^. /-.'rt'-l^p ''f»\' HIW COURT OF CHH4TTISeARH AT BILASWR CWWR'- Hon'bl^A^r.T.P.Sharma & Crimina! ADDMI No.TOZ of 2083 beodtoror! Versus .'t Stat^' of Chhatl'isgarh JUD6MENT FOft CONSIDERATtON Sd/- T'P- Sharma Judge Hon'bte Mr.N.K.Agorwal, J. . oy, Sd/- N.K.Agrawal Judge Post for Jix^wsnt on : 5/3.^010 T.P. Sfaarma AP^ HI6HCOURT W CHHATTISeARH AT BILASHJR Crtmino! Anpen! No.7.32 of 2003 **., Corsm; HON'BLE ^RT.P.SHARMA S HON'BLEMft.N-K.A6ARWAL. 37. APPELLANT (In custody) Deocharan son ef Shdrtrughan Nishad, aged about 3S yeans flesic^Bt ef wiU Shutaku Nayapara, P.S^BrtycSxsclcI, E)isn.R?Jpur(CA). RESPON&ENT <>.. Vwsus State of Chhati'isga'4! Throughs P.S.Sflriyrfwnd bistt-.ftaipur (£.6.). (CRAAINAL APPEAL UN&ER SECTEON 374 (2) OF THE CO&E OF CKIAAIN.AL PROCEDURE, 1973) •! Present:- !: ! - - ~ • :- 1" '—-• - 1~ • ' AAr-Lakhon Lal Mah!fan9s, £»unselfor the flippelksnt. Mr.Rakesh Kumar Jha, Deputy ©ovemmentAdwcate for -fhe State. (JUD6MENT1 (Oelivered on 5th March, 2010) The judgment of tfe Court was delivsred by T.P.Shwma, J.:- 1. Chcltenge in this appea! is to Ihe Judg'Bent pf conyiction & ordep of sentence dated 22.3.2003 passed by the Fif'rfi Additioncl Sessitms Juc^e, Raipur, in Sessions Tria! No.226/2002, wherfcy & whereby teamed Rfth Additional Sessions Judge after holding the appeilantguitty for commtssionof culpable hoinicidnl death of decea^d Chiranjeev amounthg to murde!* and screening the eyidence of crimincl case, conyicted under Sections 302 <md 201 of the Indict" Penal Code ond sentenced him to undergo in'prisonment for life and "igor-ous imprisonment for two years. 2. Ths convictian is impugned on the ground that without •ttiere being any iota of evidence sufficient fw conyiction of the cppellpnt,4tie Court' below hcs :i|.Hr ^l conyicted ond sentenced the (ypellant as eforemwtiorBd and 1+iereby committed Blegatity. \, 3. Case of the prosecution, i" brief, ts th.at o" *e fats'hil day of 19.5.20(%, ChMfnjeey (since decensed) was present in the marrtoge cereifQny of sister of Mohen, he conaimsd I.'guor there aad thereofter the appstlant committed murder of deceised ChirwiJeey—Aftercommi^ion of murder, hg dragged dend body of deceased Chiranjeev fcom back side of his house 1o kilschen garden of Lomas. On the seciymt day at<>bout S.SQa.nit. dsad boid^ »f ..!. • ' ' " : "•'' - ' ~ " "••' " ' deceosed Wvan^sew was seen by^the viSiagers !B the kitfihen garden of Lomas. Satish (PW-1) has lodged merg intimntion to ttie potice vide Ex-P/l. &ehati nah'sh! was ctso rscorded yide Ex.P/t6A and on the basis of deha+i nalishi, registered F-I.ft- was recorded yids Bx-P/17 on 20-8-2002. rnvestigat'ng officer proceeded for the sceneof occurrence and after sumn'oning the witnesses y'de Ex-P/5A, inquest over -tlie dend body of deceased Chirunjeey was prepared yide E.xP/6. Dead body o'f deceassd Qiirunjeey wns sent for autopsy to Comniunity Heallh Centre, Sar'jyabcnd vide Ex.P/15. Dr.Ajay l&iandeter ff>W-14) conducted autopsy vide Ex-P/21 and found fnllowing symptoms ond injuries ov»r the body of decea^d Chir'anjeey, 1) One red white gomacha found around <wi •the neck, clo1+ies were stained with blood, tongue was protruded and caught between tee-i+!. Dust was found over -ths fcsce, blood was oozing out from the nose and face was deeply cyanosed. 2) Ligature mark found oyer the neck wi-tf) light scrotches oyer Ijgature mark 3) Abrasion a"d scratches were found ovar forehead and r'ght side of cheek 4) Frncture of ring of tracheaand thyroid cartilage ""as found. 5) Ligaturs ^amacha) was found over the neck with fcnot Injur-ies wsre ants-inortem. Cause 6f deeth was a^'hyxta as a result &f strcngulation and death was homicidal in noture. Spot moR was prepar'ed by mvestjgating officer yide Ex.P/2. Btoodstained & plain soil wsre recoyered Sfei from bcck side of hou^ of oppellant &eod!aroR vide Ex.P/4. Sealed cbthes of the deceased after tutopsy was se'2ed yide Ex.P/7. Pa+wari prepared spot mnp vide Ex.P/10. TdA appellant was atso sent for medical examination. Examinirtion was conducted by Dr.Ajay jChcndekar yw-14) yide Ex.P/lS.A and found abr-asion oyer his !eft side of rteck of I" cnd abrasion oyer back s'de of the neck of 3". &urin3 the eourse of inyestigation, bloodstained full paint was seized from 1+>e accused y'de Ex.P/3. Seiaed orticles were sent for chemica! cmniysis yide Ex.P/13 and presencs, of blood on full paint ofthe •l.i . . . . . _ accused was confirmed vide Ex.P/26. 4. Statements of the witnesses were rscorded under Sectfon 161 of •the Code of Criminai Procsdure^ 1973 (in short lthe Code') and after (»mpletion of inyestigation, char^e dieet was fited in the Court- of judicial M.agistrate First CIass, Sariyab<md, who in turn committed the case to the Cour!- of Sessions, Raipur, frpm where the Fifth Additiona! Sesawis Jirige; Raipur receiyed •ri'se case on trcnsfer for trial. S. In order to pr-oye the guilt of the accused/appellcnts, the presecution has e.xamined as many as 14 witnesses. Statenient of the acGuaed/appelbnt was also recorded under Section 313 of the Code where he denied the circumstances appearing a9ainst him <md pleaded innoosnce and false implication in the crime in question. 6. After affording opporhinity of hearing to the parties, the Fifth Additiona! Sessions Judge has convicted and sentenced the appeltont as aforeinentioned. 7. We haye heard learned counsel for Ihe partiss, peruSBd ths judgment impugned ond record of the Court below. 8. Learned counal for ths appellant ysheniently argued that -the proacution was under obtigation to pcove its case beyond all shadow of doubt, bat in the present case, •rii®prosecutton has not adduced any credible and clinching eyidence against the appellcnt. Wilnesses exammed by the prosecution haye not supported the case of the prosseution and •Ae prosecution has deckired them hostile. On!y on -the ground Ihat some bbod was found near back side of the house of 1lie (ypellcL"tand some mork of dr'e^giag of dead body from back side of •rtie house of the oppellant to kitchera ganden of Lomas are not sufficient for drawing a"y inferenea that •the appellant wos the person who has con'mitted'theoffCTice- - » 9. Laarned counse! placed rslson» in the tsatSsr of Kadir v. ths Stat^ in which the Migh Court of&elhi has held thot m oa^ ofno bl!»dfoundftear house of the deceased ;md btoo<;| found near- the house »fthe nccused. prosecution case is lid?te to be rsjec+ed. Leanwd GOtffisel fupther glnGed reticncs in ths matte." of Saniya Ram v. Stats ®fC.S. »»hu:hthis Court hcs held that in the absence of proof of human blood on the av^ antl dnwt, recoyery cannot be connected wi-Hi •the crina. Learned counsel.ttlso placed rsKsanss n the motl-er of ASMS' Sai v. State sf Chhatti^arh ia twhich this Court has held that i" the cbsence of qsecific bfood group found on -the a>ce, the accused cannot be connected with the inurder of Ihe decaised- Leamed Munsel further placed relicnce in the matt'er of Bhuruwa aljsK &hanatycm v. Stffte sf C.S. in whiiA this Cfltirt iras held that &! Ihe iibsence of humon blood, that too of the blood group of the deiaased was found on the spade, >s of no use. Learned counsel also pteced reliancsin 1+ie nsatler of Saukaran & ^aotiisr v. Stste of C.6. in whsch tftis Coyrl- has held that in cass of cinajmstantial evidaice 1+>e prosecution is requii«dto proye circumstEinces sufficient for establishing by unimpeaehabte eyidence and it should be conckisive in na+ure. ' • 10. On the other hond, leamed Stnte <»unsetaipported •*ie jadgment impugnad ond csrgued that the eyidence adduced on behalf of *e pro^cution "s sufficient for drawing inference that the appel!ant was the person-who hcs conimitt'ed the offence. tlE«7Cri.L.J.lOl 22004(2)C.6.L.J.124 32006(35CAJ-.J.55 <2006(3)C£..L.T.93 5<Tin-3 /1\ f 2003 (1)CA£.J.337 ^4 •^ > r^w" 11. S< order to a^preeiate the arguments adyonced on behalf of -ths part'»s,'Bfe hove examined the evidsnce adduc<d on behalf of the prosBGution. I/i •ftie present case, hom'cida! dAith as a result of cmte-mortem fffhB! injuries of deceosed Chiranjeev has not been aibstm''t'ally disputed by the Ojyellant, on the other hand, a!so establidied by the eyidenee of t)!";Ajay pxindekw yw-14) cnd autopsy repor* E^.P/21 which r'eyeals thu* dea'th was as a result of strangu!at!"n and homicidn! 'm nature. 12. As regards -Hie complicity of +ha,accuMd/oppeliant h 1he cr'ms in questton, 'm the present case the conyictloR is based on circumstontial eyictence. Satish (PW-1) has deposed in his ev'dence thsrt' Raghu Thaku" totd him that body of deceased Ch'irtmjeey 's lying in k'tchen garden of l.flmas, tten he w&nt m kitchen gardws of Lowas where deod bedy of Chtranjeey slcined with btood was lying i" kitehen garden of Lomns. He went to •Niepolice ststion ond lodQed msrg intimation yide Ex^/1. Taneshwsr (FW-2) has deposed in his eyislence that he ut<mg wilti deceased Gh!r<a'ijeev were dancing in nifflr-riege function. After comptetion of daice at night, Chiranjeey told him thcrt- he is going to his hcuse and on the seconddey, dead body of deceased Chironjeey was found stained with blood in kitchen garden situated in back side of the house of Ihe oppetiant. He has a!^ depo^d thot "dragging moLi*k" from the houss of the oppellant to kitchen gardenof Lonws was pr-esent where daad body was found. Bioodstair«dwas also found from -Hie house of cppellont DeochaKan to the phce wher«dead body of the decsased was lying. Banmali 0>W-3) has also supported the evidence of Taneshwar (PW-2). The prosecu+ten has alss exammBd Loflnas (PW-5) in which kitchen garden dead body was feund. He has"ot sypported the case of •the prosecution initkslly and -Ae pro^culton decfared him hostile. In para 3 of his cross-e?<amlnation, he has ddmitted that "drugging mark" from the house of appelkint Deychann up to hiskitchen ga''tlen was pressnt. Cievednww Gagsndrv. (PW-6) hcs atso eorroborct-ed the evidence of Taneshwar 0>W-2) Ouring the course ef inyestigation, police hasseized bloodstained full paint from the accused yide Ex.P/3. The factum of seizuce has been we!l corroborcrted by Satish pW-1) <awt_S.lbJ&ispectBr "^ !;F!lTlt'-:< 1--*ii '^ t). ,., M«(W 8W J.S-Rangi O'W-13). J.S.Rangi (PW-13) has specifically depo^d n fais evidencs that he has prepared spot mop vide Ex.P/2 jn which he hcs ^ecificalty mentioned draggihg mark and presence of bbod found m the verondah of the aecused and afso between verendch of the accused am;! kitchen garden of Lomas. Defence has cross-excmined these witne^s at length- TaneAwnr 0:>W-2)has-ndn<itt'ed inpara? ofWs cross-examinctien that hs himself has seen dragging mafk, but sgain he hcs de^sed 1+)at' he has not seen dragging marks and onthe basis ef evicience of olherpa-sons, ',. - :'- ' '~ ' : ^- '" ' "-^ ' he has stated that he has seen drogging mark. Banmali (PW-3) hcs also depossd that yillagers told him relating to dragging mari( thtri' is »Ayhe has sterted relating to dragging mark. Defence has notasksd ony1+!ff^ to Lomas PW-5) relat'ng to presenca of dragging mia'k. J-S.Rongi (PW-13) who h"s pre^ired spot mop has ^ecifically deposed Ihct dragging maH< of the dead body was found from the house of the present oppellant up to kitshen garden of Lomas aid blood wcs found in the house of the appeliant (md kitdien garden of Lonias which he has seized yide Ex-P/4 <md dlso prapared spot mop vide E.^.P/2. 13.As held by 1his Court in tha mattsrs of Seniya RS . Amar S<S! cnd Bhuruwa al'as &haRauram (su^c), 'n oase ofblsodfeund ontheclothesor weespons, the prosecution is required to prove blood group whellier it toals w'tti tha blood group of 1<ie deceased. Ih +he present wse, conyietion is not bQS&d onfy on the presence of blood, but convicti'on is a.ibslontialty based on other cin:umsto.n<»s of dragg^ mack starts from itss hou^ of the appellfflit to the kitdien gwdsn of Lemns where dead body was found contnining bfoodstained m different piaoes. The fact of the eases &f Saniya ftam. Amar Sa' wd Bhwm'fl clles &haRairam (si^rts) is distinguishdsle to •rt'atof the present Otse. " 14.In the matter of Padda Resfaiyv. Stat®of A.P. & Ors. it wcs taid dowa by the Apex Cour!''-that when a case rests iyo" circumstantia! eyidencs, suchevidsnce must sort-isfy the following tests; - *AIR1990SC79 1) the ciraimstEmces frem whiA an inference of guilt ts asught to be dnnm, must be qogently and firn'lyestBfclished; 2} -those circumstances should be of a'definite tendatcy unerringty po"ntin9 towards guilt of the acajsed; 3) the circumstances, tiAeR ajmutatively- dioufd fronn • chain so cotnplete 1hat there is no escope from the conclusion that within a!l human probability the crime was committed by •the accusedand none else; and ',' 4) the circun'stantial in order> to sustain conyiction n»ustbe complete and inaspabte of expkuiatisn of any o-ther hypothesjs •thnn that of the guilt of the accused <nd such evidence shouM raot only be censistent with the guilt of the aceused but should be incsnsistent with h's innocence. 15.As held by the High Court of Delh'i in the nwtt-er of Kiadir (s(^ns^. <MSB of the prosecution wos disbelieyed on Itie ground thctf- blood wasnot fBund where knife blow was giyen which vws yery naturnl. Thefact of Ihe ease of Kadir (supre) isdistinguishabfe to that of Ihepresentcase. l6.In the presstrt case, dead body of -the deceased wod found neeu' the house of the appellcmt in kitehen garden of Lonws. "bragglng mark" was found slurting from the house of the appellontto the place where dead body wss found c"d bloodstnined was found in the aforesaid dragging mQrk m different places which were examined by the Forensic &ie!ice Laboratory and blood wos affirmed yide Ex-P/26. t7.Th is is the special evidencs and sufficient for dnawing infer'ence that somebody has dmgged dead body or body of deceased Chjranjeey from the hou^ of the oppelbnt up to the placs where dead body wcs found. The appellcnt was present in his house, The pre^nt sffa'ce hns been committed in secrecy. The pressnt appellant musthaye Imowtedge of•riie fact and he wcs under obligation to offer explfnation under Section 106 of itie Evidence Act thnt whe has strangulated thc deeeased, who has dragged the deceased from his house to the ptace where dead body of the decsasad •l •! W!;! /. was found and how •the blood uus faund in the cforesaid dragging mark- If 1+iese circumstonces ore considered togyrtier, then samaawould be sufficient for h^aothe^'s of the guih' of the oppellant and te exclude 1he hypotiiesis of his innocence or guilt of the other person. 18-After oppredating the eyidence cvajlable on record, leamed Fiftii Additional Sessions Judgs, Raipur has convicted the appellant under Sections 302 & 20tof the Indion Pena! Code. Ths eyidenc^ adduced on behalf of the prosecution is,: sufficient for dreafing inferen'^ that -riie appeliont is 1tie person who has commrtted ailpabte homickbl decrrtt of deceosed Chiranjeev cmounting to inul'dei«and has reifloved tte body from his hou^ with a'view to concail the eyidence of crim'nat sase. The conviction of the appellant is bosed on credible, ctindting and t'e!iab!e eyidfe"ce sustainable under •ftie kw. 19-0n close scrutiny of the evidence, ws do not find any 'llegality in •the judgment impugnsd. The oppeal being devoid of me!"t is liable to be dismissed and it is hereby dismissed. Sd/- T.P.Sharma Judge Sd/- N.K.Agrawal Judge B/-