Pradeep Bhuiya vs State Of Chhattisgarh

Ravindra Kumar Agrawal, J

This appeal arise out of judgment of conviction and order of sentence dated 15.06.2022 passed by the Ist Additional Sessions Judge, District Ramanujganj-Balrampur, in Sessions Case No.16/2020 whereby the appellant has been convicted for the offence under Sections 376 and 302 IPC and sentenced to undergo RI for 10 years and fine of Rs.500/- and RI for life and fine of Rs.1000/- respectively, with default stipulations. Both the sentences have been directed to run concurrently.

Brief facts of the case are that, on 08.10.2019, PW-1, Brijlal, son of deceased, has given a merg intimation Ex.P/8 to the police with the fact that on 07.10.2019 at about 8 p.m. he had gone to watch Ramlila at village Kalikapur and at about 11 pm in the night when he returned back, he did not find his mother in his house. At about 3 am in the night he had gone to the shop of Santosh Yadav to search her whereabouts but she could not be found. On 08.10.2019 at about 1 pm when he had gone to river to take a bath, at about 2 pm his wife came there and informed him that his mother is lying dead in a naked condition in the backyard. When he reached to spot, he saw that her nose, mouth and neck was tied with Sari and lower part of the body was naked. The police registered an FIR Ex.P/19 against unknown person for the offence under Section 302 IPC. Inquest of the dead body of the deceased was prepared in presence of witnesses vide Ex.P/11. The dead body was sent for postmortem to Community Health Centre, Ramanujganj where PW-20, Dr. Kailash Kaiwartya, had conducted its postmortem and gave his report vide Ex.P/18. Injuries were found on the body of the deceased and the doctor has opined that cause of death in this case is cessation of respiration due to strangulation and smothering. The probable time that elapsed between death & autopsy was approx 36-40 hours and nature is homicidal. Spot map Ex.P/20 was prepared by the police and Ex.P/15 was prepared by the Patwari. Vide seizure memo Ex.P/9, the police has seized Petticoat, Sleeper, one matchbox, bloodstained and plain soil from the spot. Another part of the soil was also seized from the spot vide Ex.P/12. The doctor who conducted the postmortem of the dead body of the deceased prepared two slides of vaginal swab of the deceased which was seized vide Ex.P/.17. The appellant was taken into custody on 12.10.2019 and his memorandum statement Ex.P/10 was recorded in presence of the witnesses. Based on his memorandum statement his jeans pant has been recovered vied seizure memo Ex.P/11. Underwear of the appellant was also seized vide seizure memo Ex.P/13. The appellant was also sent for his medical examination to Community Health Centre, Ramanujganj where he has been examined on 12.10.2019 by Dr. Sharad Kumar Gupta who gave his report in the back side of Ex.P/24 and P/25. While examining the appellant, the doctor found the appellant to be capable to perform sexual intercourse. Multiple superficial abrasions in left cheek of the appellant was found. The doctor opined that all injures are simple in nature.

During the course of investigation, the police has sent the slides of the vaginal swab of the deceased, underwear of the appellant, petticoat of the deceased and plain soil & bloodstained soil seized from the spot for its FSL examination to regional FSL Ambikapur from where FSL report Ex.P/28 was received, according to which, the blood was found on the underwear of the appellant, petticoat of the deceased and bloodstained soil seized from the spot. Further, in Article-B which is underwear of the appellant and Article-C which is petticoat of the deceased “AB” group of blood was found in FSL report. Further, in the slides of the vaginal swab of the deceased, underwear of the appellant and petticoat of the deceased, semen and sperms were found. Due to insufficient soil found in the jeans pant, the soil test of the jeans of the appellant and soil seized from the spot could not be carried out which has been reported in FSL report Ex.P/29.

The statement under Section 161 CrPC of witnesses were recorded. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Sections 302 and 376 IPC before the Chief Judicial Magistrate, Ramanujganj. The case was committed to the Sessions Court from where it has been transferred to the trial Court for its trial.

The trial Court has framed charges against the appellant for the offence under Sections 302 and 376 IPC. The appellant abjured his guilt and claimed trial.

In order to establish the charge against the appellant, the prosecution has examined as many as 21 witnesses. Statement under Section 313 CrPC of the appellant has also been recorded in which he denied the circumstances appears against him, plead innocence and have submitted that he is innocent and due to property dispute the witnesses have stated against him and he be acquitted.

After appreciation of oral as well as documentary evidences available on record, the trial Court has convicted the appellant and sentenced him as mentioned in opening para of this judgment. Hence this appeal.

Learned counsel for the appellant would submit that the appellant is innocent and have been falsely implicated in the case. The prosecution has failed to prove its case beyond reasonable doubts. There is no eyewitness to the incident and the prosecution case is based on circumstantial evidence. The chain of circumstances have not been completed and therefore the benefit should have been extended to the appellant. There is lack of sufficient evidence to hold the appellant guilty for the alleged offence. The evidence of last seen of the appellant with the deceased is not of the sterling quality by which it can be unmistakenly held that the appellant is guilty of the offence. No motive has been proved by the prosecution. The Trial Court has committed gross mis-appreciation of evidence to hold on basis of suspicion combined with the recovery that the charges stood established beyond reasonable doubt in a case of circumstantial evidence. The FSL report is also inconclusive and thereby the conviction of the appellant and sentence suffers with material irregularity and perversity and the appellant is entitled for acquittal.

On the other hand, the counsel for the State supported the judgment of conviction and sentence and submitted that the prosecution has proved its case beyond reasonable doubt. The deceased was last seen by the witnesses with whom she left the shop of Santosh Yadav and soon thereafter she was found dead in an injured and naked condition. In the underwear of the appellant and petticoat of the deceased “AB” group of blood was found in the FSL report, the injuries have also been found on the cheek of the appellant and the same has not been explained by him. The motive is also proved in the case that the appellant was having property dispute with the deceased and therefore, all the connecting links of circumstantial evidence are completely proved by the prosecution. There are sufficient evidence on record which unerringly pointed towards the guilt of the accused, and therefore the trial Court has rightly convicted the appellant which cannot be said to be unjustified and the appeal of the appellant is liable to be dismissed.

We have heard the rival contentions put forth by the counsel for the parties and perused the records.

The first question arises in the case is as to whether the death of deceased is homicidal or not?

PW-1, Brijlal has given merg intimation to the police that dead body of his mother is lying in his backyard in an injured and naked condition. Inquest of dead body of the deceased was prepared in presence of the witnesses and thereafter the body was sent for postmortem where PW-20, Dr. Kailash Kaiwartya has conducted the postmortem of the dead body and he found the following injuries: -

“Abrasion in right shoulder 6x3 cm, left breast 6x11 cm, centre of chest 15x2 cm, lower back region, 25x10 cm. Peeling of skin in right upper arm extended upto right forearm and elbow region right thigh and right flank region. Left leg ligature mark pressure abrasion present around the neck, above the level of thyroid cartilage. Ligature mark placed 10 cm below the tip of left mastoid and 10 cm below the tip of right mastoid and 9 cm below the tip of chin having total length 32.5 cm and max width. 4.5 cm noted over front of neck on right side. Knot absent. Ligature mark is reddish brown and parchmentised. On dissection skin over the ligature underlying subcutaneous tissues and mussels are dry and pale. Laryngeal edema thyroid bone, tracheal rings. Swelling present over vaginal region.”

After conducting postmortem, the doctor has opined that cause of death is cessation of respiration due to strangulation and smothering. The probable time that elapsed between death & autopsy was approx 36-40 hours. The death was homicidal in nature.

The evidence of PW-20, who conducted postmortem of the body of the deceased has not been substantially challenged by the defence so that it could be held that death was not homicidal in nature but due to some other reason. After appreciating the evidence available on record, the trial Court has rightly comes into conclusion that death of deceased was homicidal in nature which is based on proper appreciation of evidence.

The involvement of the appellant in the offence in question is based on circumstantial evidence which are last seen together, memorandum & seizure and also the FSL report. In a case of circumstantial evidence, it is for the prosecution to establish that all the links in the chain of circumstances are complete leading inescapably to the only hypothesis of the guilt of the accused leaving out any possibility of innocence. Suspicion howsoever strong cannot take place of proof. The last seen theory is also a part of circumstantial evidence.

PW-7, Babulal Bhuiya, have stated in his deposition that on the date of incident he had gone to the shop of Santosh Yadav along with his wife and at that time they saw the appellant and deceased going together towards their house. On the next day they came to know that deceased was being murdered by the appellant. He saw the dead body and the police has recorded his statement. When this witness was declared partly hostile, he voluntarily stated that he met with the deceased and appellant on the way. He denied the suggestions given by the defence that on the date of incident the deceased was also drinking liquor in the shop of Santosh Yadav.

PW-8, Surji Devi, who is the wife of PW-7, have also supported the evidence of PW-7 that on the date of incident she had gone to shop of Santosh Yadav with her husband where the appellant was standing alongwith deceased holding her hand. Thereafter, she went back to her house. After declaring her partly hostile, she also has voluntarily stated that she met with the deceased and appellant on the way and she inquired about their well-being. On the next day she came to know about the incident.

PW-9, Dayashankar, who is grandson of the deceased in relation, have stated in his deposition that on the date of incident when he was there in the shop of Santosh Yadav, his grandmother came there and asked for liquor. The appellant purchased three quarter bottles of liquor and thereafter each of them consumed one quarter bottle of liquor. Thereafter, the appellant had gone with his grandmother to left her in her house. After about 20 minutes the appellant again came back to the shop of Santosh Yadav from where he purchased tobacco and thereafter returned back to their respective house. After having dinner, he had gone to village Ramchandrapur along with the appellant where he saw the scratch injuries on his cheek. When he asked from the appellant, he replied that he had some quarrel with his sister in law by which he received the injuries. After watching Ramlila they went for asleep. On the next day he came to know that dead body of his grandmother was found in the backyard and the appellant has confessed his guilt. In cross examination, he has admitted that the appellant had gone to watch Ramlila along with him and both of them returned back together after watching Ramlila.

PW-15, Shiv Sanethi, who is relative of deceased, have stated in his deposition that when he came to know about the incident, he had gone to police station along with Sarpanch Janeshwar and when the police persons came on the spot, they inquired from the persons of the village. He too had gone to police station along with Brijlal. One Dayashankar, PW-9, have informed the police that on the date of incident the appellant had gone with the deceased to left her in her house and then the police has inquired from the appellant. The appellant disclosed in his presence that he committed rape upon the deceased and thereafter murdered her.

From the evidence of these witnesses, it is clearly established that on the date of incident the appellant was present in the shop of Santosh Yadav where the deceased also came. They consumed liquor. The appellant and the deceased left the place together which has been supported by PW-9, Dayashankar. PW-7, Babulal and PW-8, Surji Devi, who met with the appellant and deceased on the way and inquired about their well-being. Nothing could be extracted from their evidence that on the date of incident they had not met with the deceased and the appellant who were going together. PW-9 have further stated that he along with appellant had gone to village Ramchandrapur for watching Ramlila where he saw scratch injuries on the cheek of appellant and when he asked about the injuries, he disclosed that he had quarrel with his sister in law by which he received injuries. In his 313 CrPC statement, the appellant has not explained as to how he has received such injuries on his cheek. His sister in law have not been examined to ascertain as to whether she had a quarrel with the appellant on the date of incident and he received injuries in the said quarrel. The abrasion found on the left cheek of the appellant was 4-6 days old. The incident is said to have been occurred in the intervening night of 7-8th October, 2019 and as per medical examination report Ex.P/25, the appellant was examined on 12.10.2019 and thereby looking to the period of injuries it corroborates with the date and time of the incident of murder of the deceased.

In the matter of Suraj Dev Mahto and Another Vs. State of Bihar, 2022 (11)SCC 800, the Hon’ble Supreme Court has considered the scope of last seen as a link of circumstantial evidence and held as under:

“30. The case of the prosecution in the present case heavily banks upon the principle of 'Last seen theory'. Briefly put, the last seen theory is applied where the time interval between the point of when the Accused and the deceased were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the Accused being the perpetrator of crime becomes impossible. Elaborating on the principle of "last seen alive", a 3-judge bench of this Court in the case of Satpal v. State of Haryana MANU/SC/0492/2018 : (2018) 6 SCC 610, p. 6 has, however, cautioned that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the Accused, would by itself, only be a weak kind of evidence. The Court further held:

...Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the Accused, and the recovery of the corpse being in very close proximity of time, the Accused owes an explanation Under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the Accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the Accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the Accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.

We may hasten to clarify that the fact of last seen should not be weighed in isolation or be segregated from the other evidence led by the prosecution. The last seen theory should rather be applied taking into account the case of the prosecution in its entirety. Hence, the Courts have to not only consider the factum of last seen, but also have to keep in mind the circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the Accused.

The Counsel for the Appellants further assailed the last seen theory and submitted that even if the deposition of PW-3 was considered true, he had seen Arun in the company of the Appellants on 09.04.1987, which was two days before the discovery of the dead body. It was, thus, argued that the intervening time period between the two events could not Rule out the possibility of intervention by a third party and as such there wasn't a continuous chain of circumstances. While this argument seems attractive at the first instance, but, when considered in the light of testimonies made by the independent witnesses PW-6 and PW-8, it stands completely belied. The Prosecution case is that both the Appellants committed the murder on the night of 09.04.1987. PW-8, who discovered the body of Arun on 11.04.1987, deposed that he had heard rumors about the dead body the previous night itself, however, on account of it being dark and a forested area, he was only able to proceed to the spot the next day. Given that the body was lying on the spot at least since 10.04.1987, the instant crime could have been committed on or before 10.04.1987. The medical evidence in the present case further braces the prosecution story. PW-6, the Doctor, examined the body of the deceased on 12.04.1987. In his opinion, the time elapsed since the death of Arun was 36 to 72 hours. Thus, the medical evidence fully corroborates the prosecution story of the murder having being taken place on 09.04.1987. We also note that the Courts below have dealt with this issue elaborately and have held that the murder of the deceased indeed took place on 09.04.1987. We see no reason to take a contrary view.

Counsel for the State appears to be right in relying upon the decision of this Court in Kashi Ram (Supra) to assert that once the fact of last seen is established, the Accused must offer some explanation as to the circumstances in which he departed the company of the deceased. This position of law, as covered Under Section 106 of the IEA, was duly considered in the case of Satpal Singh (Supra), wherein, this Court clarified that if the Accused fails to offer any plausible explanation, an adverse inference can be drawn against the Accused. In the instant case also, Appellant No. 1 has been unable to offer any explanation as to circumstances in which he departed from the company of the deceased.”

The appellant was taken into custody on 12.10.2019 and his memorandum statement Ex.P/10 was recorded in presence of PW-15, Shiv Sanethi and PW-16, Jethu. Both these witnesses have duly supported the memorandum and recovery from the appellant. PW-15 have stated in his deposition that the appellant has given his memorandum statement in his presence which is recorded by the police vide Ex.P/10 in which his signature is also there. Pursuant to the memorandum statement, the police has recovered jeans pant and shirt of the appellant from his house and the shirt of the appellant was stained with blood. Seizure memos Ex.P/11, P/12, P/13 and P/14 were prepared by the police in which he also signed. In cross examination, he denied that the appellant has not given any statement to the police, but has reaffirmed that the appellant has given memorandum statement and pursuant to it seizure of various articles have been made and he signed the seizure memos.

Likewise, PW-16, Jethu, also supported the memorandum and seizure from the appellant and he too reconfirmed the recording of memorandum statement of the appellant and recovery based on the same.

Nothing could be extracted from the evidence of these two witnesses to disbelieve their evidence that at the time of recording memorandum statement of the appellant, these two witnesses were not present or the appellant has not given any memorandum statement and also that there is no recovery pursuant to the memorandum statement.

The scope of Section 27 of the Evidence Act has been dealt with by the Supreme Court in various pronouncements. In Vasanta Sampat Dupare Vs. State of Maharashtra, 2015 (1)SCC 253, in paragraph 23 it has been held as under:

“23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya V. King Emperor[3] has held thus:

"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

In Asar Mohammad Vs. State of Uttar Pradesh, 2019(12)SCC 253, in paragraph 21 it has been held as under:

“21. It is settled legal position that the facts need not be self probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence……..”

In Mohd. Inayatullah Vs. State of Maharashtra, 1976(1)SCC 828,, the Supreme Court has held as under:

“11. Although the interpretation and scope of sec. 27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be remained of its requirements. The Section says:

"Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be Proved."

The expression "Provided that" together with phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Secs. 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Sec. 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The Second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the proveable information. The phrase "distinctly" relates to the fact thereby "discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.

At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Crown,(1) Rex v. Ganee) (2). Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya and ors. v. Emperor(3), Udai Bhan v. State of Uttar Pradesh.”

Dealing with the issue of disclosure statement, in Aftab Ahmed Ansari Vs. State of Uttaranchal, 2010 (2) SCC-583, the Supreme Court has held as under:

“40. Thus, the part of the disclosure statement, namely, that he was ready to show the place where he had concealed the clothes of the deceased is clearly admissible under Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place. The contention that even if it is assumed for the sake of argument that the clothes of the deceased were recovered from the house of the sister of the appellant pursuant to the voluntary disclosure statement made by the appellant, the prosecution has failed to prove that the clothes so recovered belonged to the deceased and, therefore, the recovery of the clothes should not be treated as an incriminating circumstances is devoid of merits.”

Vaginal slide of the deceased Article-A, underwear of the appellant Article-B, Petticoat of the deceased Article-C, Blood stained soil seized from the spot Article-D and plain soil seized from the spot Article-E were sent for FSL examination to regional FSL Ambikapur from where FSL report Ex.P/28 was received, according to which, blood was found on the underwear of the appellant, Petticoat of the deceased and blood stained soil. Further “AB” group of blood was found on the underwear of the appellant and petticoat of the deceased. Since the same group of blood was found on the underwear of the appellant and the petticoat of the deceased, it is a connecting and vital link to connect the appellant with the offence in question. When the same group of blood was found in two different persons, then they have to show that they are not having the same blood group and the appellant has to explain as to how the same blood group with that of the blood group found on the petticoat of the deceased is found in his underwear also. In absence of any explanation from the appellant, it can be considered vital link of circumstance. Further, as per the FSL report Ex.P/28, semen and sperms were found on the vaginal slide of the deceased, underwear of the appellant and petticoat of the deceased which further corroborates the presence of appellant with the deceased at the time of commission of offence and further proves the fact that the appellant has committed rape upon her first and then murdered her. In his 313 CrPC statement, the appellant has not offered any explanation for the same.

Further, while medically examining the appellant, the doctor has found injuries on his left cheek which he has not explained as to how he has received injuries on his left cheek. Although, from the evidence of PW-9 it appears that the appellant has disclosed him that he had quarrel with his sister in law and by that he received injuries on his cheek, but in his 313 CrPC statement he has not explained his injuries and he has not examined his sister in law in his defence to prove his defence that he had a quarrel with her by which he received injuries on his cheek. In question No.74 of his 313 CrPC statement when he was asked about the injuries on his cheek, he answered “it is wrong”.

Although, the non explanation or false explanation does not amount to connecting link of circumstances, but it can be considered to be an additional circumstances against the appellant.

Close scrutiny of the evidence makes it clear that on the date of incident the appellant and the deceased had gone to the shop of Santosh Yadav, they consumed liquor and thereafter both of them left the shop. After sometime, the appellant again returned back to the shop and had gone to watch Ramlila along with PW-9, Dayashanakar. At that he was already received injuries on his left cheek. On the next day, the deadbody of the deceased was found in naked condition and semen and sperm were found in her vaginal swab.

Same group of blood was found on the clothes of the appellant as well as deceased. No explanation has been offered by the appellant with respect to either injuries or blood found on his clothes. From the evidence produced by the prosecution, it has duly been established that the appellant has committed rape upon the prosecutrix and thereafter committed her murder. Therefore, the trial Court has rightly convicted the appellant for the offence alleged and sentenced him.

In the result, the appeal fails and is hereby dismissed.

The trial court records along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.