h HIGH COURT OP CHHATTISGARH AT BILASPUR CmMINAL APPEAL N0. 57 OF 2000 DIVISION BENCH: HON. SHRI L.C. BHADOO, Ss HON. SHRI DHIRBNDRA MISHR&, JJ ^e.. AppeUant Nageshwar Versus Respondexit The State of M. P. through JUDGMENT FOR CONSIDERATION . Sd/- JUDGE /04/2007 HON'BLE SHRI JUSTICE U^qBtt^®^ P^^a^yt-Y^ i^^ ^qB«^^ /-f/^^f /A. Sd/- Dhirendra Mishra Judge POST FOR JUDGMENT ON<^04-2007 Sd/- L.C. Bhadoo Judge ^ ^. h-' HSGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL N0. 57 OF 2000 DIVISION BBNCH: Appellant Respondesit HON. SHRJ L.C. BHADOO, 8s HON. SHRI DHIRENDRA MISHRA, JJ Nageshwai^ S/oThalair Prasad Khairwar, age 39 yeai's, occupation - agriculture, R/o. Bhelkach, PS. Ramkola, Distt.- Sarguja (Chh.) Versus The State ofM.P. Uirough P.S, Ramkola, Distt. Sarguja (Chh.) Presence: Mr. A,K. Prasad, counsel for the appellaiit. Mr. U.N.S. Oeo, Addl. PzibUc Prosecutor for the State. JUDGMENT (Delivered on 2-^^April 2007) PER L.C. BHADOO. J By this appeal under Section 374 (2) of tbie Code of Crioiinal Procedure the accused/appellaut has qziestioued the legality aad correctness of the judgment ofconviction and order of sentence dated 20th Noveniber 2000 passed by Additional Sessions Judge, Siu'ajpur in Sessions Trial No, 144/92, whereby flie leanied Additional Sessions Judge after holduig fhe accused/appellaiit guUty for coraiuission of the offence uiider Section 302 of fhe IPC, seuteuced htoi to undergo iaiprisonment for Ufe aiid pay a fine of Rs.1,000/-, ia default of payment offuie to furtlier undergo five moutlis R:I, \ 2, Case of the prosecution, iii brief, is that iii tlie night of 16,9.1991 at about 10.00 p.ni. acciised/appellaiit Nageshwar canie to the house of Shrawaii Kumar aiid iavited him at the duiner at his residence. Shrawaa Kuniar went along with Nageshwar. Thercafter, Shrawaii Kuniar dicl iiot retunl tii th-e night, On the next day moniiag at about 6,30 a,Bi. Ranidev @ Paklu weiit to the hoiise of Shrawau Kum.ar aiid iiiformed his brotlier Dilip Kumar (PW-1) that wife of Nageshwar has iiifonned hiai that life of Shrawan Kuniar is in ^. ! daiiger, therefore, his family nienibers be hifonned. On receiviiig fhis iiiformation Dilip Kum.ar along with Shobhit weut to tiie house of Nageshwar, thereafter weut to PoUce Station Ranikola aiid lodged the written report Ex,P/l, 011 which Head Coustable along with iwo constables left tlie police station for fhe house of Nageshwar. Ou tih.eir askiag the door was opened aiid Dilip saw that the dead body of his broth.er was lyio-g io. Parchhi There wex'e iiyuries on his neck, liand aad wrist caused by sharp edged weapon. Inquest (Ex,P/ll) was prepared 011 tiie dead body of Shrawaii Kuniar. Merg intiBiatiou (Ex,P/2) aad Dehati Nalishi (Ex.P/3) were given by DIIip Kum.ar. Based on that, Police Station Ram.kola registered crmic No. 75/91. Deacl body of Shrawaa Kum.ar was seut for postinortem exaiu.in.ation to Goveniment Hospital, Pratappur under Ex.P/4 whei-e Dr. Shivlal Paikra (PW-6) couducted tlie postaxorteni on 18,9.1991, He opiaed that cause of death is shock due to heiiioniiage because great vessels of neck were czit. Deafh. was hom.icidal, He noticed six tacised woiinds aiid bruises on Uie body ofdeceased. Memorao.duni Ex,P/ 13 was given by the accused aad based 011 that, weapon of offeuce TalAal was recovered at Uie iiistaiice of the accused under Ex,P/13 froni his house. 3, After coBipletioii of iavestigation charge sheet was fUed iii tlie Court of Judicial Magistrate First Class, Surajpur wlio m. turn coniBiitted tlie case to the Sessions Judge, Sai'guja froia where leanied Additional Sessions Judge, received the case on transfer for trial. 4, Prosecution exammed eight witnesses at the trial ia order to estabUsh the. charge agaiast fhe accused. Stateraeut of the accused was recorded under Section 313 ofthe Cr.P,C. uiwhich he denied the Biaterial appeaiTQ-g agaio.st hini in the prosecution evidence aiid stated th.at he is iiinocent aad has been falsely impUcated io. tlie criBie. One witness naniely Moharsai (D.W,1) was exaniuied by the accused in his defeuce, 5. Leamed Additionat Sessions Judge after hearing counsel for the respective parties, convicted aucl seiitenced Uie acciised as aforeraentioued, 6. We have heard Mr. A,K. Prasad, leanied couiisel appeariiig on behalf of tiie accused/appellaat and Mr. U,N.S, Deo, leamed Additional PubUc Prosecutor for the State/ respoudent. 7, Mr, Prasad has not disputed flie hom.icidal death of Shrawan Kuniar, Moreover, Dr. Shivlal Paikara (PW-6) who conducted postmortem. on fhe body ofdeceased Shrawao. Kumar on 18.9,1991 has stated that foUowin.g uijuries were found ou tiie body of Shrawaii Kumai': (i) incised woiind io. the size of 1 ^" x 1?' x 1" on Uie wrist on right hand; uhia boue was cut completely; (ii) uicised wound 2 W x 1/2"? x 1/2" on the palm of tlie right haiid; (iii) tacised wound in the size of 2 x W x W over palni of the right hand; (iv) iacised wound ia tlie size of8" x l'? x ^ over left side of face aad cheek aiid was extendiag behuid fhe head, clotted blood was present; (v) iacised wound ui tiie size of 1 ^ x W9 x %" on the wrist of the left hand, bone was cut, clotted blood was present; (vi) incised wound ui flie size of 5 x 2 ^ x 1 1/2V cn Uie right side of fhe ueck aad coUar bone, the hijiuy was extenduig froia Biiddle of right aad left coUar bone up to right scapular region, coUar bone was cut, cervical aad vertebra were cut to a certaui extent. AU the great vessels aad Biussels were cut, wuidpipe was also cut; (vu) bruise in the size of 1 ^ x 1 1/2" on the knee, fhere were other bruises on the left haiid aiid shoulder, Braui aiid brain m.enibrane were contested, both tiie chambe.rs of the hearcl were empty, wuidpipe aiid foodpipe were cut aud death was homicidal ia nature. Therefore, iii view of above niedical evidence it is estabUshed tliat death of Shrawan. Kuinar was homicidal ui naturc, 8, As far as uivolvenieut oftlie accused/appeUlaiit ui the crioie iii question is concenied, there is no oczilar or du'ect evidence in tliis \ ^. .^ h^ case. The whole case rests upon circurastaa.tial evidence. As per the setUed law to base coiiviction on circunistaiitial evidence, the prosecution aiust estabUsh aU the pieces of iiicriBiuiatuig circunistaiices by reUable aiid clin.chiiig evidence and flie circunistaiices so proved inust form. such a chaio. ofevents as would permit 110 couclusion otlier than oue of guUt of flie accused, Suspicion, however grave it may, cannot be a substitute for a proof aiid the coiirts should take utaiost precaution ia fiiidiiig aii accused guilty only 011 fhe basis of tlie ciTcunistaiitial evidence, 9. In tlie present case, the cu'cum.staaces relied upon by th.e prosecutiou to connect the accused witii crime ui question are Uiat (i) ia tiie iiight of 16.9,1991 accused Nageshwar caoie to the house of deceased Shrawaii Kuniar, took Shrawan Kuraar with hiai to his liouse under fhe pretext of duiner at his residence; (ii) Shrawan Kum.ar did not retuni to his house ia flie uight, on the next day his dead bodv was found ui the house of accused with stx iacised wounds and ofh.er uijiiries. 10. Mr. Prasad, leamed counsel for the accused/appellaiit argued that in. fact deceased Shrawan Kuniar caoie to the house of tlie accused in fhe night hi a diTinken condition, tried to niolest tlie v/ife of accused/appeUaiit, tiierefore, wife of accused attacked Shrawaa Kiiniar aad comniitted his Biurder. Accused was not at his residence at tliat tirae. 11, Ou the otih.er haiid, Mr, U.N.S. Deo, leamed couusel for Uie State/respondent supported inipugned judgm.eut ofthe trial Court, 12. Havuig heard counsel for the respective parties, we have perused the prosecution evideuce, PW-1 Dilip Kum.ar Yadav, brother of the deceased, has stated that ta tlie fateful night accused Nageshwar came at about 10.00 p.xn. mid took his brottier Shrawan Kum.ar with him. teUmg hioi to take dianer at his residence. Next day mommgwife ofaccused sent mtimation fhrough Raaidev that tlie Ufe of Shrawaii Kuinar is iii daager, on which he weut to fhe house of Nageshwar. The door of the house of Nageshwar was closed from outside with iron chaiii, on callin.g nobody responded, therefore, he k s \ v ^- went to flie PoUce Station Ranikola aad gave report Ex.P/1 which was written by Kzildeep Dubey, Thereafter, poUce caine to the house of Nageshwar, after reniovuig the u'on chaiii, ftie door was opened, he saw fhe dead body of his brofher lyiag ia tiie courlyard [Parchh^ of tiie hozise of accused, There were mjuries on the hand aad neck of his brotih.er, Thereafter, poUce prepared iaquest and otlier papers. He gave Dehati report Ex.P/2 aad Dehati NaJishi Ex.P/3. PW-2 Lalebai, wife ofthe deceased has also stated that 011 tlie fateful night, wife of Nageshwar canie to her hoiise and caUed her husbaad to Uieir house but her husbaad did not go, tliereafter, ui tiie night at about 9,00 to 10.00 o'clock accused Nageshwar caoie and took her hiisband with hiai, Next day nioiTung Raiadev caaie to her house. He mformed fhat life of her husbaad Shrawaii Kuniar is ni danger, Hearing this news, she became iincosiscious, her brother-ia-law DUip Kuro.ar took her to the house of Nageshwar where she saw the dead body of her husband lyuig ui an uijured couditiou. PW-4 Mohaiidas, son ofShrawan KuBiar, has also coiToborated. tlie above evidence. 13. Lalebai has stated tliat her husbaiid went to tlie house of accused 011 the io.vitation of the accused hiraself aiid iii fact he acconipaiiied tlie accused t6 his house. She has furtlier stated tliat oii tiie iavitation of the wife of tiie accused, her husband refused to go, thereafter, when tlie accused caoie to take hiai, he weut with him. It is iacorrect to say Uiat her husbaiid had created terror ui the viUage. PW-1 Dilip KuBiar ui his cross-exaBiiaation has stated tliat it is ia.coiTect to say Uiat wife^ of the accused in.fomied that deceased was tryio.g to outrage her Biodesty, that is why she attacked hioi aad coiiiinitted his raurder. These witaesses have not been cross" exainined on tiie aspeet that Nageshwar hiinsetf did not conie to the house of tlie deceased, took him. to his house where tlie dead body was found. Froai the evideuce of tiie proseciition witnesses it is estabUshed Uiat accused Nageshwar hiinself came to the house of deceased, requested htDi to acconipaiiy him. to his house for haviag diiiner with hnn, tiierefore, deceased Shrawan Kuiuar left for the house of the accused alongwitii hmi aad did uot retuni iu the night aiid ftie next day Biomiag the police, on beiag infonn.ed by Dilip i k- Kumar, found his dead body m the house ofaccused Nageshwar lymg io. fh.e courtyard. 14. Now, comiag to th.e question whether the defence has been able to estabUsh tlie fact fhat ia fact deceased Shrawaii Kumar tiied to raolest tlie wife of accused Nageshwar aad in that process, she attacked the deceased and coniiiiitted his murder. After perusal of the evidence, we are of Uie cousidered opiaion that the defence has not been able to raise plausible defence for Uie foUowuig reason fliat had the deceased Shrawan Kiiniar tried to oiitrage the niodest)7 of wife offhe accused Nageshwar, she might have raised cries aad even when she attacked Shrawaii Kuniar io. the iiight, she should have uifomied fhe vUlagers, village Kotivar and the Sarpao.ch about the uiciden.t, she cozild have gone to fhe poUce station to report agaio.st tiie act ofUie deceased but uobody was iaforaied nor aiiy report was lodged by her ui the poUce station to fh.is effect. In fact, Dilip Kumar (PW-1) went to the poUce station ancl thereafter, he caaie with. tlie poUce, door was opened aud dead body of Shrawaii Kuinar was found lyuig ia ao. uijured condition ia the house ofthe accused. Therefore, burden was on tlie accused to explaia Uie circunistaiices under which Shrawan. Kum.ar was assaulted, he sustained grievous mjuries aiid his dead body was found ui his hoiise. Moreover, tlie accused in his statenient under Sectiou 313 offhe Cr,P.C, has siaiply denied Uie prosecution evidence aiid has not stated that in fact deceased came to tlieir hoiise, tried to outrage raodesty ofherwife, therefore, his wife attacked him aad com.mitted his murder, Even he has not stated that he was not at his residence. The wtfe of accused has not been .exaniiiied by tlie accused to estabUsh the defence raised by counsel for tlie accused. 15, While drawiag attentioii of this Court towards the evideuce of D.W.-l Moharsai, Mr. Prasad argued that tiie accused was uot at his resideuce at tiie tmie of iacident wheii the accused came to their house to outrage Diodesty of his wife aad isi that process, his wife attacked hini and cominitted his Biurder. Perusal of the evidence of this witaess shows tiiat Dilip Kumar mformed him tliat wife of Nageshwar has coinniitted tlie Biurd.er of his broth.er Shrawaii Kiimar ^'. as has been uifomied to liim by Paklu, fherefore, he weut to Uie house of Nageshwar aud saw the dead body ofShrawan Kuin.ar where elder brofh.er aad younger brotlier of Nageshwar aad wife of Nageshwar were present Nageshwar was iiot present at his residence, he had gone to Pratappur Biarket which is 50 kni away from Uie vUlage, This witiiess has stated fh.at when he went to the house of tiie accused he was not at his residence but he has not stated Uiat accused was not at his residence iii the night when the crmie was coniniitted, nor such a statenient was given by the accused fhat he was not at his rcsidence io. the fateful night, 16. Leamed counsel for the appeUaat reMed upon the judgm.ent of the Apex Court io. the niatter of Ram.reddy Rajesh Khaaaa Reddy aad another Vs. State of A.P. reported in (2006110 SCC 172 iii which it has been held that the circumstantial evidence must establish aU pieces of incriaiuiatiiig circunistmices by reUable aiid cogent evidence aad flie cu'cunistances so proved must forai such a chaia of eveuts as would pennit no conclusion other Uiao. one of guilt ofUie accused, to base conviction on tlie cu'cunistaixtial evidence, 17. Applyiag the settied pruiciple of law which has been laicl down by the Apex Court ia the above judgnieut, we fiiid that the evideiice adduced m. tlie present case by the prosecution estabUshes tfae fact that accused himsetfcanie iii tlie night of 16,9,1991 to the house of Shrawan. Kum.ar, took hini to his house for havuig diiiner aad thereafter, next day Biomnig tiie dead body of Shrawan Kuniar was found iii tlie house of Uie accused with six incised wound aiid ofher uijuries on his dead body, which was lyuig iii tlie Parchhi of the house of the acczised aad uo explaaatioii whatsoever has been put fortli by the accused as to how Shrawaii Kuniai' died ui his house when he hmisetf took hnn to his house for the purpose of takiag draner. The defence raised by the accused that ui fact Shrawan Kum.ar has been aiurdered by his wife as he was tiyia.g to outrage her niodesty, has uotbeen estabUshed as discussed above. 18. In fhese circuinstaiices, we are ofthe considered opuiion that tlie circuiiistaiitial evidence addiiced by flie prosecution uneiTuigly poiiits towards Uie guilt of the accused, The only irresistible ^^J y3^ 8 conclusion caii be drawn froni the circum^staiitial evidence that the accused was author of Uie criine in. question aad therc was no possibUity of auy third person com.uig t.o the house of tlie accused and conimit tiie murder of Shrawaa. Kumar, 19. In fhe result, tlie appeal beiag devoid of substan.ee is liable to be disraissed and is hercbv disniissed, I Sd/- L.C, Bhadoo Judge Sd/- Dhirendra ]V[ishra Judge ^