HIGH COURT OF CHHATTISGARH AT BILASPUR ‘ /z Hon’ble Mr. R.L. JHANWAR J. Sdl— R.L. Jhanwar . Judge / Post for Judgment on: ¢€ /O3/2010 Sdl- ’ T. P. Sharma Judge DIVISION BENCH E CORAM: HON’BLE MR. T.P. SHARMA 85 HON’BLE MR. R.L. JHANWAR, JJ. CRIMINAL APPEAL NO. 1 1 12(92 APPELLANT Dhanwar. I ‘ VERSUS RESPONDENT ‘ State of Madhya Pradesh. u I JUDGEMENT FOR CONSIDERATION . r I i Sd/- T. P. Sharma Judge HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA 65 HON’BLE MR. R.L. JHANWAR, JJ. CRIMINAL APPEAL NO. 1 1 12/92 APPEAL U/S 374 OF THE CODE OF CRIMINAL PROCEDURE. ”Present: Shri Ratan Pushty, Advocate for the appellant. Shri Ravindra Agrawal, P.L. for the State/respondent. JUDGEMENT (Passed on 2 /03/2010) The following iudgment of the Court was passed bV T.P. Sharma, J:— 1. Challenge in this appeal is to the jddgment of conviction and order of sentence dated: 21/10/92 passed by Sessions Judge, Raipur in Sessions Trial No. 425/91 whereby and Where under after holding the appellant guilty for the commission of culpable a homicide amounting to murder of his Wife deceased Shanti Bai and concealing the evidence of criminal case convicted the appellant under Sections 302 8a 201 of W n;a APPELLANT Qhanwar S/o Baisakhu Dheemar N I aged 3O years, residence of Bhathapara, Madhar, Police Station t Dharisinva, Tahsil and District Raipur M.P. ‘ VERSUS RESPONDENT State of Madhya Pradesh the Indian Penal Code and sentenced imprisonment for life and rigorous imprisonment for 5 years. G Conviction is impugned on the ground that Without any credible and clinching evidence sufficient for conviction of the appellant court below has convicted and sentenced the appellant aforementioned and thereby committed an illegality. Vs Case of the prosecution, in brief, is that Shanti Bai ‘ sin{ce deceased, Wife of the appellant was residing with appellant at‘ Village Madhar. On 6/9/91 Shanti Bai ‘ since deceased, was present in her house along with the appellant, appellant assaulted her and caused fatal injury over her head and another part of the body as a result of injuries she died then appellant dug the pit inside the room and buried the dead body of the Shanti Bai inside his room. He also spread rice bran over the place where he buried the dead body. He hangs his 0 undergarments Which he was worn at the time of commission of offence inside his house. He also took the Kudali and Rapa by which he dug the pit in the room. He closed and locked the door out side and took the key with him, and fled away from the house. At about 8 p.m. PW2 Laxminarayan Sahu was standing before the betel shop present appellant asked him beside the betel shop and when he was alone appellant ¢ b) made extra judicial confession that he has committed the murder of his Wife and has concealed the dead body ’ after some timewitness PWIO Krishna Kumar Verma came near the betel shop, PW2 Laxminarayan Sahu narrated the incident to PWIO Krishna Kumar Verma and they proceeded for the house of appellant While they were going to the house of the appellant Kotwar “a Jivrakhan met in the way appellant was not present in the house, house was locked then PW2‘Laxminarayan Sahu went t‘o the out post Madhar along with Kotwar Jivrakhan and lodged the First Information Report Vide EX. P—2. Marg was recorded Vide EX. P—3, Investigating Officer left for the scene of occurrence. On 7/9/99 appellant was taken into custody, the house of the appellant was locked from out side. Appellant made discloser statement of wood, dead body of his wife, undergarments (Chaddi 85 Baniyan), Kudali, Rapa 8L key of the lock Vide EX. P—7., Appellant produced the key of the lock, Panchnama was prepared Vide Ex. P-8 with the help of the key produced by the appellant lock of the house of the accused was opened. ‘Lock and Keyvwere‘seized. Appellant shown the place where the dead body of his wife was hidden. Investigating Officer prepared Panchnama of the spot and found floor of the room was dug up to‘ 6 ft., dried blood was found near the door and on the wall, blood was also found over the cot and cover of mattress.GRice bran was spread in the room. Rice bran was removed l and soil spread was also removed. The dead body was found inside the pit. Legs of the dead body was folded, body was swollen, foul smell was spread. Dead body was found from ’the pit. After summoning the V witnees vide EX. P—13, inquest over the dead body ss 3 was prepared vide Ex. P—5. Blood stained and plain soil from the spot, blood stained and plain soil from the wall, blood stained piece of wood, Kudali and Rapa, cover of the mattress, blood ,stained undergarments of the appellant were seized from the spot vide EX. P—6. Patwari prepared spot map vide EX. P—4. Sealed cloths of the deceased after autopsy was seized vide EX. P—lO. ea body was sent for autopsy to D.K. Hospital, Dd Rapur vide EX. P—12. Autopsy was conducted by PW12 i Dr. D.C. Jain vide EX. P—12A and fouund following symptoms and injuries:— Decomposition of the body was started. Body was swollen because gas was present inside the body. (i)- Contusiori'Bf 6" x 2” over left thigh. (ii)—Contusion of 6" x 2" over right thigh. > (iii)—Lacerated wound of 4” X 3” on left leg and fracture of bones of the leg. ‘ (iv)— Lacerated wound of 3” X 2” over right side of scalp. (V)— Lacerated wound of 2" x l” over left side of the head. (Vi)— Lacerated wound of 2" X 1” over right side of the head. (Vii)— Lacerated wound of 2" X 1" over left frontal part of the head. (viii)— Lacerated ,wound of 2” x 1" over right frontal part of the head. 1/2” over (ix)— Lacerated wound of 1 1/2” £ occipital region. (X)—Fract‘ure of frontal bone of left and right side and depressed fracture of partial bone. (xi)— Membrane of brain was ruptured and full with blood, ruptured of brain was also found. Mode of death was coma as a result of head injury and death was homicidal in nature. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was filed before the Judicial Magistrate 6,. First Class, Raipur who in turn committed the case to the Court of Sessions, Raipur. In order to prove the guilt of the appellant/accused prosecution examined as well as 13 witnesses. Accused was examined under'Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. ‘ After affording an opportunity of hearing to the parties learned Sessions Judge has convicted and senteqnced the appellant aforementioned. ‘ Learned counsel for the appellant Shri Ratan Pushty and learned counsel for the respondent/State Shri ‘ Ravindra Agrawal, P.L. are heard. Judgment impugned and record of Court below perused. ‘ V ‘ Learned counsel for the appellant vehemently argued that the case is based on circumstantial evidence and case of circumstantial evidence prosecution is required to prove that all chain of circumstantial evidence so complete to indicate towardspthe appellant and none else and also the evidence adduced must be complete and incapable of explanation of any other hypothesis than thatof the guilt of the accused and such evidence :should not only be consistent With the guilt of the appellant but should be inconsistent With his innocence. Learned counsel for the appellant further argued that prosecution has not proved the fact that appellant was in exclusive possession of the house closed by lock and only one key was available which was recovered from r the appellant. In absence of such proof only on the I basis of heinous offence of wife of the appellant and fled, to explain the circumstances how she died. s a Appellant cannot be held guilty for the commission of the offence suspicion how grave cannot take place of G evidence, the prosecution is required to prove its case beyond all shadow of doubts. Learned counsel for the appellant placed reliance in the matter of C.K. Raveendran v. State of Keralal in which Apex court h’as held that if the case of the V . prosecution is not proved on behalf of reasonable doubts then accused is entitled for acquittal. Apex Court has further held that extrajudicial confession made by the appellant after consuming the liquor could not be said to be voluntary or truthful extrajudicial confession. Learned counsel for the appellant further placed reliance in the matter of State of Rajasthan v. .Kashi Ramz in which Apex Court has held that extra judicial confession made to brother of the deceased create doubts in absence of repose faith in him £0 seek his protection. Apex Court has further held that in absence of production of key recovered at the instance of appellant before Court creates doubt upon the story of prosecution. ‘ a l (2000) ISCC 225 ' AIR 2007 SC 144 E Learned counsél for the appellant also placed reliance in the matter of Sakharam Shankar Bansode, v. State of Maharashtra,3 in which Apex Court has held that in case of retracted extra judicial confession to the Witnesses whose evidence are not reliable and conduct u ‘ doubtful then in absence of other circumstances the conviction is not sustainable. Learned counsel for the appellant also placed reliance in the matter of Tarseem Kumar v. Delhi Administration4 Apex Court has held that Accused alleged to be in possession of room where dead body of Victim was found Testimony of witness, a close relative of victim, that accused was last seen with deceased unworthy of credence absence of motive extrajudicial confession made before stock Witness Who was casually a knowing accused, not acceptable—evidence as to recovery of blood stained clothes at instance of accused unreliable vital links in forming chain of circumstantial evidence not proved beyond reasonable doubt conviction Of accused not proper. Learned counsel for the appellant also placed reliance in the matter of Jaqta v. State of Haryana5 in which apex Court has held that extra judicial confession is a AIR 1994 SC 1594 AIR 1994 SC 2585 AIR 1974 SC 1545 weak piece of evidence if the same is lacking in probability then there would be no difficultye in rejecting it. :Learned counsel for the appellant also placed reliance in the matter of Narayan Sinqh and others v. State of M.P.6 in which Apex Court has held that in case of extra judicial confession the time when it was made “s and the credibility of the Witnesses Who speak to such a icorrfession is a material. Learned counsel for the appellant also placed reliance in the matter of Dhanya Kumar Jain and others v. State of C.G.7 in which this Court has held that in case of conviction on the basis of solitary Witness if the evidence of witnesses trustworthy and sterling worthy then conviction can be based. 18. ‘On the other hand, learned counsel for the respondent/ State opposed the appeal and submits that a conviction is based on circumstantiall evidence, prosecution has proved the chain of circumstances sufficient for drawing an inference that appellant was a person who committed the offence and except the appellant, nobodyhas committed the offence. é AIR 1985 sc 1678 ‘ 7 2008(2) C.G.L.J. 427 Learned counsel for the respondent/State further submits that in the present case the house 60f the appellant was‘ locked key was found in possession of the appellant when it was opened, blood stained underwear and Baniyan of the appellant was found inside the room. Dead body of the deceased was also buried inside the’ room. Present appellant has not offered any explanation that how the wife of the appellant died, who had buried the deceased inside the room and why he has locked the room and fled from the house. Appellant was also made extra judicial confession who inspire confidence after considering the evidence of clinching nature against the appellant, Sessions Judge convicted and sentenced the appellant as aforementioned. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. In the .present case homicidal death as a result of fatal ante—mortem injury has not been substantially disputed by the appellant on the other hand also established by the evidence of PW12 Dr. D..C. Jain, autopsy report EX. P—l2-A which reveals that lO external injuries, 4 internal injuries including rupture of brain, fracture of partial and occipital bone and fracture of bone of the leg were u‘ ‘ found. Injuries were sufficient for causing the death of Shanti Bai since deceased in the ordinary coue of rs; ature and dathas homicidal in nature. n e‘W s rerd te complicity of the appellant in crime in A ga h uestion is concerned the conviction is based on ircumstantial evidence of possession of t key of lock c he f the room Where dead body of the deceased ood ‘o bl : u tained cloths the appelnt, weapon Kudali & Rap s of la a ere fod. hppellant has not offered ay eplanation that how his'wife received injuries and how she died. Apellant has made extra judicial confession before the p witnesses. In the present case, prosecutin s o ha xamined material witness PW2 Laxminarayan Sah e u efore hom appellant has made extra judicial b w confession. id PW2 Laxminarayan Sahu has deposed in his evence hat he was standing beore the betel shop with some S persons, at evenig appellant came near thanbetel shop n e was under intoxicaton, he called him and at some h i distance from betel shop when he was alone with the appellant then appellant told him that he has killed his wife and has‘ thrownNher in the well near the Girodh village then he narrated the incident to PWIO Krishna Kumar Verma and Kotwar then they went to the Police Station where he lodged the report vide Ex. P-2 and rt‘a'm*w« r:l,-. ‘ q w un n x t f marg Vide EX. P—3. This Witness has not supported the other part of the case of the prosecution, prosecution has declared him hostile. In Para—6 of his cross examination he has admitted that he came back from the police station he saw the accused was sitting in front of the house of one Tailor. The dead body was not found inside the wellnPWlO Krishna Kumar Verma has u. not supported the case of the prosecution, prosecution has‘also declared him hostile. PWI Rameshwar Yadav has deposed in his evidence that Laxminarayan Sahu told him that wife of the appellant has died and appellant has killed his wife who was suffering from Paralysis. He has not further supported the case of the prosecution and prosecution has declared him hostile. PW13 Vishwas Chandrakar, Assistant Sub Inspector has corroborated the First Information Report Vide EX. P-2 and Marg Vide Ex. P-3. 3 PW11 Hariram brother of the deceased has deposed in his evidence that 3 days prior to the Tija Festival he went to the house of the appellant, house of the appellant was closed from inside, he knocked but nobody response themhe went to the hotel situated in frontof the house of the appellant after 15 minutes appellant came from his house, he was abnormal and was sweaty being asked that where he was. He did not answer then he asked the accused that Where is his sister then appellant replied that his sister has iGled since last 3 days. He also told that he has sent the children to village Kura Where his uncle is residing. He went back and thereafter he came to know from Krishna that appellant has killed his sister then he came to Village Madhar Where the dead body of the Vs deceased was found from the room of the appellant. PWI3 Vishwas Chandrakar, Sub Inspector who has conducted the investigation has deposed in his evidence that on 6/9/91 he came to know about the incident then immediately he went to the near spot and he searched the appellant, second day of morning he found the appellant near the railway station one kilometer away from the place of incident. He took him in custody and interrogated. He made discloser statementof his wife hidden in the pit inside the room, 9 his undergarments hang in the room, Kudalisand Rapa kept inside the room and key of the room which he was having Vide EX. P-7. He has further deposed that he Went with appellant to the house of appellant, the house of the appellantxwas locked, appellant produced the key and by key produced by the appellant he opened the lock and also prepared Panchnama Vide EX. P—8. He went inside the room along with accused and 0. 14 Witnesses and prepared Panchnama of thé house. He seized Kudali and Rapa, cover of the mattregs, undergarments, plain soil and blood stained soil Vide EX. P—6. He requested Executive Magistrate for inquest. Appellant also pointed the place Where the dead body of the deceased was hidden inside the room then after assuming the body, inquest over the dead body was prepared vide EX. P—5. He also sent the dead body for autopsy. Witnesses of memorandum and seizure PW8 samaru Ram h‘as corroborated the evidence of PW13 Vishwas Chandrakar in brief and has deposed that key of ‘lock of the house of appellant was with the appellant. Appellant opened the lock by key which he was having then they went inside the room one dug pit was found inside the room of about 6 ft. depth. The dead body was buried in the pit and covered by soil and rice bran then finally they assumed the dead body. Defence has cross examined this witness in detail, in Para—5 of his cross examination he has admitted that appellant has opened the lock and also admitted that dug pit inside the room ' was visible. In Para—6 of his cross—examination he has admitted that during course of search he came out and after 1 1/2 hours dead body of the deceased was taken out from the room. He has denied the suggestion that he has'not entered into the‘room. He has also denied Vs g3 W / the suggestion that house was not locked and appellant has not opened the lock from his key. 26. Defence has ‘cross eXamined PW13 Vishwas ‘Chandrakar, his detail cross examination he has admitted in Para—8 that PW8 Samaru Ram did not go ‘out during course of investigation from inside the jhouse of the appellant. Defence has cross examined u . lthis Witness in detail but has not been able to illicit in lhis: cross examination to discredit his testimony ispecially the possession of the key of the house. He has specifically deposed that appellant produced the key and he has opened the lock although PW8 Samaru Ram has specifically deposed in his evidence that accused was having key of the lock and accused himself has opened the lock. Evidence of this witness clearly shows that the house of the accused was locked from out side. Accused was in possession of the key 6 and the lock was opened with the help of the key which appellant was possessing. There is some discrepancy relating to the fact that who was opened the lock. PW8 Samaru Ram is a Villager not aquatinted the procedure of the Court. He hasispecifically deposed that when the rice bran was removed from the out position of the pit then heavy foul smell came out. Dead body of the deceased was visible then he came out from the room Q and after 1 1/2 hours the dead body was taken out from the house. Evidence of this Witness is natural. It is not E possible for all persons to stay in the environment of heavy foul specially the foul smell of dead body but this Witness has not stated that he has not entered in to the house of the appellant and has not seen things which was found inside the !house including the buried dead u . body of the deceased covered with soil and rice bran. Therevidence‘ of both the Witnesses inspire confidence and trustworthy that key of the lock of house of the appellant was in possession of the appellant and appellant produced the key of the lock. Lock was opened with the help of the key produced by the appellant and when they entered inside the house they found undergarments of the appellant, Kudali, Rapa, blood stained soil, blood stained wall, blood stained wood, buried dead body of the deceased Shanti Bai a covered with soil and rice bran. a. 27. As argued by the counsel for the defence house was not in exclusive possession of the appellant any liability cannot be fastened only upon the appellant in case of joint possession liability cannot be fastened only upon one person but in the present case evidence of PWll Hariram, brother of the deceased clearly reveals that when he knocked the door of the appellant at that time door was closed inside. After 15 minutes appellant came near this Witness, he was not normal and was sweaty: He offered explanation that his wife had fled since last 3 days and he has sent his children to his uncle it shows on that day the house was in exclusive possession of the appellant: This is not the case of the defence that house was locked by other persons and V5 appellant has received the key from another person or appellant has locked the house while his children, mother and other relative were inside the house therefore, it is difficult to hold that during the course of incident the persons were also in possession of the house interalia only the inference would be legal possession that appellant alone was in possession of the house which he had locked and the key was in his pOSS6SSlon. On 6/9/91 at night according to the evidence of PW13 a Vishwas Chandrakar, Assistant Sub Inspector which was camping near the house of the appellant but he was not present in his house. On second day early morning he was found in railway station one kilometer away from the place >of'.\incident. Appellant was owner of the house key of the room was in his possession it could be his natural conduct to Stay in his house but in stead of staying and passing the night in his house he has passed the night out of his house and not in the house of any other person, these conduct also corroborated the fact that appellant was a person who has locked his house and he was in exclusive possession of the house. In the present case PW2 Laxminarayan Sahu also deposed that appellant has made extra judicial § . confession before him but in Para —9 of his cross eXarQination he has admitted that language of the appellant was not clear, he was not able to understand that what appellant told him because he was under intoxication sound were not clear but he understand only the fact that appellant has said that he has committed the murder of his wife this is a case of retracted extra judicial confession to PW2 Laxminarayan Sahu. PW2 Laxminarayan Sahu has not stated anything that why appellant made such a confession to him whether there was previous relation between them up to the extent of internal confidence to protect the appellant, it appears that the present witness was not very Close or even close to the appellant and appellantwas under intoxication in these circumstances as held in case of Sakharam Shankar Bansode v. State of Maharashtra, State of Raiasthan v. Kashi