HIGH COURT OF CHHATT!SGA§H AT EILA$PUR D.B. HON’BLE SHRI DHIRENDRA MISHRA. & HON’BLE SHPJ RN. ¢HANDRAKAR, JJ Criminal Appeal No. 981 of 2W3 Appeliant Dharmendra Tripathi Accused No.2 Vefsu5 Respondent State 0f Chhattisgarh JUDGMENT FéR CONS/IERATIQN D , 4x Sdl- nmnENDRA MISHRA Judge :5 . HON’BLE SHRI R.N. CHANDRAKAR, J . QVE}HLE5L ILbLChandn£au Judge )9 3.2010 POST FC.R JUDGMENT ON' L AUGUST. 20W 9 3.20m G: l "L HIGH COURT QF CHHATTISGARH AT BILASPUR DB. HON’BLE 8HRI DH!REND% MISHRA, & HQN’BLE SHRJ RN: CHANQRAKAR, J-J Criminai Appeal No. 931 of 2063 Apneliant . Dharmendra Tripathi, Accu‘sed No.2 S/o Late Dinanath Tripathi, Aged about 24 years, Occupatian : Name, ”Rio Chandrashekhar Nagar, Thana Purani Basti, Raipur $® Versus -.. .r.--.. Resmndent : State of Chhattlsgarh, Through : District Magistrate, Raipur (CG) Present: “My. Surendra Sing’h, Sr. Advocate with Shri N‘K. Mehta, Counsel for the appellant: - Mr. Ashish Shukla. Govt. Advocate for the State. J U D G M E N T (Delivered on ’ g“ August, 201 0) Per Dhirendra Mishra, J The appeliant has preferred this crlminal appeal against the judgment of conviction and order of sentence dated 30‘“ August, 2003 passed in S.T.No.483/O2, whereby the ieamed Vlil Additional $essions Judge (FTC), Raipur, after holding the appeilant guitty of committing murder of his father Deenanath Tripathi and causing disappearance of his dead body, has canvicted him under Sections 302 & 201 of the IPC and sentenced him to Life imprisonment, pay a fine of Rs.1000l— & R.l. for seven years and fine of Rs.500/-, respectively with usual default clauses. Apart from the appellant, accused Bholasharan was also prosecuted. Holwever, he was acquitted of both the charges by the trial Court. 0% Case of the prosecution, in brief, as projected in the charge sheet, is th'at the deceased was posted as Forester in Nagri Sihawa. Appellant is the so‘n and accused Bholasharan is brother-in-Iaw of the deceased. The a deceased used to remain annoyed with the appellant; he had ousted the a i pellant from his house in the past and used to say that he shall disentitie (iii m from inheriting the property. On 29m March, 2002 aiso in the night, the dlceased had scotded the appeliant for not working and because of this, he a‘ ministered the deceased some steeping pitls with edibles and committed h ‘7 ~«e 4 15 days in the front garden, smurder with an axe while he was sleeping. He buried his dead body after ’\. w jJi\ Jt- G3. Further case of the 9rosecution is that compiaina’nt‘Arun Kumar Tripathi (PW—2) — cousin of the deceased — is posted as Jail Warder in Burg Jan. Neighbour of the deceased nameiy Romii Kunwar @ Guddu informed thecompiainant on telephone on 15‘ May, 2002 that the deceased is missing from his home since the night of 29‘“ March, 2002. Son of the complainant, who resides with him, told him that Deenanath left for his duty in the night at 2 am for Sihawa on receiving telephone from the Ranger. He also told him that Dharmendra informed him on telephone that he has murdered his father Deenanath Tripathi and buried his dead body in the garden within his compound as Deenanath has kept a wife and he has three sons through her. Complainant went to the house of ffeenanath and found that foul smell was emanating. Dharmendra was not present there. $f 04. On the report of Arun Kumar Tripathi (compiainant), First information Report of EX.PI5 was registered on 5.5.2G02. On the same day, merg was register‘ed vide ExTP/4. The SHO prepared spot map vide EX.PI1 9. PW-14 addressed a memo of EXP/18 to the Sub Divisional Magistrate, Raipur for deputing an Executive Magistrate for exhuming the dead body buried in the courtyard and to perform inquest. Thereafter, dead body of Deenanath Tripathi was exhumed in the presence of Executive Magistrate and inquest was prepared vide EXP/7. The dead body was sent for autopsy to Medical Coliege Hospital Raipur (in short “Mecohora”) where Dr. Sanjay Kumar Dadu (PW-4) conducted postmortem and gave his report vide EXP/11. Bloodstained axe was discovered on the memorandum (EXP/2) of the appellant and seized vide EXP/1 from the house of the appellant. Seized axe was sent for examination to Mecohora and opinion of the doctor is EXP/1 2. Articies seized during investigation i.e. two sealed containers having yiscera, pieces of liver and kidney, and one sealed container having solution of salt was sent to FSL for their opinion for the confirmation of presence of poison. Similarly, other articles seized~ during investigation, such as ibioodstained axe and bloodstained soil etc., were forwarded to FSL for chemical examination. However, report of the FSL is not available on record. 05. After completing investigation, charge sheet was filed in the Court of iJudicial Magistrate First Class, who, in turn, committed the case to the Court of Sessions Judge and the same was received on transfer for triai by learned Additional Sessiohs Judge. 06. Learned trial Court framed charges under Section 302and 201 of the IPC against both the accused persons, who abjured ,their guilt. The l _ prosecution, in order to establish its case, examined 14 witnesses in all. tm, Thereafter, statements of the accused persons were recorded under Section 31 3 of the Cr.P.C., in which they denied the circumstances appearing against them in the prosecution case and pieaded innocence and false impiication on account of animosity. The appeliant took a specific defence that he had gone to Puttiparti in connection with treatment of his son on 22.22G02 and stayed there for a month and returned only on 30.3.2002 to Satna to his viiiage. He returned after staying for a month in the end of April when he was arrested. He also examined witnesses Deepak Sharma, Saga and Dilip Kumar in his defence. 07. Learned trial Court, after hearing counsel for the respective parties. convicted and sentenced the appeilant as mentioned in para-1' of this judgment. 08. Homicidal death of the deceased has not been disputed. Dr. SK. Dadu (PW-4) conducted postmortem and proved his postmortem report of EXP/11, in which he recorded following findings. and opined that the dead body was in a highly decomposed condition, on the. basis of injury present over the neck. cause of death is excessive bleedings and shock as a result of numerous incised wounds over neck; injuries were caused by hard sharp— edged and heavy weapon and the same was homicidal in nature. He further opined that the period of death is between 3 to 8 weeks before postmortem. lniuries: (i) The dead body was in advanced stage of decomposition and auipocere and partiai ske’tetonized form which was visible (on face and frontal neck out). ‘ (ii) One incised wound of size 5 cm x If cm above supra sternai notch 1 on neck anterioriy, size 5.5 x 2.5 cm and 6.5 x i5 cm transverse l (iii) Multiple sharp cut present on cervical vertebra from 5 to T anteriorly; underneath trachea sharply cut and thyroid cartilage on right side (iv) Mandibie found in six pieces with sharp cuts. Thus. from the above evidence of Dr. S.K Dadu: homicidal death of enanath is established. 0?. The trial Court, on the basis of evidence of NP Vishwakarma (PW-1 0) D t armendra. has held that the dead body was of Deenanath Tripathi. I The appeiiant has not disputed the identity of the dead body. F’W-tO N Vishwakarma resided as a tenant in the house of the appellant for three ye rs. He has deposed that on 5‘“ May, 2002, police came to the house of [ underneath sharp out present on first and second vertebra, Di arr Ashok Choudhary (PW-1 3). who identified the dead body as father of 1i .to...:’\\ai3, ellant and broke the lock and opened the room. where his father resided. '\ l / kw Foul smeH was emanatmg from the room, therefore, everybody came out. Thereafter, lawn was dug and dead body of father of Dharmendra was exhumed. There was a string of Rudraksh. He identified the dead body by single string of Rudraksh around the neck and lime-case {chunouzir watch and gamchha. PW-13 Ashok Choudhary aiso identified the dead body as that of father of the appellant. Both these witnesses have proved the inquest of ‘Ex.Pl7. Their version regarding identification has not been challenged in the cross-examination and thus, it is established that father of appellant Deenanath Tripathi, died homicidal death. 11 Shn Surendra Singh learhed senior advocate apoearino for the appellant aroued that there Is no evewrtness to the incrdent Convtctlon of the apoellant is based on Circumstantial evrdence The tnal Court relvmo upon the evrdence of Romtl Kunwar (PW-8) held that the appellant had confessed before hrm on telephone that he has buried his father m the house. However, the triai Court was not justified in reiying upon the evidence of this witness as there was no occasion for the appellant to confess before him as he had no intimacy with this witness. The confession has been allegedlv made by the appellant on telephone, however, the witness could not identify his vorce on telephone as they did not have freouent conversation on telephone With each other This Witness has onlv stated that the appellant asked him not to search his father as he has buried him near blueberry tree ’The appellant did not confess that he committed murder and thereafter, buried the dead body and therefore, the confession is only of disappearance of dead body, which is an offence under Section 201 of IPC. The confession was allegedly made on 1.5.2002. Romii Kunwar told the complainant Arun about confession on the same day, however, the complainant lodged missing report (EXP/4) on 5.5.2002 and thereafter, FIR (EXP/5) was registered on 5.5.2002 and there is no explanation for delay in iodging the report. Recovery of the dead body from the premises of the appeilant cannot be considered to be an incriminating circumstance as the same was recovered on the basis of information already known. 12. On the other hand, learned counsel for the State has supported the impugned judgment. 13. We have heard learned counsel for the parties, perused the record of . the trial Couit as also the impugned judgment. 14. “PW-2 Arun Kumar Tripathi is uncle of the appellant. He has deposed \whe incident is of‘28l29th March. He had lodged a report at Purani Basti police station. Guddu, son of Kunwar Singh, who is neighbour 9f Dharmendra. had telephoned him that Deenanath Tripathi is missing after Hoiy, He also told that Dharmendra had telephoned him that he has committed murder of his father and buried his dead body within boundary. He murdered because his father had kept a lady. After receiving the above news, he first went to the house of Kunwar Singh and thereafter told about it in his vicinity. He was informed that accused Bholasharan is residing in the house of appellant since iast 15 days. He also came to know that the activities of the accused persons were suspicious. Thereafter, he went to the house of Dharmendra and found their Bholasharan. He saw bloodstains over the wall and foul smell was emanating. He told about thelrumour in the vicintty-to Bholasharan. Thereafter. he went to the police station and lodged the report of EXP/4. He is also a witness of inquestof Ex.Pl7. in csoss~examination, he has stated that Guddu resides at a distance of 100-150 yards from the house of appellant. The body was exhumed from the garden within compound. Guddu and Dharmendra are friends. Guddu’s mother goes to Dharmendra and his mother‘s house: Guddu’s real name is Romil. He has also admitted that Dharmendra and Deenanath used to quarrel, which he had himself seen. However, he has denied t he suggestion that h e had advised Deenanath to will his property in favour of Dharmendra and himself and on his refusal, he was annoyed. Deenanath was missing since the night of Holy and his dead body was found on 5‘“ May, 2002. ltis true that the dead body was exhumed after 1 ;/4 to 1 1/2 months. However, he fhas denied the suggestion that he had taken Deenanath with him in the night iof Holy. He has also denied the suggestion that he committed murder of §Deenanath with the help of Guddu and buried his dead body and has falsely implicated Dharmendra in conspiracy with Guddu. He has denied the suggestion that when Mama Bholasharan came. Dharmendra was not present in the house, and he stated that BholasharanVinformed him that Dharmendra went away 3—4 days before. 15. PW~5 Rajnikant Sahu is a witness of seizure memos, by which bloodstained beddings ofthe deceased and other articles were seized vide ‘ Ex.P/13 & P/1 4. He has not supported the prosecution case. However he ‘ has admitted his signature in the seizure memos. 16. PW-6 Mathura Bai was working as a maidservant in the house of the appellant. This witness has not supported the prosecution case. In her cross-examination, the prosecution could not elicit anything incriminating against the appellant. . \ \ 17. PW-7 Gopinath Tiwari has deposed that compiainant is his nephew. Compiainant telephoned Amarnath at Allahabad. He came Durg with Amarnath and went with Amarnath and AK Tripathl to the house cf Deenanath where they metVaccused Bholasharan. However, Dharmendra was not present in home The neluhbourers informed him that Deenanath has been murdered and foul smell is comma from the room Thereafter thev went to Puram Bast: police station and lodged the report Ponce exhumed the dead body from the house This Witness is also a Witness of inuuest report of Ex P/7 18. PW 8 Romil Kunwar has deoosed that Deenanath was his uncle in relation On 28'" March 2002 Dharmendra came to his house and told that his father has left for his workplace. However, his Baiai motorcycle was in his house. Since he usually went by his own vehiclefhe became suspicious. On 29.43002, Dharmendra again telephoned him pretending to be Deenanath and toid that he wanted to talk to his father, however, when he recognized his voice, he disconnected the phone. On the second day, he went to his house and told him that somebody called him in the name of his father. Foul smelt was coming from his house. Dharmendra told him that the foul smell is of dead rat and from the next day, Dharmendra disappeared. On 1.5.2002, he again telephoned andtold him that he need not search for his father as he is not to be seen. On quizzing, he toid that l have buried him near the blueberry tree. Thereafter, he telephoned complainant Anin, who. later on reported the matter to the police and body was exhumed. He had seen the dead body. He was appearing like uncle Deenanath Tripathi. The appellant confessed before the police of murdering his father Axe was seized from his custody from a box in Deenanaths room on the ba3is of memo of Ex P/2 In the cross-examination, he has stated that he is aiso‘ known by name of Guddu ln para~11 of his cross-examination he has stated that his father NP Vishwakarma and Deenanath had friendly terms and he frequently used to go to the house of Deenanath In para-1 5 he has deposed that he was not friendly With Dharmendra He did not study, play or reside wit him. However, whenever he went to the house of Deenanath, he used V to talk to him also and he had casuai relationship with Dharmendra He has not done any course in identifying vaice of a person on telephone He has admitted that while givmg statement he did not disclose that the appellant murdered his father because he had kept a lady and he is teiling the same for the first time The omissmn in his diarv statement of Ex D/‘i regardino telephonic call of Dharmendra on 29 4 2002 has been pointed out to this if \\Wit ess. in para-24, he has deposed that Bholasharan went to enquire about \i l Deenanath to his work place and 0n his return, he said that he is not there. He has denied the suggestion of the defence that he had committed theft 0f Rs.40,000/— in the company of his brother in the house of the Deenanath, however, Deenanath did not lodge report due to his relationship with his father. Suggestions have been given to this witness also that he in conspiracy with complainant Arun have framed him in the present offence with a View to grab the (eroperty of the deceased. 19. From close scrutiny of the evidence of Romil Kunwar, we find that he used to visit the house where the appellant resided with his father; appellant came to his house on 28.3.2002 ahd told him that his father has gone to his workplace, however, he became suspicious as his vehicle was in his house; appellant telephoned him pretending to be Deenanath and when he recognized his Voice, he disconnected the phone; he went to his house on the next day and found foul smell emanating from his house and the appellant explained that it might be because of dead rat. Appeilant again telephoned him on 1.5.2002 and told him that he need not search his father " as he has buried him and thereafter, he informed the complainant on telephone. Specific questions have been put to the appellant in his examination under Section 313 of Cr.P.C. with respect to the above incriminating circumstances vide Questions No. 46 to 50, however, he has given a common answer to these questions that “he does not know". Omission regarding telephonic call of Dharmendra on 29.4.2002 is only with respect to the date as from perusal of EXtDH, we find that in his diary statement also, he had mentioned this fact that the appellant talked to him on l telephone on 28.3.2002 pretending to be Deenanath Tripathi. 20. PW-9 Atul Shrivastava has also deposed that Deenanath worked as Forester in his office. He went to Raipur before a day of Holy, however, when he did not return for a week, he informed his superior officers and reported the matter in Sihawa police station. When he cailed Deenanathon his home number, he was informed that Deenanath has gone on duty. however, he did ' not know as to who answered the teiephone cali. i 21. PW-10 NP Vishwakarma is also a frequent visitor to the house of the appellant and friend of his father. He has also deposed that after he returned 7 after leave on 4.4.2002, he found foul smell emanating from his house and the appeilant told him that it might be on account of dead rat and the appellant also told him that his father has not returned from duty and later on, Bholasharan lodged missing report. tg l s\> \og g 22. There is sufficient evidence availabb on record that when the lock of the room, where appeilant’s father resided, was opened, foul smeH was emanating. The evidence of Romii Kunwar is also corroborated from the evidence of complainant Arun Kumar Tripathi in materiai particulars as he has‘deposed that PW-S informed him that Deenanath is missing from the day of Holy and he also informed that Dharmendra telephoned him that he has buried his father in the house. The appellant has taken a defence that he had gone to Puttiparti in connection with treatment of his son on 22.22002 and stayed there for a month and returned only on 30.3.2002 to Satna to his viliage. After staying for a month in his village. he returned at the end of April when he was arrested. He has also examined DW-2 Sagar in his defence, who has deposed that he resides at Ashwani Nagar Raipur.in the neighbourhood of appellant who resrdes in Chandrashekhar Nagar The appellant left for Allahabad a day before Holy and he had gone to station to see him off The appellant had gone to his mother. The evrdence of thrs wrtness falsrfres the defence of the appellant that he had left for Puttiparti on 22.2.2002. The appellant has also examined Dilip Kumar Mishra, son of accused Bholasharan, who is maternai uncle of the appellant. He has deposed that Dharmendra came to their viilage Baretikala on the day of Holika Dahan and thereafter he had gone toAndhra Pradesh after staying for 7-8 davs. Thus the evrclence of defence Witnesses clearlv reveals that the appellant has taken a false and contradictorv plea in hrs defence 23. lt is settled law that in order to rest conviction based on the dircumstantial evidence, the prosecution is required to establish that such evidence satisfy the following tests:- a. the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established b. those Circumstances should be of a definite tendencv unerrmgly painting towards guilt of the accused c, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and d. the Circumstantial evidence in order to sustain the conviction must be complete and Incapable of explanation of any other typothesrs that of the gurit of the accused and such evrdence should not only be consrstent With the guilt of the accused but should be inconSistent wrth his innocence @ 9 24. in the instant case, on close scrutinv of the evidence of the witnesses, the foilowing circumstances are established: i (i) the appeiiant resided with his father at the relevant time iri the house, from where dead body of his father Deenanath Tripathi was exhumed on 5.5.2002, (ii) , Deenanath Tripathi Went missing on the day of Holika Dahan; (iii) the appeiiant told PW—8 in his house on 28.3.2002 that his father has left for workplace. When the deceased did not return after Holy. PW-Q called on his home number and he was informed that the deceased has gone‘on duty. though he could not identify the person, who attended the call; ‘im the appellant called PW-S pretending to be Deenanath, however, when‘he identified the caller, he disconnected: (v) that after missing of Deenanath, foul smell was emanating from his house. When PW-8 and PW-10 asked him. the appellant said that foul smell is on account of some dead rat. When the room of Deenanath was opened on 5.5.2002, then also foul smell was emanating from there; (vi) the appellant telephoned PW—B on 13‘ May, 2002 and stated that he has buried his father near the blueberry tree within the compound and thereafter, he informed about the same to Arun Kumar Tripathi (PW-2), who lodged the complaint; (vii) dead body of Deenanath Tripathi was exhumed from the place told by the appellant to PW—8; and (viii) conduct of the appellant that he did not, make any effort to search his father after he went missing from Holy night and took a false plea in his defence that he left for Puttiparti for the treatment of his l son on 22.2.2002 and returned to his village at Satna by train on 30.3.2002 and reached Raipur ‘after a month 'in the end of Aprii when he was arrested. '25. Learned counsel for the appellant has seriously disputed the evidence ‘ ,of PW-8 on the grounds that (i) the appellant did not have intimate Krelationship with him, therefore. there was no reason for him to confess before him; (ii) identity of the voice on phone is doubtful; and (iii) the confession was allegedly made on 1“ May, 2002 whereas report was lodged by PW-2 on 4.5.2002 and the report has been suppressed and no FIR was registered as would be evident from Panchanama of Ex.Pl1 7. 26. lt is true’ that the missing report was lodged by Bholasharan on s 4.5.2002. However, from perusal of the document of ExP/t 7. it is clear that ‘ quizzing by PW-S. burying of the dead body and not