{"id":65279,"date":"2010-03-20T00:00:00","date_gmt":"2010-03-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hatkeshwar-keshear-vs-state-of-madhya-pradesh-on-20-march-2010"},"modified":"2017-06-02T22:43:59","modified_gmt":"2017-06-02T17:13:59","slug":"hatkeshwar-keshear-vs-state-of-madhya-pradesh-on-20-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hatkeshwar-keshear-vs-state-of-madhya-pradesh-on-20-march-2010","title":{"rendered":"Hatkeshwar Keshear vs State Of Madhya Pradesh on 20 March, 2010"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
Hatkeshwar Keshear vs State Of Madhya Pradesh on 20 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n            HIGH COURT OF CHATTISGARH AT BILASPUR       \n\n             Criminal Appeal 819 of 1993\n\n              Hatkeshwar  Keshear\n                                ...Petitioners\n\n                                Versus\n\n              State  of  Madhya Pradesh\n                              ...Respondents\n\n!            Mr  Abhay Tiwari\n\n^            Mr Sandeep Yadav\n\n\n CORAM:        Honble Mr T P Sharma, Honble Mr R L Jhanwar  JJ  \n\n\n Dated: 20\/03\/2010\n\n\n:              JUDGEMENT\n<\/pre>\n
      Criminal appeal under Section 374 2 of Cr P C<\/p>\n
T.P.Sharma, J.\n<\/p>\n
  1.    Challenge  in  this  appeal is  to  the  judgment  of
\n     conviction & order of sentence dated 29.4.1993 passed by the
\n     Additional Sessions Judge, Jashpurnagar, in Sessions Case
\n     No.117\/92, whereby & whereunder learned Additional Sessions
\n     Judge after holding the appellant guilty for commission of
\n     culpable homicide amounting to murder of Bhukhlibai @ Kemla
\n     and concealing the evidence of criminal case convicted the
\n     appellant under Sections 302 & 201 of the Indian Penal Code
\n     and  sentenced him to undergo imprisonment for life  and
\n     imprisonment for two years.\n<\/p>\n
2.   Conviction is impugned on the ground that without any
\niota of clinching and credible evidence, the Court below has
\nconvicted and sentenced the appellant as aforementioned and
\nthereby committed illegality.\n<\/p>\n
  3.   Case of the prosecution, in brief, is that the appellant
\n     Hatkeshwar  was  having illicit relation  with  deceased
\n     Bhukhlibai, wife of Goverdhan. So many times, the appellant
\n     directed to deceased Bhukhlibai to go out of the village for
\n     livelihood along with him which she refused. One day prior to
\n     1.5.92, the appellant committed intercourse with her and
\n     directed  to meet at canal (nala) on 1.5.92. On  1.5.92,
\n     deceased Bhuklibai went to canal for washing clothes where
\n     the appellant also went.  Again he directed to go with him
\n     out of the village for livelihood which she refused, then the
\n     appellant having betel axe assaulted over her  neck  and
\n     chopped her neck. After chopping the head from body, the
\n     appellant took the head of the deceased in his towel (Gamcha)
\n     and concealed in one tree. The appellant came back and took
\n     bath.  Chop body of the deceased, except head was lying near
\n     canal.  Villagers reached to the spot and saw chopped body.
\n     Gadadhar (PW-2), elder brother-in-law (Jeth) went to the
\n     police  station and lodged the F.I.R. vide Ex.P\/1.  Merg
\n     intimation was also recorded vide Ex.P\/12.  Investigating
\n     officer proceeded for the scene of occurrence and  after
\n     summoning the witnesses, inquest over the dead body of the
\n     deceased was prepared vide Ex.P\/2.  Pieces of hairs, flesh,
\n     bloodstained and plain soil were recovered from the spot vide
\n     Ex.P\/3.  Broken bangles of the deceased were seized from the
\n     spot vide Ex.P\/4.  Body of the deceased without head was sent
\n     for autopsy to Government Hospital, Bagicha. Rajkumar Patel
\n     (PW-5) conducted autopsy vide Ex.P\/8 and found head  was
\n     missing, neck was chopped and lacerated wound over  left
\n     shoulder  of  3″ x 3″ x bone deep. Internal organs  were
\n     congested.  On 3.5.92, the appellant was taken into custody,
\n     he made disclosure statement of chopped head of deceased
\n     Bhukhlibai, bloodstained betel axe and bloodstained clothes
\n     vide Ex.P\/5.  The appellant took the police officer near one
\n     Kahuwa  tree from where he took out chopped head of  the
\n     deceased  Bhukhlibai which was seized vide Ex.P\/6.   The
\n     accused was produced one betel axe and bloodstained clothes
\n     from his house and the same were seized vide Ex.P\/7.  Head
\n     was again sent for examination to Dr.Rajkumar Patel (PW-5).
\n     He examined head vide Ex.P\/9 and found that the head was of a
\n     woman. He also examined betel axe vide Ex.P\/10.  At the time
\n     of sending the body for autopsy, investigating officer also
\n     made request to the doctor to examine as to whether before
\n     her death she had been subjected to rape or not. Vaginal
\n     scarp was taken vide Ex.P\/13.  Spot map was prepared by the
\n     investigating officer vide Ex.P\/14.\n<\/p>\n
  4.   Statement 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
\n     was  filed  before the Judicial Magistrate First  Class,
\n     Jashpurnagar, who in turn committed the case in the Court of
\n     then  Sessions,  Raigarh, from where learned  Additional
\n     Sessions Judge, Jashpurnagar received the case on transfer
\n     for trial.\n<\/p>\n
  5.    In order to prove the guilt of the accused\/appellant,
\n     the prosecution has examined as many as 10 witnesses. The
\n     accused\/appellant was examined under Section 313 of the Code
\n     where he denied the circumstances appearing against him and
\n     claimed innocence and false implication in the crime  in
\n     question.\n<\/p>\n
  6.   After providing opportunity of hearing to the parties,
\n     learned Additional Sessions Judge has convicted and sentenced
\n     the appellant as aforementioned.\n<\/p>\n
  7.   We have heard Mr.Abhay Tiwari, counsel for the appellant
\n     and Mr.Sandeey Yadav, Deputy Government Advocate for the
\n     State\/respondent, perused the judgment impugned and record of
\n     the Court below.\n<\/p>\n
  8.   Learned counsel for the appellant vehemently argued that
\n     the conviction is based on circumstantial evidence. In case
\n     of  conviction  based  on circumstantial  evidence,  the
\n     prosecution is required to adduce evidence and such evidence
\n     must satisfy the 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(2)  those circumstances should of a definite tendency
\nunerringly pointing towards the guilt of the accused;
\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(4)  the circumstantial evidence in order to sustain
\nconviction must be complete and incapable of explanation of
\nany other hypothesis than that of the guilt of the accused
\nand such evidence should not only be consistent with the
\nguilt of the accused but should be inconsistent with his
\ninnocence.\n<\/p>\n
  The   prosecution   is   also  required   to   prove   that
\n  circumstances  so  proved  are  complete  chain   and   are
\n  sufficient  to  exclude innocency of  the  accused  or  any
\n  other  person  and  sufficient for drawing  inference  that
\n  only  the  appellant  has committed  the  offence.  In  the
\n  present  case,  the  evidences of the witnesses  are  self-
\n  contradictory.  As  per the evidence of Santu  (PW-1),  the
\n  appellant was standing near the place of incident,  he  was
\n  holding betel axe, the deceased was washing her clothes  in
\n  the  canal.  After sometime when he was passing near  canal
\n  he  saw head of her aunt deceased Bhukhlibai and rest  part
\n  of  the body was not present there. Other witnesses namely,
\n  Jageshwar,  Goverdhan  and Jadadhar  were  present  on  the
\n  spot,  then he went to the forest. After sometime again  he
\n  came  back. On the second day, police came and directed  to
\n  take  the  body  of the deceased (trunk)  exclude  head  to
\n  Bagicha,  then  he  took.   Thereafter  on  the  basis   of
\n  confessional  statement of the accused, head was  recovered
\n  near  one  tree, inter alia, Gadadhar (PW-2) and  Goverdhan
\n  (PW-3)  have  deposed that when they reached  to  the  spot
\n  they  saw  trunk of the deceased, except head and head  was
\n  missing. It shows that both were present near the spot  and
\n  husband  of  the  deceased  was  also  present  along  with
\n  Gadadhar and the deceased, but afterwards head was  missing
\n  and  trunk  of body was found. It shows that the  appellant
\n  has   not   concealed  the  head  of   the   body.    These
\n  contradictory  statements are sufficient to  discredit  the
\n  evidence of the witnesses.\n<\/p>\n
9.    On  the other hand, learned State counsel supported the
\n  judgment  impugned and argued that the evidence adduced  on
\n  behalf  of the prosecution is sufficient to prove that  the
\n  appellant  was  having illicit relation with married  woman
\n  deceased Bhukhlibai and on account of dispute of going out of
\n  village  for  livelihood  along  with  the  appellant,  the
\n  appellant has committed brutal murder of the deceased. He was
\n  present on the spot along with the deceased, he was  having
\n  betel  axe  and afterwards head was seized at his  instance
\n  along  with  clothes  and weapon  of  the  offence.   These
\n  evidences  are sufficient to connect the appellant  in  the
\n  crime in question. The Court below has rightly convicted and
\n  sentenced the appellant as aforementioned.\n<\/p>\n
10.   In  order to appreciate the argument advanced on behalf
\n  of  the parties, we have examined the material available on
\n  record. In the present case, homicidal death as a result of
\n  ante-mortem  fatal  injuries by chopping  of  the  head  of
\n  deceased Bhukhlibai has not been substantially disputed  on
\n  behalf of the appellant, on the other hand, otherwise  also
\n  established  by the evidence of Dr.Rajkumar  Patel  (PW-5),
\n  autopsy report Ex.P\/8 and head examination report Ex.P\/9. The
\n  evidences of Santu (PW-1), Gadadhar   (PW-2), Goverdhan (PW-\n<\/p>\n
  3), Trilochan (PW-4) and Head Constable Shobhnath Singh (PW-\n<\/p>\n
  10)  who  has  deposed that chopped trunk of  the  deceased
\n  Bhukhlibai and head of Bhukhlibai were found and death  was
\n  homicidal in nature.\n<\/p>\n
11.   In case of conviction based on circumstantial evidence,
\n  as held by the Apex Court in the matter of C. Changa Reddy V.
\n  State  of  A.P.1,  the prosecution is  required  to  adduce
\n  evidence and such evidence must satisfy the 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(2)  those circumstances should of a definite tendency
\nunerringly pointing towards the guilt of the accused;
\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(4)  the circumstantial evidence in order to sustain
\nconviction must be complete and incapable of explanation of
\nany other hypothesis than that of the guilt of the accused
\nand such evidence should not only be consistent with the
\nguilt of the accused but should be inconsistent with his
\ninnocence.\n<\/p>\n
  12.    In  the  present case, the conviction  is  based  on
\n     following circumstantial evidence,\n<\/p>\n
       i)   The appellant was having illicit relation with deceased
\n           Bhukhlibai, wife of Goverdhan (PW-3);\n<\/p>\n
ii)  The appellant used to entice her to go out with him for
\nlivelihood which she refused;\n<\/p>\n
iii) On the date of incident and at the time of incident,
\ndeceased Bhukhlibai was washing her clothes in canal, away
\nfrom the village;\n<\/p>\n
iv)  Appellant Hatkeshwar was present near the deceased at
\nthe time of incident;\n<\/p>\n
v)   The appellant was holding betel axe;\n<\/p>\n
vi)  After sometime chopped trunk of the deceased was found
\nlying near canal;\n<\/p>\n
vii) The appellant was not present near the place of incident
\nwhen chopped trunk was found near canal;\n<\/p>\n
viii)     Head of the deceased was also missing;\n<\/p>\n
ix)  Head of the deceased was recovered at the instance of
\nthe appellant from hidden place;\n<\/p>\n
x)   The appellant has not offered any explanation that who
\nhas caused injury to the deceased and who has chopped her
\nneck;\n<\/p>\n
xi)  The appellant has not offered any explanation that who
\nhas hidden the head of the deceased;\n<\/p>\n
13.     Santu  (PW-1),  nephew  of deceased  Bhukhlibai,  has
\n  deposed  in his evidence that at about 11 a.m. on the  date
\n  of  incident  while he was passing beside  canal,  deceased
\n  Bhukhlibai  was washing her clothes and the  appellant  was
\n  standing  near  her, he was holding betel  axe,  he  talked
\n  with  the  appellant and went to his house. When  again  he
\n  was  going beside canal with his cattle he saw the head  of
\n  the  deceased  and trunk was missing. Again  when  he  came
\n  back  from  the  forest, at that time trunk was  lying  and
\n  head  was  missing.  He  has  further  deposed  that  being
\n  interrogated  the  appellant made disclosure  statement  of
\n  the  head  of the deceased near one tree which was  finally
\n  recovered.  Defence  has  cross-examined  this  witness  at
\n  length.   In  para  4  of  his  cross-examination,  he  has
\n  supported  his  version  that  when  saw  first  time   the
\n  appellant,  at  that time the appellant was  holding  betel
\n  axe   near  the  place  of  incident.  In  para  5  of  his
\n  cross-examination  he has specifically  admitted  that  the
\n  deceased  was present alone in canal while she was  washing
\n  her  clothes  and no other female or persons were  present,
\n  although  the prosecution or defence has not asked anything
\n  to  this  witness  relating to  presence  of  head  of  the
\n  deceased  first  time,  but  his statement  recorded  under
\n  Section 161 of the Code Ex.D\/1 reveals that only trunk  was
\n  lying  near  the  place of incident and head  was  missing.
\n  Gadadhar  (PW-2),  brother-in-law  and  Goverdhan   (PW-3),
\n  husband  of  the  deceased have deposed in their  evidences
\n  that  when  they  reached  to  the  spot  along  with   the
\n  appellant,  then they saw trunk of the deceased  Bhukhlibai
\n  and  head  was missing, then Gadadhar (PW-2)  went  to  the
\n  police    station   and   lodged   the   F.I.R.   In    his
\n  cross-examination,   Gadadhar   (PW-2)   has   specifically
\n  deposed  that  Santu (PW-1) his son was also  present  with
\n  him  and trunk of the deceased was present and head was not
\n  present.   The  evidences of Santu (PW-1), Gadadhar  (PW-2)
\n  and  Goverdhan (PW-3) clearly established that only chopped
\n  trunk  of the deceased was present in the place of incident
\n  and  head  was  missing and before such incident  only  the
\n  appellant and the deceased were present near canal and  the
\n  appellant  was holding betel axe. His presence  near  canal
\n  i.e.  place of incident along with betel axe while deceased
\n  was  washing her clothes otherwise was not natural  because
\n  Bhukhlibai was not his wife, but wife of Goverdhan  (PW-3).
\n  The  appellant has not offered any explanation that why  he
\n  was  present near the deceased, that too with betel axe and
\n  when  he  parted  company of Bhukhlibai or who  has  caused
\n  injury and who has chopped neck of deceased Bhukhlibai.\n<\/p>\n
10.    Head  Constable  Shobhnath  Singh  (PW-10),  who   has
\n  conducted investigation, has deposed in his evidence that on
\n  3.5.93 he took the appellant in custody and interrogated, he
\n  made  confessional statement relating to head  of  deceased
\n  Bhukhlibai, betel axe and bloodstained clothes vide Ex.P\/5,
\n  then he went with the appellant from where he produced head
\n  of Bhukhlibai which he has seized vide Ex.P\/6. Then he went
\n  with the appellant to his house from where he produced  one
\n  betel  axe, bloodstained lungi, baniyan and towel (touliya)
\n  which  he has seized vide Ex.P\/7.  Finally he has sent  the
\n  head  for  examination and other articles for  examination.
\n  Santu  (PW-1)  and  Trilochan (PW-4) have corroborated  the
\n  evidence  of Shobhnath Singh (PW-10) relating to disclosure
\n  statement  of head and other articles made by the appellant
\n  and recovery of the head of the deceased and other articles
\n  at the instance of the appellant.\n<\/p>\n
11.  From perusal of the evidence of the aforesaid witnesses,
\n  it  reveals that head of the deceased was not lying in  the
\n  open place but it was hidden and buried in the land which was
\n  assumed  and recovered. It also reveals that the  appellant
\n  took  the  police officer and other witnesses to the  place
\n  where the head was buried, he dig and took out the head which
\n  was recovered vide Ex.P\/6.\n<\/p>\n
12.   Only recovery of chopped head of the deceased itself is
\n  not sufficient for drawing inference that the appellant has
\n  committed  murder of deceased Bhukhlibai  if  the  same  is
\n  satisfactorily explained by the appellant. Recovery of head
\n  from hidden place at the instance of the appellant shows that
\n  either the appellant has hidden the head of the deceased or
\n  some other person has hidden the head and the appellant had
\n  seen  while  it  was hidden or he came to know  from  other
\n  sources  that  somebody  has  hidden  the  head.  In  these
\n  circumstances,   the  appellant  was  required   to   offer
\n  explanation that how he came to know. In the absence of such
\n  explanation, the only inference would be possible that  the
\n  appellant  had  hidden the head of deceased Bhukhlibai  and
\n  buried.\n<\/p>\n
13.   In  the  present case, the prosecution has  proved  the
\n  following circumstances,\n<\/p>\n
       i)   The appellant was having illicit relation with deceased
\n           Bhukhlibai, wife of Goverdhan (PW-3);\n<\/p>\n
ii)  On the date of incident and at the time of incident, the
\nappellant was present near canal and he was holding betel
\naxe;\n<\/p>\n
iii) Deceased Bhukhlibai was also present in canal and was
\nwashing her clothes;\n<\/p>\n
iv)  Except Bhukhlibai and the appellant no other persons
\nwere present on the spot;\n<\/p>\n
v)   At about 3 p.m. on the same day chopped trunk of
\ndeceased Bhukhlibai was found on the spot and head of
\nBhukhlibai was missing;\n<\/p>\n
vi)  The appellant was not present on the spot;\n<\/p>\n
vii) The appellant has not offered any explanation that why
\nhe was present near Bhukhlibai, wife of Goverdhan and that
\ntoo with betel axe dangerous weapon and who has chopped the
\nhead of the deceased;\n<\/p>\n
viii)     The appellant has made disclosure statement of head
\nof Bhukhlibai, betel axe, and clothes;\n<\/p>\n
ix)  Head of Bhukhlibai was found buried in the land away
\nfrom the place of incident\n<\/p>\n
x)   The place where the head of Bhukhlibai was buried has
\nbeen shown by the appellant and he dig and took out the head
\nof the deceased;\n<\/p>\n
xi)  Betel axe has been seized at the instance of the
\nappellant; and\n<\/p>\n
xii) The appellant has not offered any explanation that who
\nhas hidden the head of deceased Bhukhlibai.\n<\/p>\n
14.   If the aforesaid circumstances are considered together,
\n  then  only  hypothesis would be possible that  the  present
\n  appellant is the person who has committed murder of deceased
\n  Bhukhlibai and has concealed the evidence of criminal  case
\n  and except the appellant nobody has committed the aforesaid
\n  offence. These circumstances are also sufficient to exclude
\n  the possibility of innocency of the appellant.\n<\/p>\n
15.   After  appreciating the evidence available  on  record,
\n  learned Additional Sessions Judge, Jashpurnagar has convicted
\n  &  sentenced the appellant as aforementioned. Conviction  &
\n  sentence of the appellant is based on credible, clinching and
\n  reliable evidence, sustainable under the law.\n<\/p>\n
16.   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
\n  dismissed.\n<\/p>\n
                                        JUDGE<\/p>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court Hatkeshwar Keshear vs State Of Madhya Pradesh on 20 March, 2010 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: […]<\/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-65279","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\nHatkeshwar Keshear vs State Of Madhya Pradesh on 20 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\/hatkeshwar-keshear-vs-state-of-madhya-pradesh-on-20-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hatkeshwar Keshear vs State Of Madhya Pradesh on 20 March, 2010 - 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