^^- k<.^.:. HI©HCOURT OF CHHArnS6-4RH.AT BILASPUR DIVISION BENCH:- CORAM : Hon'bie AA.r.T.p. Show.fi & Hon'bJe Mr,R.L.JhQnwGr, JJ* Crsminal ApDe-ai No.819 of 1993 Hatkeshwar @ Keshear Versys State of Madhyo Pradesh (now Chhattisgo.rh) JUDQMENT FOR CONSIDERATION Hon'b!®Mr.R.L.Jhonwar, J. Sd/- T'P* Sharma Judge -/a- Sd/- R.L. Jhanwar Judge Post for Judgment on : 20/4/2010 Sd/- T.P. Sharma Judge ^ BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.07 11:57:22 +0530 HI^-i COURT QF CHHATTIS6ARH AT BILASPUR DIVISION BENCH:- . •• • CORAM: Hon'bleMrT.P.ShormaA Hon'bie Mr,R.L,Jhanwar, JJ< *«' ^. /- ,4pi3@IJQnt Crlmi"el Anpe-a! No. 819 of 1993 Hatkeshwar . @ Kesheor S/o Bhuwanram, By caste MGhkui, aged about 22 years, ft/o Chuihapani, Poiice Station Narayonpur,. Dist^ict Roigarh (M.P) (Now C.6.) Vs. State of Madhya Pradesh (now Chhattisgarh) (Cri.wlna! appea! under SectJon 374(2) of Cr.P.C.) Pr^sent ^ Mr. Abhay Tiwari, counsei for thc appeliant. Mr.Sandeep Yadav, Dy. &ovt,Advocate for the State/respondenT, JUDGMENT (Oeiivered on 20th.Aprii, 2010) T.P.ShormQ. J._ 1. ChaHenge. in this appealis to the Judg^ent of conviction & order of sentence dated 29.4,. 1993 pa-ssed by the Additionai- Sessions: Judge, Jashpurnagar, In-Sessions Case No.117/92, whereby ^whereunder iearned ^dditlonal Sesslons Judge after holding the appe!lant gyilty for commjssJon of'culpabte hornjcide amountlng to murder of Bhykhllbal @ Kemia cnd conceoilng -the evidence of crlminQl case convicted the appeHGnt under Sections 302 & 201 of the Indian" PenaJ Code and sentenced him to undergo imprisonment for iife and imprjsonmenst for two years, ^- 2, Coriviction Is impugned on the ground that wlthout any iota of cHnching and credlbie evidence. the Court bebw has conv?cted and sentenced the appe!!ant as aforementioned<ind thereby committed IIIegdity- 3. Case of the pro<ecution/ln brlef, is that th-e c^pelloiit Hatkeshwar i^o.s havlng iS!icit reiatlon'with deceased Bhukhiibdi, wife of ^overdhan. So m.any. tjmes, the appeliant'-directed to deceased Bhukhilbai to go out of. liie viHage for ijvellhood along wlth .him which 'she refused. One doy prior to 1.5-92, the appeilant committed intercourse witii her and dirccted to meet at cana! (^?&Aon 15-92.0n L5-92,dec@ased Bhuklibai wer^t to cano! for washlng cbthes where the oppellant o!so went.' Again he directed to go with him out of the viHage for -jive!ihoodwhich she refused, then the.appeliant having bete! axe assaulted over her neck and chopped her neck.. After chopplng the head- from body, the appeilant took' the 'head of the deceased m h Is towe! (Samcho) and concea'ed In one tree. The app.ellant came backand took both. Chop body of the deceased (tr'unk) except head was lylng neor canal VHbgers reached to the spot and saw chopped body (trunk)< ©acladhar ^W-2), elder brother-in-iaw (Jeth) went to the poilce station and lodgBd" the F-I>R- vide Ex~F/L,4Aerg jntlmatlon was a!so • rec.orded vsd.e ExP/!2< .Investigating officer proceeded for the'scene of occurrence and after summoning the witnesses, inquest over the dead body of the decea^ed 'WQS prepared 'vide Ex.P/2. Pieces .of hairs, fSesh, 'bbodstained ond plaln soil were recovered from the spot yjde Ex.P/3. Broken be^igles of the deceased were seized from the spot-vide Ex?/4. Body of the deceased without head (trunk) was sent for autopsy to ^overnment Rospltal Bogicha. Rajkumar 'Patel PW-5) conducted autopsy vide Ex.P/8 and foun'd head was mlsslng, neck was chopped and bcerated wound over left shouider of 3" x 3" x bone deep. Interna! organs w'ere con9estec3. On.. 3.5.92, the oppelbnt was taken into custody, he mQcJe djsciosure sto.tement of chopped head of de.ceeise-d Bhukhliboi, bioodstained betei oxe and bloodstoined clothes' vide Ex?/5. Thc appeilcnt took the pollce officer near. one Kahuwa tree fgl^' fl < ^ from where he took outchopped head of th^ deceased Bhukhljbaiwhlch yyas seized vjde ExP/6. The accused produced one bete! oxe and bbodstained cbthes from his house ond the SGme were seized vide Ex.P/7,. Heod was agaln sent for examination to Dr^RoJkumar Pate! (PVy-5).. He exQmined heo.d vlde Ex?/9 and. found that the head was of a woman. He a!so .examlnecl betel axe vide Ex.P/10. At the time of .sending the body for autopsy, investlgoting officer atso made request to the doctor toexamine as to whether before her death she had been subjected to rape or not. VagjnQJ scarp was token vide ExP/13- Spot rnap wos prepared by the Investlgating officer yide ExP/14. ~ 4. Statement of the wltnesses were recorded under Section 161 of 1+ie Code of Crimina! Procedure, 1973 (in short ithe Code') ond after compietion of investigation, charge sheet wais fl!ed be-fore the JudiciaS Magistrate First Ciass, J<3shpurlnagor/who In tum committed the case m fhe- Court of then Sessions, Raigarh, from where iearned Additlonai Sessions Judge Jashpurnagar rec^-lved the'case on transfe-r for triai,. 5. In order to proye the guDt of the accused/appeHant, the prosecutlo^ has examined; as many as 10 wltnesses. The. o.ccuse.d/appeibnt wos examined. under Section 313 of the Code where he denied the circumstnnces appearing o.gainst him and ciaimed innocence and fatee j^plication in the crime in question.. 6. After providing opportunlt^ of hearlng to th@ parties, iearned Add.ltionai Se-sslons Jodge ha<? convicted and sentenced the appellant as aforementioned. 7. We have heard Mr-Abhay Twari, counsel for the appelbnt and ,AAr,Sc»nde€y Yadav, Deputy ^ovemment ^dvoc<xte for the State/respondent, perused the judgment impugned and record of the Court below. ^- .--r' 8. Learned counse! for 'the appeHant vehementSy argued that the .conviction i$ based on circumsteintiai evidence. In. case of conviction based on drcumstantjal evidence, the pro^cutjon is requlred to adduce evldence and such eyidence must sctisfy the foiiowing tests^ (1) the circumst<inces from which on inference of guiit is sought to be drawn, mu.st becogentiy and fjrmly estobilshed; (2)tho5e circumstances shouid of a- deflnite tendency unerringiy pointing towards the guilt. of the occused; (3)the circumstances taken- cumutetjvely shou!d from o chojn so complete that there is no escape frorn the concbsion thot withln al! human probabillty the crime was-commltted by the accused and none else; and (4)the circumstantia! evidence In order to sustain. conviction must be compietB ond incppabie of expbnation of ony other hypol+iesis than that of the guiit of the accused and such evidence shouid not only be consjstant wlth the guilt <?f the occused but shou!d be inconsistentwjth.his innocence, The prosecu'tion is oJso required 'to prove- that cirlcumst<xnces so proved are compbte chain and are- sufficl.ent to exclude innocence of the accused or any'other person and sufficient for drawing inference that on!y the appeilant has committed the offence. In the present case, the evidences of the witnesses are seJf-contraclictory^ As per the eyjdence of Santu (PVi/-l), the oppeiiant was standing near the- place of jncident, h.e was hoiding betel axe/the deceased was washing her cbthes in the canal After sometlme when he wo.s beside cano.! he saw head of her aunt deceased-Bhukhijbai and.rest part of the body was not .present there. Other witnesses nameiy, Jageshwar, Sov-erdhGn and Sadadhar were present on the spot, then he went to the forest. After sometlme agoin he came back. On the seco-nd day, po!ice came and directed to take trunk of the deceased to Bagicha, then h^ took. Thereafter •on the basis of confessiono! statement of the accused, head was rec-overed near one tree, inter a!ia, ^adadhar (PW~2) and Soverdhan (PW-3) have deposed that when c ^ ..^ l4iey.reached to the spot they saw trunk of the deceased, except heod and head ^as mJsslng. It shows that both were present near the spot and husband of the deceased was also present abng wlth Sadadhar and the deceased, but o.fterwards head ¥jasmissmg -and trunk was found. It $hows that the appeilant has not .conceaied. the head of. the body. , These contmdictory statements are sufflcient to dlscard the evldence of the wjtnsesses. 9-.On the other han-d, barned State counseJ'supported the Judgme-nt impugned and argued that the evldence adduced on behdf of the' prosecution Is sufficlent to prove that the appellant was having iHicit reiation with mQrrled woman deceased Bhukhlibal ond on account of dispute of golng out of yjlbge'for ijvelihoad aiong wth 1tie appe!lant, the • appellant has committed brutai rnurder of the deceosed^ He was present on the spot along with the deceased, he was having bete! axe and a.fterwards head was selzed at his instance .abng with clothes cmd'weopon of the offence. Tne.se eyidences o.re .sufficient to' connect the appeibnt in the crime in questlon. The Court bebw ho.s right'y convlcted and sentenced the oppeilant a^.aforementjoned. 10.In order to.appreciate the o.rgument advanced on beha!f of the parties, we have examined the materia! avaHabie on record. In the present cose, homlcidal cieath as a result of onte-mortem fatal Injurles by chopping of the head of deccased Bhukhllbai has-not been substantjdiy dispu-ted on beh<s!f of the'o.ppe!!ant, on the other hand, otherwise abo estabiished by the evidence of Dr.Rajkumar Patel (PW-5)/ autopsy report ExP/8 and head examination report Ex-P/9. The eyldences of Santu (PW-1)/ Sadadhor (PW-2), ©overdhan (PW-3), TriSochan (PW-4) md Head Constcbie Shobhnath Singh (PW-10) who has dcpos^d that chopped trunk of the deceased Bhukhllbai and head of BhukhHbai were found and death was ^omicidal in noture. \^- 11. In case of convjction based on clrcumstGntiai evidence, as he!d by the Apsx Court in the matter- of C. Changs Rsddy V. Stat®sf ^.P. , the prosecytion Is required to adduce evidence and such evjdence must satisfy the fol'owlng tests'=- (1) the circumstances from which on inference of gullt is sought.to be drawn, must be co§e.nt!yand firm'y establjshed; (2) those circumstances shouid of a definite tendency unerringly polnting towards the guilt of the accused; (3)the circumstances taken cumuiatjveiy Shouid from a chain so compjete that there is no escape from the conc!uslon that within, ail human probabillt^ the crime committed by the accused and none e!se; ond (4)the circumstyi.ntjoi evidence in order to sustain convlction i^ust be complete 'and incapable of expianation of any othe.r hypothesls .thon that of the guilt of the accused-and such evidence should .not oniy be consjsten't' with the guilt of the accused but shouid be inconsistent with his innocence. 12..In the prese^i^ case, the convlction is based on,fo!!owin9 clrcumstential evidence, i)'. The appeilant having iSSlcit reiation wlth deceased Bhukhijbai, wlfe of i$overc!han (PW-S); ii) The'(^peliant-used to entice her to go out with hlm for jlveljhood which she re.fused;. ' jli) On the date of incident and at'the time of Incldent, dcceQsed ghukhlibai was washlng her clothes In canaiwvay from th^ viiiage; iv) Appeibnt Hotkeshwar was prese.nt near the deceased at the' tjme of incident; v) The appeibnt was hoJdlng bete! axe; vi) After sometlme chopped trunk of the deceased WQS found lying near cojiai; iAIR 1996 SC 3390 : (19965 10 SCC 193 K ^—- !\ ^ vil) The appeliant was not present near the ptace of incident when chopped trunk ^?os found near cana!; vjii) Head of the deceased wos a!so msssing; ix) Head of the deceosed was reco'vered at the -instance of the. appel!ant from hidden pbce; y\ The- GDD^'iant i'las not offcred QHV cxDl'Qno.tion thot who hcis' coused Injury to the decea?ed ond who has chopped her neck; yJ) The o.ppe!!ant has not offe.re.d any expbnotion that who has hidden the head of th@ deceased; 13..Santu (PW-1), • nephew of • deceased Bhukhlibd, hos deposed in his evjdence that at about 11 a...m. on the date of Incident whi!e he was passing beside canai, deceosed Bhukh!ib<il waswashing her clothes and the nppeibnt wos standlng near her, he ^as.hoSding betei axe, he talked •wifh the appeliant and yyent to his' house. When'again he wos going beside canoi with his cattle he saw the head of 1+ie deceosed ond trunk was mlssjng. Again when he came back from the forest, at that time trunk was lying and head wos missing.He .hos further deposed that belng lnterro9ated the appe.tlant made disclosure statement of the head of the deceased near one tree which was flnatiy recovere-d- Defence hos cross-examined thjs'witness at length. In pdra 4 of his cross-exGmination, he has supported hb version thot when sow first tjme the appeliant, at that time the appeHant was holding beta! axe and was present near the •piace of incident, In para 5 of his cross- evamJnation he has specjflcdly admitted that the deceased was present aione in canal whlie she was washing her cbthes and no other fema!e or persons were present, although the prosecution or defence has not asked anythlng to this witness reSo.tlng to presence of head of the deceased first time, but his statement recorded under Sectten 161 of the Code Ex.D/1 reveai.s that oniy trunk was lying near the p!ace of incident and head was mjsslng. ^adadhar (PW-2); brother-ln-law and ©overdhan (PW-3), husband of the dece-ased have d-eposed- in their evidences that when they reached to the spot along with the appelbnt, ^— then they saw trunk of the deceosed Bhykh!iS?al and head was missing, then ^adadhar (DW-2).w€ntto the poiice station and !od9ed the p.1 ^: In his cross-examlnotion, fedadhar (PW-2) has specificGiIy deposed that Santu W-1) his son was aiso present wlth hlm and trunk of the deceased was p^esent ahd head not present< The evidences of So-ntu (PW-1), ^dadhar (PW-2) and ^oyerdhan (PW-3) c!ear!y estabiish thot on'y. chopped trunk of the'deceQsed present in the place of Incjdent and 'head. was mjssing and before ^uch jncident only the^t:'. oppeilant and the deceased were present neQr cana! ond the appe'bnt was ho!ding bete! axe.. Mis presence near canal LC. pbce of Incident dong wlth bete! axe whiie deceased was washing her cbthes otherwlse wa.s ,not natura! because Bhukhiibd was not his wlfe, but wlfe of ©overdhan(PW-3). The appeJJant has not offere.d any explanatlon that why he was pre.scnt near t?ie deceascd, that too with bete! axa and when •he parted company of Bhukhlibai or who has caused injury and who has chopped neck of deceased Bhukhilboi. • 14. Head Constable Shobhnoth Shgh (PW-IO), ^ho has conducted investi9ntion, has deposed In his evidence thot on 3-5,93 he took'the appeliant in custody and interrogated, he mci.de confessionaS stetement rebting to heod of deceosed Bhukhliboi, .betei axe and bioodstalned • cJothes vide E>?P/5, then he went wlth the appe!!ant frors11 where he produced head of Bhukhiibai which he has seized vide Ex,P/6. Then he went with the oppellant to his hoyse from where he produced one bete! axe, bbodstained bngl, baniydn and towei (touliya) which he has seized vlde Ex.P/7- Finally he has sent the head for-examincition and other orticies for examlnatlon. Santu (PW-1) and Tribchan (PVl/-4) ho.ve corroborated the evidence of Shobhnath Singh (PW-10) rebting to disciosure slxitement of head and other artictes made by the appe!!ant and recoyery of the head of the dec^-ased and other articles at'.the instance of the appeilant. </ ^' 15. From perusa! of th^ evidence of the orforesald witnes^es, it reveab that head of the deceased was not lying in theopen place but i.t was hidden and buried in the !and- which was exhumed and recovered.It o.!so reveais that l4i^ oDDBiiont took thc ooijce offlccr and othBr wjtncsses to th!p Diacc where the heo.d was buried, he digand took out the head whlch was recovered vide ExP/6. 16.0niy recovery of chopped heod of the decea^ed'it^^lf is not sufflcient for drawing inference thdt the appeltent has committed murder of decea<?e.d ghukhtJbai If the same is satisfactorlly expteined by the oppe!!ant. Recovery of head from hidden place at the Inst^nce of the appeJhnt shows that either* the appeiiant has hldden the head of the deceased or some other person hos hidden the head ond fhe appellant had seen while it wos hldden or he came to know fro.m other sources that somebody has hidden l+ie head, In these clrcumstQnces, the appeilant was required to offer expbnotion that how he came to know. In the Qbsence of such expbnation, the on!y inference wou!d be possible that the appelbnt had hidden the head of deceased Bhukhilbai and buried. ^ 17.In the present' .case, the prosecution • has proved the fo!lowlng circumstonces, i) The appe!!ant was having iliicit rebtion with deceosed ghukhlibai, wife of ©overdhan(PW-3); ji) On the date of Incident and at the time of incident, the appe'iant was present near cana! and he was holding betel axe; iii) Deceased Bhukhlibal i^as also present in cano! and was washing her c!othes; iv) Except Bhukhlibaj and the oypeibnt no other persons were present cn the spot; v) At about 3 p.m. on the same day chopped trunk of deceased ghukhJibai was found dn the spot and head. of BhukhilboJ was missing; yi) The appelbnt was not present on the spot; Iji .^'"s^ 10 yii) The oppel!ant ha5 not offered ony expbnation 1fiat why he was present near Bhukh!ibaj,wife of ^oyerdhan and that too with bete! axe dangerous weapon and who has chopped +he head of the deceased; viil) The appel!ant has made disclosure statement of heod of Bhukhiibaj/bete! axe, and ciothes; jy} Head of Bhukhiibai was found buried in the bnd away from the place of Incident x) The piace where the head of Bhukh!ibai was buried has been shown by the appBllant ond he- dig ond took oyt the. hedd of the deceased; xj.) getel axe has been seized at the instance of the appe!!ant; and xjl) The appeilant has not offered ciny expbnation that who has hidden the hc-ad of deceased Bhukhlibal- 18.1f the aforesaid clrcumstQnces ore considered'together1, then only hypothesis wou!d be possibte that the present appeilant is the person who has committed myrder of deceased Bhukhiibai and ha? conceaied the evldence of crimina! case and except the appeiiant nobody has committed the aforesaid offence. These circumstances are a!so sufficient to exciude the possibjlity of jnnocency of the appelbnt. IQ.After appreciating the evidence avdbble on record, iearned Additiona! Se.ssions Judge, Jashpurnagar has convicted & sentenced the oppeibnt as aforementioned-Convsction 6. sentence of the appetiant is bosed on credible, cilnchlng and reliabie evidence, sustainable under the bw. 20.0n ciose scrutiny of the evidence, we do not flnd any iilegdity in the' judgment impugned. The appeai being devoid of merit Is !jab!e to be djsmi^sed and it is hereby dismissed» Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge