BALWAN SINGHversusTHE STATE OF CHHATTISGARH AND ANR.

                          [2019] 11 S.C.R. 1                             1


                         BALWAN SINGH                                    A
                                  v.
          THE STATE OF CHHATTISGARH AND ANR.
                 (Criminal Appeal No. 727 of 2015)
                         AUGUST 06, 2019                                 B
 [N. V. RAMANA, MOHAN M. SHANTANAGOUDAR AND
                AJAY RASTOGI, JJ.]
       Penal Code, 1860: s.120-B and ss.148, 302/149– Case of the
prosecution that on account of previous enmity with the victim-
                                                                         C
deceased, the appellant was talking with the other accused regarding
preparation to kill him – Their conversation was heard by PW-11
and PW-12 – PW-9 and PW-16, who were near the scene of the
occurrence, rushed to the spot after hearing the cries of the victim,
and saw all the accused assaulting him with lathis and tabbal– Accused
convicted u/ss.148, 302/149 –Charges were framed u/s.120-B also          D
but, the accused were acquitted in respect of the said offence – On
appeal, held: Statements of the alleged eye witnesses, PW-9 and
PW-16 were recorded after eight days of the incident – Prosecution
tried to explain the delay in recording their statement – In normal
course, the Court would have accepted the explanation offered,
                                                                         E
but the facts in this case are different – PW-2 admitted that he had
seen PW-9 at the place of the incident when the police had come to
the village after the registration of the FIR – Thus, the IO knew very
well, on the first day itself, that PW-9 was an eye witness – There
was no reason as to why he did not record the statement of the so-
called eye witness at the earliest point of time – Whole story of the    F
prosecution about the presence of PW-9 and PW-16 at the time of
incident appears to be concocted – Prosecution also relied upon
the recovery of bloodstained sticks and tabbal – In the absence of
positive material indicating that the stained blood was of human
origin (even though the blood group was not proved because of
                                                                         G
disintegration of blood) and of the same blood group as that of the
accused, it would be difficult to rely upon the aspect of recovery of
the weapons– Further, all the accused were acquitted for the offence
of conspiracy, which means that there are concurrent findings of
the courts below that the prosecution failed to prove the aspect of
conspiracy of the accused to commit the murder of the deceased –         H
                                    1
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A   In view of the material on record which is shaky, suspicion arises in
    the mind of the Court about the genesis of the case of the prosecution
    – Impugned judgments of the Trial Court and the High Court set
    aside – Appellants to be released forthwith, if not required in any
    other case.
B         Criminal Trial – Delay in recording of the statement of eye
    witnesses – When does not raise suspicion – Discussed.
          Evidence– Recovery of bloodstained weapon– Burden to be
    discharged by the prosecution – Discussed.
          Allowing the appeals, the Court
C
           HELD: 1.1 Though the incident took place on 22nd January,
    2007, the statements of the alleged eye witnesses, namely, PW-9
    and PW-16, were recorded after eight days of the incident. The
    prosecution tried to explain the delay in recording the statement
    of the eye witnesses by contending that they were scared of the
D   accused, particularly the appellant who was the village Sarpanch
    (Panchayat Chairman); the appellant was stated to be powerful
    and influential; only after some of the accused were arrested,
    these witnesses came to the village and gave their statements to
    the police during the course of investigation. Mere delay in
E   recording of the statement of the eye witness by the investigating
    officer cannot ipso facto raise suspicion in the mind of the Court
    about the veracity of the prosecution case, more particularly, about
    the veracity of the eye witnesses. In the normal course, this Court
    would have accepted the explanation offered by the witnesses or
    the prosecution for not recording the statements at an earlier
F
    point in time, but the facts in this case are different inasmuch as
    it is admitted by the prosecution witnesses, more particularly by
    the investigating officer, that PW-9 was very much present in the
    village. PW-2 had admitted in the cross-examination that he had
    seen PW-9 at the place of the incident when the police had come
G   to the village after the registration of the First Information
    Report. PW-2 is none else but the younger brother of PW-9, and
    they were residing separately in one house. Thus, the evidence
    of PW-2 cannot be disbelieved insofar as it relates to the presence
    of PW-9 in the village, and on the spot when the police had started
H   investigation. PW-9, being the Patel of the village, could not have
     BALWAN SINGH v. THE STATE OF CHHATTISGARH                          3


kept the fact about the incident or about the complicity of the         A
accused from the investigating officer at the first instance, had
he really been an eye witness to the incident. There was no reason
as to why the investigating officer did not record the statement
of the so-called eye witness at the earliest point of time, more
particularly when, at that point in time, the investigating officer     B
did not have any clue about the murderers. The story, as put
forth by the prosecution, that PW-9 did not tell the investigating
officer about the presence of PW-16, is not believable. According
to PW-16, he came to the village Semaria after eight days, i.e.
after the arrest of a few accused, and gave the statement to the
police. [Para 6] [7-D-H; 8-A-E; 9-A-B]                                  C

      1.2 Evidence relating to recovery of bloodstained sticks
and tabbal may not be helpful to the prosecution in this case
inasmuch as there is no evidence to show that these articles were
stained with human blood, and more particularly with blood of
the same blood group as that of the deceased. As per the Forensic       D
Science Laboratory Report, the blood stains were disintegrated,
and their origin could not be determined. At times, it may be
very difficult for the serologist to detect the origin of the blood
due to the disintegration of the serum, or insufficiency of blood-
stains, or haematological changes etc. In such situations, the          E
Court, using its judicious mind, may deny the benefit of doubt to
the accused, depending on the facts and circumstances of each
case, if other evidence of the prosecution is credible and if
reasonable doubt does not arise in the mind of the Court about
the investigation. It may not always be possible to inextricably
                                                                        F
link the bloodstains on the items seized in recovery to the blood
of the deceased, due to the possibility of disintegration of
bloodstains on account of the time-lapse in carrying out the
recovery. If the recovery of bloodstained articles is proved beyond
reasonable doubt by the prosecution, and if the investigation was
not found to be tainted, then it may be sufficient if the prosecution   G
shows that the blood found on the articles is of human origin
though, even though the blood group is not proved because of
disintegration of blood. The Court will have to come to the
conclusion based on the facts and circumstances of each case,
and there cannot be any fixed formula that the prosecution has to       H
4           SUPREME COURT REPORTS                    [2019] 11 S.C.R.


A   prove, or need not prove, that the blood groups match. In the
    instant case, some reliance could have been placed on the
    recovery, had the prosecution at least proved that the blood was
    of human origin. The prosecution has tried to concoct the case
    from stage to stage. Hence, in the absence of positive material
B   indicating that the stained blood was of human origin and of the
    same blood group as that of the accused, it would be difficult for
    the Court to rely upon the aspect of recovery of the weapons and
    tabbal, and such recovery does not help the case of the
    prosecution. All the accused were acquitted for the offence of
    conspiracy, which means that there are concurrent findings of
C   both the courts below that the prosecution has failed to prove
    the aspect of conspiracy of the accused to commit the murder of
    the deceased. Once the conspiracy to commit the murder of the
    deceased is absent, there is no material on record to show as to
    why the accused had gathered in the house of the appellant. [Paras
D   8,9, 12-15] [9-E; 10-E; 12-C-D, F-H; 13-A-C]
          1.3 In view of the material which is shaky, suspicion arises
    in the mind of the Court about the genesis of the case of the
    prosecution. The impugned judgments of the Trial Court and the
    High Court are set aside. The appellants are directed to be
E   released forthwith, if not required in any other case. [Para 16]
    [13-D-E]
          1.4 The appellants in these appeals are Accused 1, Accused
    2 and Accused 7. Other accused in S.T. No. 57 of 2010 have not
    preferred an appeal. Since in respect of the appellants herein it
    is found that the prosecution has not proved the charges beyond
F
    reasonable doubt, the benefit of this judgment should also enure
    to the other accused who were convicted in S.T. No. 57 of 2010.
    Accordingly, the other accused in S.T. No. 57 of 2010, who have
    not preferred appeals before Supreme Court, shall also be
    released forthwith, if not required in any other case. [Para 16]
G   [13-F-G]
          Raghav Prapanna Tripathi & Ors. v. State of U.P., AIR
          1963 SC 74 : [1963] SCR 239 – followed.
          Sattatiya v. State of Maharashtra (2008) 3 SCC 210;
          Shantabai and Ors. v. State of Maharashtra, (2008) 16
H         SCC 354 : [2008] 3 SCR 713 – relied on.
     BALWAN SINGH v. THE STATE OF CHHATTISGARH                          5


      R. Shaji v. State of Kerala, (2013) 14 SCC 266 : [2013]           A
      3 SCR 1172 ; Gura Singh v. State of Rajasthan, (2001)
      2 SCC 205 : [2000] 5 Suppl. SCR 408 ; Jagroop
      Singh v. State of Punjab, (2012) 11 SCC 768 : [2012]
      7 SCR 91 ; State of Rajasthan v. Teja Ram and Others
      (1999) 3 SCC 507 : [1999] 2 SCR 29 ; John Pandian
      v. State Represented by Inspector of Police, Tamil Nadu,          B
      (2010) 14 SCC 129 ; Prabhu Dayal v. State of
      Rajasthan, (2018) 8 SCC 127 – referred to.
                          Case Law Reference
(2008) 3 SCC 210                     relied on            Para 8
                                                                        C
[2008] 3 SCR 713                     relied on            Para 8
[1963] SCR 239                       followed             Para 8
[2013] 3 SCR 1172                    referred to          Para 9
[2000] 5 Suppl. SCR 408             referred to           Para 9
[2012] 7 SCR 91                      referred to          Para 9        D
[1999] 2 SCR 29                      referred to          Para 9
(2010) 14 SCC 129                    referred to          Para 11
(2018) 8 SCC 127                     referred to          Para 12
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                 E
No. 727 of 2015.
      From the Judgment and Order dated 10.02.2015 of the High Court
of Chhattisgarh, at Bilaspur in Criminal Appeal No. 178 of 2011.
      With
                                                                        F
      Criminal Appeal No. 1197 of 2016.
      Sanjay Hegde, Sr. Adv., Sarvam Ritam Khare, Ms.Shweta
Chaurasia, Pranjal Kishore, Rahul Tomar, Rajeev Kumar Bansal,
M. P. Singh, Akshay K.Ghai, Advs. for the Appellant.
      Pranav Sachdeva, Ms. Neha Rathi, Jatin Bhardwaj, Abhinav
                                                                        G
Shrivastava, Rupesh Kumar, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      MOHAN M. SHANTANAGOUDAR, J.
      1. These appeals arise out of the judgment dated 10.02.2015 of
the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No. 178   H
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A   of 2011 and Criminal Appeal No. 179 of 2011 confirming the judgment
    and order of conviction dated 20.01.2011 passed by the Additional
    Sessions Judge, Fast Track Court, Pendra Road, District Bilaspur in
    S.T. No. 57 of 2010 convicting the appellants and other accused for
    offences punishable under Sections 148 and 302/149 of the Indian Penal
    Code (for short, ‘IPC’) and sentencing them accordingly.
B
           2. The case of the prosecution is that on account of previous
    enmity with Pitambar Singh (since deceased), the Accused No. 1 –
    Balwan Singh (appellant in Criminal Appeal No. 727 of 2015), on 22nd
    January, 2007, at evening time, was talking with the other accused
    regarding preparation to kill Pitambar Singh. Their conversation was
C   heard by Sunderlal Rathore @ Sunder Singh Rathore (PW-11) and
    Shatrughan Singh (PW-12), who were passing through the same place.
    Further, it was the case of the prosecution that all the accused, armed
    with deadly weapons, went towards the field of one Bhagwat Seth and
    committed the murder of Pitambar Singh. PW-9 and PW-16, who were
D   near the scene of the occurrence, rushed to the spot after hearing the
    cries of the injured, and saw all the accused assaulting the deceased
    with lathis and tabbal (an agriculture implement made up of iron). It is
    stated by PW-9 and PW-16 that the tabbal was held by the Accused
    No. 4, namely, Ashok Singh. The injured died instantaneously and the
    accused fled away.
E
           The dead body was seen by one Drupad Singh (PW-1) at 7 o’clock
    the next morning, who in turn informed Nar Singh Rajput (PW-17), the
    informant. Thereafter, Drupad Singh and Nar Singh Rajput together went
    to the place where the dead body was lying, and saw that Pitambar
    Singh was murdered. The deceased was the uncle of the informant.
F
           3. The Trial Court as well as the First Appellate Court, believing
    the testimonies of PW-9 and PW-16 who were the eye witnesses of the
    incident, and the testimonies of PW-11 and PW-12 who deposed about
    the conspiracy to commit the murder of the deceased, convicted the
    accused for the offences punishable under Sections 148 and 302/149
G   IPC. It is pertinent to state that although charge was also framed under
    Section 120-B IPC, the accused were acquitted in respect of the said
    offence.
          4. Shri Sanjay Hegde, learned senior counsel appearing for the
    appellant Balwan Singh, and Shri Rajeev Kumar Bansal, learned counsel
H   appearing for appellants Latel Ram and Santu @ Santram, drew the
       BALWAN SINGH v. THE STATE OF CHHATTISGARH                               7
            [MOHAN M. SHANTANAGOUDAR, J.]

attention of the Court to the relevant portions of the depositions of the      A
important witnesses, and submitted that the prosecution had planted the
eye witnesses, namely, PW-9 and PW-16 for the purpose of prosecuting
the accused, though these witnesses were not present near the scene of
occurrence. They contended that the statements of these alleged eye
witnesses were recorded about eight days after the incident in question,
                                                                               B
though they were very much present in the village or though the police
knew that these witnesses were the alleged eye witnesses of the incident.
According to the learned counsel for the appellants, the evidence of
PW-11 and PW-12 is also vague, cryptic, and unreliable inasmuch as the
courts below have acquitted the accused for the offence under Section
120-B IPC.                                                                     C
      5. Per contra, the learned counsel appearing for the State argued
in support of the judgments of the courts below.
       6. We find from the records that though the incident took place on
  nd
22 January, 2007, the statements of the alleged eye witnesses, namely,
                                                                               D
PW-9 and PW-16, were recorded after eight days of the incident. The
prosecution has tried to explain the delay in recording the statement of
the eye witnesses by contending that they were scared of the accused,
particularly Balwan Singh who was the village Sarpanch (Panchayat
Chairman); the accused Balwan Singh was stated to be powerful and
influential; only after some of the accused were arrested, these witnesses     E
came to the village and gave their statements to the police during the
course of investigation; till such time, the eye witnesses PW-9 and PW-
16 did not come to the village at all and were staying in different villages
in their relatives’ houses.
       We are conscious of the fact that mere delay in recording of the        F
statement of the eye witness by the investigating officer cannot ipso
facto raise suspicion in the mind of the Court about the veracity of the
prosecution case, more particularly, about the veracity of the eye
witnesses. In the normal course, this Court would have accepted the
explanation offered by the witnesses or the prosecution for not recording
                                                                               G
the statements at an earlier point in time, but the facts in this case are
different inasmuch as it is admitted by the prosecution witnesses, more
particularly by the investigating officer, that PW-9 was very much present
in the village. PW-2 and the investigating officer, during the course of
the investigation, had seen PW-9, being the Patel (Patwari) of the village.
PW-2 had admitted in the cross-examination that he had seen PW-9 at            H
8             SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A   the place of the incident when the police had come to the village after
    the registration of the First Information Report. PW-2 is none else but
    the younger brother of PW-9, and they were residing separately in one
    house. Thus, the evidence of PW-2 cannot be disbelieved insofar as it
    relates to the presence of PW-9 in the village, and on the spot when the
    police had started investigation. Furthermore, the investigating officer
B
    also testified that immediately after reaching the village Semaria, where
    the incident took place, he had called the Patel (PW-9). He categorically
    admitted that he called PW-9 to the place of the occurrence and that he
    (PW-9) was present during the course of the investigation. PW-9, being
    the Patel of the village, could not have kept the fact about the incident or
C   about the complicity of the accused from the investigating officer at the
    first instance, had he really been an eye witness to the incident. The
    investigating officer had proceeded to depose that, on his own, he had
    recorded the statement of PW-9 on 30.01.2007, which means that PW-
    9 had not informed the investigating officer that he was an eye witness
    to the incident. The investigating officer, on his own accord, had recorded
D
    the statement of PW-9. It is thus clear that the investigating officer
    knew very well, on the first day itself, that PW-9 was an eye witness.
    There was no reason as to why the investigating officer did not record
    the statement of the so-called eye witness at the earliest point of time,
    more particularly when, at that point in time, the investigating officer did
E   not have any clue about the murderers.
           PW-9 and PW-16 are close friends, and on the date of the incident,
    had gone together to see Panthi dance in the village during night, and at
    that point in time, both of them heard the cries of the deceased and
    rushed to the spot and saw the accused committing the murder of the
F   deceased. It is also the evidence of PW-9 and PW-16 that the accused
    saw these witnesses at the time of the occurrence of the murder inasmuch
    as these witnesses told all the accused not to beat/assault the deceased.
    On hearing such utterance of these witnesses, the accused allegedly
    tried to chase them, but they fled away from the scene. If this were
    true, then PW-9, who was present at the spot during the course of the
G   investigation on the first day itself, would not have left the police
    uninformed about the presence of PW-16 also. It is also relevant to note
    that PW-16 is from a different village, namely, Kusumkonda, which is
    stated to be 75 K.M. away from the place of incident, and on the date of
    the incident he had come to the village Semaria where the incident had
H   taken place. The place of work of PW-16 is Takatpur, which is stated to
     BALWAN SINGH v. THE STATE OF CHHATTISGARH                                 9
          [MOHAN M. SHANTANAGOUDAR, J.]

be 70 K.M. away from Semaria village. It is curious to note that PW-9          A
and PW-16 met on the date of incident after a gap of about 15 years,
and thereafter went to watch the dance performance. In our considered
opinion, the story, as put forth by the prosecution, that PW-9 did not tell
the investigating officer about the presence of PW-16, is not believable.
According to PW-16, he came to the village Semaria after eight days,
                                                                               B
i.e. after the arrest of a few accused, and gave the statement to the
police.
       7. As per the case of the prosecution, Balwan Singh is a powerful
and influential person and the eye witnesses were scared of him. It is
relevant to note that even at the time of the recording of the statements
                                                                               C
of PW-9 and PW-16 after eight days of the incident, Balwan Singh was
not arrested. He was arrested after about two months from the recording
of the statements of these witnesses. It is relevant to note that these
witnesses were not scared of other accused who were arrested. Be
that as it may, we find that the whole story of the prosecution about the
presence of PW-9 and PW-16 on the spot at the time of incident appears         D
to be artificial and concocted.
       8. The prosecution also relies upon the evidence relating to recovery
of sticks and tabbal which were bloodstained. Such evidence may not
be helpful to the prosecution in this case inasmuch as there is no evidence
to show that these articles were stained with human blood, and more            E
particularly with blood of the same blood group as that of the deceased.
As per the Forensic Science Laboratory Report, the blood stains were
disintegrated, and their origin could not be determined.
       In Sattatiya v. State of Maharashtra, (2008) 3 SCC 210, one
of the crucial factors that had led this Court to reverse the conviction       F
was that the bloodstains on the items seized in the recovery could not be
linked with the blood of the deceased. This factor was treated as a
serious lacuna in the case of the prosecution.
       Similarly, in Shantabai and Ors. v. State of Maharashtra, (2008)
16 SCC 354, the bloodstains on some of the clothes seized from the             G
accused in recovery belonged to a different blood group from that of the
blood group of bloodstains found on the clothes of the deceased and on
the sample of soil, axe, stones etc. which were taken from the spot by
the investigating officer. As a result of this mismatch, it was held that
this circumstance was not proved against the accused.                          H
10            SUPREME COURT REPORTS                             [2019] 11 S.C.R.


A           It is also important to note the following observations made by a
     Constitution Bench of this Court in Raghav Prapanna Tripathi & Ors.
     v. State of U.P., AIR (1963) SC 74:
           “21. In this connection, reference may also be made to
           circumstances 9 and 10, relating to the recovery of the bloodstained
B          earth from the house. The bloodstained earth has not been proved
           to be stained with human blood. Again, we are of opinion that it
           would be far-fetched to conclude from the mere presence of
           bloodstained earth that earth was stained with human blood and
           that the human blood was of Kamla and Madhusudhan. These
C          circumstances have, therefore, no evidentiary value.”
                                                             (Emphasis supplied)
            Therefore, the five-judge bench had ruled that in that case the
     prosecution needed to prove that the bloodstains found on the earth or
     the weapons were of a human origin and were of the same blood group
D    as that of the deceased.
            9. We are also conscious of the fact that, at times, it may be very
     difficult for the serologist to detect the origin of the blood due to the
     disintegration of the serum, or insufficiency of blood-stains, or
     haematological changes etc. In such situations, the Court, using its
E    judicious mind, may deny the benefit of doubt to the accused, depending
     on the facts and circumstances of each case, if other evidence of the
     prosecution is credible and if reasonable doubt does not arise in the mind
     of the Court about the investigation.
            Thus, in the case of R. Shaji v. State of Kerala, (2013) 14 SCC
F    266, this Court had observed:
             “31. A failure by the serologist to detect the origin of the blood
           due to disintegration of the serum does not mean that the blood
           stuck on the axe could not have been human blood at all.
           Sometimes it is possible, either because the stain is insufficient in
G          itself, or due to haematological changes and plasmatic coagulation,
           that a serologist may fail to detect the origin of the blood in question.
           However, in such a case, unless the doubt is of a reasonable
           dimension which a judicially conscientious mind may entertain with
           some objectivity, no benefit can be claimed by the accused in this
H          regard. Once the recovery is made in pursuance of a disclosure
     BALWAN SINGH v. THE STATE OF CHHATTISGARH                                11
          [MOHAN M. SHANTANAGOUDAR, J.]

      statement made by the accused, the matching or non-matching of          A
      blood group(s) loses significance.”
       Similar observations were made by this Court in the case of Gura
Singh v. State of Rajasthan, (2001) 2 SCC 205, wherein it was
observed that it was not possible to accept the submission made on
behalf of the accused that in the absence of the report regarding the         B
origin of the blood, the accused could not have been convicted, inasmuch
as it was only because of the lapse of time that blood could not be
classified successfully.
        In the case of Jagroop Singh v. State of Punjab, (2012) 11
SCC 768, this Court had ruled that as the recovery was made pursuant          C
to a disclosure statement made by the accused, and the serological report
had found that the blood was of human origin, the non-determination of
the blood group had lost its significance.
       In the case of State of Rajasthan v. Teja Ram and Others,
(1999) 3 SCC 507, the Court had observed that the failure of the              D
serologist to detect the origin of the blood, due to disintegration of the
serum, did not mean that the blood stuck on the weapon could not have
been human blood at all. In this context, it was noted that it could not be
said that in all cases where there was a failure in detecting the origin of
blood, the circumstance arising from recovery of the weapon would             E
stand relegated to disutility. It was thus observed that unless the doubt
was of a reasonable dimension which a judicially conscientious mind
entertained with some objectivity, no benefit could be claimed by the
accused.
       10. However, we cannot lose sight of the fact that the accused         F
would be in a disadvantageous position in case if the aforementioned
dictum laid down by this Court in the cases of R. Shaji (supra), Gura
Singh (supra), Jagroop Singh (supra) and Teja Ram (supra) relating
to the blood-stains is applied in each and every case. Non-confirmation
of blood-group or origin of the blood may assume importance in cases          G
where the accused pleads a defence or alleges mala fides on the part of
the prosecution, or accuses the prosecution of fabricating the evidence
to wrongly implicate him in the commission of the crime.
      11. In the case of John Pandian v. State Represented by
Inspector of Police, Tamil Nadu, (2010) 14 SCC 129, this Court, on            H
12             SUPREME COURT REPORTS                           [2019] 11 S.C.R.


A    facts, observed that the evidence of recovery of weapons was credible.
     The Forensic Science Report (FSL) report had disclosed that the blood
     was of human origin. The Court proceeded to conclude that since the
     evidence of recovery of weapon was proved to the satisfaction of the
     Court, it was sufficient that the prosecution had proved that the bloodstains
     were of human origin, even though the blood group could not be
B
     ascertained.
            12. The cases discussed above highlight the burden that the
     prosecution would ordinarily have to discharge, depending on the other
     facts and circumstances of the case, for the evidence relating to recovery
     to be considered against the accused. At the same time, as mentioned
C    above, we are conscious of the fact that it may not always be possible to
     inextricably link the bloodstains on the items seized in recovery to the
     blood of the deceased, due to the possibility of disintegration of bloodstains
     on account of the time-lapse in carrying out the recovery. For this reason,
     in Prabhu Dayal v. State of Rajasthan, (2018) 8 SCC 127, where
D    one of us (Mohan M. Shantanagoudar J.) had the occasion to author the
     judgment, this Court, relying on Teja Ram (supra), had held that the
     failure to determine the blood group of the bloodstains collected from
     the scene of offence would not prove fatal to the case of the prosecution.
     In Prabhu Dayal case (supra), although the FSL report could not
     determine the blood group of the bloodstains on account of disintegration,
E    the report clearly disclosed that the bloodstains were of human origin,
     and the chain of circumstantial evidence was completed by the testimonies
     of the other witnesses as well as the reports submitted by the Ballistic
     Expert and the Forensic Science Laboratory regarding the weapon used
     to commit murder.
F            13. From the aforementioned discussion, we can summarise that
     if the recovery of bloodstained articles is proved beyond reasonable doubt
     by the prosecution, and if the investigation was not found to be tainted,
     then it may be sufficient if the prosecution shows that the blood found on
     the articles is of human origin though, even though the blood group is not
G    proved because of disintegration of blood. The Court will have to come
     to the conclusion based on the facts and circumstances of each case,
     and there cannot be any fixed formula that the prosecution has to prove,
     or need not prove, that the blood groups match.
           14. In the instant case, then, we could have placed some reliance
H    on the recovery, had the prosecution at least proved that the blood was
     BALWAN SINGH v. THE STATE OF CHHATTISGARH                                  13
          [MOHAN M. SHANTANAGOUDAR, J.]

of human origin. As observed supra, while discussing the evidence of            A
PWs 9 and 16, the prosecution has tried to concoct the case from stage
to stage. Hence, in the absence of positive material indicating that the
stained blood was of human origin and of the same blood group as that
of the accused, it would be difficult for the Court to rely upon the aspect
of recovery of the weapons and tabbal, and such recovery does not               B
help the case of the prosecution.
       15. What remains is the evidence of PW-11 and PW-12, who
have deposed about the preparation of conspiracy of the accused to
commit the murder of the deceased. As mentioned earlier, all the accused
were acquitted for the offence of conspiracy, which means that there            C
are concurrent findings of both the courts below that the prosecution
has failed to prove the aspect of conspiracy of the accused to commit
the murder of the deceased. Once the conspiracy to commit the murder
of the deceased is absent, there is no material on record to show as to
why the accused had gathered in the house of Balwan Singh.
                                                                                D
       16. In view of the above material which is shaky, suspicion arises
in the mind of the Court about the genesis of the case of the prosecution.
In our considered opinion, the Trial Court and the High Court were not
justified in relying upon the evidence of the eye witnesses as well as of
PW-11 and PW-12. Similarly, their reliance on the aspect of recovery
was also not justified, for the reasons mentioned earlier.                      E

       Accordingly, the appeals are allowed. The impugned judgments
of the Trial Court and the High Court are set aside. The appellants are
directed to be released forthwith, if not required in any other case.
       We find that the appellants in these appeals are Accused 1,              F
Accused 2 and Accused 7. Other accused in S.T. No. 57 of 2010 have
not preferred an appeal. Since in respect of the appellants herein we
find that the prosecution has not proved the charges beyond reasonable
doubt, the benefit of this judgment should also enure to the other accused
who were convicted in S.T. No. 57 of 2010. Accordingly, the other accused
in S.T. No. 57 of 2010, who have not preferred appeals before this              G
Court, shall also be released forthwith, if not required in any other case.

Divya Pandey                                                 Appeals allowed.


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