A5Lg_ HIGH COURT OF CHHATTISGARH AT BILASPUR (DWI810S BEWCH1 COR&M: Hon'ble Shri V.K. Shrivartava, J, Hoa'ble Shti S.K. Agnlhotxl, J. CRIBUNAL APPBAL N0.06/1992 BaldaU Statgh Vs State ofChhatttegarh JITOGMBNT FOR CONSIDERATIOM— Sd/- V.K.Shrivastava Judge \/12/2005 Hon'bleSIui S.K, At&ihptei^J. J Sd/- Satish K. Agnihotri Judge Post for^ /12/2005 »l??'mi'a Sd//- V.K.Shrivastava Judge 1 HIGH COURT OF CHHATnsaARH AT BILASPUR Crimiaal Appeal Mo.06/1992 (Division Bench) CORAM Hoa'Me Stei Vijay Kmnar ^arivastwa, J. & Hoa'ble Shri Satish Knaaar Agaihotri, J. AppeUant sm BaMua Singh, S/o. Laxml Sln^i Chouhan, age 18 years, r/o. Lalkhadan, PoUce Statlon: Tonra, Talisil & DIst. Bitaapiu. Vs. Respondeat State of Chhattii^u-h fc:!:l!f!(':H PRESENT: Smt. Kirau iJaiu, Coimsel for fhe appeltant. Shri Akhil Mishra, Panel Lawyer for the State. JUDCTOBNT (DeUvered ons!'/12/2005) Per Vijav Kumar Shrlvastava, J. This appeal has been directed against fhe judgment of conviction and order of sentence passed by fhe Sessions Judge, Bflaspyr, on 26/09/1991 m S.T. No. 172/1991 whereby flie appeUant has been ~j^>avicted for comnuttmg fhe oflFence of murder puiiishabfc under Section 302 ofthe I.P.C. and sentenced hini to undergo im.pi@Munent for life. 2) Adinittedly, Chaadrika Bai- a widow, whose husband died 3 -4 years ago is fhe mofher ofthe appeBaat. AppeUant, lus niofher - Chaadiika Bai, appeUant's younger brother and his younger sister were liviag under a joint roof at vfflage Lalkhadan. Deceased Bhagela was matemal brofher of Milapa Bai. Bhagcla was living wifh Mflapa Bai aad was working in a Spinning Mffl along wifh Mipala Bai. In the iatervening night of 19-20/ 1l/1990 deceased Bhagela was sleepiag in appeDaat's house. Miiapa Bai in fhfi early inommg caiae to appeUanfs house to wake up Bhagela. When stie entered the rooia she saw Bhagela lying dead in iujured condition on a cot, in a pool of btood. She cried out and hearfag her cry Dev Charan Sahu caiue who also saw the dead body of Bbagela lying on a cot iuside the appeUanfs house, haviag injuiy ovsr his neck. Dev Charan went to fhfi PoUce Stetion and lodged fhe first information report. :s;iiiii7iag 3) The prosecution story, in brief, is fhat widow CIiandrika Bai had idicit relation wifh deceased as a result fhereof she conceived aad was canying pregnaacy for about 13 weeka, fherefore, fhe appeUant who was the son of Chaadiika Bai iu fhe mtervenmg lught of 19-20/11/1990, wben Chandrika Baiwas not ia ftie viUage, went to the house ofdeceased caUed fhe deceased to comc t6 his house to sleep in the Bight. Therefore, deceased along wifh appellant came to appeUaat's house and reiaained in. his house in fhe iiight^ Mflapa Bai and dcceased bofh were working in a Spiruung MiU.. MUapa bai had no issues, fherefore, she kept fhe deceased and brought tiim up. In the nionung she went to the ap.peUant's house to wake up Bhagela so fhat fhey may go to fheir T^ job. She called fhe appeUant aad asked him to wake up Bhagela. AppeUaat told fhat Bhagela is sleeping in other rooni, fherefore, she opened the door where she saw the dead body of Bhagela lying iaside the rooin. The dead body fiiU of bk)od was lying on a cot haviag injuiy on his neck and btood was flowiag beneath fhe cot. On beiag informed by Milapa Bai, Dev Charan came to the spot, saw fhe sceuario and fhereafter went to fhe PoUce Station and lodged flie first information report indicating his suspicion on fhe appeUantas au author ofthe criine. 4) J.S. Badoria SHO m.vestigated the crtine, who wisited the spot, piepared the Panchnam.a of the dead body of deceased Bhagela which was found inside the house of fhe appeUant and sent the body for autopsy. Doctor Abhijeet Sen conducted the autopsy aud opined fhat cause ofdeath was shock resulting fioin extensive iajuries to ftie brain and severe blood loss froni severed blood vessels of fhe neck. During investigation, on appeUaat's memorandiun one knife from. a poud aud one SOSK finin. well were recovered and aflter examiaation Medical Officer gave his opuiion ttiat the injury over the head of fhe deceased could have beeu caused by fh.e axe and the iajuiy over ftie ncck couM have been caused by fhe knife. Statemeuts ofwitnesses were recorded under Section .161 offhe Cr.P.C. Blood staiaed earfh and control earfh / were seized fnom. fhe spot. Clofhes i.e., one Baniaa aad halfpant wora by the appellant were also seized. Sonography report has been coBected regardiag iUicit relation and pregnancy of appeUant's inofher - Chadrika Bai. After completion of mvestigation, charge shcet was led in fhe Court of Chief iJudicial Magisteate, who conmutted the case to the Court of Sessions for trial. 1''ii)[t«.-l!>B. 5) Cbai^e .under Section 302 of the I.P.C., has been fiaiaed agauist the appeUaat, read over and explamed to him who abjured the guilt Appellaafs defence was that he is ianocent and has been falsety iuiplicated in the case. 6) Leamed trial Coiu-t, afiter due appreciation of the evideace held fhat Chandnka Bai bad fflicit relation wifh deceased Bhagcla and as a result thereof she conceived and was canyiag pregnancy. Cbandrika Bai to save herself froiu hunuliation left the viUage aud was Uving in her parental house. On 19/11/1990 appellant stated fhat his younger brother was fi-ightened, caUed the deceased to skep in his house and took him to his house. In the lu^ht deceased stept ia the appeUant's house. In the early moming when Mflapa Bai cscme to the appeUant's house, appeUant said that Bhagela was not here and soon tbereafter changed his version and ^lced to see in ofher rooiu and in other room dead body of deceased Bhagpla was lying on a cot. At fhe iastance of the appellant, axe article (A) was recovered aad seized and knife article (B) was recovered and seized. Medical Officer opiued ttiat the injuries found on ftie dead body of deceased / Bhagela could have beep caused by the seized articles axe (A) and knife (B). Furftier, leamed teial Coiirt considering aU fhe circtunstances held the appeUaat guilty for coiumittiag the ofifence of murder of Bhagela punishable under Secdon 302 of fhe I.P.C., •convicted and seatenced_hiBi_accordingly. &) 7) Dr. Abhijeet Sen (PW/9) ia his evidence has deposed fhat on 20/11/1990 he perfonned post laortem over the dead body of Bhagela and found the foUowing extemal injuries. °1. An wvased wound 2' x %* on the lefl tempotv-parieial region at the level ofupperend ofpwww. qfthe ear, horizontdt in diredion, ctean »nargins, bone exposed ccnd. the bone wcis aiso cut, large blood cfotpresenl in fhe scalp ccround fhe injury. 2. An incased wound on the neck extenQing Jrofnjust behind the left stem mastoid miiade to l' to the right ofthe thyivid cartilage, suse 8" long cmd 3° viide. The left carotid ccrtery lefl jugular vein, lefi stem masimd nwsde, sfrap miisdes of the left side of fhe nedc, thyroid oartilage were aH cut eiqmsing the oortical veriebrae" S He further deposed fhat on iutemal exanuuation he fouud below: "A penetrating would cutting thraugh the bone of the left femporo pariefctl region sza®2' x %* wvth a lerviar fractwe of the sfcuB bones qf the left side, exlending fram and confinues from ihe posterior end of fhe above bony injury to the rmddle of the ocapital bone posieriorily. The merunges cfihe brcdn were cut in (he wciund area. The brain. was lacerated just beKoiu the wound area with large dots of blood in the brain and memnges. Hp has fiirfher deposed fhat in his opinion fhe cause crf / death was shock resultmg finiu extensive iajuries to fhe brain aud •*•%••• severe blood loss fi»iuftie scvered blood vessete ofthe neck. Bofh fhe above injuries fouad on the dead body of deceased Bhagela were ante mortem. in nature. His report fa Ex.P/11-A. His stateinent has not been chaUeneed iu cross exHnunati.on. aad no +-— 6 other material is there to dtebeUeve his evideuce. Thcrefore, fcova his evidence it was proved that fhe dcceased Bhagela died hoiaicidal death as a result of iajitries caused on his head and neck. ®:'!::1:l!iS;;!a- ^9 8) The whole case rests on cucuinstantial evidence. HouTsle fhe Apex Court has led Isnv flx»ia tune to tune on circumstantial evidence. HonTile the Apex Court whfle deUvering judgment ia State ofV.P. Vs. Sa.nfvy Rat, reported 1n f2004) 10 SC'C 570, relying on fhe judginents deUvered iu flufceim Slngh Vs. Slxtte of Jia/asthan, reported. in (1977) 2 SCC 99, JBrcMlu Vs. State of ffgdera&ad, rcported in AIR 19S6 SC 316, EafahhcidrafyM. Vs. State of Ktiriuttakti, reporfed 1m. (1983) 2 SCC 330, State o/U.P. Vs. Sulchfcasi, reported in ASt 198S SC 1224, Bcdiuinder Slngh Vs. Stute of Pun/nb, reported in AEt 1987 SC 3SO, Ashok Kvmar Chatterfee Vs. Sttrtts »fSS.P., reported in. AZR 1989 SC 1890, Bhiagat Rvam. Vs. Stcte uf Pun/db, reported (n AJK 1954 SC 621, C. Chenga Jteddg Vs. State o/A.P., reported in (1966) 10 SCC 193, PadfOa Veera ReMy Vs. State ofA.P., reported in AOR 1990 SC 79, State of U.P. Vs. Ashok Kunwr ShrtoeistatXt, reporteA tn. f1992} 3 SCC 86, Heutunuutt Ctovind Nfuyundkdr Vs. State ofM.P; reported in AXR 1952 SC 343, SharajS Birtfatehand Sania Vs. Sttate of / JKTahurashtrci, reported in ASK 1984 SC 1632, has held fhat convictiou caa be based solely on circiuastantial evadence, but it should be tested oa touchstone of law relating thereto laid down by fhe Apex Court. Law scttled by the Apex Court on circtunstantial evidence is that fhe circuinstaaces niust be cogcntty 7 ;»«Bil and firmly estabUshed and whcn aU fhe circumstances taken cumulatively should fbmi a chain so coinplete fhat there was no escapc from the conclusion fhat wifhia aU humau probability the crinie was coinniitted by the accused and none-clse and iu capable of any other hypotheste than. Ifaat of the giult of the accused. Such circunistantial evidence should not only be consistent with the guilt of fhe accused, but should be inconsistent with his uinocence. 9) In the iasteuut case, the convictiou has been held on fhe ciTcunistances that appeUant had a niotwe to kiU the deceased and the deceased was laat seen alive ia fhe company of the appeUant who fioni the house ofdeceased took fhe deceased to his own house aad in fhe house of appellan.t, fhe dead body of deceased who had severe injuries on his head and neck, was found. The wcapon by which the injuries have been caused to the deceased was recovered ou the discovery and iafonnation inade by the appeUant 10) Adinittedly, Chandrika Bai who is the inofher <rf fhe appeUant was widow. Her husbaud had died three - four years ago froin the date of iuciden.t Mflapa Bai in her stateinent has deposed ,;thaf Chaadrika Bai, when caaae to viUage after her / inarriage with the father of Baklau Siagh, since then she had love affairs wifh fhe deceased. Dev Charan Sahu (PW/3) has deposed that since last seveu - eight years deceased had iUicit relation wifh the niother of the appellant and appellant also kuew that the deceased liad ilUcit relation with his inother. 8 ^l^ 11) Doctor Guruinukh Mcghani (PW/7) has proved the report (Ex.P/2) issued by him aad deposed that he did pelvic sonography ofMrs. Chandnka Bai and after examuiation he was of the opinion fhat she had normal single pregnancy of about 13 weeks. Report (Ex.P/2) was issued on 16/11/1990. Neither the above evidence has been chatlengpd nor rebutted, therefore, it was proved that fhe deceased bad Ulicit relation with widow Chandrika Bai who is the mofher of tbe appeUant aud as a result thercof widow Chaadrika Bai conceived and was canyuig preguaucy of 13 weeks. The fact fhat she was canying pregnancy, exposed only after fhe niedical examixiation which was doue on 16/11/1990. -!tia 12) Ramin Bai (PW/1) and Milapa Bai (PW/2) m their evidence have categoricaUy deposed that in fhe iatervening njght of 19/20-11-1990 appeUaat canie and requested the deceased to sleep in his house aad took him to his house for sleeping there. Mflapa Bai (PW/2) has further deposed that ncxt day in the early jnommg she weut to the appeUant's house to wake up Bhagela so fhat they may go to work. AppeUant told fhat Bhagela was sleepiag in other rooin. She entered the other rooin aad found the dead body of the deceased Bhagela lying in injured condition / .having cut injuiy over neck and blood was lying there. She raised ciy and on hearing her ciy people gathered therc to whom she narrated the stoiy. Ramia Bai (PW/1) has also deposed that Milapa Bai by weeping aiid crying came and told that Bh^ela (—,—1^^-^ •was kffled. ^o B!!?i:l!!8>. 13} The statements of both fhe witnesses do uot sitEFer fboia auy infirmity and no evidence has been adduced to rebut fheir testimony. Therefore, it was also proved that ia fhe interveiiing night of 19-20/11/1990 appeUant took the deceased Bhagela to his house aud in. fhe earty nioraing dead body of Bhagela was found iaside tlie house ofappeBant 14) Froia fhe evidence of Nanlu Singh ( PW/6) and Virendra Siagh (PW/11) it has been pioved that the appellant discovered the fact that he has fhrown fh.e axe in fhe weU and kmfe ia the pond aad at his iastance ttie axe was seized vide seizure inemo of Ex.P/8 aad knife was seized vide Ex.P/9. Ftoin the evidence ofJ.S. Bhoriya (PW/12) and Dr. Abhijeet Sen (PW/9), it has been estabUshed fhat the seized axe and krufe were scnt to niedical o£5cerfor examiaation aad opinion fflad afier examination inedical of&cer gave opmion that ityuiy No. 1 of deceascd Bhs^ela could have been caused by fh.e seized axe aud injuiy No.2 coiild have been caused by the seized knife. By the said evidence, it has been proved that the axe aud knife recovered at the instance of ftie appeUant are the weapons of offence by which iajuries over tiead aad neck ofdcceased Bhagela had been caused. 15) In fhe iustant case, it is pertaient to note one more ciTczunstance was avaUable on the record, but that cireum.stance has not been considered by fhe Court below. That circumstaace appears ia the evidcace of Rana Singh (PW/5). He has deposed iu his evidence fhat he_heard fhe noise of weepiag and ciying 10 comjng finm. fhe house of Bhagela, therefore, he was goiag towards there and on fhe way he inet Dev Charan Sahu and Shiv Charan Saliu they told fhat Bhagela has beeu kiUed. On the spot appeUant also rn.et who told that SUv Charan, Dev Charan and ofhers are suspecting that he has IdUed Bhagela, therefore, he is afraid that hc would be kiUed. Rana Singh (PW/5) has further deposed fhat he apprehending that appeUant inay be killed, took bim to the Police Station so fhat he inay be saved. This evidence has not beeu challenged. AppeUaat if he was iaaocent, had an opportunity to explain, but iastead of ginng any explaaation he sought protection, 16) AU the above circumstances takcn together fona a coiaplete chain and gives a picture that the inofher of the appeBant Chaadrika Bai had iUicit relation with fhe deceased as a result ofwbich Chaadrika Bai conceivcd aad soon before fhe date of iacident it was exposed that she was canying pregnancy of 13 weeks. Therefore, to save fhe prestige of fanuly and reputation, Chaadrika Bai lcft the vfflage aad ia the iuterverung rnght of 19- 20/11/1990 appellant who is son of Chandrika Bai called the deceased to sleep wifh theia and took fhe deccased Bhagela to his house and wheu Bhagela was sleeping in rooin appellaat by iaflictm.g injuries by axe on his head and by Ds^er (kniie) on his / neck brutatly fcEUed Bhagela. In fhe early mommg when his inateraal sister - Milapa Bai cam.e to wake up him she found fhe dead body of Bhagela jnsKle the appeUaat's house. —+—--. 11 ^9W Raju 17) Learaed trial Court after due appreciation of fhe evidence, r^hfly took fhe proved circumistaaces for proving the ofFence of inurder of Bhagela by the appellant has not cominitted any error and r^hfly couvicted and sentenced him. •» 18) In fhe result, the appeal fails aad is dismissed. Conviction aad sentence awarded by the Sessions Judge aic luaiataiaed. -- Sd/- V.K.Shrivastava Judge Sd/- Satish K. Agnihotri Judge