Bharat vs State of Chhattisgarh

T.P. Sharma, J.—Challenge in this appeal is to the judgment of conviction and order of sentence dated 17-7-2004 passed by Sessions Judge, Rajnandgaon, in Sessions Trial No. 22 of 2004, whereby and whereunder learned Sessions Judge after holding appellant guilty for causing homicidal death amounting to murder of his father Videshi Ram and concealing the evidence of criminal case, convicted the appellant under Sections 302 and 201 of the I.P.C. and sentenced him to undergo imprisonment for life and fine of Rs. 1,000/-, in default of payment of fine to further undergo R.I. for one year and R.I. for 1 year and to pay fine of Rs. 500/-, in default of payment of fine further to undergo R.I. for six months. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

As per case of prosecution, appellant and deceased Videshi Ram, son and father, were residing in the same house. Since 16-4-2003 the house of appellant and deceased was closed. On 19-4-2003 missing report vide Ex. P/21 was lodged by PW/2 Durdesi. On 20-4-2003 i.e., second day, dead body of deceased Videshi Ram was found inside the well of Johar and same was intimated by PW/1 Dhaniram to Police vide Ex. P/1. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P/2 after taking out the dead body of deceased from well, prepared inquest over the dead body vide Ex. P/4, spot map was prepared vide Ex. P/4, dead body was sent for autopsy to District Hospital, Rajnandgaon, vide Ex. P/8 where PW/4 Dr. V.P. Agrawal, conducted autopsy vide Ex. P/8 and found following injuries:-

i) two injuries were found over temporal region 2" x 2";

ii) lacerated wound of 2" x 1" over right side of fore-head;

iii) tongue protruded out, semen discharged, male organ came out;

iv) Injuries over neck at vertical vertebra; C1 and C2 were fractured and dislocated.

Doctor has not opined whether death was homicidal or accidental.

Dead body of deceased was sent to FSL, Raipur where PW/6 Smt. Anupam Meshram examined the dead body of deceased Videshiram and opined that death of deceased was homicidal in nature vide Ex. P/11, During the course of investigation, dehati nalsi was recorded vide Ex. P/22, first information was lodged vide Ex. P/23, lock of the house of deceased and appellant was cut after preparing panchnama vide Ex. P/15, burnt pieces of beedi, cigarette, match stick, match box, bloodstained clothes, bed-sheet and bloodstained "Hatodi" were seized vide Ex. P/19, clothes of deceased were seized vide Ex. P/20. Appellant was taken into custody on 21-4-2003, he made disclosure statement of wrist watch, golden chain, golden tops and one key and one key ring containing key vide Ex. P/13 and also disclosed that golden chain was with the person of Dongargaon. On the basis of his disclosure statement, golden tops, golden wrist watch, and key ring containing key, diary and three bus tickets of Dongargaon were seized from the appellant vide Ex. P.14. On the basis of disclosure statement of appellant, one golden chain and one register were seized from PW/3 Prakash Soni vide Ex. P/7, copy of entry of "Girvi Register" was seized vide Ex. P/6, pieces of old shawl, bloodstained clothes were seized from the appellant vide Ex. P/16 and 17 and lock of the house of the deceased and appellant was seized vide Ex. P/18.

Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure (for short the ''Code''). After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Rajnandgaon, who in turn committed the case to the Court of Sessions, Rajnandgaon.

In order to prove the guilt of the accused/appellant, prosecution has examined as many as 15 witnesses. Statements of the accused/appellant and co-accused Urvashi were recorded u/s 313 of the Code where they denied the circumstances appearing against them and innocence and false implication in the crime in question is claimed.

After providing opportunity of hearing to the parties, learned Sessions Judge, while acquitting co-accused Smt. Urvashi, convicted and sentenced the appellant as aforementioned.

Mr. Vimlesh Bajpai, counsel for the appellant and Mr. Ashish Gupta, Panel Lawyer for the State are heard. Perused the judgment impugned and record of the trial Court.

Learned counsel for the appellant vehemently argued that the evidence adduced on behalf of the prosecution is sufficient to create suspicion that the appellant may have committed the offence, but the same is not sufficient for drawing inference that only appellant has committed the offence. In case of conviction is based on circumstantial evidence, as held by the Supreme Court in the matter of Kusuma Ankama Rao Vs. State of Andhra Pradesh, , the prosecution is required to satisfy the following circumstances.

(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;

(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) The circumstances should be of a conclusive nature and tendency;

(iv) They should exclude every possible hypothesis except the one to be proved; and

(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Learned counsel for the appellant further submits in the present case prosecution utterly failed to prove the above circumstances, sufficient to give rise presumption that only appellant is the author of crime and none-else, same also excludes the possibility of innocence of the appellant. Learned counsel for the appellant further submits that articles seized from the appellant have not been identified by the witnesses for the reasons best known to the prosecution. Prosecution failed to conduct test identification of the articles to establish identity of the articles of deceased to connect the appellant with the crime in question. In absence of any credible, clinching and reliable evidence, appellant is entitled for acquittal on the ground of insufficiency of the evidence. He further submits that at best in the light of recovery of articles, only presumption u/s 114(a) of the Evidence Act would be possible as the appellant was in possession of the stolen articles soon after the commission of offence, therefore, the appellant may be convicted u/s 411 of the IPC.

On the other hand, Shri Ashish Gupta, learned Panel Lawyer, for the respondent/State opposed the appeal and submits that evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant has committed homicidal death of deceased and has caused disappearance of the evidence of criminal case. After appreciating the evidence available on record, learned Sessions Judge has rightly convicted and sentenced the appellant as aforementioned. He further submits that Section 114(a) of the Act would give presumption that appellant who is in the possession of stolen property soon after the theft is either the thief or has received the goods knowing him to be stolen but the appellant failed to offer an explanation as to how and why he was in possession of the stolen property and same is sufficient for drawing inference that the appellant was not only in possession of stolen property but he also committed other offence including the murder.

In order to appreciate the argument 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 fatal injuries found over dead body of deceased Videshi has not been substantially disputed on behalf of the appellant. PW 4 Dr. V.P. Agarwal has not deposed that death of deceased was homicidal in nature, but the autopsy report Ex. P-8 coupled with report of PW/6 Dr. Anita Meshram vide Ex. P/11, established that the death of deceased was homicidal in nature.

As regard the complicity of appellant in crime in question, conviction is based on circumstantial evidence. Prosecution tried to prove the following chain of circumstances.

i) Appellant and deceased were residing in the same house.

ii) Since 16-4-2003 deceased and appellant were missing.

iii) The room was locked from outside.

iv) Missing report vide Ex. P/21 has been lodged on 19-4-2003.

v) On 20-4-2003 dead body of deceased Videshi was recovered from the well and death was homicidal in nature.

Deceased Videshi was wearing wrist watch, golden chain and golden tops and other article which have been seized on the basis of disclosure statement of appellant soon after the commission of offence of theft. The appellant failed to offer an explanation that as to how he was in possession of such articles.

As per evidence of PW/11 Hemchandra Kumar, Head Constable, PW/2 Durdesi, came to Police Station and lodged missing report vide Ex. P/21 on 19-4-2003 stating that her younger brother Videshi was missing from 16-4-2003 and the house of Videshi was locked. After one day i.e., on 17-4-2003 dead body of deceased Videshi was found. Soon after causing the death of deceased Videshi, appellant left the place on the ground of pretext that he was going to his Mama''s village to attend the marriage function. These unrebutted evidences are sufficient to establish that Videshi was missing since 16-4-2003 and appellant was also missing since second day i.e., 17-3-2004, recovery of dead body of deceased and unnatural death of deceased Videshi have also not been disputed; inter alia, it is also established by the evidence of PW/1 Dhaniram, merg Ex. P/2 and inquest vide Ex. P/3.

As regards recovery of articles at the instance of the appellant is concerned, as per evidence of prosecution has examined Sub Inspector, P.S. Maravi (PW/15). As per para 24 of his evidence, appellant Bharat has made disclosure statement of wrist watch of his father, golden chain, pair of golden tops, key of lock and has also disclosed that golden chain was with the person of Dongargaon vide Ex. P/13. As per para 12 of his evidence, he has seized golden tops, one wrist watch and key of lock along with other documents from the appellant Bharat vide Ex. P/14. In para 26 of his cross-examination he has denied that the appellant has not made disclosure statement of the aforesaid articles and articles have not been seized at the instance of the appellant. Prosecution has also examined PW/3 Prakash Soni, owner of ornaments shop of Dongargaon, who has deposed that present appellant showing himself as Deepak Sahu has pledged golden chain costing Rs. 2,500/-. On 18-4-2003 he has entered the same in the register in Ex. P/6, the same has been seized along with golden chain vide Ex. P/7. Defence has cross-examined this witness at length. In his detailed cross-examination, in para 10 he has specifically deposed that appellant came to him for pledging golden chain, he himself has introduced as Deepak Sahu. As per para 5 of his evidence, he has identified the golden chain shown to him at the time of evidence which has been pledged by the appellant. Prosecution has also cross-examined PW/8 Rambarosa Sahu in support of such disclosure statement, who has deposed in para 2 of his evidence that appellant has made disclosure statement of golden chain that too with Prakash Jewellers of Dongargaon, two golden tops, watch vide Ex. P/13. Aforesaid articles have been seized from him vide Ex. P/14 and P/7. In para 16 of his evidence, he has deposed that at the time of seizure (Ex. P/14) he has produced articles. In para 22 of his evidence, he has deposed that appellant has made disclosure statement of the articles. This evidence also corroborates the evidence of PW/3 Prakash Soni and the evidence of PW/15 P.S. Maravi, Investigating Officer, relating to disclosure statement of articles and its recovery at the instance of the appellant.

Prosecution has also cross-examined PW/14 Dukhiya Bai, wife of the deceased and mother of the appellant. As per para 5 of her evidence, she has identified the golden chain, wrist watch and golden tops and has deposed that her husband used to wear watch and golden chain which were shown to her at the time of evidence. She has also deposed that her husband was in possession of pair of golden tops for daughter of appellant who was residing with deceased. Defence has cross-examined this witness at length but has not been able to elicit anything in her cross-examination to discredit her testimony relating to identification of articles. These evidences are sufficient to establish the fact that articles owned and possessed by the deceased Videshi have been recovered at the instance of the appellant on 21-4-2003 i.e., within a week of his death. Articles were well identified as articles of father of the appellant. Appellant was under obligation to offer an explanation that why he is in possession of articles owned and possessed by his father, but he has not offered any explanation of the same. In absence of any explanation on behalf of the appellant, inference would be possible that valuable articles owned and possessed by deceased were found in possession of the appellant within a week of his death without any plausible explanation for its possession, even he has pledged golden chain to Prakash Soni suppressing its identity and showing himself as Deepak Sahu which shows that he has taken precaution relating to disclosure statement of its identity.

As per evidence of PW/1 Dhaniram, appellant was also residing with deceased Videshi in the same house, after missing of Videshi appellant also left the house. The evidence of this witness reveals that appellant resided with deceased Videshi till 16-4-2003 and on 15-4-2003 deceased Videshi was alive, thereafter, murdered dead body of deceased was recovered from the well. Appellant was also absent from his house. On the basis of disclosure statement of appellant, valuable articles have been recovered at the instance of the appellant on 21-4-2003. Appellant has pledged golden chain to PW/3 Prakash Soni on 18-4-2003 i.e., within three days of missing of his father. These evidences are sufficient to establish the fact that the appellant was in possession of ornaments and wrist watch owned and possessed by the deceased within three days of his murder and he failed to offer any explanation as to why and how he was in possession of articles. In these circumstances, not only presumption would be possible u/s 114(a) of the Evidence Act that the appellant is the thief or receiver of stolen property knowing it to be stolen but considering the recent possession of valuable articles just after death of deceased, the principle of presumption would be extendable that the appellant was found in recent possession of valuable articles removed from the murdered body of deceased soon after his death, but in absence of any explanation he is the author of commission of offence.

While dealing with the question of extendable, presumption u/s 114(a) of the Evidence Act, in the case of Sunderlal Vs. The State of Madhya Pradesh, , Supreme Court has held that the person (accused) found in possession of articles which were found on the body of deceased before his murder, he failed to offer an explanation then extended presumption would be drawn that the person, who was in possession of the articles found on the body of deceased before his murder, from whom the articles have been recovered, was also the author of the offence of murder.

Presumption u/s 114(a) of the Act would be available that the present appellant was author of the offence of murder of his father Videshi and as such concealed the evidence of criminal case by throwing the dead body of his father in the well. After appreciating the evidence available on record, learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned.

On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment of conviction and order of sentence passed by the trial court. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed.