%. ^•Pss J '•-"•""»£• Wi .;•<•?' <^ HIGH COUKT OF CHHATTISGARH. BILASPUR 3^ Criminal Appeal No.752 of 2005 APPELLANT: (In Jail) RESPONDENT: Sonu Ram S/o Sukal Singh Gond, aged about 28 years, R/o Village Sodey, Police Station Antagarh, Distt. North Bastar, Kanker, C.G. . Versus State of Chhattisgarh through the Police •Station Antagarh, Distt. North Bastar, Kanker, C.G. {Criminal appeal under Section 374 (2) of Criminal Procedure Code} '(;- "J~ Present: Mr. Vishwanath Goswami, counsel for the appellant. Mr. J.A. Lohani, Panel Lawyerforthe State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Wlr. R.N.Chandrakar. JJ ORAL JUDGMENT (25-7-2011) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 31-8-2005 passed by the 1 Additional Sessions Judge, Kanker in Sessions Trial No.331/2003, whereby & whereunder learned Additional Sessions Judge while acquitting the other three co-accused persons, after holding the appellant guilty for commission of culpable homicide amounting to murder of Vaid Gopiram in sharing common intention with other accused and concealing the evidence of criminal case, convicted the appellant under Sections 302 read with Section 34 & 201 of the IPC and sentenced him to undergo imprisonment for life and to undergo Rl for seven yearS & pay fine of Rs.1,000/-, in default of payment of fine to further undergo imprisonment for three months, respectively. , 2. Conviction is impugned on the ground thatwithout any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. ^ 3. As per case of the prosecution, on 4-2-2003 the appellant brought the unfortunate deceased Gopiram from Village Bhiragaon for treatment of his wife and himself of ghat disease. Gopiram took dinner in the house of the appellant, after some time Gopiram left the house of the appellant, the appellant made search of Gopiram but on 6-2-2003 dead body of Gopiram was found hanging on a tree. The appellant went to the police station and lodged merg vide Ex.P-6. After summoning the witnesses, inquest over the dead body of the deceased was prepared vide Ex.P-1. Dead body was sent for autopsy to Primary Health Centre, Antagarh. Dr. Halak Ram Verma (PW-12) conducted autopsy vide Ex.P-7 and found following injuries/symptoms: -;( > Body was at the early state of decomposition. > Moment of head was abnormal. > Lungi was found over the body. > Abrasion of 2" x %" was found over chest. > 4th, 5th, 6th & 7th right ribs were found fractured. > Cervical vertebra €5,Cg & €7were also found fractured. > Injuries were ante mortem in nature. > Ligature mark was found around the neck, which was post mortem in nature. Cause of death was asphyxia as a result of compression of neck and fracture of cervical vertebra. During the course of investigation, the appellant was taken into custody, he made discloser statement of burnt piece of bambpo stick vide Ex.P-4 and same was recovered at his instance vide Exs.P-2 & P-3. Lungi and muffler found over the body of the deceased were seized vide Ex.P-16. Finally FIR was registered vide Ex.P-15. Spot map was prepared vide Ex.P-12. Patwari prepared spot mapvide Ex.P-13. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Bhanupratappur who committed the case to the Court of Sessions, Jagdalpur from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused persons, the prosecution has examined as many as twenty-two witnesses. The accused persons were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 6. After providing opportunity of hearing to the parties, learned Additional Sessions Judge, while acqultting three co-accused persons namely Ram Singh, Raju Ram & Mehar Singh, convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that conviction of the appellant is based on circums^antial evidence. In order to convict an accused on the basis of circumstantial evidence, as held by the Supreme Court in the matter of Kusuma Ankama Rao v. State of A.P., 2008 AIR SCW 4669, in case ofconviction based on circumstantial evidence, fhe 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 exclude 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 of the accused and must show that in all human probability the act must have been done by the accused. Learned counsel further argued ttiat in the present case, last seen theory has notbeen proved on behalf of the prosecution, inter alia, Urmila (PW- 10) - wife of the deceased, from whose hpuse the appellant brought the deceased, has categorically deposed in herevidence that her husband went with Sonu Ram, but the appellant present in the Court was not Sonu Ram with whom her husband has left her house. Learned counsel also argued that in the light of evidence of Urmila (PW-10) - wife of the deceased, virtually, there is no evidence against the appellant to conhect him with the crime in question. 9. On the other hand, learned State counsel opposed the appeal and submitted that the prosecution has collected complete chain of circumstances sufficient to prove the guilt of the appellant, to exclude the possibility of guilt of other persons and innocence of the appellant. Learned State counsel further submitted that evidence of Ramjanm Anchla (PW-8), Bhukhauram (PW-14) & Dhanuram (PW-16) is sufficient for drawing inference that dead body hanging on the tree was identified by the appellant as that of the person of Village Bhiragaon and that the appellant has specifically mad$ statement that he himself has brought the aforesaid person for treatment of his wife from Village Bhiragaon who stayed in his house and thereafter, left his house at night. Learned State counsel also submitted that evidence of Asharam Rawat (PW-1), resident of Bhiragaon, is sufficient for drawing inference that the lungi used for hanging the body of Gopiram (since deceased) was of appellant Sonu Ram and that appellant Sonu Ram had visited the house of Gopiram after death of Gopiram for intimating/informing the same to the relatives of Gopiram. This evidence is sufficient to prove the guilt of the appellant. 10.1n order to appredate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11.1n the present case, homicidal death of deceased Gopiram as a result of fatal injuries fouhd over the body of the deceased has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. Halak Ram Verma (PW-12) and autopsy report Ex.P-7 that death of Gopiram was homicidal in nature. Ligature mark found over the neck of deceased Gopiram was post mortem in nature, which is sufficient to establish that after the commission of murder of Gopiram his body had been hanged by lungi. 12.As regards complicity ofthe appellant in the crime in qiTestion, conviction of the appellant is substantially based on evidence of Asharam Rawat (PW-1), Ramjanm Anchla (PW-8), Bhukhauram (PW-14) & Dhanuram (PW-16). '[S.As per evidence of Ramjanm Anchla (PW-8), Bhukhauram (PW-14) & Dhanuram (PW-16), who are residents ofVillage Sodey where the dead body of deceased Gopiram was found hanging, they saw the dead body of unknown person hanging on a tree, appellant Sonu Ram was also present there, the appellantinformed them that the dead body which was hanging was of the person resident of Village Bhiragaon whom he brought in his house frorft. Bhiragaon, who stayed in his house and at night left his house, thereafter the dead body of that person was found hanging. The aforesaid facts have not been corroborated by the wife of the deceased namely Urmila (PW-10). 14.As per evidence of Asharam Rawat (PW-1), resident of Village Bhiragaon, relatives of Gopiram were weeping in the house of Gopiram, wife of Gopiram was not preseht in the house of Gopiram, brother of Gopiram namely Ramgulal, wife of Ramgulal namely Shakun and other children were also weeping. On being asked, they informed that wife of Gopiram along with her children had gone to the forest, appellant Sonu Ram was present in the house of Gopiram. On being asked, appellant Sonu Ram made statement that Gopiram went with him to his house but in the night Gopiram left his house and thereafter, body of Gopiram was found hanging. This witness along with other persons accompanied Sonu Ram and finally went to thespot where the body of Gopiram was hanging with the help of lungi, which was not of Gopiram. This witness further asked appellant Sonu Ram that the lungi used for hanging the body of deceased Gopiram was not belonging to Gopiram on which the appellant made statement that the lungi used for hanging of dead body of Gopiram was his lungi. 15.As per evidence of Ramjanm Anchla (PW-8), Bhukhauram (PW-14) & Dhanuram (PW-16), the appellant has specifically admitted before them that he had brought Gopiram in his house and Gopiram had left his house. Thereafter, they have seen the hanging dead body of Gopiram, not on same day but after one day, by lungi. As per evidence of Asharam Rawat (PW-1), the lungi used for hanging the body of Gopiram wasof the appellant. No explanation has been offered on behalf of the appellant that why & how the lungi of the appellant has been used in hanging the dead body a.nd whether some person has taken away the lungi of the appellant from his house. Aforesaid evidence clearly reveals that the appellant came to the house of Gopiram, he took Gopiram with him for some treatment to his house, dead body of Gopiram was found hanging, cause of death was not suicide, but was homicide and that the \ Soma ^lj lungi used for hanging the body was of the appellant. This chairTof circumstances is sufficient for drawing definite conclusion, in absence of any explanation, that only the appellant has committed homicidal death of Gopiram and no other person has committed such offence. Inter alia, \ it also excludes the possibility of innocence of the appellant. 16.After appreciating the evidence available on record, learned Additional Sessions Judge convicted & sentenced the appellant in the aforesaid manner. Conviction of the Sppellant is based on clinching and credible evidence sustainable under the law. On close scrutiny of evidence, we do not find anyillegality or irregularity in the judgment of conviction and order of sentence. ,< 17.Consequently, the appeal is devoid of merit, same is liable to be disn)issed and it is hereby dlsmissed. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge