HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: dram: HON’BLE MR.T.P.SARMA & HON’BLE MR.R.L.JHANWAR, JJ. riminal Aggeal No.572 of 20 C 04 iita Si Vn ngh Ver§us State of Chhattisgarh ‘ Criminal Agpeal No.559 o Anil Sar hma Ves rus Stae of Cattisgarh t hh JUDGMET FOR CONSIDERATIWH Sdl— T. P. Sharma Judge 30/2/2011 Sd/- \ ‘ \ R.L. Jhanwar’ ‘ Judge r;W\, "10/2/261?’ Ho’be MrRawa nl ..L.Jhnr, J. ' \ P f proon f e 1 ' ost or nucement o th Judgment on : 10/2/201 Sd/- T.P. Sharma C H f 2008 N \ ‘ \ I :\ H COURT OF CHHATTISGARH AT BILASPUR Division Bench: Coram: H'on’b' Mr..P.SHARMA Hon’ble Mr.R.L.JHANWAR,'J. Criina Appeal No.572 of 2004 EI APPLLANT ‘ Vinita Singh aged 22 years, Wd/o (In Jaii Ashok Kumar Singh R/o. Bishunpur, P.S. Ambikapur, District Surgua (C.G.) Véisus ,tate of hhatsgarh through V S.H70. Kartala District Korba (C.G.) And ‘Criminal Appeal No.559 of 2008 . RESPbNDENT i$f 4 PPELL AANT ‘ Anil Sharma S/o Jai Narayan Sharm (In Jail) a Aged abo'ut 22 years, Resident at : Bade Banka, P.S. : Katghora, Dt.Korba Versus tate ofkk Chattisgarh, Through: Offcer—in Charge Police Station — Kartala District Korba (CG) (APL UNDER SECTION 374(2) OF THE CODE OF CRIMIN PROCEDURE 1973) ESPONDENT Prent: V I Mr.H.V.Sharma, counsel for the appeilant in Cr.A.No.572/2004. Mr Abhay Tiwari counsel for the appel'ant In CrA No 559/200 Mr D K Gwalre Govt Advocate wrth Mr Sanjeev Kumar Agrawal Panel Lawyer for the State/respondent GM Delivered on 10th February, 201 1) The Udgment of the Court was delivered by T.P.Sharma, J.:- j Criminal Appeal Nos.572/2004 & 559/2008 filed on behalf of appellants Vinita Singh and Anil Sharma against the judgment of conviction and rder of sentence dated 29.3.2004 passed by the Additional Sessions Judge, Korba in Sessions Trial No.356/2003 are being disposed of by this common judgment. '—’ii”h' HIG Ie T & J ml ) j S Cti S h PEAS AL R es 8 JUDENT ( . f l i o ‘ the aforesaid wo ppes, the applants av challenged Igality & propriety of the judgment of conviction and order of sentence dated 29.3.2004 passed by the Additional Sessions Judge, Korba in Sessions Trial No.356/2003, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting” to‘murder of Ashok Singh by appellant Anil v Sharma in sharing common intention with co-appellant Vinita‘ Singh under conspiracy, concealing evidence of criminal case and dishonest misappropriation of property possessed by the deceased at the time of his death conVIcted appellant Anil Sharma under Sections 302 120 B 201‘§ 404 of the I.P.C. and appellant Vinita Singh under Sections 302/34, 120—& 201/34 & 404 of the l.P.C. and sentenced them undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine Hi A to further undergo S.l. for three months, imprisonment for life and fine of Rs.100/—, in default of payment offine to further undergo S.l. for fifteen days, R.l. for three years and fine of Rs.300/-, in default‘ofw payment of fine to further undergo S.l. for one month and R.l. for three years and tine of Rs.300/—. Conviction is impugned on the ground that without there being any iota of eVIdence the trial Court has conVIcted and sentenced the appellants as aforementioned and thereby committed illegality As per case of the prosecution, appellant Vinita Singh, wife of deceased Ashok Singh was residing with Ashok Singh in his matrimonial house at village Gangapur, appellant Vinita Singh was having love affair with colappellant Anil Sharma and Anil Sharma used“ to visit the house of appellant Vinita Singh frequently. Both the appellants entered into an illegal agreement and in conspiracy to kill deceased Ashok Singh and in furtherance of the aforesaid conspiracy on 27.1.2003 at about 10 p.m. appellant Anil Sharma took deceased Ashok Singh in his motor-cycle from the house of appellant Vinita Singh, on a way appellant Anil Sharma stopped motor cycle and caused fatal injuries to Ashok Singh by knife thereafter he dragged body of Ashok Singh be5ide the road and With a View to destroy eVIdence of criminal case under consiracy With appellant Vinita Sinh . p g By t aal el he e ’ poured petrol over his face and burn him badly, thereafter, both the“ H.‘ appellants sold motor cycle of the deceased. In furtherance of conspiracy appellant Vinita Singh went to the house of Girijanand‘Singh (PW-3) at Ambikapur a'nd informed him that Ashok Singh has gone SomeWhere by motor cycle but he did not return back from 27‘“ January, 2003. Girijanand Singh (PW—3) informed the same thing to father of deceased Ashok Singh i.e. Laxman Singh (PW-1). Laxman Singh made search of his son, then went to Poiice Station Jainagar and lodged missing report. He also Visited the house of appellant Vinita Singh whom Vinita Singh told that on 27.1.2003 at about 6 a.m. Ashok Siggh left the house by motor Cycle, thereafter he did not returnback.“ " Missing report was lodged on 11.4.2003 vide EXP/14. On 29.1.2003 ie just two days after the incident burnt dead body of one male was seen between ‘Chachlya and Toulipali Rupdas (PW—8) Intimated the merg to Police Station Kartala Vlde Ex P/6 Investigating officer after, summoning the Witnesses prepared panchnama of dead body of unknown person vide Ex.P/7 and described symptom found over dead body which reveals that injury by sharp edged weapon'was found over neck, chest, elbowjoint, thigh and different part of the body. Dead body was burnt. Bloodstainedand plain soil, pair of shoe, socks, half burnt sweater and other articles were seized from the spot vide EXP/9. Photograph of dead body was taken vide Article 10. Dead body was sent for autopsy to Primary Health Centre, Kartala‘vide' Ex.P/27. Dr.S.A.Siddique (PW-2) conducted gautopsy vide Ex.P/2 and found following injuries/symptoms, (i) Body was burnt up to chest (ii) Thirteen injuries were found’bver the body. (iii) Injures were found over neck, chin, left shoulder, right leg and back. injuries were caused by sharp edged weapon and death was homicidal. 4 in nature. Kartala police was investigated the offence relating to murder 20f unknown person and F.l.R. Ex.P/18 was registered. During the course of investigation Jainagar police informed Kartala Police relating to the appellants, then clothes and articles recovered from the spot were placed for identification. Laxman Singh (PW-1) identified the aforesaid clothes and articles as clothes and articles of Ashok Singh vide Ex.P/1. Accused Anil Sharma was taken into custody, he made disclosure statement of motor cycle and knife vide EXP/13. Knife was seized vide EX.P/14_at the instance of appellant Anil Sharma. Yamha Crux motor cycle No.CG15-2191 was seized at the instance of appellant AnilH, Sharma from Dakeshwar Kumar vide EXP/16 along with registration and insurance as Articles 8 and 9. Hotel register was seized vide EXP/11. ”Cooy of entry is Article 7. Spot panchnama was prepared vide EXP/19. Thre accused were arrested inclding Jainaraan harm ide rest eo xs./20, P/21 /2. On 16.3.2003 oth apellan wen o rera Kuma -1, w run Ao rs hp, o epi ‘am 'r o cycl ppellant nil ar re lf Asho h and reque fr rp m cl fter re ch mtr yl applnts sown th nten t hy a ell thr otor cle. Ear nd o. a uma ., sha Kumar (P-3) h shown is intention t urchs otor c, then Snd Ku (PW—) nforme Dakesar Kumr (P—) hat th resn appellnt i tending sell his otor-ycl. ettion too place t rali relatg purchase mor cyc and nly present apelant Anil har wo introduce hisel s ho S ent t Bl r illy aged s oo cycle r cderat R1,5-. kshw r PW-3) immdiately pa Rs.15 t prentt A ma d amn as a to p af obainln Sigue f f vhice rom RTO Mor c as hed Dr u (PW13) The" W ‘ I to ycle w and over to akeshwa Kmar - alnts were qr ome at o Bus Sd for prOn n ppela rewed to c Krba tan Vidig Sig i ppers ha Ka wa equif to ma aon n a. Dakeswr umr s red pay reining mut afte obtnig red ers cum ed P/12, terea pelan dd not com s 293203 apeant A harma ag w oap Vinta Sih to Patap Le Kta her th yd til 31 3 2 the imed hat tny a amily bes eir y ro i Atic 7 S arles ere sent r chea exanaon e E P/23 nd etzed tic w fot micl miti Vid X a rene of blod as cfm over e recored ro appell , hara e E /2 e u y Sa v ar Mm EP and P2 b pts t t theshop of Sund r (PW4) ho s ut Pat So fr rairng ofYha Cux mtor e a A Shma intoducd himse as k Sing estd o eair of otor yce A pair of su oo cce ela h eir Ition tha te wnt to s ei m Cy lier. frie f Surendr Kr I.ev ‘ Dak‘ewr W1 as h o pae m cyle urera mar 14 id hw a 'W13 t e pet a s in to mce Ngoia k a Bap in to of ot le i fial pl Sma h d mf a Ask ingh w o aco whee fna they re to ell mtr fo onsiion of s.800/ Daear Kuma (1 e id OOOI- o se‘appellan nil Shar an rest out w greed ay ter tg natr o owner o the el f r ain afosai pap. Doent was xecute as EX hfter aplt i e to Bu Stand Korba. On ..0 pll nil S lon ith c-pellant i ng went r odg aghor we ey stae l 003 y nfor t e re f memr Th entr was ecrded n rle w psec o w onred knif ve fm ant r ; \ Anil Sm Vid x P4 mi l t . ~ ,nVWV’ rv" r Statements of the witnesses were recorded under Section 1‘61 of the Cr.P.C. and after completion of investigation, charge sheet was flled ’ before the Judicial Magistrate First Class, Korba, who in turn committed the case to the Court of Sessions, Korba, from where Iearned Additional Sessions Judge, Korba received the case on transfer for trial In order to prove the gullt of the accused/appetlants the prosecution has examined as many as twenty one Witnesses Accused/appellants were examined under Section 313 of the Cr P C in which they denied r the Circumstances appearing against them and pleaded innocence and false, implication in the crime in question The appellants have examined defence Witness Durg Prasad Rathiya (DW—1) who has deposed that while he was coming from Kudamura after attaining Jilla r Panchayat meeting he and Santosh Mishra were stopped inspector of Police Station Kartala to obtain Sign on papers on the pretext that they have arrested accused and have recovered knife from them, but actually they have not seen any knife. After prowding an opportunity of hearing to the parties Iearned Additional Sessmns Judge Korba conVIcted and sentenced the I appellants as aforementioned. We have heard Mr.H.V.Sharma, counsel for the appellant, in Cr.A.No.572/2004, Mr.Ab‘hay Tiwari, counsel for the appellant in ‘Cr.A.No.559/2008,_ Mr.D.K.Gwa|re,C§‘ovt.Advocate with Mr.Sanjeev Kumar Agrawal, Panel Lawyer for the State/respondent, perused the ' judgment impugned and record of the trial Court. Mr.H.V.Sharma, learned counsel‘for appellant Vinita Singh vehemently argued that after leaving of house by her husband Ashok Singh shew“ "" informed within two days to cousin brother of Ashok Singh i.e., Girijanand Singh (PW-3) who immediately informed the same to father of deceased Ashok Singh Le. Laxman Singh, but father of Ashok Singh was not serious, he has not made any search of his son. Appellant Vinita Singh was helpless. As per missing report, Laxman Singh has lo rr 0 e e tan re nhs 5 ,l,‘ ii.. dged the epot on 11.4.203, after laps of mor h the mot, ;u in these circumstances, if any help has been taken by her from co—appellant Anil Sharma, that would not constitute any offence, she - was compelled to- take assistance from other persons, in these circumstances when farnily members have not given any assistance or help even after Iapse of three-four months of missing of her husband. Learned Counsel further argued that evidence adduced on behaif of thew prosecution is even, prima facie, not sufficient for suspicious that the appeliants may have committed the offence. The prosecution has utterly failed to prove the offence beyond shadow of doubt. 10. Mr.Abhay Tiwari, learned counsel 'for appeliant Anil Sharma ‘ve‘hémentiy argued that the present appeiiant has been convicted on ’the basis of circumstantial evidence and on the ground of conspiracy and the prosecution has not collected direct evidence against him. ln order to convict‘the accused on the basis of circumstantial evidence“ ' the prosecution is required to satisfy the following circumstances, . (i) (ii) (iii) (iv) (V) 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; the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; the circumstances should be of a conclusive nature and tendency; they should e‘xclude every pOSSible hypothesis except th‘ew.‘ i‘ one to be proved; and \ 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 orderto prove conspiracy, the prosecution is required to prove that both the appellants were having sufficient time for agreement, they actually entered into agreement to commit some offence and in furtherance of such agreement they have committed some offence. As ' ii, _ per evxdence collected on behalf of the prosecution Ashok Smgh was mlssmg from his house smce 27 1 2003 one burnt & Injured dead body was found on 29.1.2003 and It was not Identlfed on the date of recovery of dead body, even as per evidence of Dr.S.A.Siddique (PW-2), body was not identifiable on account of badiy burnt condition, thereafter motor cycle has been recovered from Dakeshwar Kumar along with saie agreement Ex.P/12 which reveals that some Ashok Singh has sold the vehicle and not by appellant Vinita Singh or Anii Sharma As per record of the lodge Anil Sharma stayed in the lodge along wrth his wrfe but the prosecution has not proved the fact that appellant Anil Sharma has stayed wrth present appellant Vinita Singh and he has introduced Vinita Singh as his Wife Family does not include Wife and it includes other members of the family, even if it is presumed that after one and half months of such inCIdent of missmg or murder of Ashok Singh, if Vinita Singh has stayed With Anil Sharma who is known to her for search of her husband, then same cannot be treated as offence, especially when after informing father of the deceased by appellant Vinita Singh, father of the deceased or other relatives has not taken any action for search of Ashok Singh, in these circumstances, any assistance or help given by Anil Sharma would not constitute the offence of murder and c‘onspiracy, they have not sold motor cycle“to:"~w any person and he has not committed any offence. 11. On the other hand, learned State counsel opposed the appeals and argued that Ashok Singh (since deceased) was living with Vinita Singh. As per her husband, he lefther house on 27.1.2003 and did not return back, she has informed to Girijanand §ingh (PW—3), cousin brother of Ashok Singh within few days police has arrested her on 17 6 2003 after four and half months after leavmg the house by her husband she VISited Katghora lodge and stayed With co accused Anil Sharma she has sold motor cycle in ithe month of March, 2003 which as per her“. l, , allegation her husband has taken with him at the time of leaving his house which was not possible for her to sale such motor cycle when same was not within her possession, she has visited different places and she stayed in lodge but she has not intimated the police relating to missing of her husba se circumstances upled wi evidce iii iii @ nd. The co th en 12; In order to appreciate the arguments advanced on behalf of the parties, r We‘fYave‘examined the evidence adduced on behalf of the prosecution collected on behalf of the prosecution are sufficient for drawing “inference that both the appellants entered into conspiracy for commission of murder of Ashok Singh and in furtherance of conspiracy they, have murdered Ashok Singh and have concealed the evidence of criminai case, they have also sold motor cycle/property to Dakeshwar Kumar which was possessed by deceased Ashok Singh. These facts,” are sufficient for conviction of the appellants' as aforementioned and after appreciating the evidence available on record the trial Court has rightly convicted and sentencedthe appellants as aforementioned. :i. and defence. 13. As per evidence of Rupdas (PW—8) and Makhan Lal (PW-9) , one unknown dead body of male was lying between Chechiya and toulipali 7' \ beside the road, then Rupdas (PW-8) informed the police vide EXP/6‘.“ '~ Police prepared inquest vide 'Ex.P/7. As per Ex/P/9, bloodstained & plain soil, one pair shoe, one pair socks, half burnt sweater, half burnt ‘ inner stained with bl00d were recovered from the spot at thetime of inquest. These facts are unrebutted. As per Dr.S.A.Siddique (PW-2), he has conducted autopsy vide Ex.P/2 of unknown dead body and found thirteen injuries by sharp edged weapon and body was partially burnt. Photographer Arvind Kashya‘p (PW-17) has deposed in his evidence that he has taken photograph of the dead body vide Article 10. At the time of recovery of dead body, inquest and autopsy, dead body was unknown but pair of shoe and socks found over the body,"“" half burn inner and sweater of the deceased person near the place of incident. As per para 7 of evidence of Laxman Singh (PW-1), father of deceased Ashok Singh, he has identified clothes of the deceaSed‘and ‘ Article 7 photograph of burnt dead body and has identified the same as clothes of deceased Ashok Singh and he has also identified the dead body on the basis of photograph‘on the basis of special feature of teeth shown in photograph vide Article 10. Para 11 of his cross-examination, he has again repeated that he has not seen the dead body of his son but has seen photograp of his son and he has identified on the basis lr‘ ill h of photo of teeth. He \has also admitte that teet foun in thew ‘t~ photograph may also find, in the body of other persons but has specificallydeposed that he has identified the photograph of dead body on the basis of teeth that photo is of his son deceased Ashok Singh. Defence has not asked anything reiating to identification of the clothes of the deceased and in absence of any contrary circumstances or evidence, the only presumption would be legally possible that dead body found on 29.1.2003 was of Ashok Singh, son of Laxman Singh (PW-1) and husband of appellant Vinita Singh. As per evidence of Dr.S.A.Siddique (PW—2), death was homicidal in nature. Ashok Singh wasgdied between 27.1.2003 and 29.1.2003, his dead body was found“ " between'Chachiya and Toulipali beside the road and death ofAshok Singh was homicidal in nature. l 4 . As regards the‘complicity of the appellants in the crime in question,.. v conviction is substantially based on circumstantial evidence. In case of‘ conviction based on circumstantialvevidence, the 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’ establishedr ‘ (ii) the facts so established should be consistent only withthe hypothesis of the guilt of the accused that is to say, they should not be explalnable on any other hypothesrs except that the accused Is guilty, (iii) the Circumstances should be of a conclusive nature and tendency, (iv they should exclude every possrble hypothesrs except the one to be proved and there must be a chain of eVldence so complete as not to leave any reasonable ground for the conclusron conSIstent wrth the Innocence of the accused and must show that m all human probability the act must have been done by the accused. ' s d h d ) facts, (i) i ’(ii) 1 :(iii) (V) $ - (Vi) . as Ashok Singh to Dakeshwar Kuma’r (PW—13). i. (vii) (viii) 'j (ix) (X) 10 I ?)A ,a‘ - Ashok Singh was residing with appellant Vinita Singh. Vinita Singh w'as love affair with appellant Anil Singh. Since 27.1.2003 Ashok Singh was missing with‘his motor cycle from’the house of appellant Vinita Singh where'he was‘ ' residing with his wife Vinita Singh. His murdered dead body was found on 29.1.2003 between Chechiya and TouiipaJi beside the road. Vinita Singh, wifeof Ashok Singh, has not Iodged any report till her arreSt. ' ‘ ‘Motor cycle which was taken by deceased Ashok Singh as per allegation of appellant Vinita Singh was sold by Vinita Singh‘and present appellant Anil Sharma introducing himself Present appellant Anil Sharma executed agreement to sell of motor cycle vide Ex.P/12, in which he has signed as Ashok Singh. Present appellant Anil Sharma along with Vinita Singh stayed in Pratap Lodge at Katghoraon 29.3.2003 to 31.3.2003, in which Anil .Sharma has shown himself as . Ashok Singh and Vinita Singh is family of Anil Sharma. Present appellants have provided Articles 8 and 9 of registration book and insurance book of motor cycle to- Dakeshwar KL‘imar at the time of such sell of motor cycle. ‘ ‘ Motor cycle and knife have been recovered at the instance of appellant Anil Sharma. 16. As per evidence of Girijanand Singh (PW~3), cousin of deceased Ashok Singh, in February, 2003 appellant Vinita Singh came to his house and told thather husband Ashok Singh has left her house and has told that he is going to village Kharra to his father’s elder brother house by Yamha Crux motor cycle but he did not return back'since last four days. Then he narrated the same fact to Laxman Singh (PW-1) that Ashok Singh has left his house on 27.1 .2003 forKh‘arra by Yamha Crux motor pi ) \ cycle and has not come back till today. Laxman Singh made search of \ (iV) ‘ 15. ln the present case, theprosecution has tried to prove the following his son and finally, he lodged report in Police Station. Defence has cross-examined this witness at iength but has not asked anything relating to the fact that appellant Vinita Singh has not Informed such facts to him even this fact has not admitted by appellant Vinita Singh while answering question Nos 8 9 and 1O in her examination under ' Section 313 of the Cr P C 17. Sumitra Singh (PW-5), mother of appellant Vinita Singh has deposed in para 3 of her evidence that on 26m after flag hosting Ashok Singh left his house and went to village Kharrapara from Gangapur but he did notvn‘i‘“ ' t return back. She has also corroborated the factum of identification of thé‘ articles of deceased Ashok Singh at Police Station Korba vide Ex P/1 Nothing has been asked to this witness by the defence relating t0 thefact that on 26m her son in law i e Ashok Singh has not left her house for Kharrapara Laxman Singh (PW-1), father of deceased Ashok Singh, has also corroborated the fact that he was informed by Girijanand Singh on about 2”d