19—6-2008 Mrs. Savita Tiwari, counsel 1"or the appellant. Mr. Sudhir Bajpai, Deputy Govt. Advocate for the State/ respondent. Oral judgment dictated on D L.C. Bhadoo, J: — This appeal is directed ag order of sentence dated 30'“ Ap aIS. 2002 passed by the 15’ Additional ainst the judgment of conviction and Sessions Judge, Raigarh, in S ssions Trial No.139/2001 .whereby & whereunder learned Additional Se sions Judge after holding the accused/ appellant guilty for commission o offence under Sections 302 & 201 of the l.P.C., sentenced him to unde go imprisonment for life and pay a fine of Rs.500/—, in default of paymen of tine to further undergo R.l. for five \ / / XI—HC 78 ézu'ibbjog Wm g5a3g. W200“L mW (Wu) am 311%?!m$ m mmmm WW1w f???W $ 611%? 311% l'\r F L_I_LI‘\IV I . uangaram Katmya, (In Jail) S/o Mahesh Ram Rathiya, Occupation Agriculture, R/o Sohanpur (Lalmati), P.S. Dharamajayagarh, Th. Dharamajayagarh, Distt. Raigarh. - Versus - RESPONDENT: State of C.G., {Appeal under Section 374 of the Code of Criminal Procedure} Division Bench: Hon’ble Mr. L.C. Bhadoo and Hon’bie Mr. T.P. Sharma JJ. XI-HC—78 WWW WW a g . mm (Wu) ammm a mm *‘IWWW default of payment of fine to respectively. It was further dire concurrently. Case of the prosecution, ir 6““ & 7t“ June, 2001 deceased after taking dinner was sleeping 11 O’ clock in the mid night, the h accused with a Tabbal. i mzgo (L WWW The ac him and concealed the head. Tt Bal woke up in order to answer room and saw that the head o her husband Umed Singh has been chopped from the body and the same is missing. Hearing the cries of Radha Bai, the two guests slee ing in the Varandah woke up and the relatives were informed. The he d of Umed Singh was searched by the villagers but the same could no be traced. Raising doubt against the accused, the report was lodg deby Ganpat Ram in Police Station Dharamjaigarh on 7-6—2001 at ab EXP-13, thereafter lodged the mentioned that on account of old committed the murder, earlier he . of.Umed Singh. The Investigating Officer l giving notice to the Panchas, he mmawm %31f%m3n€m E‘VEETS‘and—pay—a‘fme-of-Rs-zook In further undergo R.l. for two months, cted that both the sentences shall run brief, is that in the intervening night of Jmed Singh along with his two guests n the Varandah of the house. At about ead of Umed Singh was chopped by the 3used ran away carrying the head with Ie wife of the deceased namely, Radha he call of nature, she came out of the ut 10.30 a.m. He gave merg intimation report Ex.P-1 in which it has been nimosity it appears that Gangaram has ad committed the murder of the mother for the scene of occurrence and after repared inquest Ex.P-2 on the body of gag fxg XI—HC 78 b). dum Ex.P-3 regarding head & Tabbal, the weapon of offence, and in pursuance of that the accused got recovered the chopped head of Umed Singh from Gajbhavna Forest area of Village Sohanpur under Ex.P-5. The chopped head was identif by Ravi Prasad & Ramjatan under Ex.P-4. The weapon of offence abbai was also seized under Ex.P-7 at the instance of the accused. Lungi of the accused stained with blood was seized under Ex.P-8. Site plan Ex.P-9 was prepared by the Patwari. The body of Umed Sing was sent for post-mortem examination to Civii Hospital, Dharamjaigarh under EXP-17 where Dr. Arjun Singh (PW-9) conducted post-mortem nd prepared the post-mortem report EXP-28 in which he opined that he cause of death was due to injury to neck. The death was homicidal nature. The recovered head was also sent to the doctor under Ex.P-1 Blood stained Lungi of the accused was sent to the doctor under Ex.P 19 which was examined by him and he prepared the report EXP-29. T bal, the weapon of offence, was, also sent to the doctor under EXP-20 ho gave his opinion under EXP-30. After completion of the inve tigation, charge sheet was filed against the accused/appellant in the Co rt of Judicial Magistrate, First Class, Dharamjaigarh who in turn com itted the case to the Sessions Judge, Raigarh from where learned 1 received the case on transfer fort ial. l Additional Sessions Judge, Raigarh The prosecution in order to establish the charges against the accused, examined nine witnes es. Statement of the accused was /l i e i . s Wm gy'Fk'gES? W200 k mamm (Wax) 311w EmW ammm mm Hm 3m: mama-.1m i fs'érW k aimm recorded umfel 3E€Eion6i3 *uf’ ihe C1.P.C. in material appearing against him nd stated that he is innocent, he has been implicated in a false case n account of animosity. He examined one witness‘namely, Tulsiram in Learned Additional Sessi ns Judge after hearing counsel for respective parties convicted and sentenced the accused as aforementioned. We have heard Mrs. Savita Tiwari, learned counsel on behalf of the appellant and Mr. Sudhir Bajp i, learned Deputy Govt. Advocate on behalf of the State/respondent. The homicidal death of U ed Singh has not been disputed by the M reover, Dr. Arjun Singh (PW-9) who conducted post-mortem on the ody of Umed Singh has stated in his evidence that on 8-6-2001 he s working as Medical Officer in Civil Hospital, Dharamjaigarh, on that ay at about 7 a.m. he conducted post- mortem on the body of Umed Sin h, at the time of post-mortem the head of the body was not with the bo y, after some time, the separated head was also brought for examination He found that the head was separated from the body and both the e s were closed. He conducted post— mortem on the body and head si ultaneously. The size of incised wound on the neck was 19” in circle sha e, towards the body it was 15" in circle shape, thyroid cartilage was cut, third cervical vertebra was also cut and there was no other injury. The s id injury was caused by a sharp & hard object and the death was homici al in nature. Radha Bai (PW—2), wife of counsel for the appellant. a _u. , \ l .m """‘\ 4 XI—HC~78 WW G>9g3a W290 k 31ml m (Wm m atW Hen 31mlm W afgam ‘ WWm § fgQQ(W a: afar;m WW,WW mm Wazoo L mamm (Wu) 54W, Wan—6’, CsvG83? ' W209 x MW (Wm WWW ammm mwm mm WW %affd'qa‘n%¥1 ClfGUHlbldHUeé dllu i Ljll court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence iest suspicion takes the piece of proof.” In the present case, the prosecution has tried to connect the accused with the crime in question based on the following circumstances: 1. Motive: There was aninosity between the accused & the deceased, because the accused was having illicit relations with the ‘wife of the deceased and therefore, there was dispute between the two, prior to this incident, t accused had committed the murder of the mother of the deceas d, charge sheet was tiled against him, the accused was convict d for that murder and sentenced to undergo imprisonment for lfe, he was released on bail in that case by the High Court of Madh Pradesh at Jabalpur in the year 2000. 2. The separated head of d eased Umed Singh was recovered at the instance of the accuse from the forest area of Gajbhavna. 3. The weapon of offence T bbal was seized at the instance of the accused. 4. The blood stained Lungi of he accused was seized. First circumstance As far as this circumstanc is concerned, Ganpat Rathiya (PW-1) has stated in his evidence th as & when Radha Bai, wife of the dec‘eased, used to go to the gricultural field or threshing field, the accused used to follow her, as when if anybody was not there in the \. \\ XI-HC—«78 WWW " ammm & Radha Bai were having illicit reiations, on account of that, there was a dispute between Gangaram & de :eased Umed Singh. There was quarrel between the two about 2-3 years prior to this incident. The accused committed the murder of the mother of the deceased, that is why he was in jail. He was released on bail ior to the date of incident. This witness has not been cross-examined on his aspect. Radha Bai (PW—2), she has stated that one year prior to the date of inci ent wherever the accused used to meet her, he used to say that he will t ke her and keep her in his house as his wife, but she was not preparedt remain with the accused as his wife, on account of that there was a quar el between her husband & the accused, that is why her husband lodge a report against the accused and two years prior to the date of incide t, the accused committed the murder of her mother—in-law, in that case h was in jail and later on he was released on bail about one year prior to th date of incident. Sanjay Tiwari (PW~8), l vestigating Officer, has stated in his evidence that the accused w s in jail, he enquired from the Jail Superintendent, Raigarh under .P-25 regarding the sentence of the accused, the Jail Superintende t, Raigarh informed him that on 4-10- 1999 the accused was sentence to undergo imprisonment for life under Sections 302 & 201 of the l.P.C. in Sessions Trial No.218/98 and on 17— 10-‘1999, he was transferred fro Raigarh jail to Bilaspur jail. The report of the Jail Superintendent, Rai arh is EXP—25. Thereafter, he wrote ln para 2 of the evidence Ax r x he order of the High Court of Madhya was released on bail on 9-5-2000. of these witnesses, it is estabiished that the accused was having ilii it relations with Radha Bai, he used to follow her that was not Iiked by rcumstances, motive of the accused having animosity against the d leased is established, as the accuseds was sentenced to undergo imprsonment for life in connection with the murder of the mother of the dec ased and that is why the accused was having grudge against the decea ed. Second circumstance ce is concerned, Mrs. Savita Tiwari, As far as this circumsta learned counsel for the appellant argued that Ravi Prasad (PW-3) in para 6 of his evidence has stated th t he along with Ramjatan had removed , the plastic bag containing the head of arned counsel further argued that this Witness has stated that the Polic .told him that let us go to the forest area as the accused had already di closed to them about the head of the deceased, therefore, it cannot b said that the head was recovered at the the teaves & sand and thereaft the deceased was taken out. him under EXP-27 that as per t Pradesh at Jabaipur, the accused Therefore, from the evide In the eased Umed Singh, that is why there was some quarrel between the two and out of animosity the accused committed the murder of the mot er of Umed Singh (since deceased), in that case he was sentenced to u dergo imprisonment for Iife and Iater on, he was reieased on bail under he order of the High Court of Madhya Pradesh on 9-5-2000. e e c i e XI-Hc 78 WE. mu.......<‘%u:m.a,lmgum§3 .. WJOO z mm (Wu) W mW H941mW m mam WWW uma‘f ik‘wWK $ aif‘aw 311%?! XI-HC 78 Cs>@$&tr Wm @1200 L mm (Wu) WWW WWW Wmam WW§wm $aw‘fananéw_ taken out by Ramjatan, they id Panchnama Ex.P-4 was prep ‘Gangaram — the accused and o — i instance of i'ne accused. She pi f the Supreme Court in the matter of Prem Prakash Mundra, etc. v. State of 1998 SC 1189). in order to appreciate th argument advanced by Mrs. Savita Tiwari, we have perused the evid nce regarding the recovery of the head of the deceased. Ravi Prasad (PW—3) in para 1 of his evidence has stated that on 8-6-2001 the Rajasthan and another, etc. (Al lice took Gangaram, the accused/ appellant & Ramjatan along wit him to the Gajbhavna forest area, the accused near his house in the orning disciosed that he has buried the head in the Gajbhavna forest ar a. This witness has further stated that the head was buried under the i nd in a piastic bag, the memorandum is Ex.P-3 which bears his signatu from ‘A’ to ‘A’ portion. The head was ified the head of Umed Singh and the d . As per the information given by on the direction of the Police, he & Ramjatan took out the head fr a pit which was kept in a bag and the same was seized under Ex.P . It is true that in para 6 of cross- examination, he has stated that he Police came at the gate of his house and said that the accused had sciosed about the head of Umed Singh that has to be seized, thereafter, they went along with the Police in a jeep to Gajbhavna forest area and th t was at a distance of 5 kms. from the road. They reached Gajbhavna at the time when the sun was rising and the accused was handcuffed. ere were leaves lying on the ground where the head was buried, the ame were removed by him & Ramjatan, l o r t e a h XI~HC—78 ”\s‘:r,,/\ AA“ nwl Ja . W \ m ®*&83a @1200; mm (Wu) WWW ammm WW§§$W $afmané$t mafgam dn’d the bag UUII'Launng i'ne head was ‘ IrTereaHef Hie SHHU Wab ICIIIUVS taken out. If the evidence of this witness given by him in para 1 of his examination-in-chief and para 6 if cross-examination is taken together, the logical conclusion which can )e arrived is that the accused disclosed the place to the Police in the pre ce of this witness where he buried the head of Umed Singh and'therea er, at the instance of the accused, on the discloser made by him, the P lice took this witness in the forest area from where the head was taken o t. Sanjay Tiwari (PW-8), ln estigating Officer, has stated invhis evidence that on 8—6-2001 in the presence of Ravi & Ramjatan, Gangaram gave memorandum t at the head of Umed Singh has been buried near Rajkot Road in Gajb avna forest area, the memorandum is EXP-3, based on that memoran um, after digging the land one plastic bag containing head was taken out and that was the head of Umed Singh. demolished. ln the cross-examination of this witness this fact could not be In the cross-exami ation, this witness has stated that it is incorrect to say that memorandu Ex.P-3 was not given by the accused. He has further stated that it is in orrect that the head was not recovered at the instance of the accused The defence has not been able to demolish the evidence of this w' ness‘regarding the memorandum and recovery of the head. . ln the circumstances, in vie of the above evidence of Ravi Prasad (PW-3) & Sanjay Tiwari (PW-8), i is established that the separated head \ s n . ' CLb—amA . v‘ a. l ‘Ja A XI~HC 78 a C9 v 92$? WW W200 i mm (W3) WWW mwm Wm1¥w®gr£ amméwm $WW of Umeu alngn wab leuuveleu‘ fro n u ' nce of the accused. The judgment cited by i arned counsel for the appellant is distinguishable on facts, in that c se, the Apex Court after evaluation of the evidence of the witnesses a d the Investigating Officer came to the conclusion that it becomes do btful that the dead body was really recovered as a result of informati n given by the accused, that is why the recovery was not believed in that ase. Third circumstance As far as recovery of Tabb l is concerned, even though the doctor has stated that a Tabbal was se t to him and the injury inflicted on the neck of the deceased could be c used by that Tabbal, but this recovery of Tabbal is doubtful, the accuse cannot be connected with the crime in question on the basis of th recovery for the reason that the memorandum Ex.P-3 alleged to ave been given by the accused shows that the accused disclosed that he Tabbal has been kept in his house and he can get it recovered, wh reas Ravi Prasad (PW—3) has stated in his evidence that the accused dsclosed that after breaking the Tabbal into pieces he has thrown t same in the forest area and the memorandum says that the acc sed gave information that he has kept the Tabbal in his house. More ver, the seizure memo of the Tabbal (EXP—7) shows that there was bl od on the blade of Tabbal, whereas as per the doctor’s report and the e idence there was no blood on the blade {TabbaL Even Ravi Prasad ( —3) has stated that the blade of Tabbal \ \_ i h P C9 Agg? I WW E1200 '2‘ mm (Wm WWW ammm mm€fwm $aifawaném Wmm ' f his evidence that there was blood on the blade & handle of TabbaL ‘ Therefore, in view of the above contradictory evidence, it is difficuit to believe the recovery of Tabbai at the instance of the accused, as such, we are of the opinion that the prosecution has not been able to establish the recovery of Tabbai beyond reasonable doubt. Fourth circumstance As far as this circumstance is concerned, Ravi Prasad (PW—3) has stated in his evidence that a ured Lungi, one Gudri & shawl were seized under Ex.P-8. Sanjay Ti ari (PW-8) has stated that on 8—6-2001 on production by Gangaram on Lungi stained with blood was seized under EXP—8. Perusal of the sei ure memo EXP-8 shows that one blood stained Lungi was seized. Dr. jun Singh (PW-9) has stated that one Lungi stained with blood was sen to him and the same was examined by him. The report EXP-29 given y him shows that the blood stain like mark was on the Lungi. The ac used has not explained that as to how his Lungi was stained with bi ln reply to question No.43 he has stated that it is incorrect that the ungi was stained with blood. For the foregoing discuss on, the prosecution has been able to establish beyond doubt the follo ing circumstances against the accused viz., that the accused had motive o commit the murder of Umed Singh on account of old standing animosi y; the chopped head of the deceased was recovered at the instance f the accused from the forest area of Gajbhavna and the blood staine Lungi of the accused was seized. The i c o r o l1QFfu Tn ) '1)” ;‘AQA ‘ W"% XI-HC 78 and r‘ecove‘ry Of L'ungi from his house have not been explained by the accused. Therefore, chain of the circumstances established by the prosecution unerringiy points towards the involvement of the accused in the crime in question, as such, i resistibie inference can be drawn from these circumstances that the ac used was the author of the crime and there is no possibility of the com ission of crime by any other person. ‘ ln the result, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Sdl- Sd/- L.C. BHADOO T. P. Sharma ; Judge Judge .