;i^®s ^M' ^^.'^-"^5^ A£^ f^ HI6H COURT OF CHHATTISGARH AT BILASPUR t. Coram: Hon'ble Mr.T.P.5harma & Hon'ble Mr.N.K.Agarwal, JJ. Cnminat •Appeal No. 1104 of 2003 Ishwari Prasad Sahu ./Versus State of Chhattisgarh JUbGMENT FOR CONSIDERATEON Sd/- T.P. Sharrsta Hon'ble Mr.N.K.Agarwfal ^ ^^ Sd/- N.K.Agrawal Judge tt- Post for Judgment on : 2-1-1-2010 Sd/- Sharma Judge llu.!... ^^ ^s •IS^£^' ^ ^l '^li' v'^s»^ AP^ HI6H COURT OF CHHATTIS6ARH AT BILASPUR Criminal Appeal N^.1104 of 2003 \. Coram: Hon'ble Mr.T.P.SHARMA <& Hon'ble Mr.N.K.AGARWAL, JJ. APPELLANT (In Jail) RESPONbENT Ishwari Prasad Sahu S/o Keshavram Sahu r/o village Acholli p/s Kharora distt Raipur (C.6.) 'i Versus •^. State of Chhattisgarh through p/s Newara Distt Raipur (C.6.) (CRMINAL APPEAL UNDER SECTION 374 (Z) OF THE CODE OF CRIMINAL PROCE&URE, 1973) ..,., .-aEi 1. Present:- Mr.Vivek Rathore, counset for the appellant. Mr.Akhil Mishra, t)y. 6ovt. Advocate for the State/respondent. JU&6MENT (Delivered on ^J January. 2010) The judgment of the Court was delivered by T.P.5harma, J.:- Challenge in this appeal is to the judgment of conviction & order of sentence dated 30.6.2003 passed by the 9+ Additional Sessions Judge (F.T.C.), Raipur, in Sessions Trial No.21/2002, whereby <& whereunder learned 9+ Additional Sessions Judge after holding the appellant guilty for the offence punishable under Sections 302, 392 and 455 of the Indian Penal Code, sentenced him to undergo imprisonment for life and to pay a fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for six months, rigorous imprisonment for three years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for three months and rigorous imprisonment for three years and to pay a fine of Rs.500/-, in default of '.,«-' i5... ^ :ha"<'''^// '•'w-' payment of fine to further undergo rigorous imprisonment for three months. 2. Judgment is impugned on the ground that without there being any credible and clinching evidence, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful day of 13.12.2001 between 11 to 12 at noon, deceaS'ed Maneshwari was present in her house, the appellant entered into her house and committed rape with her. After commission of rape,.he has also committed robbery of articles of the property of the deceased and caused homicidal death amounting to murder. Dehati Nalishi was recorded vide Ex.P/1. After summoning the witnesses vide Ex.P/5, inquest over the dead body of the deceased was prepared vide Ex.P/6. FJ.R. was lodged vide Ex.P/2. Dead body was sent for autopsy to Community Health Centre, Nevra. Autopsy was conducted by Dr.Ku.Meena Samuel (PW-2) vide Ex.P/3 and found following injuries:- i) Lacerated wound of 5" x 3" x 2" over the neck. Trachea was visible; ii) Lacerated wound of 2" x 1 i-" x l" over left shoulder. Blood was coming out; 4. Cause of death was severe heamorrhage as a result of fatal injury over the neck and death was homicidal in nature. Bloodstained soil, plain soit, bloodstained piece of bangles, two hair clips, one bloodstained handle o-f barber knife and one bloodstained .bed sheet were recovered from the spot vide Ex.P/8. On 18.12.2001 after 5 days of the incident, the appellant was taken into custody. He made disclosyre statement of broken barber knife, motor-cycle, broken piece of necklace (Mangalsutra), locket, payal, guriya, bloodstained clothes and Rs.3100/- vide Ex.P/13. The appellant has produced bloodstained sharp aged part of barber knife. Same was recovered vide Ex.P/14. Bloodstained sweater, % I ;.-y^.. s&^ full paint, shirt, Rs.3100/- and underwear were recovered at the instance of the appellant vide Ex.P/15. Three receipts relating to sale of ornaments were recovered from Ramesh Kumar vide Ex.P/17. Piece of Mangalsutra, silver payal and cash memo (Ex.P/11) were seized from Sanjay Kumar at the instance of the appellant vide Ex.P/12. Register was given in Supurdnama to Sanjay Kumar vide Ex.P/13. Spot map was p'repared by the investigating officer vide Ex.P/18. Spot map was also prepared by patwari vide Ex.P/9. Black guriya of necklace and thread were recovered at the instance^of the appellant vide Ex.P/19. Motor- cycle Babaj M 80 was seized from Malik Ram vide Ex.P/7. Seized ornaments were identified by the husband of the deceased Ramesh Kumar Verma vide Ex.P/23. Seized articles were sent for medical analysis vide Ex.P/21. Presence of blood over barber knife and clothes of the accused/appellant were confirmed by the Forensic Science Laboratory, Raipur vide Ex.P/25. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). After completion of investigation, charge sheet was filedin the Court of Judicial Magistrate First Class, Raipur, who in turn committed the case to the Court of Sessions Judge, Raipur from where the 9 Additional Sessions Judge (F.T.C.), Raipur received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 17 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code where he denied the circumstances appearing a9ainsf him and claimed innocence and false implication in the crime in question. The appellant has also examined defence witness Smt.Ratna Bai (bW-1), Sarpanch of Qram Panchayat Nevdha who has deposed that on the date of incident construction work of road was goirig on and at about 11 a.m. the appellant came to her to meetand after discussion for about 5 to 10 minutes, she went along with th&appellant to village Nevra. The appellant/accused told her that after .^StaS.-tf^.^ ^'~ • ^ ^k^ /y^'1^ 7. 8. returning motor-cycle of his brother he will go back to village Acholli. The appellant has taken plea of elibi. \. After affording an opportunity of hearing to the parties, the 9 Additional Sessions Judg? (F.T.C.), Raipur has convicted and sentenced the appellant as aforementioned. We have heard Mr. Vivek Rathore, counsel for the appellant and Mr.Akhil Mishra, Dy.Govt.Advocate for the State and perused the impugned •'t. judgment and record of the 6burt below. 9. Learned counsel for the appellant vehemently argued that the present case is based on circumstantial evidence and disclosure of facts at the instance of the accused/appellant. In case of conviction based on circumstantial evidence, the prosecution is required to prove complete chain of circumstances sufficient for drawing only inference of the guilt of the appellant. Only disclosure of facts is not sufficient for drawing any inferenceof commission of the offence. Learned counsel further argued that the prosecution has not adduced any evidence to show that the appellant is the only person who has committed the aforesaid offences and except the appellant, nobody has committed the offences. In absence of such evidence the appellant cannot be convicted. Suspicious however grave cannot take place of evidence and only on the ground that heinous offence, liability cannot be fastened upon the appellant or any innocent person. 10. On the other hand, learned State counsel supported the impugned judgment and argued that the present case is based on circumstantial evidence including disclosure of facts made by the appellant which are sufficient for conviction of the appellant. The prosecution has completed chain of circumstances sufficient for drawing inference that the appellantis the only person who has committed the offences and except him nobody has committed the offences. , y./ :i;y •ia^y' Sh g*l-E^% '"•ss-ss'a 11. In order to appreciate The arguments advanced on behalf of the parties, we have examined the material available on record. In the present case, homicidal death as a result of ante-mortem injury is not substantially disputed by the appellant. Virtually in the present cdse, defence of the appellant is defence of e//6/that at the time of commission of the offence he was not present on the spot. On the other hand, homicidal death as a result of fatal injury is established by the evidence of Dr.Ku.Meena Samuel (PW-2) qnd autopsy report (Ex.P/3) which reveals that deceased Maneshwari died as a result of fatal injury found over her neck sufficient for causing death and death was homicidal in nature. 12. As regards the complicity of the accused/appellant in the crime in question, the present case rests on the following circumstantial evidence, i) Presence of red motor-cycle in front of the house of the deceased; ii) Same motor-cycle was taken by the accused/appellant from his relative Malik Ram(PW-7) from village Acholli and he was in possession of such motor-cycle at the relevant time; iii) Sharp piece of barber knife stained with blood and bloodstained clothes were recovered at the instance of the appellant; iv) The appellant has sold the ornaments to shopkeeper; v) The deceased was wearing ornaments before her death and same were missing after her death and recovered at the instance of the appellant; vi) Ornaments of the deceased we.re recovered at the instance of the appellant; vii)0rnaments were identified by the husband of the deceased and found that they betonged to the deceased Maneshwari. 13. At the first insfance, dehati nalishi was registered vide Ex.P/1 and F.I.R. was also lodged vide Ex.P/2. Inquest over the dead body of deceased Mdneshwari was prepared vide Ex.P/6 and fatal injuries were found over L:^t^l2fl ^i; •ikl,.,,.,, the body of the deceased. Smt.Maheshwaribai Verma (PW-3) has deposed in her evidence that on 13 December, 2001 at about 12 noon she was present in her house along with Rukhmani. Children of deceased Maneshwari, namely Vivek Verma and Vikram Verma came to her house and told that body of Maneshwari was lying. She went along with children whe.re she saw bloodstained dead body of Maneshwari. Smt.Rukhmani Bai (PW-4) has also corroborated the aforesaid facts. Rambai (PW-5) has deposed in her evidence that qt the time of commission of the incident, she has seen one red colour vehicte in front of the house of the teacher •'.. i.e. husband of the deceased. Defence has cross-examined this witness at length, but fact relating to standing of red colour vehicle in front of the house of the deceased is unchallenged. 13. Malikram Sahu (PW-7) relative of the accused/appellant has deposed in his evidence that on 12th December, 2001, the appellant came to his house. He stayed in his house and on second day he demanded his red colour Bajaj M 80 motor-cycle for going village Nevdha 10.30 a.m. which he provided. He came back at about 8.30 p.m. to his house and inquired from his wife Shanti Bai (PW-6) who informed him that the appellant came back at about 12 at noon and after leaving motor-cycle, he went to village Acholli. Malikram Sahu has also deposed that on 14.12.2001 he read news in newspaper that murder was committed at Nevra and red colour motor-cycle was standing in front of the house where murder was committed. He assumed that at the relevant time, the present appellant was in possession of his red colour motor-cycle who is having criminal antecedents of theft and robbery. He went to the police station Nevra and informed the police that his cousin brother i.e. present appellant had taken his motor-cycle at the relevant time. The police has seized his motor-cycle vide Ex.P/7 on 18.12.Z001. Shanti Bai (PW-6), wife of Malikram (PW-7), has also corroborated the evidence of Malikram and deposed that the appellant informed her that the person whom he want to meet met in a way, therefore, he returned back. The appellant left .1 4i^vs's^. ^ '% 8 ^^^''. ^yyssSSS ,, .SA motor-cycle in the house of Malikram and Told wife of Malikram that he will go to village Acholli. Statement relating to taking of red colour motor-cycle by the appeltant from Malikram and its possession at the relevant time is unchallenged in cross-examination of Shanti Bai (PW-6) and AAalikram (PW-7). The appellant has examined defence witness Smt.Ratna Bai who has also admitted that the appellant was in possession of motor-cycle and after sometime he went back. The appellant has stated in his examination under Section 313 of the Code that he took "i. motor-cycle from Malikram ori the date of incident and after sometime he returned the same. Possession of motor-cycle at the retevant time is even admitted by t+ie appellant. 14. Ramesh Kumar Verma (PW-16) husband of the deceased Maneshwari has deposed in his evidence that on 13th December, 2001, he was on duty in his school. He was catted by the persons to hishouse. He went back to his house where police were present. bead body of his wife Maneshwari was lying in the room stained with blood. Injuries werepresent over her body. Her ornaments which she was wearing in her neck, ear and legs viz., necklace, bali and one payat were missing. Death of the deceased was as a result of fatal injury. Missing of ornaments from the body of the deceased are also unchallenged. 15. Ajay Dubey (PW-14) the then Station Incharge, police station Nevra has deposed in his evidence that he has partially investigated the offence. He has taken the accused/appellant in custody and interrogated on 18.12.2001 after 5 days of the incident. The accused made disclosure statement vide Ex.P/13 relating to presence of broken piece of barber knife inside the courtyard of school, motor-cycle in the house of his brother at village Tulsi, broken thread of necklace (Mangalsutra), guriya near Padridih Sfop &am, goldeg locket, golden guriya and one silver payal in the shopkeeper at Baloda Bazar. He has also deposed That the appellant made disclosure statement that receipts of sate of ornaments and his clothes are in possession in his house. He has also deposed in his k' -''y^ ^ 'l^ rt R-H^SS^If ..,-d»a evidence That after recording disclosure statement, he went along with the witnesses and the accused to the school from where the appellant took out one barber kriife from shrub which he seized vide Ex.P/14. Again he went with the accused and fhe witnesses to the house of the appetlant at village Acholli' from where he produced sweater, full paint, full shirt, sale receipts of- Rs.3100/- and one underwear vide Ex.P/15. He has also seized receipts from Ramesh Verma vide Ex.P/17 relating to purchase of articles. He also went with the accused near Padridih Stop •'/. Dam where the accused produced one plastic Thread and 45 pieces of guriya which he seized vide Ex.P/19. He prepared spot map vide Ex.P/18 and sent memo for identification of articles vide Ex.P/20. He atso sent seized articles for chemical analysis vide Ex.P/21. l-1e has also deposed that he went with the witnesses and the accused to the shop of Chakrapani Shukta & Company, Baloda Bazar and seized locket of Mangalsutra, 6 piecesof gotd and silver payal vide Ex.P/12 from Sanjay Kumar. 16. Chaganlal Kashyap (PW-11) has deposed in his evidence that barber knife has been recovered at the instance of the appellant vide Ex.P/14. Clothes have also been recovered at the instance of the appellant vide Ex.P/15. Sanjay Dubey (PW-9), clerk (Munim) of Chakrapani Shukla & Company has deposed in his evidence That the appellant/accused whom he knows came to his shop on 13.12.2001 at about 3.30-4.00 p.m. and sold one golden locket, golden dane, ear ring and one piece payal vide receipt No. 214 (Ex.P/ll). He has also deposed that after 4-5 days, the police came with the accused and has seized the aforesaid articles vide Ex.P/12 from him. Tanaji Jadhav (PW-10) has supported the evidence relating to seizure of ornaments vide Ex.P/12 from Sanjay Kumar. The defence has cross-examined these witnesses at length. Ajay Dubey (PW-14) has admitted in para 10 of his cross-examination that there was no boundary wall in Nevra school. He has admitted in para 12 of his cross-examination that he has not seized carbon copy of receipts. He has also admitted in 1 "^ •''.isa fe:-,.::,-.;!.. .:3'35 ^ para 12 of his cross-examination that the place where guriya and thread were found is adjoining to path and is busy place. He has also admitted in \. para 14 of his cross-examination that he has not placed motor-cycle for identification. Chagantal Kashyap (PW-11) has deposed in his cross- examination that school is surrounded by barbed wire and after search for one and half hour? they found the weapon. Clothes of the accused/appellant were seized after producing the same by one woman from the house of the accused and the appellant also went inside the •ii house. Sanjay Dubey (PW-9) has admitted in his cross-examination that they were in possession of other articles like locket, guriya, ear ring and payal. In para 9 of his cross-examination, he has admitted that they have issued receipts serially and has admitted that receipts No.230 has been issued on 17.12.2001 and receipts No.231 to 235 have been issued on 16.12.2001. He has also admitted in para 9 of his cross-examination that there is no regularity in the issuance of receipts. In his detail cross-examination, he has stated that the appellant was the person who came with the aforesaid articles and sold the same which they have purchased and issued cash memo Ex.P/11. 17. Chaganlal Kashyap (PW-ll) and Ajay Dubey (PW-14) have specifically deposed that they went with the accused to the school where they seized barber knife and also another place near Padridih Stop bam where they seized guriya and broken thread. Definitely both the places are not secret places and assessable to other public, but the evidence of Chaganlal Kashyap (PW-11) reveals that knife was not visible and after long search of one and half hours they found barber knife. Even according to Ex.P/11, the appellant has not concealed knife, but has thrown knife in the school courtyard, not at any definite place. Suriya and thread are not costly item, they were lying near Padkidih Staff Dam which were recovered at the instance of the appellant. Admittedly, guriya and broken thread were seized from open place but not the resident of the accused/appellant. It shows that the accused was having 'ss°:'%^k ."su »i,t^^f 10 @ knowledge of the fact that guriya and broken thread were lying or present on the place from where it has been seized. \. 18. Identification of the ornaments were conducted by Tahsildar/Executive Magistrate Y.R.Netam (PW-17).who has deposedin his evidence that he received requisition for identification from the police vide Ex.P/20. He directed the police to produce ornaments for identificafion on 21.12.2001 at about 3 p.m. before him. The police produced one piece golden locket, 6 pieces golden guriya, one pair eap ring (bati), one old payal. He has also obtained similar articles through his agency and mixed the same with the articles received for identification. He calted Ramesh Kumar Verma for identification who had identified the articles amongst other articles mixed for identification vide Ex.P/23. Ramesh Kumar Verma (PW-16) has also deposed that he had identified ornaments amongst other ornaments on the ground that his wife was wearing the ornaments and he has purchased the ornaments from Tilda. He has identified the ornaments in the Court. Tha police sent him tahsil office for identification and directed to identify the articles whether they belonged to his wife or not. He went to tahsil office at about 3.30 p.m. He picked up the ornaments belonging to his wife amongst other similar ornaments. In his detail cross-examination, even he has deposed that how he was able to identify the articles. The defence has also cross-examined Y.R.Netam (PW-17) in detail, in which he has specifically deposed that before identification he mixed other similar articles and placed for identification, in which Ramesh Kumar Verma had identified the articles amongst other articles. Handle of barber knife and sharp part of barber knife were recovered at the instance of the appellant from school premises. Sweater, full paint and shirt of the appellant were sent for chemical analysis along with other articles vide Ex.P/21. Presence of blood over handle of barber knife, sharp part of barber knife and clothesof the accused were confirmed by the Forensic Science Laboratory, ftaipur vide Ex.P/25. 11 "Sasl 19. Presence of the appellant on 12.12.2001 at village Tulsi and taking of motor-cycle on 13.12.2001 at noon and returning of motor-cycle has admitted by the appellant in his examination under Section 313 of the Code (evidence of Smt.Ratnabai (&W-1)}. The appellant has taken defence of evidence of Smt.Ratnabai (DW-1) who has deposed that at the alleged time of commission of offence, the appellant came to her by motor-cycle and after discussion he went back. In the light of the evidence adduced on behalf of the prosecution, it supports the case of '/. the prosecution. The appellant ''vuas in possession of motor-cycle at the relevant time but evidence relating to return of the appellant is not true. 20. In the present case, by adducing evidence, the prosecution has established following circumstances; (1) Ornaments which the deceased was wearing were missing, (L) On 12.12.2001 at about 12 at noon according to evidence of Smt.Maheshwaribai Verma (PW-3), Smt.ftukhmani Bai (PW-4), ftambai (PW-5), Pradeep Choubey (PW-8) and Ramesh Kumar Verma (PW-16), deceased Maneshwari was found dead in her house os a result of fatal injuries over the body, (3) As stated by br.Ku.Meeno Samual (PW-2) and autopsy report Ex.P/3, injuries were ante-mortem and death of Maneshwari was homicidal in nature, (4) At the relevant time, one red motor-cycle was seen in front of the house of the deceased Maneshwari {evidence of Rambai (PW-5)}, (5) At the relevant time, the appellant was in possession of red colour M 80 motor-cycle owned by Malikram Sahu (PW-7) and the appellant told Shanti Bai (PW-6), wife of Malikram Sahu that he is going to village Nevdha and after sometime he came back and told that the person from whom he was going to meet met in a way, therefore, he came back and after leaving motor-cycle in the house of Malikram Sahu, the appellant went !;" /:- & .. SiWs»sss!'. to village Acholli {evidencs of Shanti Bai (PW-6) and Malikram Sahu (PW-7)}, (6) The appellant was in possession of golden locket, golden guriya and one silver payal which he sold in the shop of Chakrapani Shukla & Company at Baloda Bazar on the same day on 13.12.2001 vide Ex.P/11 {evidence of Sanjay Dubey (PW-9), Chaganlal Kashyap(PW-ll) and Ajay Dubey (PW-14)}, (7) The aforesaid orr^ments were seized on the basis of disclosure statement mad? by the appellant vide Ex.P/13 on 18.12.2001 from Sanjay Dubey {evidence of Sanjay Dubey (PW- 9), Tanaji Jadhav (PW-10), Chaganlal Kashyap (PW-ll) and Ajay Dubey (PW-14)}, (8) Recovery of sharp piece of barber knife on 18.12.2001 on the basis of disclosure statement (Ex.P/13) made by the appellant vide Ex.P/14 and presence of blood over sharp edged part of barber knife vide Ex.P/25 {evidence of Chaganlal Kashyap (PW-11) and Ajay Dubey (PW-14)}, (9) Recovery of broken thread and guriya on the basis of disclosure statement (Ex.P/13) made by the appellant vide Ex.P/19 {evidertce of Ajay Dubey (PW-14)}. (10) The deceased was wearing the ornoments on 13.12.2001 and soon after the commission of offence same were in possession of the appellant and The appeltant has sold fhe same to the shop of Chakrapani Shukla & Company, Baloda Bazar which were seized and ornaments were identified by fhe husband of the deceased Ramesh Kumar Verma(PW-16) that the saidarticles were the articles of the deceased which she was wearing and after the incident same «vasmissing from her body. (11) There was no justffication or explanation offered on behalf of the appellant that how he was in possession of the aforesaid ornaments, how he knows the presente of sharp edged part of 13 •'^^^ "';^s*»kA barber knife in the school premises and thread & guriya near Padridih Stop Dam. 21. The appellant has been convicted under Sections 302, 392 & 455 of the Indian Penal Code for eommission of lurking house tress-pass after preparation for causing hurt, robbery and homicidal death amounting to murder. The conviction is based on circumstantial evidence, recovery of articles and weapon on the basis of disclosure statement made by the appellant. ' 7 ^. 22. In case of