WV HIGH COURT OF . CHHATTISGARH BILASPUR Criminal Angeal No.1049i2004 AISPELLANT {In Jail; Prashant Shanna alias Golu Sjo Ashok Kumar Shanna, aged about 22 years, R/o viHage Chamdkhuxi Bhata, RS. Pulgaon, District Durg (CG) v VERSIES ' RESPONDENT StatE of Chhattisgarh through RS. ‘1‘ f“ Pulgaon, DiStrict Durg (CG) CRIMINAL APPEAL UIS 374 {2! OF THE CODE OF CRIMINAL A PROCUDERE a n; ‘appearancezv ’ Shn' Sawendra Sahu, counsel for the appellant. Shri S.R.J. Jaiswal, Pamel Lawyer for The State. Divigion Beneh:— Hongbie Shri Ti”. Shaxma 8a E’on’bEe Shri R.L.Jhanwax,JJ QRAL JUDGMENT (04.03201 1} Per T.P.Sharma, J. Chau'enge in this appeal is to the judgment of conviction 811d Girler of sentence dated 23.9.2004, passed by the Sessions Judge Burg, Dietrict Burg in S.T.No.109/2004, whereby and whereunder the learneti Sessions Judge, after holding the appellant guilty for commission of culpéble homicitie amounting to murder of Himanshu, 6 years ageet child and concealing the evidence of criminal case, convicted the appellaiit unc‘ier Sections 302 and 201 of the IPC arm sentenced for life imprisonment aim fine of Rs. 100/ —, in defaiilt of payment of fine to further undergo d?.l. for 6 months; and RI. for 1 year and tine of Rs.100,‘-, in default of payment 0f fme to furthar undergo RA. for 3 months réspéctively. 2: Th6 conviction is impugned on the ground that Without thaa being agy iota of evidence sufucient for conviction of the aiapeHasoi, the leau‘ned Sessions Judge has convicted amd sentenced the appeHant as aforesaid mentioned and thereby committed illegaliiy. ' 3 k ‘As per case of prosecution, on fateful day of 9.4.2004 at about 5 pm, unfortunate deceased— Himanshu was playing with his grand mother and other children i.e. Rekhram (PW-3), Rajesh and Fawan were aiso playing cricket in front of the house of present appellant. Prashant Shanna @ Golu aner some time, called Himanshu {since deceased) infhis house and thereafter, Himanshu was not found alive. Missing report was lodged vide EX. P/ 13A on 10.42004. Dining the course of enquiry of missing report, the appellant along with other peisons were interrogated by the Police. The appellant made disclosure statement of dead body of Himanshu in a cement bag vide EXP/5. The dead body was recovered at the instance of the appellant lying under the. cot from the house of the appellant, which was closed and recovery Panchanama was prepared vide EX. Pf 2 Merg was recorded vide Ex; 'P,’ 11. FIR was lodged vide EX. P/ 10. Polythenes were seized from the house of the appellant vide EXP/7. Clothes of the deceased were seized vide EX. 13,!4. a After summoning witnesses vide Ex. Pil’ inquest over the dead body of the deceased was prepared vide EX. P/6. Patwaii prepared spot Map vide Ex. P/3. Dead body of the deceased was sent for autopsy to Govt, Hospital, Durg vide Ex. P,’ 12, where Dr. A‘K. Soni (PW-7) conducted autopsy vide Ex. P/9 and found eligature gamcha and ligature mark over the neck of the deceased. Mode of death was asphyxia as a result of strangulation. ‘ i \ \\ l @ Statenmnts cf the Witnessss ware mcordad undsr Section 161 of thé Code of Criminal Proc€dure, 1973 (in short ths Coda). 4. ; After complstion of investigation, charge Sheet was Eeci before the Judicial Magistrate First Class, Durg, who in turn, committed the case to the Court of Sessions, Durg who conducted the trial 5. In order to prove the guilt of the accused/appellant prosecution exammed as many as 11 Witnesses Accused was examined under Section 313 of the Code, 1n which, he denied the Circumstances appearing against hlm, innocence and false miplicétion in crime in question was claimed. He has also examined defence‘witness RP. Pandey (DW- l), who has deposed that the aforesaid house, where the dead body of the deceased was found’ owned by the appellant although he has deposed that it was under construction and thereby he tried to Show that any 3rd person may come and put the dead body inside the house, which was under construction. 6. After affording opportunity of hearing to the parties, the learned Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. 7. We have heard Shri Satyendra. Sahu, learned counsel for the appellant and. Shri S.R.J. Jaiswal, learned Panel Lawyer for the State, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that prosecution has not proved the ownership and possession of the appellant on the house in question, from where the alleged dead body was recovered. Prosecution has also not proved the fact ”that the house was closed and appellant was residing in the same house As per eVidence of DW 1 R P Pandey, house was under w; ‘ l .» 4:. consftruction and accessibla to anybody and thE appellant was residing in the houSe, therefore, possibility of keeping the dead body’ by any 3rd personkimside the house of the appellant cannot be ruled out. In case of conviction based on circumstantial Ch‘cdmstances, prosecution is mquired to prove the complete chaiii‘ of circumstances, suElcient for drawing definite conclusion that only the appellant has committed the offence and except him nobody has committed the aforesaid offence. But, prosecution has nets adduced the evidence to prove the complete chain of circumstance, therefore, in these circumstances, appellant is entitled for benefit of doubt, t A 9. On the other hand, learned counsel for the State vehemently opposed these arguments and submitted that the evidence adduced on behalf of the prosecution is sufficient to prove the complete chain of circumstances that only the appellant has committed the offence and except the appellant no other person has committed the aforesaid offence. Dead body of the deceased was found packed in the cement bag under the cot of the appellant, which was closed and locked by him. The door was opened on the basis of key given by the appellant shows that dead body was in exclusive possession of the appellant. Appellant was under obligation to offer explanation that he has not caused the homicidal death of the deceased in terms of Section 106 of the Evidence Act. In absence of such explanation, the only hypothesis would be possible that only the appellant has After caused homicidal death of the deceased Himanshu. appreciating the evidence available on record, the learned Sessions Judge has rightly convicted and sentenced the appellant as aforesaid mentioned. 10. f ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf o the prosecution. @ 1 1‘. in Tim praSent case, homicidal death as a rssult ofasphyxia dub to throttljlig of 6 years agcad child Himanshu has not becn $ubstantially diSputed on behalf of the appellant, on the other hajPd, it is established by the evidence of Dr, A.K.Soni (PW-7), 831a autopsy report Ex. P/9 and death of the deceased was homicidal 1'11 nature. r 12‘. u fAs regards complicity of the accused] appellant in crime in question is concerned, conviction of the appellant is substantially based on circumstantial evidence. While dealing with the questién of conviction based on circumstantial evidence, the Supreme Court m the matter of Kusuma Ankama Rae V. State of A.P1. has held that in case of conviction based on circumstantial evidence, prosecution is required to satisfy the following circumstances: i. the circumstances from which the conclusion of guilt is to .he drawn should be fully established. The circumstances concerned ‘rnust’ or ‘should’ and not ‘may be’ established; the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should notbe exnlajnahle on any other hypothesis except that the accused is guilty; the circumstances should be of a conclusive nature and tendency; iv. they should exclude every possible hypothesis except the one to be proved; and v. 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 l 2008 AIR sew 4669 @ must Show that in all human probability the act must havs been done by the accusai. 13. I In the pr€sent Case, prosecution has adducod the evidence to prove the following fact: i, Himanshu was playing near the house of appellant. 11 1 Appellant was residing in his house from which dead body has been recovered 111 ‘ Himanshu was called by the appellant in his house iv, ul—limanshu went to the house of the appellant and thereafter, Himanshu was not found alive. House of the appellant was closed and appellant was not present. ‘ vi. On the same day parents of Himanshu have lodged missing report vide EX. P/ 13A Dead body of Himanshu was found in a cement bag under the cot of the appellant which was closed from outside. Dead body of the deceased has been recovered at the instance of the appellant and death of Himanshu was homicidal in nature. As per evidende of PW-8 Rekhram, 12 years aged child and PW—ll— Rajesh Shrivastava, 16 years aged witness they were playing in front of the house of appellant. Himanshu was called j by the appellant then Himanshu went to the house of the appellant and thereafter, he was found missing. In cross examination of these witnesses defence has not been able to elicit anything to discredit their testimony relating to the aforesaid facts. As per evidence of Bhudhar Pandey (PW-1), father of the deceased, Rajendra (PW-2), Khemlal (PW—4), Triloki Nath (PW-5) and R.B.S.Pa1ihar (PW- 9), 1.0., Police interrogated the appellant along with other children and finally Police came with the bappellant to the house of the appellant which was closed and locked. Lock of the house was opened on the basis of key given by the appellant. Dead body of the deceased was found inside the r room of the appellant u11der the cot. There is clear discrepancy in ocular evidence and evidence of R.B.S‘ Pan‘har (PW-9), LO. relating t6 time of preparation of documents EX. P/5 and EX. 13/2; As per evidence of other witnesses Police came with the appellant on 10.4.2004 at night and deacl was recovered after opening the lock of the house on the basis of key given by the appellant, but the memorandum statement Ext PIS revealed that it was recorded on 11.4.2004. Court below has disbelieved the evidence relating to preparation of document EX. P/S on 11.4.2004, hut the fact remained that as per evidence of the aforesaid witnesses dead body has been recovered at the instance of the appellant from the house of the appellant, which was closed and locked on the basis of key handed over by the appellant to the Police and dead body was hidden in a cement, bag. On the ground of discrepancy, relating to preparation of documents, unrebutted evidence of aforesaid witnesses cannot be discarded. The aforesaid evidence proved the following facts] circumstances : U i. Himanshu was playing near the house of the appellant on 9 .4. 2004. He was called by the appellant in his house. Himanshu went to the house of the appellant and thereafter, he was not found alive 1n Dead body of Himanshu was found inside the room of the appellant kept in cement bag. iv. Room was locked from outside. v. Key was handed over by the appellant vi. Appellant was in possession of the aforesaid house and I‘OOm vii. Death of Himanshu was homicidal in nature. val Appellant has not offered any explanation that how Himanshu died and who kept the dead body of the deceased inside the house of the appellant. In the light of Kusuma Ankama Rao (supra), if the aforesaid circumstances are considered together then only inference would be possible that only the appellant is the author of the crime and has committed culpable homicide amounting to murder of the deceased and except him nobody has committed the ‘aforesaid offence and same is sudicient to exclude the possibility of-innocence of the appellant. After appreciating the evidence, available on record, learned Sessions Judge has 4 .n convicted and gentenced the appellant as aforesaid mentioned. 14. On close scrutiny of the evidence, We do not find any illegality or infirmity in the conviction and sentence of the appellant, requiring any interference. Consequently, the appeal being devoid of merits is liable to be dismissed and it is hereby dismissed. / W Sdl- x Lxx‘ The aforesaid sentences shall run concurrent/ly. s6!— J/‘WVWK :-L‘ Jha“ K, T. P. Sharma XE: Judge wa‘ Jnége R \