HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal=Appeal No.453 of 2003 APPELLANT: (In Jail) Prafull Kumar @ Pappu Versus RSPONDENT: E State o Chhattisgarh f JUDGMENT 'FOR CONSIDERATION /WP , J Sdl- Dl-uRENDRA MISHRA Judge Sd/— KN. CHANHRAKAR. a Judge’// ' HON’BLE SHRI R.N. CHANDRAKAR, J jayL-bL " ' POST FOR JUDGMENT ON zo H‘ JULYj2010 Vl‘i‘ Sdl- Dhirendra Mishra Judge / " L /x X HIGH COURT OF CHHATTISGARH AT BILASPUR r APPELLANT: (In Jail) afl Kuar @ Pppu, S/o orelal Vaishnva, ge aout 28 years, esidnt of Lori, P.S. Lormi, District Bilaspur (CG State of Chhaisgarh, Throug olice Lormi ~ Sr S. Dadsena, cou for the appellant. Shri U.N.S. Deo, Govt. Avate doc for the State/resndent. po ’ ’ JUDGMENT Deved uly, 2010 The following judgment o the ourt wa devee by hdra Mishra, J. . Ts riinal ppl is irected aainst the judgment of conction an order of sentence date 4th February, 2003 pased in . 93/2001 whereby larned Additional Sessions dge, C, Mungeli, has onvicted h appellant under Sections 02 on wo counts for comitting rder his ife Ahilasha 85 6 mnths’ ld son Pamod Kumar, 436 and 21 of the IPC and senenced him to de n fo h to undergo R.I. for 10 years and to undergo R.I. for 7 years and to pay fine 3f Rs.2,000/—, Rs.2,000/-, Rs.1,000/- 85 Rs.1,000/— respectively. In default of payment of flne to further undergo R.I. for l year, R.I. for 1 year, R.l. for 6 months and R.I. for 6 months respectively. The original sentences have been directed to run concurrently. . Case of the prosecution, in brief, is that the appellant and the deceased belonged to different caste. They contracted a love marriage before a temple at Lormi. Since the family members of the appellant were not prepared to accept the marriage, he left his parents and / / 1 hi cm aea d g vi d .d s S.T No.1 e Ju FT c te 3 t m mu of w b o o r 0 t unrgo imprisoment r life under Section 302 on eac count, / Wm CiminahAppeal No.453 of 2003 Prul m a G a ad b Re m ) Versus RESPONDENT: tt h P Present: hi K. nsel Division Bench: Honble Shri Dhirendra Mishra 85 Honble Shri R.N. Chandrakar, JJ. (lire on 25 J ) f C s lird Diren started residing with the‘deceased in her mother Dropati Bai’ s house at Lorrni. He left her for brief period, however, later on they started residing as husband and wife and child Pramod was born throug their relationship. The appellant was not engaged in any gainful employment and used to demand money from the wife and mother- in—law. He was also addicted to liquor. He used to abuse and beat his wife on her refusal to give him money and he also abused Dropati Bai. On report of Abhilajsha, a charge under Section 493 of the IPC was made against the appellant by the police. The family members of the appellant were pressurizing Abhilasha for withdrawing criminal prosecution and on account of this, the appellant and his family members did not have cordial relations with the deceased. However, he resided with his wife and son in Lormi in the house of Dropati Bai. On 21-2—2001, the appellant, his wife Abhilasha and son Pramod were alone in the house as her mother and brother had gone to ‘Mela’. He committed murder of his wife by pressing her neck and also murdered his son by smothering. Thereafter, he set the house of ‘Dropati on tire. The fire was extinguished by‘the neighbourers and other villagers, who found the dead body of both the persons in a burnt condition lying on the cot. . Report of the incident was lodged by Mangalram (PW-1) on the date of the incident itself at about 19.00 hours on the basis of merg intimation of Ex.—P/1 and P/2 in relation to unnatural death of Abhilasha and her son Chotu. On the basis 0f merg enquiry and after receiving postmortem reports of both the deceased persons, crime was registered on 24—2—2001. The trial Court, on the basis of evidence of Dr. G.S. Dau (PW—1 1), who conducted postmortem 1 over the dead bodies of Abhilasha and Pramod with fellow doctors Smt. Pramila Dau 85 Dr. Chavsingh Patle, who proved their postmortem reports of Ex.—P/ 12-A 85 Ex.-P/ 13—A and opined that cause of death of Pramod @ Chotu as asphyxia due to smothering 85 homicidal in nature and cause of death of deceased Abhilasha as a result of asphyxia on account of pressing of ck and the same was homicidal in nature, held that their death wa homicidal in nature. h . ne s . No arguments were advanced by learned counsel for the appellant ‘with respect to the above finding of the trial Court. . From perusal of the postmortem reports and the evidence of Dr. G.S. Dau, it is seen that the doctor did not find any blisters and redness over the dead bodies. On internal examination, it has been observed that carbon particles (soot) were absent in trachea, oesophagus (av—0" W) and both lungs. Itiwas further opined that burn injuries were postmortem in nature. After going through the evidence of Dr. G.S. Dau and the postmortem reports, we are of the opfinion that finding of the trial Court that the deceased persons died ghomicidal death appears to be based on evidence available on record. Learned 'counsel for the appellant vehemently argued that the trial Court has convicted the appellant on the basis of circumstantial eVidence and there is no eyewitness to the incident. The circumstances relied upon by the trial Gourt‘ have not been established by cogent and reliable evidence and chain o circumstances allegedly: proved during trial does not conclusively establish guilt of the appellant. From perusal of the evidence of complainant Mangal, who resides in the adjacent house and who doused the fire along with other villagers and found the deceased persons in a burnt condition inside the room, it would be evident that the room where the deceased persons were lying was bolted from inside and, therefore, the prosecution case that the appellant, afte committing murder of :his wife and son by strangulating and smothering, set their bodies on fire after pouring. kerosene, stands falsified. I Reliance is placed in the matters of Arun Bhakta @ Thulu Vs. State of West Bengall and Sohel Mehaboob Shaikh Vs. State of MaharashtraZ. l . 0n the other hand, learned counsel for the State has supported th impugned judgment. 1 AIR 2009 SUPREME COURT 1228 2 AIR 2009 SUPREME COURT 2702 . . f r e ; 10.We have heard learned éounsel for the parties. We have perused the ‘ record as also the impughed judgment. 11.The trial Court, While cohsidering issue Nos.1 and 2 — Whether death of‘Abhilasha and her 6 months’ 01d son Pramod Kumar @ Chotu is homicidal in nature and Whether the appellant intentionally committed murder of Abhilasha and her son Chotu @ Pramod Kumar, relied upon the following circumstances:— o The appellant was: residing with the deceased and her son in the house of Dropati Bai before the incident. The accused and the deceased party had inimical relations before the incident and as such, he had motive for committing the crime, and o The accused was last seen in the company of ‘the deceased in the house of Dropati Bai. 1 2. First circumstancez- Mangalram (PW-1) has deposed that the appellant married Abhilasha one year before her death in a temple. He started residing in the house of his sister Dropati with Abhilasha, as his family members ousted him from home, at that time Abhilasha was pregnant. For a brief period, when she was pregnant, the appellant had left the hpuse of Dropati, however, after the birth of child, when the child Was a month’s old, the appellant started residing in the house ofEDropati Bai. He has denied the suggestion from the defence that the appellant never resided in the house of Dropati with Abhilasha; He has deposed that the deceased had cordial relations with the appellant, He occasionally beat her whereupon he used to advise him not to beat his wife. 13.PW-2 Devki Bai, who is also neighbour of Dropati, has deposed that the a‘ppellant resided in, front of her house. She has also deposed that there was fire in front of their house and she also heard that on account of that fire, a girl died. After declaring her hostile, she has been confronted with her diary statement of Ex.—P/7, however, she has denied having made any statement as mentioned in EX.-PV/ 7. 14.PW—3 Dilip Singh, husband of PW-2, identified the appellant as Pappu. He has also deposed that the appellant resides in front of the house of one Vaishnav whereas Dropati Bai resides with her daughter ' ‘9 K i l Asha on the back side of; his house. The incident of flre took place in the house where Dropéti resides. He has denied any knowledge about the marriage of daughter of Dropati Bai and he has stated that hewnever saw Pappu residing in the house of Dropati Bai. He has also denied his diary statement of EX.-P/ 10. 15‘PW-4 Kishore Kumar has deposed that Abhilasha resided with Dropati in her house anti the appellant also resided in the house o Dropati Bai. In para-6, he has deposed that the appellant had eloped with Abhilasha and they? resided together in the other place for some time and thereafter thei‘appellant started residing in the house of Dropati. After the birth of the child, the appellant returned to the house of Dropati. 16.PW—5 Dropati Bai is the mother of Abhilasha and the incident occurred inher house. $he has also deposed that her daughter had married Prafull. After marrying him on 10-9—99 in a temple of Lormi, he eloped with her daughter Abhilasha and went to Bilaspur and returned from there after 20 days and they started residing in her house. The family members of the appellant came to her house and threatened and made enquiries about Prafull at the time when Prafull had eloped with Abhilasha and gone to Bilaspur. The accused was not engaged in any work and he used to quarrel after consuming liquor. He also used to lbeat Abhilasha. He demanded money from her and her daughter. He also pressed her neck in her presence whereupon she had reprimanded him and asked him to live properly or leave the place. Abhilasha was not inclined to go with himas he used to beat her after cdnsuming liquor. For a brief period, he had fled away leaving Abhilasha whereupon, her daughter Abhilasha had lodged the report with the police. She had also lodged a complaint against family members of the appellant, who had come to her house and threatened her. She has. further stated that offence under Section 493 of the IPC was registered by the police against the appellant. Her daughter gave birth 'to a child on 18-5—2000 and after the birth of the child, when he was one and quarter month old, the appellant returned to their home and apologized for his mistake an thereafter he started residing in her house. His behaviour was proper \ \ K a f d \ mmA . . for a month or two, however, he did not do any Work and When her daughter asked him to Work, he used to beat her. This witness has been cross-examined at length by the defence, hgwever, she has categdrically denied the suggestion of the defence that the appellant never€ resided in her house, though in para—15 of her deposition, she has admitted the suggestion of the defence that since Abhilasha was not married, offence under Section 493 of th IPC was registered. 17.Thus, from the evidence of above witnesses, it is established that the ppellant and deceased ‘fAbhilasha were in love with each other, he eloped with her and thereafter returned and started residing with bhilasha in the house of Dropati Bai, as his parents did not approve of his relationship with deceased Abhilasha, who belonged to different caste. After some time of birth ofchild, the appellant returned to the house of Dropati Bai and resided there with Abhilasha and the child. The relationship between the family members of the appellant on the one hand and Dropati and her daughter on the other, was not cordial on account of relationship of the appellant with Abhilasha and the appellant also used to treat the deceased with cruelty while residing n the house of Dropati3Bai. The finding of the trial Court that the appellant was residing in the house of Dropati Bai and that he had a motive to commit the crime since the relations of the appellant and the deceased were not :cordial is based on evidence available on record. l8.Second circumstance—I Dropati Bai has stated that her son had 'gone to Pali a day before 20th February, 2001 for opening a ‘Chat’ shop on the eve of ‘Maha‘ Shivratri Mela’, at that time Abhilasha, her son?ramod Kumar, accused Prafull and herself were present and no— one was present in her house. On 215‘ February, 2001, Prafull demanded money, on which she told him that he should go to Pali and take money from her son Sanjay, as she does not have money, however, he refused to go Pali on the excuse that he is not feeling good and he is suffering from stomachache and slept in the house. In the afternoon around31 to 1.30 he went out and again came back and asked her to take food for Sanjay whereupon she proceeded for Pali around 2.30 pm and started for Pali by a bus at 3 pm. When sh f @ e a A i e ~334. returned Lormi at 7 pm: in the night, she was informed by various persons on the way that a house in Kankaleen Mohalla Where she resides has caught flre and thereafter she was informed by one Pappu that her house has caught tire. She rushed to her house and saw that many persons §had gathered near her house including the police personnel and they were trying to douse the flre. She has admitted in her cross—eaamination that Prafull’s ancestral house is situated near her house-j. However, she has denied suggestion that the appellant never resiided in her house. Omissions in her diary statement of EX.—D/3 are of trivial nature and the fact that she left for Pali leaving the appellant, her daughter and Pramod Kumar in her house is established. She has stuck to her examination—in-Chief that she left for Pali at about 2.30 pm leaving the appellant, Abhilasha and her son Pramod and when she returned from Pali at 7 pm, she did not find Prafull in the house. 19.PW—4 Kishore Kumar, don of complainant Mangalram, is also the resident of Lormi. He has deposed that on the. eve of ‘Maha Shivratri’ he had opened shop at ‘Shivghat’. He returned home from fair (Mela) around 4.30 pm to leave his small child, at that time, he saw appellant Prafull coming; out of Dropati Bai’s house. He was closing the door of her house, thereafter he again returned'to fair (Mela) from other lane. When he returned from fair (Mela) at 7-8 in the night, he saw that the house of Dropati Bai was engulfed in flames and many persons were dousing thefire by pouring water. His father told that someone is sleeping inside on a cot. In cross-examination, he stated that his house and the house of Dropati Bai are separated by a boundary wall. Dropati :Bai is the sister of his father. In para-11 of s his cross-examination he has deposed that more than 100 person i . ‘ I were engaged in dousing the fire. The persons were present in the courtyard as well as on the roof. He has denied suggestion that the appellant was not residing in the house of Dropati and Abhilasha was not the wife of Prafull and Pramod was not his son. 20.Mangalram (PW—1) has deposed that he tried to break the door which is situated on the roajd wide, however, he could not break it, thereafter he asked Prak‘ash that he is breaking the outer door and he should go inside and see whether tin door is opened or not. In \ l cross—examination, he has stated that he was trying to break 0pcn the room which was bufning‘ The door is situated in the west side opening towards lane whereas, the door which opens towards courtyard is tin door. He had not entered by tin door. Tin door was closed from inside. Ashok Shivhare opened tin door and went towards Verandah. He did not g0 towards tin door as excessive smock was emanating from the door towards lane. 21.From close scrutiny of the evidence of this witness and also from spot map of EX.—P/6 prepared and proved by Ashok‘Kumar Rajput, Halka Patwari, it appears that the house of Dropati has two doors, one door opens towards the west: side on main gali whereas the other door connects the courtyard o'f her house with vacant plot adjacent to the same lane and the door Which opens at verandah and courtyard was opened by Ashok Shivhare. Thus on the basis of evidence of Mangalram (PW-1), it ca‘nnot be said that the room where the dead bodies of Abhilasha and her son Pramod were found was locked from inside. 2.PW-7 Satya Prakash Shukla has also deposed that Dropati resides in ‘ front of his house. The name of her daughter is Abhilasha who had a small son. Both of them died on ‘Mahashivratri’ day. In cross- exalnination, he has stated that the house of appellant Prafull is behind his house towards the main road and he resides with his father in his own housei Though this witness has tried to say that the appellant resided with his father in his own house, however, no suggestion has been given to this witness that the room where the deceased persons died was closed from inside. 23.PW-10 Narendra Pujari is the Investigating Officer. He has proved th entir‘e documents prepared during investigation and he has also proved the omissions iand contradictions in the statements of witnesses. In cross-examination, he has deposed that he received information about the incident at 7 pm. When he reached the place of incident, the house was Still burning, as one portion of the house was intact and both the bodies were found completely burnt. The dead bodies were buried under the debris of roof which had falle after burning: After removing the debris, he saw the dead bodies’ (9 x r / 2 e n 24.Defence Witness Ashok Kumar @ Virendra has deposed that he knows the appellant who resides at a distance of 30—40 yards from his house whereas the house of Dropati is in front of his house and it is visible from his house. He never saw Prafull Visiting the house of Dropati. Prafull resides: With his parents. In cross-examination by the prosecution, he has deposed that he is not aware of the fact that the appellant res1ded 1n the house of Abhllasha and the child of Abhilasha 1s born through h1m Many Villagers including Mangalram and h1s son Klshore were dousmg the fire, however, Dropati Bai was not present in her house; 25.From overall scrutiny of evidence of above witnesses, it is observed that the prosecution has been able to establish the fact that Dropati Bai proceeded for Pali around 2.30 pm leaving the appellant and both the deceased persons inlher house. The appellant was further seen by PW—4 Kishore Kumar when he was closing the door of the house of Dropati Bai and only thereafter the villagers noticed smock coming out from the house of Dropati Bai and from that house, dead bodies of the deceased persons were found in burnt condition and thus, circumstance of last se'en of the appellant in the company of the deceased persons when they were alive in the house of Dropati Bai is established. 26.The trial Court has also Considered the conduct of the appellant after I the incident and it has been observed that the defence has tried to establish that the appellant resided with his parents in their house and not in the house of Dropati Bai. The house of his parents is also ' nearby the house of Dropati Bai, however, the appellant did not go to douse the fire in. the house of Dropati and has also not offered any explanation about his whereabouts at the time of incident and this conduct of the appellant has been conSidered as an additional link to the Circumstantial ev1dence adduced by the prosecution 27.After carefully going through the judgment of the trial Court and the evidence available on lrecord we are of the opinion that the prosecution has established the second Circumstance of last seen against the appellant beyond reasonable doubt based on material ev1dence available onrec'ord. I #7 28.111 the matter of Sohel Mehaboob Shaikh (Supra), conviction of the appellant was based ona circumstantial evidence that the deceased died unnatural death, she died in the room which was solely and exclusively occupied by‘ her and her husband. The appellant did not offer any explanation in respect of the incident in which she sustained burn injuries. The Supreme Court acquitted the accused, as no evidence was adduced to show that the accused was present in the room where occurrence took place and thus, the chain o circumstances was not complete. 29.1n the matter of Arun Bhakta @ Thulu (Supra) also, conviction was based on circumstantial evidence of last seen together that the accused and the deceased slept together on the fateful night in the house. However, the Supreme Court, considering that the family members of the deceased were giving diametrically opposite version as to whether the accused and the deceased were seen together in the house, set aside the order of conviction. 30.The facts of the present; case are entirely different from the facts of the judgments cited by learned counsel for the appellant, as in the instant case, as alreadyi observed above, the appellant was seen in the house at about 4.30 pm by Kishore Kumar and only some time thereafter the house caught fire. 31.0n the basis of aforesaid discussion, we are of the opinion that there is no illegality and infirmity in the judgment of the trial Court. 32.1n the result, the appealibeing without any substance deserves to be and i hereby dimissed Sd/u l KN. CHANDRAKARH‘ Judge // ‘ f s s, ' '3 a