^t ; Before Hon'ble Division Bench EN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR CR. A. No. XS1fl' / 2008 V|VS$i®R APPELLANT (In Jail) VERSUS RESPONDENT ANIL SHARMA S/o Jai Narayan Sharma Aged about 22 Years, Resident at: Bade Banka, P. S. : Katghora, Dt. Korba State of Chhattisgarh, Through : Officer-in-Charge, Police Station - Kartala District: Korba (CG) CRIMINAL APPEAL UNDER SECTION 374 (2} OF THE CODE OF CRIMINAL PROCEDURE AGAINST JUDGMENT DATED 29.3.2004 PASSED IN S.T. N0. 356 / 2003 " State of Chhattisgahr V/s Anil Sharma & 2 Others " BY SHRI LAKHAN SINGH ADDITIONAL SESSIONS JUDGE KORBA (CG). .^'- A^j :!.s: .'•(°• HIGH COURT OFCHHATTISGARH AT BILASPUR Division Bench: Coram: Hon'ble Mr.T.P.SKARMA & Hon'ble Mr.R.L.JHANWAR, JJ. Wf" APPELLANT (In Jail) RESPONDENT APPELLANT (InJail) RESPONDENT Criminal Appeal No.572 of 2004 Vinita Singh aged 22 years, Wd/o Ashok Kumar Singh R/o. Bishunpur, P.S. Ambikapur, Dtstrict Surguja (C.G.) Versus State of Chhattisgarh through , S.H.O. Kartala DistrictKorba (C.G.) And Criminal Appeal No.559 of 2008 Anil Sharma S/o Jai Narayan Sharma Aged about 22 years, Resident at : Bade Banka, P.S.: Katghora, Dt.Korba Versus State of Chhattisgarh, Through: Officer-in-Charge, Police Station - Kartala District: Korba (CG) (APPEALS UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present: Mr.H.V.Sharma, counsel forthe appellant in Cr.A.No.572/2004. MrAbhay Tiwari, counsel for the appellant in Cr.A.No.559/2008. Mr.D.K.Gwalre.Govt.Advocate with Mr.Sanjeev KumarAgrawal, Panel Lawyer for the State/respondent. r : .• • JUDGMENT (Delivered on 10th February, 201 1) The judgment of the Court was delivered by T.P.Sharma, J.:- 1. Criminal Appeal Nos.572/2004 & 559/2008 fited on behalf of appellants Vinita Singh and Anil Sharma against the judgmentof conviction and order of sentenee dated 29.3.2004 passed by the Additional Sessions J,udge,Korba in Sessions Trial No.356/2003 are being disposedof by - this common judgment. 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By the aforesaid two appeals, the appellants have challenged legality & propriety of the judgment of conviction and order of sentence dated 29.3.2004 passed by the Additional Sessions Judge, Korba in Sessions Trial No.356/2003, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to.murder of Ashok Singh by appellant Anil Sharma in sharing common intention with co-appellant Vinita Singh under conspiraGy, concealing evidence of criminal case and dishonest misappropriation of property possessed by the deceased at the time of his death convicted appellant Anil Sharmaunder Sections 302, 120-B, 201 & 404 of the I.P.C. and appellant Vinita Singh under Sections 302/34, 120-B, 201/34 & 404 ofthe I.P.C. and sentenced them undergq. imprisonment for.life andfine ofRs.1000/-,in defaultof payment of fine- to further undergo S.l. for three months, imprisonment for life and fine of Rs.100/-, in defautt of payment of fine to further undergo S.l. for fifteen days, R.l. for three years and fine of Rs.300/-, in default of payment of fine to further undergo S.l. for one month and R.l. for three years and flne of Rs.300/-. Conviction is impugned oh the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. As per case of the prosecution, appellant Vinita Singh, wife o,- deceased Ashok Singh was residing with Ashok Singh in his matrimonial house at village Gangapur, appellant Vinita Singh was having love affair with co-appellant Anil Sharma and Anil Sharma used to visit the house of appellant Vinita Singh frequently. Both the appellants entered into an illegal agreement and in conspiracy tokill deceased Ashok Singh and in furtherance of the aforesaid conspiracy on 27.1.2003 at aboutlO p.m. appellant Anil Sharma took deceased Ashok Singh in his motor-cycle from the house of appellant Vinita Singh, on a way appellant Anil Sharma stopped motor cycle and caused fatal injuries toAshok Singh by knife, thereafter, he dragged body of Ashok Singh beside the road and with a view to destroy evidence of criminal case under conspiracy with appellant Vinita Singh Bfil-rffl]1 :'li! -'";~"( ; ^ poured petrol over his face and burn him badly, thereafter, both the appellants sold motorcycle of the deceased. In furtherance of conspiracy appellant Vinita Singh went to the house of Girijanand Singh (PW-3) at Ambikapur and informed him that Ashok Singh has gone somewhere by motor cycle but he did not return back from 27 Janyary,:2003. Girijanand Singh (PW-3) informed the same thing to father of deceased Ashok Singh i.e. Laxman Singh (PW-1). Laxman Singh made search of his son, then went to Police Station Jainagar and lodged missing report. He also visited the house of appellant Vinita Singh whom Vinita Singh told that on 27.1.2003 at about 6 a.m. Ashok Singh teft the house by motor cycle, thereafter tie did not return back. Missing report was lodgedon 11.4.2003 vide Ex.P/14. On 29.1.2003 i.e., just two days after the incident burnt dead body of one male was seen between Chachiya and Toulipali. Rupdas (PW-8) intimated the merg to Police Station Kartala vide Ex.P/6. Investigating officer after summoning the witnesses prepared panchnama of dead body of unknown person vide Ex.P/7 and described symptom fQund over dead body which reveals that injury by sharp edged weapon was foundover neck, chest, elbowjoint, thigh and different part ofthe body. Dead body was burnt. Bloodstained and plain soil, pair ofshoe, socks, half burnt sweater and other articles were seized from the spot vide Ex.P/9. Photographof dead body was taken vide Article 10. Dead body was sent for autopsy to Primary Health Centre, Kartala vide Ex.P/27. Dr.SASiddique (PW-2) conducted autopsy vide Ex.P/2 and found following injuries/symptoms, (i) Body was burnt up to chest (ii) Thirteen injuries were found over the body. (iii) Injureswere found over neck, chin, left shoulder, right leg and back. Injurieswere caused by sharp edged weapon and death was homicidal, in nature. Kartala police was investigated the offence retating to murder of unknown person and F.I.R. Ex.P/18 was registered. During the course of investigation Jainagar police informed Kartala Potice relating to the appellants, then clothes and articles recovered from the spot were placed for identification. Laxman Singh (PW-1) identified the aforesaid ..;.~\ y •a t, y s •^ ^ ''.^' clothes and articles as clothes and articles of Ashok Singh vide Ex.P/1. Accused Anil Sharma was taken into custody, he made disclosure statement of motor cycle and knife vide Ex.P/13. Knife was seized vide Ex.P/14 at the instance of appellant Anil Sharma. Yamha Crux motor cycle No.CG15-2191 was seized at the instance of appellant Anil Sharma ftom DakeshwarKumar vide Ex.P/16 along with registration and insurance as Articles 8 and 9. Hotel register was seized vide Ex.P/11. Copy of entry is Article 7. Spot panchnama was prepared vide Ex.P/19. Three accused were arrested including Jainarayan Sharma vide arrest Memo Exs.P/20, P/21 and P/22. On 16.3.2003 both appellants went to theshop of SurendraKumar (PW-14), who runs Auto Parts Shop, for repairing ofYamha Crux motor cycle, appellant Anil Sharma introduce himself as Ashok Singh and requested for repair of motor cycle. A^r repair of such motor cycle, appellants shown their intention that they want to sell their motor fcycle. Earlier friend of Surendra Kumar i.e., Dakeshwar Kumar (PW-13) has shown his intention to purchase motor cycle, then Surendra Kumar (PW-14) informed Dakeshwar Kumar (PW-13) that the present appellant is intending to sell his motor-cycle. Negotiation took place at Barpali relating to purchase of motor cycle and finally present appellant Anil Sharma who introduced himself as Ashok Singh went to Balco where finally they agreed to sell motor cycle for consideration of Rs.18,500/-. Dakeshwar Kumar (PW-13) immediat^ paid Rs.15,000/- to present appellant Anil Sharma and rest amountwa^ agreed to pay after obtaining signature of owner of the vehicle from F^TO. Motor cycle was handed over to Dakeshwar Kumar (PW-13). The appellants were required to come at Korba Bus Stand for providing sign in papers. Dakeshwar Kumar was required to pay remaining amount after obtaining aforesaid papers. Document was executed as Ex.P/12, thereafter appellant did not come to Bus Stand Korba. On 29.3.2003 appellant Anil Sharma along with Co-appellant Vinita Singh went to Pratap Lodge, Katghora where they stayed till 31.3.2003, they informed that they are family members. Theirentry was recorded in Article 7. Seized articles were sent fort chemical examination vide Ex.P/23 and presence of blood was confirmed over knife recovered from appellant AnilSharma vide Ex.P/24. ;A. H B 5. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Korba, who in turn committed the case to the Court of Sessions, Korba, from where learned Additional Sessions Judge, Korba received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellants, the prosecution has examined as many astwenty one witnesses. Accused/appellants were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. The appellants have examined defence witness Durg Prasad Rathiya (DW-1) who has deposed that while he was coming from Kudamura after attaining Jilla Panchayat meeting, he and Santosh Mishra were stopped inspector of Police Station Kartala to obtain sign on papers on the pretext that they have arrested accused and have recovered knife from them, but actually they havenot seen any knife. 7. After providing an opportunity of hearing to the parties, learned Additional Sessions Judge, Korba convicted and sentenced the appellants as aforementioned. l^il^^i^ 8. We have heard Mr.H.V.Sharma, counsel for the appellant in Cr.A.No.572/2004, MrAbhay Tiwari, counsel for the appellant in Cr.A.No.559/2008, Mr.D.K.Gwalre,Govt.Advocate with Mr.Sanjeev KumarAgrawal.Panel Lawyerfor the State/respondent, perused the judgment impugned and record of the trial Court. 9. Mr.H.V.Sharma, learned counsel for appellant Vinita Singh vehemently argued that after leavin^ of houseby her husbandAshok Singh she informed within two days to cousin brother of Ashok Singh i.e., Girijanand Singh (PW-3) who immediately informed the same to father of deceased Ashok Singh i.e. Laxman Singh, but father of Ashok Singh was not serious, he has not made any search of his son. Appellant Vihita Singh was helpless. As per missing report, Laxman Singh has Iqdged the report on 1 1.4.2003, after lapse of more than three months, •-=\^^ in these circumstances, if any help has been taken by her from co-appellant Anil Sharma, that would not constitute any offence, she was compelled to take assistance from other persons, in these circumstances when family members have not given any assistance or help even after lapse of three-four months of missing of her husband. Learned counsel further argued that evidence adduced on behalf of the prosecution is even, prima facie, not sufficient for suspicious that the appellants may have committed the offence. The prosecution has utterly failed to prove the offence beyond shadow of doubt. 10. MrAbhay Tiwari, learned counsel for appellant Anil Sharma vehemently argued that the present appellant has been convicted on the basis of circumstantial evidence and on the ground of conspira? and the prosecution has not coilected direct evidence against hir.i. In order to convict the accused on the basis of circumstantial evidence, • the prosecution is required to satisfy the following circumstances, (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except^ that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should 6xclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence ofthe accused and must showthat in all human probability the act must have been done by the accused. In order to prove conspiracy, the prosecution is required to prove that both the appellants were having sufficient time for agreement, they actually entered into agreement to commit some offence and in furtherance of such agreement they have committed some offence. As ^ tSii.itg^ ' per evidence coltecfed on behalf of the prosecution.Ashok Singh was missing from his house since 27.1.2003, one burnt & injured dead body was found on 29.1.2003 and it was not identified on the date of recovery of dead body, even as per evidence of Dr.S.A.Siddique (PW-2), body was not identifiable on account of badly burnt condition, thereafter motor cycle has been recovered from Dakeshwar Kumar along with sale agreement Ex.P/12 which reveals that some Ashok Singh has sold the vehicle and not by appellant Vinita Singh or Anil Sharma.As per record ofthe lodge, Anit Sharmastayed in ffie todge along with his wife but the prosecution has not proved the fact that appellant Anil Sharma h9s stayed with present appellant Vinita Singh and he has introduced Vinita.Singh as his wife, Family does not include wife and it includes other members of the family, even if it is presumed that after one and half months of such incident of missing or murder of Ashok Singh, if Vinita Singh has stayed with Anil Sharma who is known toher for search of her husband, then same cannot be treated as offence, espeeially when after informing father of the deceased by appellant Vinita Singh, fatherofthe deceased or other relatives has not taken any action for search of Ashok Singh, in these circumstances, any assistance or help given by Anil Sharma would not constitute the offence of murder and c'onspiracy, they have not sold motor cycle to any person and he has notcommitted any offence. 11. On the other hand, leamed State counsel opposed the appeals and argued that Ashok Singh (since deceased) was living with Vinita Singh. As per her husband, heleft her house on 27.1.2003 and did not return back, she has informedto Girijanand Singh (PW-3), cousin brother of Ashok Singh within few days, police has arrested her on 17.6.2003 after four and half months, after leaving the house by her husband she visited Katghora lodge and stayed with co-accused Anil Sharma, she has sold motor cycle in ,the month of March, 2003 which as per her allegation her husband has taken with him at the time of leaving his house which was not possiblefor her to sale such motor cycle when sam.eWas not within her possession.she has visited different places andshe stayed in lodge but she has not intimated the police relating to missing of her husband. 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He 'has atso admitted that teeth found in the. photograph may also find in the body of other persons but has specifically deposed that he has identified the photograph of dead body on the basis of teeth that photo isof his son deceased Ashok Singh. Defence has not askedanything relating to identification ofthe clothes of the deceased and in absence of any contrary circumstances or evidence, the only presumption would be legally possible that dead body found on 29.1.2003 was of Ashok Singh, son of Laxman Singh (PW-1) and husband of appellant Vinita Singh. As per evidence of Dr.S.A.Siddique (PW-2), death was homicidal in nature. Ashok Singh was died between 27.1.2003 and 29.1.2003, his dead body was found between Chachiya and Toulipali beside the road and death of Ashok Singh was homicidal in nature. 14. As regards the complicity of the appellants in the crime in question, conviction is substantially based on circumstantial evidence. In case of conviction based on circumstantial evidence, the prosecution is required to satisfy the following circumstances, (i) the circumstances fromwhich the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' arid not 'may be' established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the aceused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; , (iv) they should exclude every possible hypothesis except the oneto be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocenceof the accusedand must showthat in all human probability the act must have been done by the accused. 10 15. In the present case, the prosecution has tried to prove the following facts, (i) Ashok Singh was residing with appellant Vinita Singh. (ii) Vinita Singh was love affair with appellant Anil Singh. (iii) Since 27.1.2003 Ashok Singh was missing with his motor cycle from the house of appeltant Vinita Singh where he was residing with his wife Vinita Singh. (iv) His murdered dead body was found on 29.1.2003 between Chechiya and Toulipali beside the road. (v) Vinita Singh, wife of Ashok Singh, has not lodged any report till her arrest. (vi) Motor cycle which was taken by deceased Ashok Singh per allegation of appellant Vinita Singh was sold by ^'inita Singh and present appellant Anil Sharma introducing himself as Ashok Singh to Dakeshwar Kumar (PW-13). (vii) Present appellant Anil Sharma executed agreement to sell of motor cycle vide Ex.P/12, in which he has signed as Ashok Singh. (viii) Present appellant Anil Sharma along with Vinita Singh stayed in Pratap Lodge at Katghora on 29.3.2003 to 31.3.2003, in which Anil Sharma has shown himself as Ashok Singh and Vinita Singh is family ofAnil Sharma. (ix) Present appellants have provided Articles 8 and 9 of a registration book and insurance book of motor cycle to Dakeshwar Kumar at the timeof such sell of motor cycle. (x) Motor cycle and knife have been recovered at the instance of appellant Anil Sharma. 16. As per evidence of Girijanand Singh (PW-3), cousin of deceased Ashok Singh, in February, 2003 appellant Vinita Singh came to his house and told that her husband Ashok Singh has left her house and has told that he is going to .village Kharra to his father's elder brother house by Yamha Crux motor cycle but he did not return backsince last four days. Then he narrated the same fact to Laxman Singh (PW-1) that Ashok Singh has left his house on 27.1.2003 for Kharra by Yamha Crux motor / cycle and has not come back till today. Laxman Singh made search of 11 ^SiS§? Mia»e>. his son and finalty, he lodged report in Police Station. Defence has cross-examined this witness at length but has not asked anything relating to the fact that appellant Vinita Singh has not informed such facts to him, even this fact has not admitted by appellant Vinita Singh while answering question Nos.8, 9 and 10 in her examination under Section 313 ofthe Cr.P.C. 17. Sumitra Singh (PW-5), mother of appellant Vinita Singh has deposed in para 3 of her evidence thaton 26 after flag hosting Ashok Singh left his house and went to village Kharrapara from Gangapur but he did hot return back. She has also corroborated the factum of identification of the articles of deceased Ashok Singh at Police Station Korba vide Ex.P/1. Nothing has been asked to this witness by the defence relating to the fact that on 26 her son-in-law i.e., Ashok Singh has not left her housefor Kharrapara. 18. Laxman Singh (PW-1), father of deceased Ashok Singh, has also corroborated the fact that he was informed by Girijanand Singhon abouf 2" or 3 February, 2003 that he was informed by appellant Vinita Singh that Ashok.Singh has left his house by motor cycte for village Kharra but he did not return back. He has further deposed that thereafter he went tovillage Gangapur, he asked appellant Vinita Singh, then she told that on 27 January at about 6 a.m. AshoK Singh has left her hoyse for Kharra by motor cycle but he did not return back, then he told to appellantVinita Singh toaccompany him for Bishanpur which she refused andtold that she will come on Monday, thereafter he came to know about death of his son. He further deposed that he directed Vinita Singh t6 go and stay with him at Bishanpur, then she told thatshe will come on Monday butshe did not come, then he again went to Gangapur on Suriday, at that time Vinita Singh was not present in her house and then he came to know that she has gone with appellant Anil Sharma, he askedto mother of appellant Vinita Singh whomshe told that she has gone to hospital for treatment. When it was inquired then hefoyndthatshe has not goneto hospital, then he doubted upon the activity of appellant Vinita Singh. In paraS of his cross-examination he has also deposedthat appellant Anil Sharma 3) -„--'&'' 12 frequently used to visit his house along with his son Ashok Singh and daughter-in-law Vinita Singh. 19. Subhash Kumar Singh (PW-11), younger brother of deceased Ashok Singh has substantially torroboratedthe aforesaid withess relating tb missing of his brother and search of his brother. 20. As per second set of evidence retating to selling of motor cycle, the prosecution has examined Surendra Kumar (PW-14) and Dakeshwar Kumar (PW-13). Surendra Kumar (PW-14), owner ofAuto Parts Shop, Barpali in his evidence has deposed that in the month of March, 2003 he was sitting in his shop where appellant Vinita Singh and present appellant Anil Sharma came to his shop and requested for repair Yamha Crux motor cycle which wasrepaired, appellant Anil Sil'iarma'! introduced himself as Ashok Singh, thereafter they shown their, intention tosell motor cycle because earlier Dakeshwar Kumar (PW-13) his friend has also shown his intentionto'purchase motor cycle. He informed Dakeshwar Kumar that present appellant Anil Sharmawho has introduced himself as Ashok Singh is ready