HIGH GOURT OF CHHATTISQARH AT BILASPUR Criminal Appeal No.103 of 2006 Division Bench: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.LJHANWAR, JJ. APPELLANTS (In Jai!) RESPQNDENT 1. Lav @ Keia, Son of Shri Ramdhar; aged about 32years, Caste Muriya; 2. Kush @ Nani Son of Shri Ramdhar, aged about 32 yeare, Caste Myriya; Both Resident ofChalRlguda, Keshioor; Police Station Frejarpur, District Bastar (C.G.) Versus State of Chhattisgarh, Through Poltceof Police Station Frejarpur, District Bastar" (C.G.) T.P.Sharma, J.:- (APPEAL UNDER SECTION 374 (2) OF THE Cr.P.C.) Present:- Mr.R.N.Jha, counsel forthe appellants. Mrs.Madhunisfta Singh, Panel LawyerfortheState. JUD6MENT (ORAU (Passed on 7th January, 2011) Chailenge in this appeal is to the jydgment of conviction andorder of sentence dated 8.6.2005 passed by the Thlrd Addltlonal Sesstons Judge, Bastar at Jagdatpur in Sessions Triaf No.199/2004, whereby and whereunder ieamed Third Additionat Sessions Judge after holding the appeilants guiity for commisstonof cuipable homicUe of Chamrin Bai amounting tomurder convicted them under Sections 302aTOf 201 ofthe tndian Penat Code andsentenced to undergo imprisonment for lifeand to pay fine of Rs.500/-, in default of payment of fine to further undergo R.l. for one yearand R.l. for five yeare and to pay fine of Rs.1000/-, in defauit of payment of fine to Turther undergo R.l. for one year. t^i ^ 2. Conviction is impugned on the ground that without there being any iota of evidence, the trlal Court has convicted and sentenced the appetlants as aforementioned and thereby committed itlegality. 3 As per case of the prc^ecution, Subat @ Konda, husband of deceased Chamrtn Bai has gone for liveiihood to Sukma. When he came on 3.5.2004 at about 11 p.m. his house was found ctosed, his wfe Chamrin Bai (since deceased) was not present in his house, he made search of hts wife in the village and in his inlaws' house, thereafter, he lodged the missing report. Again he came back to his house and after openfng the door he found some dragging marks from his house towards the fietd, then he informed the vittagers, thereafter missing report was inquired by the poliee oflteer. During the eourse of investigation on account of enmity of wfe of appetlant Kush @ Nani with the deceased on the ground of witchcraft, both the accu^ were taken into eustody, they made disclosure statements of dead body of cteceased Chamrin Bat and stick vide Exs.P/2 and P/4. Dead body was recovered at the instance of the appellants from their fieid. Merg was recorded vide Ex.P/14A. Dehati nalishi was also recorded vide Ex.P/14. F.I.R. was todged vide Ex.P/15. Dead body was identified vide Ex.P/23. Stick was recovered at the instance of appeftant Kush @ Nanl vide Ex.P/3. Three pieces of stones stained with blood, bloodstained and plain soit were recovered from the spot vide Ex.P%. Bloodstained and plain soil were recovered from thespot i.e. from the ditch where dead body was buried vide Ex.P/6. After summoning the witnesses vide Ex.Py?, Inquestover dead body of the deceased was prepared vide Ex.P^. Spot map was prepared by investigating officer vfde Ex.P/9. Bloodstained lungi and shirtof appeliantKush were recovsred vide Ex.P/10. Dead body was sent for autopsy to Maharani Hospitat, Jagdalpur where Dr.Vh/ek Joshi (nw-6)conducted autopsyvide Ex.P/12and foundfollowtng-injuri^: (i) Lacerated wound over forehead of 2'x I" with diffuse swelling. (fi) Lacerated wound on upper part of eyebrow of 2" x 1". (iii) Lacerated wound over middle of the head of 2" x 1". (iv) Lacerated wound of Z' x 1" over chin. (v) Blood clot was found in the teft ear. ? (vi) Laeeratedwound was found owr lip of 1 14"x 2". a Irili ^. (vii) Two teethes were found broken and one teelhwas loose. (viit) Bone of left side of face was fractured. (ix) Swetling was found in left side of faee of 3° x 3" Injuries were ante-mortem and grievous in nature. Slides and seized articles after autopsy were seized vide Ex.P/18. Patwari atso prepared spot map vide Ex.P/24. '»•-. 4. Statements of the witnesses were recorded under S^tion 161 of the Cr.P.G. and after compietion of investigation, charge sheet was flted m the Court of Chief Judtelal Magistrate, Jagdalpur, who in tum committed the case to the Court of Sessions, Bastar at Jagdaipur, from where ieamed Third Addittonai Sessions Judge, Judgatpur received the case on transfer for trial. . 5. In order to prove the gullt of the accused/appeltants, the prosecution has examined as many as ntne witnesses. Patwari Rajesh Tiwan has examined as Court witness. Statements of the accused/appetlants were also recorded under Section313 of the Cr.P.C. where they denied the Circumstanees appearing against them and claimed Innocenceand fatse implicatipn in the crime in question. 6. After affording an opportunity of hearing to the parties, teamed Third Additional Sessions Judge has convicted and sentenced the appetlants as aforementioned. 7. We have heard Mr.R.N.Jha, counsel for the afyellants and Mrs.Madhunisha Singh, Panel Lawyer for the State, perused the judgment impugned and record ofthe trial Court. 8. Leamed counsel for the appellants vehemently argued that in the present case, convictions ofthe appellants are based on circumstantial evidence especially recovery of dead body at ttie instance ofthe appellante but evidence adduced on behaff of the pr<%ecution is not sufficient for drawing any Inference against appellant Kush @ Nani that he has committed the offence of culpable homicide of Chamrin Bai amounting to murder and has concealed dead body OT the deceased Wfth jntentto conceal the evidence of criminal case, therefore, conviction and sentences against appsilant Kush @Nani underSectipns 302 and 201 of the Indian Penal Code are not.sustainable under the law. =n:^=-—-@r^E 4 Leamed counsel further argued that convtetion and sentences relating to co-appeilant Lav @ Kela are substantially based on circum^antiat evidence. In order to convict the accused on the basis of CH'cumstentiai evidence, the prosecution is required to satisty the foilowing circumstances. The prosecution isalsounder obligatlon to prove the complete chain of cirourr®tancespointing out the guilt of the appellant and exciuding the innocenc^ of the appetlant, but in the present ease, evidenceadduced on behalf oftiie prosecution is sufflctent forcreating doubt thatappeilant Lav @ Kela would have been committed the offence but is not suffloient for drawing inference that appellant Lav @ Kela has committed culFable homicide of Chamrin Bai amounting to murder and tias concealed the evidence of criminal case. Suspicion, however strong it may be, cannot take ihe ptace of tegal proof, therefore, appeitant Lav @ Keia is entitled for acquittal. Leamed counsel atso argued that evidence of Subat@ Konda, hustond of deceased Chamrln Bai and Dubush (PW-8) do not inspire confidence and trustworthy.their evidence are not fully reliable and further not corroboration from the materiai part. Evidence of these witnessesare notsuffieient for drawing any deflnite conclusion against appellant Lav @ Keta. 9. On the other hand, ieamed State counsel supported the juclgment impugned and argued that evidence adduced or> behatf of the prosecution again^ the appetlants are sufficient for drawing inferenee that both the appetlants have committed the offence puRishabte under Section 302 read with Section 2Q1 of the Indian Penal Code and the trial Court has rightly convicted and sentenced the appetlants as aforemerrtioned. 10. !n order to appreciate the arguments advanced on behalf of the partteSi we have examined the evtdence adduced on behalf ofthe prosecution. 11. In the present case, homicidal death as a resuit of fata! injuries found over body of deceased Chamrin Bai has not been substantialiy disputed on behaif of the appellants, on the other hand, also ^tablistied by the evidence of Dr.Vh/ek Joshi (TOV-6) and autopsy report Ex.P/12 and death vras homicidai in nature. n.i 12. As regards the complicity of the appellants in crime in question, Gonvtetion is substantially based on eircumstantial evfelence, As per case of the prosecution, the prosecutlon has examined the witnesses to prove the foltowing circumstances, (1) On theground ofwitchcrafS, the present appetlants were having motive fw commlssion of offence. (2) ChamrinWas missing fromher house. (3) Dragging marks were found from the house of Chamrin Bai up to field where dead body was hidden belonging to the appellants. (4) Broken pieces of Jsangies were found in the house of Chamrin Bai and also tound in ths diteh where dead baly was hkiden. (5) Dead body of the deceased has been recovered at the instanceofthe appeiiants from diteh in hidden position. (6) The appelianls have not offered any exptanation that how theycame to know that dead body had been buried on ditch. 13. As per evidence of Subat @ Konda (PW-1), when he came back after his livelihood he found that his house was ctosed, his wife was not present in his house, then he madesearch, he atso went to hfe Inlaws' house and inquired about his wife but his wife was missing, then he came to his house, white he was going to ease he saw some dragging marks in Ws vegetable garden, then he went to police stationand lodged the report, poiice came to the village and inquired the matter. During the course of investigaition, appellant Lav @ Keta madedisclosurestatement that body of Chamrin Bai has been buried in his field and he also shown the place where dead body was hidden, same was assumed. Sub tnspector G.P.Pandey, whohas investigatedthe offence, hasdeposedin his evidence that he has recorded memorandum of appeltant Kush @ Nani as Ek.P/2 and appeliant Lav @ Kela as Ex.PManct on tjhe basisof memorandum, articles have been seized. Dubus (FIW-8)lwitness of Exs.P/2 and P/4 has deposed in para 1 of his evidence that appeiiant L8<? was interrogated by the potice, Kush made djsciosure statement Wst dead body of Chamrin Bai was hidden jn ditch in his field, he'went along with polics and pojnting out the place where dead body [was fbund .^4 J,!'--t| "-ii, f ;teg^ ^ ^•Stea^^ ^ /' :i ::i:|nr buried. Same was assumed. Btoodstained was atso found near the place of ditch, broken pieces of bangies were also found whece dead body was dragged. As per para 2 of his evidence, on second day of recovery of dead body co-appeliant Kush @ Nani has also made disclosur& statement of dead body. Defence has cross-examined ese witnesses at length but has not been abte to elicit anything in tteir examlnation relating to thej'act that dead body of deceased Chamrin Bai has not been recovered at the instance of appeltant Lav @ Kela 14. Definitely, as per evidence of para 13 of Subat @ Konda <PW-1) and para 8 of Dubus (PW-8), investigating officer has taken stric* proof and even they have used some force but the fact that appellant Lav has made disclosure statement that dead body of Chamrin Baiwas hidden in ditch in his field beforesuch sfatement it waswithin the knowledge oftte investigating officer. This is not a case in which by using eriminal torc& or taklng rigid view or coercwe view the police has compelled to made disclosure statement of the fact which was wlthin the knowledge of ttie police or anyother person, therefore, in the present case, useof criminal Torce or coercive procedure wili not effect evidentiary value ofdisclpsure5" statement made by appellant Lav @ Kela. 15. Evidence of Subat @ Konda (FW-1), Dubus (R/V-8) and G.P.Pandey (FW-9) are sufflcient for drawing inference that dead body of Chamrin Bai has been recovered on the basis of disclosure statemert of appeliant Lav @ Kela. Appetlant Lav @ Kela has notoffered any explanation that how he came to know about dead body which was hidden in dltch or who hascaused homicidal death ofChamrin Bai. Appetlant Lav@ Keta was under obligation to offer any explanation that who has caused homicidal death of Chamrin Bai, how he came to know the fact that dead body was hidden in ditch in his field. 16. As regards appellant Kush @ Nani, as per para 2 of evidenceof Dubus, on the second day appellant Kush @ Nani has atso made same disclosure statement and at the time of such disclosure statement investigating offteer was having knowledge of the fact ttiat dead body tias been buried In ditch and same has been recovered at the instanro ofappeliant Lav.therefore, disclosurestatement given byappeiiant Kush Nani In the present case is of no use and !t cannot be used against him. 17. In the present case, the prosecution has proved followlng circumstances; (i) Chamrin Bai was missing from her house. (ii) Her dead body was found buried in ditch. (iil) Her death was homlcidat in nature. (iv) Dead body ha^ been recovered at the instence of appeliant Lav. (v) Appellant Lav has not offered any explanation that how he came to know about dead body. 18. White dealing with the question of conviction based on cireumstantiat evidence, the Supreme Court in the matter of Kusuma Ankama Rauv. State of A.P.1 has held that in case of conw'ction based on circumstantial evidence, prosecution is required to satisfy the foltowing circumstances, (i) the circumstances from which the conclusion of guilt is to be drawn should be fuily establi^ied. The circumstances concerned 'must' or'should' and not 'maybe' established; (ii) the fects so eslablished should be consistent on!y wlth the hypothesis of the guilt of the accused, that is tosay, they should not be e)ylainable on any other hypothesls except that the accusKt isguilty; (iii) the elreumstanees should be of a conclusive nature and tendency; (Iv) they should exclude every possibte hypotMesis excqat the one to be proved; and (v) there must be a chain of evidence so complete as ncrt to teave any reasonabte ground for the concluston consistent with the innocence oftheaccused and mustshowthat in all human probability the act must have beenidone by the accused. 1 19. IT the aforesaidcircumstances are considered together, then the only ,'inference would be possible that appellant Lav @ Keta isthe personwho has committed homicidat death ofChamrin Bai amountingto murder and 12C08AiRSCW4669 / none other person has committed the aforesaid offence and atso exclude innocence of appellant Lav and alsoproved the fact that he has buried dead body with a view to conceal the evidence of criminal case. 20. After appreciating the evidence available on record, the trial Court has .convictal andsentencedthe appellants asaforementioned. 21. For the for^oing reasons, we do not flnd any case agalnst appeMant Kush @ Nani, therefore, conviction and sentences under Sections302 and 201 of the Indian Panel Code retating to appellant Kush @ Nani are not sustainable underthe taw. 22. Consequently, the appeal is partly allowed. Conviction and senfaices of appellant Kush @ Nani under Sections 302 and 201 of the Indian Penal Code are hereby ^t aside. He be set at liberty arri be released forthwith, if not requlred in any other ease. However, convidion arrf sentences of appellant Lav @ Kela under Sectjons 302 and Z31 ofthe Indian Penal Code are hereby malntained. Sd/- T.P. Sha^ffia Judge Sd/- R.L.Jhanwar Judge