HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, 33. APPELLANTS: RESPONDENT: APPELLANT: RESPONDENT: Criminal Appeal No.1217 of 1992 Dinesh Kumar Shukla and others Versus State of Madhya Pradesh (now State of Chhattisgarh) AND Criminal Appeal No.183 of 1993 Mohanlal Versus State of Madhya Pradesh (now State of Chhattisgarh) c 3UDGMENT FOR CONSIDERATION Sd/- T.P. Sharma Judge HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- 1 R.L. Jhanwar 1 Judge Post for pronouncement of ludament on 22nd ApriT, 2010 Sd/- T.P. Sharma Judge BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 13:09:09 +0530 ^ HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. c APPELLANTS: RESPONDENT: APPELLANT: RESPONDENT: Criminal Appeal No.l217of 1992 1. Dinesh Kumar Shukla son of Sharda Prasad Shukla, aged about 20 years 2. Koshal Prasad son of Govind Pathak, aged about 22 years 3. Ashok son of Shiv Prasad Sahu, aged about 21 years All residents of village Kopra, Thanna Hirri, Distt Bilaspur, M.P. (now C.G.) Versus State of Madhya Pradesh (now State of Chhattisgarh) AND Criminal Appeal No.183 of 1993 Mohanlal s/o Dayaram Khairwar, aged 35 years, r/o village Kopra, Thana Hirry, Distt. Bilaspur (M.P.) (now C.G.) Versus State of Madhya Pra.desh (now State of Chhattisgarh) (Criminal appeals under Section 374 (ii) of the Code of Criminal Procedure, 1973) Present: Mr. P.K.C Tiwari, Senior Advocate with Mr. Shashi Bhushan, Advocate for the appellants. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent. 3UDGMENT (Delivered on 22nd April, 2010) The followinq iudqment ofthe Court was deljvered by T.P. Sharma, J: - ^^SK^^^ ^cc""^, //^" ^^ \ It^^^l j ^%^'. ^ ^ ./- ff ':-;^^F ^ ^^s!^y c' c 1. Cr.A.No.1217/1992 filed on behalf of Dinesh Kumar Shukla, Koshal Prasad & Ashok and Cr.A.No.183/1993 filed on behalf of Mohanlal have been preferred against the common judgment dated 30-11- 1992 passed by the 3 Additional Sessions Judge, Bilaspur, in Sessions Trial No. 196/90, therefore, they are being disposed of by this common judgment. 2. Challenge in these two appeals is to the judgment of conviction and order of sentence dated 30-11-1992 passed by the 3rd Additional Sessions Judge, Bilaspur in Sessions Trial No.196/90, whereby and whereunder tearned Additional Sessions Judge after holdirig the appellants guilty for commission of culpable homicide amounting to murder of Kedar Yadav and concealing the evidence of criminal case, convicted the appellants under Sections 302 & 201 of the I.P.C. and sentenced each ofthem to undergo imprisonment for life. 3. Judgment is impugned on the ground that without any clinching & credible evidence, the trial Court has convicted & sentenced the appellants and thereby committed illegality. 4. Case of the prosecution, in brief, is that Kedar Yadav (since deceased), resident of- village Kopra was Sarpanch of Village Kopra, on 7-7-89 at about 8.30 a.m. he went to village Pakariya (in-law's house of his daughter), he was required to come back to villag.e Kopra and therefore, he proceeded from Pakariya to Kopra, but he did not reach village Kopra. Relatives of the deceased including his brother Rangilal (PW-20) searched for the deceased, but they could not find the deceased and lastly on 11-7-89 Rangilal (PW-20) lodged missing report vide Ex.P-28A. On 12-7-89 Kotwar of adjoining vjllage Bel Mundi namely Bahoran Das (PW-5) intimated the police that they have noticed abnormal circumstance near their village that is somebody has recently dug the land and it appears that some body has buried something inside the land. The police recorded rojnamcha vide Ex.P-29A and after obtaining permission from the competent authority to exhume the land vide Ex.P-31, the police dug the buried place where they found the dead body of Kedar Yadav along with wrist watch, key of cycle, gold article and packet of biscuits. Injuries were also found over the body of Kedar Yadav. After summoning the witnesses vide Ex.P-20, inquest over the dead body of Kedar Yadav was prepared by the Investigating Officer vide %,^l^p5^^ 1 ^ "-^•.-.. "^ .^ '•^,,, _ _.^^ ^•^sss^^' c Ex.P-21. Merg was recorded vide Ex.P-40 and on the basis of merg, F.I.R. was lodged and dehati nalsi was prepared vide Ex.P-42. Plastic buttons were seized vide Ex. P-24. Blood stained & plain soil were seized vide Ex. P-25. Dead body was sent for autopsy to Government Doctor, Bilha vide Ex.P-41. Dr. C.L. Chandrakar (PW- 12) conducted autopsy vide Ex.P-27 and found following symptoms/injuries over the body of the deceased: - (l)Red marks of 12 c.m. x 12 c.m. on left side of chest. (2)Red marks of 14 c.m. x 12 c.m. on right side of chest. (3)Face was depressed (f^-cichi ^STT) but facial bones were not fractured. (4)Red marks of 10 c.m. x 8 c.m. on anterior side of left thigh. (5)Red marks of 12 c.m. x 10 c.m. on anterior side of right thigh. (6)Bruise of 5 c.m. x 2 c.m. on dorsal of feet. (7)Bruise of 5 c.m.x 3 c.m. at medial meleolusof ankle joint. (8)Bruise of5 c.m. x 5 c.m. on front side of both knees. (9)Tongue was protruded and eye ball decomposed. Fracture of cartilage of neck, hyoid & thyroid were found. Trachea was congested. Cause of death was asphyxia as a result of strangulation. 5. The appellants were having enmity with the deceased on account of Panchayat elections. During the course of investigation, appellant Kaushal was taken into custody, hemade discloser statement of seal of Sarpanch, cycle & clothes vide Ex.P-1 and seal was seized from appellant Kaushal vide Ex.P-2. Rs.100/- was seized from Rameshwar vide Ex.P-3. Clothes of Kaushal were seizedvide Ex.P-4. Cycle was recovered at the instance of Kaushal vide Ex.P-5. Appellant Dinesh was taken into custody and was interrogated, he made discloser statement of clothes, shoe of the deceased, spade, gaiti and cycle. Clothes were recovered from Dinesh vide Ex.P-7. Two cycles were recovered at the instance of Dinesh vide Ex.P-8. Spade & gaiti were recovered at the instance of Dinesh vide Ex.P-9. Appellant Ashok was also taken into custody, he made discloser statement of clothes & cycle of the deceased vide Ex.P-10 and the same were recovered at the instance of Ashok vide Exs.P-11 & P-13. Plastic shoe of the deceased was recovered at the instance of Dinesh vide Ex.P-12. Sealed clothes of the deceased were seized vide Ex.P- 14. Appellant Mohanlal was taken into custody, he made discloser ^ c statement of clothes and Rs.100/- vide Ex.P-15. Clothes and money were seized at the instance of Mohanlal vide Ex.P-16. One bill of cycle was seized vide Ex.P-17. Plastic buttons were seized from near the spot vide Ex. P-22. One key ring was seized from near the spot vide Ex.P-23. Diary and other papers were seized from Narendra Kaushik vide Ex. P-26. Seized articles were sent for chemical examination. 6. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. 7. In order to prove the guilt of the appellants, the prosecution has examined as many as twenty-eight witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false impljcation. 8. After affording opportunity of hearing to the parties, learned Additiona! Sessions Judge has convicted & sentenced the appellants in the aforesaid manner. 9. We have heard tearned counsel for the parties, perused the judgment impugned and record ofthe trial Court. lO.Mr. P.K.C. Tiwari, learned Senior Advocate appearing on behalfofthe appellants, vehemently argued that in the present case, homicidal death of the deceased as a result of fatal injuries and concealment of dead body of the deceased after commission of offence of murder have not been substantially disputed on behalf ofthe appellants, but in the present case, the prosecution has failed to adduce any evidence to connect the appellants with the crime in question and in absence of any evidence to connect the appellants with the crime in question, the appellants herein are not liable for commissionof any offence. Learned Senior Advocate further argued that virtually this is a case of no evidence. ll.On the other hand, Mr. Rakesh Kumar Jha, learned Deputy Govt. Advocate appearing on behalf of the State/respondent, vehemently &^ opposed the appeals and submitted that the prosecution has proved its case beyond all reasonable doubts by adducing evidence sufficient for conviction of the appellants. l2.In order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. l3.In the present case, homicidal death of Kedar Yadav as a result of ante-mortem injuries and concealment of dead body i.e. evidence of criminal case by withholding the same in the land have not been substantially disputed on behalf of the appellants, otherwise also it is established by the evidence of Dr. C.L. Chandrakar (PW-12), autopsy report Ex.P-27 and inquest report Ex.P-21 that the death of Kedar Yadav was homicidal in nature and dead body was buried/concealed with intent to conceal the evidence of criminal case. l4.Conviction of the appellants is substantially based on circumstantial evidence. In case of conviction based on circumstantial evidence, the prosecution is required to prove strong motive for commission of offence and completechain of circumstances sufficient for drawing definite conclusion that except the appellants nobody has committed the offence. The prosecution is required to adduce evidence and such evidence must satisfying the following tests: - (1)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmty established; (2)those circumstances should of a definite tendency unemngly pointing towards the 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 allhuman 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. l5.In the present case, it is not disputed that on 7-7-89 deceased Kedar Yadav was required to come back to his village Kopra, but he did not come back and his dead body was found buried in a pit recently dug near village Bel Mundi which is on the way to village Kopra. The pit L. was first noticed by Bhulau Ram (PW-4) and as per his evidence he narrated the factum of said pit to other persons. Bahoran Das (PW- 5) has corroborated the evidence of Bhulau Ram (PW-4). Kanshi Ram (PW-7) - son-in-law of deceased Kedar Yadav has deposed in his evidence that Kedar Yadav proceeded for his village, but he did not reach to his village and his dead body was found in the pit. Ramsharan Yadav (PW-8) has deposed that when Kedar Yadav did not reach to his house, they searched for him but they could not find him, thereafter, the dead body of Kedar Yadav was recovered. l6.Sekhu (PW-10) has deposed that on the date of incident at night he met Dinesh at village Sakri, Dinesh proceeded for Sakri by cycle, he also followed Dinesh but he could not met Dinesh on the way. Another witness relating to presence of accused at village Sakri namely Santosh (PW-11) has deposed that on the date of incident at about 5 p.m. appellants Mohan, Dinesh & Kaushal came to his saloon and they stayed there for some time. Jalwati (PW-19) has deposed that on the fateful day at 5 a.m. she had seen appellants Ashok & Kaushal who went towards Bel Mundi by cycle. Brother of the deceased Rangilal (PW-20) has deposed about enmity between the appellants & the deceased on account of Panchayat elections 5-6 months prior to commission of offence and finally recovery of dead body. Magrib Khan (PW-22) has deposed in his evidence that on the date of incident at about 6.30 p.m. deceased Kedar Yadav went towards Kopra by cycle and he wished him. Ramsanehi (PW-23) has deposed that on the date of incident at about 8-9 p.m. appellant Kaushal came to village Kopra along with other persons and he went towards his house. As per the evidence of Itwari Sahu (PW-25), on the date of incident at about 5 p.m. Kedar Yadav proceeded for Sakri by cycle. l7.As regards motive and question of enmity, the prosecution has examined Manik Das (PW-6), Kadam Bai (PW-9) - widow of Late Ved Prasad, Rangilal Yadav (PW-20) & ManishankarTripathJ (PW-26) who have deposed in their evidence that on account of Panchayat election which was finally adjourned terms of the appellants & the deceased were not cordiat, but there was no known enmity between them. If this evidence is believed in its face value, it may be presumed that on account of Panchayat elections, the appellants & the deceased ,;'.^,®£^^ /r^ 1\- <^2:.^ ^ %.. . <F^^^r'^ ^ • ^ ^ L 7 were not in cordial terms, but there was no direct enmity between them. 18.0n the date of incident, the deceased was required to come back to his house, he proceeded for his village from village Pakariya at about 3 p.m. and he left Sakri atabout 5 p.m. He crossed village Pand at about 6.30 p.m. but he did not reach village Kopra. As per the evidence of Magrib Khan (PW-22), at about 6.30 p.m. deceased Kedar Yadav passed through village Pand, at that time he was alone andhe came towards Sakri. As per the evidence of Santosh (PW- 11), on the fateful day at about 5 p.m. appellants Mohan, Dinesh & Kaushal were present in the saloon at village Sakri and as per the evidence of Ramsanehi (PW-23), appellant Kaushal reached village Kopra between 8-9 p.m. Evidence of these witnesses are material for consideration. As per the evidence of Santosh (PW-11), appellants Mohan, Dinesh & Kaushal were present atSakri at about 5 p.m. and at that time, deceased Kedar Yadav was not present at Sakri but at 6.30 p.m. Kedar Yadav had crossed village Pand and at the time he was alone. As per the evidence of Ramsanehi (PW-23), appellant Kaushal alone reached to his village between 8-9 p.m. On the basis of the evidence of these witnesses it is difficult to hold that the deceased was in the company of the appellants or that any witness has seen the deceased in the company of the appellants. The prosecution has also not adduced any evidence to show that the appellants were having knowledge of the fact that the deceased had gone to his daughter-in-law's house and will come back at any definite time or that they were waiting for the deceased. l9.The prosecution has adduced evidence relating to recovery of articles at the instance of accused persons, but except cycle of the deceased alleged to have been recovered at the instance of appellant Ashok, one seal of Sarpanch recovered from appellant Kaushal and shoe of the deceased recovered at the instance of appellant Dinesh, there is nothing incriminating drcumstance against any of the appellants. If the factum of recovery on the basis of confessional statement is considered, it would show that all the appellants were having their cycles then there was nopropriety to take the cycle of the deceased by any accused, especially when they have not taken wrist watch & gold ornaments of the deceased from his body. Likewise, even there was no propriety for the appellants for taking the seal of Sarpanch w i ;fteS®®?'> I, '^sg£:^^ v_ 8 which carries no value and taking shoe from the body of the deceased when they have not taken valuable articles from the pocket or body of the deceased. 20.0ther evidence relating to travelling of the accused persons and travelling of the deceased itself is not incrimjnating evidence against the appellants. In case of conviction based on circumstantial evidence, as held in the matter of C. Changa Reddy v. State of A.P., AIR 1996 SC 3390 : (1996) 10 SCC 193, the prosecutionis required to adduce evidence and such evidence must satisfy the tests as enumerated in para 14 of this judgment. However, in the present case, virtually the prosecution has not proved any circumstance against fhe appellants to prove their guilt. Only on the basis of homicidal death of the deceased and concealment of dead body of the deceased, liable cannot be fastened upon the appellants without any cogent and credible evidence. While convicting the appellants, the trial Court has not considered the aforesaid aspect and complete insufficiency of evidence, and thereby committed grave illegality in convicting the appellants. On close scrutiny of evidence, we do not fjnd any credible and clinching ground for maintaining conviction ofthe appellants. 2l.Consequently, Criminal Appeal Nos.1217/92 & 183/93 are allowed. Conviction & sentences of the appellants under Sections 302 & 201 of the I.P.C. are hereby set aside, they are acquitted of the said charges and they be set at liberty forthwith. Soma Sd/- T.P. Sharma Judge Sd/- R.L.Jhanwar Judge