HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal 732 of 2003
Deocharan
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! Lakhan Lal Mahilange
^ Rakesh Kumar Jha
CORAM: HONBLE MR T P SHARMA,HON BLE MR N K AGARWAL JJ
Dated: 05/03/2010
: JUDGEMENT
CRMINAL APPEAL UNDER SECTION 374 2 OF THE CODE OF CRIMINAL
PROCEDURE 1973
The judgment of the Court was delivered by T.P.Sharma, J.:-
1. Challenge in this appeal is to the judgment of conviction
& order of sentence dated 22.3.2003 passed by the Fifth
Additional Sessions Judge, Raipur, in Sessions Trial
No.226/2002, wherby & whereby learned Fifth Additional
Sessions Judge after holding the appellant guilty for
commission of culpable homicidal death of deceased Chiranjeev
amounting to murder and screening the evidence of criminal
case, convicted under Sections 302 and 201 of the Indian Penal
Code and sentenced him to undergo imprisonment for life and
rigorous imprisonment for two years.
2. The conviction is impugned on the ground that without
there being any iota of evidence sufficient for conviction of
the appellant, the Court below has convicted and sentenced the
appellant as aforementioned and thereby committed illegality.
3. Case of the prosecution, in brief, is that on the fateful
day of 19.5.2002, Chiranjeev (since deceased) was present in
the marriage ceremony of sister of Mohan, he consumed liquor
there and thereafter the appellant committed murder of
deceased Chiranjeev. After commission of murder, he dragged
dead body of deceased Chiranjeev from back side of his house
to kitchen garden of Lomas. On the second day at about 5.30
a.m. dead body of deceased Chiranjeev was seen by the
villagers in the kitchen garden of Lomas. Satish (PW-1) has
lodged merg intimation to the police vide Ex.P/1. Dehati
nalishi was also recorded vide Ex.P/16A and on the basis of
dehati nalishi, registered F.I.R. was recorded vide Ex.P/17 on
20.5.2002. Investigating officer proceeded for the scene of
occurrence and after summoning the witnesses vide Ex.P/5A,
inquest over the dead body of deceased Chiranjeev was prepared
vide Ex.P/6. Dead body of deceased Chiranjeev was sent for
autopsy to Community Health Centre, Gariyaband vide Ex.P/15.
Dr.Ajay Khandekar (PW-14) conducted autopsy vide Ex.P/21 and
found following symptoms and injuries over the body of
deceased Chiranjeev,
1) One red white gamacha found around on the neck, clothes
were stained with blood, tongue was protruded and caught
between teeth. Dust was found over the face, blood was oozing
out from the nose and face was deeply cyanosed.
2) Ligature mark found over the neck with light scratches
over ligature mark
3) Abrasion and scratches were found over forehead and right
side of cheek
4) Fracture of ring of trachea and thyroid cartilage was
found.
5) Ligature (gamacha) was found over the neck with knot
Injuries were ante-mortem. Cause of death was asphyxia
as a result of strangulation and death was homicidal in
nature. Spot map was prepared by investigating officer
vide Ex.P/2. Bloodstained & plain soil were recovered from
back side of house of appellant Deocharan vide Ex.P/4.
Sealed clothes of the deceased after autopsy was seized
vide Ex.P/7. Patwari prepared spot map vide Ex.P/10. The
appellant was also sent for medical examination.
Examination was conducted by Dr.Ajay Khandekar (PW-14) vide
Ex.P/18A and found abrasion over his left side of neck of
1″ and abrasion over back side of the neck of 3″. During
the course of investigation, bloodstained full paint was
seized from the accused vide Ex.P/3. Seized articles were
sent for chemical analysis vide Ex.P/13 and presence of
blood on full paint of the accused was confirmed vide
Ex.P/26.
4. Statements of the witnesses were recorded under Section
161 of the Code of Criminal Procedure, 1973 (in short `the
Code’) and after completion of investigation, charge sheet was
filed in the Court of Judicial Magistrate First Class,
Gariyaband, who in turn committed the case to the Court of
Sessions, Raipur, from where the Fifth Additional Sessions
Judge, Raipur received the case on transfer for trial.
5. In order to prove the guilt of the accused/appellants,
the prosecution has examined as many as 14 witnesses.
Statement of the accused/appellant was also recorded under
Section 313 of the Code where he denied the circumstances
appearing against him and pleaded innocence and false
implication in the crime in question.
6. After affording opportunity of hearing to the parties,
the Fifth Additional Sessions Judge has convicted and
sentenced the appellant as aforementioned.
7. We have heard learned counsel for the parties, perused
the judgment impugned and record of the Court below.
8. Learned counsel for the appellant vehemently argued that
the prosecution was under obligation to prove its case beyond
all shadow of doubt, but in the present case, the prosecution
has not adduced any credible and clinching evidence against
the appellant. Witnesses examined by the prosecution have not
supported the case of the prosecution and the prosecution has
declared them hostile. Only on the ground that some blood was
found near back side of the house of the appellant and some
mark of dragging of dead body from back side of the house of
the appellant to kitchen garden of Lomas are not sufficient
for drawing any inference that the appellant was the person
who has committed the offence.
9. Learned counsel placed reliance in the matter of Kadir v.
the State1 in which the High Court of Delhi has held that in
case of no blood found near house of the deceased and blood
found near the house of the accused, prosecution case is
liable to be rejected. Learned counsel further placed
reliance in the matter of Saniya Ram v. State of C.G.2 in
which this Court has held that in the absence of proof of
human blood on the axe and shirt, recovery cannot be connected
with the crime. Learned counsel also placed reliance in the
matter of Amar Sai v. State of Chhattisgarh3 in which this
Court has held that in the absence of specific blood group
found on the axe, the accused cannot be connected with the
murder of the deceased. Learned counsel further placed
reliance in the matter of Bhuruwa alias Dhanauram v. State of
C.G.4 in which this Court has held that in the absence of
human blood, that too of the blood group of the deceased was
found on the spade, is of no use. Learned counsel also placed
reliance in the matter of Gaukaran & Another v. State of C.G.5
in which this Court has held that in case of circumstantial
evidence, the prosecution is required to prove circumstances
sufficient for establishing by unimpeachable evidence and it
should be conclusive in nature.
10. On the other hand, learned State counsel supported the
judgment impugned and argued that the evidence adduced on
behalf of the prosecution is sufficient for drawing inference
that the appellant was the person who has committed the
offence.
11. In order to appreciate the arguments advanced on behalf
of the parties, we have examined the evidence adduced on
behalf of the prosecution. In the present case, homicidal
death as a result of ante-mortem fatal injuries of deceased
Chiranjeev has not been substantially disputed by the
appellant, on the other hand, also established by the evidence
of Dr.Ajay Khandekar (PW-14) and autopsy report Ex.P/21 which
reveals that death was as a result of strangulation and
homicidal in nature.
12. As regards the complicity of the accused/appellant in the
crime in question, in the present case the conviction is based
on circumstantial evidence. Satish (PW-1) has deposed in his
evidence that Raghu Thakur told him that body of deceased
Chiranjeev is lying in kitchen garden of Lomas, then he went
in kitchen garden of Lomas where dead body of Chiranjeev
stained with blood was lying in kitchen garden of Lomas. He
went to the police station and lodged merg intimation vide
Ex.P/1. Taneshwar (PW-2) has deposed in his evidence that he
along with deceased Chiranjeev were dancing in marriage
function. After completion of dance at night, Chiranjeev told
him that he is going to his house and on the second day, dead
body of deceased Chiranjeev was found stained with blood in
kitchen garden situated in back side of the house of the
appellant. He has also deposed that “dragging mark” from the
house of the appellant to kitchen garden of Lomas was present
where dead body was found. Bloodstained was also found from
the house of appellant Deocharan to the place where dead body
of the deceased was lying. Banmali (PW-3) has also supported
the evidence of Taneshwar (PW-2). The prosecution has also
examined Lomas (PW-5) in which kitchen garden dead body was
found. He has not supported the case of the prosecution
initially and the prosecution declared him hostile. In para 3
of his cross-examination, he has admitted that “dragging mark”
from the house of appellant Devcharan up to his kitchen garden
was present. Deveshwar Gagendra (PW-6) has also corroborated
the evidence of Taneshwar (PW-2). During the course of
investigation, police has seized bloodstained full paint from
the accused vide Ex.P/3. The factum of seizure has been well
corroborated by Satish (PW-1) and Sub Inspector J.S.Rangi (PW-
13). J.S.Rangi (PW-13) has specifically deposed in his
evidence that he has prepared spot map vide Ex.P/2 in which he
has specifically mentioned dragging mark and presence of blood
found in the verandah of the accused and also between verandah
of the accused and kitchen garden of Lomas. Defence has cross-
examined these witnesses at length. Taneshwar (PW-2) has
admitted in para 7 of his cross-examination that he himself
has seen dragging mark, but again he has deposed that he has
not seen dragging marks and on the basis of evidence of other
persons, he has stated that he has seen dragging mark.
Banmali (PW-3) has also deposed that villagers told him
relating to dragging mark that is why he has stated relating
to dragging mark. Defence has not asked anything to Lomas (PW-
5) relating to presence of dragging mark. J.S.Rangi (PW-13)
who has prepared spot map has specifically deposed that
dragging mark of the dead body was found from the house of the
present appellant up to kitchen garden of Lomas and blood was
found in the house of the appellant and kitchen garden of
Lomas which he has seized vide Ex.P/4 and also prepared spot
map vide Ex.P/2.
13. As held by this Court in the matters of Saniya Ram, Amar
Sai and Bhuruwa alias Dhanauram (supra), in case of blood
found on the clothes or weapons, the prosecution is required
to prove blood group whether it tails with the blood group of
the deceased. In the present case, conviction is not based
only on the presence of blood, but conviction is substantially
based on other circumstances of dragging mark starts from the
house of the appellant to the kitchen garden of Lomas where
dead body was found containing bloodstained in different
places. The fact of the cases of Saniya Ram, Amar Sai and
Bhuruwa alias Dhanauram (supra) is distinguishable to that of
the present case.
14. In the matter of Padala Reddy v. State of A.P. & Ors.6 it
was laid down by the Apex Court that when a case rests upon
circumstantial evidence, 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 from 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 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.
15. As held by the High Court of Delhi in the matter of Kadir
(supra), case of the prosecution was disbelieved on the ground
that blood was not found where knife blow was given which was
very natural. The fact of the case of Kadir (supra) is
distinguishable to that of the present case.
16. In the present case, dead body of the deceased was found
near the house of the appellant in kitchen garden of Lomas.
“Dragging mark” was found starting from the house of the
appellant to the place where dead body was found and
bloodstained was found in the aforesaid dragging mark in
different places which were examined by the Forensic Science
Laboratory and blood was affirmed vide Ex.P/26.
17. This is the special evidence and sufficient for drawing
inference that somebody has dragged dead body or body of
deceased Chiranjeev from the house of the appellant up to the
place where dead body was found. The appellant was present in
his house. The present offence has been committed in secrecy.
The present appellant must have knowledge of the fact and he
was under obligation to offer explanation under Section 106 of
the Evidence Act that who has strangulated the deceased, who
has dragged the deceased from his house to the place where
dead body of the deceased was found and how the blood was
found in the aforesaid dragging mark. If these circumstances
are considered together, then same would be sufficient for
hypothesis of the guilt of the appellant and to exclude the
hypothesis of his innocence or guilt of the other person.
18. After appreciating the evidence available on record,
learned Fifth Additional Sessions Judge, Raipur has convicted
the appellant under Sections 302 & 201 of the Indian Penal
Code. The evidence adduced on behalf of the prosecution is
sufficient for drawing inference that the appellant is the
person who has committed culpable homicidal death of deceased
Chiranjeev amounting to murder and has removed the body from
his house with a view to conceal the evidence of criminal
case. The conviction of the appellant is based on credible,
clinching and reliable evidence sustainable under the law.
19. On close scrutiny of the evidence, we do not find any
illegality in the judgment impugned. The appeal being devoid
of merit is liable to be dismissed and it is hereby dismissed.
JUDGE