^sS 's^s' !iSa»rf<i>' 43. HIGHCQURTOF CHHATTISGARH AT BILASPUR Criminal Appeal No.279 of 1993 1 APPELLANT: (In Jail) RESPONDENTS: APPELLANT: (In Jail) RESPONDENTS: Manoj Kumar Poddar Versus The State of Madhya Pradesh (now Ghhattisgarh) AND Criminal Appeal No.358 of 1993 Anant Mirdha Versus The State of Madhya Pradesh (now Chhattisgarh) JUDGMENT FOR CONSIDERATION HON'BLE SHRI R.N. CHANDRAKAR, J ^) -^. SdA Dhirendra Misiira Judge Sd/- R.N. Chandrakar Judge POST FOR JUDGMENT ON 9. MAY. 2010 Sd/- Dhirendra Mishra Judge '?\ '''• '••/':"•'•'' HIGH COURT OFCHHATTISGARH AT BILASPUR APPELLANT: (In Jail) RESPONDENT: APPELLANT: (In Jail) RESPONDENT: Criminal Appeal No.279 of 1993 Manoj Kumar Poddar, son of Satish Chandra Poddar, aged 24 years, Resident of Mana Camp, 18 Block, P.S. Mana Camp, District Raipur (MP) (now CG) Versus The State of Madhya Pradesh (now Chhattisgarh) AND CriminalADpeal No.358 of 1993 Anant Mirdha, aged 24 years, son of Shri Kalichand Mirdha, resident of Mana Camp, 18 Block, Police Station Mana Camp, District Raipur (MP) (now CG) Versus The State of Madhya Pradesh (now Chhattisgarh) Present: Shri Arun Kochar and Shri Devarshi Thakur, counsel for the respective appellants. Shri U.N.S. Deo, Govt. Advocate for the State. Division Bench: Hon'ble Shri Dhirendra hflishra & Hoa'bleShri R.N. Chandrakar. JJ. JUDGMENT (Delivered on^May, 2010) ThefollowingjudgmentoftheCourtwasdelivered by Dhirendra IVlishra,J. 1. The aforesaid criminal appeals are being disposed of by this common judgment, as the same are directed against the judgment of conviction and order of sentence dated 17th March, 1993 passed in S.T. No.96/91 whereby learned 4 Additional Sessions Judge after convicting the appellants under Section 302 read with Section 34 of the IPC for ^ causing homicidal death of Prabhash Chandra Sarkar, sentenced them to undergo imprisonmentfor life. 2. Briefly stated, case of the prosecution is that on 9-11-1990 at about 7.30 pm appellants came to the house of the deceased and asked him to accompany them to Dhaba whereupon the deceased and both the accused persons went in his scooter No.MOT-5462 to Raipur. After taking wine and dinner, they proceeded for Mana Camp via Mandir Hasaud and on the mid way, they took him towards the place of incident on the false pretext and murdered him by inflicting repeated blows of knife on account of some old grudge, dispute regarding money transaction in gambling and interference by the deceased in love affair. Aftercommitting his murder, they chopped off his head and left leg from knee so that deceased could not be identified. They disposed of his head 3 km and left leg 8 km away from the place of incident whereas, they dumped the scooter in Maharajbandh tank and burnt his clothes. They also concealed his goggles and shoes. 3. When the deceased did not return home, Kishore Ranjan Sarkar, brother of the deceased, gave a missing report on 10-11-90 at about 23.45 hours which was recorded in Sanhaof Ex.-P/23. On receiving information that a dead body is lying on the way, complainant Kishore went to the place with his brother and two friends and found a headless body in a ditch under water. He identified the body on the basis of Tattoo on the wrist, thereafter he lodged the report of Ex.P/22 on 11- 11-90at12.35hour8. (^/ 4. During investigation, inqyest was prepared over headless body of the deceased in the presence of witnesses vide Ex.-P/5. On the basis of memorandum (Ex.-P/6) of appellant Manoj Kumar, head and leg of the deceased was discovered from the indicated place. Inquest over head and leg was prepared vide Ex.-P/16 and Ex.-P/17 respectively. The scooter of the deceased was seized vide Ex.-P/3 from Maharajbandh tank. The dead body was sent for autopsy to Medical College, Raipur where Dr. D.C. Jain conducted postmortem over headless body of the deceased and gave his report of Ex.-P/19. The head and leg of the deceased was separately sent for postmortem and the doctor gave his report vide Ex.-P/20. 5. On the basis of memorandum of appellant Anant Mirdha recorded on 28-11-90 shoe of the deceased in 4 pieces was taken into possession vide Ex.-P/10. Plastic goggles of the deceased was recovered from the culvert in Shailendra Nagar from the place indicated by appellant Anant Mirdha. Plain soil, blood stained soil, 2 buttons, hairs lying on place of incident and socks were seized from the place of incident vide EX.-P/18. Spot map was prepared vide Ex.-P/24. 6. Test identification paradewas conducted in Central Jail, Raipur by the Executive Magistrate where Smt. Meera Sarkar, wife of the deceased identified appellantAnant Mirdha vide Ex.-P/2. Articles seized during investigation were sent for chemical examination to the Forensic Science Laboratory, Sagar and report of the FSL is Ex.-P/26. The samples which were found stained with blood were further forwarded to the Serologist and chemical examiner vide Ex.-P/27 by the Forensic Science Laboratory and report of the Serologist is Ex.-P/29. .-.^'J' 7. After completing investigation, charge sheet was filed in the Court of Judicial Magistrate, 1 Class, Raipur, who in turn, committed the case to the Court of Sessions Judge, Raipur and the same was received on transfer for trial by learned Additional Sessions Judge. 8. Learned Additional Sessions Judge framed the charge under Section 302 read with Section 34 of the IPC against both the accused persons who abjured their guilt. 9. The prosecution in order to establish the charge against the accused persons examined 17 witnesses in all. Thereafter, statements of the accused persons were recorded. The accused persons denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication due to animosity. 10. Learned trial Court after hearing learned counsel for the respective parties convicted and sentenced the appellants as mentioned in paragraph-1 of this judgment. 11. Homicidal death ofthe deceased is not in dispute. From the evidence of Dr. D.C. Jain, Professor, Forensic Medical Department, Medical College, Raipur, who conducted postmori:em over headless body of the deceased and head & leg separately and found that body was without head; left leg below the khee was missing; head and leg were chopped off by some sharp edged weapon after death; numerous stab injuries were found on the body; 4 such stab wounds were on the right side of the abdomen and each was of size 1 x %" extending towards the cavity of abdomen; 6 similar stab wounds were present on the chest which extended towards the chest cavity; one stab wound was found on the s'-^..'. right hand; another wound was found on the right arm and left arm; on account of injuries over chest lungs were perforated and it was full of blood; intestine, liver and right kidney were punctured; all the injuries were ante mortem in nature which were caused by extremely sharp edged weapon such as knife; cause of death was syncope due to haemorrhage and shock; it is established that death of the deceased was homicidal in nature. After examination of head and leg of the deceased, it was opined that both the portions of the body were chopped after the death of the deceased and they were ofthe deceased. Weapons ofArticle F1 and F2 were also sent to him for examination and he opined that the injuries present over the person of the deceased could be caused by Articles F1 and F2. 12. Learned counsel for the appellants submitted that the appellants have been convicted on the basis of circumstantial evidence. The circumstances relied upon by learned trial Court have not been established beyond reasonable doubt. The trial Court relying upon the evidence of Meera Sarkar (PW-2), wife of the deceased, has held that the appellants accompanied the deceased when he was last seen alive and thereafter his dead;body was found. However, missing report lodged by Kishore ChandraSarkar on the basis of information of Meera Sarkar does not name appellant Anant Mirdha. It also does not givehis description, therefore, on the basis of alleged test identification held on 30 November, 1990, it could not be held that Anant Mirdha also accompanied Manpj and the deceased when they went on scooter. The scooter ofthe deceased and his chopped head and leg werealready discovered at the instance of co-accused Manoj and, therefore, memorandum of appellant Anant Mirdha in this regard was of no consequence. The prosecution has also failed to impute motive to the appellants for committing murder as Meera Sarkar has categorically stated that Manoj was friend of her husband. Recovery of belonging of the deceased at the instance of the appellants is of no avail as the same were never subjected to identification and Meera Sarkar did not name in her diary statement that her husband was putting on shoes etc when he went with the accused persons. Reliance is placedon judgments of the Supreme Court in the matters of Anant Bhujangrao Kulkami Vs. State of Wlaharashtra , Inderjit Singh and another Vs. State of Punjab and Sardar Hussain and another Vs. State of Uttar Pradesh . 13. On the other hand, learned counsel for the State supported the impugned judgment. 14. We have heard learned counsel for the parties. We have perused the record including impugnedjudgmentofconviction. 15. Conviction is based on circumstantial evidence. The circumstances relied upon by the trial Couri: are as under:- > The appellants were last seen in the company of the deceased when they went by scooter from the home of the deceased and thereafter his dead body was found. > On memorandum of accused Manoj, scooter by which the three went together was seized. His memorandum also led to the recovery of severed head and leg of the 1AIR 1993 SC 110 2 AIR 1991 SC 1674 3AIR1988SC1766 deceased. Weapon of offence knife was also discovered at their instance. Similarly, personal belonging of the deceased which he was putting on on the date of the incident was discovered at the instance ofAnantMirdha. > Conduct of the appellants during investigation, and lastly > Motive. LAST SEEN 16. Kishore Ranjan Sarkar (PW-11) gave a missing report of Ex.-P/23 wherein it is mentioned that Meera Sarkar informed him that her husband has gone with Manoj Poddar and another boy on 9-11-90 at 7.30 pm with his scooter number MOT-5462 and did not return in the night. PW-2 Meera has deposed that on 9-11-90 her husband returned from Raipur in the evening. When he was preparing to go out again, she asked him as to where he is going whereupon her husband informed that he is going with Manoj and a boy to attend party in a Dhaba, as boy who is accompanying Manoj has won some money in gambling. Thereafter he brought his scooter in the front of the house and she saw that Manoj and another boy were standing in the front. She recognized them in the light of tube light and the boy who is standing with Manoj is the same boy. Her husband was driving scooter and she has also described wearing apparels of her husband. l7.After the arrest of Anant Mirdha, test identification parade was conducted in jail on 30 November, 1990 in which he was correctly identified by Meera Sarkar, who has also proved test identification memo of Ex.-P/2 which bears her signatures. She has been cross- ^l examined at length by the defence and she has categorically stated that she saw the face of Anant Mirdha and she had seen them for almost 15-20 minutes from a close distance. The defence could not impeach the credibility of the above evidence and, therefore, the trial Court has rightly held that the deceased went with the appellants on 9- 11-90 on his scooter on the pretext of attending party in a Dhaba arranged by accused Anant Mirdha. The version of this witness is further proved by G.M. Ansari (PW-16), Executive Magistrate, who conducted test identification parade in which Meera Sarkar correctly identified appellant Anant Mirdha and he prepared test identification memo of Ex.-P/2. Discoverv of scooter, severed parts of the bodv of the deceased. weapon oLoffenceJ.e. kmfe.^ersonal belonaina of the deceased on memorandum of accused persons is.Toestablish this circumstance, the prosecution has relied upon the evidence of Samir Gdldar (PW-4), who has deposed that on interrogation by the police, appellant Manoj gave memorandum of Ex.P/6 and stated that he with Anant Mirdha after severing the head and leg of deceased Prabhash had concealed the same near Mandir Hasaud canal and Chhokadanala respectively and had thrown the scooter in Maharajbandh tank. He had also deposed that Manoj disclosed that he and Anant Mirdha had concealed the knife used for committing the offence in a well near railway station and they burnt his wearing apparels at Mana and threw it in a pit. Wearing apparels were seized vide P/8. He has also proved memorandum of appellant Anant Mirdha (Ex.-P/9) and recovery ofshoes in4 pieces vide seizure memo ^. of Ex.-P/10 and recovery of broken goggles of the deceased vide seizure memo of Ex.-P/11. He has identified articles B1, B2 & B3 (pieces of shoes) and article A goggles in the Court. He has admitted that he had jotted down statement of Manoj in brief in his diary of the year 1998, however, he did not write proceedings which took place in his presence, but he remembers everything. 19. He has been cross-examined by the defence at length. However, after going through the entire evidence of this witness, we find that he has stuck to his examination-in-chief and the defence could not elicit anything in his cross-examination which makes his evidence untrustworthy or unreliable. 20. PW-9 Manmath Vishwas has also deposed that accused Manoj was interrogated in his presence by the police and he had disclosed that he has concealed the head of Prabhash under water in a pit near culvert. Thereafter he took the police to the place from where severed head was discovered from the pit under water and he also led to the place where leg of the deceased was concealed by the accused persons and the same was discovered from the indicated place. After the discovery of the above fact, documents were prepared vide Ex.-P/16 and P/17. He has also been cross-examined by the defence at length, but he has stuck to his claim in examination-in-chief. 21.PW-8 Jagbandhu Shah has proved recovery of two knives at the instance of Manoj vide Ex.-P/15. He has also identified the above knives which have been described as Articles F1 and F2 in the Court. ^•"s^h. ^ :"^ s "'°111 •=''"'^r a-SSS^ 10 ^ In cross-examination, he has stated that article Knife wastaken out from the well with the help ofmagnet. 22. PW-11 Bhulan Singh has also proved memorandum of appellant Anant Ex.-P/9 and recovery of shoes Ex.-P/10 and recovery of goggles of the deceased vide Ex.-P/11. 23. PW-2 Meera Sarkar, wife of the deceased, has identified the goggles Article A and shoes Articles B1, B2 & B3 as that of her husband and has further s.tated that when he went with the accused persons on 9- 11-90 in the evening, he was wearing the above things at that time. Button Articles C1 and C2 and full pant Article E1 and E2 also belonged to her husband. There is no cross-examination of this witness with respect to shoes, goggles and button ofthe deceased. 24.The evidence of the above witnesses also finds support from the evidence of Shiv Murthy Tiwari (PW-13), who recorded memorandum of Anant Mirdha on 28-11-90 and effected seizure of articles of the deceased Vide Ex.-P/10 and Ex.-P/1 1. 25. Similarly, PW-15 Rajiv Sharma has also recorded memorandum of Ex.- P/6 and Ex.-P/7 of appellant Manoj and discovered head and left leg of the deceased from the place indicated by the appellant. He has made discovery of knife at the instance of Manoj Vide Ex.-P/15 from the indicated place. 26. Thus, on close scrutiny of the evidence of the above witnesses, we are of the opinion that discovery scooter, goggles, burnt of belonging of the deceased such as clothing, shoes, button as also severed head 11 and leg on the basis of disclosure statements of the appellants is established. Conduct of the appellants durina investiaation 27. The trial Court, on the basis of evidence of Ravindra Nath.Sarkar (PW- 17), who has been examined as Court Witness, has held that after the incident Ravindra Nath, brotherofthe deceased, had asked appellant Manoj about deceased Prabhash, however, his reply was evasive and the above conduct of the appellant has also been taken as additional circumstance against him. Apart from the above evidence, knife seized at the instance of accused persons was also found stained with blood and this has been taken as incriminating circumstance. Motive 28.To establish the possible motive for commission of crime, the prosecution has examined Ku. Seema Pal (PW-5), who has deposed that appellant Manoj used to tease her on the way. She had complained about the same to her brother Shankar Chandra Pal who has been examined as PW-7. Shankar Chandra Pal has deposed that he had gone to Prabhash and complained him that Manoj teases his sister on way. 3-4 days thereafter Prabhash had told him that Manoj shall not say anything to his sister. 29. Kishore Ranjan Sarkar (PW-1 1) has also deposed that after Manoj gets employment, his brother would propose the marriage of his sister with him. 30. On the basis of above evidence, the trial Court has drawn inference that on account of indulgence of the deceased in the affairs of Manoj with Seema he might have nourished motive for committing crime. 12 31.Even if it is held that motive attributed to appellant Manoj is farfetched and the same is not strong enough for committing heinous offence like murder of once own friend but the motive is something which the accused keeps in his mind. The other circumstantial evidence i.e. evidence of last seen together in the company of the deceased on 9 November, 1990 when the deceased accompanied by both the appellants left his home on his scooter and thereafter he was not seen alive and his dead body was found in a mutilated condition coupled with recovery of scooter and severed head and left leg and other belonging of the deceased at the instance of the appellants from different places indicated by the appellants establishes appellants' involvement in the crime in question. 32.1n Inderjit Singh and another (Supra), conviction was based on circumstantial evidence. I The circumstances established during trial were: (1) the appellants had taken away the deceased from his house and thereafter he was never seen alive, (2) the dead body of the deceased was found on the bank of canal and which was identified as that of the deceased, (3) the denial of the appellants that they had never taken away the deceased for bird-shooting, (4) the suggestion that why not the appellants could be falsely implicated in the case. The Supreme Court observed that only the circumstance that the deceased was last seen in the companyof the accused by itself may be attributed to the appellants. The circumstances relied upon cannot be treated as incriminating cjrcumstance except circumstance No.1 and in these circumstances, it was held that the accused could not be convicted solely on the single circumstance that they were seen in the 13 company of the deceased last time when he was alive, in the absence of any other incriminatinglcircumstance. 33. In Sardar Hussain and another (Supra) also, conviction under Section 302 of the IPC was based on circumstantial evidence. The Supreme Courtconsidering that identification ofthe dead body was not satisfactory, there was no evidence as to last seen hor evidence of recovery of dead body at the instance of accused or identification of clothes was not reliable, allowed the appeal and set aside the conviction of the accusedi persons. 34. In Anant Bhujangrao Kulkarni (Supra), the accused was convicted on the basis of circumstantial evidence of last seen, the dead body of the deceased was found at the instance of accused from the place which was in exclusive possession of the appellant, wrist watch of the deceased was taken out by the appellant and lastly, evasive reply given by the appellant on being asked about whereabouts of the deceased. Dealing with each of the circumstance independently, the other 3 circumstances were held to be not established from the evidence available in that case. 35. However, in the instant case, we have already held that circumstances of last seen as well as recovery of severed parts of the body of the deceased as well as scooter and other articles and belonging of the deceased were recovered at the instance of the appellants and thus, facts of the present case are distinguishable from the above cited judgments. ' 14 36.1n3harad Birdhichand Sarda Versus State of Maharashtra", the • Hon'ble Supreme Court has underlined the conditions, which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-152 as under: "152. Aclose analysis of this decision would show that the following conditions imust be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclysion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not onlya grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made: l "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can conyict and the mental distance between 'may be' and must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be| explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. ! (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 37. On the basis ofaforesaid|discussion, we are ofthe opinion that learned trial Court after elaborately considering the entire evidence available on record has held that thelprosecution has established its case on the basis of circumstantial evidence beyond reasonable doubt. AIR 1984_SOA622. fStsSiSSSCSS^S^SsSSif's"-5'''^'"'^-'*''"''1''''' I'l. 15 38.1n the present case, the facts are established and the same are consistent only with the hypothesis of the guilt of the accused. The circumstances in the present case are of a conclusive nature and tendency. They exclude every possible hypothesis except the one to be proved and chain of evidence is complete and the same does not leave any reasonable ground for the conclusion consistent with the innocence of the accused and shows that in all human probability the act must have been done| by the accused persons. 39. In the result, the appeals fail and the same are dismissed. • Appellant Anant Mjrdha was granted bail vide order dated 17-8- 1993. His bail bonds are cancelled and he is directed to surrender before the trial Court forthwith to serve out the sentence imposed upon him. • Appellant Manoj Kumar Poddar was granted bail on 10-10-2001 however, warrant of arrest was issued against him on 10-3-2010 for his production before the Court. He was produced before the Court on 30-4-2010 and thereafter he was sent back to Central Jail, Raipur. His bail bondsare cancelled. Sd/- DHIRENDRA,MISHRA Judge Sd/- R.N. Chandrakar Judge Barve