HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.602 of 2006 Raju @ Rajkumar Patel - Versys - The State of Chhattisgarh JUDGMENT FOR CONSIDERATION T.P. Sharma Judge HON'BLE IVIR. JUSTICE R.L. JHANWAR -—^-r^C^ Sd/- R.L. Jhanwar Judge th Post for pronouncement of iudament on 17"' February, 2010 Sd/- ^••"A .-^' ^ n HIGH COURT OF CHHATTISGARH, BILASPUR DIVIS10N BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT: (In Jail) Criminal Aopeal No.602 of 2006 Raju @ Rajkumar Patel S/o Ghasiyaram, aged about 22 years, R/o Near Kamar Takij, Bada Bazar, Mungeli, P.S. Mungeli, Distt. Bilaspur (C.G.) Versus The State of Chhattisgarh Through P.S. Lormi, Distt. Bilaspur (C.G.) RESPONDENT: {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mrs. Kiran Jain, counsel forthe appellant. Mr. RavindraAgrawal, Panel Lawyerforthe State/respondent. JUDGMENT (17th February, 2010) The followina iudament ofthe.Coyrt was passed bv T.P. Sharma,J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 31-7-2006 passed by the 2" Additional Sessions Judge (F.T.C.), Mungeli, in Sessions Trial No.356/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Kallu @ Munna @ Shriram Soni and commission oftheft of Rs.1,130/-, convicted theappellant under Sections 302 & 379 of the I.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further undergo R.l. for two months and to undergo R.l. for six months, respectively. 2. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction, the Court below has convicted & sentenced the appellant as aforementioned and thereby committed illegality. '^SiK' J\ .. ^'/' 2 3. Case of the prosecution, in brief, is that on 11-6-2005 at Bazaar Para, Village Khudia, Tahsil Mungeli, Distt. Bilaspur, as usual Kallu @ Munna @ Shriram Soni (since deceased) came to Khudia market in a bullock cart along with appellant Raju @ Rajkumar Patel & his servant Rajesh Patel, to sell pots. After selling pots in the market, Kallu @ Munna stayed at the market inside a temporary tent. At about 8 p.m. Kallu @ Munna and his servant Rajesh Patel consumed liquor, appellant Raju @ Rajkumar Patel was also present but he did not consume liquor. Appellant Raju demanded money from deceased Kallu @ Munna for purchasing liquor which the deceased refused on account of infection on the leg of the appellant and directed the appellant not to drink liquor. Some altercation took place between the deceased & the appellant whereupon the deceased gave money to the appellant for purchasing liquor. The appellant went topurchase liquor and came with liquor. The appellant & the deceased consumed liquor. Servant of the deceased Rajesh Patel went for sleep. In the intervening night of 11-6-2005 & 12- 6-2005, the deceased & the appellant were sitting together and they consumed liquor. On second day morning, the appellant was not present in the tent and the dead body of Kallu @ Munna was lying on his bed in injured condition. Servant of deceased Kallu @ Munna i.e. Rajesh Patel (PW-9) went to Police Station Lormi and lodged F.1.R. vide Ex.P-15 & merg intimation vide Ex.P-16. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-1, inquest over the dead body of deceased Kallu @ Munna was prepared vide Ex.P-2. Broken boxes & account books were seized from near Rajiv Gandhi dam vide Ex.P-5. Dead body was sent for autopsy to Community Health Centre, Lormi vide Ex.P-12A. Autopsy was '••^ ^,'L conducted by Dr. Sagar Shukla (PW-7) vide Ex.P-12 who found following injuries: - (1) Fracture of left mandible bone. (2) Lacerated wound of 3 cms. x 1 cm. x 1 cm. over left parietal region including fracture of bone beneath the injury. (3) Lacerated wound of 2 cms. x 1 cm. x 1 cm. over left frontal region including fracture of bone beneath the injury. (4) Fracture of right index finger. Extra-dural haemorrhage was found in brain and the death was as a result of head injury. 4. On 13-6-2005 accused Raju was taken into custody, he made discloser statement of crowbar vide Ex.P-3, he produced the crowbar after taking out the same from inside a bag kept in the bullock cart and the same was seized from the accused vide Ex.P-4. The appellant also made discloser statement of Rs.600/- & Rs.200/- vide Ex. P-7 and the same were recovered from Kripal & Sanjeev Gupta at the instance of the appellant vide Exs.P-8 & P-9, respectively. The crowbar was examined by Dr. Sagar Shukla (PW-7) vide Ex.P-13 who found that the injuries found over the dead body of the deceased may be caused by the crowbar which he has examined. After autopsy, sealed clothes of the deceased were recovered vide Ex.P-15. Spot map was prepared by the Investigating Officer vide Ex.P-23. Patwari also prepared the spot map vide Ex.P-17. Blood stained gamcha and local bed sheet (katharf) were recovered from the spot vide Ex.P-20. Seized articles were sent for chemical examination to the F.S.L. vide Ex.P-24 and presence of blood over the crowbar was confirmed by the F.S.L. vide Ex.P-26. Serologist has confirmed human blood on the crowbar (sabbal) vide Ex.P-27. 5. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed 4 ?/ before the Judicial Magistrate First Class, Mungeli who in turn, committed the case to the Court of Sessions, Bilaspur, from where the 2 Additional Sessions Judge (F.T.C.), Mungeli, received the case on transferfortrial. 6. In order to prove the guilt of the appellant, the prosecution has examined as many as sixteen witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant in the aforesaid manner. 8. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 9. Learned counsel for the appellant vehemently argued that the case is based on circumstantial evidence and the prosecution has not proved the complete chain of circumstances for providing the guilt of the appellant. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the appellant is the person who has committed the murder of the deceased and has stolen the money. Suspicion howsoever grave cannot take the place of legal proof and only on the ground that the offence committed is heinous, liability cannot be fastened upon the appellant without any clinching and credible evidence. Learned counsel placed reliance in the matter of Dilbodh Nagesia v. State of M.P. (now Chhattisgarh) in which this Court has held that last seen theory will come into play where the time-gap between the point of 1 2004 (2) ANJ (C.G.) 33 .,,-fySFii^s^ ^ .^'C°^Q: ~)\ :8"SB&. ti -^. '.^ /V \>.^^ ^3<'^</ time when the accused and the deceased were seen last alive together and when the deceased is found dead is so small. 10.0n the other hand, learned State counsel opposed the appeal and submitted that the evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant is the person who has committed the offence. Although conviction is based on circumstantial evidence, but the circumstances proved against the appellant are sufficient for drawing inference that the appellant has committed the offence. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12.1n the present case, homicidal death of deceased Kallu @ Munna as a result of fatal injuries has not been substantially disputed by the appellant, otherwise, also established by the evidence of Dr. Sagar Shukla (PW-7) and autopsy report Ex.P-12 which reveal that fatal injuries including multiple fracture of head were found over the body of the deceased and death was homicidal in nature. 13.As regards complicity ofthe appellant in the crime in question, conviction is based on the following circumstances: - (1) The deceased & the appellant were present in a tent at the time of incident and second day morning, dead body ofthe deceased was found in injured condition. (2) The appellant was present at night along with the deceased but was not present at the morning. (3)The appellant had quarrelled with the deceased before the incident. (4) The appellant made confessional statement of discovery of weapon (crowbar). (5) Crowbar stained with human blood was recovered at the instance oftheappellant. x (6) The appellant has not offered any explanation that how the incident took place and how he knew that the crow bar was hidden inside the bag (bora). 14.Rajesh Patel (PW-9) - servant of deceased Kallu @ Munna has categorically deposed that on the date of incident he along with deceased Kallu @ Munna and the appellant came to Khudia market for selling pots. One day prior to the market, at about 7.30 p.m. the appellant demanded money from the deceased and lastly the deceased gave Rs.10/- to the appellant. Again after taking dinner, the deceased gave Rs.10/- to the appellant for bringing liquor, the appellant brought liquor, thereafter, the appellant & the deceased both consumed liquor and the deceased abused the appellant. He has further deposed that he went for sleep under the bullock cart which was stationed, the accused went for sleep upon the bullock cart and second day morning, when he woke up, he saw the dead body of Kallu @ Munna over the cot, his body was covered and blood stains were found over chest. He called the deceased, but he did not receive any response, one person who was standing nearby called him and asked what happened, then he advised to go to the Panchayat Secretary and inform the incident on which he went to Panchayat Secretary Dhruv Kumar Tiwari (PW-1) to whom he informed about the incident. The Panchayat Secretary came with him and telephoned to the Police Station. He lodged the report to Police Station Lormi vide Ex.P-15 and merg vide Ex.P-16. The appellant was not present in the tent. Gallapeti, the temporary chest for keeping money, which was kept in the bullock cart, was also missing. 15.Dhruv Kumar Tiwari (PW-1) - Panchayat Secretary has corroborated second part of the evidence of Rajesh Patel (PW-9) that servant of the deceased came to him and informed about the death of the deceased. "••/ r': Lf Santosh Kumar Dubey (PW-2) & Gangadhar Pandey (PW-4) have also corroborated second part ofthe evidence of Rajesh Patel (PW-9). 16.Defence has cross-examined Rajesh Patel (PW-9) at length and in his detailed cross-examination, he has deposed in para 10 of his evidence that the Panchayat Secretary has lodged report and even till today he does not know who has killed deceased Kallu @ Munna, because he has not seen any person causing injury to deceased Kallu @ Munna. He has explained that he has not mentioned the name of the appellant as the suspect and he cannot say how the police has written the same in the F.1.R. 17.Defence has cross-examined Rajesh Patel (PW-9) in detail, but the fact remains unchallenged that the appellant, this witness (PW-9) & the deceased were present in the tent to attend the market at night, some quarrel took place between the deceased & the appellant and next day morning, Kallu @ Munna (since deceased) was found dead in injured condition, the appellant was not present in the tent and the temporary chest for keeping money was also missing from the bullock cart. Although the tent was not surrounded by walls and was not permanent in nature, but it is not disputed that three persons namely Kallu @ Munna (since deceased), Rajesh Patel (PW-9) & appellant Raju @ Rajkumar Patel were present in the tent, they were required to stay there and second day morning Kallu @ Munna was found dead in injured condition, Rajesh Patel (PW-9) was present there who has immediately intimated about the incident to the Panchayat Secretary and also lodged the report, but the appellant who was required to present in the tent was not present in the tent. This witness has offered explanation that when he woke up in the morning he saw the dead body of the deceased and the c '•*'"—e-O / appellant was absent. However, the appellant herein has not offered any explanation. 18.Virtually, the offence took place in the tent where only three persons were present, one person was found dead, second person has offered explanation, but the third person i.e. the appellant has not offered any explanation. Non-offering of explanation on behalf of the appellant is strong adverse circumstance against the appellant. The evidence of Rajesh Patel (PW-9) reveals that after consumption of liquor, some altercation took place between the parties and the deceased abused the appellant. 19.The prosecution has led another set of evidence relating to recovery of weapon and the money stolen, at the instance of the appellant. Anil Tiwari (PW-16), Sub Inspector of Police who has investigated the offence, has deposed that he has prepared the memorandum Ex.P-3 of the appellant before the witnesses and seized one crow bar vide Ex.P-4. He has also seized Rs.200/- from Sanjeev Gupta and Rs.600/- from Kripal Bhoi vide Exs.P-9 & P-8, respectively. He has further deposed in para 6 of his evidence that he has seized temporary chest (box for keeping money) with a broken lock, another box in damaged condition and account books vide Ex.P-5. The broken box (for keeping money) and the damaged box reveal that somebody has committed the theft of money from the boxes and had damaged/broken the boxes. The factum of recovery of boxes and account books near the Khudia dam (Rajiv Gandhi dam) is well corroborated by the evidence of Dhruv Kumar Tiwari (PW-1) - Panchayat Secretary in paras 5 & 14 and by Santosh Kumar Dubey (PW-2) in paras 3 & 4. Dhruv Kumar Tiwari (PW-1) has not supported the memorandum and recovery of money and the prosecution has declared him hostile. '^, W"SS^^ (. . ^-^-^ 20.Ram Kumar Kashyap @ Ramu (PW-3) has supported the second memorandum Ex.P-7 and recovery of Rs.600/- & 200/- on the basis of the second memorandum vide Exs.P-8 & P-9, respectively, from two persons. The factumof recovery of money from two persons namely, Sanjeev Gupta & Kripal Bhoi and the memorandum Ex.P-7 have been supported by Lochan Singh Thakur (PW-5). 21.1n the present case, Rs.600/- & Rs.200/- have been recovered from two persons at the instance of the appellant on the basis of the confessional statement Ex. P-7, but the prosecution has failed to adduce any evidence to connect the money recovered fromSanjeev Gupta & Kripal Bhoi with the money stolen from the boxes of the deceased. Even otherwise, in absence of any specific identification marks viz., number or seal it is difficult to identify the currency notes that the currency notes recovered from the person have been stolen or have been taken from any other person or from his house. Therefore, the confessional statement of discovery of money is of no use in the present case. 22.The weapon of offence, crow bar, which was kept inside a bag in the bullock cart, has been recovered at the instance of the appellant vide Ex.P-4. The prosecution witnesses have not stated that they were having knowledge of the crow bar that the same has been kept in a bag inside the bullock cart. The appellant is not owner of the bullock cart and the bullock cart was owned by the deceased. Normally, it was not possible for the appellant to know that some crow bar has been kept in a bag inside the bullock cari: that too stained with human blood. This shows that the appellant was having knowledge that the crow bar stained with human blood was hidden in a bag (bora) inside the bullock cart of the deceased. The appellant has not offered any explanation that how /• c / ^ ^ ^/ ^i) »~. t; ^•--^ "-''•^."'^^ \ 10 he knew the aforesaid fact. In absence of any explanation it may inferred that the appellant has hidden the crow bar inside the bag (bora). 23. In the present case, following circumstances have been proved by the prosecution against the appellant: - (1)The appellant, Rajesh Patel (PW-9) & deceased Kallu @ Munna were staying in a local tent at the time of incident in the market area. (2)0n 11-6-2005 at night some altercation took place between the appellant & the deceased and the dead body of deceased Kallu @ Munna was found in injured condition on his cot. (3) The appellant who was sleeping on the bullock cart at night was not pr6sent on second day morning. (4) Another person who was sleeping under the bullock cart Rajesh Patel (PW-9) has offered satisfactory explanation that when he woke up he saw the dead body of the deceased in injured condition and the appellant was not present. (5) The appellant has not offered any explanation that how the incident took place, how the deceased sustained injuries and how he died. (6) Crow bar stained with human blood hidden in a bag inside the bullock cart of the deceased was recovered at the instance of the appellant. (7) The appellant has not offered any explanation that he knew that crow bar stained with human blood was hidden in a bag inside the bullock cart, that too ofthe deceased. 24. If the aforesaid circumstances are considered together, only inference would be possible that the appellant was the person who has committed the homicidal death ofthe deceased. 25.The present case is not based on last seen theory, therefore, the matter of Dilbodh (supra) relied upon by learned counsel for the appellant is distinguishable on facts to that ofthe present case. / 11 26. In case of conviction based on circumstantial evidence, as held by the Apex Court in the matter of C. Changa Reddy v. State of A.P.2, the prosecution is required to adduce evidence and such evidence must satisfying the following tests: - (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should of a definite tendency unerringly pointing towards the guilt ofthe accused; (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 27. In the present case, the evidence adduced on behalf of the prosecution satisfies the aforesaid tests. 28.After appreciating the evidence available on record, learned Additional Sessions Judge has convicted the appellant under Section 302 of the I.P.C. and also under Section 379 of the I.P.C., but the evidence relating to commission of theft of property against the appellant is not of clinching nature sufficient for warranting conviction. 29.0n close scrutiny of evidence, we are of the considered view that conviction of the appellant under Section 302 of the I.P.C. is well founded and sustainable under the law, however, conviction of the appellant under Section 379 of the I.P.C. is not well founded and not sustainable under the law. / AIR 1996 SC 3390 : (1996) 10 SCC 193 12 SO.Consequently, the appeal is partly allowed. Conviction & sentences of the appellant under Section 302 of the I.P.C. are hereby maintained. However, conviction & sentence of the appellant under Section 379 of the I.P.C. are hereby set aside and the appellant is acquitted of the charge of commission of theft punishable under Section 379 of the I.P.C. Sd/- '•Jf Sharma Judge Sd/- R.L. Jhanwar Judge Scma