CRI A ‘ ‘VO ' ””"w-u <66; 000 n , /Dwmo mua‘ n Bench ( rn) MYBImLANE w . 1" {rsho ttam , age& bout WW M” / a Ia} .J (u (IE3 55 year‘s S/O hMMhKa/m (:wwmZ 9k ti— R/O Dundpan Kunkuri, ENS. atthalgao, D is-it. Raigarh (M.? . VERSUS ‘ v h ‘State of, h'iadhya Prades. § £1310 Ob Al‘VbAJ UNDETE SnCT COBE OF LO‘J % 374 (I TUE .-..-‘— SENTENCE. imgm To 1T é , / i x Hb5o 1 det of paymerlt 1 year's RJ. 1. Kinder section 502 of sonme‘at r 1e an LEA). fne o oo/ n faul 2 / D i En / 2 .) J HIGH COURT OF CHHATTISGARH AT BILASPUR 7 Cr. Aggeal No. 803(2000 Purushottam ‘ :Versus— State of Madhyia Pradesh (now Chhattisgarh) 7 JUDGMENT FOR CONSIDERATION ‘K Dilip Raosaheb Deshmukh “\ Judge f/ : \ 3di- m T h Sdl- 1" " L.c.BHADoo. Judge ' \> imtoamoé Hon’ble Shri Justice L.C. Bhadoo . /&LKLL_ Post for 6th .0F7~:2005 fw+r ‘ Sd/— § m *(JIEDGE) .062005 J / . HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Appeal No. 80312000 Purushoftam ' ‘—Versus- t State of Madhya Pradesh (now Chhattisgarh) \ CORAM: HON’BLE SHRI L.C. BHADOO "£"—‘ . ""—"""————" HON’BLE SHRI DILIP RAOSAHEB DESHMUKH, JJ u Shri Abhay ’l‘iwari, Advocate for the appellant. Shri Sachin Singh Rajput and Shri Akhjl Mishra, Panel Lawyers for the State. JUDGMENT Per Dilip R. Deshmukh, J. \ The accused appellant has been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment fore life for committing murder of Santoshi Bai on 28.09. 1997 at about 01.30 P.M. in village Kachhar, Police Station Patthhalgaon. The impugmd judgment was delivered by Mr. A.K.Samantray, 2nd Additional Sessions Judge, Raigarh in Sessions Trial No.33/98. 2. It is not disputed that Koushalya Bai P.W.5 is the mother of the deceased. 3. » Blieily stated the prosecution story is that Santoshi Bai aged about 20 years though married was living with her mother Koushalya Bai P.W.5. On 28.9.1997 Santoshi Bai retained tofth/e/J vw /\ house from work at about 12.00 noon. The appellant alongwith one Lalji Singh P.W.8 was present in the house with Koushalya Bai P.W.5, The appellant was wean'ng blue colouted shirt and black full pant. Lalji Singh P.W.8 said to Santoshi Bai that he would get her man-led to the appellant‘Purushottam. This annoyed Santoshi Bai and she left the house for bathing towards the well. The gpfpellant sent Lalji Singh for buying liquor and went towards the well where Santoshi had gone for bathing. The appellant forcibly dragged Santoshi, undressed her and committed rape on her. The appellant thereafter throttled Santoshi Bai and threw her body in the well. During the occurrence Santoshi Bai resisted which caused injuries on the person of the appellant, 4. Kuman‘ Bai P.W.6 saw the appellant dragging Santoshi near the well and informed Budm’ PWIS who in tum informed \ Koushalya Bai P.W.5. Koushalya Bai went to the place of occurrence and saw that the sari of Santoshi Bai was hoating in the water of the well. The dead body of Santoshi was removed nom inside the water. It was naked. Her saya, blouse, hair band and the blue shirt of the appellant were also taken out &om the well. 5. Balram P.W.1 lodged marg intimation EX.P.3 in Police Station Patthhalgaon. Station House O$cer Shri D.P.'I‘hakur P.W. 14 proceeded to the spot and wrote Dehati Nalishi EXP. 15 and registered oEence under Section 302 I.P.C. vide first information report EXP. 16. Panchanama Ex.P.7 of the dead body of Santoshi O A h x:a Bai was prepamd and the body was sent for medical examinah‘on. Dr. J, Minj P.W.9 who conducted ths autopsy found the following injun'es: 1) One abrasion over Iight side of neck sized V2” x 1/2”. 2) Curved abrasion ovor xight side of the neck sized V2” x V2”. ' 3) Linear abrasion over left side of the neck sized 1 cm. x 1 I 2 cm. 4) Abrasion over chin sized 1 V2” cm. x 1" X V4”. 5) Abrasion over light side ankle joint 2” x 1" x V4”. 6) Abrasion over back side left scapular region sized 1x i/2" X 1 V2” X V4”. All the above injuries, in the opinion of the Doctor, were ante mortem in nature. Both lungs were congested; The hyoid bone was fractured. The lips were blue, tongue was swollen, bruised in 'colour and prbtruded, hands were \clenched, discharged feacal matter was present. Nails were cyanosed. Neck was swollen. In the opinion of the Doctor, the injuries were caused by hard and blunt object except injuries No.1 to 4 which were caused by nails. In his opinion, Santoshi Bai died due to Asphyxia as a result of throttling and mode of death was homicidal. 6. On 28.9.1997 vide seizure EX.P.5, the saya, blouse, one polyster sari and one full sleeves blue shirt with the right side of the sleeve torn were recovered nom the well. Soap, Soap-case, bathing brush and one yellow Phundra were recovered from near the well vide Ex.P.8 by Sub—Inspector D.P.Thakur P.W. 14. During a and dark gm Va“ @ preparation of Panchanama EX.P.7 it was noted that Santoshi Bai was bleeding from the vagina. Vaginal slides were prepared and were sent for chemical examination alongwi‘rh the underwear (Chaddi) of the appellant which was seized vide EX.P.6. In i Chemical examination presence. of spermatozoa was confirmed on , the underwear of the appellant but not on the vaginal slide of ‘Heceased Santoshi Bai. After completion of investigation, the accused appellant was prosecuted under Section 302 I.P.C. Upon $ committal of the case by Judicial Magistrate First Class, Dharamjaigarh, sessions trial No.33/98 commenced. The accused abjured his guilt. As many as 18 witnesses were examined by the prosecution. The accused examined Sainath Singh D.W.1 in defence. 7. The tiial Court believed the prosecution evidence, convicted and sentenced the appellant as shown in paragraph 1 (supra). 8. The learned counsel for the appellant has mainly contended that Kumari Bai P.W.6 in paragraph 4 of cross-examination has clearly admitted that she did not tell the police that she had seen the accused appellant dragging Santoshi Bai near the well but had only said that she had seen one boy dragging a girl. The police did not call her for identihcah'on of that boy or girl. This testimony goes to show that Kumari Bai did not identity the appellant. There is no other eye witness. The appellant and Lalji Singh had left the house of Koushalya Bai P.W.S together, and therefore, even Lalji Singh P.W.8 could have been the perpetrator of the crime. The circumstances mlied upon by the prosecution were not fully established and the evidence led by the prosecution did not exclude the hypothesis of the innocence of the accused. 9. On the other hand,‘ the leanned Government Advocate t supported the judgment of the trial Court and argued that the fact t‘hét Santoshi Bai died a homicidal death, the evidence that La1ji Singh wanted Santoshi Bai to be manied to the appellant, the 4 presence of the appellant in the house with the deceased dun'ng the conversation which annoyed the deceased, the recovely of the‘ blue shirt of the appellant flom the well, the testimony of Jugeshwar P.W.2 who saw the appellant near the well and the fact that the accused appellant had also sustained injuries during the occun‘ence were fully proved by the prosecution and established the guilt of the appellant beyond doubt. 10. We have perused the record and have also given our thoughtful consideration to the rival arguments. _ 11. The law relating to appreciation of circumstantial evidence has been laid down by the Apex Court in the case of Dhananjoy Chatterjee v. State of W.B. reported in (1994) 2 SCC 220 as under: “In a case based on circumstantial evidence, the circumstances non} which the 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 thc chain of the evidence must be so complete as not to leave any masonable gmund for the belief consistent with the innocence of the accused.” 12. Koushalya Bai P.W.5 has deposed that on the date of occurrence Santoshi Bai retgrned from Work at noon when Lalji Singh P.W.8 and the appellant Purushottam who had, after consuming liquor, come to his house and were sitting there. She has categorically stated that appellant Purushottam was wean‘ng a $ blue coloured‘shirt and black pant. Lalji Singh had said that he had searched a bridegroom for Santoshi Bai which caused annoyance to Santoshi Bai and taking a soap she left for bathing at the well. Lalji Singh also left the house and after some time the appellant also left saying that he was going home. After some time on receiving information nom Budu, Balram and Jugeythat some clothes were floating in the water, she went to the well and saw that the san' and phundra were heating in the well. There was sign of dragging near the well. Thereafter the dead body of Santoshi Bai was recovered. The body was naked. There were injuries on the throat, chin, cheeks, nose and forehead and blood was coming out of vagina. 13. It was pointed out by the counsel for the appellant that in cross-examination paragraph 6, this witness has stated that she had told in her statement under Section 161 Cr.P.C. that Lalji Singh had said that he had searched a bridegroom for his daughter ‘ ‘ - but would not know if thc same was not written in her case dialy statement EX.D. 1. We have gone through EX.D.1 wherein it has been clearly stated that Lalji Singh had said to Santoshi Bai that he would get her manied to Purushottam who would be their “Bhato” which had annoyed ‘Santoshi Bai. Thus we fmd that this part of the evidence has been recorded without perusal of EX.D. 1 Byfthe trial Judge. We find that the testimony of Koushalya Bai P.W.5 that Lalji Singh and the appellant Pumshottam who was 4 wearing a blrie coloured shirt and black pant were sitting in the house when Santoshi Bai returned from work, and when Lalji‘ Singh’s conversation had annoyed she left for bathing to the well and soon thereafter the appellant had also left for the'house. 14. Lalji Singh P.W.8 is related to the appellant. He has stated that on the day Santoshi Bai died, he and the appellant Purushottam had gone to the house of Koushalya and at that time ow Koushalya was alone. On being cross-examined by the Assistant Public Prosecutor, he has admitted that in his case diary statement he had told the police that after some time Santoshi had come there and he had jokingly said that he would call Pmushottam as “Bhato” (brother—in—law) whereupon she got annoyed. He has also admitted that the appellant Purushottam had asked him to bring the liquor whereupon he had gone to his e house. Nothing has been elicited by the defence in his cross- exarnination which would render his above testimony unreliable. Thus, the testimony of Koushalya Bai P.W.5 fmds cormboration from the testimony of Lalji Singh P.W.8 that the appellant was present in the house of Koushalya Bai when the conversation by -La1ji Singh about calling Purushottam as Bhato (brothervin-law) had annoyed Santoshi Bai. , , 3 15. BaJram P.W.1 had deposed that he had gone to the well on gegng informed by Budu axld saw that one sari and phundra were iloating on the water. When the police arrived, the dead body was 4 recovered from the well. 6 16. Jugeshwar P.W.2 has testihed that upon information received from Budu he had gone to the well and saw the appellant Purushottam standing near the well. On being asked,‘ Purushottam started bathing himself. When he peeped inside the well, he saw that a sari and phundra were floating on the water. So far as testimony that this witness had seen Purushottam standing near the, well in which the sari and phundra were hoating, is concerned, this has not been rebutted ~in cross- examination. Madanram P.W.3 is the witness who was asked by the police to get inside the well to take out the phundra and clothes whereupon he had taken out 4 numbers of clothing which were seized vide Ex.P.5. by the police. In cross-examination, it has emerged in his testimony that he had taken out one sari, petn‘coat, blouse and shirt from the tank. Nothing has been elicited in cross- examination which would render his testimony unworthy of credit. tgm Thus, it is fully established that &om thc well, as per seizure memo EX.P.5, one san', blouse, petticoat and one shirt were seized by the police. 17. The tesfimony of investigating onicer D.P.Thakur P.W.14 that he had seized one cotton petticoat, blouse, one polyester sari and one blue colouredrfull sleeves shirt with the right sleeve torn vide seizure memo Ex.P.5 after these articles were taken out from the well, is fully corroborated. It is thus fully established that one a blue coloured full sleeve shirt of the appellant was recovered from the well horn which the dead body‘of Santoshi Bai also recovered. He has further proved the preparation of Panchanama of the dead body of Santoshi vide Ex.P.7. He has stated in crOss—examination that when he reached the spot, the dead body of Santoshi had been taken out nom the Well which is corroborated \by the testimony of Koushalya Bai P.W.5 in paragraph 3 that she had taken out the dead body of Santoshi Bai horn the well and found that it was naked. 18. Knmari Bai P.W.6 aged about 13 years has deposed that she saw the accused dragging Santoshi near the well and had informed this to Budu. However, in cross-examination she deposed that she had stated in her statement under Section 161 Cr.P.C. that she had only seen that one boy was dragging one girl but did not tell their names. She has further admitted that since she was at a distance she could not identifyihe girl and had merely heard the ‘4‘? um 10 noisa of dragging. Thus, her statement in cross-sxamination randers her tesfimony wholly unteliable. 19. We have gone through the medical evidence of Dr. J.Minj P.W.9. The dndings recorded by Dr. Minj have been dealt with in paragraph 5 (supra) in details. Learned counsel for the appellant has not been able to create any dent in the testimony of Dr. Minj either during cross-examination or during arguments before us and we fmd that the testimony of Dr. J.Minj P.W.9 establishes 4 beyond douHt that Santoshi had died a homicidal death due to throttling and there were injuries present on her person. 20. Prosecution has examined Dr. Laxman Banoda P.W.12 who has deposed that on 29.9.97 the appellant-Pumshottam was sent for medical examination n‘om Police Station Patthalgaon and on examination he had found the following injuries on the appellant: He opined that the injuries sustained by the appellant could be caused by nail scratches or by teeth bite. We have gone through the testimony of Dr. Laxman Banoda P.W. 12 and find it to be wholly unrebutted in cross—examination. It indicates that the /// ./’ a) Abrasion 1.5. cm. x .2 cm. over left angle of mouth blackish in colour. b) Abrasion 2 cm. x .2 cm. on the chest. c) Abrasion 1 cm. x .2 cm. on posterio lateral aspect of right forearm. d) Abrasion 3 cm'long over right elbow. 11 @ deceas€d must have scxatched the appellant by nails when the appellant dragged, ovexpowcred and thmttled her. 21. Thus, mm the foregoing discussion, we md that the following links in the chain of circumstantial evidence have been fully established by the prosecution. i) That the appellant wearing a blue shirt had gone to thg house of Santoshi Bai in the afternoon on the date of occurrence-with Lalji Singh P.W.8. 4 ii) That on return of Santoshi Bai from work, Lalji had said that the appellant was a prospective bridegroom for Santoshi ‘ which had annoyed her and she left for bathing at the well. iii) That Lalji Singh P.W.8 had thereafter returned to his home, iv) That the appellant also left the house of Koushalya Bai P.W.5 and soon thereafter was seen at the well by Jugeshwar P.W.2 and at that point of time Jugeshwar had seen the‘sari and phundra hoating inside the well. v) That Santoshi Bai had died a homicidal death due to thiottling. Her body was naked and had sustained injuries. Vi) That one blue shilt of the appellant with its right sleeve tom was recovered nom the well fmm where the dead body of Santoshi, her saya, blouse and sari were recovered. vii) That the appellant had sustained injuries on the chest, face and right shoulder and right elbow. This also corresponds to 12 the fact that right sleeve of the blue shirt recovered from the well was torn. 22. Bearing in mind the law laid down by the Apex Coult in ‘ Dhananjoy Chatterji’s case (supra), we find that the above fully _ established links in the chain of circumstantial evidence are of a conclusive nature and consistent only with the hypothesis of the Eight of the accused. These established links are not capable of being explained by any other hypothesis except the guilt of the i accused and the chain of circumstantial evidence is so complete o that it leaves no ground for the belief consistent with the innocence of the accused appellant. 23. Having thus considered the evidence led by the prosecution, we are of the considered opinion that the trial Court has rightly convicted the accused appellant under Section 302 of the\I.P.C. We flnd no merit in this appeal and dismiss it accordingly. Mm G! sdl- I *- /"P’a \ Sdl- L.c.BHADoo b DeshmUKh n»; Judge ihtoyéow Dilip Raosahe Judge