Dilkeshwar vs State of Chhattisgarh

R.L. Jhanwar, J.—Challenge in this appeal is to the judgment of conviction & order of sentence dated 16-7-2003 passed by the 3rd Additional Sessions Judge (Fast Track Court), Surajpur in Sessions Trial No. 169/2002, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of homicidal death amounting to murder of Ramlakhan @ Pudi & concealing the evidence of criminal case, convicted the appellant under Sections 302 & 201 of the I.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs. 500/-, in default of payment of fine to further undergo R.I. for six months and to undergo R.I. for four years & pay fine of Rs. 200/-, in default of payment of fine to further undergo R.I. for six months, respectively.

Judgment is impugned on the ground that without any credible & clinching evidence sufficient for conviction, the Court below has convicted & sentenced the appellant as aforementioned and thereby committed illegality.

Case of the prosecution, in brief, is that the appellant was suspecting that deceased Ramlakhan @ Pudi was having illicit relation with his wife. On the fateful day of 28-1- 2002 at about 8 p.m. deceased Ramlakhan went in the company of the appellant to celebrate cherta function, the deceased did not come back at night and second day morning parents of the deceased searched for the deceased. On 29-1-2002 at about 11 a.m. Bholwa Rajwar informed father of the deceased namely, Sohan Ram (PW-7) about presence of blood & sleepers near well, villagers went near the well and after search from the well, dead body of the deceased was found inside the well. Father of the deceased Sohan Ram (PW-7) lodged merg intimation vide Ex.P-10 and on the basis of the merg intimation, F.I.R. was lodged vide Ex.P-11. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-13, inquest over the dead body of Ramlakhan was prepared vide Ex.P-14. Dead body was sent for autopsy to Community Health Centre, Surajpur vide Ex.P-20 and autopsy was conducted by Dr. S.L. Jaiswal (PW-12) vide Ex.P-18 who found following injuries:

(1) One lacerated wound over right side of head in the size of 2 +" � +" � bone deep.

(2) One lacerated wound over right side of face in the size of 1 +" � +" � +".

(3) Fracture of maxillary, frontal, parietal & temporal bones.

(4) Brain was ruptured. Cause of death was shock due to head injury and death was homicidal in nature.

Spot map was prepared by the Investigating Officer vide Ex.P-21. Bloodstained hairs of the head of the deceased were seized from the spot (from the field of Lakhan) vide Ex.P-2. Sealed clothes of the deceased were seized vide Ex.P-5. The appellant was taken into custody, he made discloser statement of shawl, shirt, chappal of the deceased, axe & handle vide Ex.P-7. One blood stained brown shawl was seized at the instance of the accused vide Ex.P-1. Clothes & chappal of the accused were seized at the instance of the accused vide Ex.P-3. One axe & handle were seized form the accused vide Ex.P-4. Co-accused Vishnu Ram was also taken into custody and he made discloser statement of his clothes vide Ex.P-8. Blood stained & plain soil were recovered from the spot vide Ex.P-15. One steel glass was seized from the pocket of the deceased vide Ex.P-16. A pair of hawai sleepers & water of the well were seized vide Ex.P-17. Patwari also prepared spot map vide Ex.P-19.

Statements of the witnesses were recorded u/s 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Additional Chief Judicial Magistrate, Surajpur who in turn, committed the case to the Court of Sessions, Ambikapur, from where learned Additional Sessions Judge received the case on transfer for trial.

In order to prove the guilt of the appellant, the prosecution has examined as many as fifteen witnesses. The accused was examined u/s 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence & false implication.

After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellant in the aforesaid manner.

We have heard learned counsel for the parties, perused the judgment and record of the trial Court.

Learned counsel for the appellant vehemently argued that the appellant has not committed any offence, he has not made any discloser statement of clothes & weapon and he was not present in the company of the deceased soon before his death.

On the other hand, learned State counsel opposed the appeal and submitted that conviction of the appellant is based on the circumstantial evidence of last seen together which is corroborated by discloser of facts i.e. recovery of weapon & blood stained clothes which are sufficient for drawing inference that the appellant has committed the aforesaid offence.

In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record.

In the present case, homicidal death of the deceased as a result of ante-mortem injuries has not been substantially disputed by the appellant, otherwise also established by the evidence of Dr. S.L. Jaiswal (PW-12) & autopsy report Ex.P-18 which reveal that fatal injuries including fracture of scalp & face were found over the body of the deceased and death was homicidal in nature.

As regards complicity of the appellant in the crime in question, Sohan Ram (PW-7), father of the deceased, has deposed in his evidence that on the fateful day at about 8 p.m. his son (deceased Ramlakhan) was taking meals, at that time, the appellant came to his house and called his son Ramlakhan, after taking meals, Ramlakhan went with the appellant, at that time, his son was wearing brown colour full pant, checks shirt, half sweater & hawai sleepers, and he was also wearing shawl. Thereafter, his son did not return back to home. Cherta function was being solemnized in the village in which persons used to dance at night. Second day morning, wife of Bholwa informed him about presence of blood, sleepers & change of colour of water of the well (red colour) on which he went near the well and saw the sleepers of his son. He called other persons and searched inside the water. Dead body of his son was found inside the water, they took out the dead body from well and he went to lodge the report. He lodged merg intimation vide Ex.P-10 and F.I.R. vide Ex.P-11.

Smt. Phoolkunwar (PW-8), mother of the deceased, has deposed that on the fateful day in the evening while his son was taking meals, the appellant came and his son (the deceased) went with the appellant, but his son did not come back alive and his dead body was found inside the well on second day.

Presence of dead body of the deceased inside the well is also corroborated by the evidence of Basant (PW-1) & Tejbali (PW-2). Bahalsai (PW-4) has deposed in his evidence that he has seen blood near the well, change of colour of water of the well and sleeper inside the well and finally, the villagers found dead body of Ramlakhan inside the well.

Defence has cross-examined Sohan Ram (PW-7) at length. In his detailed cross-examination, he has admitted in para 10 that the appellant used to come to his house. In para 11 of his evidence he has admitted that the accused called his son from outside the house and he was standing in front of his house. He has denied the suggestion that other persons Mahendra, Gudda & Bishamber have quarrelled with his son and he has falsely implicated the appellant.

Smt. Phoolkunwar (PW-8), mother of the deceased, has also stated in her cross-examination that the accused was standing in front of her house and he called the deceased, the deceased & the appellant went towards the village.

Circumstantial evidence of last seen together is a weak type of evidence and in case of evidence of last seen together, the prosecution is required to prove complete chain of circumstances. In the matter of Hatti Singh v. State of Haryana1 the Apex Court has held that evidence of last seen by itself is not of much significance. It may, however, provide for a link in the chain and unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis.

Further, in the matter of State of Goa v. Sanjay Thakran and Anr. and another connected appeal 2 the Apex Court has held that in case of conviction based on circumstantial evidence, the prosecution is required to prove complete chain of circumstances 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 the innocence. Para 34 of the judgment reads thus:

From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.

While dealing with the question of last seen together, the Apex Court in the matter of Sahadevan alias Sagadevan v. State represented by Inspector of Police, Chennai3 has held that if the prosecution on the basis of reliable evidence establishes that the missing person was last seen in the company of the accused and was never seen thereafter, then it would be obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. Para 19 of the judgment reads thus:

The last circumstance relied on by the courts below pertains to the stand taken by the appellants in the trial as to parting company with Vadivelu. Here we must notice that as discussed hereinabove, the prosecution has established the fact that Vadivelu was seen in the company of the appellants from the morning of 5.3.1985 till at least 5 p.m. on the same day, when he was brought to his house and thereafter his dead body was found in the morning of 6.3.1985. Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement u/s 313 Cr.P.C. they have not taken any specific stand whatsoever. In the evidence of PW-25, it is elicited that on 5.3.1985 in the afternoon when Vadivelu was produced before the said witness, he after interrogation allowed Vadivelu to go, but then it is found from his evidence that he instructed A-1 to keep a watch over Vadivelu. In such circumstances, it was incumbent upon A-1 to have explained to the court in what circumstances they parted company. He has not given any explanation in this regard. On the contrary, the prosecution has established the fact that on the very day at about 5 p.m., Vadivelu was brought to the house of PW-1 by the appellants which was seen by PW-5. This part of the evidence of PW-5 has gone unchallenged in the cross-examination and, therefore, we will have to proceed on the basis that, what is stated by PW-5 in this regard is true. If that be so, the prosecution has established the fact that on 5.3.1985 at 5 p.m. Vadivelu was still in the company of these appellants and, therefore, in the absence of any specific explanation from the appellants in this regard, and in view of the other incriminating circumstances against the appellants having been proved by the prosecution, an adverse inference will have to be drawn against these appellants as to their part in the missing of Vadivelu. At this point, it may be relevant to note that though no specific stand has been taken by the appellants as to their parting company with Vadivelu, in their statement u/s 313 Cr.P.C., it is seen from the evidence of PWs.1 and 5 that A-1 told the said witnesses on the night intervening between 5-3-1985 and 6-3-1985 that Vadivelu had escaped from the Police Station when he was allowed to sleep in the verandah of the Police Station. This explanation given by A-1 to PW-1 which was also heard by PWs.5 and 14, clearly shows that the same is totally false and obviously was an excuse made by the appellants to conceal the true facts and, therefore, this circumstance of A-1 making a false statement to PW-1 can also be taken as a circumstance against the appellants, in establishing the appellants'' guilt. This Court in more than one case has held, that if the prosecution, based on reliable evidence, establishes that the missing person was last seen in the company of the accused and was never seen thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. See Joseph Poulo Vs. State of Kerala, . Therefore, we are in agreement with the finding of the courts below that circumstance No. 7 also stands established against the appellants.

In the present case, although Sohan Ram (PW-7) & Smt. Phoolkunwar (PW-8) are father & mother of the deceased, but their evidences reveal that they have substantially deposed that the appellant came to their house and called the deceased, they have not added anything in their evidence. They have specifically admitted that there was no previous enmity between the deceased & the appellant. The evidences of Sohan Ram (PW-7) & Smt. Phoolkunwar (PW-8), parents of the deceased whose presence in the house along with their deceased son was natural, inspire confidence, their evidences are trustworthy to the effect that on the fateful day the appellant came to their house at about 8 p.m. and called the deceased who after taking meals accompanied the appellant and second day, dead body of the deceased was found inside the well in injured condition.

This is not a simple case of last seen where some person has seen the appellant & the deceased in a market or village or in the way while they were moving, but according to the evidences of Sohan Ram (PW-7) & Smt. Phoolkunwar (PW-8), the appellant came to their house and called the deceased, at that time, the deceased was taking meals and after taking meals, the appellant & the deceased went together, and second day the dead body of the deceased was found. In such circumstances, it was obligatory upon the appellant to explain that as to when the deceased parted his company. In his examination u/s 313 of the Cr.P.C. the appellant has denied all the circumstances and stated that he has not gone to the house of the deceased and the deceased was not in his company.

The prosecution has recorded the discloser statement of the appellant vide Ex.P-7, but the discloser statement & seizure on the basis of the said discloser statement have not been supported by Basant (PW-1) - Secretary, Gram Panchayat Krishnapur & Tejbali (PW-2) - Up-Sarpanch, Gram Krishnapur. They had only admitted their signatures over the documents and have deposed that they had signed over the documents at the instance of the police and nothing has been seized before them. The prosecution has declared both these witnesses as hostile witnesses, but even in their cross-examination also they have not supported the case of the prosecution.

Investigating Officer D.K. Mitra (PW-15) has deposed in his evidence that he has recorded the statement of the appellant vide Ex.P-7 and at the instance of the appellant, he has seized shawl, bloodstained hairs of the deceased, bloodstained clothes of the deceased, bloodstained chappal, axe & handle. In his detailed cross-examination, he has denied the suggestion that he has taken the signatures of witnesses Basant (PW-1) & Tejbali (PW-2) over blank paper (Exs.P-1 to P-8). He has admitted in para 20 of his cross- examination that intimation of the F.I.R. was finally sent to the Court on 15-2-2002 after fifteen days of recording of the F.I.R. However, according to Ex.P-7 - discloser statement of the appellant and Ex.P-6 - arrest memo, the accused was taken into custody & arrested on 31-1-2002 much before the said date of intimation of the F.I.R. to the Magistrate. Even the case dairy was produced before the Magistrate first time on 1- 2-2002 at the time of production of the accused for his remand. In these circumstances, delay in sending intimation of F.I.R. to the Magistrate is not fatal to the prosecution.

Basant (PW-1) is Secretary, Gram Panchayat Krishnapur & Tejbali (PW-2) is Up-Sarpanch, Gram Krishnapur, they are responsible persons of the village and they have not stated anything to show that they have signed over the documents under fear or pressure of the police. They are residents of the village where the appellant used to reside. The evidences of Basant (PW-1) & Tejbali (PW-2) reveal that they are concealing the truth.

In these circumstances, the evidence of Investigating Officer D.K. Mitra (PW-15) relating to discloser statement & seizure on the basis of discloser statement remains for consideration.

Evidence of the police cannot be discarded only on the ground that they are Investigating Officers or police interested in the outcome of the case. In the matter of Anil alias Andya Sadashiv Nandoskar v. State of Maharashtra4 it has been held by the Apex Court that witnesses being police officers does not by itself create a doubt about their creditworthiness if non-examination of Panch witnesses is explained satisfactorily. Relevant portion reads as under:

Indeed all the five prosecution witnesses who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. We have carefully and critically analyzed the evidence of all the 5 police officials. There is nothing on the record to show that any one of them was hostile to the appellant and despite lengthy cross-examination their evidence has remained unshaken throughout. These witnesses have deposed in clear terms the details of the trap that was laid to apprehend the appellant and the manner in which he was apprehended. Their evidence regarding search and seizure of the weapons from the appellant is straightforward, consistent and specific. It inspires confidence and learned counsel for the appellant has not been able to point out any serious, let alone fatal, infirmity in their evidence. In our opinion, the factum of search and seizure of the country made revolver from the conscious possession of the appellant has been established by the prosecution beyond any reasonable doubt. The explanation given by the prosecution, for the non-examination of the two Panch witnesses, which is supported by the report Ex. 24 filed by PW-4 P.I. Gaikwad is satisfactory. The evidence on the record shows that the raiding party made sincere efforts to join with them two independent Panchas at the time of search and seizure and they were so joined. They are also cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them, they could not be located or traced and therefore, they could not be examined at the trial. In the face of the facts stated in report Ex. 24, the correctness of which has remained virtually unchallenged during the cross examination of PW-4, the non examination of the two Panchas cannot be said to be on account of any oblique reason. Their non production at the trial thus has not created any dent in the prosecution case. The prosecution cannot be accused of withholding these witnesses since it made every effort to trace and produce them at the trial but failed on account of the fact that they had left the address furnished by them at the time of search and their whereabouts could not be traced despite diligent effort made in that behalf. We, therefore, do not find any reason to doubt the correctness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellant of the country made revolver and cartridges for which he could produce no license or authority because of the non examination of the Panch witnesses we find that the evidence of PW 1 to PW-5 is reliable, cogent and trustworthy.

In the present case, in the detailed cross-examination of D.K. Mitra (PW-15), defence has not been able to elicit anything to discredit his testimony or to show any departure from the procedure prescribed. The articles seized have been examined and shawl of the deceased has been recovered at the instance of the appellant.

The evidences of last seen together of Sohan Ram (PW-7) & Smt. Phoolkunwar (PW-8) inspire confidence and their evidences are trustworthy. It can be safely inferred that the deceased was in the company of the appellant, the appellant is the person who had called the deceased and went along with the deceased from the house of Sohan Ram (PW-7) & Smt. Phoolkunwar (PW-8) who had seen the deceased alive last time in the company of the appellant and afterwards, the dead body of the deceased was found. In absence of any explanation offered on behalf of the appellant relating to parting of the company of the deceased, the only inference can be drawn that the appellant is author of the crime and has committed the homicidal death of the deceased, and after such commission with intent to conceal the evidence of criminal case, he has thrown the dead body of the deceased inside the water in a well.

After appreciating the evidence available on record, the trial Court has convicted & sentenced the appellant as mentioned in para 1 of this judgment. Conviction of the appellant is based on the circumstantial evidence of last seen together which is sustainable under the law and sentences awarded to the appellant are also adequate.

On close scrutiny of evidence, we do not find any illegality or infirmity in the judgment impugned warranting any interference. The appeal is devoid of merit and it is hereby dismissed.