@ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. '& Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appe‘al No. 954 of 03» 20 Ram Bhajan Cherwa & another ‘ ¢ Vs. State of Chhattisgarh JUDGMENT For consideration Sdl- Sunil Kumar Sinha Judge HON’BLE SHRI JUSTICE RAJEEV GUPTA r) .J Qj L7. Post for Judgment :/;/1 1/2008 C g Ebi ,,;...:;, sm- v Sun“ Kumar 5"“5‘ Judge ? HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 954 of 2003 1. Ram Bhajan Cherwa S/o Bhukhal Cherwa, occupation Agriculturist, aged about 37 years 2. Bhukhal Cherwa S/o Mohan Cherwa, aged about 70 years, occupation agriculture Both R/o Village Digma, P.S. Ambikapur Dehat, Distt. Surguja (C.G.) APPELLANTS £ Versus RESPONDENT State of Chhattisgarh (Appeal under Section 374 (2) of TheCode of Criminal Procedure) Appearance: Ms. Pushpa Dwivedi, Counsel for the appellants. Mr. U.N.S. Deo,’Govt. Advocate, for the State. JUDGMENT (l?.11.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. i (1) This appeal is directed against the judgment of conviction and ‘ order of sentence dated 17.5.2003 passed by the FirstvAdditional f Sessions Judge, Surguja (Ambikapur) in Sessions Trial No. 18/2003, ”J, whereby, the appellants have been convicted u/ss. 302/34 & 201/34 i I.P.C.‘ and sentenced to undergo R.l. for life & tine of Rs.1,000/- and R.l. for 7 years & fine of Rs.1 ,000/— with usual default sentences in both i i ‘ 2 @ Criminal Appeal No. 954 of 2003 (2) Appellant No.1— Ram Bhajan Cherwa is the soh of appeHant No.2— Bhukhal Cherwa. Both were residing together in a common house in village Digma, P.S. Ambikapur. The allegations are that on 14.10.2002, they committed murder of wife of appellant No.1 namely Kayaso Bai and buried the dead body in the veranda of their house. This fact was disciosed to another son of Bhukhal namely Sohan Ram (PW-1), who was residing ‘in a different village Sarganwa on 17.10.2002 by his‘nephew (Bhanja)— Maniram (PW-2), who claimed thatfappellant Bhukhal has made an extra judicial confession to him on 17.10.2002 that the deceased was murdered by Ram Bhajan and her A dead body was buried in the veranda of their house by both of them. f s m( (3) Receiving this information, a First Information Report (Ex.—P/1) was lodge by Sohan Ram (PW-1) on 17.10.2002. A merg intimation (Ex.-P/3) was also lodged on the same day. On such information, a permission was sought to exhume the dead bodygAt the instance of appellant No.2 Bhukhal, the Executive Magistrate got the dead body exhumed on 18.10.2002 from the veranda of the house of the appellants and a Panchnama to this effect was prepared under Ex.- Pl8. After giving notice (Ex.-P/6) to the Panchas, inquest on the body ‘ of the deceased was prepared under Ex.-P/7. On the requisition of the Investigating Officer, a team of two Doctors namely- Dr. A.K. Jain (PW- 6) and Dr.S.K. Sinha conducted the autopsy on/the b'edy of the deceased and prepared their report Ex.-P/12. They opined that the t cause of death was asphyxia due to throttling and neck compression as there were fractures of thyroid cartilage and mandible bone and the ‘ 3 @ Criminal Appeal No. 954 of 2003 death has occurred within a period of 7 days from the date of postmortem examination. (4) In further investigation, a site plan was prepared under Ex.—P/11, according to which,rthe dead body was recovered from a pit of size of 6 ft. x 3 ft. x 3 ft. situated in the veranda of the house of the appellants. (5) After completion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Ambikapur, who in turn committed the matter.to the Court of Sessions Judge, Surguja, Ambikapur, from where, it was received f'on transfer by the First Additional Sessions Judge, Surguja (Ambikapur), who conducted the trial and convicted and sentenced the accused/appellants as. aforementioned. (6) On trial, Sohan Ram (PW—1), Maniram (PW—2), Sobhnath Manikpuri (PW-3) and Ramruch (PW—4) all turned hostile and they did not support the case of prosecution. However, the learned Sessions Judge, convicted the appellants mainly on the basis of recovery of the dead body in buried condition from the veranda of the house of the appellants at the instance of appellant No.2. (7) Ms. Pushpa Dwivedi, learned counsel for the appellants, argued that there is no positive evidence in this case to connect the appellants from crime in question. She also argued that the circumstahces held to be proved against the appellants are not sufficient to hold them guilty of the offences punishable u/ss 302/34 & 201/34 l.P.C. A A @ Criminal Appeal No. 954 of 2003 (8) On the other hand, Mr. U.N.S. Deo, learned Govt. Advocate for the State, opposed these arguments and supported the judgment passed by the Sessions .Court. (9) We have heard the learned counsel for the parties at Iength and have also perused the records of the sessions case. (i0) Admittedly, there was no direct evidence in this case and the r case of the prosecution was based on circumstantial evidence. $t‘ (11) The follewing were the circumstances, on which, the involvement of the appellants in crime in question was held to be proved by the Sessions Court: ‘ fi fa (i) The deceased died a homicidal death having injuries on her body, particularly on neck; (ii) The dead body of the deceased was found buried in the veranda of the house of the appellants and the same was discovered at the instance of appellant No.2, Bhukhal Cherwa; (iii) The appellants did not give any explanation regarding recovery of the dead body from the veranda of their house & (iv) Though the deceased was missing since 14.10.2002 but the appellants did not take any step to make a search of her. l(12) On perusal of the records and the evidence of the prosecution ‘witnesses, we find that all the above circumstances were proved by the iprosecution. The contents of the postmortem reportv/Ex.-P/12 as also lthe evidence of Dr. A.K. Jain (PW—6) would show that there were lexternal injuries on the body of the deceased and in internal examination, the thyroid cartilage & mandible bone were also fractured E) ‘\\\\‘j and the death was homicidal in nature. \_ r\\‘\\_ 5 @ Criminal Appeal No. 954 of 2003 (13) So far as recovery of the dead body from the veranda of the ihouse of the appellants is concerned, thatxhas also been established. B. Ekka (PW-7) is the Executive Magistrate, who deposed that after receiving the order to exhume the dead body of the deceased, on 18.10.2002, he had gone to village Digma and the dead body of the §deceased was exhumed from the veranda of the house of the appellants at the instance ofvappellant No.2 Bhukhal Cherwa and a aagchnama, Ex.—P/8, was prepared. Ramdeo Yadav (PW-5) is the Patwari‘ of concerned village. He deposedJhat he has prepared the map of the house of the appellants. According to the map (Ex.-P/11), the dead body‘was recovered from the pit measuring 6 ft. x 3 ft. x 3 ftr, which was in the veranda of the house. ltwapdear from evidence that this veranda was covered from all the sides and the same'was a part of residential premises of the appellants in which they were residing on the date of incident. There were many independent witnesses at the time of recovery of the’dead body and the fact of such recovery from the above place is proved beyond reasonabie doubts. In our considered view, the Sessions Court has rightly held this circumstance proved against the appellants. i . \i ‘ (14) Admittedly, the appellants were residing with the deceased in the said house and they had to give explanation as to how the dead body of the deceased was buried in the veranda of their house. Certainly, digging of a pit of 6 ft. x 3 ft. x 3 ft. would take reasonable time and the same cannot be done without notice to-the inmates of the house, who were continuously there and in the facts and circumstances of the case, the theory of involvement of any third person, as argued by J [ 6 @ ‘” Cnmmal Appeal No 954 of 2003 *3, Learned counsel for the appellant, cannot be accepted.‘ln absence of any expianation, the involvement of a third person in commission of crime in question stands ruled out. (15) The other circumstance which also goes against the appellants is that they did not take any step to make a search of the deceased when she was missing since 14.10.2002. Even on 17.10.2002 or 18.10.2002, they did not come with any ex‘planation and ultimately, the dead body ofutlle deceased was recovered, when appellant No.2 disclosed about the place in‘the veranda of their house where the dead body was buried. .. a (16) Therefore, on the above evidence proved on record, the involvement of the appellants in crime in question is fully established in this case. (17) Now we shall consider that what offences were committed by the appellants. Initially the case of prosecution was that appellant No.1 committed murder of the deceased and then both the appellants buried the dead body of the deceased in the veranda of their house. That means the prosecution did not come with a case that appellant Nc.2 Bhukhal Cherwa was also involved in committing murder of the ~ deceased along with appellant No.1 Ram Bhajan. We also do not find any evidence of sharing common intention by appellant. No.2 with appellant No.1 for commission of murder of the deceased. Therefore, the conviction of appellant No.2 with the aid of Section 34 l.P.C. is based on no evidence on record. However his conviction ulss 201/34 - l P C. is well founded as he has participated in disappearance of the \\ / /‘<?"E§Q~\ $g x $ “ . Criminal Appeal No. 954 of 2003 evidence of the offence of murder and also tried to screen the offender. Even the dead body was recovered at the instance of appellant No.2. (18) In the result, the appeal is partly allowed. The conviction and sentences of the appellants u/ss 302/34 l.P.C. are set aside. Instead, appellant No. 1 is convicted u/s 302 I.P.C. and sentenced to undergo rigorous imprisonment for life. Appellant No.2 is acquitted of the charges framed u/s 302/34 l.P.‘C. However, conviction and sentences awarded to both the appellants u/ss 201/34 l.P.C. are maintained. (19) lt is stated that the appellants are in jail since 19.10.2002 & 4 20.10.2002. They shall be entitledto set-off the period already undergone by them. The sentences awarded to appellant No.1 shall run concurrently. _/x Sdl- Kd :2: Sd/- , Sunil Kumar Sinha Chief Justice Judge