HIGHCOURTOFCHHATTISGARH.BILASPUR APPELLANTS: (InJail) RESPONDENT: Criminal Appeal No.246jof2Q06 1. Jeevan, S/o Hriday Halba, aged about 25 years, 2. Purshottam, S/o Chain Singh Halba, aged about 36 years, Both R/o Village Maharajpur, Police Station Deori, DistriGt Durg (C.G.) Versus State of Chhattisgarh, Through P.S. Dongargaon, District Rajnandgaon(C.G.) {Criminalappeal underSection 374(2) oftheCodeof Criminal Procedure, 1973} Present:, i • , Mr. Ramakant Pandey.counsel forthe appellants. Mr. Arun Sao, Govt. Advocate for the State/respondent. Division Bench: - Hon'ble IVIr. T.P. Sharma and Hon'bLe !VLr._R.L^Jhanwar, JJ ORALJUDGIVIENT (2-12-2010) T.P. Sharma, J: — 1. Ghallenge in this appeal is to the judgment of conviction & order of sentence dated 21-2-2006 passed by the 1 Additional Sessions Judge, Rajnandgaon in SessionsTrialNo. 18/2005, whereby& whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable.homicjde amounting to murder of Jagannath, concealing theevidenceof criminal case and sharing common intention, convictedthe appellants underSections 302 read with Section 34 &201 read withSection 34 ofthel.P.C. and Sentenced each of them fo undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further'undergo S.l. fortwo months and to undergo' R.l. for seven years & pay fine ofRs.500/-, in default of paymentof fine tofurther undergo S.l. foronemonth, respectively. c .^'3a-a» ^^.' i%^:'ir 2. Conviction is impugned on the ground that without any iota of evidence sufficientforconvictionoftheappellants, the trial Court has convicted& sentenced the appellants, and thereby committed illegality. 3. As per case of the prosecution, on 29-1-2005 Jagannath(since deceased) left his house, butdid not returh backtill 2-2-2005, his wife Bedubai (PW-1) made search on which she came to know that on Saturday Jagannath went ,to the house of Indra Kumar where heleft the cycle which he brought from Lalaram and went along with appellant Jeevan. Jagannath waslast time seen afVillageReevagahan. On 29-1- 2005 at about 8.30 p.m. appellants Purshottam & Jeevan were coming from Village Roopkathi after consuming liquor.they metjagannath on the way and on account of consuming liquor some dispute took place, then both the appellants assaulted Jagannath and committed his death by throttling. Thereafter, the appellants took the dead body upon their shoulders and buried nearShivnath river at Sonesarar (burial ground) after digging ditoh by spade. After burying the body of Jagannath, appellant Purshottam went to the field of Arjun (PW-5) and told Arjun that. he has committed mistake along with co-accused Jeevan, and made extrajudicial confession before him that he and Jeevanhave committed murder ofjagannath. Arjun (PW-5) directed appellant Purshottam to go tp the police station along withKotwar & Patel. Appellarit Purshottam requested Arjun (PW-5)'for accompanying him to the police station on which Arjun (PW-5) directed Churaman to accompany the appellant. The appellant also made extra judicial confession before Churaman whereupon Churaman took appellant Purshottam to Police Stafion Deori. Arjun (PW-5) intimatedthe aforesaid facts to the uncle of appellant Purshottam and other persons. Appellant Purshottam wentto Police Station Deori along with Churamanwhere he narrated the incident to D. Bydhelal(PW-11), l-1ead Constable, but jurisdictionof the offence was with Police Station Dongargaon and, therefore, D. Budhelal (PW-11)took appellant Purshottam to Police Station Dongargaonand handed over himto the Dongargaon police. Meanwhile, Dongargaon police also came to know that appellant Purshottam had gone to Police Station Deori,then they sent two Constables for bringing Purshottam to Police Station Dongargapn. Finally, Purshottam was brought to Police Station Dongargaon. On 3-2-200^wife of thedeceased Bedubai(PW-l) went.to Police Station Dongargaon and lodged missing reportof her husband :^ ^•••S^Ki.^ • \' :'"^ '^K^^'^A.^ft .y tf.^^-^ vide Ex.P-1. On same day, the Investigating Officer proceeded to Village Roopkathi where he was'informed by Arjun, Bedubai, Churamanand others persons that the appellants have committed murder of Jagannath. Merg was recorded on the spotvide Ex.P-23. Dehati nalsi was recorded on the spot vide Ex.P-22. On the basis of Ex.P-22, registered merg was recorded vide Ex.P-20 and registered F.1.R. was recorded vide Ex.P-24. Since the dead body was buried, permission to exhume thesame was pbtained by the Investigating Officer vide Ex. D-5 from Sub Divisional Magistrate. Meanwhile, both the appellants were taken into custody. Appellant Purshottam made discloser statement of dead body as to where itwas buried and spade vide Ex.P-5. Likewise, appellant Jeevan also made discloser statement of dead body as to where it was buried, shawl, umbrellaand shoe vide Ex.P-6. The dead body was buried in the burial ground where persons used to burry the dead bodies. Both the appellants took the Investigating Officerto the burial ground and pointed towards the place where the dead body of Jagannath was buried. The dead body was exhumed at the instance of both the appellants. Panchnama was prepared Exs.P-3 & P-4. Dead body was identified by five persons vide Ex.P-2 as that of Jagannath. After summoning the witnesses vide Ex.P-12, inquestoyerthe dead body of Jagannath was prepared vide Ex.P-13. Spot maps were prepared by the Investigating Officer vide Exs.P-14 & P-15. Request was made by the Invesfigating Officer to the doetor present for autopsy, on the direction of the Sub Divisional Magistrate, vide Ex.P-17. Aytbpsy was conducted by Dr. P. Goswarni (PW-7) vide Ex.P-17Aand foliowing injuries/symptoms were found: - (1) Putrefaction ofthe dead body started. (2) Right eyedepressed. (3) Lefteye opened. (4) Swelling over rjght side of neck with light blue andblack colours. (5) Two blisters present'in frontofneck upon claviele bone in the size of1 c.m. x0.5c.nl. (6) One abrasion on right side of neck; (7) SybGUtaneous haemorrhage onleft and right sides of neck. (8) Fracture of hyoid bone and haematoma on chest. (9) Cause of deathwas asphyxia as a result ofthrottling. 4. Spade was recovered at the instance of appellant Purshottam vide Ex.P- 7. Shoe, shawl and umbrella were recovered at the instance of appellant Jeevan, vide Ex.P-8. Sojl from the burial place was seized vide Ex.P-9 and soil from the place of inciderit was seized vide Ex.P-10. Old used cycle was seized from Lallaram vide Ex. P-11, Patwari prepared spot map vide Ex.P-18. Appeltants Purshottam & Jeevah were also examined by the doctor vide Exs.P-25 & P-26, respectively, and tiealed abrasion was fbund on their bpdies. Umbrella was identified by Dhanwarin Bai vide Ex.P-27. Seized articles were sent for chemical examination vide Ex.P-28. 5. Statements of the witnesses were reeorded under Section 161 of the (^.P.C.. Aftercompletion ofinvestigation.chargesheetwasfite^ before the Court of Chief Judicial Magistrate, Rajnandgaon wtio committed the case to <the CQurt of Sessions, Rajnandgaon Trom where learhed AdditionalSessronsJudgereceivedthecaseontransferfortrial. ''•- '! ' :'•-'•', ! '" •••• ; 1;,1.'.1;;/ '••:"' 1 6. In order tp prove the guiltof1:he accused, the prosecution has examined as many; as twelve witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appeanng against them, pleaded innocence and false implication in the cnmeinquestion. . 7. After affording ppportunity pf hearing to the parties, learnecl Additipnal •Sessions Judge convicted & sentenced the appellants as aforementioned: 8. We have heard tearned cpunsel for the parties, perysed the judgment, impugnedand record QfthetrialCourt. 9. > Learned counsel fbr the appellants vehemently argued that jn the presenf case, convictiQn 6f the appellants is solely based on the evidenee ofArjun (PW-5) before whom appellant Purshottam has made extra judicial confession and recpvery of artjcles including dead body on the evidence of discloser statements under Section 27 of the Evidence Aet by botH the appellants. However, as per case of the prosecution, before recording such disctoser statements the Investigating Officerand .othei- persons were havinq knowtedge thatthe dead bpdy ofJagannath has been buried in Sonesarar burial ground which shows that the above fact was within the knowledge of the Investigating Officer and other " persons. Therefore, such evidence is not admissib|e in evidence. Sg^^.l ^ ^ ••••'t^Z^^-^--^'.' ^.^•~y/ Evidence adduced on b^half of the prosecution is notsufRcient for drawing definiteconclusion that the appellants have committed culpable homicide amounting to murderof Jagannafh. Even otherwise, although the memorandum of seizureis notadmissible in evidence, butfor the purpose of defence, the appellants may take the inadmissible part which shows that on account of liquor some dispute took plaeeon which they assaulted Jagannath and finally they caused his death by throttling which also shows that there was no occasionfor otherwise causing murder pf Jagannath. The incident took place on account of dispute 6f liquor. The appellants were not holding any weapon and they have not used any weapon, however, they wbre under intoxication. This shows- that they' have not caused homicidal death ofJagannath with intent to causehis death. Therefore, if fhe evidence of the prosecution is admitted as gospel truth, the act ofthe appellants does not travel beyond the scope ofSectibn304Part-llofthel.P.C. 10.0n theotherhand, learned StateCounsel vehemently argued that the proseeution has proved its case beyondatl reasonable doubts. The chain ofcircumstances proved against the appellants aresufficientfor drawing definite conclusion that only the appellants have committed culpable homicide amounting to murder of Jagannath and have, concealed the dead body of Jagannath with intent to destroy the evjdenGe of crimirial case. Therefore, the trial Court has rightly convicted &sentericed theappellants. : 11. In order to appreciate the arguments advanced on behalf of the parties, wehaveexamined the evidence adduced on behalfofthe proseeution. 12.1n thepresent case, homicidal death of the deceased as a result of injuries over neek hasnot been substantially disputed on behalf of the appellants, otherwise alsp it is established by the evidence of Dr. P. Goswami (PW-7) and autopsy report Ex.P-17A which reveal that cause, ofdeath ofthe deceased was asphyxia as a result ofthrottling and death was homicidal innature. 13. In a case based on cireumstantial evidence, as held by the Supreme Court in the matter ofC. Changa Reddy v. State ofA.P. {AIR 1996 SC 3390 :(1996) 10SCC 193}, the prQsecution is required to adduce evjdence and such evidence must satisfy the following tests: - ~€! .';• ^^ • • ,--f^.^,—^y 's^^'"^ 6 (1) the circumstances-fromwhich an inference ofguilt issought to be drawn, must be cogently and firmly established; (2)those circumstances should of a definitetendeney unerringly pointing towards the guitt of the accused; (3)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 (4) the circumstantial evidencein order to sustajn conviction must be complete and incapableof explanation of any other hypothesis than that of the guilt ofthe accused and such evidenceshould not pnly be consistent with the guilt of theaccused but should be inconsistentwithhisinnocence. 14.As regards complicity of the appellants in the crime in question, the prosecution has adduced 'evidence retating to extra judicial confession,' recovery of dead body ofthe deceased and other articles at the instance of the appellants.andsurrender of appellant Purshottam before the policestation. 15.As pertheevidence of Bedubai (PW-1) - wife of the deceased, Arjun (PW-5) (para7) & Navneet Patil (PW-12) - Investigating Officer, police has direeted Arjyn (PW-5)to bring Bedubai and other persons atVillage Roopkathi relating to investigationof the aforesaid offence. Their evidence also reveals that the Investigating Officer was having some knowledge from the witnesses that the dead body was buried in bur-ial grpynd. . : 16.As pertheevidenceofBedubai(PW-l), her husband Jagannath left the house but did not return, she enquired about her husband and went to the house of Jwala Prasad (PW-2), thereafter she came to know that her husband has taken the cycle of Lallaram and has gone to the house of Indra Kumar where he left the cycte and after taking umbrellafrom the house of Indra Kumar he proceeded towards the haulermill where the appellants were waiting for him. She went to Potice Station Dongargaon and lodged missing report Ex.P-1 . As per para 6 of her cross- examination, dead body was found buried in the burial ground where villagers used to burry dead bodies orperform funerals. This evidence is un-rebutted and showsthat Bedubai (PW-1) has lodged missing report at •^ ^ Police Station Dongargaon vide Ex.P-1 and dead body was found in burial ground in buried condition where persons used to burry dead body. This atsoshowsthat the Investigating Officerand otherwitnesses were having some knowledge thatthe dead body has been buried in the burial ground where persons used to bury dead bodies and they were not having any definite knowledge that at which place the dead bodywas buried. Without having such definite knowledge it was not practicable or possible to exhume any deadbodyfrom burial groundout of some many buried dead bodies. Therefore, contention of the appellants thatthe Investigating Officer and yvitnesses were having knowledge of the fact thatthe dead body was buriecl at sorne definite place in the burial ground hasnoforce. 17.As perthe evidence of Arjun (PW-5), appellant Purshottam, whci is atso resident of his Village, came to his house and made extra judicial confession before him that he has committed mistake along with Jeevan and has committed murder ofJagannath, then finally he sent appellant Purshottamalong with Churaman to Police Station Deori. Defence has cross-examined this witness at length, but has not been able to elicit anything in his cross-examination to discredit this part of evidence. Although the prosecution has not examined Churaman, but D. Budhelal (PW-11) - Head Constable of Police Station Deori has specifically deposed in his evidencethaton 2-2-2005appellant Purshottam came to Police Station Deori where he madesome confession.which is not admissible inevidence. The offence was within the jurisdiction of Police Station Dongargaon and, therefore, he took appellant Purshottam to Police Station Dongargaon and handed over hjm to Police Station Dongargaon. He has specifically deposed in para 3 of hiscross- examination that he also informed Navneet Patil (PW-12) - Station House Officer of Police Station Dongargaon. The factum of bringing, appellant Purshottam from Potice Station Deori to Police Station Dpngargaon has beenadmitted byNavneet Patit (PW-12) - Investigating Officer in paras 14, 15, 16 & 17 of his cross-examination. This evidence clearly revealsthat appellant Purshottam made extra judicial confession beforeArjun (PW-5)on which Arjunsent Churaman along with appellant Purshottam to Police Station Deori where Head Constable D. Budhelal (PW-11) was present whom appellant Purshottam informed about the incident and then D. Budhelal (PW-11) brought appellant Purshottam to ~/.: ! . • ': :.'' • ..^ y^ X:A.:^ 't I .:%&-.:. 1 ^. • ''"sagt,: j '%. ^ Poljce Station Dongargaon andhanded over him to Investigating Officer Navneet Patil(PW-12). 18.As regards recovery of dead body at the instance of the appetlants, Investigating Officer Navneet Patil (PW-12)has deposed in detail that he came to know about the fact that the appellants have buried the dead body in burial ground, firstly he applied for permission before the Executive Magistrate vide Ex.D-5 for exhuming the dead body and he ohtained permission. D.R. Markam (PW-8) - Executive Magistrate has supported this fact in para 5 of hiscross-examination. Navneet Patil (PW-12) has specjfically deposed in para32 of his cross-examination thaton 3-2-2005 at 11.15 a.m. he has applied for sanction before the Sub Divisional Magistrate for exhuming the body of the deceased by sending application Ex.D-5, thereafter at 1.40 p.m. on same day he interrogated the appellants and recorded their discloserstatements.' EXs.P-5 & P-6 are discloser statements of appellants Purshottam & Jeevan recorded at 1.40 p.m. and 1.35 p.m. respectively. As per the evidence of Investigating Qfficer Navneet Patil (PW-12), he took the appellahts to Sonesarar burial ground where the appellants pointed the placewhere the dead bocly was hiddenand same was exhumed. As per Ex.P-4, memorandum ofrecovery ofdead body, both the appellants haveshown the plaeewhere the deadbodywas buried and as per Ex.P- 3 same was exhumed. Factum of recpvery of dead body at the instance of the appellants has been specjfically deposed bylnvestigating Officer Navneet Patil (PW-12) in paras 4,5, 6&7 of hisevidence. 19.Jwala Prasad (PW-2) - witness of Exs.P-3, P-4, P-5& P-6 has substantially corroboratedthe evidence of Navneet Patil (RVV-12) in paras 4, 5 & 6 of the evidence. Evidence of Jwala Prasad (PW-2) reveals that firstly he was infdrmed by appellant Purshottam that they have committed murder of Jagannath on which they informed the police, the poliee interrogated the appellants, the dead body was exhumed at the instance of the appellants and same was identified. Evidence relating t6 recovery of spade vide Ex.P-7 and other articles of the deceased vide Ex.P-8 is not relevant in absence of any definite identification of these articles and further evidence to connect these articleswiththe commission ofcrime. •^.^:^.r}.;\ ""••^• i2'-'-''' '. „ '^aB^ .^?-, '^ ZO.Substantially, the prosecution has adduced evidence of extra judicial confession made by appellant Purshottam before Arjun (PW-5) and recovery pf dead body of deceased Jagannath at the instance of both the appellants, Evidence of Arjun (PW-5) relating to extra judicial confession made by appellant Purshottam finds corroboration from the evidence of D. Bydhelal (PW-11) - Head Constable of Police Station Deori and Investigating Officer Navneet Patil (PW-12). Evidence of Arjun (PW-5) well corroborated by the evidence of other witnesses inspires confidence, trustworthy and same is worth relianee relating to extra, judicial confession made by appellant Purshottam. Evidenceof Jwala Prasad (PW-2) & Navneet Patil (PW-12) relating to recovery of dead bodyat the instance of both the appellants is based on documentary evidence and other surrounding circumstances which reveal that on 3-2- 2005 other persons and thetnvestigating Officer came to know that dead body has been buried in Sonesarar burial ground where persons used to bury dead bodies, but the Investigating Officer or thewitnesses were not having definite knowledge that at which part of burial ground the dead body of Jagannath was buried. In absence of such definiteknowledge it was not possible for the Investigating Officer or other persons to exhume and dig the particular place when other dead bodies were also buried, that too without any permission from the competent authority. Investigating Officer Navneet Patil (PW-12) has obtained sanction for exhuming the dead bodyvide Ex.D-5 and thereafter, at the instance of both the appellants.when they pointed out the definite place where the dead body was buried, the place was dug and dead body was found which was exhumed. This evidence shows that till the time of exhuming the dead body, thelnvestigating Officer or other persons were not having any knowledge of the place where the dead bodyof Jagannath was buried or hidden.samewaspointed out by both the appellants; This evidence is sufficientfor drawjng inference that both the appellants were having kndwledge that the dead body of Jagannath has been buried at the place which they pointed out to the Investigating Officer.In these cjrcumstances, the appellantswere underobligation to offer explanation asto howthey came to know that the dead body of Jagannath has been buried at that particular place or who had buried the dead body, but the appellants have not offered any explanation. In absence of any explanation, theonly inferencewould be possible that the appellants had buried the dead body of Jagannath. There was no occasion for the 10 appettants to do such act, the deceasedwas nottheir relative and the deceased has not died normat death or has died within the knowledge of his relatives and other persons. Death of deceased Jagannath is homicidal in nature, TheseGircumstancesare also sufficient for drawing inferencethat only the appellants have caused homicidal death of deceased Jagannath and have buried the dead body at the place pointed out by the appellants in Sonesarar burial ground. 21.The aforesaid chajn of eircumstances namely (1) appellant Purshottam tias made extra judicial confession of commission of murder of Jagannath, before Arjun (PW-5); (2) dead body of Jagannath has been recovered at the instanee of disctoser statements made by the appellants; (3) death ofJagannath was hQmicidal in nature; and (4) the appellants have notoffered any explanation that how they know ttie fact' that the dead body was buried at the place pointed out by them; have been proved bythe proseeution and the evidence led by the prosecution satisfy the testsas laid down by the Supreme Court in the matter of C. Changa Reddy (supra). 22.Evidence of extra judicial confession relating to appellant Purshottam and evidence pf recovery of dead body ofthe deceased who died as a result of homicidat death atthe instance of both the appellants satisfy the aforesaid tests and are sufRcient for drawing definite conctusion thatonly the appellants have committed homicidal death of deceased Jagannath and except the appellants, nobody has committed homicidal death of deceased Jagannath. Aforesaid evidence also excludes the possibility of gyilt of any other person andpossibility of innocence of the appellants in the erime in question. It isalso sufficientfor proving thefactthatboth the appellants have conceated the evidence of criminal case i.e. the dead body after commission of culpable homicide. Injuries found over the body of deceased Jagannath are sufficient for drawing inference that the •appellants have caused homicidal death of deceased Jagannath with intentto cause his death. ' 1: • ! \ ! ' : , ' 1:' ' ~. 23.After appreciating the evidence available on record, learned Additional Sessions Judge convicted and sentenced the appellants underSections 302 read with Section 34 & 201 read with Section of the I.P.C.. On etose scrutinyof evidence, we do not find any illegality in Gonviction or sentences imposed upon the appellants bythe trial Coyrt. -<l'~'^1 .21 ^ iSls 1 ;:;y Scma 41 24.Consequently, the appeal is devoid of merit, same is liable to be dismissed and if is hereby dismissed. R.L..^ ~ Sd/- T.P. Sharma Judge "^^