JUDGMENT (15.04.2010) High Court of Chhattisgarh at Bilaspur DB: Hon’ble Shri Justice T.P. Shanna & Hon’ble shri Justice R.L. Jhanwar. J & J. Criminal Appeal “0.571 l 1992 APPELLANT: Jagannath s/o Chhobil Mehar, aged about 26 years, r/o village ’l‘irga, Thana Arjunda, Distu‘ct Duxg (MVP. now C.G). Vs. The State of Madhya Pradesh (now Chhattisgarh) RESPONDENT APPEQLUNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE APPEARANCE: , o Mr. Amiya Kant Tiwari, counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate, for the State. The following judgment of the Court was passed by T.P. Sharma, J, 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 29.04.1992 passed by the III Addl. Sessions Judge, Rajnandgaon, in Sessions Trial No.82] 1991, Q whereby and where-under the leanied Addl. Sessions Judge after holding the appellant guilty for commission of mmder of Shiv Kumar and for giving false information, convicted the appellant under sections 302 85 201 IPC and sentenced him to undergo imprisonment for life; and R.I. for 3 yea1s and to pay a ’nne of Rs.200/-, in default of payment of nne, to further under go SJ. for two months. “4.x The judgment is impugned on the ground that without any credible and clinching evidence sufficient for conviction, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. The case of the prosecution, in brief, is that on 09.01.1991 the appellant and his bnother—in—law (Jtja) along-With their wives and other mlatives' went to Jalbandha fair (Madai) nom Where they dropped their family members in a Bus to their village Madiyapara and the accused and deceased proposed to reach their village by evening after wandering the fair on a ‘* bicycle. Thereafter the accused and deceased lett for Kukurmada village. The accused was riding the cycle and the deceased was sith'ng as Pillion rider. It ‘is alleged that villagers had seenrthe accused and deceased coming on cycle towards village. On the way, they took Pan/beetle horn a Beetle shop in village Sunariahtla But the deceased did not return to the house by evening. According to the prosecution, on the way, the accused committed brutal murder of the deceased by severing the. head of deceased hom tmnk and by chopping private parts and testicles of the deceased and in the said night itself, he reached village Harda and tried to. tell the villagers that deceased Shiv Knmar met with an accident with a Jeep resulting in death of deceased in the said accident. The deceased himself lodged the report on 10.01.1991 in Police Station Ghumka vide EX.P. 31 showing that as a result of accident, the ' . deceased has died» Themafter, a chopped trunk of the deceased near a culvert was found. Merg no.1/91 was recorded under EX.P.32. After summoning witnesses, the inquest on the body i.e., trunk of the deceased was prepared vide EXP—2. One cycle standing near the place of incident i 1 a was recovered and seized vidc Ex.P.3. The blood stained full pant and undeIWear wem seized mm the iield of one Hari Ram Yadav under Ex.P.4. One red colored Shawl was seized near the cycle vide Ex.P.5. Blood stained earth and plain earth were seized mm the place of incident vide Ex.P.6. The dead body of the deceased was sent for autopsy to Government Hospital, Khailagarh vide Ex.P.20A. P.W.12 Dr. S.S. Chhabra conducted autopsy vide Ex.P.20 and found the ; Iollowing : (i) Chopped trunk of the male body Without head. The head was sepaxated mm collar bone. (ii) " Penis 8a scrotum wele found cut n‘om the root. (iii) ‘Abrasion marks were found on the back side of the body. (iv) No internal injury was found. The doctor opined that the cause of death was shock due to excess hemorrhage. The accused was taken into custody and he made disclosme statement vide Ex.P.12. He took the police near Guava tree where the blood stained Khwpi was seized vide Ex.P.13 and a wrist watch of deceased was seized videg Ex.P.l4. The blood stained clothes were seized hom tde accused vide Ex.P.15. One photograph was seized vide Ex.P.16. The Panchnama was recorded under Ex.P. 17. The accused was subjected to intenogah'on and Witnesses have identihed the . accused, vide ExePeJKQ an P.19A. The Patwan' has prepared a spot map vide Ex.P.28. The seized articles were sent for chemical examination to Forensic Science Laboratory vide Ex.P.38 where the presence of blood on Khurpi as also on the clothes of he accused and deceased was coniirmed vide t “:—n Ex.P.39. The Statement of Witnesses were recoxded under section 161 Cr.P.C., and after completion of the investigation, charge sheet was $cd before Judicial Magistrate First Class, Rajnandgaon, Who in turn committed the case to the Sessions Judge, Rajnandgaon, nom Where the learned Addl. Sessions Judge received the case on nansfer for m'a]. In onier to pmve guilty of the accused, the prosecution has Wed as many as 22 witnesses. The accused was examined under section 313 of Cr.P.C., in which he denied the cimumstances appearing against him and’ pleaded his innocence 65 false implication. In defence, the accused has ‘ also examined Jailal (D.W.1) and Sitamm (D.W.2) in his defence. D.W. 1 Jailal, the father-in—law of deceased deposed that Khuwi, article D, was kept by him at Guava nee which was seized by the Police. D.W.2 Sitamm has deposed that the deceased was stronger than the accused. After ahording opportunity of hearing to the parties, leaxned Addl. Sessions Judge has convicted and sentenced the appellant in the aforesaid manner. ¢¢. d We have heard learned counsel for the parties at length and have also perused the records ofthe sessions case. Learned counsel for the appellant vehemently argues that the prosecution has =not proved the homicidal death of Shiv Kumar and the conviction is wholly based on the last seen theory which is not sumoient to base conviction of the accused in the absence of any direct evidence. He also argues that the prosecution could not establish that the : ‘ 1 t blood found on the Khurpa and other arh'cles is the on'gin of human blood. He further submits that the appellant has been convictsd only on the basis of suspicion and the suspicion however cannot take place of proof in ‘fegal evidence and the prosecution is Iequired to prove all complete chain of circumstances for conviction of the accused. Counsel for the appellant placed reliance on a decision in Indraiit singh -v‘s- State of Punjab, AIR 1991 Supreme Court 1674 iii which the Supreme Court held that in absence of any direct evidence and enmity between the deceased and ‘accused, only the sole circunistance of last seen in the company of the accused is not su$cient for conviction of the accused. 9. On the other hand, learned counsel for the State vehemently opposes the appeal and submits that the evidence adduced on behalf of the prosecution is smcient for drawing inference that the accused/appellant is the person who caused homicidal death of deceased. He submits that P.W.12 Dr. Chhabra found the incised/cut wound over the neck and private‘pait; and the head was chopped] separated 6‘ nom the body and the head was missing. Therefore, the evidence of doctor is suEcient for drawing inference that it is a hominidal death, which contradicts the explanation given by the accused that the deceased has died as a result of the accident. He further submits that deceased was last seen alive in the company of the appellant, therefore, the conviction is not only based on‘circnmstantial evidence of last seen together but also based on medical evidence of the 1 ‘ Doctor. It has been further argued that in the present case, 6 though the on’g'n of blood on Khwpa and some other anicles was not established due to disintegration of serum, but the appellant cannot claim that the blood stuck on the Khurpa E or some other articles would not have been human bloo‘d at all. Learned State Counsel relies on a decision in State of miuthan Vs. 1mg Ram and otherg, [1999; 3 sec 507, in which, the Supreme Court held that the weapon was recovered at the instance of accused and failure to establish the origin of blood due t6 disintegration does not mean that u - the blood stuck on the weapon would not have been human bloodi L a 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on mcmd. Although in the preSent case the appellant has not admitted the homicidal death of deceased Shiv Kumar, but according to the medical evidence of P.W.12 Dr. S.S. Chhabra, who conducted the postmortem, the head of the deceased was cut. Scrotum and Penis were also cut ham its root and abrasions were found in the back of the deceased. However, as per FIR. EX.31 lodged by accused, tlfe cause of a}. death was accident. Therefore, the medical evidence of Dr. P.W. 12 and his autopsy report clearly contradicts the version i of accused/appellant that the deceased died in the accident. i The evidence of P.W.12 Dr. S. S. Chhabra is sumcient to establish the fact that :thedeath of deceased was not due to accident, but it was on account of chopping of head hem trunk with some sharp edged weapons and it was homicidal i nature. n 11. As regards the complicity of the appellant in crime in quesu'on, the conviction is substanh'ally bascd on circumstantial evidence and in case of cimnmstanfial evidence, the prosecution would require to pngwe the following ingredients: (i) The circumstances mm which an infemnce of guilt is sought to be drawn, must be cogently and firmly established. (ii) Those circumstances should be of a denm'te tendency une ' gly pointing towards guilt of the accused; u (iii) The circumstances, taken cumulah‘vely should form a chain so complete that there is no escape horn the conclusion that within all human probability the‘crime was committed by the accused and none else; and (iv). The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 12. In the present case, the prosecution is required to establish the following circumstances to prove the guilt of the accused: (ii That the appellant was in the Company of deceased and last seen alive with the deceased and thereafter the deceased was found dead. a. d The appellant and deceased were moving on cycle at Madai; (ii) (iii) The dead body of the deceased Shiv Kumar was found near a culvert; The appellant has explained that the death of deceased was result of accident. 0. (V) That the death was not result of accident, but it was homicidal in nature. é) 13. In order to prove the afomaaid cilcumstances, the prosecution has cxamined P.W.1 Anasm'ya, wife of deceased. She deposed that accused is son of her uncle (Kaka). She G deposed that she along-With her husband and accused went to visit Jalbandha fair (Madai). Thereafter, she was dropped in a Bus by her husband and appellant, to go to her maternal home (Mayke) at Madiyapar and the accused and deceased stayed in fair with cycle. They said that they will go by bus in the eveiijng. However, till evening they have not reached to village. On the same night at about 12.00, the appellant came to the house and she asked about he husband.‘ On which, the appellant ieplied that the deceased has met with accident with a Jeep and told‘that he searched for deceased but could not hnd him. k 7/9 \ / 14. Another witness Rajunath (P.W. 18) has deposed that he has Beetle shop (Pan Thela) in village Simhan'ya and about a year back, on the date of incident at Madai, the appellant and deceased came to his Beetle shop (Pan Thela), took beetle h‘om his shop (Wla), paid Rs.1.50 paisa and then they left his shop. Thereaher, on the very next day, the came to know that the person Who was with the‘appellant found dead and he also saw the dead body. In the witness box, pointing towards accused] appellant, this witness deposed that he was the person who came to his shop by cycle and another person Was sithi‘i‘g as pillion rider. As per the evidence of ,P.W.1 Anasuiya,‘ the. appellant was in the company of deceased since evening at least till mid night and at mid night the deceased was found dead. r In some cases, last seen theoxy alone may not be su$ci£nt no base the conviction of the appellant] accused for drawing infelence that the person who was in the Company of deceased had committed the murder. In case of lagst seen theoty, the prosecution is requimd to prove that the deceased was found alive in the company of accused, thereafter the deceased was found dead and there was no long gap between the last ‘seen and recovery of the dead body of the deceased. In’the present case, the time gap between . n the aforesaid two is short and the appellant himself intimated the wife of deceased at about 12 at night that her husband met With an accident But as per the evidence of Doctor, cut injury was found over the body in a state of complete chopping of head, which excludes the possibility of accident. Therefore, in absence of direct evidence and also enmity between the accused and deceased, the sole circumstance that the deceased was last seen in the company of accused alone is suEcient for conviction. In the present case, the appellant was not trespasser or stranger in the company of thedeceased but was a close relative of the d deceased who was wandering with the deceased at fair (Madai) and he was under obligation to oh‘er explanation that when the deceased parted the company of the appellant, but instead he odered explanation that the deceased met with an accident, which is fatal in the light of medical evidence. l’.W.22 L.R. Chauhan, ~‘Sub-Inspector, has deposed in evidCn-Cc the! fm 15.01.1991 he reached to the spot on :oeceipt of information by village Kotwar Samay Dash that there was human skeleton of skull. He prepared the signatures in his presence. On the same day, he sent the skull for examinau'on to Government Hospital, Khairagarh Q through constable Seshnarayan vide Ex. P.21-A,‘in which, he made siglatures at portion ‘A’ to ‘A’. He also made signature at portion ‘B to B’ in Ex.P.21. 0n 19.01.1991, he mcorded memomndum of accused vide Ex.P. 12 in which the appellant stated that he'and Shiv Kumar consumed liquor and were going on’cycle to Village Madayapaxa and on the way at a culvert in between villages Semitiya and Hasda, Shiv Kumar fell down horn cycle and beeame unconscious and at that time the accused chopped‘the head of deceased hum his body, and cut his private parts by Kimrpi and thtew his body. He also leconied reganling wheleabouts of Khuqni and wrist watch at portions ‘A’ to ‘A’ and ‘B to B’ respectively, which further led to their recoveries. He has further deposed that the Khurpi was Iecovered vide EX.P. 13, at the instance of appellant which was hidden at the root of guava tree in the courtyard of Jailal (D.W. 1). He has also seized a Wn'st watch at the instance of appellant Vida Ex.P.14 .on being produced by one Manharan. The evid‘énce of P.W.22 L.R. Chauhan is substantially corroborated by P.W.6 Babulal relating to disclosure of Khurpi and wrist watch and their recovery at the instances of accused. In his detailed cross examination? this wimess has stuck to version that accused has toldpto him thathe has kept the Khwpi at guava nee and the wriSt was given to ‘Manharan. ‘ 17. D.W. 1 Jailal has deposed in his evidence that Police has took out Khwpi horn his house which he has kept near guava ‘u’ vx i / 11 tree and deceased Shiv Kumar is his son-in—law. In his moss-examination, he admitted that he used to keep the Khurpi in side the box and he again deposed that he used to U keep the tools used for making Boots in a box, and‘ keep the Khurpi out of the box. But this witness has not explained why he has kept Khwpi near guava tree. From perusal of evidence ofJailal (D.W. 1), it is well established that he is not spealdng the truth. y 18.“ ”The accused has not explained that who has kept the Khwpi near the guava tree and how he knows that it was kept near the guava bee, In the absence of such explanation, the only inference would be possible that the appellant himself has kept the Khurpi at the guava tree hum whexe it has been Iecovered at the instance of the appellant. As Ieganis the presence of blood on Khurpi, learned counsel for the appellant submits that according to serologist report EX.P.41, origin of human blood is not established, therefore, the accused is entitled for acquittal. However, the appellant has not explained how the blood was present on the weapon a of odence. Failure of the semlogist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the Khuipi would not have been human blood at all, in view of the decision of the Supreme, Court m State of Rajasthan —vs- Teja Ram and others (supra). Non-establishment of origin of blood on the weapon is not fatal to the (prosecution case because the conviction is not solely based on the fact that the articles seized were stained with blood. In the present case, the 3" 12 prosecution has collected the evidence of last seen theory and the accused has not o§ered any explanation that when he parted the Company of deceased and the Iecovery of weapon and other articles was made at the instance of the accused. 20. In view of the above discussion, we are of the opinion that the prosecution has pmved the following circumstances: Q (i) the deceased was last seen alive in the company of the appellant and thereafter, Within a short span of time the deceased was found dead; (ii) thé appellant has not odexed explanation as to when he departed the company of deceased and how the deceased died in the accidentg (iii) the appellant and deceased were not strangers they were relatives; (iv) The weapon of oh‘ence has been recovered at the instance of appellant and was found stained with blood; (v) The appellant has not oEered any explanation that who has hidden the Khurpi near the guava tree, t Qt. 0 If these circumstances ale considered together, it would make out that the appellant is the person who has committed the murder of deceased, Therefore, after appreciating the evidence available on record, the Trial Court has nghtly convieted and sentenced the appellant as mentioned in Para 1 of this judgment 21. For the foregoing discussion, we do not hnd any illegality or infirmity in the impugned judgment warranting any 13 interference. The appeal is devoid of merit and it is hereby dismissed. Sd/— R.L. Jhanwar Sd/- Judge ' T. P. Sharma Judge