Bhupendra Singh Thakur is not a reliable witness and that the iron jointers seized from A-2 Rajkumar Pal have not been identified by the owner of the property. Further, in the FSL report, only blood has been found on the iron jointer seized from A-2 Rajkumar Pal and, in absence of human blood, recovery of the said iron jointer stained with blood would be of no use to the prosecution in light of the decision of the Supreme Court rendered in the matter of Balwan Singh v. State of Chhattisgarh, (2019) 7 SCC 781 . He would thus submit that A-2 Rajkumar Pal, who is in jail since 4.8.2014, also deserves to be acquitted from the offences charged with extending him the benefit of doubt and allowing his appeal. 12. Mr. Arvind Dubey, learned Government Advocate, appearing for the State, however, would support the impugned Judgment & Order and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court has rightly convicted the three Appellants herein for the said offences on the basis of incriminating circumstances that have been culled out by the Trial Court. The contentions raised by learned Counsel appearing for the Appellants as such deserves to be rejected and the appellants do not deserve for acquittal on the basis of benefit of doubt and their appeal is liable to be dismissed. Discussion and Legal Analysis: 13. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 14. Discussion and Legal Analysis: 13. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 14. The first and foremost question, as to whether the death of deceased Bahur Singh Thakur and Ashwani Kumar Dewangan was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of PW-14 Dr. R.K. Nayak who has conducted the post-mortem examination of deceased Bahur Singh Thakur vide Exhibit P-51(B) in which his cause of death has been opined to be shock due to extensive head and visceral injuries and fractures and also the statement of PW-16 Dr. B.N. Dewangan, who has conducted post-mortem examination of deceased Ashwani Kumar Dewangan vide Exhibit P-15(A) and opined his cause of death to be due to ante-mortem head injuries and the nature of death to be homicidal. The said finding of the Trial Court, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. We, accordingly, affirm the said finding of the Trial Court, holding that the death of deceased Bahur Singh Thakur and Ashwani Kumar Dewangan was homicidal in nature. 15. Now, since the case of the prosecution is not based on direct evidence rather on circumstantial evidence, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Sharad Birdhi Chand Sarda v. State of Maharashtra, (1984) 4 SCC 116 in which the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been catalogued in paragraph-153 which reads 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. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' 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 v. State of Maharashtra, (1973) 2 SCC 793 , where the following observations were made: 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, (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.” 16. The Trial Court in paragraph-43 of the impugned Judgment has culled out the following incriminating circumstances on which conviction of the three Appellants herein has been found proved:- 17. We will consider the correctness of the aforesaid incriminating circumstances culled out by the Trial Court, one by one. First Incriminating Circumstance: 18. Insofar as the first incriminating piece of circumstances is concerned, it relates to the testimony of PW-3 Bhupendra Singh Thakur, who is son of Bahur Singh Thakur one of the two deceased persons, and is said to have seen the three Appellants going towards the place of incident i.e., Maruti showroom, in the midnight on the date of offence. However, a perusal of paragraph-8 of his statement, would show that he has stated that when he left his duty on 1.8.2014 at 12 O’clock in the midnight, he saw the three Appellants going towards Maruti showroom and he identified the Appellants when the police had called him for identification of the accused persons. However, a perusal of paragraph-8 of his statement, would show that he has stated that when he left his duty on 1.8.2014 at 12 O’clock in the midnight, he saw the three Appellants going towards Maruti showroom and he identified the Appellants when the police had called him for identification of the accused persons. However, in his cross-examination, he has admitted the fact that he has not seen any of the Appellants to have committed the offence and further he has stated that at 12 O’clock in the midnight when he was returning from Topworth Steel Company where he was working, it was a very dark night and it was extremely difficult to identify any person in such a dark night. Thus, even if we accept the testimony of PW-3 Bhupendra Singh Thakur as it is, it would reveal that he has only seen the Appellants going towards Maruti showroom but he did not see any of the Appellants either entering into the Maruti showroom where the incident has taken place or the Appellants were seen by him near the spot where the two deceased persons were found dead. In that view of the matter, the theory of last-seen-together found proved by the Trial Court is not established at all, more particularly when according to PW-3 Bhupendra Singh Thakur himself, it was a quite a dark night and it was very difficult to identify any person in such a dark night. Second Incriminating Circumstance: 19. This incriminating circumstance relates to the fingerprint report (Exhibit P-36), submitted by PW-8 Dr. S.K. Jain, the Fingerprint Expert, in which the fingerprints of middle finger of the left hand of A-3 Ajuba Dewar have been found to be matching with the glass door of Maruti showroom where the incident has occurred. It was opined as under:- 20. The Supreme Court in the matter of Hari Om alias Hero v. State of Uttar Pradesh, (2021) 4 SCC 345 has relied upon the decision rendered in Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99 wherein it was held that the only circumstance against the accused concerned pertained to his fingerprints on a mirror. That circumstance by itself was not found to be sufficient by this Court to sustain the finding of guilt under Section 302 of IPC against the accused. 21. That circumstance by itself was not found to be sufficient by this Court to sustain the finding of guilt under Section 302 of IPC against the accused. 21. Similarly, in the matter of Mahmood v. State of U.P., (1976) 1 SCC 542 the Supreme Court has held that even if it is assumed that the weapon bore the finger-prints of the appellant, then also it would not inexorably and unmistakably lead to the conclusion that the appellant, and none else was the murderer, unless it was firmly proved further that the fatal injury to the deceased was caused with that weapon. It was held in paragraph-19 thus: “19. Lastly, it may be observe that Inspector Daryao Singh, P.W. 15, has not given any reasons in support of his opinion. Nor has it been shown that he has acquired special skill, knowledge and experience in the science of identification of finger-prints. It would be highly unsafe to convict one of a capital charge without any independent corroboration, solely on the bald and dogmatic opinion of such a person, even if such opinion is assumed to be admissible under Section 45, Evidence Act.” 22. Likewise, the Supreme Court in the matter of Mohd. Aman & Anr. v. State of Rajasthan, (1997) 10 SCC 44 relying upon Sections 4 & 5 of the Identification of the Prisoners Act, held that it is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. 23. In the matter of Santa Singh v. State of Punjab, AIR 1956 SC 526 the Supreme Court has held that if there exists a suspicious delay in sending the sealed parcel to the expert, the result is vitiated. 24. Further, in the matter of Amarjit Singh alias Babbu 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. 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.” 25. In the instant case, the Investigating Officer, PW-13 S.L. Kashyap, in paragraph 25 of his cross- examination, has clearly stated that he has only taken thumb impression of the Appellants vide Exhibits P-40, 41 & 43 and sent it for fingerprint examination to the Fingerprint Expert, but the Court’s permission was not taken. He has also admitted that for sending the thumb impression to the Fingerprint Expert for examination, he has not prepared/filed any memo in that regard and while sending Exhibits P-40, 41 & 43 for fingerprint examination whether they were sealed or not, the said fact has also not brought on record by him. PW-8 Dr. S.K. Jain, the Fingerprint Expert, has admitted that the negative of the photograph of the thumb impression was not available to him and it was available with the photographer who has taken the photograph of the thumb impressions and that photographer was of the police department. However, the glass door and other articles on which the fingerprints of A-3 Ajuba Dewar were taken, were neither sealed nor produced before the Court. According to PW-8 Dr. S.K. Jain, the fingerprints were taken on 2.8.2014 and were sent for examination on 5.8.2014 and there was no reason for the delay occurred in sending the fingerprints for examination. However, the glass door and other articles on which the fingerprints of A-3 Ajuba Dewar were taken, were neither sealed nor produced before the Court. According to PW-8 Dr. S.K. Jain, the fingerprints were taken on 2.8.2014 and were sent for examination on 5.8.2014 and there was no reason for the delay occurred in sending the fingerprints for examination. Thus, for all these reasons and in view of the decisions of the Supreme Court refereed to herein-above, since the evidence of the Fingerprint Expert is not substantive piece of evidence but is a corroborative piece of evidence, the report (Exhibit P-36) submitted by the Fingerprint Expert, PW-8 Dr. S.K. Jain, cannot be relied upon as one of the circumstances in the chain of circumstantial evidence to establish the guilt of A-3 Ajuba Dewar. Third & Fourth Incriminating Circumstances: 26. With regard to these incriminating piece of circumstances, from A-1 Jaswant Dewar iron jointers were seized vide Exhibit P-8; from A-2 Rajumar Pal, iron jointers were recovered vide Exhibit P-9 and an iron jointer was seized vide Exhibit P-14 and from A-3 Ajuba Dewar, aluminum strips were seized vide Exhibit P-10 and an iron rod was recovered vide Exhibit P-12. However, all those stolen articles have not been identified by PW-5 Shashank Shes and the owner of those articles have also not been examined. PW-5 Shashank Shes has stated that he has only signed the Seizure Memo (Exhibit P-27). The Investigating Officer, PW-13 S.L. Kashyap, has admitted in his statement that the owner of the stolen articles has not been examined. Thus, even if seizure of those articles is proved but since the owner of the stolen articles has not been examined and the identity of those articles has not been proved, conviction of the three Appellants herein on the basis of seizure of those articles cannot be said to be justified. 27. Furthermore, though in the FSL report (Exhibit P-51), blood has been found on the hammer (F) seized from A-1 Jaswant Dewar; iron rod (H) & pant (I) seized from A-3 Ajuba Dewar and iron jointer (J) seized from A-2 Rajkumar Pal but, in absence of human blood, recovery of those articles would be of no use to the prosecution in light of Balwan Singh (supra). Similarly, only on the basis that human blood has been found on the pant (G) of A-1 Jaswant Dewar, in light of Raja Naykar v. State of Chhattisgarh, 2024 SCC OnLine SC 67 no conviction can be based only on the sole basis of recovery of bloodstained article. Conclusion: 28. Accordingly and in view of the aforesaid discussion of evidence, this Criminal Appeal is allowed. Consequently, the conviction and sentence of the three Appellants herein for the offences punishable under Sections 382, 460 & 302/34 of IPC are set-aside and they stand acquitted of the said charges on the basis of the benefit of doubt. All the Appellants are in jail since 4.8.2014. They be released from jail forthwith, if their detention is not required in connection with any other offence. 29. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment for information and necessary action, if any, at the earliest.