HIGH COURT OF CHHATTISCi&RY. BILASPUR Crlminal Appeal No.1135/2001 APPBLLANT Lala Chhaura, s/o Deriha Yadav, aged about 48 years, r/o vfflage Tanakhar, P.S. Katghoia, presently residiag at Katori Nagoi, P.S. Kal^hora, Distt. Korba (C.G). KESPONDENT Versus State of Chhattisgarh fhrough S.H.O., Police Station Katghora, Distt. Korba Appearance: Shri N.K. Chhaterjee, counsel for the appellant. Shri Akhil Mishra, Panei Lawyer for the State. D.B.: HON'BLE SHRIL.C. BHADOO, J.& HON'BLE SHRI SUNIL KUMAR SINHA. J. ORAL JUDGMENT (14.12.2007) FoUowing judgiuent of the court was passed by L.C. Bhadoo, J, The accused appeUant has preferred this appeal questionin^ the legatity aad correctaess of fhe judgment of couviction aad order of sentence dated 28ti> of Septeinber, 2001 passed by leamed Sessions Judge, Bilaspur, ia Sessions Trial No.379/2000 whereby aud wliereuader fhe leamed Sessions Judge after holding the accused appeUant guilty for the coininission of oflfence punishable u/s 302 I.P.C., sentenced tiiTn to undeigo life imprisoiuaent. (2) The case of fhe prosecuuoa, iu brief, is fhat on 05.9.2000, the accused appeUant aloug-with his wife Vimla Bai (since deceased) went to the forest to coBect the iire-wood. They were seen togefher going towards forest by Chaadramati Bai (P.W. l) and Budh Kunwar(P.W.3). When the deceased axid accused were near tfae Medau hiUock ia fhe forest area, soine altercation took place between the two and the accused appeUaut attacked his wtfe with aa Axe, as a result ofwhich, Vimla Bai succum.bed to fhe iajuries. The whole night fhe accused reiuamed near fhe body ofhis wife. In the moi-niag.pf 6.9.2000 he went to the house of one Tilsiagh aad li--. Kil .is:+±ii_i '»'. asked for food. Thereafter, he went to fhe Police Station Katghora on foot vvhere he gave Merg iatuaation Ex. P.11, on fhe basis of which, fhe first intbrmation report Ex. P.10 was registered. After registermg fhe crime, the Investigating Officer took up fhe iavestigation aad tbe accused gave nieinorandum Ex.P.2 regardiug the place where the dead body of his wife was lyiag. At fhe tastauce of the accused, ttie 1.0., left for fhe scene of occurrence where he prepared inquest Ex. P.1 on the body ofVimla Bai. The weapon of offence i.e., Axe staiaed with blood was seized on beui§ produced by the accused under Ex.P.3. The Banian ofthe accused was also seized under Ex. P.3. The blood stained sofl, plain sofl aad broken pieces of glass bangles of fhe deceased were seized uiider Ex. P.4. The body of deceased was sent for post morteni examiaation to Coiimiuiuly Healfb Center, Katghora under Ex.P.5 where Dr. H.D. Dahire (P.W.6) conducted the postmortein. He opined fhat cause of death was sliock aad hemorrhage due to head injuiy and chest iajury. He prepared the postaiortein Ex.P.S-A. The Axe was sent to the Doctor for its exain-mation aad his opinioa under Ex.P.6. The Doctor gave his opiaion Ex.P.6(A) and opiaed that fhe injuries found on the body of Vimla Bai coiild be caused by Axe iu question. Site plan Ex. P.7 was prepared by Patwari. The clofhes of the deceased aud Visceras of the deceased were seized under Ex.P.8. The same were sent for examiaation. to fhe Forensic Science Laboratoiy, Sagar, froin where, fhe report Ex.P.15 was received. The Serologist reportwas also received. (3) After completion of the iavest^ation, charge sheet was filed in fhe Court of Judicial Magistrate, Katghora, who in tum committed the case to the Sessions Judge, Bflaspur for trial. In order to estabUsh the chai^e ^aiast the accused, the prosecution has examm.ed 9 witnesses. The statement of the accused was recorded u/s 313 Cr.P.C., in which he adnutted thatVimla Baiwas his wite aad she died ia fh.e forest. He also admitted fhat Vimla Bai used to reside with him. He admitted that the inquest was prepared on the body ofVimla Bai. In reply to questions No. 18 & 19, he admitted fhat he took tUe PoUce to fh.e place where fhe body of Vimla Bai was lying aad ffae rest of fhe thiags were denled by him. He stated that he is mnocent and has false been falsely impUcated ia the crune. !^!: I:1 i (4) The learned SessiQns Judge after hearing counsel for the respective parties convicted and sentenced the accused as aforementioned. (5) We have heard Mr. N. K. Chatterjee leamed counsel for the appellant and Mr. Akhil Mishra, Panel Lawyer for the State. (6) At the outset, Mr. Chatterjee has not disputed the homicidal dea.th of Vimla Bai. Moreover, P.W.6 Dr. H.D. Dahire has stated that on 07.9.2000 he was working as Assistant Surgeon in fhe Community Health Ceriter, Katghora and on that day, he conducted the postmortem on the body of Vimla Bai on the requisition of S.H.O., Police Station Katghora. He noticed number of bruises on the chest, abdomen, right thigh, knees, left leg and right leg. He has also stated that there was a lacerated wound in size of 2" x 1" on the right side of the head. Clotted blood was present, There was swelling on the left eye. He has furtHer stated that on opening skull, he noticed that there was a fracture of frontal bone and clotted blood was present, brain was pale, left side ribs 1 to 9 were fractured, right side ribs 3 to 8 were fractured. Both the lungs were pale. The bloQd was present in the chamber of the heart. All the injuries were inflicted by hard and blunt object and were antermortem in nature. The cause of death was hemorrhage due to injuries on head and chest. He has further stated that fhe Axe in question was sent to him in a sealed packet for examination and his opinion. He saw that there were blood stains on fhe Axe and the injuries found on the body of deceased could be caused by the said weapon. He advised for chemical examination of the Axe. His report is Ex.P.6-A. In view of fhe above evidence of the Doctor, which has not been demolished by cross-examination, it establishes the fact that the death of Vimla Bai was homicidal in nature. | (7) As far as the complicity of the accused in the crime iri question is concerned, Mr. Chatterjee, learned counsel for the appellant argued that the whole case rests on the circum.stantial evidence and there is no legal, clinching evidence on record to complete the chain of circumstances in order to establish the charge against the accused. He also argued fhat the weapon df offence i.e., Axe was not produced before the Court in order:to giv^ opportunity to the defence counsel to cross-examine the Doctcjr wit6.~regard to the nature of injuries. He also argued thatj there PB° ;:tW no evidence that the axe was sealed on the spot and the same reniained in sealed condition till it was received by the Forensic Science Laboratory and the Doctor, therefore, on the basis of recovery of the Axe, the accused cannot be connected with the criine in question. (8) On the other hand, Mr. Akhil Mishra, P.L. supported the judgment of the trial Court. (9) Having heard counsel for the parties, we have perused the judgment and the record of the trial Court. Admittedly, in this case, there is no ocular or direct evidence to establish the charge against the accused. The whole case rests on the circumstantial evidence. (10) In order to record the conviction of an accused based on the circumstantial evidence, as per the settled law, the prosecution is required to establish the following points in view of the decision of the Apex Court rendered in the matter of Dhananjoy Chatterjee - vs- State of West Bengal fl994) 2 SCC 222, which is quoted below: "In a case based' on circumstantial evidence, the circumstances from which 'tlie conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence' of the accused. It needs no reminder that legally established circumstances and not merely indignation of the Court can form the basis of conviction and" the more serious the criine, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." | ; 1 (II) In the present case, the prosecution has tried to establish the charge against the accused based upon the following circumstances: (i) that Vimla Bai was seen alive just before her death wi,th the accused when they were going together to fhe forest area where the dead body of Vimla Bai was found. ..®?ra^r. u n (ii) The accused gave memorandum Ex.P.2 regarding place where he committed the crime and the body of the Viinla was lying. (iii) That the blood stained weapon of offence i.e., Axe was seized from the-possession oftheaccused. (12) First Circnxnstance: As far as fhe first circumstance is concerned, P.W.l Chandramati has stated that the accused is known to her as he is resident of her village. Vimla Bai was his wife and she was known to her. Body of Vimla was found in the forest. On Tuesday when she was returning after collecting fhe wood from. forest, she saw the accused Lal Chhahura and Vimla Bai gomg together towards forest and at fhat time, accused was carrying Axe in his hand. On Wednesday, the police took the accused towards forest area. In her cross examination, she has stated that when she was returning from the forest Ramayan Bai was with her and she was also carrying Axe. They were in fores.t for about one hour. At that time they were cutting wood and when they were returning, fhey saw the accused and Vimla Bai were going together towards forest. That was at about 12.00 noon. There is no further cross examination and in the cross examiriation, the defence has not been able to elicit any circumstance which may discredit the evidence ofthis witness regarding the last seen. (13) As per the settled law, in order to connect the accused with crime based on last seen theory, the prosecution is required to establish that fhe time gap between the time when the deceased was;seen alive wifh the accused euid when the dead body was found must be short and there must 6e pro3amity between the last \ seen and the death. There shoiild not be any possitiility of comingj any fhird person in between the accused and deceased to commit] 1 the crime. Based on fhe evidence available on the record, it is| established that on Tuesday at about 12 noon, the accused and deceased were seen together when they were going to forest area and on Wednesday morriing the dead body was found in the forest area. Moreover, that dead body and the place where fhe body was lying were pointed by none else than the accused himself in pursuance of the memorandum Ex.P.2 given by him and thje aceased hiinself appeared before the:Police and lodged the F.I.I^. .^L- •^. ^.^^f-^^cTs-f-$|^ssb -r-^: __-.i44-fc ' -i;~3;i^^3g Ex.P.10 and gave merg intimation Ex.P.ll. Even if most of the part is not adraissible in evidence but the fact reinains that at the same tirae when he lodged the report Ex.IO and P-ll,he gave memorandum Ex.P.2 regarding place where he committed the crime and he pointed fhat place where the dead body of Vimla Bai was found. In the cross examination. of the 1.0., A.R. Qureshi (P.W.9) or Chandramati (P.W.l), the defence has not been able-to elicit any circumstance which suggests that there was any possibility of coming any third person between the time when the dead body was seen and the accused and deceased were seen going together towards forest area. Therefore, the prosecution has been able to establish with clinching legal evidence that deceased Viinla Bai was seen alive when she was going together with accused towai-ds forest area. There is proximity between the death of Vimla 8s Vimla and accused were last seen together when Vimla was alive. (141 SecpndCircymstance: As far as this point is concemed, P.W.5 Liyakat Ali has stated that the Panchnama on the body of Vimlabai was prepared in his presence and there were injuries on her body. The inquest Ex.P.l was prepared which bears his signature at °A" to "A" place. He has also stated that the accused produced the Axe before the Police in his presence. He has furtherstated that he can show the place in the forest where the dead body of Vimla was lying and thereafter he took them to the forest area and pointed the body of Vimla Bai. Immediately memorandum Ex.P.2 was reduced into writing which bears his signature at portion °A to A and thereafter, the inquest Ex. P-1 was prepared. The police seized the Axe stained with blood, one Banian of the accused was also seized and Memorandum Ex.P.3 was prepared. In the cross examination, he has stated that he saw the accused on that day for the first time. He has further stated that it is incorrect to say that the police gave beating to the accused. He has further stated that it is not correct to say that the seizurememo was prepared in the police "station and he stated that the Axe was seized at the place of .occurrence. The accused was also keeping Axe when he took the ~~ police to the forest area. (15) P.W.9 A.R. Quereshi, the 1.0., has stated that after giving F.I.R., ani^merg intimation Ex.P-10 & P-ll on 6.9.2000 thei ^^^?""^.:S3'3.3S£p^^istSS-si accused gave memorandum Ex.P.2 stating that the body of Vimla Bai was lying in the forest near a tree and he can show the place where the body is lying, based on that Memorandum Ex.P.2 reduced into writing which bears his signature at place "B to B" and at fhe instance of the accused, in the presence of Liyakat Ali and Laxminarayan, the body was found from where blood stained soU, plain soil and broken pieces of glass bangles were seized under Ex.P.4. The Axe was seized under Ex.P.3. The same was stained with blood. He also seized a Sando Banian of the accused stained with blood. (15) A perusal of the seizure mem.0 Ex.P.3 reveals that just after the seizure of the Axe, the same was sealed, even the Sando Banian which was seized from the body of accused was also sealed. P.W.6 Dr. H. D. Dahire has stated that on 27.9.2000, the Axe was received in sealed condition and after examination of the Axe, again the axe was sealed. He advised for chemical examination by Forensic Science Laboratoiy. A perusal of the report Ex.P.15 ofthe F.S.L., shows that the samples were received in sealed condition and on this aspect, neither Dr.P.W.6 H.D. Dahire nor the Investigating Officer A.R. Qureshi (P.W.9) have been cross examined by the defence counsel regarding the sealin^ position of the Axe when it was received by Dr.H.D. Dahire and when it was received by the F.S.L. It is true that it is the duty of the prosecution as also fhe Presiding Officer of the Court that while recording the evidence to ensure that the weapon of offence is produced in the Court because in serious offences, the production of weapon of offence is always of great importance in order to give opportunity to the accused to cross-examine on the aspect of the injuries as to whether those injuries can be inflicted by the weapon, or to cross-examine fhe medical jurisprudence on (Ue aspect that whether those injuries can be .mflicted by the said weapon. It is also necessaiy for the Court and the prosecution to ensure that the concemed invesdgating officer and the witnesses of seizure must state about the condition of weapon of offence whether it was sealed or not? All these aspects are very important in the eriminal jurisprudence but equally it is the duty of| the defence also that as and when they want to cross-examine prosecytion witnesses on the aspect of sealing of the articles afihe time of-^eizure as also on the aspect whether the injuries Caia!ibe; fhe ' \^lWX!SSSSW--!^s ^f-\ caused by the weapon. If they remain silent then, if such questions are raised at the appeal stage, it becomes difficult to give finding on these aspects and the defence counsel is not within his right to raise question regarding prejudice to the accused on account of non production of the articles in the court as at the first opportunity, he should have raised this objection. The defence counsel is also supposed to stand before the Court in order to assist the Court in all respects for arriving at a just decision in the matter. As has been mentioned earlier, the seizure memo itself speaks that the axe was sealed. The Doctor has stated that he received the Axe in sealed condition for examination, thereafter after sealing he returned the same fpr getting it examined by the F.S.L and Ex.P.15 also shows that the Axe was received by the F.S.L. in sealed condition. Therefore, we do not fmd any substance in the arguments of Mr.Chatterjee that the Axe was not sealed. (16) From the above discussion, it is established that the place of occurrence where the body of Vimla Bai was lying was pointed by the accused and even the weapon of offence i.e., Axe was produced by him, as per the seizure memo same was stained with blood, as per the Doctor's evidence, the samewas stained with blood, as per the F.S.L. report, the blood was found on the Banian of the accused and as per the serologist regort, the human blood was fbund on the Baniyan. ., ., (17) For the foregoing discussion, the prosecution has been able to establish that the deceased Vimla Bai was seen alive with the accused while going to the forest where the dead body was found just before her death. The place where the body was found was pointed by fhe accused. The weapon of offence i.e. Axe was seized from the accused and the Doctor has opiped that the injuries found on the body ofVimla Bai could be caused by said Axe. The Sando Banian of the accused which was seized under Ex.P.3 was found stained with human blood, therefore, from the above circumstantial evidence the coinplicity of the accused in crirue in question is established, all these circumstances point towards the involvemenf of the accused in crime in question and there is no possibility df coining any other person in between when the accused^and deceased were seen together 85 when the crimei was committed. Looking to the manner in which the accused attackW •-1* '.- t <^3^ the deceased with the Axe, her frontal bone was fractured, left side ribs 1 to 9 were fractured, right side ribs 3 to 8 were also fractured, as a result of which, there was a spontaneous death and accused attacked her with deadly weapon i.e. Axe, the accused has rightly been convicted u/s 302 I.P.C. (18) We do not find any merit in this appeal and the sarae is dismissed. __—— Sd/- L.C.BHADOO Judge Sd/- Sunil Kumar Sinha Judge f£^(