^^ tt^;&». 1 G. HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: (In Jail) RESPONDENT: Criminal Appeal No.319 of 2007 Bhuwan @ Paretan aged about 36 years, S/o Jeevan Lal Kaushik R/o Village Chhatouna P.S. Hirri Distt.Bilaspur (C.G.) Versus State of Chhattisgarh Through P.S. Hirri Distt. Bilaspur (C.G.) {Criminal appeal under Section 374 (2) of Criminal Procedure Code} Present: Mr. B.D. Badgaiyan, counsel forthe appellant. Mrs. Madhunisha Singh, Panel Lawyer for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.N. Chandrakar, JJ ORAL JUDGMENT (4-8-2011) T.P. Sharma,J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 28-11-2006 pdssed by the Additional Sessions Judge, Bilaspur, in Sessions Trial No.288/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Teeman @ Jeevan Suryavanshi and concealing the evidence of criminal case, convicted the appellant under Sections 302 & 201 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further undergo RI for one monthand to undergo Rl for three years & pay fine of Rs.500/-, in default of payment offine to further undergo Rl for one month, respectively. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, Teeman @ Jeevan (since deceased) was working as witchcraft master, on 30-5-2005 the appellant went to the house of Teeman @ Jeevan and brought him to his house for witchcraft, and at the time of such witchcraft at about 9 a.m. Teeman @ Jeevan ^J ^K^. K -^N I i^"/ /i? demanded Rs.2,000/- from the appellant and threatened him that if he will not give said money then he will eat, some altercation took place and the appellant took out knife from his room and after pushing Teeman @ Jeevan on the floor, he assaulted Teeman @ Jeevan by knife and caused 7-8 injuries. Teeman @ Jeevan died on the spot. The appellant hidden the dead body of Teeman @ Jeevan in his house under grass. Between 10 p.m. and 11 p.m., the appellant put the dead body in a bag and took it from his house to graveyard, he hidden the same under beshram shrubs, he also hidden the bag and other articles used for the offence near some parsa tree and stick in his house. hle burnt the shoe of Teeman @ Jeevan in his house and also hidden the knife. On 31-5- 2005 at about 7.50 a.m. the appellant went to Police Station Hirri and lodged merg vide Ex.P-20 and FIR vide Ex.P-21. The Investigating Officer recorded discloser statement of aforesaid articles vide Ex. P-4. The Investigating Officer left for the scene of occurrence and at the instance of the appellant dead body hidden under beshram shrubs was recovered vide panchnama Ex. P-3. After summoning the witnesses vide Ex. P-22, inquest over the dead body of the deceased was prepared vide Ex.P-2. Knife was recovered at the instance of the appellant vide Ex.P- 5. Blood stained and plain soil were recovered from burial ground vide Ex. P-6. Two bags (bora) were recovered at the instance of the appellant vide Ex.P-7. Nylon newar was recovered from the field of Chotelal atthe instanceof the appellant vide Ex.P-8. Stick was recovered at the instance of the appellant vide Ex.P-9. Bloodstained clothes of the appellant were seized vide Ex.P-10. Ash and melted & burnt shoe were recovered at the instance of the appellant vide Ex.P-11. One piece of bone and jadibuti were seized from wife of the deceased vide Ex.P-1. Dead body was sent for autopsy to Primary Health Centre, Bilha vide Ex.P-23. Dr. B.K. Gole (PW-7) conducted autopsy vide Ex.P-12 and found following injuries: - (1) Stab injury of4" x 1" on abdomen cavity near umbilicus. (2) Stab injury of 5" x 1 1/2" on abdomen cavity near umbilicus. (3) Stab injury of 2" x 1" x 2 1/^" near umbilicus. (4) Stab injury of 2 ^" x 1" x 3" just below left side of umbilicus. (5) Stab injury of 2" x 1" x2 %" below left side of umbilicus. (6) Stab injury of 2 Vz' x 1 ^" abdomen deep. (7) Stab injury of 2" x 1" x 3" on right side of umbilicus. ::^-^ % t Multiple stab wounds were found on large intestine, small intestine, liver & spleen of the deceased. Cause of death was shock and death was homicidal in nature. Appellant Bhuvan was also examined by Dr. B.K. Gole (PW-7) vide Ex.P-13 who found one abrasionover right thumb of the appellant in the size of 0.9" x 1". Spot map was prepared vide Ex.P- 10. Seized articles were sent for chemical examination and presence of blood over knife recovered from the appellant and clothes of the appellantwas confirmed vide Ex.P-28. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Additional Chief Judicial Magistrate, Bilaspur who committed the case to the Court of Sessions, Bilaspur from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as eleven witnesses. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and falseimplication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that conviction of the appellant is based on evidence of last seen theory, recovery of corpus along with other articles and weapons at the instance of the appellant which is not sufficient for drawing inference that only the appellant has caused homicidal death amounting to murder of the deceased. Evidence adduced on behalf of the prosecution is insufficient for drawing any conclusion against the appellant. 9. On the other hand, learned State counsel opposed the appeal and submitted that conviction of the appellant is based on last seen theory, recovery of corpus and weapons of offence stained with blood which are sufficient for drawing inference that the appellant has caused homicidal death of the deceased with intent to cause his death. y y: "(B<^ ..y"-^"%.. \ 10.1n order to appreciate the arguments advanced on behalf of theparties, we have examined the evidence adduced on behalf of the prosecution. 11.1n the present case, homicidal death of the deceased as a result of fatal multiple injuries found over his body has not been substantially disputed on behalf of the appellant. Even otherwise, it is established by evidence of Dr. B.K. Gole (PW-7) and autopsy report Ex. P-12 that death of the deceased was homicidal in nature. 12.As regards complicity ofthe appellant in the crime in question, conviction of the appellant is substantially based on last seen theory, recovery of corpus and other articles at the instance of the appellant. 13.0n the ground of lastseen theory, the prosecution has examined Smt. Raj Kunwar (PW-1) - wife of the deceased. As per her evidence, her husband was busy in the work of witchcraft, on the date of incident the appellant came to her house and for the purpose of witchcraft he took his husband with him, thereafter her husband did not return back to her house and the appellant himself has lodged FIR. Defence has cross- examined this witness at length. In para 3of her cross-examination, she has specifically deposed that on Saturday, the appellant came and took her husband, but her husband came on the same day, thereafter on Sunday again the appellant came and took her husband with him, but her husband did not return back and dead body of her husband was found on Monday. 14.This is not only the case where the deceased was seen alive last time in the company of the appellant and thereafter his dead body was found, but in the present case, the appellant took the deceased along with him for witchcraft to his house, thereafter, the deceased did not return back. Burden was heavy on the appellant to offer explanation as to when the deceased left hiscompany and when the deceased left his house, but the appellant has not offered any explanation. Inter alia, the appellant has made discloser statement in the form of merg & memorandum vide Exs. P-20 & P-4, respectively, relating to corpus (dead body of deceased Teeman @ Jeevan) hidden under beshram shrubs in the burial ground and same has been recovered at the instance of the appellant vide Ex.P- 3. Witnesses to the aforesaid document Shiv Kumar (PW-5) & Shiv Prasad Kaushik (PW-6) have not supported the case of the prosecution and the prosecution has declared them hostile. They have admitted their \ •:y. \ A '-"'."•'./ "' signatures on four documents, but they have not offered any explanation that why they have signed on the aforesaid documents and under what circumstances. This clearly reveals that they are concealing the truth. In the circumstances, evidence of only N.S. Choubey (PW-11) - Investigating Officer remains for consideration. 15.N.S. Choubey (PW-11) has categorically deposed that on 31-5-2005, the appellant came to the police station and lodged merg vide Ex.P-20 & FIR vide Ex.P-21. The appellant has also made discloser statement vide Ex. P-4 in which he has disclosed that dead body of deceased Teeman @ Jeevan is hidden under beshram shrubs in burial ground and at his instance, dead body and other articles have been recovered. The appellant has not offered any explanation as to how it came to his knowledge that dead body of Teeman @ Jeevan is hidden under beshram shrubs in burial ground, who has informed him and when he has seen the said dead body. In absence of any otherexplanation, the only inference that the appellant has hidden the dead body of Teeman @ Jeevan that too after commission of his murder, would be legally possible. 16.1f evidence of Raj Kunwar (PW-1) - wife of the deceased relating to last seen theory and recovery of corpus of Teeman @ Jeevan at the instance of the appellant are considered together, the only inference would be possible that the appellant has committed homicidal death of the deceased with intent to cause his death and has hidden the dead body. 17.After appreciating evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellant in the aforesaid manner. On close scrutiny of evidence, we do not find any illegality in the judgment of conviction andorder of sentence. 18.Consequently, the appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. Soma Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge