9‘1 IilGI-I COURT QE CHEATTISGARH AT BILASEUE APPEAL UIS 375.12} OF THE CRIMINAL PROCEDURE CODE, 1973. Presentz- Shri N.K. Chatterjee, Advocate for the appellant. Shri Neeraj Mehtg P.L. for the State/respondent. JUDGEMENT {Passed on 05! 1212011) 'The following judgment of the Court was passed bV T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 22/11/2006 passed by Sessions Judge, Korba District Korba C.G. in Sessions Trial No. 35/2005 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of Abhijeet Devnath and concealing the evidence of DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. RANGNATH CHANDRAKAR, JJ. \ CRIMINAL APPEAL N0. 09/07 APPELLANT Sevak Das Panka, son of Shri In jail Mangl Das Panka, aged about 27 waits, resident of Dhadhari, RS. Baradwar, DiStt. Janjgir- presently resided at Dhelwadeeh, RS. Katghora, presentiy resided at Banki Mongra Gajara Basti, (S; Thana Banld Mongra Distt. Korba (CG). RESPONDENT The State of Chhattisgarh, through the Police Station Katghora, Distt. Korba (C.G.). criminal case, convicted the appellant under SectionS 302 8r, 201 of the Indian Penal Code and sentenced impn‘sonment for life and fme of Rs. 1000/— in default of payment of tine amount additional rigorous imprisonment for 6 months and rigorous imprisonment for 3 years and fme of Rs. SOO/a in default of payment of fine amount additional rigorous imprisonment for 3 months. Conviction is impugned on the ground that Without any iota of evidence sufficient for conviction of appellant Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the prosecution on 16/ 12/2004 Abhijeet Devnath (since deceased) left his house, he did not come back to his house, his mother PW 1 Smt. Seema Devnath informed her elder son PW2 Vishwajeet Devnath by telephone, PW2 Vishwajeet Devnath came to the house of Smt‘ Seema Devnath then he searched about his brother, he intimated Police and he along with friends of Abhijeet Devnath, proceeded for searching Abhijeet Devnath. During search, PW5 Janrel Singh owner of partner of cable, informed PW2 Vishwajeet Devnath that he is suspecting upon appellant thereafter he brought appellant before him, being asked, appellant made confession then they took him into Police Station where he was interrogated by Police then he made discloser statement of dead body, mobile, dagger, motorcycle, Key of motorcycle & Fullpant Vide EX. P—11. On 17/ 12/2004 on the basis of discloser statement, they took appellant to Dhelwadeeh forest from where dead body of Abhijeet Devnath was recovered at his instance vide Ex. P-Z. After summoning the Witnesses vide Ex. P—4, inquest over the dead body o'f Abhijeet Devnath was prepared vide Ex. P- 5. Blood stained and plain soil were recovered from the spot vide Ex. P—7. Shoes and mobile of the Abhijeet Devnath were recovered at the instance of appellant vide Ex. P-S. Spot map was prepared vide Ex. P— 10. On the basis of missing report vide Ex. P-l, Rojnamcha was recorded vide Ex. P—29C. Marg intimation was recorded vide Exs. P—2 1, P—2 1C, P-22. Dehatinalishi was recorded vide EX.P— 19. First Information Report was lodged vide Exs. P-QO & P—25. Appellant was examined by doctor vide Ex. P—23 and found three injuries. Dead body of Abhijeet Devnath was sent for autopsy to Primary Heath Center, Banki Mongra vide Ex. P~ 17A Where PW6 Dr. RS. Kanwar conducted autopsy vide Ex. P- 17 and found following injuries:- 7 Punctured wound of 2V2 x 2 x c.m. over right side of the chest. /K{" (ii) Stab wound of 21/12 X 2 x 10 c.m. over middle of the chest. (iii) Stab woundpf 21/2 X 2 x 8 c.m. over chest. (iv) Upper part of the lungs was punctured. Cut fracture of 3rd rib. (vi) Penetrating wound of 21/2 x 1V2 x 2% c.m. over left side of the chest. (vii) Penetrating wound of 2% x 2 x 5 c.1n. over J abdomen. ‘ (viii) Lop of liver was found fractured. (ix) Penetrating wound of 2V2 x 1V2 X 2V2 c.m. it over abdomen. (x) Penetrating wound of 2.25 x 1 x 2 c.1n. over right side of the abdomen. (xi) Penetrating wound of 2.25 X 1 X 2 c.m. over left side of the abdomen. (xii) Incised wound of 21/2 X 11/2 X 2 c.m. over right renal area. (xiii) Incised wound of 2.5 X 1.5 X 1 c.m. over right side of the back. (xiv) Incised wound of 5 x 2 x 1 c.m. over right cheek. (xv) Incised wound of 7 X 2 X 1 c.m. over right wrist; (xvi) Incised wound of 9 x 1/2 x 1A c.m. over left palm. (xvii) Incised wound of 5 X 1.5 X 1 c.m. over right index finger. (xvm Incised wound of 1 x 1 x 1 c.m. over penis. é?) 7h(. (xix) Total 37 injuries were found. Mode of death was shock due internal hemorrhage. TK‘. 4. Sealed clothes of the deceased Abhijeet Devnath was seized Vide Ex. P—9. Dagger and key of motorcycle were seized at the instance of appellant vide Ex. P—12. F‘ullpant and shirt were seized at the instance of appellant vide Ex. P— 13‘ One motorcycle was seized vide Ex. P— 14. Clothes of appellant was seized vide Ex. P- 15. Seized articles were sent for chemical examination and presence of blood over clothes of appellant and dagger seized from the appellant were confirmed vide Ex. P—27. 5. 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 First Class, Katghora who in turn committed the case to the Court of Sessions, Korba. 6. In order to prove the guilt of the appellant prosecution examined as many as 19 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. 7. After affording an opportunity of hearing to the parties, learned Sessions Judge Korba, District Korba, C.G. has convicted and sentenced the appellant as aforementioned. @ Mr. N.K. Chatteljee, Advocate for the appellant and Mr. Neeraj Mehta, P.L. for the State/respondent are heard. Judgment impugned and record of the Court below perused. Learned counsel for the appellant vehemently argued that conviction is based on circumstantial evidence especially on the basis of extra judicial confession made by appellant before PW2 Vishwajeet Devnath but evidence of'PW2 Vishwajeet Devnath does not inspire confidence and trustworthy. As per evidence of prosecution witnesses, pressure and torture has been created upon appellant for extra judicial confession and virtually, appellant has made confession before the Police/in presence of Police which is not admissible in accordance with Sections 25 8s 26 of the Indian Evidence Act. Learned counsel for the appellant further argued that prosecution has not completed chain of circumstances which may sufficient to point out the guilt of appellant and exclude the possibility of other persons and also exclude innocence of appellant. On the other hand, learned P.L. for the respondent/State opposed the criminal appeal and argued that in the present case, prosecution has collected circumstantial evidence that dead body of *k—I w Abhijeet Devnath has been recovered on the basis; of confessional statement of appellant made to Police. Appellant has not offered any explanation that how he knows that dead body of Abhijeet Devnath was hidden in forest. In absence of any explanation, only inference would be possible that appellant was author of crime and he concealed the evidence of criminal case. Oourt below has rightly convicted and sentenced the appellant as aforementioned. 12. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13. In the present case, homicidal death as a result of fatal injury found over vital part of Abhijeet Devnath has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW6 Dr. RS. Kanwar 8r, autopsy report Ex. P- 17 and death of Abhijeet Devnath was homicidal in nature. As regard the complicity of appellant in crime n i question is concerned, conviction of the appellant is substantially based on circumstantial evidence. Prosecution has tried to prove the following circumstances: — @ (n I )’ 6 (iii) (1V) ‘ basis of 1' AIR 1996 SC 3390 ‘. (1996) 10 SCC 193 \ J Appellant was having some relation with. Abhijeet Devnath. Dead body of Abhijeet Devnath has been recovered at the instance of i.e. on the basis of confessional statement of appellant made to Police. Mobile phone and other articles of Abhijeet Devnath have been recovered at the instance of appellant. Appellant has not onered any explanation as to knowledge of aforesaid facts. In order to convict accused on the circumstantial evidence as held in case of C. Changa Raddy v. State of A.P.1, in case of conviction based on circumstantial evidence, the prosecution is required to adduce evidence and such evidence must satisfymg the following tests: - i. the circumstances from which an inference of guilt is sought to be drawn, must becogently and firmly established; 11 those circumstances should of a definite tendency uneningly poinu‘ng towards the guilt of the accused; 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 iv. 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. In the present case, as per evidence of PW3 Shikha Devnath, Wife of Abhijeet Devnath, Abhijeet Devnath was running disk cable. 'On 16/ 12/2004, he went houses for collecting rents of cable connection but he did not return back to his house then at about 11:50 P.M., she telephoned on his mobile but he did not reply then he telephoned her mother 8E brother Dilip Banerjee, they also tried to contaet with A‘bhijeet Devnath by cell phone but they did not succeed then his brother Dilip Banerjee came to her house. She also telephoned to herelder brother«in—1aw PW2 Vishwajeet Devnath, he also tried to contact. Dilip Baneijee went for search of Abhijeet Devnath. Considering the conduct and activity of appellant, he doubted upon activity of appellant. Friends of Abhijeet Devnath were also searching him. PWS Janrel Singh, partner of cable service suspected upon appellant and he produced appellant before PW2 Vishwajeet Devnath, after some pressure 85 force used upon appellant, he made extrajudicial confession that he has killed Abhijeet Devnath then they produced appellant before Police “71‘ 7? Station where he made discloser statement of dead body and other articlos. 17. As per evidence of'PW2 Vishwajeet Devnath, he also flled written missing report Ex. P~ l, on the basis of Ex. P—l, Ex. P—29C was recorded. As per evidence of PW2 Vishwajeet Demath, appellant made discloser statement about dead b‘ody, weapon, motorcycle & clothes of Abhijeet Devnath then on second day morning, he along with witnesses, Police OITicers and appellant went to Badaimaar Forest, Dhelwadeeh from Where appellant produced dead body of Abhijeet Devnath which was hidden in shrubs. Police prepared recovery Panchnama EX. P—2. Police also prepared inquest over the dead body EX. P—5, he has supported the recovery of mobile phone and other articles of Abhijeet Devnath at the instance of appellant. PWS Janrel Singh witness of memorandum and recovery is not supported the case of the prosecution and prosecution has declared him hostile. He has admitted signature over documents but has not explained that Why he has signed over such documents. Evidence of these witnesses reveal that he is concealing truth. another memorandum witness PW19 Hansraj Pandey has substantially corroborated the memorandum and recovery. @ PW 17 Nasar Siddiqui, Investigating Oiflcer has deposed that appellant has made discloser statement of dead body and other articles Ex. P—ll, at the instance of appellant he has recovered dead body Ex. P-2 and also recovered other articles i.e. mobile phone 85 motorcycle key. Defence has cross-examined these witnesses at length but they have speciiicany and categorically deposed in their evidence that appellant has made discloser statement before Police relating to dead body, mobile phone, motorcycle, dagger and other articles Ex. P-ll, same has been recovered at the instance of appellant Exs. P—2, P-7, P-8, P— 12, P—l3 85 P—14. Dead body was hidden in forest under the shrubs, which was not visible, nobody has seen the body prior to discloser statement of appellant. ln these circumstances, appellant was under obligation to olfer an explanation that how he came to know about presence of dead body at foxest that too in hidden position or who has hidden the dead body. In absence of any explanation, only inference would be possible that appellant was author of crime, he has caused homicidal death of Abhijeet Devnath and concealed/hidden the dead body in the forest. Aforesaid evidence i.e. hidden murdered dead body of Abhijeet Devnath and other articles have been recovered at the instance of appellant is if considered @ together then as held in case of C. Changa Reddy (Supra) only inference would be possible that appellant has caused homicidal death of Abhijeet Devnath with intent to cause his death and has hidden dead body of Abhijeet Devnath with intent to concealing the evidence of criminal case. After appreciating the evidence available on record, learned Sessions Judge, Korba, District Korba C.G. has rightly convicted and sentenced the appellant as aforementioned. On close scrutiny of the evidence, we do not iind any illegality or iniirmity in the judgment of conviction and order of sentence. Consequently, criminal appeal is devoid of merits, same is liable to be dismissed and is it " '1 hereby dismissed. l i Sd/- sd/~ f ' R.N. Chandrakar T.P.SHARMA 3 ’ . Judge ,. Judge