€\^ ^ ^ '^^ ^..^' r-" "^, '\^: ':^M '/ii ^: 11 ! ii ss ^l sy \ "3^ 'a 1^1'J Ns ^ y g ^ o| ws' !!<3 II ^ tt ^ JESJ oi a* ro -^i ii ^. ^^ • • 1 § 3' ( -S1 ^ , •? 1 <9 J^. ^ri M (V3 ^ ^ai E3, ^i i' i <^1 3 I! si 8t w -1^ 1 ^> 3o ai ^ M '^ ^ \ oo 1 •tej <A £1 •^ § ^ •-':-^:^;:'iK^ XI-.HC-22 3T(t^^7 f^lW3T{^T ^RNT^ft?[ WS^^'^^%?7^?"t;^Iflll^'FRi^^l^^^ 2-. ^~o3T ^FIT^R/'^^FTg, f^<ni<Ji^< ^n^r 'q?^ wwn"^w^ ^...•.,..^>..^^ ^">^' '^^??' -^H^T ^^T^R ^Tft^ Division Bench:- Hon'ble Shri Justice V.K Shri^lasteva & Hon'bte Shri Dhirendra Mishra •5^fqf^Fq^[ ?ijq^ff -^ fiT^ <f^^R ^^rf^H3^T .JJ. 24.03.2006 Shri S. K. Mishra, counse| for the appellant Shri U.N.S. Deo, Addi(ional Public Prosecutor for the State/ respondent. Orat Judgmentdictated o| Per Dhirendra Mishra. J. n Dais. The appellant has prefe^red this appeal under Section 374 (2) of the Cr.P.C. as he has been |convicted by the learned 2nd Additional Sessions Judge, Baloda Bazar, pistrict Raipur vide his order dated 2-7-99 under Sections 302 and 201 |of the I.P.C. and sentenced to undergo imprisonment for Ijfe and to payj a fine of Rs.1,000/- and imprisonment for 5 years and to pay a fine of l^s.500/-, in defauft of payment of fine to further undergo S.t. for6 month^ and 3 months, respectively. The case ofthe prosecu^on, in brief, is that deceased Sukwaro Bai was the mother of the appellanlj. Ishwar Prasad (PW-4), grand son of the deceased, gave information ir^ the police station Palari that his grand mother resided witti the appel|ant, he left the deceased in Mahamaya ja quarrel between him and the appellant. to his house and thereafter he went to his tempte on 23-4-97. There wasj He intented to take his mother house and in the following day he wa& informed by his wife that Sukwaro Bai is dead. To enquire this fajct, he along wjth Deendayal Satnami and Gopat Satnami went to the hjouse of uncle Sheetaldas who later on [^'^fe^- XI-HC-22 ^sr ^TPTRfT, '^R:PI?»'N^rray ^^^1'^r f^fi^3T^T ^N-^^i ^TO^§8 ^NS^b '^ 200 ^T[^T '^^f[W 'Hti^ -2.- informed that Sulwaro Bai died on Thursday i.e. 24-4-97 and he buried her in his house and healso intimated the fact ofdeath to Ihe Kotwar. After receiving this tnformatiorl addressed to the Sub Dwisjoijial Magisfrate, Batoda Bazar sought permission for search of the hoi(se and exhumingthe dead body of the deceased. Accordingly. the S.D. authorized Naib Tehsildar. S.S. |4., Baloda Bazar granted permission and ^lotwani Executive Magistrate and Naib Tehsildar to conduct inquest ov4r the ctead body. PW-17 S.S. Motwani, Executive Magisfrate and Naib vide Ex.-P/2 and-thereafter, exh Govemment Hospital, Palari. postmortem over the dead body Ex-P/1. Duringpostmortem.he person ofthe deceased. Howevi (1) (2) (3) (4) (5) (6) Bodywas lying ctow^ '^l^id^^TR^I? ^ ^S T^f^R - iT^cR^H^T S.H.O. Palari vide tetter (Ex.-P/11) [ehsildar jssued notices to the witnesses imed the dead body vide Ex.-P/3. The dead body of the deceased was ^ent for autopsy to the Assistant Surgeon, lpW-1 - Dr. F.R. Nirala conducted the 4fthe deceased and submitted his report |lid not notice any extemal injury over the ^r, on jnternal examination, he found ribs No.8.9 & 10 were broken. He al^o found Trachea of the deceased which was broken. Further, he found the|following features:- jn supjne position, Head remained cent|-atiy. eye dosed, Tongueprobucol. Both upper arm and|owerarm were semjflexed. Both palm and finget were clearect, The whote of the btxjly stajned with dry mud. [^^fe^ ^^F^ Is XI-HC-22 \^Ti^F^5T f^^t^^Tii?! '5^^i<^ ^ifta @ :[ -5-^ ^|^ld4, -g>ril^<s<s, fa^T^y WWTI"^rH1^ •M 209 ' fe^?" 3'TT^T iWT^: Trft^T -^' and opined that cause of de| sfrangulation and mode of deatt^ since death is about 72-82 hoursj On the memorandum (Exj- into possession at the instance got prepared by the S.H.O.. Mer^ Crime No.81/97 was registere<| arrested vide arrest memo Ex.-P^ After comptetion of the inv^stigation, ttie accused in the Court qf Judjdal who committed the case to the receh/ed by Additional Sessoins| trial Courtframed charges uhderj €ections the appellant abjured his guilt. The prosecution in orde^ accused exammed, in all, 1 7 recorded under Section 313 of prpsecution evidence anct plead^d teamed frial Court convicted an<i above. The homiddal death of Even otherwise, from ttie conducted the postmortem and antemortem injuries over the ^prf^RH WR^f ^ ft^ <P?l^.K ^^lf^ra^T ith was asphyxia and shock due to was homicidal in nature. Time passed P/4) ofthe appeWant pickaxe was taken the appellant. Spot map (Ex.-P/6) was intimation Ex.-P/10 was registered and under Ex.-P/17. The accused was on 3-5-97. i, charge sheet was filed against Magistrate, 1st Class, Baloda Bazar Sourt of Sessions Judge and same was Judge, Baloda Bazar for trial. Learned 302 and 201 of the I.P.C. and witnesses. to establish the charge agamst the Statement of the accusedwas jthe Cr.P.C.. The appellant denied the jnnocence. After hearing the parties, senten<^d the awused as mentioned d^ceased Sukwaro Bai is not in dispute. evjdence of PW-1 Dr. F.R. Nirala, v^io ^ubmitted his report Ex.-P/1, who found deajd body of Uie deceased and opined that .>•••,? [^t^ ^fe^ XI-HC-22 ^^i ^I^T^R, '®~atwi%,'f^^TR?^ 'WR'CT'^W^- '^ 200 •^^T' •311^T^T 'f^TN''3?I^T '^'^w^t?? 3:H^T???fI^R^f^ -V-' ^^f^tH 'RTTOT ^ ft^t 'rf^^R ^ 'sri^1 'SJT^T cause of death js asphyxia and jshock due to strangulation, it js establjshed that the death was homid<]la( in nature. '. -The onlyquestton to be decid^d inthjsappeal is whether the trial Courtwasjustjfjedmafrivingtheconcpusion regarding inyolvement of the appellant jn causing ttie death of the Aeceased. Learnedcounsel ypr ttie appellant submitted that there is nojeyewjtness to the incident and the prosecutioncase rests on circumstaritial evjdence. It is argued that the place from where the dead body jvyas exhumed is an open ptace, accessibte toalf and.therefore, recov^ryofthe dead bodyfrom the hQuse of the deceased has no signjficance ^ind the samecannot be considered as inerimmating circumstance to hold fie appellahtguilty. He further submitted that the tfeceased is the real mother ofthe appellant and there is nothingin the pjrosecution case to demonstrate that theappellant had any m<^ve to causejdeath ofhisown mother. Since the case rests on the drcumstantiat evildence. the motive is an jmportant factor to hold the appellant guilty ai^d jn the absence of motive, other circumstances relied ypon by the triajl Courtto cortvict the appellant are erroneous. On the other hand, teamed Ad^itfonal Publie Prosecutor supported the judgment ofthe trial Court. We have heard tearned coun^el There is no eyewitness to the i| upon the circumstance of last s< 1 for the parties. wident. Learned trjal Court relying »n and ftirther relyir^ upon the -t- circumstance that on the informatiorij of the appeltent, dead body was [^^R^ XI-HC-22 K^T^i'^FT 'f^ri^'^Tr^T '^HW^tT •^ (^. ^^ T?TPT[^/^^TT^, 'fa^l^y 3ir^r '^5^ WH^I'^'W^ ••^ 2(t0 'f^^r' A'STft^T'^IT^ ^Tft?F -5- exhumed from the pit behind the guilty. To establish the circur ^R^N^T 'RPTOf ^ 'fe^ Ti^R$K ^a??NH3:n^i house of the appellant held the appellant ince of last seen.theprosecution has examined Ishwar Prasad (PW-4^, who is the grand-son of the deceased and who has given informatiQn t(^ the police. Ishwar Prasad (FW/4) has deposed that Sukwaro Bai lived ^Wh hjm during her life time and also Hved with accused SheetaJdas. A djay before the incident, he saw that the accused teft Sukwaro Bai to M^hamaya tempte. On being informed by Jeevan. he went to her and a|sked her whereupon she informed that Sheetatdas has brought her hefe. In the meanwhite, Sheetaldas came there and questioned his authofity to take Sukwaro Bai with him. After some time, he saw Sheetaldas tlragging Sukwaro Bai towards Ms house and in the foll<wing day. he wa^ jnfomied ttiat Sukwaro Baj is dead. In the cross-examination of this wjitness no suggestjon has been put that deceased was not residing withjthe appellant on the date of the incident and thus the drcumstence of lasp: seen ofthe appellant with the deceased that she was alive is established |by ttie statement of this witness. The second circumstancei is the recovery of the dead body on the basis of information given l^y ttie appellant. To establish this dreumstance, the prosecution h|as examined PW-4, PW-13 Sunhar, and PW-14 Sonauram. Ishwar Pifisad (PW/4) has stated ttiat he was informed by Tirath and Saliktha^ his grand mother Sukwaro Bai has died. Thereafter he alongwithGopal house of Sheetaldas and found and Deendayal of the vittage went to the Ehat his house was locked. He calted his grand mother from the door. Nejar Mahamaya tempte, Sunhar, Sonauram and 3-4 other studente were s'rtti|ig and at that time Sheetaldas also came [^^^^ ^^ XRHC-22 V'3:H^T'^T ^i<=h 3?li?? ^RW^fi<T ^^Tqp^^/-g^nFI^,^^ aiT^T''??^? ^R??r^RT%>'<""'"""""'^'<"""""""<""^^ 200. fN^IT* 3T^I ^^T^R '?T?t^ ,^.- '^N^ft^-HTR^f "H fezl'Tf^T^R i73:if;OT3:[T^l thfeit has further stated that the deceased whlsn there. Sonauram and Sunhar whereupon Sheetaldas replied buried her in the house itself. Hej her to which the accusecl repliec| lodged the report in the police sta< and conducted the inquest over l cross-examiantjon he has stated process soil is placed on it. Wheh removed. He The accused was not present does not know as to how Sukvrein exhumed in his presence. To th^ that he was enraged because he | and he answered in affirmative. particulariy, in cross-examination, on the information of the been rebutted. Statement of thi| statements ofSunharFlW-13andj that Sheetaldas informed that olc< house; The statements of abovel by the Intimation Ex.-P/S. The the POIice Station. S.H.O. Palarij for search of the house from the and dead body 6f the deceased S.S. Motwani, Executive Magistr^te S.D.M. Baloda Bazaar to condu^t appellarjt the a^ked Sheetaldas where js the old lady the old ladydied yesterday only and jasked theaccused how he alone buried who are you to ask and thereafter he jion Palari. The police arrived the village |the dead body in his presence and in that the dead bodywas buried and in the the dead body was exhumed, soil was was of 80-85 years dd. the dead body was exhumed and he Bai died. However, ttie dead body was suggestion on behatf ofthe appellant |was not catted for burial of grand mother ^owever, from perusal of ttie statenient, 1 we find that version of this witness that dead body wos exhumed, has not witness is duly corroborated by the IPW-14 Sonauram who have atso stated lady has died and he buried her in his [wjtnessesare duty further corroborated was lodged by PW-4 Ishwar Das in jvide tetter (Ex-P/11) sought permission >ub Divisional Magistrate, Baloda Bazar jvas exhumed in the presence of PW-17 (Naib Tehsildar) who has stated that inquest over the dead body granted ['R^^fe^ retoort XI-HC-22 •^EET '^rp^R, ^'al^i^»I^TRTy ^i^r 'SRI^' ^Ti^r^T 1^W ^Ti^l ^NTiFrft^ ^l^i^T^W^ "^ 200 '^nfel^T 'RTR^f ^ ft^ lf^$R ^^R^TT^T permission. Aftergetting permjssi|)n,the dead bodywas exhumed and as per the order of S.D.M. the b<x?y was exhumed in hjs presence and inquest Ex.-P/3 was prepared an^ the statemente of PW/4- Ishwarj Sonauram and PW/17 - S.S. N body of the deceased Sukwaroj dead body was seized. Thus, from Prasad, RA//13 - Sunhar, PW/14- lotwani, jt is established that the dead Bai was discovered on the basis of the cause of death of the sfrangtulation and as such homi Thus, on the basis of afor opmion that the deceased Sut information given by the app^llant in the presence of Executive ^ • . .. • _ ' • ._.. • . -.^" Magistrate. PW/1 Dr. F.R.NiraI^i has conducted postmortenn over the dead body of the deceased and has found injuries described above on the person of the deceased and Iperformed autopsyand has opined that sased is asphyxia and shock due to il in nafaire. said analysis, we are of the considered aro Bai was last seen alwe in ttie company of the present appellartt just before her deatfi. PW/4 Ishwar Prasad stated that she was resic?ngwith appeltant at the relevant time jn his house. On the basis ofthe ir^ormation given by the appellant that he buried his grand-mother in his hcjuse, the dead body was exhumed from the pit situated near the house ofjthe appellant and the cause of death of Sukwaro Bai was homicidal. We jare of the considered opinion that takinfl into consideration the incriminatjng drcumstance which has been duly a cognent evidence, the prosecution has j been able to establish thej involvement of the appellant in causing the death of Sukwaro Bat on the basis of ctrcumstantial e^dence. So far as argument of th^ counsel for the appellant that in the absence of motive, the appellanjt cannot be convicted on the basis of ['R^ ^n^^ .•I XI-HC-22 ^ ^^ "i^r ^TFn^R, '^ftw^rt^iTffy s W^T^T f^ri^ 3?i^? ^T?N"^tt^ Raju ^ y/ ;< ^ 'Wl^TTWRT^ '^ 200 '^^T' cjrcumstantjat evidence is concerfned, something whteh js wjthin the absence of motive alone shall light of other established Jncrimi|iating below has not committed any I, we are ofthe opjnion ttiatmotive is p^rsonal knowtedge of the appellant and effect the case of prosecution in the circumstances. Thus, the Court |llegaljty or infirmity in convlcting and ni?t sentendng the appellant bythe injipugnedjudgment. In the result, we find ho mjsrit in the instant appeaJ and accordingly dismiss frie same. Sd/- V.K. Shrivatava Judge '^S^fa^l'1 'HPT^f ^ ^S "ri^T^K IT 3?f^F[ <RT^T Sd/- Dhirendra M[ishra Judge [^^R^