HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No. 679/2007 JUDGEMENT FOR CONSIDERATION \ Sd/- T.P. SHARMA Judge Hon’ble Mr. R.L. JI-IANWAR J. 1 ‘sd/. R.L._Jhanwar Judge E I ‘1! _ Post for Judgnent on: K / 12/ 20 10 s d]. T,P. SHARMA Judge / ‘ APPELLANT Gopal Bhuiya alias Munna. (In Jail) VERSUS RESPONDENT The State of Chhattisgarh, HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH HON’BLE MR. 13:. SHARMA & HON’BLE MR. R.L. JHANWAR, JJ. CORAM: Criminalégpeal No. 679/2007 CRIMINAL APPEAL UNDER SECTION 374(21 OF THE CODE OF CRIMINAL PROCEDURE, 1973. Present:— Shri Abhay 'I‘iwari, Advocate for the appellant. Shri Sandeep Yadav, Dy. G.A. for the State] respondent. JUDGEMENT (Passed on é 112/2010) The follow‘gg judgment of the Court was passed bv T.P. shat-ma, J:- 1. Challenge in this appeal is to the judgnent of conviction and order of sentence dated 23/6/2007 passed by Special Sessions Judge Constituted Under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989/Additional Sessions Judge, Sessions Division Sarguja at Ambikapur (C.G.) in Sessions Trial No. 68/ 2006 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of Mankunwar and concealing the evidence of criminal case, convicted the appellant under Sections 302 & 20 1 ”APPELLANT Gopal, Bhuiya alias Munna, son of (In Jail) Ramlal aged 36 years, Iesident of _Vi]lage Chandanpur, Police Station . Ramanujganj, Police District Balrampur Chhattisgarh. VERSUS RESPONDENT The State of Chhattisgarh, Through P.S. Ramanujganj, District Balrampur. [Sarguja] of the Indian Penal Code and sentenced imprisonment for life with mie of Rs. IOO/- & rigorous imprisonment for 3 years with fme of Rs. 100/ —. Conviction is impugned on the ground that without any iota of evidence sumcient for conviction of the appellant, Court below has convicted and sentenced the appellant aforementioned and thereby committed an illegality. As per case of the prosecution, Mankunwar (since deceased) was married to PWI Sadavriksha and was residing with PWI Sadavriksha at village Devgaiasnadah,‘ Police Station Ramanujganj. On 10/ 1/2006 appellant Gopal and other co-accused Lalji forcefully took Mankunwar from the house of PWI Sadavriksha on the pretext that they will keep Mankunwar as their wife. Mankunwar was seen alive in the house of appellant Gopal on 10/ ll 2006 thereafter, she was not seen alive. On 18/ 1/2006 her dead body was found in the well of Sibal in floating condition, body was decomposed. Appellant Gopal and co-accused Lalji were not present in their house. PWI Sadavriksha went to the Police Station and lodged Marg intimation Vide Ex. P—l. Investigating Odicer left for scene of occurrence, dead body was taken out n‘om the well. After summoning the witnesses Vide Ex. P—8-, inquest over the dead body of deceased Mankunwar was prepared Vide Ex. Pa9. Water from the well was seized in bottle Vide Ex. P-3. Dead body Was sent for autopsy to Govt Hospital, Ramanujganj where team of doctors including PW11 Dr. S.K. Sinha conducted autopsy Vide Ex. P~ 14 and found that:— (i) Petticoat which Mankunwar was wearing was stained with blood. s (ii) Tongue portended & beaten by teeth. (iii) Blusters were found over the body. (iv) Lacerated wound of 2 x 1 c.m. was found below the right eye. (V) Injury was also found below both the ankles. (vi) Blood was found in vagina. (Vii) Lacerated wound was also found upon Libia Majora, Libia Minora and Clitoris. (viii) Swelling over head temporal region and blood was found over temporal region. Blood was found in laxynges & trachea. 3rd, 4th and 5th trachea ring was found fractured. Slide of vaginal smear was taken, injury were ante-mortem in nature. Trachea bone was also preserved. Cause of death was asphyxia as a result of manual throttling. Death was homicidal in nature. 4. Finally First Information Report was lodged vide Ex. P— 16. Spot map was prepared vide Ex. P- 17. Patwari also prepared spot map vide Ex. P—2. Sealed cloths, tibia bone and slide were seized vide Ex. P— 12. Accused was absconded, finally appellant Gopal was taken into custody on 1/3/2006, he made discloser statement of silver chain vide Ex. P-13 and same was recovered at the instance of appellant Gopal vide Ex. P—lO. One shawl of appellant was floating in the well which was seized on 5/2/2006 vide Ex. P44. Caste certificate of PWI Sadavriksha vide Ex. P—15 was seized vide Ex. P—5. Shawl was placed for identification and same was identihed by Sadavriksha and Ramcharan vide EX. P—6. Silver chain was also identified by Sadavriksha vide Ex. P—7. Sealed articles were sent for chemical examination vide Ex. P— 18. Appellant Gopal was arrested on 25/2/2006 vide Ex. P—19. (lo—accused Lalji was also aITested on same day vide Ex. P—20. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in ' short ‘the Codei. After completion of the investigation charge sheet was filed before the Judicial Mag'strate First Class, Ramanuj‘ganj who in turn committed the case to the Court of Special Sessions Judge Constituted Under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989/Additional Sessions Judge, Sessions Division Sarguja at Ambikapur (C.G.). In order to prove the guilt of‘the appellant Gopal and co-accused Lalji prosecution examined as many as 18 Witnesses. Accused/appellant was examined under Section 313 of the Code Where he denied the circumstances appearing against him, innocency and false implication is claimed. After ajfording an opportunity of hearing to the parties learned Special Sessions Judge Constituted Under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989/Additional Sessions Judge, Sessions Division Sarguja at Ambikapur (C.G.) has convicted and sentenced the appellant as aforementioned. Shri Abhay 'I‘iwari, learned counsel for the appellant and Shri Sandeep Yadav, Dy. G.A. for the State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that conviction of the appellant is based on circumstantial evidence. As per evidence of PWI Sadavriksha and other witnesses, appellant dragging the wife of Sadavriksha took his house for marry with her, after 9 days dead body of Mankunwar was found in the well. As per evidenCe of prosecution, appellant was not present in the village and was arrested on 25/2/2006 after lapse of about 4O days. Injury found over private part of the deceased, if the appellant would had taken deceased Mankunwar with him for marriage with Mankunwar or for-illicit intercourse then at least appellant would have not caused any injury over private part of the deceased that too within 9 days. Appellant would have also not caused her death which he had taken for marriage or even illicit intercourse that too with risk of implication in commission of heinous oh‘ence. These circumstances show that PWI Sadavriksha, husband of Mankunwar was only person who has committed murder of Mankunwar with a view to implicate falsely appellant on account of the fact that appellant has taken his wife or his wife has left him and had gone to the house of appellant. The injury found over the private part of the deceased also reveal that deserted person i.e. PWI Sadavriksha has caused such injury under frustration. 10. The circumstantial evidence adduced on behalf of the prosecution is not sufficient for drawing definite conclusion against the appellant therefore, appellant is entitled for acquittal. Although appellant absconded after the incident but he has not absconded after commission of the incident but he has absconded under fear when he came to know that somebody has committed the murder of Mankunwar then with a View to save him from false implication he left the village learned Deputy Government, Advocate for the respondent/State opposed the appeal On the other hand, and submits that evidence adduced on behalf of the prosecution is suiiicient for drawing deflnite conclusion that only appellant has committed murder of Mankunwar and has concealed the evidence of criminal case. Appellant was having motive for such commission of offence and Court below has rightly convicted and sentenced the appellant as aforementioned. In order to appreciate the‘ argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of fatal injury found over the neck of deceased Mankunwar has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of W11 Dr. S.K. Sinha and autopsy report Ex. P- 14. Death was homicidal in nature. As regard the complicity of the appellant in crime in question, conviction of the appellant is substantially based on following circumstances:— (i Appellant has forcefully taken Mankunwar (since deceased) n'om the house of Sadavriksha to his house. (ii) Mankunwar was found in the house of appellant last time alive along with appellant. (iii) Appellant absconded from his house after commission of offence. (iv) Appellant has not offered any explanation relating to death and injury of the deceased Mankunwar. (v) Shawl of appellant was found in the well where dead body of deceased was also found. ) (vi) Silver chain which deceased used to wear was recovered at the instance of appellant from his pOSseSSIOIl. 15. As per the settled law in order to convict an accused based on the circumstantial evidence, the Supreme Court in the case of Dhananjoy Chatterjee Vs. State or W.B.‘ has held that :— 16. In case of conviction based on circumstantial evidence, as held by the Supreme Court in case of C. Changa Reddy v. State of A.P.2, the prosecution is required to adduce evidence and such evidence must satisfying the following tests:— I (1994) 2 sec 22o QAIR 1996 SC 3390 : (1996) 10 SCC 193 “In a case based on circumstantial evidence, the circumstances mm which The conclusion of guilt is to be dmwn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those cimumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation f the court can form the basis of conviction and the mote sen'ous the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.” o i. the circumstances from which an infemnce of guilt is sought to be drawn, must be cogently and 1irmly established; Those circumstances should of a demu'te tendency unerringly pointing towaxds the guilt of the accused; 111 the circumstances taken cumulatively should form a‘ chain so complete that H there is no escape from the conclusion that Within all human probability the ctime was committed by the accused and none else; and iv. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. As per evidence of PWI Sadavriksha, 9 days before the recovery of dead body appellant came to his house and forcefully took his wife Mankunwar to his house, he convened meeting at Village Chandanpur in which appellant was interrogated and he has admitted that he has taken the wife of this witness for marriage with her then he went to the Police Station and lodged First Information Report Wife of this witness was residing in the house of appellant, after,9, days of such incident dead body of his wife Mankunwar was found in the well. He was told by Pooran then he went near well along with 10-20 persons where they saw the dead body of Mankunwar inside the well then he went to the Police Station and lodged Marg intimation Ex. P-l. He has further deposed that on 5/2/2006 Shawl of appellant was recovered from same well Ex. P—4. In Para~1 1 of his cross examination he has admitted that his wife used to go to the house of Gopal even after his objection. He has denied the suggestion that his Wife was not sexually satisfied with him. He has also denied the suggestion in Para—12 that he himself has left his wife in front of the house of appellant. He has further stated in Para-4 of his cross-examination that he has seen his wife in the house of appellant on the date when appellant took her from the house of this witness to his house. 18. PW2 Jamua, PW3 Ramcharan, PW4 Sitaram, PW5 Karmu 8s PW6 Ramvraksha have substantially deposed that dead body of Mankunwar found in the well. PWQ Jamuna has also deposed that one shawl was recovered from the well which he identified Ex. P—6, although he was not witness of identification but before him shawl was identined Ex. P—6. He has also deposed that he has identified the locket Ex. P—7. As per Ex. P—7, he has not identified the locket or silver chain but he was witness in identification Paied. As regard the discloser statement Ex. P—13 is concerned, witnesses of Ex. P- 13 PW9 Ramchandar Singh has not supported the discloser statement made by appellant. PW16 Larang Ram, Town Inspector has deposed in Para—2 of his evidence that on 1/3/2006 appellant Gopal has made disclOser statement vide EX. P— 13, he has recovered silver chain at the instance of appellant Gopal Ex. P— 10 on 1/3/2006. Silver chain was placed for identification Ex. P-7 and same was identified by PWI Sadavriksha. As per evidence of Ex. P-7, prosecution has examined Sadavriksha as PWI who has deposed that he has identified silver locket Ex. P-7 on the basis that his wife Mankunwar used to wear the same. He has stated in Para—9 of his evidence that other articles were not mixed at the time of identification. He has speciflcally deposed that he has identified the articles in the presence of Police. 20. In the present case, only evidence of PWI Sadavriksha is a substantive evidence in support of case of prosecution who is husband of deceased Mankunwar whom accused/appellant has taken forcefully to his house for marriage with her and within 9 days dead body of Mankunwar was found in well in decomposed condition. As per autopsy report Ex. P— 14 conducted on 19/ 1/2006, time of death of deceased was 72—80 hours, such autopsy means the death of deceased Mankunwar was 3 days prior to conduction of autopsy i.e. about 15/ 1/2006. As per evidence of PWI Sadavriksha, appellant has taken Mankunwar {since deceased) h‘om the house of this witness to his house, Panchayat was also convened. 21. As per suggestion given on behalf of the defence to this witness, deceased was sexually unsatisfied with this Witness, age of this witness was 55 years and age of deceased was 35 years. As per suggestion given by defence to this Witness, earlier appellant used to come to the house of this witness and used to drink with him, deceased Mankunwar also provided meal to him and appellant. Defence has also suggested that appellant was having illicit relation with deceased Mankunwar since last one year. This witness has also admitted that even objected by this witness, his wife Mankunwar (since deceased) used to visit the house of appellant. Defence has also suggested this witness in Para— 12 of his cross-examination that he has thrown out his wife and appellant has not forcefully taken his wife to his house but this witness himself has left his wife in front of appellant’s house. ENidence of this Witness and suggestion given by this witness by defence is ,suhicient for drawing definite inference that appellant was having sexual illicit relation with Wife of this witness, before h'er death deceased Mankunwar was residing with appellant in the house of appellant as a wife thereafter, she was found dead and death was homicidal in nature. At that time appellant was not present in his house and he was arrested on 25/2/2006 after 4O days of such incident, the conduct of appellant was not normal. There was no occasion for leaving his house and if Mankunwar was residing with him died as a result of felling down in the well or otherwise in abnormal condition then it was the duty of appellant to inform the Police or to take appropriate step but he has not taken any step even after his wrest, he has not offered any explanation that how his wife died, who caused injury to her, when he came to know why he has left his house. If these circumstances considered together specially in the light of absence of any explanation on behalf of the appellant then only inference would be possible that only appellant has committed the oh‘ence and except appellant no other p persons have committed the aforesaid offence and it completely exclude the possibility of innocence of appellant. As held in case of Dhananjoy Chatterjee as C. Changa Raddy (Supra), the circumstances in the present case satisfies the aforesaid tests the light of Dhananjoy Chatterjee 65 C. Changa Reddy (Supra). After appreciating the evidence available on record learned Special Sessions Judge Constituted Under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989/Additional Sessions Judge, Sessions Division Sarguja at Ambikapur (C.G.) has rightly convicted and sentenced the appellant as aforementioned. Conviction of the appellant is based on circumstantial evidence sumcient for drawing definite conclusion of guilt of appellant excluding possibility of offence of third person or innocence of the appellant. For the foregoing reasons, we do not find any substance in the criminal appeal. Consequently, criminal appeal is devoid of merits, same is liable to be dismissed and is @ i hereby dismissed. , ,LV ‘ ‘ Sdl- Sd/- R.L. Jhanwar T.P. SHARMA i Judge 6/ 12/ 2o 10 1 Judg'ej '7"‘l g/ 12/2010