Jitlal vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 07.12.2015 passed by the Sessions Judge, Surajpur, in Sessions Trial No.73/ 2014, by which, the appellant herein has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1000/-, in default of payment of fine amount, 3 months additional rigorous imprisonment.

Case of the prosecution, in short, is that on 01.04.2014, at about 2:00 p.m., the appellant abused Heeralal and threatened him and assaulted him by stone, by which, he suffered grievous injuries and died; thereby the offence has been committed. Further case of the prosecution is that Heeralal (now deceased) stood as surety for grant of bail to the appellant herein before the Court of Tahsildar, Odgi by submitting the lease-deed of his land. On 01.04.2014, Heeralal and his wife Ujiyaro Bai (PW-2) went to the house of appellant herein at village Dudhodih for taking back the lease-deed of their land, on which, the appellant told Heeralal that papers are still in the Court of Tahsildar, Odgi and same will be handed over to him later on receipt from the Tahsil office. Thereafter, the appellant took deceased Heeralal along-with him towards village Basti and after sometime, appellant returned alone to his house and upon being asked by Ujiyaro Bai (PW-2), wife of deceased, who was present in the house of appellant, whereabouts of her husband, then appellant abused her and told that he has murdered her husband near Nala by stone and also threatened her to kill her, on which, Ujiyaro Bai (PW-2) immediately went towards Nala and found that her husband was lying there and blood was oozing out from his head and eyes and on her cry, Up-sarpanch Shiva Rajwade and other villagers reached there and Heeralal was sent to Bhaiyathan hospital from where Heeralal was referred to Ambikapur hospital. Thereafter, Ujiyari Bai (PW-2) reported the matter to the police on the same day on 01.04.2014 at 3:40 p.m., on the basis of which, the FIR was registered against the present appellant vide Ex. P-13 & Ex.P-18. Heeralal died in the Ambikapur hospital on 03.04.2014. Thereafter, merg intimation was registered vide Ex.P-1, inquest was conducted vide Ex.P-3 and dead body of deceased Heeralal was subjected to post-mortem, which was conducted by Dr. K.R.Tekam (PW-11), who proved the post-mortem report Ex.P-16, according to which, cause of death was stated to be coma due to head injury leading to cardio pulmonary arrest and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-8, stone was seized vide Ex.P-9, lungi was seized vide Ex.P-10, which were sent for chemical examination along-with other seized articles to FSL and in the FSL report Ex.P-23, blood was found on the seized articles. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

In order to bring home the offence, prosecution examined as many as 15 witnesses and exhibited 25 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the document Ex.D-1.

The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment, against which the present appeal has been preferred.

Mr. Pushpendra Kumar Patel, learned counsel for the appellant, would submit that the conviction is based on very weak circumstantial evidence of last seen, extra-judicial confession and feeble motive. He further submits that particularly when the eye-witnesses of the case have not supported the case of the prosecution and Tejpal (PW-8) is claimed to be eye-witness though disbelieved by the learned trial Court, appellant ought to have been acquitted by giving the benefit of doubt. He also submits that the prosecution has failed to bring home the offence beyond reasonable doubt and the learned trial Court is absolutely unjustified in convicting the appellant by recording a finding, which is perverse to the record and, as such, the appeal deserves to be allowed.

On the other hand, Mr. Sameer Oraon, learned State counsel would submit that even if evidence of eye-witness is not taken into consideration as doubtful, there is emphatic evidence of wife of the deceased Smt. Ujiyaro Bai (PW-2) that when the deceased asked the appellant to pay money for having appeared as surety for him in Court proceedings, the appellant took him along with him and after sometime, the appellant returned and confessed before Ujiyaro Bai (PW-2) that he killed her husband and thereafter PW-2 rushed to the spot and found her husband lying on the ground. He further submits that the conviction of appellant for offence under Section 302 of I.P.C. is well merited, as the prosecution has been able to bring home the offence beyond reasonable doubt, therefore, the appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

The first question for consideration as to whether the death of deceased Heeralal was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-16 proved by Dr. K.R.Tekam (PW-11), according to which, cause of death was stated to be coma due to head injury and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

Now, the next question is whether the appellant is the author of the crime, for which the trial Court has relied upon the fact that the appellant and deceased both were last seen together alive by wife of the deceased Ujiyaro Bai (PW-2) and the appellant has given extra judicial confession to Ujiyaro Bai (PW-2) that he has murdered her husband and thrown the dead body near the Nala, which was recovered immediately within five hours from the incident and immediately, the FIR was lodged and pursuant to memorandum statement of appellant, stone was seized.

The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 as under: -

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) 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,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) 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.”

The first incriminating circumstance, which the trial Court has found proved is that appellant and deceased were lastly seen alive in the house of the appellant in presence of his wife, as deceased and his wife (PW-2) both themselves had gone to the house of the appellant to get back their document, as Heeralal stood as guarantor for the bail of appellant herein before Tahsil Court, Odgi, which he has not given and took her husband outside the house towards Basti and after four hours, appellant came back alone and has given extra-judicial confession to the wife of deceased Ujiyaro Bai (PW-2) that he has killed her husband near Nala, on which, she immediately reached to Nala and found her husband lying injured. She has been subjected to some extent of cross-examination, but she has clearly supported the case of the prosecution that it is the appellant who has taken her husband towards Basti and after four hours, he came back to his house and has given extra-judicial confession to her that he has killed her husband by stone, which she noticed when she reached to the spot. As such, nothing has been extracted to hold that she has made incorrect statement and, as such, the theory of last seen together of appellant and deceased has clearly been proved beyond doubt by the prosecution. The extra-judicial confession made by the appellant to Ujiyaro Bai (PW-2) appears to be true and voluntary. Furthermore, pursuant to memorandum statement of the appellant Ex.P-8, stone has been seized vide Ex.P-9, lungi of the appellant has been seized vide Ex.P-10 and underwear & banyan of deceased was recovered vide Ex.P-12, on which blood was found as per the FSL report Ex.P-23.

In that view of the matter, it has been clearly established that the death of deceased Heeralal was homicidal in nature and appellant and deceased were last seen together alive, as appellant has taken deceased along-with him towards Basti on 01.04.2014 at 10:00 a.m. and thereafter, the appellant came alone after four hours and pursuant to memorandum statement of the appellant, lungi of the appellant and cloths of the deceased were seized on which blood has been found as per FSL report Ex.P-23. In that view of the matter, we are of the considered opinion that the chain of circumstances has been clearly established and it is the appellant who is the author of the crime.

In view of the aforesaid analysis, we are of the considered opinion that the trial Court is absolutely justified in convicting the appellant for the offence under Section 302 of I.P.C. and therefore, the appeal deserves to be and is accordingly dismissed.