The petitioner, who is sought to be prosecuted for the

offences punishable under Sections 498A, 302, 201, 109, 202,

212 read with Section 149 of IPC, has filed this petition under

Section 439 of Cr.PC.

The case of the prosecution is that, the accused

No.1 is the husband of the daughter of the complainant, and in

the said wedlock, they had begotten four children. Since there

was incompatibility between them, and also the accused was

quarreling with her and assaulted her, the daughter of the

complainant was staying at the matrimonial home. On

6.6.2022 at about 1.00 p.m., the complainant received a phone

call from his brother stating that, his daughter and brother,

who were going to Budhihal on motorcycle to bring the school

documents of children of Rajashree, the petitioner - accused

No.1 has murdered both of them.

3.

Heard the learned counsel for the petitioner -

accused No.1 and the learned High Court Government for the

respondent No.1 - State and the learned counsel for the

respondent No.2 - defacto complainant.

4.

CWs.27, 28, 29 and 31 are alleged eye witnesses to

the incident. The incident has taken place on 6.6.2022, and

the statements of CW27 on 23.6.2022, CW.28 were recorded

on 7.7.2022, CW31 on 22.8.2022 respectively. The accused

No.1 was arrested on 9.6.2022. The blood stained cloth of the

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accused was recovered from agricultural field on the same day,

where he was hiding.

5.

The contention of the petitioner - accused No.1 is

that, the recovery of the blood stained cloth of the accused

cannot be said to be a piece of incriminating evidence against

him. In support, he places reliance on the decision of the

Hon'ble Supreme Court in the case of Sonvir v. State (NCT of Delhi),

(2018) 8 SCC 24, wherein the Apex Court has held as follows:

"26.3. Alleged recovery of bloodstained shirt

26.3.1. As per the prosecution, a bloodstained shirt was

recovered at the instance of Sonvir alias Somvir (Appellant-

Accused 2) from his room in the house of Teja Chaudhary, at

the time of his arrest. The bloodstained shirt was sent for

analysis to the FSL. As per the FSL report (Ext. PW 33/A), the

shirt allegedly recovered from Sonvir alias Somvir (Appellant-

Accused 2) was found to be stained with human blood of “B”

group, which was the same “blood group” as that of the

deceased.

26.3.2. In para 20, the High Court held the recovery of the

bloodstained shirt from Sonvir alias Somvir (Appellant-

Accused 2) to be incriminating against him, since the blood

samples taken from the bedsheet at the scene of crime, were

also found to be of the same blood group.

26.3.3. It is relevant to note that as per the FSL report (Ext.

PW 33/A), both the bloodstained shirt allegedly recovered

from Sonvir alias Somvir (Appellant-Accused 2) and the blood

samples taken from the bedsheet at the scene of crime were

found to be stained with human blood of “B” group.

26.3.4. The mere matching of the blood group of the blood

samples taken from the bedsheet at the scene of crime, and

the bloodstained shirt recovered from Sonvir alias Somvir

(Appellant-Accused 2) cannot lead to the conclusion that the

appellant had been involved in the commission of the crime.

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26.3.5. On this issue, reliance can be placed on two decisions

of this Court in Prakash v. State of Karnataka [Prakash v.

State of Karnataka, (2014) 12 SCC 133 : (2014) 6 SCC (Cri)

642] , paras 41 and 45 and Debapriya Pal v. State of W.B.

[Debapriya Pal v. State of W.B., (2017) 11 SCC 31 : (2017) 3

SCC (Cri) 832] , para 8 wherein this Court while deciding

cases based on circumstantial evidence had held that mere

matching of the blood group cannot lead to the conclusion of

the culpability of the accused, in the absence of a detailed

serological comparison, since millions of people would have

the same blood group.

26.3.6. In the present case, the prosecution has not proved

that the room from where the bloodstained knife and

bloodstained shirt were allegedly recovered, was in the

exclusive possession