A m; HIGH COURT OF CHHATTISGARH. BILASPUR @ DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Aggeal No.1 1 97 of 2003 Neelkanth s/o Vishnu Das Satnami, Dhaurabhata, aged 23 years, Thana resident Navagarh, of village G. Cabin, Basti Charoda, Bhilai, Distt. Durg. n APPELLANT: (In Jail) Criminal AQQeal No.145 of 2004 ~ APPELLANT: (in Jan) Hiralal Dewangan son of Tetakuram aged 36 years resident of G. Cabin Basti Charouda, Police Station G.R.P" (C.G.) Bhilai, Out Post Charouda Distt. Durg Versus State of Chhattisgarh Through G.R.P. Bhilai Distt. Durg (C.G.) RESPONDENT: {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. U.K. Singh Chandel, counsel No.1 197/2003. . for the appellant in Cr.A. Mr. Surya Kant Mishra, counsel No.145/2004. respondent. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ for the appellant in Cr.A. JUDGMENT (Delivered on 8‘5 March, 201 0) The following iudqment of the Court was passed by T.P. Sharma - . J: Versus RESPONQENT: ‘ State of Chhattisgarh ' AND 2 @ the 5‘“ Additional Sessions Judge, Durg in Sessions Trial No.249/2002, they are being disposed of by this common judgment. 2. Challenge in these appeals is to the judgment of conviction & order of senten‘Ce dated 26-9~2003 passed by the 5‘“ Additional Sessions Judge, Durg in Sessions Trial No.249/2002, whereby & whereunder learned Additional Sessions Judge after holding appellants Neelkanth & Hiralal Dewanan guilty for commsion of culpable homicide amounting to g is murder of Girija Bai, concted them‘under Section 302 of the l.P.C. and vi sentenced each of them to undergo imprisonment for life & pay fine of Rs.500/—, in default payment of fine to further undergo R.l. for three of months. s 3. Conviction is impugned on the ground that without any iota of evidence the Court below has convicted & sentenced the appellants as aforementioned. 4. Case of the prosecuton, in brief, is that appellant Neelkanth was having i grudg against Girija Bai ince deceased), hisasister—in-law (bhabhi), on e (s therground that she was lose to other persons Earlier, appellant c Neelkanth has hreatened Girija Bai that he will kill her. On the fateful t day of 13-7-20, Neelkanth quarrelled with Girija Ba during the course 02 i of day and at 10 p.m. Girija Bai was present in her house, appellant Neelkanth was also present in the same house. On 14-72002, second day morning, at about 7 a.m. persons of the vicinity noticed that door of Girija Bai’s house was open, dead body of Girija Bai was found on the e cot and appellant Neelkanth was also present inside the room, he was r fl tied by sari and his mouth was gagged with cloth which was easily .l removable. .Kaus‘hilya Bai (PW-1) who saw the incident firsttime called l the neighbours. They removed sari & cloth from the body of Neelkanth r l l s 3 and they took out Neelkanth. They also took Neelkanth to hospital. F.I.R. was lodged vide Ex.P-10. Merg was recorded vide Ex.P-5A. After summoning the witnesses vide EXP-6, inquest over the dead body of (_ Girija Bai was prepared vide Ex.P-7 and dead body was sent for autopsy to District Hospital, Durg. Dr. A.P. Sawant (PW-3) conducted autopsy vide Ex.P-4A who found following injuries: - (i) Contusion on right side of neck, size 2 1/2 c.m. x 1 c.m. up to thyroid cartilage level. (ii) Abrasion of % c.m. x 1/2 c.m. belowjaw and over neck. (iii) Contusion of1 1/2 c.m. x 3A c.m. over left side of neck. (iv)Cbi1tusion of1 c.m. x 1/2 c.m. over neck. (v) Contusion of2 c.m. x 1 c.m. over left side of neck. (vi) Fragture of cricoid bone & trachea was congested. Cause of death was asphyxia as a result of throttling. During the course of investigation, appellant Neelkanth was also examined by Dr. Smt. Kalpana Karma (PW—2) vide Ex.P-2 who found no visible injury over his " body, but he was complaining pain in his abdomen and weakness. Appellant Neelkanth was admitted in the hospital and he was‘ discharged. His bed head ticket is Ex.P-3. During the course of investigation, appellant Hiralal was taken into custody. He made .discioser statement of mangal sutra, pair of payal, pair of silver bangles & kardhan vide Ex.P-4. He produced the aforesaid articles after taking out the same from well and the same were recovered vide Ex.‘P-5. The articles were identified by Meghnadh, husband of deceased Girija Bai, and one Shankar vide Ex.P-6. Spot map was prepared vide Ex.P-8. Viscera and other articles of the deceased after autopsy were seized vide Ex.P—9. Sari & gamcha were seized from accused Neelkanth vide Ex.P—11. During the course of autopsy, slides of vaginal smear of Girija Bai were taken, same were examined and no sperm was found on the 4 slides vide report EXP-12. ViScera were also examined by the forensic expert and no poison was found vide EXP-16. 5. Statements of the witnesses were recorded under Section 1671 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Durg, who in turn, committed the case to the Court of Sessions, burg, from where the 5‘“ Additional Sessions Judge, Durg received the case on transfer for trial. u t ln order to prove-the guilt of the appellants, the prosecution has examined as many as twelve witnesses. The accused persons were examined under Section 313 of the CrP C in which they denied the Circumstances appearing against them and pleaded innocence & false implication. ?L a . After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants in the aforesaid manner. ‘ . We have heard learned counsel for the parties perused the Judgment lmpugned and record of the trial Court Learned counsel for the appellants vehemently argued that conviction is based on circumstantial evidence, but the prosecution has not adduced any evidence to connect the appellants with the crime in question. The appellants were not under obligation to afford any explanation that how Girija Bal died. Appellant Neelkanth is relative of the deceased, but appellant Hiralal is a stranger and he was having no grudge or motive for , the com‘missionrof offence. ln absence of any evidence, conviction & sentences of the appellants are not sustainable under the law. 10.0nth’e other hand, lea ed State counsel opposed the appeals and r . ; . 5 evidence. Appellant Neelkanth was present in the house at the time & date of incident, he has offered false explanation and with a view to save himseif from prosecution, he has tied himself and put cloth on his mouth to show that some other person has committed the\offence and thereby, he has offered false explanation. 11.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12,ln thgpresent case, homicidal death of deceased Girija Bai as a result of ante-mortem fatal injuries has not been substantially disputed by the appellants, othewvise also, established by the evidence of Dr. A.P. Sawant (PW—3) and autopsy report Ex.P-4A which reveal that the deceased died as a result of throttling and death was homicidal in nature. 13.As regards complicity of the appellants in the crime in question, conviction is based on the following circumstances: — (1)Appellant Neelkanth was having grudge against deceased Girija Bai. (2)Appellant Neelkanth used to stay in the house of deceased Girija Bai. (3) On the date of incident, appellant Neelkanth was present in the house where deceased Girija Bai was found dead. (4) Appellant Neelkanth has taken false defence that he was tied with sari & other clothes. 14.Kaushilya Bai (PW—1) has deposed in her evidence that Girija Bai (since deceased) was residing along with her husband & Neelkanth in the same house, on the date of incident at about 9 p.m. she was present in the house of Girija Bai, at that time, appellant Neelkanth was also present 1 there, husband of Girija Bai was not present and secondday morning, she heard agonic pain from the house of Girija Bai on which she went to the house of Girija Bai where appellant Neelkanth was tied to cot with sari, his mouth was also gagged with cloth, then she went to the house of éppellant Hiralal which is adjoining to the house of Girija Bai, she told the aforesaid incident to Hiraial, Hiraiai also saw Neelkanth and he called other persons, then they removed clothes from the mouth of Neelkanth. Dead body'of Girija Bai was lying in the room. Police came and removed knots of appellant Neelkanth and took him to the hospital. Kaushilya Bai (PW-1) has not supported the case of the prosecution and the prosecution has declared her hostile. 15.Dr. Smtk‘lgalpana Karma (PW-2) has deposed in her evidence that on i 14-7-2002 she‘has examined Neelkanth vide EXP-2, but did not find any external iniury, he Was complaining abdominal pain & weakness. She has further deposed ‘that Neelkanth was admitted in the hospital vide Ex.P-3 and he himself has left the hospital against the medical advise. 16.Meghnath (PW—4), husband of the deceased, has deposed that he along " with his wife Girija Bai and appellant Neelkanth used to live in his house, On the date of incident, only Girija Bai & Neelkanth were present in the house. After the incident, his brother—in-law Shankar came to his paternal house where he was present and narrated the incident on which ' he came to Village Charoda, last rituals of his wife had already been performed and appellant Neelkanth was in the Police Station. He has further deposed that his wife used to wear silver bangles (chandi ki anthi) & mangal sutra. He has also deposed that police was sitting near the house of appellant Hiralal and they were having mangal sutra & silver bangles (chandi kl anthi) of his wife. This witness has also not supported the case of the prosecution and the prosecution has declared him hostile. ln his cross-examination, he has deposed that he has not identified the ornaments of his wife. ‘ r @ 7 17.Another witness Ramratan (PW-5) has supported the case of the prosecution only up to the extent that he saw the murdered dead body of Girija Bai and appellant Neelkanth tied to cot with sari in his house. He has further deposed that police brought appellant Hiralal near the well of appellant Hiralal’s father-jn-law Narayan’s house from where they took silver bangles, silver kardhan, mangal sutra & key rings kept in polythene & handkerchief. In his cross-examination he has denied the suggestion that police has not recovered the aforesaid articles from the well. Indal (PW-6) has supported the evidence of Ramratan (PW'5) and has vs admitted signatureover Ex.P—4 — memorandum and Ex.P-5 — seizure of articles. 18.Shivkumar Pandey (PW-9) — Sub inspector has deposed that after taking Hiralal into custody he interrogated him, appellant Hiralal has made confessional statement of ornaments tied with handkerchief vide Ex.P-4 and at the instance of Hiralal he has recovered ornaments & handkerchief from the well vide Ex.P—5. Defence has cross-examined this witness at length, but has not been able to elicit anything to discredit his testimony relating to the confessional statement made by appellant Hiralal and recovery of articles at the instance of Hiralal. 19.Shivram Pandey (PW-11) has deposed in his evidence that appellant Neelkanth & deceased Girija Bai always used to quarrel, appellant Neelkanth suspects upon Girija Bai relating to her character. 20.The prosecution has examined Suresh Kumar (PW—12) — brother of v deceased Girija Bai, on the question of identification. Suresh Kumar : "‘3‘ ; (PW—12) has deposed in his evidence that he has identified the articles ‘ ‘ l A, B, .C & D, the articles of his sister Girija. He has further deposed that his brother-in—law Meghnath, husband of Girija Bai, has also identified 8 the articles. But in his cross—examination para 6, he has admitted that police has shown the articles to him before test identification. 21.ln the present case, by the evidence of Kaushilya Bai (PW-1), Ramratan (PW—5), Indal (PW‘6) & Shankar Lal (PW-7) it is not disputed that on the date of incident, ’deadibody of Girija Bai was found in her house, appellant Neelkanth was also present in the same house, he was tied to cot with sari and one cloth was also gagged in his mouth. According to the evidence of Dr. Smt. Kalpaha Karma (PW-2), Neelkanth was examined by her and no visible injury was found over his body, he was complaining pain‘ over abdomen and weakness Appellant Neelkanth has cross—examined the prosecution witnesses at length. but has not asked anything to these witnesses to discredit their testimony relating to the fact that deceased Girlja Bai was not murdered in her house where appeliant Neelkanth was present in the intervening night of 13‘“ & 14‘“ July, 2002. Evidence of these witnesses also reveal that Neelkanth was present in his house, his hands were tied to a cot with sari and one cloth was found over his mouth, but no injury was found over the body of appellant Neelkanth. This clearly establishes the fact that sari & other .cloth were not so tightly tied to hands & face of the appellant, therefore, no haematoma, contusion,,abrasion was found over the body. lt further establishes that appellant Neelkanth has not made any resistance during the whole night, he was not tied to any fixed object like pillar, but tied to a cot which was easily movable, however, the appellant has not tried to remove sari or to come out from the room even along with the cot at the A, timeof incident or after sufficient intervaii Entire conduct of appellant Neelkanth is unnatural and shows that he was not tied by any other person without ‘his consent or wili, but some clothes were encircled around his hands and gagged into his mouth to show that he was @ helpless. Appellant Neelkanth was present in the house at the time of incident, he has not offered any expianation that who has caused injury to Girija Bai, who has tied his hands & mouth and who was present at the time of commission of the offence. The offence was committed in secrecy. Girija Bai and appellant Neelkanth were present at the time of commission of the offence. Appellant Neelkanth was under obligation to explain that how Girija Bai died, who has caused injury to her and who tied him with sari and gagged his mouth. Non-offering of explanation is r serious and adverse circumstance in the present case coupled with his unnatura1‘c‘onduct. i 22.The-¢prosec4’ution has adduced another set of evidence relating to recovery of ornaments which the deceased was wearing at the time of commission of the offence, on the basis of confessional statement made by appellant Hiralal under Section 27 of the lndian Evidence Act. 23.Shivkumar Pandey (PW-9) — Sub Inspector has specifically deposed in his evidence that on 16-7-2002 he took appellant Hiralal into custody and interrogated him. Appellant Hiralal made confessional statement vide Ex.P—4 relating to ornaments. He took appellant Hiralal near the well and one packet (pot/i) containing ornaments i.e. golden mangal sutra, silver bangles, silver payal & silver half kardhani were recovered at the instance of appellant Hiralal vide Ex.P-5 and same were identified by the husband of the deceased. In his cross-examination, he has denied the suggestion that appellant Hiralal has not made any confessional statement and he has not seized the aforesaid articles. J 24,Ramratan (PW—5) has deposed in his evidence that police came with appellant Hiralal near the well of his father-in—law Narayan and they took out one potli/packet containing silver ornaments, silver bangles, kardhan ’ @ 4 & golden mangal sutra. In para 5 of his cross—examination he has denied the suggestion that police has not took out the aforesaid ornaments from the well. 25.Another witness lndal (PW-6) has deposed that Hiralal has made dlscloser statement andiihe himself (PW-6) took out the packet/pom containing ornaments from the well. ln paras 4 & 5 of his cross- examination he has specmcally stated that the ornaments were recovered at the instance of appellant Hiralal, from the well of Narayan, father-tnelaw of Hiralal. He himself has admitted that he went inside the well under the water and searched the packet, then took out the packet. Vlshwanath Deshlahre (PW-8) has also supported the factum of discloser and recovery. 26.Evidence of Shlvkumar Pandey (PW-9), Ramratan (PW-5) & lndal‘(PW- 6) is sufficient for drawing inference that appellant Hiralal made confessional statement of ornaments and at the instance of Hiralal the packet containing ornaments was recovered from the weli of Narayan situated near the house of Hiralal, under the water. Definitely as suggested by the appellants, the well was open, but the packet was not visible, it was under the water, lndal (PW—6) went inside the well and after search. he took the packet from the water. This shows that the i packet was in hidden condition and it was not within the knowledge of the Investigating Officer or any person other than appellant Hiralal. 27.Mere recovery of ornaments on the basis of confessional statement of O appellant Hiralal is not sufficient to connect the appellant with the crime .//: V frail» ‘ in question, but these evidences are sufficient for drawing inference that either theappellant has hidden the ornaments or he is having knowledge of the fact that somebody has hidden the ornaments in the well. The 5‘ w K; @ ornaments were“ placed for identification and Meghnath (PW—4) ~ husband of the deceased has identified ‘ihe ornaments. Hnwever, Meghnath (PW—4) has depoaed in paia 4- 0f his evidence that firstly, the ornaments were shown to him by the police. Again in para 7 he has depoeed that the ornaments seized were not belonging to his wife. Evidence of Shankar Lal (PW-7) relating to identification of ornaments is also not reliable. Suresh Kumar (PW—12) — brother of the deceased has deposed that he has identified the ornaments vide Ex.P-6. But in para 6 of his cross-examination he has specifically admitted that at the time of test identifieation he has seen the ornaments before the poiice, however, i in para 3 he has specifically identified the articies seized on the basis of. discloser statement of‘Hiralal before the Court. a 28.Conduction of test identification is not sine qua non. Purpose of test identification is to ensure that the investigation is on right side. Delay in identification or even absence of conduct of identincation parade is not always fatal to the prosecution. identification of person and property during the course of evidence before the Court is a substantive piece of evidence. ,Yv 29.in the light of aforesaid legal proposition, if we examine the evidence of Suresh Kumar (PW—12) it would show that Suresh Kumar (PW-12), who is brother of Girija Bai, was having sufficient opportunity to see the ornaments of his sister and on the basis of that opportunity he has identified the ornaments viz., mangal sutra, anthi (siiver bangles) & payal. He has specifically deposed that he was not in a position to identify the kardhan, although her sister was having kardhan, but she w“”\ used to wear it on lower part of her body, therefore, he was not having ii p -_ l \ clear opportunityrto see it. This shows his natural character. His t. evidence inspires confidence that except kardhan, other ornaments i ‘ (5% recovered at the instance of appellant Hiralal were the ornaments of deceased Girija Bai which she was wearing at the incident of incident. 17 30.The aforesaid ornaments have been recovered on 16—7—2002 within three days of the incident and appeHant Hiralal has not offered any explanation that .how he came to know that the ornaments were hidden in the well under the water and how he was in possession of the alleged ornaments. In absence of such explanation the only presumption that he has removed the ornaments from the body of the deceased on the date of incident i.e. between the intervening night of 13m & 14‘“ July, 2002, u:- could be possible. 31.The pi‘osecutionahas established the following circumstances against the s l appellants: - (1)Appellant Neelkanth was present at the time of incident in the house where Girija Bai was also present. (2) Girija Bai died as a result of fatal injuries and was murdered in the intervening night of 13‘“ & 14m July, 2002. (3) Although hands & mouth of appellant Neelkanth were encircled by clothes, but virtually he was not tied with clothes. (4) No injury was found over the body of appellant Neelkanth, he has not offered any explanation that who has tied him and who has committed the murder of Girija Bai. (5) Appellant Neelkanth was present in the house and he was under obligation to explain that who has committed the murder of Girija Bai. (6)The ornaments were recovered on the basis of confessional statement of co—accused Hiralal — neighbour of appellant Neelkanth from the well within three days of the incident. (7) The ornaments were identified by brother of the deceased as the ornaments of deceased Girija Bai. (8)Appellant Hiralal has also not offered any explanation regarding recent possession of ornaments which Girija Bai was wearing during her lifetime. § 13 32.lf the aforesaid circumstances are considered together, the only hypothesis of guiit of appellants Neelkanth & Hiralal would be possible that Neelkanth & Hiralal were the persons who have committed the murder of deceased Girija Bai, it excludes the possibility of their innocence and also excludes the possibility of commission of murder by person other than the appellants. Appellant Neelkanth was also having grudge upon Girija Bai on the ground of her character. 33.After appreciating the evidence ‘available on record, learned Additional Sessions Judge has convicted the appellants under Section 302 of the «at l.P.C. and sentenced each of them to undergo imprisonment for life & pay fine of Rs.5‘OO/-. Conviction of the appellants is based on the ' circumstantial evidence sufficient for drawing inference that the appellants were the persons who have committed the murder of Girija Bai. v 34.0n close scrutinyl of evidence, we do not find any illegality in the judgment impugned warranting any interferenoel Both the appeals (Cr.A.Nos.1 197/2003 & 145/2004) are devoid of merit, they are liable to s be dismissed and they are hereby dismissed. Appellant Hiralal is on bail, he shall surrender immediately before the Court of 5‘“ Additional Sessions Judge, Durg for serving remaining part of sentence. Soma ,g Sd/— i , Sd/- T.P. Sharma ”i I R.L. Jhanwat; Judge ‘«\ Judge