Madan Lal Tandan vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the judgment of conviction and order of sentence dated 26.5.2014 passed by the Additional Sessions Judge, Dhamtari in Sessions Trial No.45/2013, by which the appellant herein has been convicted for offence punishable under Section 302 of the IPC and sentenced him to undergo imprisonment for life and fine of Rs.200/­, in default of payment of fine to further undergo R.I. for 3 months.

The case of the prosecution, in brief, is that on 06.10.2013 between 9 a.m. to 2.30 p.m. near Dodkinala Chipli Forest, P.S. Nagri, the appellant herein caused death of his wife Maheshwari and thereby committed the offence under Section 302 of the IPC. It is further case of the prosecution that the appellant herein used to suspect the character of his wife Maheshwari and used to quarrel with her on that account. On 06.10.2013 the appellant herein along with his wife Maheshwari and his sister Hem Bai (PW­6) had gone to Chipli forest (dodkinala kup No.8) for collecting wood for domestic purpose and after cutting wood and after bundling it, the appellant asked her sister Hem Bai (PW­6) to go back to village and he & his wife Maheshwari would follow and will come after sometime, but thereafter on account of illicit relationship of deceased Maheshwari with Om Prakash Tandon (PW­1) and other villagers, some quarrel took place between them and the appellant herein has assaulted his wife Maheshwari by axe over her neck twice by which she suffered grievous injuries and died instantaneously. Omprakash Tandan (PW­1) after having inquired the matter from Hem Bai (PW­6) (father's sister) reported the matter to Police Station Nagri vide Ex.P­1. Thereafter inquest was conducted vide Ex.P­4. Spot map was prepared by the investigating officer vide Ex.P­2. Dead body of the deceased was sent for postmortem to Primary Health Center, Nagri, where Dr.D.R.Thakur (PW­9) conducted postmortem vide Ex.P­9 and opined that mode of death was coma due to cut of spinal cord and death was homicidal in nature. Thereafter, FIR was registered vide Ex.P­9”B” and the matter was taken into investigation. As per memorandum statement of the appellant (Ex.P­10), axe was seized vide Ex.P­11 and the accused was arrested vide Ex.P­13. Clothes of the appellant and the deceased were seized vide Ex.P­12 and Ex.P­15 and were sent for chemical examination to FSL, but FSL report was not brought on record. The appellant was charge­sheeted in the Court of Judicial Magistrate First Class, Nagri, who in turn, committed the case to the Court of Session, Dhamtari, from where the Additional Sessions Judge, Dhamtari received the case on transfer for trial in accordance with law. The appellant / accused abjured the guilt and entered into defence.

In order to prove the prosecution case, the prosecution examined as many as 14 witnesses and exhibited 38 documents Exs.P­1 to P­38. Statement of the accused/appellant was recorded under Section 313 of the CrPC, in which he denied guilt. However, the accused has examined none in his defence.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 26.5.2014, convicted the appellant for offence under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been preferred.

Mr.Roop Naik, learned counsel appearing for the accused­appellant, would submit that theory of last seen together is not established and furthermore, motive is also not established and memorandum & seizure have not been proved in accordance with law and FSL report has not been brought on record and as such, conviction deserves to be set aside being without evidence on record. He would rely upon the judgment of the Supreme Court in the matter of Digamber Vaishnav and another v. State of Chhattisgarh (2019) 4 SCC 522.

On the other hand, Mr.Ishan Verma, learned Panel Lawyer for the respondent/State, would submit that death of the deceased was homicidal in nature and motive & theory have been established by the prosecution and on the basis of disclosure statement of the appellant, axe was recovered and no explanation was offered by the appellant under Section 313 of the CrPC and as such, it is the case where the appeal is liable to be dismissed. He would rely upon the judgment of the Supreme Court in the matter of Dharam Deo Yadav v. State of Uttar Pradesh (2014) 5 SCC 509.

We have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

The first question for consideration would be, whether death of deceased Maheshwari was homicidal in nature ?

The trial Court has answered the issue in affirmative relying upon the statement of Dr.D.R.Thakur (PW­9), who has conducted postmortem and taking into account the postmortem report (Ex.P­9) held that death of the deceased was homicidal in nature. A careful perusal of the postmortem report (Ex.P­9) would show that the deceased died due to coma on account of cut of spinal cord in cervical region. In that view of the matter, the trial Court has rightly recorded a finding that death of deceased Maheshwari was homicidal in nature. We hereby concur with the view taken by the learned trial Court in this regard.

Next question for consideration would be, whether the appellant is author of the crime as held by the trial Court ?

The trial Court has found the motive to be established as the appellant used to suspect the character of his wife deceased Maheshwari with his son Om Prakash Tandon (PW­1) and other villagers, which has been stated by Om Prakash Tandon (PW­1) in his statement before the Court as well as other son Lokeshwar Kumar Tandon (PW­7) and that is the reason why on the fateful day the appellant and the deceased along with Hem Bai (PW­6) [appellant's sister], all had gone to forest for collecting wood for domestic purpose, but the appellant sent her sister Hem Bai (PW­6) firstly stating that he & his wife deceased Maheshwari would follow her, but thereafter he started quarreling with the deceased on the pretext that she is having illicit relationship with Om Prakash Tandon (PW­1) and other villagers and by use of axe, he assaulted Maheshwari, by which she suffered grievous injuries and died. Dr.D.R.Thakur (PW­9) has conducted postmortem vide Ex.P­9, in which he has opined that cause of death was coma due to cut of spinal cord in cervical region and death was homicidal in nature. As such, motive has rightly been held established by the trial Court. We hereby affirm that finding.

The trial Court has found proved the theory of last seen together. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. The conduct of the accused and the fact of last seen together plus other circumstances have to be looked into. Normally, last seen theory comes into play when the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that the possibility of any person other than the accused being the perpetrator of the crime becomes impossible. It will be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. However, if the prosecution, on the basis of reliable evidence, establishes that the missing person was seen in the company of the accused and was never seen thereafter, it is obligatory on the part of the accused to explain the circumstances in which the missing person and the accused parted company. (See Dharam Deo Yadav v. State of Uttar Pradesh (2014) 5 SCC 509).

Reverting to the facts of the present case in light of principle of law laid down by the Supreme Court in the matter of Dharam Deo Yadav (supra), it is quite established that in the instant case, admittedly, the appellant, deceased Maheshwari and Hem Bai (PW­6) [appellant's sister] went to forest for collecting wood on the fateful day and after collecting wood, the appellant along with wood sent his sister Hem Bai and told her that they would follow her, but thereafter he started quarreling with the deceased on the pretext that she (Maheshwari) was having some illicit relationship and assaulted her by axe, by which she suffered grievous injuries and died. A careful perusal of statement of Hem Bai (PW­6) would show that all three had gone to forest for collecting wood, but she was sent by the appellant promising her that they will follow her, but when the appellant and the deceased did not come back home till evening, then Om Prakash Tandon (PW­1) [son of the appellant and the deceased] inquired from Hem Bai, to whom Hem Bai (PW­6) informed that she was told by the appellant to go back to the home along with wood and they would follow her, but they could not come and thereafter dead body of the deceased was recovered. Similar statements have been made by Om Prakash Tandon (PW­1) and Lokeshwar Kumar Tandon (PW­7) [two sons of the appellant and the deceased] that on the fateful day, the appellant, deceased Maheshwari and Hem Bai (PW­6) all had gone to dense forest for collecting wood. As such, it is clearly established that the appellant was last seen with his wife deceased Maheshwari and the trial Court has rightly recorded a finding that the appellant and the deceased both were seen together and on the fateful day, they had gone to forest for collecting wood. As such, theory of last seen together has rightly been proved.

On the basis of statements of Om Prakash Tandon (PW­1), Hem Bai (PW­6) and Lokeshwar Kumar Tandon (PW­7), the prosecution has clearly established that the deceased was seen in the company of the accused/appellant herein and was never seen thereafter. It was obligatory on the part of the accused/appellant herein to explain the circumstance in which deceased / Maheshwari and the accused parted company, but the appellant has failed to explain in what circumstance the deceased (his wife) died. Apart from this, pursuant to memorandum statement of the appellant (Ex.P­10), axe was seized on the place shown by the appellant vide Ex.P­11. As such, motive of the appellant to cause death of the deceased and theory of last seen together have been established and furthermore, the appellant has failed to explain as to under what circumstance his wife died when she along with him had gone to forest for collecting wood and furthermore, at the instance of disclosure statement of the appellant (Ex.P­10), axe in question was seized by the police, which has been duly proved by the statement of investigating officer Prem Singh Netam (PW­11).

In that view of the matter, we are of the considered opinion that chain of circumstances are fully established by the prosecution and as such, the trial Court has rightly held that it is the appellant who has caused death of his wife Maheshwari Tandon. We do not find any merit in this criminal appeal. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed.