ishwari Prasad Sahu Vs. State of Chhattisgarh - Court Judgment

Excerpt:
- t.p. sharma, j.1. challenge in this appeal is to the judgment of conviction and order of sentence dated 30-6-2003 passed by the 9th additional sessions judge (f. t. c), raipur, in sessions trial no. 21/2002, whereby and whereunder learned 9th additional sessions judge after holding the appellant guilty for the offence punishable under sections 302, 392 and 455 of the indian penal code, sentenced him to undergo imprisonment for life and to pay a fine of rs. 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months; rigorous imprisonment for three years and to pay a fine of rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for three months and rigorous imprisonment for three years and to pay a fine of rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for three months.2. judgment is impugned on the ground that without there being any credible and clinching evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality.3. case of the prosecution, in brief, is that on the fateful day of 13-12-2001 between 11 to 12 at noon, deceased maneshwari was present in her house, the appellant entered into her house and committed rape with her. after commission of rape, he has also committed robbery of articles of the property of the deceased and caused homicidal death amounting to murder. dehati nalishi was recorded vide ex. p/l. after summoning the witnesses vide ex. p/5, inquest over the dead body of the deceased was prepared vide ex. p/6. f. i. r. was lodged vide ex. p/2. dead body was sent for autopsy to community health centre, nevra. autopsy was conducted by dr. ku. meena samuel (pw-2) vide ex. p/3 and found following injuries:i) lacerated wound of 5' x 3' x 2' over the neck. trachea was visible;ii) lacerated wound of 2' x 1 /2' x 1' over left shoulder. blood was coming out;4. cause of death was severe haemorrhage as a result of fatal injury over the neck and death was homicidal in nature. bloodstained soil, plain soil, bloodstained piece of bangles, two hair clips, one bloodstained handle of barber knife and one bloodstained bed sheet were recovered from the spot vide ex. p/8. on 18-12-2001 after 5 days of the incident, the appellant was taken into custody. he made disclosure statement of broken barber knife, motor-cycle, broken piece of necklace (mangalsutra), locket, payal, guriya, bloodstained clothes, and rs. 3100/- vide ex. p/ 13. the appellant has produced bloodstained sharp edged part of barber knife. same was recovered vide ex. p/14. bloodstained sweater, full' pant, shirt, rs. 3100/- and underwear were recovered at the instance of the appellant vide ex. p/15. three receipts relating to sale of ornaments were recovered from ramesh kumar vide ex. p/l7. piece of mangalsutra, silver payal and cash memo (ex. p/11) were seized from sanjay kumar at the instance of the appellant vide ex. p/ 12. register was given in supurdnama to sanjay kumar vide ex. p/13. spot map was prepared by patwari vide ex. p/9. black guriya of necklace and thread were recovered at the instance of the appellant vide ex. p/19. motor-cycle bajaj m 80 was seized from malik ram vide ex. p/7. seized ornaments were identified by the husband of the deceased ramesh kumar verma vide ex. p/ 23. seized articles were sent for medical analysis vide ex. p/21. presence of blood over barber knife and clothes of the accused/ appellant were confirmed by the forensic science laboratory, raipur vide ex. p/25.5. statements of the witnesses were recovered under section 161 of the code of criminal procedure, 1973 (hereinafter referred to as 'the code'). after completion of investigation, charge sheet was filed in the court of judicial magistrate first class, raipur, who in turn committed the case to the court of sessions judge, raipur from where the 9th additional sessions judge (f. t. c), raipur received the case on transfer for trial.6. in order to prove the guilt of the accused/appellant, the prosecution has examined as many as 17 witnesses. statement of the accused/appellant was also recorded under section 313 of the code where he denied the circumstances appearing against him and claimed innocence and false implication in the crime in question. the appellant has also examined defence witness smt. ratna bai (dw-1), sarpanch of gram panchayat nevdha who has deposed that on the date of incident construction work of road was going on and at about 11 a.m. the appellant came to her to meet and after discussion for about 5 to 10 minutes, she went along with the appellant to village nevra. the appellant/accused told her that after returning motorcycle of his brother he will go back to village acholli. the appellant has taken plea of alibi.7. after affording an opportunity of hearing to the parties, the 9th additional sessions judge (f. t. c.), raipur has convicted and sentenced the appellant as aforementioned.8. we have heard mr. vivek rathore, counsel for the appellant and mr. akhil mishra, dy. govt. advocate for the state and perused the impugned judgment and record of the court below.9. learned counsel for the appellant vehemently argued that the present case is based on circumstantial evidence and disclosure of facts at the instance of the accused/appellant. in case of conviction based on circumstantial evidence, the prosecution is required to prove complete chain of circumstances sufficient for drawing only inference of the guilt of the appellant. only disclosure of facts is not sufficient for drawing any inference of commission of the offence. learned counsel further argued that the prosecution has not adduced any evidence to show that the appellant is the only person who has committed the aforesaid offences and except the appellant, nobody has committed the offences. in absence of such evidence the appellant cannot be convicted. suspicious however grave cannot take place of evidence and only on the ground that heinous offence, liability cannot be fastened upon the appellant or any innocent person.10. on the other hand, learned state counsel supported the impugned judgment and argued that the present case is based on circumstantial evidence including disclosure of facts made by the appellant which are sufficient for conviction of the appellant. the prosecution has completed chain of circumstances sufficient for drawing inference that the appellant is the only person who has committed the offences and except him nobody has committed the offences.11. in order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. in the present case, homicidal death as a result of antemortem injury is not substantially disputed by the appellant. virtually in the present case, defence of the appellant is defence of alibi that at the time of commission of the offence he was not present on the spot. on the other hand, homicidal death as a result of fatal injury is established by the evidence of dr. ku. meena samuel (pw-2) and autopsy report,(ex. p/3) which reveals that deceased maneshwari, died as a result of fatal injury found over, her neck sufficient for causing death arid death was homicidal in nature.12. as regards the complicity of the accused/appellant in the crime in question, the present case rests on the following circumstantial evidence,i) presence of red motor-cycle in front of the house of the deceased;ii) same motor-cycle was taken by the accused/appellant from his relative malik ram (pw-7) from village acholli and he was in possession of such motor-cycle at the relevant time;iii) sharp piece of barber knife stained with blood and bloodstained clothes were recovered at the instance of the appellant;iv) the appellant has sold the ornaments to shopkeeper;v) the deceased was wearing ornaments before her death and same were missing after her death and recovered at the instance of the appellant;vi) ornaments of the deceased were recovered at the instance of the appellant;vii) ornaments were identified by the husband of the deceased and found that they belonged to the deceased maneshwari.13. at the first instance, dehati nalishi was registered vide ex. p/l and f. i. r. was also lodged vide ex. p/2. inquest over the dead body of deceased maneshwari was prepared vide ex. p/6 and fatal injuries were found over the body of the deceased. smt. maneshwaribai verma (pw 3) has deposed in her evidence that on 13th december, 2001 at about 12 noon she was present in her house along with rukhmani. children of deceased maneshwari, namely vivek verma and vikram verma came to her house and told that body of maneshwari was lying. she went along with children where she saw bloodstained dead body of maneshwari. smt. rukhmani bai (pw-4) has also corroborated the aforesaid facts. rambai (pw-5) has deposed in her evidence that at the time of commission of the incident, she has seen one red colour vehicle in front of the house of the teacher i.e. husband of the deceased. defence has cross-examined this witness at length, but fact relating to standing of red colour vehicle in front of the house of the deceased is unchallenged.13a. malikram sahu (pw7) relative of the accused/appellant has deposed in his evidence that on 12th december, 2001, the appellant came to his house. he stayed in his house and on second day he demanded his red colour bajaj m 80 motor cycle for going village nevadha 10.30 a.m. which he provided. he came back at about 8.30 p.m. to his house and inquired from his wife shanti bai (pw-6) who informed him that the appellant came back at about 12 at noon and after leaving motor cycle, he went to village acholli. malikram sahu has also deposed that on 14-12-2001 he read newspaper that murder was committed at nevra and red colour motor-cycle was standing in front of the house where murder was committed. he assumed that at the relevant time, the present appellant was in possession of his red colour motor-cycle who is having criminal antecedents of theft and robbery. he went to the police station nevra and informed the police that his cousin brother i.e. present appellant had taken his motor cycle at the relevant time. the police has seized his motor cycle vide ex. p/7 on 18-12-2001. shanti bai (pw-6), wife of malikram (pw-7), has also corroborated the evidence of malikram and deposed that the appellant informed her that the person whom he want to meet met in a way, therefore, he returned back. the appellant left motor cycle in the house of malikram and told wife of malikram that he will go to village acholli. statement relating to taking of red colour motor cycle by the appellant from malikram and its possession at the relevant time is unchallenged in cross-examination of shanti bai (pw-6) and malikram (pw-7). the appellant has examined defence witness smt. ratna bai who has also admitted that the appellant was in possession of motor cycle and after sometime he went back. the appellant has stated in his examination under section 313 of the code that he took motor cycle from malikram on the date of incident and after sometime he returned the same. possession of motor-cycle at the relevant time is even admitted by the appellant.14. ramesh kumar verma (pw-16) husband of the deceased maneshwari has deposed in his evidence that on 13th december, 2001, he was on duty in his school. he was called by the persons to his house. he went back to his house where police were present. dead body of his wife maneshwari was lying in the room stained with blood. injuries were present over her body. her ornaments which she was wearing in her neck, ear and legs viz., necklace, bali and one payal were missing. death of the deceased was a result of fatal injury. missing of ornaments from the body of the deceased are also unchallenged.15. ajay dubey (pw-14) the then station in-charge, police station nevra has deposed in his evidence that he has partially investigated the offence. he has taken the accused/appellant in custody and interrogated on 18-12-2001 after 5 days of the incident. the accused made disclosure statement vide ex. p/13 relating to presence of broken piece of barber knife inside the courtyard of school, motor cycle in the house of his brother at village tulsi, broken thread of necklace (mangalsutra), guriya near padridih stop dam, golden locket, golden guriya and one silver payal in the shopkeeper at baloda bazar. he has also deposed that the appellant made disclosure statement that receipts of sale of ornaments and his clothes are in possession in his house. he has also deposed in his evidence that after recording disclosure statement, he went along with the witnesses and the accused to the school from where the appellant took out one barber knife from shrub which he seized vide ex. p/14. again he went with the accused and the witnesses to the house of the appellant at village acholli from where he produced sweater, full pant, full shirt, sale receipts of rs. 3100/- and one underwear vide ex. p/ 15. he has also seized receipts from ramesh verma vide ex. p/17 relating to purchase of articles. he also went with the accused near padridih stop dam where the accused produced one plastic thread and 45 pieces of guriya which he seized vide ex. p/19. he prepared spot map vide ex. p/18 and sent memo for identification of articles vide ex. p/20. he also sent seized articles for chemical analysis vide ex. p/21. he has also deposed that he went with the witnesses and the accused to the shop of chakrapani shukla & company, baloda bazar and seized locket of mangalsutra, 6 pieces of gold and silver payal vide ex. p/12 from sanjay kumar.16. chaganlal kashyap (pw-11) has deposed in his evidence that barber knife has been recovered at the instance of the appellant vide ex. p/14. clothes have also been recovered at the instance of the appellant vide ex. p/15. sanjay dubey (pw-9), clerk (munim) of chakrapani shukla & company has deposed in his evidence that the appellant /accused, whom he knows came to his shop on 13-12-2001 at about 3.30-4.00 p.m. and sold one golden locket, golden chain, ear ring and one piece payal vide receipt no. 214 (ex. p/11). he has also deposed that after 4-5 days, the police came with the accused and has seized the aforesaid articles vide ex. p/ 12 from him. tanaji jadhav (pw-10) has supported the evidence relating to seizure of ornaments vide ex. p/12 from sanjay kumar. the defence has cross examined these witnesses at length. ajay dubey (pw-14) has admitted in para 10 of his cross examination that there was no boundary wall in nevra school. he has admitted in para 12 of his cross-examination that he has not seized carbon copy of receipts. he has also admitted in para 12 of his cross-examination that the place where guriya and thread were found is adjoining to path and is busy place. he has also admitted in para 14 of his cross-examination that he has not placed motor cycle for identification/ chaganlal kashyap (pw-11) has deposed in his cross-examination that school is surrounded by barbed wire and after search for one and half hours they found the weapon. clothes of the accused/appellant were seized after producing the same by one woman from the house of the accused and the appellant also went inside the house. sanjay dubey (pw-9) has admitted in his cross-examination that they were in possession of other articles like locket, guriya, ear ring and payal. in para 9 of his cross-examination, he has admitted that they have issued receipts serially and has admitted that receipt no. 230 has been issued on 17-12-2001 and receipts no. 231 to 235 have been issued on 16-12-2001. he has also admitted in para 9 of his cross-examination that there is no regularity in the issuance of receipts. in his detail cross-examination, he has stated that the appellant was the person who came with the aforesaid articles and sold the same which they have purchased and issued cash memo ex. p/11.17. chaganlal kashyap (pw-11) and ajay dubey (pw-14) have specifically deposed that they went with the accused to the school where they seized barber knife and also another place near padridih stop dam where they seized guriya and broken thread. definitely both the places are not secret places and assessable to other public, but the evidence of chaganlal kashyap (pw-11) reveals that knife was not visible and after long search of one and half hours they found barber knife. even according to ex. p/11, the appellant has not concealed knife, but has thrown knife in the school courtyard, not at any definite place. guriya and thread are not costly item, they were lying near padridih stop dam which were recovered at the instance of the appellant. admittedly, guriya and broken thread were seized from open place but not the resident of the accused/appellant. it shows that the accused was having knowledge of the fact that guriya and broken thread were lying or present on the place from where it has been seized.18. identification of the ornaments were conducted by tahsildar/executive magistrate y. r. netam (pw-17) who has deposed in his evidence that he received requisition for identification from the police vide ex. p/20. he directed the police to produce ornaments for identification on 21-12-2001 at about 3 p.m. before him. the police produced one piece golden locket, 6 pieces golden guriya, one pair ear ring (bali), one old payal. he has also obtained similar articles through his agency and mixed the same with the articles received for identification. he called ramesh kumar verma for identification who had identified the articles amongst other articles mixed for identification vide ex. p/23. ramesh kumar verma (pw-16) has also deposed that he had identified ornaments amongst other ornaments on the ground that his wife was wearing the ornaments and he has purchased the ornaments from tilda. he has identified the ornaments in the court. the police sent him tahsil office for identification and directed to identify the articles whether they belonged to his wife or not. he went to tahsil office at about 3.30 p.m. he picked up the ornaments belonging to his wife amongst other similar ornaments. in his detail cross-examination, even he has deposed that how he was able to identify the articles. the defence has also cross-examined y. r. netam (pw-17) in detail, in which he has specifically deposed that before identification he mixed other similar articles and placed for identification, in which ramesh kumar verma had identified the articles amongst other articles. handle of barber knife and sharp part of barber knife were recovered at the instance of the appellant from school premises. sweater, full pant and shirt of the appellant were sent for chemical analysis along with other articles vide ex. p/21. presence of blood over handle of barber knife, sharp part of barber knife and clothes of the accused were confirmed by the forensic science laboratory, raipur vide ex. p/ 25.19. presence of the appellant on 12-12-2001 at village tulsi and taking of motor cycle on 13-12-2001 at noon and returning of motor cycle has admitted by the appellant in his examination under section 313 of the code (evidence of smt. ratnabai (dw-1)). the appellant has taken defence of evidence of smt. ratnabai (dw-1) who has deposed that at the alleged time of commission of offence, the appellant came to her by motor cycle and after discussion he went back. in the light of the evidence adduced on behalf of the prosecution, it supports the case of the prosecution. the appellant was in possession of motor cycle at the relevant time but evidence relating to return of the appellant is not true.20. in the present case, by adducing evidence, the prosecution has established following circumstances.(1) ornaments which the deceased was wearing were missing,(2) on 12-12-2001 at about 12 at noon according to evidence of smt. maheshwaribai verma (pw-3), smt. rukhmani bai (pw-4), rambai (pw-5), pradeep choubey (pw-8) and ramesh kumar verma (pw-16), deceased maneshwari was found dead in her house as a result of fatal injuries over the body.(3) as stated by dr. ku. meena samual (pw-2) and autopsy report ex. p/3, injuries were ante-mortem and death of maneshwari was homicidal in nature.(4) at the relevant time, one red motorcycle was seen in front of the house of the deceased maneshwari (evidence of rambai (pw-5)).(5) at the relevant time, the appellant was in possession of red colour m 80 motor cycle owned by malikram sahu (pw-7) and the appellant told shanti bai (pw-6), wife of malikram sahu that he is going to village nevdha and after sometime he came back and told that the person from whom he was going to meet met in a way, therefore, he came back and after leaving motor cycle in the house of malikram sahu, the appellant went to village acholli (evidence of shanti bai (pw-6) and malikram sahu (pw-7)).(6) the appellant was in possession of golden locket, golden guriya and one silver payal which he sold in the shop of chakrapani shukla & company at baloda bazar on the same day on 13-12-2001 vide ex. p/11 (evidence of sanjay dubey (pw-9), chaganlal kashyap(pw-11) and ajay dubey (pw-14)).(7) the aforesaid ornaments were seized on the basis of disclosure statement made by the appellant vide ex. p/13 on 18-12-2001 from sanjay dubey (evidence of sanjay dubey (pw-9), tanaji jadhav (pw-10), chaganlal kashyap (pw-11) and ajay dubey (pw-14)).(8) recovery of sharp piece of barber knife on 18-12-2001 on the basis of disclosure statement (ex. p/13) made by the appellant vide ex. p/14 and presence of blood over sharp edged part of barber knife vide ex. p/25 (evidence of chaganlal kashyap (pw-11) and ajay dubey (pw-14)).(9) recovery of broken thread and guriya on the basis of disclosure statement (ex. p/ 13) made by the appellant vide ex. p/19 (evidence of ajay dubey (pw-14)).(10) the deceased was wearing the ornaments on 13-12-2001 and soon after the commission of offence same were in possession of the appellant and the appellant has sold the same to the shop of chakrapani shukla & company, baloda bazar which were seized and ornaments were identified by the husband of the deceased ramesh kumar verma (pw-16) that the said articles were the articles of the deceased which she was wearing and after the incident same was missing from her body.(11) there was no justification or explanation offered on behalf of the appellant that how he was in possession of the aforesaid ornaments, how he knows the presence of sharp edged part of barber knife in the school premises and thread & guriya near padridih stop dam.21. the appellant has been convicted under sections 302, 392, & 455 of the indian penal code for commission of lurking house tress-pass after preparation for causing hurt, robbery and homicidal death amounting to murder. the conviction is based on circumstantial evidence, recovery of articles and weapon on the basis of disclosure statement made by the appellant.22. in case of conviction based on circumstantial evidence, the prosecution is required to prove complete chain of circumstances sufficient to lead the conclusion that the appellant is the person who has committed the offence and none else has committed the offence. while dealing with the question of circumstantial evidence, the apex court in the matter of c. chenga reddy and ors. v. state of andhra pradesh : air 1996 sc 3390 : 1996 cri lj 3461 held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;(3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and(4) the circumstantial evidence in order to sustain conviction must be complete and 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 his innocence.23. the apex court in the matter of sardar khan v. state of karnataka : air 2004 sc 1695 : 2004 cri lj 910 has held that in a case based on the circumstantial evidence, the following essential ingredients are necessary to prove the guilt of the accused:(1) circumstances from which conclusion is drawn should be fully proved.(2) circumstances should be conclusive.(3) all facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence of the accused.(4) circumstances should exclude the possibility of guilt of a person other than the accused.24. in the present case, circumstances proved against the appellant are that at the time of commission of such offence, motorcycle of malikram which was taken by the appellant was standing in front of the house of the deceased. the deceased was murdered and her ornaments were snatched from her body. on the same day, ornaments which the deceased was wearing at the time of commission of offence were found in possession of the appellant which he has sold at baloda bazar. on the basis of disclosure statement made by the appellant, ornaments were recovered at his instance. sharp edged part of barber knife, broken piece of necklace i.e. plastic thread and guriya were recovered at his instance. handle of barber knife was found on the spot. if these circumstances are considered together, then it would be sufficient to lead irresistible inference that only the appellant was the person who entered into the house of the deceased and caused fatal injuries resulting into her death and has removed ornaments from her body and sold the same to the shopkeeper after throwing thread and guriya near padridih stop dam. he is the person who has thrown piece of barber knife in the school premises.25. the evidence adduced on behalf of the prosecution is complete chain of circumstances and incapable of explanation of any other hypothesis than that of the guilt of the accused and rule out the possibility of his innocence or any other person than the accused has committed the offence.26. after appreciating the evidence available on record, the court below has convicted the appellant under sections 302, 392, & 455 of the indian penal code. the conviction is based on credible, clinching and reliable evidence sustainable under the law. the sentence imposed upon the appellant is adequate.27. on close scrutiny of the evidence, we do not find any illegality or infirmity in the impugned judgment warranting any interference. the appeal is liable to be dismissed and it is accordingly dismissed.