^ ~^ / HIGH COURT OF CHHATTISGARH AT BILASPUR Coram: Appellant (in jail) (Division Bench) HorL'ble Shri T.P. Sharma & Hon'ble Shri R.N. Chandrakar, JJ. Criminal ADpeal No.91Lof2005 Rajendra Ram Gond s/o. Patru Ram Gond, aged about 35 years, r/o. village Bangaon, Kadodand, Police Chowki - Duldulla, P.S. Kunkuri, Distt. Jashpur (CG). Vs. Respondent. State of Chhattisgarh through Police Station Kunkuri, Distt. Jashpur (CG). (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. Arun Shukla, counsel for the appeila.it. Mr. J.A. Lohani, Panel Lav.'yer for the State. ORALJUDGMENT (Deliveredon 19-7-2011) Per T.P.JStiarma^^ 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 5-12-2005 passed by Sessions Judge, Jashpur in Sessions Trial No.61/2005, whereby and whereunder learned Sessions Judge after holding the appellant guiity for commission of culpable homicidal death amounting to murder of his wife and conceal the evidence of criminal case, convicted the appellant under Sections 302 & 201 of the IPC and sentenced him to undergo life imprisonment and R.l. for three years respectively. Both the sentences are directed to run concurrently. Conviction of the appellant is impugned on the ground that without there being any iota of evidence, the couri: below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per prosecution case, between 21-5-2005 to 23-5-2005 present appellant chopped off the head of his wife Kunti Bai by Dauli (sharp edged weapon) and caused her instantaneous death. He concealed the dead body of deceased near Kusum tree and hidden the chopped head of deceased in sand. When children of appellant were weeping in the house stating that appellant and deceased were not present in the house, Ghanshyam (PW/1) along with other villagers went to search out the appellant and deceased and on being searched, chopped trunk of deceased Kunti Bai, wife of appellant was found near some tree at Kheljora river. Ghanshyam (PW/1) went to Police Station, Kunkuri and lodged first information report vide Ex.P/2, morgue was recorded vide Ex.P/1, and on the basis of Ex.P/2, Police registered case being criminal case No.297/2005, after summoning the witnesses vide Ex.P/6, inquest over the body of the deceased was prepared vide Ex.P/7, chopped dead body of deceased was sent for autopsy to Community Health Centre, Duldulla where Doctor Mahesh Singh (PW/7) conducted post mortem vide Ex.P/17 and found that the trunk of woman was chopped off from neck. During course of investigation, accused was taken into custody who made disclosed statement of chopped head of deceased Kunti Bai and at his instance chopped head was taken out from near some tree. Inquest u 6. over the chopped head of deceased was prepared vide Ex.P/9 and the same was sent for autopsy to Community Health Centre, Duldulla vide Ex.P/18 and Doctor Mahesh Singh (PW/7) conducted autopsy of chopped head vide Ex.P/19 and opined that death was homicidal in nature. At the instance of appellant, blood stained soil and plain soil were recovered vide Ex.P/10, wooden piece used for basing the body ofdeceased vide Ex.P/11, blood stained iron Dauli was seized vide Ex.P/13, blood stained soil and plain soil were recovered where head was hidden in sand vide Ex.P/14, seized clothes ofdeceased were seized vide Ex.P/15, blood stained clothes of appellant were seized vide Ex.P/16 and spot map was prepared videEx.P/12. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Jashpur, who in turn committed the case to the Court of Sessions Judge, Jashpur. Learned Sessions Judge, received the case on transfer, who framed charge under Sections 302 & 201 ofthe Indian Penal Code against the appellant who abjured the guilt. In order to appreciate the guilt of the appellant, prosecution examined as many as eight witnesses. Accused person was also examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and pleaded his false implication and innocence. L 7. After affording an opportunity of hearing to the parties, learned Sessions Judge convicted and sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties and perused the record of the trialcourtas alsothe impugnedjudgment. 9. Mr. Anand Shukla, learned counsel appearing for the appellant vehemently argued that chopped truck and head of deceased were recovered but the same has not been identified by the witnesses or by examined Doctor whether body and head belonged to same person and whether recovered chopped head was the head of deceased Kunti Bai. In absence of aforesaid evidence, conviction of appellant under Sections 302 & 201 of the IPC is not sustainable under the law and circumstantial evidence adduced on behalf of the prosecution is not sufficient for drawing inference that appellant himself has committed the aforesaid crime. 10. On the other hand, Mr. J.A. Lonai, learned Panel Lawyer appearing on behalf of the State opposed the appeal and submitted that conviction is based on circumstantial evidence and the prosecution has proved its case beyond all shadow of doubts by adducing circumstantial evidence and the same is sufficient for drawing definite conclusion that none else other than the appellant has committed the offence. 11. In order to appreciate the arguments advan'ced by learned counsel for the parties, we have examined the evidence adduced on behalf ofthe prosecution. 12. In the present case, homicidal death of deceased Kunti Bai as a result of fatal injury/chopped injury on the neck has not been substantially disputed on behalf of the appellant. On the other hand, it is established by the evidence of Ghanshyam (PW/1) and evidence of Doctor Mahesh Singh (PW/7), autopsy report of severed body (Ex.P/17) and autopsy report of chopped head (Ex.P/18), death of Kunti Bai was homicidal in nature. 13. As regards complicity of the appellant in the crime in question is concerned, in case of conviction based on circumstantial evidence, as held by the Apex Court in the matter of Changa Reddy vs. State of A.P, reported in AIR 1996 SC 3390, the prosecution is required to adduce evidence and such evidence must satisfy the following tests:- "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) 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." •7 14. In the present case, prosecution has tried to adduce the evidence to prove the following circumstances: i) appellant was residing along with Kunti Bai and children in the same house, he chopped off the trunk of Kunti Bai and the same was found near tree; ii) chopped head of Kunti Bai was found in sand which was recovered at the instance of appellant; iii) present appellant has not offered any explanation that how he disclosed the chopped head of Kunti Bai which was hidden in sand and what action he has taken after knowing such fact. 15. As per evidence of Ghanshyam (PW/1), who is the neighbour of present appellant, children of appellant were weeping at night saying that their parents i.e., appellant and deceased were not present in the house and on the next day morning he along with villagers went towards Kheljora river to search out the appellant and his wife where chopped trunk of deceased Kunti Bai was found near one Kusum tree. Thereafter, he went to Police Station and after recording merg vide Ex.P/1, lodged first information report vide Ex.P/2. In his detailed cross examination he has not supported the documents i.e., Ex.P/1 to Ex.P/4 that defence has not suggested any thing to show that chopped trunk recovered from near Kusum tree was not the chopped trunk of Kunti Bai i.e., wife of appellant and present appellant was not present in his house. As per evidence of PW/2 Madan Ram and Investigating Officer, J.L. Gupta (PW/8), present appellant made disclosed statement of chopped head of deceased Kunti Bai and the same was recovered from sand ^ ^•^•:~'!s^ .-_, .-iOC*^. /yra-i-1 \ "?r?7~:"?^^ -^ Sfea;i !f y'.'f w./ at the instance of appellant which was hidden in sand. In his cross examination Madan Ram (PW/2) has suppori:ed the factum of disclosed statement made by the appellant, but nothing has been suggested to this witness relating to identity of head of Kunti Bai and the same was not hidden in sand. Madan Ram (PW/2) was a resident of village Bangaon (Kododand), where appellant was also residing. Thus, in these circumstances, the evidence of this witness based on document does not appear to be unnatural. PW/8 J.L. Gupta, Investigating Officer deposed that the appellant made disclosed statement (Ex.P/12) and on memorandum of appellant, chopped head of deceased of Kunti Bai which was hidden in sand was recovered at his instance which was subsequently sent for autopsy vide Ex.P/18 after autopsy of chopped trunk of deceased. Identity of chopped head of Kunti Bai corroborates from the evidence of PW/2 Madan Ram and PW/8 J.L. Gupta, Investigating Officer, chopped head of deceased which was hidden in sand and the present appellant was not present in his house. In case of homicidal death of wife of the appellant, appellant was under obligation to take immediate action and lodge report at Police Station, but instead of lodging the report, appellant was not present in his house, subsequently he was arrested and at his instance chopped head ofdeceased was recovered. Evidence of prosecution does not reveal that before such disclosed statement prosecution or other persons were having knowledge of the fact that the chopped head of deceased was hidden in sand. Present appellant has not offered any explanation that further he came to know that chopped / head of his wife was buried in sand. In absence of such explanation only inference is possible that only appellant has chopped off the head of his wife Kunti Bai, severed the head from her trunk and hidden the same in sand with intent to conceal the evidence of criminal case. 16. The evidence adduced on behalf of the prosecution is sufficient for drawing the definite conclusion of the guilt of the appellant that appellant was a person who has committed the murder of his wife and has concealed the dead body ofthe deceased. 17. After appreciating the evidence available on record, learned Additional Sessions Judge, has convicted and sentenced the appellant as aforementioned. 18. On a close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned warranting any interference. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. Rnju Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge