{"id":246684,"date":"2010-03-05T00:00:00","date_gmt":"2010-03-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/deocharan-vs-state-of-chhattisgarh-on-5-march-2010"},"modified":"2017-09-05T18:10:27","modified_gmt":"2017-09-05T12:40:27","slug":"deocharan-vs-state-of-chhattisgarh-on-5-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/deocharan-vs-state-of-chhattisgarh-on-5-march-2010","title":{"rendered":"Deocharan vs State Of Chhattisgarh on 5 March, 2010"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
Deocharan vs State Of Chhattisgarh on 5 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n             HIGH COURT OF CHATTISGARH AT BILASPUR      \n\n                Criminal Appeal 732 of 2003\n\n\n                  Deocharan\n                       ...Petitioners\n\n                          Versus\n\n             State  of  Chhattisgarh\n                            ...Respondents\n\n!                 Lakhan Lal Mahilange\n\n^                 Rakesh Kumar Jha\n\n CORAM:          HONBLE MR T P SHARMA,HON BLE MR N K AGARWAL  JJ            \n\n\n Dated:        05\/03\/2010\n\n:                      JUDGEMENT\n<\/pre>\n
 CRMINAL APPEAL UNDER SECTION 374 2  OF THE CODE OF CRIMINAL
\n                       PROCEDURE 1973<\/p>\n
  The judgment of the Court was delivered by T.P.Sharma, J.:-\n<\/p>\n
1.   Challenge in this appeal is to the judgment of conviction
\n  &  order  of  sentence dated 22.3.2003 passed by  the  Fifth
\n  Additional   Sessions  Judge,  Raipur,  in  Sessions   Trial
\n  No.226\/2002,  wherby  &  whereby  learned  Fifth  Additional
\n  Sessions  Judge  after  holding  the  appellant  guilty  for
\n  commission of culpable homicidal death of deceased Chiranjeev
\n  amounting  to murder and screening the evidence of  criminal
\n  case, convicted under Sections 302 and 201 of the Indian Penal
\n  Code and sentenced him to undergo imprisonment for life  and
\n  rigorous imprisonment for two years.\n<\/p>\n
2.    The  conviction is impugned on the ground  that  without
\n  there being any iota of evidence sufficient for conviction of
\n  the appellant, the Court below has convicted and sentenced the
\n  appellant as aforementioned and thereby committed illegality.\n<\/p>\n
3.   Case of the prosecution, in brief, is that on the fateful
\n  day of 19.5.2002, Chiranjeev (since deceased) was present in
\n  the marriage ceremony of sister of Mohan, he consumed liquor
\n  there  and  thereafter  the appellant  committed  murder  of
\n  deceased Chiranjeev.  After commission of murder, he dragged
\n  dead body of deceased Chiranjeev from back side of his house
\n  to kitchen garden of Lomas.  On the second day at about 5.30
\n  a.m.  dead  body  of deceased Chiranjeev  was  seen  by  the
\n  villagers in the kitchen garden of Lomas.  Satish (PW-1) has
\n  lodged  merg  intimation to the police vide Ex.P\/1.   Dehati
\n  nalishi was also recorded vide Ex.P\/16A and on the basis  of
\n  dehati nalishi, registered F.I.R. was recorded vide Ex.P\/17 on
\n  20.5.2002.  Investigating officer proceeded for the scene of
\n  occurrence  and after summoning the witnesses vide  Ex.P\/5A,
\n  inquest over the dead body of deceased Chiranjeev was prepared
\n  vide  Ex.P\/6. Dead body of deceased Chiranjeev was sent  for
\n  autopsy to Community Health Centre, Gariyaband vide Ex.P\/15.
\n  Dr.Ajay Khandekar (PW-14) conducted autopsy vide Ex.P\/21 and
\n  found  following  symptoms and injuries  over  the  body  of
\n  deceased Chiranjeev,\n<\/p>\n
       1)   One red white gamacha found around on the neck, clothes
\n          were stained with blood, tongue was protruded and caught
\n          between teeth.  Dust was found over the face, blood was oozing
\n          out from the nose and face was deeply cyanosed.\n<\/p>\n
2)   Ligature mark found over the neck with light scratches
\nover ligature mark\n<\/p>\n
3)   Abrasion and scratches were found over forehead and right
\nside of cheek\n<\/p>\n
4)   Fracture of ring of trachea and thyroid cartilage was
\nfound.\n<\/p>\n
5)   Ligature (gamacha) was found over the neck with knot
\n      Injuries  were ante-mortem. Cause of death was  asphyxia
\n  as  a  result  of strangulation and death was  homicidal  in
\n  nature.   Spot  map  was  prepared by investigating  officer
\n  vide  Ex.P\/2.  Bloodstained & plain soil were recovered from
\n  back  side  of  house  of appellant Deocharan  vide  Ex.P\/4.
\n  Sealed  clothes  of  the deceased after autopsy  was  seized
\n  vide  Ex.P\/7.  Patwari prepared spot map vide Ex.P\/10.   The
\n  appellant   was   also   sent   for   medical   examination.
\n  Examination was conducted by Dr.Ajay Khandekar (PW-14)  vide
\n  Ex.P\/18A  and found abrasion over his left side of  neck  of
\n  1″  and  abrasion over back side of the neck of 3″.   During
\n  the  course  of investigation, bloodstained full  paint  was
\n  seized  from the accused vide Ex.P\/3.  Seized articles  were
\n  sent  for  chemical analysis vide Ex.P\/13  and  presence  of
\n  blood  on  full  paint  of the accused  was  confirmed  vide
\n  Ex.P\/26.\n<\/p>\n
4.    Statements of the witnesses were recorded under  Section
\n  161  of the Code of Criminal Procedure, 1973 (in short  `the
\n  Code’) and after completion of investigation, charge sheet was
\n  filed  in  the  Court  of Judicial Magistrate  First  Class,
\n  Gariyaband, who in turn committed the case to the  Court  of
\n  Sessions,  Raipur, from where the Fifth Additional  Sessions
\n  Judge, Raipur received the case on transfer for trial.\n<\/p>\n
5.    In  order  to prove the guilt of the accused\/appellants,
\n  the  prosecution  has  examined as  many  as  14  witnesses.
\n  Statement  of the accused\/appellant was also recorded  under
\n  Section  313  of the Code where he denied the  circumstances
\n  appearing  against  him  and  pleaded  innocence  and  false
\n  implication in the crime in question.\n<\/p>\n
6.    After  affording opportunity of hearing to the  parties,
\n  the  Fifth  Additional  Sessions  Judge  has  convicted  and
\n  sentenced the appellant as aforementioned.\n<\/p>\n
7.    We  have heard learned counsel for the parties,  perused
\n  the judgment impugned and record of the Court below.\n<\/p>\n
8.    Learned counsel for the appellant vehemently argued that
\n  the prosecution was under obligation to prove its case beyond
\n  all shadow of doubt, but in the present case, the prosecution
\n  has  not adduced any credible and clinching evidence against
\n  the appellant.  Witnesses examined by the prosecution have not
\n  supported the case of the prosecution and the prosecution has
\n  declared them hostile.  Only on the ground that some blood was
\n  found near back side of the house of the appellant and  some
\n  mark of dragging of dead body from back side of the house of
\n  the  appellant to kitchen garden of Lomas are not sufficient
\n  for  drawing any inference that the appellant was the person
\n  who has committed the offence.\n<\/p>\n
9.   Learned counsel placed reliance in the matter of Kadir v.
\n  the State1 in which the High Court of Delhi has held that in
\n  case  of no blood found near house of the deceased and blood
\n  found  near  the house of the accused, prosecution  case  is
\n  liable  to  be  rejected.   Learned counsel  further  placed
\n  reliance  in the matter of Saniya Ram v. State of  C.G.2  in
\n  which  this Court has held that in the absence of  proof  of
\n  human blood on the axe and shirt, recovery cannot be connected
\n  with the crime.  Learned counsel also placed reliance in the
\n  matter  of Amar Sai v. State of Chhattisgarh3 in which  this
\n  Court  has held that in the absence of specific blood  group
\n  found  on the axe, the accused cannot be connected with  the
\n  murder  of  the  deceased.  Learned counsel  further  placed
\n  reliance in the matter of Bhuruwa alias Dhanauram v. State of
\n  C.G.4  in  which this Court has held that in the absence  of
\n  human blood, that too of the blood group of the deceased was
\n  found on the spade, is of no use.  Learned counsel also placed
\n  reliance in the matter of Gaukaran & Another v. State of C.G.5
\n  in  which this Court has held that in case of circumstantial
\n  evidence, the prosecution is required to prove circumstances
\n  sufficient for establishing by unimpeachable evidence and it
\n  should be conclusive in nature.\n<\/p>\n
10.   On  the other hand, learned State counsel supported  the
\n  judgment  impugned and argued that the evidence  adduced  on
\nbehalf  of the prosecution is sufficient for drawing inference
\n  that  the  appellant was the person who  has  committed  the
\n  offence.\n<\/p>\n
11.   In  order to appreciate the arguments advanced on behalf
\n  of  the  parties, we have examined the evidence  adduced  on
\n  behalf  of  the prosecution.  In the present case, homicidal
\n  death  as a result of ante-mortem fatal injuries of deceased
\n  Chiranjeev  has  not  been  substantially  disputed  by  the
\n  appellant, on the other hand, also established by the evidence
\n  of Dr.Ajay Khandekar (PW-14) and autopsy report Ex.P\/21 which
\n  reveals  that  death  was as a result of  strangulation  and
\n  homicidal in nature.\n<\/p>\n
12.  As regards the complicity of the accused\/appellant in the
\n  crime in question, in the present case the conviction is based
\n  on circumstantial evidence.  Satish (PW-1) has deposed in his
\n  evidence  that Raghu Thakur told him that body  of  deceased
\n  Chiranjeev is lying in kitchen garden of Lomas, then he went
\n  in  kitchen  garden of Lomas where dead body  of  Chiranjeev
\n  stained with blood was lying in kitchen garden of Lomas.  He
\n  went  to the police station and lodged merg intimation  vide
\n  Ex.P\/1.  Taneshwar (PW-2) has deposed in his evidence that he
\n  along  with  deceased  Chiranjeev were dancing  in  marriage
\n  function.  After completion of dance at night, Chiranjeev told
\n  him that he is going to his house and on the second day, dead
\n  body of deceased Chiranjeev was found stained with blood  in
\n  kitchen  garden situated in back side of the  house  of  the
\n  appellant. He has also deposed that “dragging mark” from the
\n  house of the appellant to kitchen garden of Lomas was present
\n  where dead body was found. Bloodstained was also found  from
\n  the house of appellant Deocharan to the place where dead body
\n  of the deceased was lying.  Banmali (PW-3) has also supported
\n  the  evidence of Taneshwar (PW-2). The prosecution has  also
\n  examined Lomas (PW-5) in which kitchen garden dead body  was
\n  found.  He  has  not supported the case of  the  prosecution
\n  initially and the prosecution declared him hostile.  In para 3
\n  of his cross-examination, he has admitted that “dragging mark”
\n  from the house of appellant Devcharan up to his kitchen garden
\n  was present.  Deveshwar Gagendra (PW-6) has also corroborated
\n  the  evidence  of  Taneshwar (PW-2). During  the  course  of
\n  investigation, police has seized bloodstained full paint from
\n  the accused vide Ex.P\/3.  The factum of seizure has been well
\n  corroborated by Satish (PW-1) and Sub Inspector J.S.Rangi (PW-\n<\/p>\n
  13).   J.S.Rangi  (PW-13) has specifically  deposed  in  his
\n  evidence that he has prepared spot map vide Ex.P\/2 in which he
\n  has specifically mentioned dragging mark and presence of blood
\n  found in the verandah of the accused and also between verandah
\n  of the accused and kitchen garden of Lomas.  Defence has cross-
\n  examined  these witnesses at length.  Taneshwar  (PW-2)  has
\n  admitted in para 7 of his cross-examination that he  himself
\n  has seen dragging mark, but again he has deposed that he has
\n  not seen dragging marks and on the basis of evidence of other
\n  persons,  he  has  stated that he has  seen  dragging  mark.
\n  Banmali  (PW-3)  has  also deposed that villagers  told  him
\n  relating to dragging mark that is why he has stated relating
\n  to dragging mark.  Defence has not asked anything to Lomas (PW-\n<\/p>\n
  5) relating to presence of dragging mark.  J.S.Rangi (PW-13)
\n  who  has  prepared  spot map has specifically  deposed  that
\n  dragging mark of the dead body was found from the house of the
\n  present appellant up to kitchen garden of Lomas and blood was
\n  found  in  the house of the appellant and kitchen garden  of
\n  Lomas which he has seized vide Ex.P\/4 and also prepared spot
\n  map vide Ex.P\/2.\n<\/p>\n
13.   As held by this Court in the matters of Saniya Ram, Amar
\n  Sai  and  Bhuruwa alias Dhanauram (supra), in case of  blood
\n  found on the clothes or weapons, the prosecution is required
\n  to prove blood group whether it tails with the blood group of
\n  the  deceased.  In the present case, conviction is not based
\n  only on the presence of blood, but conviction is substantially
\n  based on other circumstances of dragging mark starts from the
\n  house  of the appellant to the kitchen garden of Lomas where
\n  dead  body  was found containing bloodstained  in  different
\n  places.   The fact of the cases of Saniya Ram, Amar Sai  and
\n  Bhuruwa alias Dhanauram (supra) is  distinguishable to that of
\n  the present case.\n<\/p>\n
14.  In the matter of Padala Reddy v. State of A.P. & Ors.6 it
\n  was  laid down by the Apex Court that when a case rests upon
\n  circumstantial  evidence,  such evidence  must  satisfy  the
\n  following tests:\n<\/p>\n
       1)   the circumstances from which an inference of guilt is
\n          sought to be drawn, must be cogently and firmly established;\n<\/p><\/blockquote>\n
       2)   those circumstances should be of a definite tendency
\n          unerringly pointing towards guilt of the accused;\n<\/p><\/blockquote>\n
3)   the circumstances, taken cumulatively should from a chain
\nso complete that there is no escape from the conclusion that
\nwithin all human probability the crime was committed by the
\naccused and none else; and\n<\/p>\n
4)   the circumstantial in order to sustain conviction must be
\ncomplete and incapable of explanation of any other hypothesis
\nthan that of the guilt of the accused and such evidence should
\nnot only be consistent with the guilt of the accused but
\nshould be inconsistent with his innocence.\n<\/p>\n
15.  As held by the High Court of Delhi in the matter of Kadir
\n  (supra), case of the prosecution was disbelieved on the ground
\n  that blood was not found where knife blow was given which was
\n  very  natural.   The fact of the case of  Kadir  (supra)  is
\n  distinguishable to that of the present case.\n<\/p>\n
16.   In the present case, dead body of the deceased was found
\n  near  the house of the appellant in kitchen garden of Lomas.
\n  “Dragging  mark” was found starting from the  house  of  the
\n  appellant  to  the  place  where dead  body  was  found  and
\n  bloodstained  was  found in the aforesaid dragging  mark  in
\n  different places which were examined by the Forensic Science
\n  Laboratory and blood was affirmed vide Ex.P\/26.\n<\/p>\n
17.   This  is the special evidence and sufficient for drawing
\n  inference  that somebody has dragged dead body  or  body  of
\n  deceased Chiranjeev from the house of the appellant up to the
\n  place where dead body was found.  The appellant was present in
\n  his house.  The present offence has been committed in secrecy.
\n  The present appellant must have knowledge of the fact and he
\n  was under obligation to offer explanation under Section 106 of
\n  the Evidence Act that who has strangulated the deceased, who
\n  has  dragged the deceased from his house to the place  where
\n  dead  body  of the deceased was found and how the blood  was
\n  found in the aforesaid dragging mark.  If these circumstances
\n  are  considered together, then same would be sufficient  for
\n  hypothesis of the guilt of the appellant and to exclude  the
\n  hypothesis of his innocence or guilt of the other person.\n<\/p>\n
18.   After  appreciating  the evidence available  on  record,
\n  learned Fifth Additional Sessions Judge, Raipur has convicted
\n  the  appellant under Sections 302 & 201 of the Indian  Penal
\n  Code.  The evidence adduced on behalf of the prosecution  is
\n  sufficient for drawing inference that the appellant  is  the
\n  person who has committed culpable homicidal death of deceased
\n  Chiranjeev amounting to murder and has removed the body from
\n  his  house  with a view to conceal the evidence of  criminal
\n  case.  The conviction of the appellant is based on credible,
\n  clinching and reliable evidence sustainable under the law.\n<\/p>\n
19.   On  close scrutiny of the evidence, we do not  find  any
\n  illegality in the judgment impugned.  The appeal being devoid
\n  of merit is liable to be dismissed and it is hereby dismissed.\n<\/p>\n
                                           JUDGE<\/p>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court Deocharan vs State Of Chhattisgarh on 5 March, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-246684","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\nDeocharan vs State Of Chhattisgarh on 5 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/deocharan-vs-state-of-chhattisgarh-on-5-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Deocharan vs State Of Chhattisgarh on 5 March, 2010 - 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