IGH cRT OF CHHATTISGARH AT BI’LAs‘P IVISION BENCH: I oram HON BLE MR T P SHARMA HON BLE MR R L JHANWAR rim'ihal Aggea'l No.60 of 2o c 3 o4 Sanariri Goswai hkg m Veus rs tte o ohattisgarh d/- T.P. Sharma DGMEN FOR CONSIDERATION § ' onl ..L.J . P n’I" ost forprdnouncement of the Judgment o ' Sdl- T. P. Sharma Judger H oU UR: D C & JJ Sa r h JUT H’bé MrrRhanwar, J IVISION BENCH: 3Coram HO BL MR SHMA & HON LE MR R L JHANWAR J riminal Apeal No.603 of 2004 C p ankarg oswami . . Goswaml Aged about 38 ears Ri Kaula At present Palan Polce Stat ’. Palarl D1$trlct Ralpur C G ) Versus tate o Chhattlsar Trouh Polic tation Palan lstrlct alur (C (CRMINAL APPEAL UNDER SECTION 374 (2) OF TE CODE CRIMINAL PROCEDURE 1973 Appea (in Jal Pent:- res 'kumar upta unsel orhe apellan *Ashish Shukla; éoV‘tAdvocatevfor the Stat Delivered (in 22na September, 2010 he judgment o the Court was delivered by T..Sharm"a ’T f P, J . h’allenge in this appeal is to the udgment of convict-on 8t ‘o -§entence.:dated 29.10.2003‘passe b e Second Adi‘on'atS ston Judge, .Ba'lodal Bazaar ‘ in Seso,§,Trial No.0, ; sins 29/03 w hereunder learnedvSe‘cond Additional Sessions Judge‘ttet holdingvth I ppellant guilt for commission of offence of culpable hom e 1 G j i ld I d y th dit e W a e I. a " 'd. al, Dhamrndra and Ku Neelam amounmg to murde ection 302 of the i P and sentenced him to undergo Imprisonment for life and to pay fine of Rs 500/— In default of payment of ine to furthe u f ts onviction is impuned on the ground that without there being "any Iota o VIdnc the trial Court has conVIcted sentenced the appellant a' forementloned and thereby committed Ilegallt B t r S C f r ndergo R i for ix monh ' . C g f} eee & s ~ Ja ly D N E T P AR B J Shm G 9 y o d l ‘n ( llnt l) r S f gh hg e ’ S D Rp G ) H pF ) Mr. aj G co ft pt M é. ( ) I 5 3 Case of the prosecution In brief Is that on the fateful day 200 between 2 to 5 p m unfortunate Wife and children of PaWan KU ar’ Dewangan (PW-1) Viz Premm Bal Dharmendra Kumar and Ku Neelam (slnce deceased) were present m their house the appeHant neighbour o nfortunate deCeased was also present m his house, he‘asfamted Premm Bar Dharmendra Kumar and Ku Neelam by fuef wod. ,mercrlessly and caused therr death and thereafter he fled from e house wrth cycle which he has taken from Harlshankar Sahu (PW 2) towards t _ bus stand Offence was dictated Pawan Kumar Dewangan (PW-1 went to the Pohce Stanon at about 5 30 p m and lodged the F l R wd :Ex P/4 In whrch the present appellant was suspected as an accused v Merg Intimatlon was recorded Vlde Exs P/1 to P/3 Investigating officer proceeded for the scene of occurrence and after summcnlng the ’Wltnesses Vlde Exs P/8 to P/10 Inquest over the dead bodi sBal Dhamrndra Kumar 11 years aged chlld and Ku Neel aged child were prepared Vlde Exs P/1l to P/13 Dead body ."Neelam was sent for autopsy to Primary Health Centre Palan ylde ~ Ex P/19A Dr F R Nrrala (PW-10) conducted autopsy oVer the body o 'Ku Neelam Vlde Ex P/19 and found followrng Injuries - ' . t) ContuSlon of 5" x 1 cm and 4" x 1 cm over t neck * u) Contusron of 4”x1 cm atneck ' «m) Contuslon of 1 1/2" x 1 cm over upper part ofthe ches = ’ iv) Contuston of1 1/2"x1 cm ovenleftsude ofthe scal ' ' .jv) Contusmn of 1 1/2" x 1 cm over left Side of the chee ' " v1) Contusmn of 1 1/2 x 1 cm over left shoulder I, ' ‘ (vu)Contusron of 2" 1/2“ 2"x 1"and‘2“ 1/2“ overthe head ‘ v V . vm)Lacerated wound of 1 1/2" x 1 cm over scalp central rx) Abrasron of 3" x 1 cm over right shoulder . .» x) Blackness was found below both the eyes sW found " x1) Blood was coming from the nose Injures were ante mortem Cause of death was shock d Injures and death was homlcrdal In natur . f ‘ u . , ' ‘ * ‘ )-~- > e' . H 5 es ' ' . a , ‘ o f ', ’ ' h t- p k ellr ly " u ‘2 ‘ e ealth Centre alan Vlde Ex P/20A Dr F R Nlrala (PW-10) onducte I utopsy Vlde Ex P and ound foowmg Injurie od and clothes were stamed With bloo ‘ ontuslon f,‘3 1/2” x 1 c. over right scal 1"‘over right side of the cheek.‘ ,C f” x ' ontusion of 3" x 1" over right side of scal ‘ ontuSIon of " 1/2"overleft palm ontuSlon 3" X 1 cm over middle o the’forehea orehead a epresse? . acerated.‘w.oui=id f 1 1/2” x1” onvmiddle of fo‘rehe ”i: H P d a /20 f ll s _ By d " C‘ o m p. 'ont‘usiOn or‘i3' C p; ff * C 3 C of f d F ws dd . 'L o a eamotma'a‘sfounciin‘the rain. Trach _ nd oo‘ was ound in the‘:traa. Injuries were ante-mortem Mode of death was shock an‘d‘ th w hoiCIdal in nature Dead body of Pramin Bai was sent fo " Primary Health Centre Palari Vide Ex P/21A DrFR‘Nirala_'(PW- _ conducted autosy Vide Ex P/21 and found followmg iniurie: I our teethe re broken Lower Jaw was brok 1 " ;F s we en e nd body was stained With oo ne lacerate wound of 1" x 1/2’” over t O d h‘ epressed fracture of bone of forehead was fou 1" D 1/2” over riht Side of the e with ‘mltiplifracture o one ' Contusion. oi.3"-‘x 4" oer rightiiand. onusion. of 5 cm X 1/2 ‘Cm-L 3,,‘EX \ 1/2 4" x D n Laceraed. oud f 5" 2 o 1/ m' a bld g had , ue f b v v Cf c k m over left chee Vas found fracture Left ee was ruptured Lowe 1a w v e roken into ieces Compound and commuted fr ' one of scalp was found Membrain of rain / eamotom was found inthe brain Trachea was depress Mode of death was shock Injuries were ante mortem an ' omicidal-in nature. Clothes of the deceased were seized ' v J Hpw b e‘ _ a bld f Che d a ~ m “ :t p s t wn o :‘w y as b p a b b .H ed I d " h d ‘ ge‘ .ov'in'g 'the sa'‘ihe‘ from hus body vido y ~pa'tWari vide EXP/17 r b . clothef’s'’ éndi slipper o the-appellarit w'jg ’ I . V 4 H ExPns. SpctmapWagp‘repare abu} wood, clothes i ar’i‘ui" Is'iiphé J ' Wer Exp/2'2 implioation in the cfime in'question. . a o' A d fter breviding oppo‘rtqn‘ity ofhearingutothe parties,vilearhe: Séeo‘r‘i . ddition?! Sessions Juge convicted :8?- sentenced_,t . evhéve' he‘ardqtea'fr‘neg c'ounsel for the p‘artie‘s, peruseoli‘t mpgéned and record oftho‘ trial Court. o s éfremenfioned. o :W heo" i ' hei“ 'aplpellanf té L' 8v i‘LearoeidicounseJ ‘ egfc‘onVictioh of. fogr.‘t‘he the “a appellant vehemently . “.7 ’ f d B é e s ' > accused and such eVIdence should noi only be conSIatent 'of the accused but shouid be InconSIstent With his Innocen counsel further argued that although this Is a case of triple murder ahd the appellant was a nelghbour but there Is no motive for commISSIo .; fv , such heinous offence The present appellant has not gamed anythln ' *commtssnon of murder of three persons Including one woman a‘d tWd' ho Isei: ‘ Is not suffICIent for drawmg Inference that the appellant has commuted .the aforesaid crime ln the present case the prosecution Is ndera obltgatlon to prove the chain of Circumstances beyond all shadow of doubt but the prosecution has not proved the chain of crcumstance t suffICIent for conVIctIon of the appellant . On the other hand learned State counsel supported the judgme mpdgned and argued that the appellant who was nelg our ’ d three persons and fled from the spot He was brought by Investlgatin ’agency from Bhatapara and at his Instance object used for commission ’of offence has been selzed The appellant has not offe .d anyV ‘explanatlon The aforesaid Circumstances are suffICIent for drawing Inference that the present appellant Is the person who has comm ted th ' o V unfortunate chlldren Only the absence of the appellant fr ‘ “deceased after taking beneflt of loneliness has committe ' g ‘ V5 e ‘ ' aforesaid offence 10 In order to appreCIate the arguments advanced on behalf of the parties we have examined the eVIdence addLtced on behalf of the prosec 11 In the present case homICIdal death of as a result of ante-mortem fat ‘ Injuries found over the bodies of Premln Bal Dhamrndra Kuma Ku Neelam have not been substantially disputed on behalf of k ‘ t ’ I appellant on the other hand also establlshed by the eVId nce DrFRNIrala (PW—10) and autopsy report of Ku Neel autopsy report of Iharmendra Kumar Ex P/20 and auto Pramln Bal Ex P/21 which reveal that fatal Injuries were fou \l\~ bodies of the aforesaid persons and deaths were homICIdal In natur \l 12 As regards the complICIty of the appellant In the orlme conVIctIon Is based on circumstantial eVIdence ln case of OnVIctI ’ ce n by n‘ ” is l t t u al I r ofy‘ a‘ p n. g , ' e In on based on Circumstantial evudence as held by the Supreme Co matter of C Changa Reddy v State of AP the prosecution is ’ " ‘requrred to adduce evrdence and such evrdence must satrsfyrhg te , fotlowrngtests - . (1) the crrcumstances from whrch an Inference of gurlt rs sought to drawn must be cogently and flrmly estabhshed (2)those Circumstances should of a defmrte tendency unernngly porntmg towards the gurlt of the accused 3)the Circumstances taken cumulatrve|y should form a c complete that there Is no escape from the conclusron that wit a chuman probabrhty the cnme was commrtted by the accused an none else and (4) the crrcumstantlat evrdence In order to sustam convnctton must b omplete and Incapable of explanatlon of any dthe " “48 Before discussmg the eVidence of the Witnesse :vmight mention a few preliminary remarks against 'he‘ ”h ”background of which the oral statements are to be' ~ inconSidered All persons to whom the oral statements are l said to have been made by Manju when she Visited Beed ’ . for the last time are close relatives and friends of the; deceased In View of the close relationship and affection ' ' .Jany person in the position of the Witness would naturallyf :have a tendency to exaggerate or add facts which may not: AIR 1996 SC 3390 (1996) 10 SCC 193 ZAIR 1984 SC 1622 urt . h be ‘ ( h s hr d a z e c r" than that of the guilt of the accused and such evrde ‘ only be consrstent wrth the gullt of the accused but should be ' ,.rnconSIstent With his innocence 13 While dealing With the same question the Supreme Court in the 'of Sharad Birdhlchand Sarda v State of Maharashtra held t .View of the close relationship and affection any person related to the deceased would have such a Witness would naturally have a tenden to exaggerate or add facts which may not have been stated to 1em at ii Not that this is done conSCiously but even unconsctously the love' V ’ and affection for the deceased woutd create a psychological hatred against the supposed murderer and therefore the Court has to exa, . such eVIdence With very great care and caution Para 48 of the sai judgment reads as under - w i ; - ‘ ‘ nc ; y h ' . c : in d 1 14 Whlle dealing With the same uestlon the upreme Court tn the matte a aghav Prapanna Trlpathl and others v State of Uttar Pradesfta held that Circumsantial ewence means communlcatlon of facts cre' a net wcHk from which there Is no escape for the accused because a S t p t tt ‘ tand y cycl t about 1 p m Pawan Kumar Dewangan husband of Pr ' al ad father of harmenr and Ku Neelam took his mea ith te deceased person ' t about 1 45 p m Omrakash Sahu came to his h c t t tl «alled him then he went to his shop and a tha at t h he ppellan was presen In is ous ‘h d t! e l bt even unonsmoly t ove and action‘ "' ed wl ct a il atrd v i suposed err and refore te Cou v' mine uch wdce wuth gret ca and El h f y” “ son. r y no; e en atd may imagind b " comous th Wit I d e g h pg or p " 1 t whole do not admit any In p t M . - c 1 p h d d t O f d 5 l D K e ‘ ' ' T ll kg l rl ' ' ’( p . a ave been state to them at a Not that this is d : . conscmusy u cus he I ffe for the deceas oud reae psychologca he - ' ; agalnst the p murde the h has to exa s een very a re cautlon Even If the Witnesses were speakmg a part of t truth or perhaps the whole of It they would be guided b spmt of revenge or nemesrs agamst the accused per and in this process certain facts whlch ma not or could t hav be ste be e to have een stated unnsly by e nesses n orer to see that th ’vvoffender Is punished Thls Is uman sycholoy nd n one can hel It q S of R t ’- t d 1p . e aken as a ference excet that of the guil t f" e accused 5 ln the present case the rosecution as adduce eVIence elatlng toj followmg Circumsances he appelant Is neghbour of te deceased T l i h n the fateul ay of 102003 deceased Premlr hamrndra umar and Ku Neelam were pr house he appeant worin In taioring shop of Ha PW 2) went to the sho at about 10 a m and took nd went to his house along With key of the shop he appellan did not return back to shop of Harts ana. ahu and a about 3 30 m the appellan wen :T t kr . s b e - A ai . > B n Dda t W h s i A p ou '7 :house for hrs busmess work along wrth Klshan Dewa: an and ‘ - i‘Omprakash where he saw dead bodies of Wife and-'chrldle : :stand With blood .' ' V , f/Sriii) The appellant was havmg Jealousy With the busmess 7' H Pawan Kumar Dewangan and about 5 p m the appellan ‘not present 1n his house he was abscondlng The appellant has made disclosure statement of f ' a I: ’Vlde Ex P/14 and same has been recovered at his instanc . [I :.-i‘wde Ex P/15 ‘ . j l ' I ‘ Slipper and bloodstained clothes of the appellant were seiZev . iwde Ex P/16 same were examined by FSL and bloo ‘ I I _ confirmed upon the aforesaid articles Vide Ex Pl28 ‘ xi):.:“- The present appellant has not offered any explanation th ' how blood was found on the aforesaid articles 6 As per eVidence of Pawan Kumar Dewangan (PW-1) o moident the appellant who was neighbour was present Between 1 to 2 p m he has taken his meal along With Wife and childre .(smce deceased) and thereafter he went to his shop and after sometime when he came then he found dead bodies of his Wife and childre ‘ he lodged the F l R He has deposed that the appellan ti liealousy With his busmess therefore he was havmg doubt t appellant has committed the aforesaid offence ln his cross examination, ihe has admitted that he has immediately lodged the report As per aeVIdence of Harishankar Sahu (PW 2) the present appellat who W , ‘ n as orking in his shop has taken his cycle at about 10 a m but:he did 0t :return and at about 3 30 p m he went towards bus stand II ‘ thereafter commission of murder was dictated ln his cross-examination ' he has admitted that the appellant was good worker (There s no grievance against the appellant Suresh Kumar (PW—3) andt’Omprakash Sahu (PW—4) have corroborated the eVidence of Pawan Kumar , Dewangan (PW-1) KotWar Madhodas (PW-5) has supporte W V investigation ln paras 5 and 6 of his cross examination he hasdepos ‘d V that in the absence of the appellant piece of Babul wood w V ' ' ,.t was covered by paper and thereafter again it was recovered .‘om the _V._i y V vu) After sometime on the request of customers he Wen o his, " i ‘7 n tl l un 1 ' ‘ ‘ I : . e 3;:g\ff ~ ’ d l I d I ‘ at ' ‘ ' V 1 n I _ in; “ n ‘ V ll “. _ _ , n I ‘ ,K .l 1 t I. l I * h W ‘ ‘ ‘L ; g { ‘ C - d ' . a house of Dasru Chandramohan Gupta (PW 6) has also Supported, Investlgatlng proceedlng Blpln Blhan Agrawal (PW— ) has deposed In his ewdence that the appellant has made disclosure statement Vlde" Ex P/14 relatlng to wood and same was recovered at his lnstance vude'; I Ex P115 Clothes and slipper were also removed from the body of the vappellant and were also serzed vrde Ex P/16 As per para 6 of hls cross~ examlnatlon the appellant was found at Mandhar DharsuWa is y brother-In law s house from where he was brought by the polloe in par 7 of hrs cross exammatron he has deposed In detail that t’appellant took fuel wood from the house In para 9 of his-brass . examlnatlon he has further admitted that persons of the wolnlty gat‘ eredg "near the place of rncldent except the appellant whose house was locked and light was on They came to know that at about 3 30 p v ‘ appellant went from his house by cycle then they suspected that when, all the nelghbours are present then why the appellant who rs ext door 'nelghbour Is not present and why the appellant has clbse ,hls ho even he has not off the light and why he has suddenly left his house e . n: f The aforesaid ewdence are uncontroverted from the aforesald wttnes‘e and followmg Clrcumstances emerges ' ’The appellant ls netghboUr of deceased .‘Dhamrndra and Ku Neelam ~ :il)‘ ' On the fateful day of 10 52003 the appellant went to h > ’ shop of Hanshankar Sahu (PW 2) at about 1O a m ' " ’Vii'i") He went from the shop of his master Hanshan g cycle ~ Between 1 to 1 45 p m husband of Pramln Bat and fath‘ on ” ’Dharmendra and Ku Neelam Vlz Pawan Kuma a (PW-1) was present In his house along wrth persons and at that time the appellant was also pre 'en per ewdence of C D Lahre (PW-11) the appellant has mad ' statement of fuel wood and the same was recovered at his instat sllpper and clothes were also setzed and they were staine V d . vide Ex P/28 e ka‘ f‘. :2 ’ r ’ 'g " d H f ” t I ,I house h a > > d us” As a " 17 s ' Pr 7 .e. ' 3 ; y I " I ‘ W01, A but 3 15 p m when Ompraah ad Klsha Deg‘a t ao ks n n wan en ou Pawa De ey ‘ ead bodies ofthe aresaldthree es . v -- d fo prson . i " he nt st cl - I v) T appellant we towards bus and by yce at a OI m e a t n ours of House f the appe was lock ut Irght; o llant ed b w On ' ‘ as . ell brgh fm r n ar ‘ . . ’ ' th an t ap abu o ed Mth > loo er ' I Ba of baul wood wa found o he pce of Incrden dd t rk b s n t la sta . iii) Cthes nd slrpper o the appelant wee tained wnth bd lo a f l r s loo ' 18 In the presn se the prosecutron has n ved the defnrte tr' . I‘ et ca ot pro mo e r se to ro mot r de e ' crrcumtances are cosrdered toger then only Infeene wul s n the the rc o possrble t e present appellat rs the pen wh hs comm he aforesard oce and excep he ellant e has commied offence 19 In the prs case chain f crcmstane e so connected t eent o rucs ar o r lete f o o an e do r n t nocence o an ll us by the. I . ' accused \ l _ 20 After apprecratmg the evrdence avarlable on record learned ecnd] l I Additional Sessrons Judge has convrcted & sentenced the appellant n. hat th n rso o a rtte ffen t t app non tt l - I aforementioned 21 This Is unfortunate murder of a woman and two llttle chlldre' present appellant has frnrshed family of Pawan Kumar Dev 10 L 3 wt to the hse of n Kumar wangan then th v. ‘ ’ p ”- ‘t/ii) H ws not presen whe neighb gathered near the ' . Incrdent The appant was out ro hrs brother—In la , fom Madhar Dhsrva . 5"x) At e Instce of he pellant bl fuel wod stain bd was recoved a wrth blood then offence lt Is not possrbl In evey ca pve the defrmte “e for commussron of the offence by direct evrnce but If th. othe comp which are sufcrent fr nt levrg any reasonabl t ‘ ’ for the conclusron consrstet wrth he In f the accuse d e show that In a human probability the act mt have been done . So as. n l x ’ '