v. ^ Coram : HLGH COURT OF CHHATTISGARH : BILASPUR Hon'ble Shri T.P. Sharma and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ. APPELLANT (In Jail) RESPONDENTS Cr.AppealNo. 478 of 1995 Tulsiram, S/o Angkaluram aged about 36 years, occupation Agricultural, R/o village Khapri, P.S. Abhanpur, Tah. Dhamtari, Dist. Raipur (M.P.) Versus The State of Madhya Pradesh. CRIMINAL APPEAL UNDER SECTION 374 (21 OF THE CR.P.C.. 1973 Appearance: Shri Y.C. Sharma with Shri Vivek Rathore, counsel forthe appellant. Shri Rajendra Tripathi, PL for the State JUDGMENT (Delivered on 31.03.2010) The following judgment was delivered by T.P.Sharma, J. u The challenge in this appeal is to the judgment of conviction and order of sentence dated 17th January, 1995 pc'ssed by the Additional Session Judge, Dhamtari, Dist. Raipur in Sessions Trial No. 348/1991 whereby and whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of Kumari Bai and for concealing the evidence of criminal case, the trial Court convicted the appellant under Section 302 and 201 ofthe I.P.C. and sentenced him to imprisonment for life and rigorous imprisonment for three years respectively. 2. Conviction is impugned on the ground that without any iota of evidence the Court below has convicted and sentenced the appellant and thereby committed illegality. 3. Brief facts of the prosecution case is that the appellant was having illicit relation with the deceased Kumari Bai, due to which, Kumari Bai becomepregnant. A meeting was convened in which the appellant agreed that Kumari Bai at that time was conceived. In the intervening night of 15' & 16th August, 1990 the appellant took Kumari Bai to a field and strangulated her and thrown her dead body in a well. The accused also threw the cloths of Kumari Bai in another well. Missing report was lodged on 17.08.1990 vide Ex.P.21C. Broken piece of Mala and cloths were found near the temporary hut situated at the field and then the villagers informed the police. During the course of enquiry, the accused was taken into custody. He made disclosure statement of the dead body of Kumari Bai, which was tied by sar/" with stone and her cloths vide Ex.P.16. The appellant took the police offers and witnesses near the well of Samaru from where the dead body of Kumari Bai tied by sari with stone was recovered at the instance of the accused. After summoning the witnesses vide Ex.P.3, inquest over the dead body of Kumari Bai was prepared. After taking the dead body out from the well of Samaru, again the appellant took the police officers and witnesses to another well from where the other cloths were recovered from the well of Dularwa. 4. Three stones tied with cloths were seized vide Ex.P.13. After taking out the dead body from the well of Samaru, the dead body was sent for autopsy to District Hospital, Raipur. Autopsy was conducted by Dr. D.C.Jain, P.W.12 vide Ex. P.25 and found ligature over the neck and ligature mark and fracture was found in trachea, placenta was not found and death was due to strangulation. At the time of death, the deceased was pregnant. Merg was recorded vide Ex.P.22 and Dehati Nalishi was lodged vide Ex.P.19. F.I.R. was lodged vide Ex.P.23. On the second day,one foetus was also found inside the well of Samaru and the same was taken out from the well and after summoning witnesses vide Ex.P.5 inquestover it was done vide Ex.P.6 and merg thereof was recorded vide Ex.P.14 and Ex.P.24. Foetus was sent for autopsy to District Hospital, Raipur vide Ex.P.12 and autopsy over foetus was conducted by Dr. D.C.Jain vide Ex.P.26 and found the foetus died inside the uterus, soon after the death of the mother. Broken piece Mala and other cloths were were seized from the temporary hut vide Ex.P.15. 5. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the J.M.F.C. Dhamtari who in turn committed the case to the Court of Sessions Judge, Raipur. The learned Additional Sessions Judge has received the case on transfer for trial. ^ <t<^ (- l^ 6. In order to prove the guilt of the appellant, the prosecution examined as many as 12 witnesses. The accused was examined under Section 313 of the Code in which he denied the circumstances appearing against him and innocence and false implication is claimed. 7. After affording opportunity to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. 8. We have heard learned counsel for the parties, perused the record and impugned judgment. 9. Counsel for the appellant vehemently argued that conviction is based on the evidence of P.W.4 Babulal before whom the appellant has made confessional statement in the meeting and thereafter on the second day discovery of articles of the deceased Kumari Bai in the field which itself is not sufficient for drawing an inference that the appellant has committed culpable homicidal death amounting to murder of deceased Kumari Bai and has concealed the evidence in criminal case. The suspicion, however, cannot take place in legal proof, therefore, the evidence adduced on behalf of the prosecution is not sufficient to connect the appellant in crime in question. The prosecution is required to prove its case beyond reasonable doubt. In the present case, the evidence adduced on behalf of the prosecution is not sufficient for drawing the serious doubt and suspicion that the accused might have committed the offence. If the whole of the prosecution story may be true; then between "may be true" and "must be true" there should inevitably be a long distance totravel and whole of this distance must be covered by legal, reliable and unimpeachable evidence. On these grounds, the accused/appellant is entitled for benefit of doubt. 10. On the other hand, learned counset forthe State opposed the appeal and submitted that in the present case the appellant was having motive for commission ofoffence and after commission ofthe offence, the dead body of Kumari Bai, after tying the same by a stone, was hidden inside the well. The dead body and other articles were recovered at the instance of the accused/appellant. The accused/appellant himself made confessional statement that because of him Kumar Bai has become pregnant and on the ^.^ second day Kumari Bai was missing and no explanation was forthcoming in that behalf, which is sufficient for drawing an inference that the appellant was the person and except him none other than committed the aforesaid offence. 11. In order to appreciate the arguments advanced by the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, the homicidal death as a result of strangulation and asphyxia has not been substantially disputed on behalf of the appellant otherwise also established by the evidence of Dr.D.C.Jain P.W.12 and autopsy report Ex.P.25which revealed that the death was due to strangulation and asphyxia and the death was homicidalin nature. 12. As regards the complicity of the appellant in crime in question, in the present case, substantially the conviction is based on circumstantial evidence i.e. recovery of murdered dead body of Kumari Bai at the instance of the appellant. P.W.9 Ram Lakhan Dubey, Head Constable has deposed in his evidence that he had interrogated the appellant who made disclosure statement of the dead body of deceased and disclosure statement relating to cloths vide Ex. P.16. This witness alongwith other witnesses had accompanied the accused appellant who take them near the well of Samaru and recovered the dead body at the instance of the accused from inside the well. He was also accompanied by the accused and other witnesses near the one more well of Dularwa and recovered the other cloths at the instance of the appellant vide Ex. P.17 from the well and also seized the stones tied with cloths, sari and dead body vide Ex.P.13. Thereafter, this witness registered a Dehati Nalishi vide Ex.P.20. P.W.4 Babulal has corroborated the evidence of P.W.9 Ram Lakhan Dubey relating to confessional statement made by the appellant before P.W.9 Ram Lakhan Dubey and recovered the dead body and other articles at the instance of the appellant. The evidence of P.W.4 Babulal clearly reveals that dead body was hidden inside the water and after search the dead body of Kumari Bai was taken out from the water inside the well. Dead body was tied with the stones with help of sar/. This evidence clearly establishes that the dead body was in hidden condition in the water and it was not visible and prior to the recovery of dead body investigating officer and other persons knew the fact that dead body was hidden inside the well. The dead body was recovered at the instance of the appellant. In case of recovery at the instance of the accused, the accused is /y"\ |;%P^Jj ^ '^. ^ K under obligation to explain as to how he knew the dead body and other articles thereof were hidden inside the water in well but the accused has not offered any explanation. The autopsy report reveals that this is case of strangulation and death was homicidal in nature. In the absence of any explanation on behalf of the appellant, the only hypothesis would be possible that the appellantwas the person who has committed the offence of culpable homicidal death amounting to murder of Kumari Bai and with a view to conceal the evidence of criminal case, the appellant had hidden the dead body in the well of Samaru and except the appellant none other has committed the offence. 13. After appreciating the evidence available on record, the learned Additional Sessions Judge convicted and sentenced the appellant as aforesaid. TJie conviction ofthe appellant is based on credible, clinching and legal evidence sustainable under law. The Court below has not committed any illegality in convicting and sentencing the appellant. 14. Having thus scrutinizing the evidence minutely, we do not find any . illegality and infirmity in the impugned judgment warranting interference by this Court. The conviction ofthe appellant under Section 302 and 201 ofthe I.P.C. and the sentence awarded thereunder are affirmed. 15. In the result, the appeal is liable to be and is hereby dismissed. The appeal is reported to be on bail. He shall himself surrender before the Additional Sessions Judge, Dhamtari for undergoing remaining sentence passed in Sessions Trial No. 348/1991. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^^