HI^H_COAJRT QECHhLATTISGARH ATBILASPUR D.B. HON'BLESHRI DHIRENDRAMISHRA^& HON'BLESHRIR.N.CHANDRAKAR^JJ Appeljant In Jail Versus Respondent : State of Chhattisgarh Criminal ADpeal No. 903 of 2004 Premdas @ Punaram Sahu JUDGMENT FOR CONSIDERATION ^ K:i ^' ; HON'BLESHRiR.N.CHANDRAKAR^J Sd/- R.N. Chandrakar Judge ^ POST FOR JUDGMENT ON l^ JULY, 201^ Sd/- JUDGE !<^ .7.2010 TJ \, •\° l.tSiJiltil //£-''. ^/' HIGH COURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA, & HON'BLE SHRI R.N. CHANDRAKAR. JJ Appellant In Jail ResDOndent Criminal Appeal No. 903 of 2004 Premdas @ Punaram Sahu, S/o Late Shri Gajanand Sahu, aged about 58 years, R/o Village Urla, BMY Tharia Bhilai-3, District Durg (CG) Versus State of Chhattisgarh, Through P.S. Shivrinarayan, District Janjgir-Champa (CG) Present Mr. Satyendra Sahu, counsel for the appellant. Mr. U.N.S. Deo, Govt. Advocate for the State. J U DG M E NT (Delivered on [?'July, 2010) PerDhirendra Mishra, J 01. The appellant has Ipreferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 26 August, 2004 passed in Special Criminal Case No.1/03, whereby learned Special Judge under Scheduled Caste & Scheduted Tribe (Prevention of Atrocities) Act, 1989, and Additional Sessions Judge, Bilaspur, after holding the appellant guilty for committing murder of Uttara Kumar Bariha, has convicted him under Section 302 of the IPC and Section 3(2)(5) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in short "the Act, 1989") and sentenced him to undergo rigorous life imprisonment on both counts. 02. Briefly stated, facts of the case, as projected in the impugned judgment, are that the deceased was a student of Class-X and he was pursuing his studies while residing in Shivrinarayan temple as he hailed from a poor family. The appellant was also working as a priest of the temple since last four years and the deceased used to assist him in worshipping. On the date of incident i.e. 23 January, 2002, in the afternoon, on being asked by the appellant, the deceased brought sweets from Ashok Kesharwani hotel and thereafter, the appellant committed murder of the deceased with a rammer (Kutela) inside the temple and fled from there after locking Ram Mandir. At about 7 pm, at the time of daily prayer when the ,-^ 03. employees and devotees reached temple, they found the temple locked and the appellant was not traceable. The matter was brought to the notice of complainant Ramgopal Das, who entered the sanctum sanctorum after opening the lock by another key and found the dead body of Uttara Kumar lying there. He was identified by the other students. Report of the incident was lodged by him on the same day, whereupon merg intimation of Ex.P/1 and FIR of Ex.P/2 were registered against the appellant under Section 302 of the IPC. After fleeirig from the place of incident, the appellant sent letters to higher offiGers of the department. He also sent a letter to Jawaharla] Kesharwani and threatened him for arranging Rs. 1.50 lacs. The police traced the appellant through his letters and came to know that the appellant is residing at Badwah, Distt. Khargoun, with an assumed name of Keshodas. On interrogation, the appellant confessed his guilt. Offence under Section 3(2)(5) of the Act, 1989 was subsequently added as the deceased belonged to scheduled tribe community whereas the appellant belongs to general category. Thereafter, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Janjgir, who, in turn, committed the case to the Court of Sessions Judge and the same was received on transfer for trial by the learned Special Judge (Atrocities). Learned trial Court framed charges under Section 302 of the IPC and 3(2)(5) of the Act, 1989 against the appellant, who abjured his guilt. The prosecution in order to establish charges against the appellant examined 25 witnesses in all. Thereafter, statement of the accused was recorded under Seetion 313 of Cr.P.C., in which he denied the circumstances appearing against him in the prosecution case, and pleaded innocence and false implication. He categorically stated that he does not recognize the witnesses and stated that he is Punaram Sahu and not Premdas Pujari Guru Ram Sunderdas. hle never worked in Shivrinarayan temple and before arrest, he had never seen Shivrinarayan temple and he has been falsely implicated. He further stated that he wants to examine one Subhashchandra Kesharwani, s/o Narayan Prasad Kesharwani - Booking Clerk, in his defence. However, he does not know his present address. Since the appellant was unable to give correct address of his defence witness, summons could not be ^ 'y served and the appellant was unable to produce his defence witness. 04. Learned trial Court, on the basis of evidence of K.S. Rathia - Sub Inspector (PW-24), who has proved the caste certificate (Ex.P/17) issued by Tehsildar, in which it is mentioned that the deceased belonged to caste "Binjhwar" of schedule tribe and further considering that the appellant did not rebut the above evidence, held that the deceased belonged to scheduled tribe and the appellant is of "Sahy" caste and he does not belong to scheduled caste or scheduled tribe. 05. Homicidal death of Uttara Kumar is not in dispute. Even otherwise, from the evidence of Dr. N. Prasad (PW-10), who has conducted postmortem over the person of the deceased and proved his report of Ex.P/13, in which he found following injuries on the person of the deceased and opined that cause of death was head injury and hemorrhagic shock due to multiple fracture of skull bone and death was homicidal in nature, homicidal death of Uttara Kumar is established. Iniuries on external examination: Skin pale; bleeding from nose, mouth and ear; teeth broken; left upper incisor tooth broken; tip of the tongue protruded and bitten between teeth; crepitus sound on the skull bone present. Iniuries on internal examination; Temporal, parietal and occipital bones having multiple irregular fractures; meningitis pressed; brain irregular torn; laceration on brain matter visible; bleeding in brain present; cephaulo haematoma present. 06. Learned counsel for the appellant vehemently argued that there is no eyewitness fo the incident; conviction of the appellant is based on circumstantial evidence, however, the circumstances have not been established individually and the chainof circumstances does not establish guilt of the appellant beyond reasonable doubt. The trial Court has failedi to appreciate the defence of the appellant that he never visited Shivrinarayan and that even he does not recognize the witnesses. The finding of the trial Court with respect to the letters that the same were, in fact, written by the appellant, is ..<: erroneous as the same have not been proved by any cogent evidence. The evidence of the handwriting expert also does not inspire confidence as this witness has categorieally admitted in cross-examination that the documents required for the purposes of examination were not made available to him. The prosecution has miserably failed to prove the motive for commission of the crime. There is discrepancy in the time of last seen as stated by Bholadas (PW-2) and the time when the appellant was seen at bus stand by Purushottam Prasad Soni (PW-12), and it was not possible for the appellant to commit offence in such a short duration. 07. On the other hand, learned counsel for the State has supported the impugned judgment|ofthe trial Court. 08. We have heard learned counsel for the parties and perused the materials available pn record as also impugned judgment. 09. Admittedly, there is no direct witness of the incident. Conviction of the appellant is | based on cireumstantial evidence. The circumstances relied upon by the trial Court may be summarized as under: (i) that the deceased was last seen alive with the appellant on the date of incident i.e. 23 January, 2002, and some time thereafter his dead body was found in the sanctum sanctorum around 7-7.30 pm on the same day, (ii) conduct of the appellant subsequent to commission of the offence; (iii) defence of the appellant that he is not Premdas Pujari, who worked as Pujari of Shivrinarayan temple at the time of incident; he never visited Shivrinarayan and he is Punaram Sahu, stands falsified from the evidence available on record. First circumstance: 10. Lastseen So far as the first circumstance is concerned, PW-1 Jageshwar Prasad Sahu is one ofthe 15 students, who were pursuing their studies while staying in Jagannath temple of Shivrinarayan. This witness has also deposed that the deceased resided with them in the temple. On the date of incident, they were rehearsing some cultural programme at 10-10.30 am, which was to be staged on the m' eve of 26 January. The appellant was priest of Ram Mandir at the relevant time. The deceased was also witnessing their rehearsal on the upper portion of Jagannath Mandir. Thereafter, they went to school, however, the deceased stayed back. They returned around 3 pm from school, however, they did not see Uttara Kumar. When evening prayer was not held in Ram Mandir as the appellant arad the deceased had gone somewhere, they went to Ramgopal Das and told this, whereupon he asked for the bunch of keys and ilock of the temple was opened and they saw the dead body of Uttara Kumar lying near the idol. His head was torn and blood was spread near the temple. 11. PW-2 Bholadas worked as a cook in the temple. hle has also deposed that appellant Premdas was working as a priest in the temple, whereas the deceased was a student residing there. On the date of incident, he had seen the deceased rehearsing for 26 January programme with other 10-12 boys at about 10 am. The appellantwas priest of the temple. After offering to the deity, meals were served to the students, priest and guests. However, Uttara Kumar did not take meal with others. Around quarter to two, after taking rest, he came out of the main gate and saw the deceased entering from the main gate inside the temple. Appellant Premdas also came behind him through main gate. He heard the appellant calling Utfara Kumar by his name, whereupon he asked the appellant as to why hewas calling Uttara Kumar, on which he told that he has some work with Uttara Kumar. The deceased went to his room and came with his thali (plate) and went towards the store room andicame out with food and again went upstairs. Thereafter, the deceased came down to Premdas and he saw that the appellant, putting his hand on the shoulder of Uttara Kumar, was taking him towards Ram Mandir. After that, he did not see Uttara Kumar alive. In the cross-examination, in para-9, he has categorically stated that on the date of incident, meal was ready by 11.30 am and joint feast (Pangaf) had finished by 12.30 pm. Thereafter, Uttara Kumar immediately went with his thali and returned back downstairs as he had not taken his meal. He has further stated that he cannot say whether the deceased had taken his meal before he went inside Ram Mandirwith the appellant. In para-10, he has deposed that he w did not inquire from the appellant as to why he was searching Uttara Kumar. He had finished cooking by 5.30 and went to his home. He has categorically denied that he used to lock the temple and he did not see Premdas and Uttara Kumar going towardsRam Mandir. 12. PW-3 Ramgopal Das has lodged the merg intimation of Ex.P/1 and FIR of Ex.P/2. The sum and substance of the evidence of this witness is that on the date of incident, the deceased and other 15 students were pursuing their studies while staying in the temple, whereas the appellant was working as priest of Ram Mandir since last 3-4 years. On the date of incident, at about 7-7.30 pm, he was informed that Ram Mandir is locked and the prayer is not being held. He called for bunch of keys and opened the lock and found the dead body of the deceased inside the temple. He also saw bloodstained rammer lying near the dead body. At that time, the appellant was not present in the temple complex. In the cross- examination by the defence, he has deposed that since the appellant was missing from the temple, he inferred that he must have murdered Uttara Kumar. When he was told by the boys that the temple is locked. he guessed that the appellant Premdas might have gone out as sometimes the priest used to go out after locking the temple. Since Rremdas did not give key to anyone, therefore, he guessed that he might have gone out. 13. PW-4 Sukhram Das is also an employee of Shivrinarayan Mandir and resided in the temple for the last 7 years. He stated that the dead body of Uttarai Kumar was found inside the temple where the appellant was priest. He also learnt that the appellant has fled after locking the terriple. 14. PW-5 Ashok Kesharwani, is owner of a hotelsituated near the temple. He has deposed that on the date of incident at about quarter to two one Lakhan Yadav came to his shop and purchased some edibles for the priest of Ram Mandir. Fifteen minutes thereafter another boy came and he also purchased some edibles and sweets for the priest of Ram Mandir. He also paid in cash. He pointed out towards the appellant that he was the priest of the temple. He further stated that on the next morning at about 6-6.30 am, he learnt that a boy has died inside Ram Mandir. He went to the temple and there he learnt that the appellant has murdered a boy inside the temple and fled from there. He had informed one Laxman Mishra that yesterday a boy of the temple had come to him and purchased sweets and mixture. On that day at 10 o'clock, the police had interrogated him andshown him the photograph of Uttara Kumar, whereupon he had told that he was the person, who had come to his shop for purchasing sweets and mixture. In the cross-examination, he has stated that Lakhan Yadav cameto his shop at 2 pm and 10-15 minutes thereafter, a boy of the temple came to his shop. However, he could not recognize the boy at that time. 15. These witnesses have been cross-examined at length by the defence. However,i the defence could not elicit anything in their cross-examination, which makes their version untrustworthy or unreliable. On close scrutiny of the evidence of the above witnesses, it is established that on the date of incident, the deceased was present in the temple complex; he was witnessing rehearsal of the cultural programme at 10 am by other students; he did not go to school with them; in the afternoon when the meal was served to all, he did not take his meal; after some time he came from outside in the temple through main gate; the appellant also followed him and hg was calling the deceased by his name; the deceased went upstairs and came back with h\s thali and thereafter, the appellant was seen in the company of the deceased around quarter to two going towards the temple; at that time, the appellant was putting his hand on the shoulder of Uttara Kumar; the deceased went to the hotel of Ashok Kesharwani to bring sweets and mixture for the priest of Ram Mandir around 2 pm and Ashok Kesharwani identified the deceased from his photograph shown to him by the police at the time of his interrogation; and thereafter, Uttara Kumar was not seen alive by anyone and his dead body was found inside the temple around 7 pm when the lock of the temple was opened by Ramgopal Das (PW-3) by some other key. Thus, from the evidence of above witnesses, it is clear that the prosecution has proved the first circumstance beyond reasonable doubt. '•/ ' 'n' ^ t^ Second circumstance : Conduct of the appellant subsequent to commission ofthe offence. 16. As for the second circumstance, as already discussed in the foregoing paragraphs, the appellant was present inside the temple till quarter to two in the afternoon when he was seen by PW-2 Bholadas. From the oral evidence of the above witnesses, it is also established that the priest of the temple used to lock the door from outside whenever he was required to go out for some brief period. When the evening prayer was not performed in Ram Mandir, Ramgopal iDas and other witnesses, who also resided within the temple complex, thought that the appellant might have gone out after locking the temple. However, the appellant left the temple premises without disclosing his departure to anyone and he was seen by Purushottam Prasad Soni (PW-12) - an ex-employee of the temple in bus stand at about 2.30 to 3 pm on 23 January, 2002 when he also went to bus stand to go to Bilaspur. This witness has categorically stated that he saw the appellant entering the bus, which was going to Bilaspur. Thus, the appellant left the temple of Shivrinarayan on the date of incident without disclosing his departure to anypne. 17. PW-6 Jawaharlal Kesharwani is regular visitor of the temple. He has deposed that he used to meet the appellant in the temple. At that time, the appellant attired like hermit. Theappellant visited his shop every Sunday to see religious serials. The appellant used to complain about the management of the temple. He also complained about the workers of the temple. On 23 January, while he was going to temple, he heard some noise that a student has been murdered: and the appellant is absconding. Some days after the incident, probably 1 to 1 % months of the incident, he received an inland letter of Ex.P/3, in which he was praised as well as threatened that he should arrange Rs.1.50 lacs or else he would be kidnapped. It was also written that after paying this amount to the parents of the deceased, he would apologize to them. However, name of the appellant was not written. Since the appellant had talked to him and nobody knew about that talk between them, therefore, he says that this letter was written by the appellant. The letter has been seized by the police vide seizure memo ofEx.P/4. i i. «.*^..•;-•; /• ':^--/ &; '• ^ ^Wfl'^ '"^"?i ^ ^ -^:' /:' 18. PW-18 Ratnakar Gajbhiye is Assistant Sub Inspector (M) in the Crime Investigation Department, Police Headquarters. He has deposed that a registered letter addressed to Chief Special Crime Investigation Department, PhlQ, Raipur was sent and name of the sender was mentioned as Pujari Premdas Shri Ram Mandir, Math Shivrinarayan, Distt. Janjgir. The envelope, in which the letter was sent is Ex.P/56, which contained 14 pages and the registered letter is Ex.P/47. The registered letter and its contents were seized by the policevide seizure memo of Ex.P/46 on 13.2.2002. The letter addressed to Superintendent of Police, Janjgir by the appellant containing 20 pages, was seized from Head Constable vide Ex.P/61. 19. PW-24 K.S. Rathia is the investigating officer. He has registered the merg intimation bf Ex.P/1 , FIR of Ex.P/2 and proved the same. hle has also proved the inquest over the person of the deceased vide Ex.P/6; seizure of articles 2 to 7 lying on the spot on 25.1.2002 vide Ex.P/38; passbook ofthe appellant of Rural Bank, Shivrinarayan Branch vide Ex.P/12 from the appellant; caste certificate of Ex.P/17 of the deceased; and seizure of inland letter of Ex.P/3 vide Ex.P/4 from Jawaharlal Kesharwani. He has also seized 14 page letter received in the police headquarters through registered post, on being produced by Ratnakar Gajbhiye vide Ex.P/47 through seizure memo of Ex.P/46, including the envelope of Ex.P/56. The application of the appellant submitted to the Rural Bank, Shivrinarayan Branch, for opening account with a passport size photograph of the appellant bearing signature of Premdas on three places, was also taken into possession vide seizure memo of Ex.P/45. Similarly, the appellant's letter to Superintendent of Police, Janjgir in 20 pages was seized from Head Constable Jugal Kishore Sharma vide seizure memo of Ex.P/61. The letter written by the appellant having his signature on three places (Ex.P/72), two withdrawals frqm the Rural Bank, were seized by him vide Ex.P/45. He has also sent the letter seized by him to the handwriting expert|of PHQ vide Ex.P/65 and report of the handwriting expert has been proved by him vide Ex.P/66. In his cross-examination, the defence has not disputed the documents proved by this witness in his deposition. ;^,./~"» •'\ •'e. "-\: -..-' 'i^ >. ^3*s ^ "•^-^-^' 10 20. PW-25 Prakash Chandra Trivedi is the Additional State Examiner, Disputed Documents. He has deposed that the registered letter (Q-1) addressed to Crime Investigation Department; letter (Q-2) written by the appellant to the editor of "Dainik Bhaskar"; one inland letter (Q-3) written by Premdas @ Punaram Sahu; account opening form (N-3) signed by the appellant submitted to Rural Bank; along with natural writing of Premdas; and signatures of Premdas were received by him for examination. All these documents were duly examined and he found that the writings, marks; signature from S-1 to S-176 were written by the same person, who also wrote questioned documents from Q-1 to Q-43 and his opinion in this regard is Ex.P/66 and the report based on opinion is Ex.P/79. 21. Learned counsel fdr the appellant argued that this witness has categorically admitted in Para-19 of cross-examination that he had demanded at least 50 pages admittedly written by Premdas in his natural writing - Hindi and similar signature in 10 number and the same was not furnished to him and therefore, in absence of necessary material (samplesof admitted writing and signature), on the basis of opinion of the handwriting expert, it could not be inferred that the appellant was author of the questioned documents as he has admitted that with the age and passage of time, there is some change in writjng. 22. However, this witness has categorically deposed that there was no basic difference in the writings and has categorically denied that the appellant is not the author of the questioned documents. The trial Court, on the basis of evidence of PW-25 and his opinion and report, has held that the appellant is the author of the inland letter (Ex.P/5) and letter of Ex.P/47. From perusal of these letters, it is evident that the facf of murder of Uttara Kumar and the reason for his murder has been mentioned therein. Thus, on the basis of above circumstantial evidence i.e. the appellant was seen in the company of the deceased last time when he was alive and he himself wrote letteils and acknowledged his involvement in the '^ (f/ crime in question, it has been held that it is proved beyond reasonable doubt thgt the appellant intentionally committed murder of Uttara Kumar. 11 23. We have carefully lexamined the report of the State Examiner, Disputed Documents, as also the questioned documents, of which the appellant is author as per opinion of the handwriting expert. We are unable to accept the argument of learned counsel for the appellant that the opinion of the handwriting expert cannot be acted upon, as the expert has clearly and categorically opined that both the documents i.e. questions documents and the admitted document, sent for comparison, were written by the same person and the trial Court has rightly accepted the opinion of the handwriting expertto arrive atthe aboveconclusion. Third circumstance 24. Defence of the appellant found to be false. 25. The only defence that the appellant has taken during trial is that he is not Premdas Pujari; he never worked as Pujari in Ram Mandir, Shivrinarayan; he never visited Shivrinarayan and his prosecution is a case of mistaken identity. We have already held, while establishing the second circumstance, that the specimen signatures obtained from the appellant during investigation, vide Annexure Ex. P/29 marked as S-129 to S-131, Ex. P/30 marked S- 132