( \1’ IGH COURT OF CHHATTISGARH AT BILASPUR' IVISION BENC HON’BLE MR. T.P. SHARMA 85 HON’BLE MR. R.L. JHANWAR, JJ. CORAM: ' Cr} Appeal No. 724/2004 ppellant Cht am. Accus'ed'’ (in jail) ' espondent /V State of Chhattisgarh. ‘ Prosecution JUDGEMENT FOR CONSIDERATION ”v Hon’Blé Mr. R.L. JHANWAR J. Sd/— R.L. Jhanwar Judge 20/ 09/ 20 1 O for Judgt on: 20/09] 2010 Post men H D H A] ua R “ Versus R IGH COURT OF OHHATTISGARH AT BILASPU ' HO MR. T.P. SHARMA & ON’BLE MR. R.L. JHANWAR, rCuta Ram, S/o Nanaki. Ram uryavanshi, aed. ut ‘58 .years, esident of Hanumanta, Police Staton Baradwar’ District i , — Janjgir-Champa (C.G.) péIlant » ccuse in jail ( ) ' State of Chhattisgarh Disrict ' Magistrate, Janjgir Chama (C G ) throug . Distric- Respondent rosecut RIMINAL APPEAL UNDR SECTIO 3 (2} OF TH COE RIMINAL PROCEDURE 197 Pt. hvac- aj vcat or te appelnt resen:- SriShinSingh Rput, Adoe f h la. Shri Sadee Yad, y mn dvocte fo ' np av D. Governet Aa r the 'State/ resondent. JEMEN: Passed on 20*?09/2010) T l j d by he folowing udgment of the Court was passe T.P. 'Sharma, J:- li .Cl h p g f halenge‘ in tis apeal is to the judment, o "c d d /2004 .on‘yi‘ction an order of sentence date 20/7 p il i iti assed by Additona Sessions Judge, Sakt, ,Dsrct . ilasur in Sessions Trial o. 116/200 whereby an / Bp N 4 d here uner aer holing te appellant guilty or th W d ft d h f e ’4 ffence of commssion of culpabe homicide amounti? V o i l ng to murder of his wife Pramodkumari and concealing h‘ te A H R N?BLE H JJ; i. Aeal No. 724/20 C pp 04 h S g abO R Ap/ v Ad a Versus , t p h t Pion ] C E N 74 E D OF. C 3 p UDGT ( év1dence of cnmlnal case conv1cfed the appéll®t H L under Sectlon 302 of the Indlan Penal Code and‘ I sentenced 1mpr1sonment for hfe a11d fine of Rs 500/— - " Fem default of payment of flne amount addltlonalv" I rigorous 1mpr1sonment for 1 month 8r, conv1cted under .l, ‘ Secnon 201 of the Indlan Penal Code and sentenced. * 1n default of payment of fine amount addltlonal " V I'Conv1ct10n 1s 1mpugned on the Ground that wxthout any o 5. jlota of eVIdence ' sutiicwnt for conv1cnon of the, v I appellant Court below has conwcted and sentenced the V appellant as aforementloned and thereby comm1tted an ' " J tlllegahty ‘ ‘Bnef case of the prosecutlon Is Pramodkumarl (smce ' deceased) reeldlng W1th the appellant at, his Wife; ’ Hanumanta Pol1ce Statlon Baradwar Dlstnct Janjg1r~ ff ‘ Champa Before 17/8/2003 appellant assaulted 'V-Pramodkuman and throttled her neck and thereby y‘caused her death He took the dead body of, - 01ml» WW? II Pramodkuman near Nala and after d1tched—appellant v ' _ has burled the dead body of h1s w1fe Pramodkuman He . made extrajud1c1al confessmn to h1s another w1fe PW3 V Sukwarabal and thereafter he went to Delhl for h1s I rlgorous 1mpr1sonment for 3 years and fne ofRs 500/; v0 2 ngorous Imprlsonment for 1 month ’ lg Sukwarabai also went to Demij Aft anta s I eliood, his wife livh som e; ack to village anum nfesion to, PW and again mad extrajudicie co PW6 Purusotta‘m amodkumari wen aha’t, r. father 0i deceased Pr ame to knew that his daughter Pramodkumari is — issing, he ha not gone Del vi n 17 de EX. 13—2. O ‘ b H e time appellant came e l h Mehtarda uryavanshi, c d hi m ded missing report e f uring cour e /8/2§ of inquiry o such missing repor, ap t / pellant was taken ino custody on 31/ 12 with appellant theh h 00 t 2 e 003f H e where ea bo o 29/12/2003. He a1 nd one cycle o with. othe ody was buried Was- exhumed ma was prepared vde Ex. Pv’12. Artice statement of plac 6 WaS disosure stament of stic ade disCosur ’b‘uxi’ed vide Ex. 12— cl dd dy So made a n te k 1 'l2/20’03. Police took the appellant alon 3 / g ar b Nada where dead hwn by the appellant d dead body was witnesses ne’ So an a h nd Pancna e. sari, blouse, Pettic bangles and oat) ra, i t ls broken n the ditch and sm recovere .piegevof bangles were also found i Ws taken Out Vide EX. P—7. Soil,were also cle was recoVered at ‘ ’ ro he dch vide EX. P—8. One cy llant Vide EX. P—9. Spade tc ered at the instance of appellant videEx. P4 a fm t it the instance of ap were recov 1 Ex. P-‘13: exhumed vide Ex. — bo virtually skeleton a 0. Spot map was 'prepared by Patwari vid Mh Kotwa s h S l log d s e n m l r ‘ i b ae d and sik pe e ? Dead dy ws t 1,6. Skeleton-.Was sent for autopsy to.Primary_Hea1th ' Center Baradwar vide Ex P—14 Autopsy was> conducted by the team of doctors Vlde EX P—15 PW9 ' Dr J Smgh opmed on the ba31s of bones and pe1v1c f ' bone and other artlcles found along Wlth skeleton, the . i~ dead body was the dead body of woman, aged about 28 j V 'I years On 29/ 12/2003 Dehat1~marg was recorded v1de-. V .:EX P20 and on the baSIS of Dehatl-marg, marg " . ' . ' 1nt1mat1on was recorded v1de EX P-1 7 and on the ba51s .' ‘ of marg 1nt1mat10n Flrst Informatlon Report was? '- " recorded V1de Ex P 18 Map was also prepared by .‘ ' 1nvest1gat1ng offlcer v1de EX P—21 Sealed cloths and ~ bones were selzed v1de EX. P—22. Statements of the w1tnesses were recorded under 'Sectlon 161 of the Code of Cnmlnal Procedure, 1973 ( short ‘the Code’) After completmn of the 1nvest1gat10n ~ p charge sheet was flled before the Add1t1onal Ch1ef‘ WJud1c1a1 Maglstrate Sakt1 who 1n turn comm1tted the ~ 7 case to the Court of Sess1ons, Bllaspur from where“ ' Learned Additlonal Sesswns t Judge Sakt1 .Dlstrlct ‘- ’ Bllaspur recelved the case on transfer for trlal ‘In order to prove the gu1lt of the appellant/accused ‘ ~prosecut10n examlned as many as 12 w1tnesses ' ‘Accused was examlned under Sect1on 313 of the Code ' ' Where he demed the c1rcumstances appearmg against .. 0 him, ‘inndceney and» false implication is claim-ed. ' Appellant has taken the specific defence that < , Pramodkumari was a Woman'of easy conduct she was havmg 1111c1t relation w1th so many persons and' ' probably she had gone w1th any person and she had‘ ’ > J not. died Skeleton recovered from the ditch d1d not. belong to Pramodkuman VAfter affordmg an opportunity of hearlng to the partles . [ learned Additional Sessmns Judge, Saktl v. D1str1ct '> 'Bllaspur has conv1cted and sentenced the appellant as ‘ - aforementioned ' Learned counsel for the appellant Shr1 Sachin Singh . ‘,- Rajput and learned Dy G A for the State/respondent V Shri Sandeep Yadav are heard Judgment impugned 1 :and record of Court below perused ' i Learned counsel for the appellant vehemently argued p y 'that conv1ction of .the‘ appellant is based yon Circumstantial evidence. In case of conviction on the ' ’ ’ib'a‘sis Of circumstantial evidence, prosecution; :is’; required to prove the chain of circumstances to exclude " ’ the poss1bility of innocency of accused and culpab1lity' , of other persons and also to prove culpability of accused that only appellant has committed the offence ' ‘ In the present case, prosecution was under obligation I to prove following circumstances that:- .. Pra did. amodkumri has e Dath .of Praodumai w micia. in e mkr as hodl nature. Skleton fecovered fm t dih ws of e ro he tc a Pmodkumari ra‘'. (iv) ppelant has cad dah and Al use her et Pramodkumari died as a result of fatal injury. A f place where dead body was buried foresaid lace was only within te excsv knowlede of appellant. i Appellant was having motive for causing 'he death; L t ud h earned counsel for the appellan further arge tat i d f n the present case5 prosecution has notl‘prove any o t f f he aforesaid circumstances. In absence o prove o chain cimsans io h appllt i of rcutce, convictn of, te ean s t sustanable under the law. no i s 'per the evidence of the prosecution, accused ha A s made extrajudicial confession before Witnesses but th‘e aterial fact of extrajudicial confession has not bee m n mntd in the First Informtio Rept therefe eione an or or, aeged extraudicial confession made to the witneSSes are of use. no earned counsel-for the apellant ”placed relance in th L p i e atter of Chandmal arid Another v. State o m f i () ii () () V vi () (iii) ppellant has made disclosure statement o . A p h luie g (vi) ” r lf j ourt that when the case rests only on circumstanc ’ such evidence must satisfy the follwing tests:— from which 'an of g ught y ; (ii) these circumstances should be of definite tendency unerringl pointi towards guilt of accused; (iii ctac, t uy hould .form a chain so complete tha s t there is no escae from conclusi t 'ithin all human probability-crimecwas c h ’ l ot fully , and f t . (i) ' circumstances inference uilt is so to be drawn, vmust be cogently and ‘firml established a y ng . ommitted .by accused and none else-' whic Hd’ el, conviction of appelants rests, were n inubitab‘l establish ’ circumstances in dy ed, thereore, convictions of appellants se aside “L e ld earned counsel for. the appellant 'furthr pace eliance in-the' matter of Stateof Madhya Prade'sh v. r ' 7 Nisarz in which Supreme Court has held that L” - I eXtrajudicial confession made much before. FIR‘was v odged; non—mention thereof in FIR makes its reliability ‘ 2 l C es, b ) cirumsnes aken cmulativel p on hat W ‘‘ 14. Learned counsel for the appellant alsa placed reliance ‘ -1n the matter of Kansa Behera v State of Onssa3 1n 3' II Wh1ch Supreme Court has held that extrajud1c1al - ' confessmn made after long lapse of tune 1s not safe to rely and blood stained found on the cloths of the ’ ' appellant not tell the blood group of deceased 1s ofno ’. .,' use. On‘ the other hand learned Dy GA for‘ the ‘ 1.5. " ' . trespondent/ State opposed the appeal and subm1ts that ‘1n the present case, prosecut1on has proved the ' ’ ' followmg c1rcumstan¢es thatw ( ( s 111) Appellant has not lodged missing report. 1v) Appellant had not tried to find out where she 1 v , ' ’ 'WaS. (V) Appellant? himself has made extrajudicial v: confession 'to Zwitnesses Which, inspire? l ' 1) ’ Pramodkuman was re51d1ng W1th appellant " 11) Pramodkuman was m1ss1ng last 6 months. ' ‘ ( bonfiden'ce‘and trustwOrthy. .‘ (vi) . Dead body of Pramodkumari has' been c ' ’ r recovered at the instance of appellant from ' - ' . ‘ ditch not visible .to any person shows that he ’ : ‘ was haying knowledge that dead body has '>”- . been buned 1s a place shown by hlm ~ w (vii) Appellant has not offered any explanatlon that how he knew the fact that dead body was ' ‘ bur1ed 1n that pl 3 1987 SIPuLEl 13mm l ace 1-6. ’ 17. v \ 18‘ adduced on behalf of the prosecut1on .In the present case, appellant has not admrtted the v ">death and hom1c1dal death of Pramodkuman In: N 7 ,answermg to quesuon No 1 1n the exammatlon of “ v under Sectlon 313 of the Code, present appellant has 1- answerlng to quesuon Nos 12 & 13 present appellant ‘fu‘st w1fe Sukwaraba1 were res1d1ng W1th hlm at v111age g.» Hanumanta, Pollce Statlon Baradwar In answermg to ‘fquestlon Nos 31 36 & 37 present appellant has ; spec1f1ca11y admltted that Pramodkumarl was h1s “j ' - ‘v VChudIwtfe (aW), she was res1d1ng W1th hlm for last z 5 years and one son was born as a result of the1r wedlock Wh11e answermg the questlon No 85 " p appellant has explamed that Pramodkuman was havmg .- li1111c1t relatlon W1th so many persons and she had gone " :wi-th some person and she has not dled. :If the aforesald c1rcumstances are conmdered together ‘- ’ ,g-then only mference would be pos31b1e that only accused I 4 has comrmtted the aforesald offence t In order to apprec1ate the arguments advanced on. d ‘_ behalf of the partles we have exammed the ev1dence " . has admltted that Pramodkumarl as hrs w1fe and h1s admltted that Pramodkumarl was h1s w1fe In . _ 4. N .. 19/ 3 Admittedly, as per case of’appellant, she is missing but v . he has not lodged any missing report. He hasnot made > any 1nqu1ry, he has not contacted With any person for ' father of Pramodkumarl PW6 Purushottam‘ - ‘ :’ Suryavanshl has lodged the mlssmg report Ex P 2 on’ _ .18/8/2003 Exs P—6, P-7 85 P—12 the disclosure” ' ‘ .- statement recorded on 29/ 12/2003 in which’appe‘llant' ' told the Police about the place where dead body of hiS" x ,Wife Pramodkumari was hldden Exs P 5 8a P 9 1s also ‘ v'rncludlng disclosure statement of stick 85 cycle Exs P- Sub Inspector who has deposed that on the bas1s of: - V dlsclosure statement of same facts dated 31/ 12/2003 « ' '6 & P-12 have been recorded by PWIO K R Kaushaley, ‘. statement glven by the appellant he has recorded the: 4 > statement Ex P 6 86 P—12 20; ‘ PW7 Siyaram Yadav has corroborated the evidence of VPWIO K R Kaushaley and has deposed in his ev1dence v- i that dead body of Pramodkumari 1s hidden in the ditch ‘ ; I near Nala- thereafter, they went to the place and took- r ‘ ‘ » outthe dead’body‘ in form of skeleton. He'has also » '- = . supported the preparation of Panchnama Ex. P—7.7' In“ Para—6 of his evidence, he has supported the EX. P—l2. ~ Defence has cross-examined this witness in detail; in’ V v his ' detail cross—examination ,this witness ”has v making any inquiry relating to Pramodkumari mteralla’ v “ ‘ \ a ' 'categor1ca11y deposed that he has seen the cloths of the deceased notlces were 1ssued statement of the ~ . ‘ appellant was recorded He has also supported the. recovery of stlck and cycle on the bas1s of dlsclosure ’ statement of appellant Exs P 5 & P 9 and selzure' , memo Ex P—10 Defence has cross examlned th1s v ‘vmtness at length but has not been able to llhclt any ' ' thlng 1n h1s cross—exam1nat1on to dlscredlt h1s testlmony relatlng to such d1sclosure statement and _d1scovery of the fact on the bas1s of such d1sclosure \ " x statement. 21. ’ Evidence of ‘PW7 Siyaram Yadav and PWIO KR " 'Kaushaley, Investlgatlng Offlcer 1nsp1res confidence ' > trustworthy and are suff1c1ent for provmg the fact that . ‘ ' present appellant has made d1sclosure statement of the I . r . place where dead body of Pramodkuman was h1dden _ ' and at h1s mstance, place was d1scovered and after ' ' ‘ digglng the place skeleton along w1th articles 1.e. san Z . -‘ blouse pettlcoat bra, bangles and broken p1ece of‘ bangles were recovered Skeleton was examlned by PW9 7 Dr J Slngh who has deposed that they have conducted“ ‘ " the autopsy on the spot after exhummg the dead body' 1e skeleton along w1th cloths and broken p1ece of bangles and bangles. He has further deposed that'on f the bas1s of skeleton and cloths he has, opined that dead‘bodywas of female. Defence has crovss—examihe his'witnes's at‘le‘ngth specially relating to fct tafcliou Ith' , es ' " idi y t i st 36ssib1e which has been admitted by this Witnes‘bu as eposed that on 'the basis of pelvic bojn‘e; e has i eet of a ~ d _v t a hn‘ e basis 6f, tibia ’ femur;_ fibula 85 radius bne. entfication 'relating to sex of the bod‘ was rio . ' Lih d h ,oioned that; skeleton recovered was the like of sklon female. While proving the fact in criminal cse's absolute pfoVe is not possible, prosecution is reuifed o prove te fact beyond all shadow of doubt if in the " light of such standard we examined the eVIdence a ng toved facts. will come out 'fromthe evidence adduc y balf of th poSeutin tat— )? ii :t h ' _ dduced on behalf of the prosecution then followi \ p ed on ”eh e rco h: l (i () V ‘ dk p Pramoumari is a Chudiwife of apellant he was res1d1ng With appellant 1n the Villa of appellant She was missmg for last so many month‘. - Present appellant who was husband of ~ ramojdkumari has not lodged any issin a t-giii)» 'P mg report rating tomissing of Pramodkum-ari: Appellant has not informed relatig to her Whereabouts even after knowing the fact. that father pf Pramodkumari has lodged éh' ‘missing repor. Appellnt ha made disclosure statemen relating to lace where dead bod of q S ge. s el n ? '7 e f t 'a s ts p y 13 Pramodkumari was hidden in Exs. P—.6 &'.P-. ' I 12. " (Vii) ' He has shown the place where dead body of" f ' Pramodkumarl was hldden W (viii) At hls mstance, Pohce Offlcers have dug the“ N » ' kplace where skeleton along Wlth cloths of; _ " I. ‘woman bangles and broken p1ece of bangles -- > c > 5 were recovered 22; 'Although PWI Mehtardas Mahant has adm1tted 1n w ‘ Para—13 of h1s cross exammahon that when appellant . came back to h1s Vlllage thereafter Chuta Ram told hlm ‘ I. V that probably he has k111ed h1s w1fe and has bur1ed her ‘ " ' I» near Nala and some foul smell are comlng near Nala but he has not stated anythlng when the Chuta Ram p. g g: U told h1m Prosecutlon or defence has not examlned T ' ' Chuta Ram Defence has cross—examined PWlv Mehtardas Mahant who has spec1f1cally adm1tted 1n ' Para-14 that dead body was bur1ed and was exhumed ‘ by the P‘oliCe,‘ bangles and cloths of woman were also ’_ found with the dead body.. He has specifically denied - ' the suggestmn 1n Para-16 of hls ev1dence that Vlllagers r vused to bur1ed the dead body on both s1de of Nala and ‘ * ‘ 7 they also used to throw the dead body of ammals near Nala-wh1ch also supported the case of prosecu’mon that " '1t was not a burlal ground Before dlsclosure of fact g m th1s fact was not w1th1n the knowledge of Pohce Off1cers’ V I ' 3 or any other“ person. In» .case of normal death of . Pramodkuman there was no cause for buned her dead : W'body 1n an 1solated place w1thout any mformatmn to " .. other person and there was no cause for mamtammg n secrecy of the death of Pramodkumarl or the place 3 v... :where she has been burled These facts are suff1c1entl. l I Vifor provmg the fact that Pramodkuman w1fe of ‘ appellant was not al1ve, her dead body was hldden near r. 'I"Nala 1n a dltch and same was d1scovered on the bas1s of d1sclosure statement made by the appellant V . ‘In case of normal death or absence of factum of r vhom1c1dal death there was no occas1on for secret V' ‘ V_ d1sposa1 of dead body, whlch shows the death of i :Pramodkuman was hom1c1dal 1n nature On the bas1s " t ~_ of aforesald facts 1t shall be presumed 61ther appellant V' " ‘ V' was hav1ng knowledge that some person hurled the " Iix,,‘.:dead body of Pramodkuman or he hlmself has burled I , 2"”: the dead body of Pramodkuman or somebody has mformed th1s fact to hun In these c1rcumstances ‘p V V V o I’Jappellant was under obhgatlon to explam how he knew ’ ‘ ' the fact that dead body of Pramodkumarl was hldden 1n V " ‘ that place but appellant has not offered any J V I explanatmn mteralla he has offered false explanatlon “that Pramodkuman had gone w1th some person and f a ' . t has not d1ed In these c1rcumstances only 1nference “mum be P0SS1b1e that present appellant had burled 15 thev- dead body of Pramodkumari and death of . - Pramodkumarl was homlcldal 1n nature 24. Prosecuhon has also adduced the ev1dence relatmg to 7 I extrajud1c1al confessmn made by appellant to PW} Mehtardas Mahant’ PW3 Sukwarabal hls flrst Wlfe and, ' - PW4 Budhram SuryaVanShi. PW3 Sukwarabai hisivfirst ‘ .wife- has deposed in her evidence that appellant has . t'o‘ld her that he' has killed Pramodkumarisand‘has. A V buried near Nala thereafter he. went to Delhi and sh‘e " ' also went to Delh1 She has not told the meldent to . . . anybody Defence has cross exammed th1s Wltness but ’ ' she ‘h‘as spec1f1cally that present appellant has made” - . extraJud1c1a1 confessmn to her and she has demed the ' suggestlon that Pramodkuman had gone Wlth another. ' - *' -. person Another w1tness PWI Mehtardas Mahant has I deposed 1n h1s ev1dence that when appellant came back ' :from Delh1 then he made extrajud1c1al confessmn before I ’ hlm Defence has cross examlned th1s w1tness 1n deta11 . " ' but he has spec1f1cally stated that appellant has made ‘ ' extrajudwlal confess1on to h1m. He has denled' the; > ‘ adverse suggestlon g1ven to hlm Another w1tness PW4 t . . ‘ Budhram Suryavanshl has also corroborated the ev1dence of PWI Mehtardas Mahant but 1n h1s cross—' ‘. V v ' Iexammatlon, he has deposed that appellant has not ’ amade any extrajud1c1al confessmn to h1m. Def1n1tely, ‘-1n- \ L; he 'pres‘en‘t case, appellant made extrajud1c1al: r. 1 1 1 : .oonfessmn to hls W1fe thereafter appellant went to = Delh1 h1s W1fe also went to Delh1 and they came after; 'l . Vconslderable t1me thereafter appellant made second " ' .extrajudlmal confesswn to. lPWl Mehtardas Mahant,” KotWar- :While dealing With the ‘ evidence of extrajudiclal .: ’p V 7 confessmn 1n case of State of Madhya Pradesh} (Supra) Supreme (,ourt has held that non mentlonmg ' I l'rof factum of extrajudmlal confess1on made before. lodgmg of FIR 1s most 1mprobable In the present case, ' , Ex P—18 1s substantlally copy of m1ssmg report and ‘ 'sd1sclosure statement made by the appellant recorded-i Haby the Investlgatmg Officer V1rtually Ex P—18 1s FIR ‘ has not been lodged by any person who was havmg * Ii, direct 1nformat1on but has recorded by the Investlgatmg p ‘Offlcer after conductmg prehmmary Inqulry of mlssmg ”person therefore, 1t was not poss1ble to mentlon the factum of extrajud1c1a1 confesswn 1n FIR and 1t would not be fatal to the prosecutlon therefore the case of ‘State of Madhya Pradesh (Supra) 1s dlstmgulshable l- > ff ; on the ground of facts ‘ Wh11e deallng w1th the questlon of extrajudICIal ' iconfessmn made after long lapse of t1me 1n case of V. v . : Kansa Behera (Supra)_Sgpre‘me Court has held: that . ¢ , t l J j