HIGH COURT OF CHHATTISGARH AT BILASPR U DIVISION BENCH HON MR DHIRENDRA MISHRA &HON MR RN CHANDRAKAR JJ Criminal Appeal No.670 of 2003 Roopdayal APPELLANT: ‘ r Versus State of Chhattisgarh ESPONDENT-: i JUDGMENT FOR CONSIDERATIO_N// HON’BLE MR. JUSTICE R.N. CHANDRAKAR Pos'r FOR JUDGMENT ON 2% L10-2oo//,/ : f ’ §HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal'Anpeal No.670 of 2003 APPELLANT: Roopdayal aged about 37 years S/o Lumasram Sahu reSIdent of v111age Kopra Pollce Stat1on Raj1m Teh511 and D1str1ct Ralpur (Chhattlsgarh) Versus RESPONDENT: State of Chhattlsgarh Through the D1str1ct Maglstrate Ralpur (Chhatt1sgarh) ¢ Present: ‘ ' - __r_ Shri Sachin Singh Rajput with Shri Anant Bajpai, counsel for the appellant. Shr1 Satlsh Gupta Govt Advocate Wlth Shr1 Ravmdra Agrawal Panel Lawyer for the State/respondent ' a ‘ Division Bench: Hon’ble Shri Dhirendra Mishra 85 Hon’ble Shri R.N. Chandrakar, JJ. l JUDGMENT -L (Delivered orfggjtbctober, 2009) following judgment of the Court was delivered by Dhirendra The Mishra, J 1. The appellant has preferred this criminal appeal under Section 374 (2) of the Cr.P.C. against the judgment of conviction and order of sentence dated 28—5—2003 passed in S.T. No.374/2002 whereby learned 3rd Additional Sessions Judge, Raipur has convicted the appellant under Section 302 of the IPC for causmg hom1c1da1 death of deceased Chunguram and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/—, in default of L C: 2. The case of the prosecution, in brief, is that the poiice registered merg No.39/2002 (Ex.—P/19) on 11—6—2002 on receiving information regarding unnatural death of Chunguram. After receiving the above information, the police proceeded for the scene of occurrence, prepared inquest (Ex.—P/3) over the person of the deceased and sent his dead body to the Community Health Centre Rajlm Where Dr Dh1rendra Kumar Hlrodiya (PW 9) conducted postmortem and gave his report of Ex P/14 ~ After rece1v1ng postmortem report, FIR (Ex.-P/20) was registered on 14—6-2002 against unknown person on the basis of report of SHO A.S. Khan. a Blood stainedtbed sheet was taken into possession from the place of incident Vide Ex.-P/4. On the basis of memOrandum (Ex.—P/5) of the appellant, Nitrest Zolpidem tablet, will executed in favour of Kabir Satsang Samiti, sale deed executed by Gokul in favour of Chunguram, one "will executed by Chunguram in favour of appellant Roopdayal were taken into possession vide Ex.-P/6. Blood stained lungi and baniyan was taken into possession on being produced by the appellant vide Ex.—P/7. Nitrest tablet seized at the instance of the appellant was sent to Dr. Dhirendra Kumar Hirodiya for examination vide Ex.—P/ 16 whereupon he gave his opinion on the same memo. Nazri Naksha was got prepared by Halka Patwari vide Ex.-P/ 1. . After completing investigation, charge sheet was filed against the appellant and co-accused Raghuvanshi Prasad Gupta and Gangadhar Sinha under Sections 302, 201 and 420 read with Section 34 of the IPC in the Court of Judicial Magistrate 1st Class : % ut‘ a l f 6 Gariyaband, who, in turn, committed the case to the Court of Sssions Judge, Raipur and the same was received on transfer for e tral by learned 3rd Additional Sessions Judge, Raipur. i 4. arned trial Court framed the charge under Section 302 and 302 Le rd with Section 120-B against appellant Roopdayal and Section ea 3 read With Section 120—B against co—accused Gangadhar Sinha 02 ad Raghuvanshi Prasad Gupta. The accused persons abjured n tir guilt. s f . Te prosecution in order to establish the charges against the 5 h accused persons examined 19 witnesses in all, thereafter statements of the accused persons were recorded under Section 3 13 of the Cr.P.C. in which they denied circumstances appearing against them in the prosecution case. Appellant Roopdayal also leaded that he has been framed in a false case by the Witnesses with a motive to grab property of Chunguram. He further pleaded that on the date of the incident he had gone to Raipur to his sister’s house for bringing medicine for grandfather. On the date f the incident at about 1 pm Lokesh Sahu and his brother Aru o n came to his sister Savitri’s house to call him and informed that Baba Chunguram has died. Their presence is required for police investigation. Thereafter he learnt that on the date of incident his uncle Chetan and his son Dinesh Kumar were seen sitting on a tank near their threshing field and he had expressed his suspicion on them and because of this, members of Kabir Satsang Samiti, Dhanushdhari, Bhukhan, Chetan, Pawan Nirmalkar, Lokesh Sahu, Dinesh Sahu in league with police personnel have framed he p i him by conspiring. His grandfather Chunguram had known about the misdeeds of Kabir Satsang Samiti and because of this, he used to annoy with them and had also reprimanded them. The appellant also examined his sister Savitri Sahu, Daulat Sahu and Arun Kumar in his defence. . The trial Court after hearing counsel for the respective parties convicted and sentenced the appellant as mentioned in paragraph- 1 of1 the judgment, however, co-accused Gangadhar Sinha and u-f Raghuvanshi Prasad Gupta were acquitted of all charges. . Homicidal death of Chunguram is not in dispute. Even otherwise, Q from the evidence of Dr. Dhirendra Kumar Hirodiya (PW-9), who conducted postmortem 85 proved his postmortem report of Ex.- P/l4 and in which he found following injuries/symptoms and opined that deceased Chunguram died as a result of asphyxia due to pressing of neck and his death was homicidal in nature, it is established that the death of the deceased was homicidal in nature. l o Old male body lying on supine position. Both upper are flexed and lower limb extended. Both eyes were closed. Pupil were dilated. Mouth was slightly open. Tongue was behind teeth. c‘ Irregularly distributed bruises and crescentic abrasion o the side of the neck present. Right side of neck of size 4 cm x 3 cm. Bruises below the mandibular line (2cm) oval in shape irregular bruises. Left side of the neck of size 2 cm x 2 cm bruises round in shape below the mandibular line (2 cm). o Over the nose irregular'bruises of size 2 cm x 1 cm over the left flap ( and 3.5 number in small size bruises present up to \ r G n base of the nose). Linear in shape transversally fowards the lateral side. Right side of the nose flap bruises of size 1 cm X 1 cm round in shape present. Swelling and redness of the tip of nose. Crescentic abrasion of size 1 cm x 1 cm round in shape right side of the neck present. ‘- Inner side of the neck blood clot present. Both side of neck besides the tracheal ring area right side 3 X 3 cm oval in ‘ shape. Left side 2 X 1 cm round in shape cl‘ot present. Congestion and clot present besides the trachea. o All bruises are‘ante mortena in nature. 8. Shri" Sachin Singh Rajput, learned counsel for the appellant vehemently argued that there is no eyewitness to the incident. Convicfionris based on circumstantial evidence. The trial Court on the basis o‘f\evid.ence of LO. Ahmed Ali Rizvi (PW—5) has observed that the appellant used to sleep in the Bayara Where the deceased was staying. However, the above finding is not reflected from Nazri ‘l Naksha of Ex.—P/ 1. Conviction is also based on alleged recovery of Nitrest tablet at the instance of the appellant, however, the prosecution has failed to produce viscera report to establish that the above'tablet was administered to the deceased prior to his t death. Thus, recovery of above tablet cannot be considered to be aln incriminating circumstance. The trial Court has further observed that the appellant was absoonding after the incident l l l (para-32), however, the above finding is based on no evidence as the appellant was through out present after the death. PW—19 has categorically stated that Chetan and Roopdayal went for postmortem after seeing the document. The above circumstances pannot be relied upon as the appellant was never confronted by the prosecution in his examination under Section 313‘of the CrPC. Similarly, the trial Court has also considered that part of evidence of PW 3 Bhukhan, 1n Wh1ch he stated that the deceased had asked hlm to clean the room so that he could 11ve Wlth hlm to demonstrate that the deceased was not keen to hve w1th the appellant. However, no question in this regard was put to the appellant in his examination under Section 313. The allegation gainst the appellant and op accused was that he in connivance 1th acqultted accused persons prepared forged W111 of the u? deceased however this circumstance has also not been estabhshed and the co accused persons have been acquitted of all charges. The«c1rcumstar1ce that the dead body was found 1n the place where the appellant was residing is. also of no avail to the prosecution as there is evidence available on record that the place 1n which the deceased was murdered was accessible to anybody. It was also argued that the appellant and his family members were taking care of the~deceased, as is evident from the evidence of Dinesh Kumar Sahu (PW-l), Kashiram Sahu (PW-8) and Kumari Bai (PW—10). The chain of circumstances relied upon by the trial Court has not been independently established. The chain of circumstances is incomplete. There is evidence of property dispute between Chetan Lal Sahu and the deceased and also between Kabir Satsang Samiti and the deceased. \In these circumstances, the trial Court was wholly unjustified in convicting the appellant on the basrs of Circumstantial ev1dence 9 a w k 10.Re1iance is placed in the matters of Sharad Birdhichand Sarda Versus State of Maharashtral, Arun Bhakta @ Thulu Versus State of West Bengal2, and Harishchandra Ladaku Thange Versus State of Maharashtra3. 11.0h the other hand, Shri Satish Gupta, learned Govt. Advocate \ with Shri Ravindra Agrawal, learned Panel Lawyer for the State argued that the trial Court has convicted the appellant on the basis of circumstantial evidence. The trial Court has held that the u f deceased'wasjssueless and he was recorded owner of the property detailed in revenue record of EX.—P/1O and Ex.—P/11. The deceased was uncle of the appellant. Initially the deceased had _, bequeathed the property in the name of Kabir Satsang Samiti, through its President Dhanushdhari Sahu by executing a will of Ex.-P/ 17 dated 20-9-2000. At the relevant time, the deceased was residing with the appellant. He had executed another will on 22-3-2002 (EX.—P/ 161A), however, hewwas not happy and ’he lwanted l to live separately from the appellant. Since the appellant l apprehended that the deceased may execute another will in favour \of some other person, he had a motive for committing the cr1me ‘The trlal Court has further relied upon the seizure of both the W111 l deeds and Nitrest tablet v1de se1zure memo of EX.—P/6 on the bas1s l of dlsclosure statement made by the appellant v1de Ex P/5 The trlal Court has also cons1dered the conduct of the appellant that J he was not present 1n the Vlllage 1mmed1ately after the 1nc1dent and lastly, the defence taken by the appellant that he had gene to IAIR i984 SUPREME COURT 1622 2 AIR 2009 sUPREME COURT 1228 3 2007' SAR (Criminan 796 H ,._ @> Raipur 2 days before the incident to purchase somdmedicine for the deceased and he was not present at the place of incident at the date and time of the incident has been found to be false. On due appreciation of oral evidence available on record, the same has been considered as additional incriminating circumstance against the appellant. 12.We have heard learned counsel for the parties. We have perused the‘gecord of the trial Court as also the impugned judgment. 13.There is no eyewitness to the incident. Th‘e trial Court has based its conv1ct10n $ a on c1rcumstant1al u ~ ev1dence. . relied upon by the trial Court are asunder:- o The appellant had a strong motive to commit the offence as the deceased had executed a registered will (Ex.-P/ 16-A) in his favour; deed on t wills and sale o Recovery of Nitrest tablet, memorandum of the appellant; o The appellant had taken defence of alibi, which has been disbelieved and has been found to be false and lastly, c The appellant absconded from the village immediately after the incident. ‘4.We propose to examine each of the circumstances relied upon by the trial Court separately on the basis of material and evidence available on record. 5.1ndisputably, the deceased was issueless. He was uncle of the appellant. He was exclusive owner of the land described in \grdocument of Ex.—P/10. Similarly, the deceased and his brother \\\V \ The circumstances @9 Chetan are jointly recorded as owners of the land deseribed in Ex.- P/ll. Both the above documents have been proved by Halka PAtwari Ahmed Ali Rizvi (PW-5). Bhukhan La1 Sahu (PW-3) has deposed that the deceased resided with him till December, 2001. In this period, he had fallen sick and he was admitted in MMI hospital and the doctor advised him operation. Since he was not in a position to bear expenses of operation, he advised him to sell his land whereupon he agreed to sell his land to Liimasram, father of the appellant, for a consideration of Rs.33,000/—. He remained hospitalized in Gayatri Hospital, Raipur for a period of one month i and thereafter returned to village Kopra and started residing with brother of Lumas. On 4th June, he came to him at 1.30 pm and expressed his apprehension that his land may be grabbed and he may be poisoned. Roopdayal, Arun, Shatrughan and boys of Lumas family could murder him. On his request he had told him that he can leave the appellant and live in his house till hisrlife time. However, on 5th June, he went to his sister’s house at Kurud and on 11th June, he learnt about his death. He had executed a V will in favour of Kabir Satsang Samiti on 20—9—2000 and he had kept the will with him. On 28—1-2002, in the morning, 3 sons and daughter of Lumas came to him and demanded will. After consultation with Dhanushdhari, he went to return. will to Chunguram and enquired from him whether he has demanded will, at that time, the appellant snatched the will from his hand and he saw tears in the eyes of Chunguram, however, he did not say anything. In para-9 of his cross-examination, he has admitted the suggestion that he did not mention in his statement before the u f _\ \i @ pblice regarding Lumas and his family members coining to him ar;1d asking for the will. 16.PW-6 Narayan in para—1 of his deposition has’“’deposed that Chunguram carne to him in the month of Jeth and told him that Roopdayal has got executed a forged will, he is not returning the iniill. He would convene a meeting and he also requested to attend such meeting. Half an hour‘thereafter he went to his house (i.e. the house of Lumasram), however, no-one was present. When he V f enquired from one Ghasia of Kurud as to why no other person has coma, he informed him that a few persons came and returned. The deceased was apprehending that intention of Roopdayal 85 s, others is not proper, they may kill him. 8:10 days thereafter he died. In cross-examination on behalf of accused Gangadhar, he I admitted that he did not mention in his statement before the f police that Roopdayal got a forged will executed and he is stating g the same for the first time. On further cross—examination on behalf of the appellant, he has stated that he did not advise l Chungu to lodge a report in the police for execution of a forged will, however, he informed the committee. The committee did not lodge any complaint to the police. 'He has also stated that he did not inform the family members of Chungu that Chungu is apprehending his murder. l7.PW-13 Pawan Nirmalkar has also deposed that PW—6 Narayan has informed him that Chungu had complained that Roopdayal is not returning the will executed by him in favour of the Samiti and V threatens to murder him. PW—l Dinesh Sahu has deposed that 11 @p te deceased resided in the house of Roopdayal. The house as cnstructed separately on the bank of tan Roopdayal and his fly members looked after 1 They had taken m to Rapur fr treatment bere 3-4 months. His grandfather was fully cure. 1 ashiram Sahu (PW-8) has also deposed in para—8 that he was omed by Chetan that Roopdayal s tang care of Chunguram. W-l Kuman Bal, Sister f the decease also deposed that Rqodayal and s famly members took care of the deceased at the time of ‘his treatment at Rpur. P—3 Bhukhan and PW- rayan are witnesses f the fact that the deceased was unhappy after executiné the will in favour of the appellant. He intended to~ live separately, as he apprehended that the appellant and his family members could commit his murder for grabbing his land. i He has also deposed that the deceased complained before them that they threatened him with his life, however, their conduct in not disclosing this fact to the police immediately after the incident l 1 or to tell about the same to other family members of the deceased is highly unnatural. In View of the evidence available on record that the village is faction ridden between the group led by the appellant and his family members‘and others who are members of l :t‘ Kabir Satsang Samiti. 19.We fmd substance in the argument of Shri Rajput that the above witnesses are deposing against the appellant due to group rivalry. The trial Court referring to the sale deed (Ex.—P/ 17-A) executed by Gokul in favour of Chunguram and the will (EX.—P/ l6-A) in favour of Roopdayal has observed that both the deeds were executed on h w o k aml hm h1 l o fo d 8 K infr 1 ki PO o d p hi l ai W 6 a o 12 22—3—2002 and the attesting Witnesses of both the deeds are same and the land which was purchased by' the sale deed is also described i'n the will which makes both the deeds suspicious though the executor of the sale deed of EX.—P/ 17-A Gokul has been examined as PW-17 and he has deposed that when he executed the sale deed, the deceased was present and he had signed the deed and Roopdayal was not present at the time of registry. The version of this witness has not been challenged in crossiexamination. The deceased was aware about execution of deed in favour of Roopdayal. From the evidence, it is also evident 3 that he was a free man and he has visited his sister’s home a few days before the incident. He could'have cancelled the will if he was really not happy With execution of the Will in favour of Roopdayal, however, he returned to Village Kopra and went to the house of Roopdayal. The trial Court has not taken into consideration these aspects in its judgment. The fact that the deceased executed will after canceling the earlier will in favour of iKabir Satsang Samiti may also be a reason' for the witnesses to depose against the beneficiary Roopdayal. Recovery of Nitrest tablet, wills and sale deed on memorandum of the appellant i 201The trial Court in para-31 has observed that in Nazri Naksha of iEx.—P/1 prepared by PW—5, it has been clearly mentioned that ‘Roopdayal also used to sleep in Bayara in which Chunguram stayed. This has not been contraverted by the appellant and thus, it is proved that on the day when the deceased returned after recovery from Kurud to Kopra, he died in the night in the house of Roopdayal and slept there Where Roopdayal also {lsed to sleep. The above ‘fmding of the trial Court is contrary to Nazri Naksha of Ex.—P/ 1 and the evidence of PW—S, as no such fact has either been mentioned in the document or in the evidence of Patwari Ahmed Ali Rizvi. 21.A‘ccording to the memorandum, sleeping pill was mixed in the vegetable and the remaining, sleeping pills were recovered at the instance of the appellant. The deceased was contemplating to liv V'f separately from the appellant, which is evident from the evidence of I1awan Kurnar Nirmalkar ‘(PW—13), Bhukhan Lal Sahu (PW-3) and Bhan Baiipw- 18). 22.We find substance in the arguments of learned counsel for the appellant that the above incriminating circumstance relied upon by the trial Court has not been confronted to the appellant to elicit his explanation in his statement under Section 313 of the Cr.P.C.. 23.It is settled law that incriminating circumstances, which have not been confronted to the accused, cannot be used against him, as has been held by the Hon’ble Supreme Court in the matter of Sharad Birdhichand Sarda (Supra). :24. So far as recovery of sleeping pill Nitrest at the instance of appellant is concerned, there is no any scientific evidence adduced by the prosecution to establish that medicine which was recovered at the instance of the appellant was found in the viscera of the deceased. Rest of the references of memorandum in the judgment by the trial Court is inadmissible in evidence. So far as recovery of e @a oer documents i.e. will and sale deed is concerned, e find from t evidence that the same were kept by the apellan to the kowledge of the deceased and recovery of the same cannot be n nsidered to be any incriminating circumstance. After careful examination of overall evidence adduced by the prosecution, we find that the trial Court has failed to establish that in the night of t incident appellant Roopdayal slept in a separate house he r t w d siuated in Bayara near tank where the deceased as found ead in the next morning. The appellant had taken defence of alibi, which has been disbelieved and has been found to be false 25. he apellant has examined Savitri, his sister‘and Daulat Sahu in T p his defence. Smt. Savitri Sahu has also deposed that 2 days before the death Roopdayal came to her house. Lokesh Sahu and Arun ame and informe that Chunguram has died whereupon oopdayal returned to.village with the aulat has also stated that the police sent Lokesh and Arun to Raipur to call Roopdayal. The trial Court has disbelieved the above version by referring to he evidence of Kumari i (P-10) to whom a suggestion was t Ba W iven by the‘defence in her cross-examination that her son ha g d gone with Chungu to leave him to Roopdayal’s house. Roopdayal nd his family members were persuading him to stay ack, which a b contradicts the defence of alibi. The appellant absconded from the village i immediately after the incident ~ th s W he pt co c d i R m; D 26.’fhe trial Court in para-32 of the judgment has also \observed that the appellant was not seen by the witnesses when the dead body was found or thereafter. The above conduct of the appellant is a relevant fact under Section 8 of the Evidence Act, as the appellant absconded immediately after the incident which further strengthens circumstantial evidence relied upon by the prosecution. 27.From the evidence available on record; we find that the appellant was pre‘sent_after the incident 1n the village. None of the witnesses have deposed‘that the appellant was absconding. The crime was registered agai‘nst unknown persons on 14-6—2002. Thereafter the“ appellant was taken into custody and recoveries were made on his memorandum recorded on 15-6—2002. deposed that the appellant was absconding after the incident. 28.1t is settled law that when case rests upon circumstantial ? evidence, such evidence must satisfy thie following tests:— "«f 15 ‘ r PW-19 has