x WW,W,W Wm m 200 mm (1mm) \JN WT mu..........u“u....uu..n............u........7n..“i 200 Wm (W) mgr; WW1?%€TW WWW agmm c Panel Lawyer for the State/responde f Ln. shadoo, J. 1 The aforesaid appeals tiled by D alias Deesen Ram and Tahal Ram Sahu, respectively, are arising of the same judgment passed in S.T. No.177/2000, therefore, th y are being disposed of by this common judgment, ' . The accused/appellants have ‘ oned legality and correctness of \ the judgment of conviction ordet of sentence dated 12‘“ September 2001 passed by the itional Sessions Judge, Dhamtari. in S.T. No.177/2000 whereby lea ned Additional Sessions Judge after holding the accused/appellants g ilty for commission of offence under Sections 302 read with Section and 201 of the l.P.C., sentenced each of the accused to undergoi prisonment for life 8. to pay a tine of Present: Ku. Meenu Banerjee, counsel for thg appellant in Cr.A. No.361 I2002. Shri Sandeep Shllvastava, cou sel for the‘ appellant in OLA. No.1041/2001 Shri Ashlsh Shukla, Additional Pu c Prosecutor with'Shri Akhil Mishra, t. ICORAM: - ‘ Hon’ble Shri LC. Bhal ——— -—————— ° . . (Delivered o 19-4-2007) V Rs.1,000/-, in default of payment of tine to further undergo R.l. for 3 i t q ' a d \ XI—HC 78 v3 WW, Wang, W 3mm (W) Wm vi 200 WWW WWW WWW ”:5 E .# gé‘fsgt $ai‘mm months and to undergo R.l. for 3 years E to pay a Tine of R5500 -, in defauit of payment of fink to funher undergo RJ. for one month, respectively. . The case of the prosec , in brief, is that Ramsheeia Bai (since deceased), aged about 19 ears, was unmarried. Accused Tahai Ram was married. She devel illicit relations with Tahal Ram. A report regarding commission of pe on Ramsheela Bai was lodged in the police station. After inv tigation, charge sheet was filed against gccused Tahal Ram. A cri inal case for commission of offence under Seotion 376 of the l.P.C. .T. No.162/97) was instituted. Ultimately, g vide judgment dated 12/1 97 the accused was acquitted of the said charge. On account of phy ical relations of Tahal Ram with Ramsheela Bai, she became pregnan Ultimately, she gave birth to a male child Hiralal. Ramsheela Bai t an application under Section 125 of the lowance for her minor son Hiralal against accused Tahal Ram, he ring of which was tixed on 23-2-2000. Accused Disu @ Deesen am was friend of accused Tahal Ram. He had also developed illicit r lations with Ramsheela Bai. Accused Disu called Ramsheela Bai on 3-2-2000, therefore, Ramsheela Bai left the house along with her child Hiralal, aged about 3 years. Thereafter, the accused persons took eela Bai and Hiralal to the agricultural tield of Devnath on a m torwcle, there they committed murders of Ramsheela Bai and Hira al with hexablade. Thereafter, bodies of Ramsheela Bai and Hiral i were cut into pieces with hexablade and carpenter’s axe. The pi of their bodies were thrown in casing pipe of bore well of Johatr and Chowaram. Thereafter, sand and Cr.P.C. for maintenance \\ u' n o 1 i l R h e ‘ a XI‘HC—78 WWW ammm of he deceased were burnt. He ds of the deceased which were separated from the bodies with hexblade were buried on the way of Rampur village after digging a pit wi h crowbar. On 23-2-2000, after atten‘ g the case filed by Ramsheela Bai under Section 125 Cr.P.C. Da Ial (PW-18), father of Ramsheela Bai, returned to his house, but is daughter and grandson were not at me house: He searched the reabouts of Ramsheela Bai and Hiralal. Ultimately, he lodged mssing report Ex.-P/30-A in the chowky Bhakhara.of police station urud on 29-2-2000. On 7-3-2000, bodies of one female and one ma = child were recovered near Nayapara. To identify those bodies, fat of Ramsheela Bai Daulal (PW-18) was summoned. After seeing e bodies, Daulal said that those bodies are not of his daughter and ndson. As suspicion was on the accused persons, therefore, they ere summoned by Station House Oflicer, P.S. Kurud, $.K. Dubey 21). During enquiry, on 9-3-2000, me accused persons gave orandum regarding heads of deceased Ramsheela Bai and Hira al and about commission of murders of Ramsheela Bai and Hirall by them. Memorandum Ex.-P[15 was given by accused Tahal m whereas, memorandum Ex.-Pl16 was given by accused Disu. l 10-3-2000, on the basis of information regarding death of Ramsh a Bai and Hiralal merg intimations Ex.-Pl6 & P7 were given. The prot eeding for recovery of heads of Ramsheela Bai and Hiralal was initia in the presence of B.C. Sahu (PW-22), Executive Magistrate. Aft r digging the place shown by the accused persons heads of Ramsh ela Bai and Hiralal were exhumed. For \ \\ n e hr I g " - mm ‘I a XI-HC—78 WW,W,W anagram (W) WWW ?f911 mmgfgam ‘ mm wm $wmm inquest noticgs Ex.-PI10 Pl1'1 were given. Inquest on the heads of Ramsheela Bai and H Ex.-PI12 and Ex-PI13 were prepared, heads were sent for exam nation to Dr. Vinod Kumar Pandey (PW-5). After examination,’ he repared reports Ex.—P/8 and Ex.-P/9. Thereafter, the heads wre sent to the Department of Forensic Medicine, Medical Colle Raipur, where Dr. Sanjay Kumar Dadu (PW-3) conducted examin tion on 15-3-2000. Met examination, the doctor‘opined that there ere 12 injuries on the head of Ramsheeia Bai. There were two inju es on the head of Hiralal. He opined that one head was of a lady agd about 19 years. The other head was of a child age°d about 3 years. Based on that, crime No.55/2000 (Ex.-P/5) for commission of offence nder Sections 302 and 201/34 of the I.P.C. was registered on 106-2 M by B.P. Pandey (PW-4). The sand, stone ,, where pieces of bodies of sheeia Bai and Hiraiai were buried were taken into possession. head, hairs, plain soil and blood stained soil were taken into pos ion under Ex.-Pl1 8. The bone pieces and soil where pieces of bod were buried were also seized under Ex.- P/20 The bone‘pieces a blood stained soil from the agricuitural tieid d under Ex -P/21 At the instance of Disu carpenter axe, one banlyan fuil pant shirt were seized from the house of Disu u Ex.-P/22, whereas, at the Instance of accused Tahal Ram one crbar and iron spanner were seized under Ex.-P/23. His clothes re also seized under Ex.—P/24. The motorcycle of accused Ta al Ram was seized under Ex.-P/25. Two pieces of hexablade we seized under Ex.-P/26. Slippers of n under Ex.-P/27. The site plan Ex.-P/28 & were prepared. The recovered articles c ~ mm Ramsheela Bai were sei Ex.-P/29 9f both the pla ‘ m T A s i n : of Netram Nlshad were m m w.as 200 : i .. I g, s - 'e ' : w e : r z " XI-HC—78 WWWW WW where report Ex.-PI37 was r eived. After completion of investig tion, charge sheet was med against the accused persons for commi on of offence under Sections 302/34 and 201 of the I.P.C. in the Cb rt of Chief Judicial Magistrate, Dhamtari, se to the Sessions Judge Raipur, from ions Judge, Dhamtari received the wse who in turn committed the where learned Additional on transfer. The prosecution examined 22 witnesses at the trial in order to establish the charge against the accused persons. Statemens of the accused persons were reoo ded under Section 313 Cr.P.C. in which the accused persons denied material appearing against them in the prosecution evidence. The stated that they are innocent and have been falsely implicated in t Learned Additional Session Judge after hearing learned counsel for the respective ‘parties, c nvicted ' and sentenced the accused/ appellants as aforemention We have heard learned oou ~ I for the parties. In this case, there is no oc lar or direct evidence in order to connect the accused persons with th crime in question. The whole case ress on the circumstantial evide ce. ‘As per the settled law in order to convict an accused based o the circumstantial evidence, the Hon'ble cflme. ~ i a S : e h . ‘ XI‘HC 78 ./ w) mw,m,%m mm m 200 mm (W) WWW ammm WW1¥W %ai1‘?1wé11%¥1 WWW a’nanjoy Chatterjee Vs. State of W.B. reported in (1994) 2 SCC 22 held that: “In a case based circumstantial evidence, the circumstances from wh' h the conclusion of guilt is to be drawn have not only to fully ashblished but also that all blished should be of a conclusive Apex Caurt in the matter of the circumstances so nature and consistent on y with the hypothesis of the guitt of the accused. Those circ mstances should not be capable of being explained by any ther hypothesis except the guilt of ‘the accused and the c ain of the evidence must be so complete as not to lea e any reasonable ground for the belief consistent with the innocence of me accused. lt needs no reminder that legally tablished circumstances and not merelydndination of coult can form the basis of conviction and the m serious the crime. the greater should be the care tak n to scrutinize the evidence lest suspicion takes the place of proof." 10. In this case, the prosecutio has tried to establish the charge<5against the accused persons based on the following circumsmnces which are extracted in para-48 of the ju gment of the trial Court:- On 23-2-2009 accused Disu @ Deesen Ram came to thehouse of Ramsheela Bai, Ra sheela Bai along with her son were last seen alive with Disu. Criminal prosecution launched against accused Tahal Ram for committing rape on amsheela Bai. Accused Tahal Ram w s married whereas, Ramsheeia Bai was unmarried & on accoun of their physical relations, Ramsheela Bai gave birth to Hiralal. h n o s XI-‘HC—7s mm in 200 that Ramsheela Bai along with her son 3-2-2000 with Disu @ Deesen Ram is ai, mother of Ramsheela Bai, has stated that on the fateful day her husband went to Dhamtari to attend the court in connection with m intenance case filed by Ramsheeia Bai. On that day Ramsheeia Ba was at the residence. At about 12 noon, she left the house with Hiral I. Before that, Disu @ Deesen Ram came to their house. He left th house. Ramsheela Bai left the house thereafter, she went with D u. Ramsheela Bai informed her that she is going to watch TV. There prosecution has failed to establish abovecircumstance. Based on the \\\ fter Ramsheela Bai did not return. But the 11. As far as first circumstan Hiralal left the ,house on concerned, PW-19 Laxmi amt m (W) anéyr Ha?W am mm Wmm WW é;W 31%l? W fga?m IV. As TahaLRam refu to' maintain Ramsheela Bai and Hiralal, therefore, proceeding under Section 125 Cr.P.C. was initiated ‘ against accused Tah Ram which was pending in the Court at ‘ j Dhamtari. . V. The accused gave tn atening to Ramsheela Bai 3-4 days before ‘ her disappearance to ommit her murder. a e Vi. The accused persons ave information regarding place where the heads of Ramsheela i and Hiralal were buried. VII. The death of Ramshe a Bai and Hiralal was homicidal. VIII. Weapons of offence c rpenter axe, crowbar, and hexabiade were recovered'at the insta ce of the accused. Biood stain was found on Baniyan of Disu Deesen Ram and on the pant of Tahal Ram which were reco red from their residence at their instance. VXLHC—7s v3? 3am, m, W WI. m m 200 mam—as (W) $§$% WWW§WW *Wm WWW above evidenqe of this neés. it is not eshblished that in fact Ramsheela Bai along with er son went with Disu because as per he! evidence Disu came on th day and left the house. Ramsheeia Bai left thereafter saying that s e is going to watch TV. This witneSs has not said or seen that in far she saw deceased Ramsheeia Bai with Disu @ Deesen Ram. Me eiy because on that day Disu @ Deesen Ram came to their house nd ieft, thereafter Ramsheela Bai left the holise, no inference can be drawn that Ramsheela Bai left the house along with Disu. Even she as not stated as to what was the time gap between when Disu left the house and Ramsheela Bai left the house. Moreover,‘she has stated in the evening when her husband Dau. Lal returned from the c rt, she informed him about going of Ramsheela Bai. Dau Lal stated that about 4-5 days Ramsheela Bai and Hiralal were search d. When whereabouts of Ramsheela Bai and Hiralal could not be ed, therefore, missing report Ex.-P/30-A was lodged in the police o post Bhakhara. Perusal of Ex.-Pl30-A reveals that in this missi g report Dau Lal has not stated mat along with her son and Disu or on that Ramsheela Bai l'eft the hou day, in fact, Disu came to th ir house. Therefore, this is an omission in the missing report regarding the fact that Ramsheela Bai left the house with Disu. There is no evid nce that any villager saw Ramsheela Bai going with accused Disu. L oking to the weak natUre of the evidence of Laxmi Bai (PW-19), th prosecution has failed to establish that Ramsheela Bai alon with son was last seen with Disu when mey were alive. wt s c r challenged, therefore, it i esiablished that Ramsheela Bai was unmatried. PW-18 Dau i has sated that on account of physical relations of Ramsheela B with accused Tahal Ram, she became pregnant and gave birth u Hiralal. Tahal Ram refused to maintain Ramsheela Bai and Hiralal. Ramsheela Bai was having illicit relations with Tahal Ram since last 4 years. ‘PW-19 Laitmi Bai has also stated that Ramsheela Bai used o meet Tahal Ram secretly. Tahal Ram committed rape on Ramshela Bai, on account of that, she became pregnant and gave birth o one child namely, Hiralal. ln cross- examination, defence has ot been able to discredit their evidence. Even PW-15 Lalit Kumar ahu has also stated that Ramsheela Bai was unmarried. Ramshe a Bai was having illicit relah‘ons with accused Tahal Ram, on m nt of that Ramsheela Bai gave birth to Hiralal. PW-12 Yogendra ahu has stated that Ramsheeia Bai was )G-HC—78 C) WW,W,W 11 W m “i 200 mam (W) ami‘g mm#f€@m éigrf‘dnm mwm unmarried. Hiraiél was the child of Ramsheela Bai. Ramsheela Bai gave bilm to Hiralal on accg unt of illicit relations of Ramsheela Bai with l Tahal Ram. When Ramsheela Bai became pregnant, a Panchayat l was convened, in that, Ramsheela Bai disclosed that she is pregnant y on account of her physical relations with Tahal Ram but Tahal Ram denied that. Thereafter, the matter was reported in the police station. ‘k Ultimately, Tahal Ram w acquitted. Therefore, from the above evidence, it is established t at Ramsheela Bai was unmarried. There were physical relations be een Ramsheela Bai and Tahal Ram, on account of that, she becam pregnant-and gave birth to Hiralal. ‘ 14. As far as fourth circumsta e is ooncemed, PW-18 Dau Lal, father of Ramsheela Bai has stated that when Tahal Ram committed rape on her daughter, she becam pregnant and gave birth to one child namely, Hiralal. but acc sed Tahal Ram refused to maintain Ramsheela Bai and her ch Hiralal, on which a cas'e for maintenance was filed in the Court. 19 Laxmi Bai has also stated that for maintenance of the child a ase was tiled in the Court, for attending the Court, on the fateful day her husband went to Dhamtari and he returned in the evening. I s fact has not been challenged in ‘cross- examination, therefore, it is established that case under Section 125 of the Cr.P.C. for maintenan e allowance of Hiralal was tiled against accused Tahal Ram by Ra sheela Bai which was pending in the Court , at Dhamtari. 15. As far as fifth circumstanc is concerned, PW-19 Laxmi Bai has stated that the accused persons ave threatening to Ramsheela Bai 3 days a i - , i m wt 200 mm (W) WWIWW WWW I %a‘mm ‘ before the date 6f the incid nt. This fact was disclosed by Ramsheela Bai to her. In cross-exa ination, she has stated that while giving statement Ex.-D/2, she info med police that the accused persons gave threatening to her daughte . If same is not written in her statement Ex.—D/2, thenshe does no ‘know the reason for not mentioning the above fact in her statement Ex.-Dl2. 0n the basis of above evidence, a it cannot be held that accu gave threatening to the deceased. 16 As far as sixth crrcums ce rs concerned PW-14 Baldau Singh Dhruv, Sarpanch of the VII age, has stated that on 9‘“ March 2000 accused Tahal Ram gave emcrandum Ex —PI15 regarding the place " where he buried pieces of e bodies and heads. Memorandum Ex.- P/15 was written which bea his signatures. Accused Disu @ Deesen Ram also gave memorand m regarding the place where pieces of the bodies were buried and the lace where chopped heads of Ramsheela Bai and Hiralal were buri Memorandum given by accused Disu is Ex.-P/16 which bears his si natures. Accused‘Tahai Ram took to the place. After digging the pl ce shown by the accused two heads were exhumed from the pit. PW 5 Lalit Kumar has also stated in para-5 of his evidence that the accu persons took to the police party on 10‘“ on Tipani way, after diggin' the place shown by accused Tahal Ram, tirst of all, he saw stones, I reafter, two heads of the persons were found. Stones and sand e seized under Ex.-PI18. PW—22 B.C. Sahu, Additional Tehsildar, as stated that on 10-3-2000 he along with S.H.O. $.K. Dubey went to place on the footway of village Rampur to Tipani. The parents of R msheela Bai were also with them. The and shown the place where heads of accused persons took the e . s e r 69 WW,WE,W 13 mm 111 200 m-m (W) WWW ‘ Wmiwm mwm ammm ‘ %ai%q6n%¥1 Ramsheela Bai‘and Himlallwere buried. After digging the place tirst of ail stone was found. 0n reLnoving the stone, two heads, one big head and one small head, were found. Therefore, Panchas were called, notices Ex.-P/10 & P/11 w re given. Panchas after seeing the heads said that one head is of‘ emale which _can be of Ramsheela and another can be of a child, refore, inquest Ex.-PI12 & Ex.-Pl13 were ‘ prepared which bears h signatures. PW—21 S.K. Dubey, sub inspector, has also stated at accused Tahal Ram while in the police custody ‘gave memoran m Ex.-P/15 and accused Disu gave memorandum Ex.-P/1 6. 0 10-3-2000 at about 2.30 p.m. the accused persons took them to a pl ce where heads were buried. Two heads were taken into possessi ln para-17 of cross-examination, he has stated that it is incorrect to y that at the time of inquest of the heads the accused persons were ot present. 0n 9-3-2000, before recording memorandum the accused ere in the custody. He has further stated that heads were sent for xamination to the Primary Health Centre, Kurud. PW-6 lshwar has ated that notices Ex.-P/10 & P/11 were given to him which bears h s signatures. After digging the place near river two heads were exhu ed, one was big and one was small. One head was of a female and nother was of a male. Panchas said that heads are of Ramsheela and Hiralal. Panchnamas Ex.-Pl12 & P/13 were prepared whic bears his signatures. Simiiar is the evidence of PW-7 Chintara and PW-8 Bhishamram Sahu. Therefore, in view of the above evide ce of the witnesses, it is established that accused Tahal Ram gave emorandum Ex.-PI15 and accused Disu , \ gave memorandum Ex.-P/1 in pursuance of that, two heads, one of ix < \ female and‘one‘ of male we e exhumed at their instance. Inquest Ex.- e i o . a i 14 a 200 (W) WW Wikém mwm %3ifcmm P112 on the head of Rams a Bai and Ex-P/13 on the hea o iraal as prepared. Hence, it is tablished that heads were recovered at the instae of the accu persons. In this connection, PW-S Dr. Sanjay Kuma adu, A‘ tant Professor, Forensic Department Medical Collge, Raipur, h stated that on 15-3-2000 on the request ‘ of police station Kurud e amined ad which was said to be of Ramsheeia Bai. There we injuries on the head. in para-6 of is evidence he as stated hat he ead was ‘of a female ged bout 19 syears. He has further sta that e examined othr hea here d s l j r a f fe e r s s i e r 12 h h t t h a a t h e d. T were 2 injuries on the hea In his opinion, the head was of a mall _. child aged about 3 years. uries were homicidal in nature. ln cross- examination, he has catego lly stated that the heads were o male and child aged about 3 y s. The defence ha not been able to dicredit evidence of this w ss about his opinion regarding heads of emale and male child. refore, from th above evidenc it is f T e e e, established that two heads, e of feale and one of male child were recovered at the~instance f the accused persons based on their memorandums Ex.-P/15 & Ex.-Pl16 in the presence of Executw'e Magistrate PW-22 B.C. Sah . Dr. Sanjay Kumar Dadu has opined that those heads were of fema and male,‘ therefore, from the above evidence, it is establishedt tthe heads which were recovered at the instance of accused persons ere of Ramsheela Bai and Hiralal. ‘ ’17. As far as seventh circums nce is concerned, Dr. Sanjay Kumar Dadu (PW-3) has stated in x\ \ \ there were 12 injuries, on th head of child there were 2 injuries, those is evidence that on the head of female \\ a / ‘\§\ f N _ , \ l\l .1 69 mm , 1 m h l d f Hl w s nc s r D s s , w e a h x he n m \ XI-HC—78 $9 WW,WIE;W 15 amE; W m “i .200 mam (W) ‘ mm§wm WWW agairaq‘wém injuries were Homicidal in nature. Therefare, it is established that death of Ramsheela Bai and Hiralal was homicidal in nature. ' 18. As far as eighth circums e is concerned, PW-21 S.K. Dubey, sub inspector. has stated that 6 9-3-2000 accused Tahal Ram while in the police custody gave inform tion regarding the place where hexablade co-accused Dlsu @ Dees Ram he also gave information that the clothes which he was w anng at the time of offence and the motorcycle are at his res ce. Memorandum Ex.-P/15 wasre‘duced Deesen Ram while in the police custody gave information that the cl thes of the deceased were burnt near the drain- He further said that hexablade was broken and thrown in the river. He further said that e carpenter axe is in his house and the plastic bag has been thr in the drain, He further said that crowbar and scissor were iven to ahal Ram. ‘ Memorandum Ex.-Pl16 was reduced into writing which beats his signatures. Thereafter, at the instance of accused Tahal burnt ashes of the clothes, hairs, bone pieces and plain soil were s ized under Ex.-P/1 4. On 11-3-2000 at the instance of accused Tahal m, on being produced by Tahal Ram, one crowbar & one spanne' were seized under Ex -P/23 which bears his signatures. Thereafter, sed Tahal Ram produced full shirt one seizure, one full pant stainec wrth blood same were seized under Ex - PI24. The motorcycle of