HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal 819 of 1993
Hatkeshwar Keshear
...Petitioners
Versus
State of Madhya Pradesh
...Respondents
! Mr Abhay Tiwari
^ Mr Sandeep Yadav
CORAM: Honble Mr T P Sharma, Honble Mr R L Jhanwar JJ
Dated: 20/03/2010
: JUDGEMENT
Criminal appeal under Section 374 2 of Cr P C
T.P.Sharma, J.
1. Challenge in this appeal is to the judgment of
conviction & order of sentence dated 29.4.1993 passed by the
Additional Sessions Judge, Jashpurnagar, in Sessions Case
No.117/92, whereby & whereunder learned Additional Sessions
Judge after holding the appellant guilty for commission of
culpable homicide amounting to murder of Bhukhlibai @ Kemla
and concealing the evidence of criminal case convicted the
appellant under Sections 302 & 201 of the Indian Penal Code
and sentenced him to undergo imprisonment for life and
imprisonment for two years.
2. Conviction is impugned on the ground that without any
iota of clinching and credible evidence, the Court below has
convicted and sentenced the appellant as aforementioned and
thereby committed illegality.
3. Case of the prosecution, in brief, is that the appellant
Hatkeshwar was having illicit relation with deceased
Bhukhlibai, wife of Goverdhan. So many times, the appellant
directed to deceased Bhukhlibai to go out of the village for
livelihood along with him which she refused. One day prior to
1.5.92, the appellant committed intercourse with her and
directed to meet at canal (nala) on 1.5.92. On 1.5.92,
deceased Bhuklibai went to canal for washing clothes where
the appellant also went. Again he directed to go with him
out of the village for livelihood which she refused, then the
appellant having betel axe assaulted over her neck and
chopped her neck. After chopping the head from body, the
appellant took the head of the deceased in his towel (Gamcha)
and concealed in one tree. The appellant came back and took
bath. Chop body of the deceased, except head was lying near
canal. Villagers reached to the spot and saw chopped body.
Gadadhar (PW-2), elder brother-in-law (Jeth) went to the
police station and lodged the F.I.R. vide Ex.P/1. Merg
intimation was also recorded vide Ex.P/12. Investigating
officer proceeded for the scene of occurrence and after
summoning the witnesses, inquest over the dead body of the
deceased was prepared vide Ex.P/2. Pieces of hairs, flesh,
bloodstained and plain soil were recovered from the spot vide
Ex.P/3. Broken bangles of the deceased were seized from the
spot vide Ex.P/4. Body of the deceased without head was sent
for autopsy to Government Hospital, Bagicha. Rajkumar Patel
(PW-5) conducted autopsy vide Ex.P/8 and found head was
missing, neck was chopped and lacerated wound over left
shoulder of 3″ x 3″ x bone deep. Internal organs were
congested. On 3.5.92, the appellant was taken into custody,
he made disclosure statement of chopped head of deceased
Bhukhlibai, bloodstained betel axe and bloodstained clothes
vide Ex.P/5. The appellant took the police officer near one
Kahuwa tree from where he took out chopped head of the
deceased Bhukhlibai which was seized vide Ex.P/6. The
accused was produced one betel axe and bloodstained clothes
from his house and the same were seized vide Ex.P/7. Head
was again sent for examination to Dr.Rajkumar Patel (PW-5).
He examined head vide Ex.P/9 and found that the head was of a
woman. He also examined betel axe vide Ex.P/10. At the time
of sending the body for autopsy, investigating officer also
made request to the doctor to examine as to whether before
her death she had been subjected to rape or not. Vaginal
scarp was taken vide Ex.P/13. Spot map was prepared by the
investigating officer vide Ex.P/14.
4. Statement 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 before the Judicial Magistrate First Class,
Jashpurnagar, who in turn committed the case in the Court of
then Sessions, Raigarh, from where learned Additional
Sessions Judge, Jashpurnagar received the case on transfer
for trial.
5. In order to prove the guilt of the accused/appellant,
the prosecution has examined as many as 10 witnesses. The
accused/appellant was examined under Section 313 of the Code
where he denied the circumstances appearing against him and
claimed innocence and false implication in the crime in
question.
6. After providing opportunity of hearing to the parties,
learned Additional Sessions Judge has convicted and sentenced
the appellant as aforementioned.
7. We have heard Mr.Abhay Tiwari, counsel for the appellant
and Mr.Sandeey Yadav, Deputy Government Advocate for the
State/respondent, perused the judgment impugned and record of
the Court below.
8. Learned counsel for the appellant vehemently argued that
the conviction is based on circumstantial evidence. In case
of conviction based on circumstantial evidence, the
prosecution is required to adduce evidence and 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 of a definite tendency
unerringly pointing towards the 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 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.
The prosecution is also required to prove that
circumstances so proved are complete chain and are
sufficient to exclude innocency of the accused or any
other person and sufficient for drawing inference that
only the appellant has committed the offence. In the
present case, the evidences of the witnesses are self-
contradictory. As per the evidence of Santu (PW-1), the
appellant was standing near the place of incident, he was
holding betel axe, the deceased was washing her clothes in
the canal. After sometime when he was passing near canal
he saw head of her aunt deceased Bhukhlibai and rest part
of the body was not present there. Other witnesses namely,
Jageshwar, Goverdhan and Jadadhar were present on the
spot, then he went to the forest. After sometime again he
came back. On the second day, police came and directed to
take the body of the deceased (trunk) exclude head to
Bagicha, then he took. Thereafter on the basis of
confessional statement of the accused, head was recovered
near one tree, inter alia, Gadadhar (PW-2) and Goverdhan
(PW-3) have deposed that when they reached to the spot
they saw trunk of the deceased, except head and head was
missing. It shows that both were present near the spot and
husband of the deceased was also present along with
Gadadhar and the deceased, but afterwards head was missing
and trunk of body was found. It shows that the appellant
has not concealed the head of the body. These
contradictory statements are sufficient to discredit the
evidence of the witnesses.
9. On the other hand, learned State counsel supported the
judgment impugned and argued that the evidence adduced on
behalf of the prosecution is sufficient to prove that the
appellant was having illicit relation with married woman
deceased Bhukhlibai and on account of dispute of going out of
village for livelihood along with the appellant, the
appellant has committed brutal murder of the deceased. He was
present on the spot along with the deceased, he was having
betel axe and afterwards head was seized at his instance
along with clothes and weapon of the offence. These
evidences are sufficient to connect the appellant in the
crime in question. The Court below has rightly convicted and
sentenced the appellant as aforementioned.
10. In order to appreciate the argument advanced on behalf
of the parties, we have examined the material available on
record. In the present case, homicidal death as a result of
ante-mortem fatal injuries by chopping of the head of
deceased Bhukhlibai has not been substantially disputed on
behalf of the appellant, on the other hand, otherwise also
established by the evidence of Dr.Rajkumar Patel (PW-5),
autopsy report Ex.P/8 and head examination report Ex.P/9. The
evidences of Santu (PW-1), Gadadhar (PW-2), Goverdhan (PW-
3), Trilochan (PW-4) and Head Constable Shobhnath Singh (PW-
10) who has deposed that chopped trunk of the deceased
Bhukhlibai and head of Bhukhlibai were found and death was
homicidal in nature.
11. In case of conviction based on circumstantial evidence,
as held by the Apex Court in the matter of C. Changa Reddy V.
State of A.P.1, the prosecution is required to adduce
evidence and 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 of a definite tendency
unerringly pointing towards the 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 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.
12. In the present case, the conviction is based on
following circumstantial evidence,
i) The appellant was having illicit relation with deceased
Bhukhlibai, wife of Goverdhan (PW-3);
ii) The appellant used to entice her to go out with him for
livelihood which she refused;
iii) On the date of incident and at the time of incident,
deceased Bhukhlibai was washing her clothes in canal, away
from the village;
iv) Appellant Hatkeshwar was present near the deceased at
the time of incident;
v) The appellant was holding betel axe;
vi) After sometime chopped trunk of the deceased was found
lying near canal;
vii) The appellant was not present near the place of incident
when chopped trunk was found near canal;
viii) Head of the deceased was also missing;
ix) Head of the deceased was recovered at the instance of
the appellant from hidden place;
x) The appellant has not offered any explanation that who
has caused injury to the deceased and who has chopped her
neck;
xi) The appellant has not offered any explanation that who
has hidden the head of the deceased;
13. Santu (PW-1), nephew of deceased Bhukhlibai, has
deposed in his evidence that at about 11 a.m. on the date
of incident while he was passing beside canal, deceased
Bhukhlibai was washing her clothes and the appellant was
standing near her, he was holding betel axe, he talked
with the appellant and went to his house. When again he
was going beside canal with his cattle he saw the head of
the deceased and trunk was missing. Again when he came
back from the forest, at that time trunk was lying and
head was missing. He has further deposed that being
interrogated the appellant made disclosure statement of
the head of the deceased near one tree which was finally
recovered. Defence has cross-examined this witness at
length. In para 4 of his cross-examination, he has
supported his version that when saw first time the
appellant, at that time the appellant was holding betel
axe near the place of incident. In para 5 of his
cross-examination he has specifically admitted that the
deceased was present alone in canal while she was washing
her clothes and no other female or persons were present,
although the prosecution or defence has not asked anything
to this witness relating to presence of head of the
deceased first time, but his statement recorded under
Section 161 of the Code Ex.D/1 reveals that only trunk was
lying near the place of incident and head was missing.
Gadadhar (PW-2), brother-in-law and Goverdhan (PW-3),
husband of the deceased have deposed in their evidences
that when they reached to the spot along with the
appellant, then they saw trunk of the deceased Bhukhlibai
and head was missing, then Gadadhar (PW-2) went to the
police station and lodged the F.I.R. In his
cross-examination, Gadadhar (PW-2) has specifically
deposed that Santu (PW-1) his son was also present with
him and trunk of the deceased was present and head was not
present. The evidences of Santu (PW-1), Gadadhar (PW-2)
and Goverdhan (PW-3) clearly established that only chopped
trunk of the deceased was present in the place of incident
and head was missing and before such incident only the
appellant and the deceased were present near canal and the
appellant was holding betel axe. His presence near canal
i.e. place of incident along with betel axe while deceased
was washing her clothes otherwise was not natural because
Bhukhlibai was not his wife, but wife of Goverdhan (PW-3).
The appellant has not offered any explanation that why he
was present near the deceased, that too with betel axe and
when he parted company of Bhukhlibai or who has caused
injury and who has chopped neck of deceased Bhukhlibai.
10. Head Constable Shobhnath Singh (PW-10), who has
conducted investigation, has deposed in his evidence that on
3.5.93 he took the appellant in custody and interrogated, he
made confessional statement relating to head of deceased
Bhukhlibai, betel axe and bloodstained clothes vide Ex.P/5,
then he went with the appellant from where he produced head
of Bhukhlibai which he has seized vide Ex.P/6. Then he went
with the appellant to his house from where he produced one
betel axe, bloodstained lungi, baniyan and towel (touliya)
which he has seized vide Ex.P/7. Finally he has sent the
head for examination and other articles for examination.
Santu (PW-1) and Trilochan (PW-4) have corroborated the
evidence of Shobhnath Singh (PW-10) relating to disclosure
statement of head and other articles made by the appellant
and recovery of the head of the deceased and other articles
at the instance of the appellant.
11. From perusal of the evidence of the aforesaid witnesses,
it reveals that head of the deceased was not lying in the
open place but it was hidden and buried in the land which was
assumed and recovered. It also reveals that the appellant
took the police officer and other witnesses to the place
where the head was buried, he dig and took out the head which
was recovered vide Ex.P/6.
12. Only recovery of chopped head of the deceased itself is
not sufficient for drawing inference that the appellant has
committed murder of deceased Bhukhlibai if the same is
satisfactorily explained by the appellant. Recovery of head
from hidden place at the instance of the appellant shows that
either the appellant has hidden the head of the deceased or
some other person has hidden the head and the appellant had
seen while it was hidden or he came to know from other
sources that somebody has hidden the head. In these
circumstances, the appellant was required to offer
explanation that how he came to know. In the absence of such
explanation, the only inference would be possible that the
appellant had hidden the head of deceased Bhukhlibai and
buried.
13. In the present case, the prosecution has proved the
following circumstances,
i) The appellant was having illicit relation with deceased
Bhukhlibai, wife of Goverdhan (PW-3);
ii) On the date of incident and at the time of incident, the
appellant was present near canal and he was holding betel
axe;
iii) Deceased Bhukhlibai was also present in canal and was
washing her clothes;
iv) Except Bhukhlibai and the appellant no other persons
were present on the spot;
v) At about 3 p.m. on the same day chopped trunk of
deceased Bhukhlibai was found on the spot and head of
Bhukhlibai was missing;
vi) The appellant was not present on the spot;
vii) The appellant has not offered any explanation that why
he was present near Bhukhlibai, wife of Goverdhan and that
too with betel axe dangerous weapon and who has chopped the
head of the deceased;
viii) The appellant has made disclosure statement of head
of Bhukhlibai, betel axe, and clothes;
ix) Head of Bhukhlibai was found buried in the land away
from the place of incident
x) The place where the head of Bhukhlibai was buried has
been shown by the appellant and he dig and took out the head
of the deceased;
xi) Betel axe has been seized at the instance of the
appellant; and
xii) The appellant has not offered any explanation that who
has hidden the head of deceased Bhukhlibai.
14. If the aforesaid circumstances are considered together,
then only hypothesis would be possible that the present
appellant is the person who has committed murder of deceased
Bhukhlibai and has concealed the evidence of criminal case
and except the appellant nobody has committed the aforesaid
offence. These circumstances are also sufficient to exclude
the possibility of innocency of the appellant.
15. After appreciating the evidence available on record,
learned Additional Sessions Judge, Jashpurnagar has convicted
& sentenced the appellant as aforementioned. Conviction &
sentence of the appellant is based on credible, clinching and
reliable evidence, sustainable under the law.
16. 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