^: •' ^^,,, i*^ '"i. c'fv^\ ; ^K.F'^ | 'tw^£/ .aiSafi^ HIGHCOURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram:hton^ble^hnT.P.JSharma & Hon'ble Shri R.N. Chandrakar. JJ ADpellants (in jail) Criminal Appeal No. 1429 of 1995 1) Lakhan Lal Jais aged about 35 years, son of Sankar Prasad Jais. Respondent 2) Smt. Vasmati Jais, wife of Lakhan Lal Jais, aged about 32 years. Both r/o. Thoda Banda (Shankerpur), P.S. Ramkola, District Sarguja M.P (now Chhattisgarh). Vs. State of Madhya Pradesh (Now Chhattisgarh) (Criminal Appeal under Section 374 (2) ofthe Cr.P.C.) Present: Mr. Abhay Tiwari, counsel forthe appellants. Mr. Ashish Shukla, Govt. Advocate for the State. JUDGMENT (Deliveredon 19-10-2011) -Per T.P. Sharms.J. -'»>- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 21-9-1995 passed by Sessions Judge, Sarguja in Sessions Trial No. 143/1989, whereby and whereunder learned Sessions Judge after holding the appellants guilty for commission |,l.l,.;.t> ^•^ s :_. 's, 16!' ^•tW^.. i <.,. .^ d '•SS"" ^ •Kshf' fc» of culpable homicide amounting to murder of Kishori @ Rameshwar, after committing robbery, concealing the evidence of criminal case and possessing the property found on the body of deceased, convicted the appellants under Sections 302, 201, 394 and 404 of the IPC and sentenced each of them to undergo life imprisonment, R.l. for seven years, R.l. forseven years and R.l. for three years respectively. All the sentences are directed to run concurrently. Conviction of the . appellants is impugned on the ground that without there being any iota of evidence, the court below has convicted and sentencedthe appellants asaforementioned and thereby committed illegality. As per the case of prosecution, appellants are husband and wife. Appellant No.2 Vasmati, wife of appellant No.1 Lakhan Lal was having illicit relation with deceased Kishori @ Rameshwar. The house of appellants issituated near the field which is far away from the village where there was no other house. Appellant No.1 Lakhan Lal, husband of Vasmati was having suspicion that his wife was having illicit relation with deceased Kishori @ Rameshwar. On fateful day of 17-7-1985, appellant Lakhanlal by saying to his wife Vasmati that he would go out of the house and come back after some timeTiid himself in his house without knowledge of his . / ~ wjfe, just to provide an opportunity for calling the deceased and -*»- aftersome time when deceased Kishori @ Rameshwar came to the house of appellant Lakhan Lal and tried to outrage modesty of Vasmati, then appellant No.1 Lakhan Lal fired at him by gun as a > 4. result of which deceased Kishori @ Rameshwar fell down, thereafter appeltant No.2 Vasmati chopped off the neck of Kishori @ Rameshwar by betel axe. They buried the dead body in the manual pit, thereafter, appellant No.1 Lakhan Lal left his house and went towards forest in hurry. After some days, PW/2 Brijraj, PW/5 Babujan Khan, PW/3 Janakdhari, PW/18 Shambhu Prasad went to Banaras for disposal of bones and ash of deceased and were staying in the house of one Panda (priest), where appellant Lakhan Lal met them and asked that why they had come there. Therefter, PW/3 Janakdhari and PW/18 Shambhu Prasad told Panda (present) that he was theperson who killed deceased Kishori @ Rameshwar whose bones and ash they had brought there for disposal. The appellant Lakhan Lal, being asked by Panda (priest), confessed his guilt and left the house of Panda. Initially missing report ofdeceased was lodged vide Ex.P/31 and on the basis of enquiry of missing report, Dehati Nalisi was recorded on 19-7-1985 vide Ex.P/8, first information report was lodged vide Ex.P/9. Appellant Vasmati was taken into custody and she made a disclosure statement of dead body, gun, betel axe, wrist watch, two golden rings and shoes of deceased vide Ex.P/16. Gun was 'fecovered from the possession of appellant Vasmati vide Ex.P/17, betel axe ,was recovered at the instance of appellant Vasmati vide ./ ~ <Ex.P/18,one wrisf watch and two golden rings were recovered at vi». the instance of appellant Vasmati vide Ex.P/19, dried blood stains mjxed earth scratched from the wall near the place of incident was seized vide Ex.P/20, blood stained soil and plain soit were sf recovered from the spot vide Ex. P/21, blood stained petti-coat of appellant Vasmati was recovered vide Ex.P/22, shoes of the deceased were recovered vide Ex.P/23, crow-bar and spade were recovered from the spot vide Ex.P/24, blood stained soil and plain soil were seized vide Ex.P/25, full-pant ofdeceased was recovered at the instance of appellant Vasmati vide Ex.P/26, four cartridges, licence of gun and used cartridges were recovered from the house of appellant Vasmati at her instance vide Ex.P/27. After summoning the witness vide Ex.P/1-A, inquest over dead body of deceased was prepared vide Ex.P/1. Receipt of wrist watch was recovered vide Ex. P/2-A. Receipt of golden rings were recovered vide Ex.P/2-B. Seized articles i.e., wrist watch and golden rings were identified as of deceased vide Ex.P/3 and shoes were identified as of deceased vide Ex.P/4. Dead body of deceased was sent for autopsy to Primary Health Centre, Wadrafnagar, Surajpur vide Ex.P/11, where Dr.K.K. Sen (PW/19) conducted autopsyvide Ex.P/11-Aand found thefollowing injuries. i) Neck was chopped off from body; ii) iii) IV) Gun-shot injury over right shoulder and right scapular shows that cartridges entered in the body of deceased at right shoulder and came out from right scapular. Incised wound of 16x5x21/^ cm over left scapular. Injurjes were ante-mortem in nature and opined that^ause of death was hemorrhage and shock and death was homicidal in nature. / '•.. 5. Seized articles were sent for chemical examination to FSL, Raipur vide Ex.P/35 and present of blood over betel axe was confirmed vide Ex. P/36. Gun was also examined vide Ex.P/37. 6. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). After completionof investigation, charge sheet was filed against the appellants before'Judicial Magistrate First Class, Surajpur, who in turn committed the case to the Court of Sessions Judge, Ambikapur. 7. In order to prove the guilt of the appellants, prosecution examined as many as 22 witnesses. Statements of the accused/appellants were recorded under Sectipn 313 of the "Code" of Criminal Procedure, in which they denied the circumstances appearing against them and innocenceand false implication is claimed. They have also examined defence witnesses Ranika Devi (DW/1), C.P. Tripathi (DW/2), Ramsajeevan (DW/3) and Radheshyam (DW/4). 8. DW/1 RanikaDevihasdeposedthaton 17-7-1985 herbrotheri.e., appellant Lakhan Lal le.ft his house for Banaras and came back on 19-7-1985. DW/2 C.P. Tripathi has deposed that in the month of January, 1979 at serial No.21 death of Sadhu Sonar was recorded ,. vtde Ex.D/7-A and a copy thereof is Ex.D/7. DW/3 Ramsajeevan has deposed that the nameof his grand-father wasShiv Sharan and therewere nogolden rings in his house. DW/4 Radheshyam ^i- has deposed that on 19-7-1985 the house of appellant and manual pit at the outsjde of the appellant were searched, but nothing was recovered. •/'- .•:;>'^1. ^ tr^/t '^.S'. .1^ •?--'fs.sS^. ; >;^.::&^'ui€-i i 1 ^'sy uacti' 9. After appreciating the evidence on record, learned Sessions Judge convicted and sentenced the accused/appellants as aforesaid mentioned. 10. We have heard learned counsel for the parties and perused the judgment impugned as also record of the trial Court. •» 11. Shri Abhay Tiwari, learned counsel appearing for the appellants submits that sentence of appellant Vasmati has been suspended vide order dated 16-8-2004 but she has not furnished bail bond and ultimately she has been released on probation after serving sufficient sentence on 30-8-2004. Learned counsel further submits that the evidence adduced against appellant Lakhan Lal may be sufficient for creating suspicion that he might have committed the offence but same is nbt sufficient to prove the factum that the appellant Lakhan Lal has committed the offence along with appellant Vasmati, in absence of any reliable evidence for commission of offence. Appellant Vasmati after serving the sufficient sentence, she has been finally released but the evidence adduced against appellant Vasmati is not sufficient for her conviction. 12. On the other hand, Mr. Ashish Shukla, learned Govt. Advocate for Jhe State opposed the appeal and submits that evidence of PW/1 Mevalal, PyV/2Brijraj, PW/11 Naradh, PW/13 Lalita Prasad Tiwari . / ~ gnd PW/10 Gangaram Tiwari are sufficient for drawing definite ^-». conclusion that both tbe appellants have committed the offence and after appreciating the evidence available on record, learned "]• " •"? -l f^ ^ I)l;:""^' Sessions Judge, has rightly convicted and sentenced the appellant as aforementioned. 13. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf ofthe prosecution. 14. In the present case, homicidal death of deceased Kishori @ Rameshwar, has not been substantially disputed on behalf of the appellants. On the other hand it is also established by the evidence of Dr. K.K. Sen (PW/19) and autopsy report (Ex.P/11-A), that the death of Kishori @ Rameshwar was homicidal in nature. 15. As regards complicity of appellants in crime in question is concerned, conviction is substantially based on circumstantial evidence. 16. While dealing with the question of conviction based on circumstantial evidence, the Supreme Court in the matter of Kusuma Ankama Rao v. State of A.P. has held that in case of conviction based on circumstantial evidence, prosecution is required to satisfy the following circumstances, i. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; /ii. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say^lhey should not be explainable on any other hypothesis except that the accused is guilty; iii. the circumstances should be of a conclusive nature and tendency; >200&AIRSGW4669 17. iv. they should exclude every possible hypothesis except the one to be proved;and v. 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. In the present case, prosecution has tried to prove the following circumstances; i) ii) iii) IV) V) vi) vii) viii) Appellant Vasmati was having illicit relation with deceased Kishori @ Rameshwar; Appellant Lakhan Lal was having suspicion that his wife was having illicit relation with deceased Kishori @ Rameshwar; On 17-7-1985 appellant Lakhan Lal mislead his wife Vasmati by saying that he was going out of the house and would come back after considerable time, thereafter he provided an opportunity to Vasmati for illicit relation with deceased. Appellant Lakhan Lal had not left his house and hid himself in his house. At the time of incident i.e., 4 to 4.30 p.m., the persons residing at the vicinity heard the sound of gun-shot fire from the house of appellants. There was no other house adjoining or nearby the house of the appellants. Appellan^*bakhan Lal left the house within. an hour of the incident. Witnesses saw the appellant Lakhanlal going towards forest in hurry. IX) X) XI) xii) xiii) Appellant Lakhan Lal went to Banaras. Appellant Lakhan Lal, being asked by Panda (priest), made extra judicial confession before PW/3 Janakdhari and PW/18 Shambhu Prasad. Dead body of deceased has been recovered from manual pit of the appellants on the basis of disclosure statement of appetlant Vasmati. Wrist watch, shoes, pant and golden rings of deceased were recovered at the instance of appellant Vasmati. The aforesaid properties have been identified as of deceased Kishori @ Rameshwar. 18. As per evidence of PW/1 Mevalal brother of deceased, on the date of incident deceased Kishori @ Rameshwar went to the house of appellant Lakhan Lal for recovery of loan but he did not come back and at that time he was wearing wrist watch and golden rings. As per evidence of PW/2 Brijraj, at the time of incident, he heard the sound of gun-shot fire from the house of the appellants. The house of the appellants is situated at a distance of 200yards from the field of this witness. After half an hour appellant Lakhan Lal came out from his house. He was wearing pant and shirt and was going towards forest in hurry who turning 2-3 -times saw towards his back side. Thereafter relatives of Kishori @ Rameshwar.searched for Kishori @ Rameshwar. As per evidence of PW/1 Mevalal and.PW/11 Naradh, appellant Lakhan Lal was going •^>- towards forest in hurry. As per evidence of PW/13 Lalita Prasad Tiwari, deceased Kishori @ Rameshwar went to the house of appellant Lakhanlal beforethe incident. He was wearing two golden rings and one wrist watch, thereafter he did not come back alive. As per evidence . l! .// 10 of PW/3 Janakdhari and PW/18 Shambhu Prasad, when they were staying in the house of Panda (priest) at Banaras, appellant Lakhan Lal came to the house of Panda and called them. He introduced himself and thereafter, these witnesses informed Panda that he was the person who killed deceased whose bones and ash were brought for disposal in river. Appellant was interrogated' by Panda where he admitted his guilt. The mater has been investigated by PW/20 Parasuram Singh, Assistant Sub- Inspector. As per his evidence, he has recorded Rojnamcha vide Ex.P/31, Dehati Nalisi vide Ex.P/8. He has interrogated appellant Vasmati who made a disclosure statements of dead body including rings, wristwatch, shoes, gun, betel axe, full-pant vide Ex,.P/16. The aforesaid articles were recovered at the instance of appellant Vasmati vide Ex.17, 18, 19.20and27. 19. As per evidence of PW/1 Mevalal, brother of deceased, he identified wrist watch, golden rings and shoes of deceased vide Ex.P/3 and P/4. Defence has cross-examined PW/13 Lalita Prasad Tiwari and PW/14 Ramkumar, who was father of the deceased, at length but they have specifically stated and admitted that they have heard the sound of gun- shot fire from the house of appellants and appellant Lakhan Lal was in hurry while going towards forest. He made extra judicial confession at Banaras. Dead body and articles belonging to deceased have been recovered at the instance of appellant Vasmati. The evidence of the aforesaid witnesses further reveals that deceased came to the house of appellants, .^hereafter, he was not found alive. He was having illicit relation with appellant Vasipati and just after gun-shot fire appellant ;Lakhan Lal left his house. The dead body of deceased was found in manual pit belonging to the appellants situated at village where there was no other house or residential accommodation near the aforesaid house. The other articles have been recovered from the house of the 11 Raju appellants or nearby place. If the evidence of aforesaid circumstances are considered together, then only inference would be possible that both the appellants have committed homicidal death amounting to murder of Kishori @ Rameshwar and haveconcealed the dead body and the articles belonging to deceased were found in possession of appellants which were removed from" the body of deceased. 20. Defence has also examined DW/1 Ranika Devi. She has also supported the fact that her brother i.e., appellant Lakhan lal had gone to Banaras. Her evidence is corroborated by the evidence of PW/3 Janakdhari and PW/18 Shambhu Prasad. The evidence of DW/2 C.P. Tripathi is of no use in the present case, likewise the evidence of Ramsajeevan (DW/3) and Radheshyam (DW/4) is also of no consequence in order to discard the evidence of the prosecution witnesses supported by the documents. 21. After appreciating the evidence available on record, learned Sessions Judge has. convicted and sentenced the appellants as aforesaid mentioned. 22. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment of conyiction and order ofsentence. As per information given by both the parties, appellant Vasmati after serving some sentence, has been granted final relief by the State Government. 23. Consequently, the appeal being devoid of merit is liable to be dismissed and is herebydismissed. AppellantLakhan Lal who is on bail shall immediate'ly'surrender before concerned Sessions Judge for serving the remaining sentence. "•na- Sd/- T.P. Sharma Judge 8d/- R.N. Chandrakar Judge