CRA/6/1992 of BALDAU SINGH Vs STATE on 23 December 2005

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HIGH COURT OF CHHATTISGARH AT BILASPUR(DWI810S BEWCH1COR&M:Hon'ble Shri V.K. Shrivartava, J,Hoa'ble Shti S.K. Agnlhotxl, J.CRIBUNAL APPBAL N0.06/1992BaldaU StatghVsState ofChhatttegarhJITOGMBNT FOR CONSIDERATIOM—Sd/-V.K.ShrivastavaJudge\/12/2005Hon'bleSIui S.K, At&ihptei^J.JSd/-Satish K. AgnihotriJudgePost for^ /12/2005Sd//-»l??'mi'aV.K.ShrivastavaJudge sm fc:!:l!f!(':H

HIGH COURT OF CHHATnsaARH AT BILASPURCrimiaal Appeal Mo.06/1992(Division Bench)

PRESENT:Smt. Kirau iJaiu, Coimsel for fhe appeltant.Shri Akhil Mishra, Panel Lawyer for the State.

JUDCTOBNT(DeUvered ons!'/12/2005)

Per Vijav Kumar Shrlvastava, J.

This appeal has been directed against fhe judgmentof conviction and order of sentence passed by fhe Sessions Judge,Bflaspyr,on26/09/1991m S.T. No. 172/1991whereby flieappeUant has been~j^>avictedfor comnuttmg fhe oflFence ofmurder puiiishabfc under Section 302 ofthe I.P.C. and sentencedhini to undergo im.pi@Munent for life.

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2) Adinittedly, Chaadrika Bai- a widow, whose husbanddied 3 -4 years ago is fhe mofher ofthe appeBaat.AppeUant, lusniofher - Chaadiika Bai, appeUant'syounger brother and hisyounger sister were liviag under a joint roof at vfflage Lalkhadan.Deceased Bhagela was matemal brofher of Milapa Bai.Bhagclawas living wifh Mflapa Bai aad was working in a Spinning Mfflalong wifh Mipala Bai. In the iatervening night of 19-20/ 1l/1990deceased Bhagela was sleepiag in appeDaat's house.Miiapa Baiin fhfi early inommg caiae to appeUanfs house to wake upBhagela. When stie entered the rooia she sawBhagela lying deadin iujured condition on a cot, in a pool of btood.She cried outand hearfag her cryDev Charan Sahu caiue who also saw thedead body of Bbagela lying on a cot iuside the appeUanfs house,haviaginjuiy ovsr hisneck.Dev Charan went to fhfi PoUceStetion and lodged fhe first information report.

3) Theprosecutionstory,inbrief,isfhatwidowCIiandrika Bai had idicit relation wifh deceased as a result fhereofshe conceived aad was canying pregnaacy for about 13 weeka,fherefore, fhe appeUant who was the son of Chaadiika Bai iu fhemtervenmg lught of 19-20/11/1990, wben Chandrika Baiwas notia ftie viUage, went to the house ofdeceased caUed fhe deceased tocomc t6 his house to sleep in the Bight. Therefore, deceased alongwifh appellant came to appeUaat's house and reiaained in. hishouse in fhe iiight^ Mflapa Bai and dcceased bofh were working ina Spiruung MiU.. MUapa bai had no issues, fherefore, she kept fhedeceased and brought tiim up. In the nionung she went to theap.peUant's house to wake up Bhagela so fhat fhey may go to fheir job.She called fhe appeUant aad asked him to wake up Bhagela.AppeUaat told fhat Bhagela is sleeping in otherrooni, fherefore,she opened the door where she saw the dead body of Bhagela lyingiaside the rooin. The dead body fiiU of bk)od was lying on a cothaviag injuiy on his neck and btood was flowiag beneath fhe cot.On beiag informed by Milapa Bai, Dev Charan came to the spot,saw fhe sceuarioand fhereafter went to fhe PoUce Station andlodged flie first information report indicating his suspicion on fheappeUantas au authorofthe criine.

4) J.S. Badoria SHO m.vestigated the crtine, who wisitedthe spot,piepared the Panchnam.a of the dead body of deceasedBhagela which was found inside the house of fhe appeUant andsent the bodyfor autopsy.Doctor Abhijeet Sen conducted theautopsy aud opined fhat cause ofdeath was shock resulting fioinextensive iajuries to ftie brain and severe blood loss froni severedblood vessels of fhe neck.During investigation,on appeUaat'smemorandiun one knife from. a poud aud one SOSK finin. well wererecovered and aflter examiaation Medical Officer gave his opuiionttiat the injury over the head of fhe deceased could have beeucaused by fh.e axe and the iajuiy over ftie ncck couM have beencaused by fhe knife. Statemeuts ofwitnesses were recorded underSection .161 offhe Cr.P.C.Blood staiaed earfh and control earfh/were seized fnom. fhe spot.Clofhes i.e., one Baniaa aad halfpantwora by the appellant were also seized.Sonography report hasbeencoBectedregardiagiUicitrelationandpregnancyofappeUant'sinofher[-]ChadrikaBai.Aftercompletionofmvestigation, charge shcet was led in fhe Court of Chief iJudicial 1''ii)[t«.-l!>B.

Magisteate, who conmutted the case to the Court of Sessions fortrial.

5) Cbai^e .under Section 302 of the I.P.C., has beenfiaiaed agauist the appeUaat, read over and explamed to him whoabjured the guilt Appellaafs defence was that he is ianocent andhas been falsety iuiplicated in the case.

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6) Leamed trial Coiu-t, afiter due appreciation of theevideace held fhat Chandnka Bai bad fflicit relation wifh deceasedBhagcla and as a result thereof she conceived and was canyiagpregnancy.Cbandrika Bai to save herself froiu hunuliationleftthe viUage aud was Uving in her parental house.On 19/11/1990appellant stated fhat his younger brother wasfi-ightened, caUedthe deceased to skep in his house and took him to his house. Inthe lu^ht deceased stept ia the appeUant'shouse.In the earlymoming whenMflapa Bai cscme tothe appeUant's house,appeUant said that Bhagelawas not here and soon tbereafterchanged his version and ^lced to see in ofher rooiu and in otherroom dead body of deceased Bhagpla was lying on a cot.At fheiastance of the appellant, axe article (A) was recovered aad seizedand knife article (B) was recovered and seized.Medical Officeropiued ttiat the injuriesfound on ftie dead body of deceased/Bhagela could have beep caused by the seized articles axe (A) andknife(B).Furftier,leamedteial Coiirt consideringaU fhecirctunstances held the appeUaat guilty for coiumittiag the ofifenceof murder of Bhagela punishable under Secdon 302 of fhe I.P.C.,•convicted and seatenced_hiBi_accordingly.

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7) Dr. Abhijeet Sen (PW/9) ia his evidence has deposed fhat on 20/11/1990 he perfonned post laortem overthe deadbody of Bhagela and found the foUowingextemal injuries.

°1. An wvased wound 2' x %* on the lefltempotv-parieial region at the level ofupperendofpwww. qfthe ear, horizontdt in diredion, ctean»nargins, bone exposed ccnd. the bone wcis aisocut, large blood cfotpresenl in fhe scalp ccroundfhe injury.

2. An incased wound on the neck extenQingJrofnjust behind the left stem mastoid miiadeto l' to the right ofthe thyivid cartilage, suse 8"long cmd 3° viide.The left carotid ccrtery lefljugular vein, lefi stem masimd nwsde, sfrapmiisdes of the left side of fhe nedc, thyroidoartilage were aH cut eiqmsing the oorticalveriebrae"

He further deposed fhat on iutemal exanuuation he fouudbelow:

"A penetrating would cutting thraugh the bone ofthe left femporo pariefctl region sza®2' x %* wvth alerviar fractwe of the sfcuB bones qf the left side,exlending fram and confinues from ihe posteriorend of fhe above bony injury to the rmddle of theocapital bone posieriorily.

The merunges cfihe brcdn were cut in (he wciundarea.The brain. was lacerated just beKoiu thewound area with large dots of blood in the brainand memnges.

Hp has fiirfherdeposed fhat in his opinion fhe cause crf/death was shock resultmg finiu extensive iajuries to fhe brain aud•*•%•••severe blood loss fi»iuftie scvered blood vessete ofthe neck. Bofhfhe above injuries fouad on the dead body of deceased Bhagelawere ante mortem. in nature.His report fa Ex.P/11-A.Hisstateinent has not been chaUeneed iu cross exHnunati.on. aad no +-—

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other material is there to dtebeUeve his evideuce.Thcrefore, fcovahis evidence it was proved that fhe dcceased Bhagela diedhoiaicidal death as a result of iajitries caused on his head andneck.

8) The whole case rests on cucuinstantial evidence.HouTsle fheApexCourt has ledIsnv flx»ia tune to tune oncircumstantial evidence.HonTile the Apex Court whfle deUveringjudgment iaState ofV.P. Vs. Sa.nfvy Rat, reported 1n f2004)10 SC'C 570, relying on fhe judginentsdeUvered iuflufceimSlngh Vs. Slxtte of Jia/asthan, reported. in (1977) 2 SCC 99,JBrcMlu Vs. State of ffgdera&ad, rcported in AIR 19S6 SC 316,EafahhcidrafyM. Vs. State of Ktiriuttakti, reporfed 1m. (1983) 2SCC 330, State o/U.P. Vs. Sulchfcasi, reported in ASt 198S SC1224,Bcdiuinder Slngh Vs. Stute of Pun/nb, reported in AEt1987 SC 3SO,Ashok Kvmar Chatterfee Vs. Sttrtts »fSS.P.,reported in. AZR 1989 SC 1890,Bhiagat Rvam. Vs. Stcte ufPun/db, reported (n AJK 1954 SC 621, C. Chenga Jteddg Vs.State o/A.P., reported in (1966) 10 SCC 193,PadfOa VeeraReMy Vs. State ofA.P., reported in AOR 1990 SC 79, State ofU.P. Vs. Ashok Kunwr ShrtoeistatXt, reporteA tn. f1992} 3 SCC86, Heutunuutt Ctovind Nfuyundkdr Vs. State ofM.P; reportedin AXR 1952 SC 343,SharajS Birtfatehand Sania Vs. Sttate of/JKTahurashtrci, reported in ASK 1984 SC 1632, hasheld fhatconvictiou caa be based solely on circiuastantial evadence, but itshould be tested oa touchstone of law relating thereto laid downbyfheApexCourt.LawscttledbytheApexCourt oncirctunstantial evidence is that fhe circuinstaaces niust be cogcntty ;»«Bil and firmly estabUshed and whcn aU fhe circumstances takencumulatively should fbmi a chain so coinplete fhat there was noescapc from the conclusion fhat wifhia aU humau probability thecrinie was coinniitted by the accused and none-clse and iu capableof any other hypotheste than. Ifaat of the giult of the accused. Suchcircunistantial evidence should not only be consistent with theguilt[of][ fhe]accused,butshouldbeinconsistent withhisuinocence.

9) In the iasteuut case, the convictiou has been held onfhe ciTcunistances that appeUant had a niotwe to kiU the deceasedand the deceased was laat seen alive ia fhe company of theappeUant who fioni the house ofdeceased took fhe deceased to hisown house aad in fhe house of appellan.t, fhe dead body ofdeceasedwho had severe injuries on his head and neck, wasfound. The wcapon by which the injuries have been caused to thedeceased was recovered ou the discovery andiafonnation inadeby the appeUant

10) Adinittedly, ChandrikaBai who is the inofher <rf fheappeUant was widow.Her husbaud had died three[-]four yearsago froin the date of iuciden.tMflapa Bai in her stateinent hasdeposed ,;thaf ChaadrikaBai, when caaae to viUage after her/inarriage with the father of Baklau Siagh, since then she had loveaffairs wifh fhe deceased.Dev Charan Sahu (PW/3) has deposedthat since last seveu[-]eight years deceased had iUicit relation wifhthe niother of the appellant and appellant alsokuew that thedeceased liad ilUcit relation with his inother.

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11) DoctorGuruinukh Mcghani (PW/7) has proved thereport (Ex.P/2) issued by himaad deposed thathe did pelvicsonography ofMrs. Chandnka Bai and after examuiation he was ofthe opinion fhat she had normal single pregnancy of about 13weeks.Report (Ex.P/2) was issued on 16/11/1990.Neither theabove evidencehasbeen chatlengpd nor rebutted, therefore, itwas proved that fhe deceased bad Ulicit relationwith widowChandrika Bai who is the mofher of tbe appeUant aud as a resultthercof widowChaadrikaBaiconceivedandwascanyuigpreguaucy of 13 weeks. The fact fhat she was canying pregnancy,exposedonly after fhe niedical examixiation which was doue on16/11/1990.12)Ramin Bai (PW/1) and Milapa Bai (PW/2) m theirevidence have categoricaUy deposed that in fhe iatervening njght of19/20-11-1990 appeUaat canie and requestedthe deceased tosleep in his house aad took him to his house for sleeping there.Mflapa Bai (PW/2) has further deposed that ncxt day in the earlyjnommg she weut to the appeUant's house to wake up Bhagela sofhat they may go to work.AppeUant told fhat Bhagela wassleepiag in other rooin. She entered the other rooin aad found thedead body of the deceased Bhagela lying ininjured condition/.having cut injuiy over neck and blood was lying there. She raisedciy and on hearing her ciy people gathered thercto whom shenarrated the stoiy.Ramia Bai (PW/1) has also deposed thatMilapa Bai by weeping aiid cryingcame and told that Bh^ela(—,—1^^-^•was kffled.

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13}The statements of both fhe witnesses do uot sitEFerfboia auy infirmity and no evidence has been adduced to rebutfheir testimony.Therefore, it was also proved that ia fheinterveiiing night of 19-20/11/1990 appeUant took the deceasedBhagela to his house aud in. fhe earty nioraing dead body ofBhagela was found iaside tlie house ofappeBant

14) Froia fhe evidence of Nanlu Singh(PW/6) andVirendra Siagh (PW/11) it has been pioved that the appellantdiscovered the fact that he has fhrown fh.e axe in fhe weU and kmfeia the pond aad at his iastance ttie axe was seized videseizureinemo of Ex.P/8 aad knife was seized vide Ex.P/9.Ftoin theevidence ofJ.S. Bhoriya (PW/12) and Dr. Abhijeet Sen (PW/9), ithas been estabUshed fhat the seized axe and krufe were scnt toniedical o£5cerfor examiaation aad opinion fflad afier examinationinedical of&cer gave opmion that ityuiy No. 1 of deceascd Bhs^elacould have been caused by fh.e seized axe aud injuiy No.2 coiildhave been caused by the seized knife.By the said evidence, it hasbeen proved that the axe aud knife recovered at the instance offtie appeUant are the weapons of offence by which iajuries overtiead aad neck ofdcceased Bhagela had been caused.

15) In fhe iustant case, it is pertaient to noteone moreciTczunstance was avaUable on the record, but that cireum.stancehas not been considered by fhe Court below.That circumstaaceappears ia the evidcace of Rana Singh (PW/5).He has deposediu his evidence fhat he_heard fhe noise of weepiag and ciying comjng finm. fhe house ofBhagela, therefore, he was goiagtowards there and on fhe way he inet Dev Charan Sahu and ShivCharan Saliu theytold fhatBhagela has beeukiUed.On thespot appeUant also rn.et who told that SUv Charan,Dev Charanand ofhers are suspecting thathe has IdUed Bhagela, therefore,he is afraid that hc would be kiUed.Rana Singh (PW/5) hasfurther deposed fhathe apprehendingthat appeUant inay bekilled, took bimto the Police Station so fhat he inay be saved.This evidence has not beeu challenged.AppeUaatif he wasiaaocent, had an opportunity to explain, but iastead of ginng anyexplaaation he sought protection,

16) AU the above circumstances takcn together fona acoiaplete chainandgives a picture that the inofher of theappeBant Chaadrika Bai had iUicit relation with fhe deceased as aresult ofwbich Chaadrika Bai conceivcd aad soon before fhe dateof iacident it was exposed that she was canying pregnancy of 13weeks.Therefore, to save fhe prestigeof fanuly and reputation,Chaadrika Bai lcft the vfflage aad ia the iuterverung rnght of 19-20/11/1990 appellantwho is son of Chandrika Bai called thedeceased to sleep wifh theia and took fhe deccased Bhagela to hishouse and wheu Bhagela was sleeping in rooin appellaat byiaflictm.g injuries by axe on his head and by Ds^er (kniie) on his/neck brutatly fcEUed Bhagela. In fhe early mommgwhen hisinateraal sister - Milapa Bai cam.e to wake up him she foundfhedead body of Bhagela jnsKle the appeUaat's house.

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Raju

17) Learaed trial Court after due appreciation of fheevidence, r^hfly tookfhe proved circumistaacesfor proving theofFence of inurder of Bhagela by the appellant has not cominittedany error and r^hfly couvicted and sentenced him.

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18) In fhe result,the appeal fails aad is dismissed.Conviction aad sentence awarded by the Sessions Judge aic--luaiataiaed.

luaiataiaed.

Sd/-V.K.ShrivastavaJudge

Sd/-Satish K. AgnihotriJudge