Chattisgarh High Court
Suresh Vishwakarma vs State Of Chhattisgarh on 17 March, 2022
Author: R.C.S. Samant
Bench: Rajendra Chandra Singh Samant
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 258 of 2014
Judgment Reserved on 17.02.2022
Judgment Delivered on 17.03.2022
Parmanand Nishad S/o Jugnutamram Nishad Aged About 25 Years R/o
Village - Aalbaras, PS Bori, District Durg, Chhattisgarh.
---- Appellant (in jail)
Versus
State Of Chhattisgarh Through Police Station Bori, District Durg,
Chhattisgarh.
--- Respondent
AND
Criminal Appeal No. 583 of 2014
Suresh Vishwakarma S/o Narad Vishkarma Aged About 25 Years R/o Village
Albaras, Police Staion Bori, Civil And Revenue District- Durg, Chhattisgarh.
---- Appellant (in jail)
Versus
State Of Chhattisgarh Through Station House Officer, Police Station Bori,
Civil And Revenue District Durg, C.G., Chhattisgarh.
--- Respondent
For the Appellant in
Cr.A. No.258 of 2014 : Shri Shakti Raj Sinha, Advocate
alongwith Shri Om Prakash Sahu,
Advocate.
For the Appellant in
Cr.A. No.583 of 2014 : Shri Atanu Ghosh, Advocate.
For the Respondent/ State : Shri Sudeep Kumar Verma,
Deputy Government Advocate.
Hon'ble Shri Justice Rajendra Chandra Singh Samant
Hon'ble Shri Justice Arvind Singh Chandel
CAV Judgment
Per R.C.S. Samant, J.
1. Both these appeals have been preferred against the impugned judgment of conviction and order of sentence dated 9.12.2013 passed by the 2 Learned Additional Sessions Judge (F.T.C.), Durg, District Durg, Chhattisgarh in Sessions Trial No. 166 of 2010, convicting the appellants for the offence under Sections 302 & 201 of the Indian Penal Code (for short 'the IPC') and sentencing them with rigorous imprisonment for life and to pay fine of Rs.50,000/- and RI for 7 years and to pay fine of Rs.10,000/- with default stipulations.
2. Deceased - Kamlesh Deshmukh, who was Assistant Secretary in Gram Panchayat, Bori left his house on 19.5.2010 at 5:00 pm, subsequent to which, he went missing. Kalyan Singh (PW-1) lodged the missing report, which was written in the Rojnamcha Sanha vide Ex.P/7. During the said proceedings, the appellants were taken into custody and were interrogated. Both of them gave confessional assignment leading to the discovery of the dead-body of the deceased and other articles. The memorandum statements vide Exs. P/2 & P/3 were recorded on 21.6.2010 at about 11:00 to 11:30 am, respectively. The place of burial of the deceased identified by the appellants was the cremation ground by the side of Tandula river in village Chingri. The dead-body of the deceased was exhumed by the orders of Sub-Divisional Officer, Durg in presence of Executive Magistrate, C.P. Mishra (PW-31). The exhumation panchanama is Ex.P/4, which has recorded the proceeding of exhumation conducted at about 3:00 pm. The body was exhumed and the same was identified by Kalyan Singh (PW-1) and other witnesses vide identification panchanama Ex.P/1. Seizure of a stapler, one packet of rajshree gutka and one mango-bite chocolate was made from the pocket of the deceased vide Ex.P/5. The recovery panchanama of the dead-body was separately recorded as Ex.P/20. At the instance of the appellants, seizure of currency notes of value of Rs.4,000/- 3 with description was made from Meena @ Asha Sharma (PW-3) vide Ex. P/8 and seizure of currency notes of value of Rs.2,000/- with description was made from Mathura Bai (PW-7) vide Ex. P/9. Seizure of currency notes of value of Rs.1,000/- with description was made from Jitendra Kumar (PW-
8) vide Ex.P/10. Seizure of currency notes of value of Rs.1,000/- with description was made from Yashwant Thakur (PW-9) vide Ex.P/11. Seizure of currency notes of value of Rs.10,000/- with description was made from Murli Prasad Deshmukh (PW-16) vide Ex.P/12. At the instance of appellant
- Parmanand Nishad, a copy having entries with a print of HBN Dairies & Allied Ltd. was seized vide Ex.P/13. At the instance of appellant - Suresh Vishwakarma, seizure of a wooden leg of a sleeping cot and a spade of iron were made vide Ex.P/23. At the instance of appellant - Parmanand Nishad, one L.G. mobile phone, one Videocon mobile phone and currency notes were seized vide Ex.P/24.
3. Un-numbered morgue intimation regarding the death of deceased - Kamlesh Deshmukh was recorded vide Ex.P/27-A and a numbered morgue intimation was also recorded vide Ex.P/27. First Information Report vide Ex.P/28 was lodged against the appellants registering the offences under Sections 302 & 201/ 34 of the IPC. Inquest procedure was conducted and the inquest report is Ex.P/7. Autopsy on the dead-body of the deceased was conducted by Dr. Shivnarayan Manjhi (PW-33). On the basis of the findings given in the postmortem report vide Ex P/29A, he had opined that the death of the deceased was homicidal. Crime details form of the place where the offence of murder had occurred was prepared Ex. P/31 and crime details form was prepared from where the dead-body of the deceased was found vide Ex.P/32. The clothes and other articles which were preserved by 4 the doctor conducting postmortem examination was seized vide Ex. P/33. Seized articles were sent for FSL examination, regarding FSL report vide Ex.P/63 was obtained. According to which, there was presence of blood found on the wooden leg of the sleeping cot seized from appellant - Suresh Vishwakarma and on the clothes of the deceased. Spot map was also prepared by the Revenue Officer vide Ex.P/66. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and on completion of the investigation, the charge-sheet was filed before the Court having jurisdiction.
4. After completion of committal proceedings, learned Sessions Judge took cognizance in the case and framed charges under Sections 302 & 201 of the IPC against both the appellants. The appellants pleaded innocence and denied the charges. The prosecution has examined as many as 34 witnesses. On completion of prosecution evidence, the appellants/ accused persons were examined under Section 313 of the Cr.P.C., in which the appellants denied all the incriminating evidence against them and again they made a statement of innocence and false implication. Opportunity was given for examining the witnesses in defence, but no witness was examined in the defence. After completion of all the proceedings in the trial, the learned trial Court gave opportunity of hearing of final arguments to the prosecution and the defence, subsequent to which, the impugned judgment has been delivered.
5. Learned counsels for appellant - Parmanand Nishad submit that the conviction of the appellant is totally erroneous and without the evidence of prosecution beyond reasonable doubt. It is submitted that when the dead- body of the deceased was recovered, the same was found in the advanced 5 stage of de-composition regarding which, there is mention in the exhumation panchanama vide Ex.P/4, therefore, the identification of the body as that of Kamlesh Deshmukh vide Ex.P/1 is doubtful. Kalyan Singh (PW-1) has admitted in his cross-examination that the body was not capable to be identified from the face. Similar statement has been made in cross- examination by Raju Dhimar (PW-2), Vinod Kaushik (PW-6) and Manoj Kumar Deshmukh (PW-12) and the same is the statement of Dilip Kumar Deshmukh (PW-15). The photographs of the dead-body are also part of the challan according to which, the dead-body was not identifiable, and therefore, regarding the identification of the dead-body of deceased - Kamlesh Kumar Deshmukh is a totally erroneous conclusion drawn by the learned trial Court. It is further submitted, that the place where the dead- body was found was common place for cremation and burial and it was situated about 50 kms away from village Bori where the incident is alleged to have occurred which raises doubt on the prosecution story. It is submitted that the facts that were disclosed in the memorandum statement of the appellant were already disclosed before recording of the memorandum statement. According to the statement of Dilip Kumar Deshmukh (PW-15) in the cross-examination, he was present in the cremation ground of village Chingri at about 11:00 and 11:30 am on the date recovery was made. Therefore, the memorandum statement recorded of the appellant is full of doubts and leading to no disclosure of incriminating fact against the appellant, therefore, there is no evidence present on the basis of which the appellant could have been convicted and sentenced. Hence, appellant - Parmanand Nishad is entitled for acquittal.
Reliance has been placed on the judgments of Supreme Court in the case of Mustkeem alias Sirajudeen vs. State of Rajasthan, reported in 6 (2011) 11 SCC 724 and in the case of Mani vs. State of Tamil Nadu, reported in (2009) 17 SCC 273.
6. Learned counsel for appellant - Suresh Vishwakarma submits that conviction of appellant - Suresh Vishwakarma is unsustainable. Adopting the arguments of counsel for appellant - Paramanand Nishad, it is submitted that the identification of the body is that of the deceased is full of doubts; therefore, the death of Kamlesh Deshmukh itself is not proved. There is no witness of last seen together. The evidence of Panna Lal Soni (PW-5) about seeing the appellants with the deceased on 12.5.2010 is of no relevance as the deceased went missing on 19.5.2010.
Relying on the judgment of Supreme Court in the case of Rambraksh @ Jalim vs. State of Chhattisgarh, reported in (2016) 12 SCC 251, it is submitted that where the time gap, between the point of time when the accused and the deceased were seen last and when the deceased was found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible that is not the case here. It is also submitted that in the case of Bakshish Singh vs. State of Punjab, reported in AIR 1971 SC 2016, it was held that the recovery of dead-body by the police on the basis of the information given by the accused is not a conclusive circumstance though undoubtedly it raises a strong suspicion against him and therefore, the chain of circumstances must be proved against the accused. Hence, on this basis, appellant - Suresh Vishwakarma is entitled for benefit of doubt and his appeal may be allowed.
7. Learned State counsel opposes the submissions and submits that the prosecution has proved its case beyond reasonable doubt. The question 7 raised on the point of identification of the dead-body of the deceased is clearly answered by the identifying witness Kalyan Singh (PW-1), the father of the deceased. Raju Dhimar (PW-2) has himself stated about the identification of the dead-body of the deceased and he has stated in his cross-examination that the deceased was identified on the basis of the clothes worn by him and other features. A person who is known to the witness can be identified on the basis of the whole body features and the face alone is not a feature for identifying the dead-body. All the chain of circumstances has been clearly proved by the prosecution. Firstly, it was the memorandum statement of both the appellants which has led to discovery of the dead-body is a very strong circumstance against them. Secondly, the identification of the dead-body being of deceased - Kamlesh Deshmukh and thirdly, the appellants had been in association with the deceased until sometime before his death is another strong circumstance and also according to the postmortem report Ex.P/29 that the death of the deceased was homicidal completes the chain of circumstances against the appellants and therefore, they are not entitled for acquittal. It is a case of planned murder, therefore, none of the appeals is fit to be allowed, which are liable to be dismissed.
8. In reply, it is submitted by counsel for the appellants that the witnesses of memorandum and seizure are related to the deceased; therefore, they are interested witnesses, whose testimony should not have been relied upon by the trial Court. Hence, the appellants in both the cases are entitled for acquittal.
9. Heard counsel for both the parties and perused the documents 8 present on record.
10. There is no challenge present in this appeal that the person whose dead-body was found had died a homicidal death which has been proved by Dr. Shivnarayan Manjhi (PW-3) who has conducted the autopsy and his statement regarding opinion with respect to cause of death and nature of death is not at all being consider in cross-examination. Hence, there appears to be no reason to challenge on this point in this appeal. It is also not under challenge in this appeal that Kamlesh Deshmukh was missing and for that a missing report was lodged vide Ex.P/67 by Kalyan Singh (PW-1). Further, there is no such defence raised by the appellants that Kamlesh Deshmukh who is missing is alive.
11. Station House Officer of police station Bori, S.L. Sahu (PW-27) has stated that after lodging of missing report he has investigated the case. He has stated that appellant - Parmanand Nishad gave a memorandum statement vide Ex.P/2 narrating the whole story by way of confessional statement, in which a statement was made for discovery of the fact that the dead-body of Kamlesh Deshmukh is buried in cremation ground of village Chingri and that the motorcycle of the deceased is in possession of appellant - Parmanand Nishad. After recording the statement, a mobile phone, cash amount and about payment of some old debts were discovered. He has stated that appellant - Suresh Vishwakarma has also made similar statement making a discovery of the fact of the place where the dead-body of the deceased was to be found and also about the payment of cash debts, cash amount and other articles which included the wooden leg of a sleeping cot and a spade. Recording of this statement by the Investigation Officer 9 has been supported by Raju Dhimar (PW-2) and Asharam (PW-18) completely.
12. The objection raised by the appellants' counsel that both these persons are related to the deceased needs to be examined. Raju Dhimar (PW-2) has stated in cross-examination that he is the Sarpanch of village Bori, therefore, he is a respectable person and having responsibility of the affairs in his charge. According to the statements made by him in his deposition, he is not related either to the deceased or to the complainant - Kalyan Singh (PW-1). Asharam (PW-18) admits that the deceased was his brother-in-law, but there is no other statement made by him, so as to consider that he has any personal interest against the appellants to falsely implicate them. The statement in cross-examination made by Asharam (PW-
18) has some relevance that when he went to the police station, Sarpanch- Raju Dhimar (PW-2) was not present in the police station. There is no specific question put to him as to whether Raju Dhimar (PW-2) was present or not at the time when the memorandum statement was recorded and signed by him and the other witnesses, therefore, the statement about not seeing Raju Dhimar (PW-2) when he went to the police station is of no relevance. On the basis of this scrutiny, it is held that learned trial Court has not committed any error in holding proved that the statement of discovery and articles were made by appellant - Parmanand Nishad in memorandum vide Ex.P/2 and by appellant - Suresh Vishwakarma in memorandum vide Ex.P/3.
13. Investigating Officer, S.L. Sahu (PW-27) has stated that after recording of the memorandum statement of the appellants he sought permission for 10 exhumation of the dead-body from Sub-Divisional Manager, Durg and after obtaining such permission from the place identified by the appellants, the exhumation of dead-body from the cremation ground was made on 21.6.2010 in presence of the Executive Magistrate vide Ex.P/4. Witnesses of this exhumation proceedings are Raju Dhimar (PW-2), Manoj Kumar (PW-
12) & Shrawan Kumar (PW-19). All these witnesses have fully supported the statement of S.L. Sahu (PW-27). Executive Magistrate, C.P. Mishra (PW-31) was the person who was present when the exhumation proceedings were carried out. The Investigating Officer, S.L. Sahu (PW-27) stated that he recorded the un-numbered merg Ex.P/27A on the spot and also lodged First Information Report Ex.P/28. Panchanama Ex.P/20 was prepared and recovery of dead-body was also prepared by him. This statement is also supported by the other witnesses. He has further stated that he conducted the identification proceeding of the dead-body vide Ex.P/1. Kalyan Singh (PW-1) has stated that he had identified the dead- body as that of his son in examination-in-chief. In cross-examination, he has admitted that the dead-body was in decomposed condition and the body was not identifiable by face, but no suggestion was given to him that the body found was not of his son, therefore, the statement of identifying the body was of his son Kamlesh Deshmukh remains unrebutted.
14. Manoj Kumar Deshmukh (PW-12) has stated in examination-in-chief that the dead-body found was that of his elder brother Kamlesh Deshmukh. In cross-examination, he has admitted that the dead-body was in the stage of advanced decomposition and only the skeletal remains were present and the body was not identifiable. However, he has further stated that the body was identifiable on the basis of the clothes. Shravan Kumar Deshmukh 11 (PW-19) has stated that the dead-body has identified by the father, brother of the deceased and the villagers. He himself is not a person who was identified the dead-body. Raju Dhimar (PW-2) has stated that he was present at the time of exhumation and he also identified that the body of deceased - Kamlesh Deshmukh. In cross-examination, he has stated that the body recovered was not identifiable by face, however, the same was identified by the clothes worn by the deceased and other features. On making scrutiny of the evidence present regarding the identification of the dead-body and also by making appreciation, it is found that there is no specific rebuttal from the evidence that the dead-body was of the deceased and also that the identification of the dead-body was made by father Kalyan Singh (PW-1) and brother Manoj Kumar (PW-12). On the basis of overall features of deceased Kamlesh Deshmukh, with which these witnesses were fully acquainted and therefore, they had the capability to match the features and make identification. It is not being the defence of the appellant that Kamlesh Deshmukh is alive. On the basis of this evidence of identification of the deceased - Kamlesh Deshmukh, which inspires confidence, we are of the view that the learned trial Court has not committed any error in holding similarly that the dead-body of the deceased was identified properly and therefore, the evidence regarding the same was reliable. This recovery of dead-body had been at the instance of the appellants which has been clearly proved by the Investigating Officer, S.L. Sahu (PW-27), Kalyan Singh (PW-1), Raju Dhimar (PW-2) and Shravan Kumar Deshmukh (PW-19), therefore, subsequent to the identification of the dead-body, there is presence of strong circumstantial evidence against both the appellants, against which they have not made any statement of defence as to in what manner they had the knowledge regarding the place where the dead-body of 12 deceased - Kamlesh Deshmukh was to be found. The submission of the appellants' counsel raising the doubts on the investigation in this respect have no force.
15. The other evidence regarding the discovery of articles needs consideration. Investigating Officer, S.L. Sahu (PW-27) has stated about the recovery and seizure of money vide Ex.P/8 from Meena Sharma (PW-3) vide Ex.P/8 and recovery of money from other witnesses of Mathura Bai (PW-7) vide Ex.P/9, Jitendra Kumar (PW-8) vide Ex.P/10, Yashwant Thakur (PW-9) Ex.P/11 and from Murli Prasad Deshmukh (PW-16) vide Ex.P/12. Meena Sharma (PW-3) has stated that appellant - Parmanand Nishad had borrowed Rs.4,000/- from her and he returned the same on the date 24 th or 25th of the month in which the incident occurred which have been seized by the police vide Ex.P/8. Mathura Bai (PW-7) has also stated that appellant - Parmanand Nishad had borrowed Rs.5,000/- from her and he had repaid Rs.2,000/- to her which were seized by the police vide Ex.P/9. Jitendra Kumar (PW-8) has stated that appellant - Suresh Vishwakarma had purchased some grocery articles from his shop on credit and deposited Rs.1,000/- on 17.5.2010 which was seized from him by the police vide Ex.P/10. Murli Prasad Deshmukh (PW-16) had also stated that appellant - Suresh Vishwakarma had borrowed Rs.10,000/- from him which were repaid to him by appellant - Suresh Vishwakarma and the same were seized by the police vide Ex.P/12. This seizure even if it is considered as proved in that case the same is not leading to anywhere.
16. The confessional story of the appellants in their memorandum statements has the details as to the source of this money which was repaid by the appellants to the witnesses mentioned herein-above, but the same 13 cannot be read as evidence and there is no evidence in this respect collected in the investigation. Hence, recovery of the money at the instance of the appellants is not an evidence of any circumstance against them. Similarly, the recovery of the copy of HBN Dairies & Allied Ltd. on which their entries were recorded vide Ex.P/13 is also not leading anywhere.
17. The Investigating Officer, S.L. Sahu (PW-27) has further stated that he recovered and seized one wooden leg of a sleeping cot and a spade at the instance of appellant - Suresh Vishwakarma vide Ex.P/23 and his statement has remained rebutted in his cross-examination. Roshan Lal (PW-21) has supported this statement in his examination-in-chief but later on, when the seized article was shown to him as exhibit he denied his previous statement, therefore, he was declared hostile. Kampta Prasad (PW-25) has supported the statement of Investigating Officer, S.L. Sahu (PW-27) and he has remained firm on this statement in his cross-examination. Therefore, the seizure of the wooden leg and a spade vide Ex.P/23 can be held to be proved by the prosecution. The wooden leg of a sleeping cot had blood like stains as it is mentioned in receipt of exhibits vide Ex.P/62 and the same was sent for FSL examination. The FSL report is Ex.P/63, according to which, there was presence of blood on the wooden leg seized from appellant
- Suresh Vishwakarma. The question was put to appellant - Suresh Vishwakarma when examined under Section 313 of the Cr.P.C., but there is no explanation given for the same, hence, this is a circumstance present against appellant - Suresh Vishwakarma on which reliance has been placed by the learned trial Court regarding which, we do not find any error in the same.
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18. At the instance of appellant - Parmanand Nishad, a Hero-honda motorcycle having registration No.C.G. 07 2K 8067, one LG mobile phone having SIM of Reliance Company No.9303309523, a Videocon mobile having a SIM of Idea Company having No.9977047464 and some currency notes were seized vide Ex.P/25 which has been proved by the Investigating Officer, S.L. Sahu (PW-27). Roshan (PW-21) is a hostile witness. He has not supported the statement of Investigating Officer, S.L. Sahu (PW-27). Kampta Prasad Dilliwar (PW-25) has also denied the seizure of articles made vide Ex.P/24 and was declared hostile by the prosecution.
19. There is statement of discovery of motorcycle and cash amount from appellant - Parmanand Nishad vide Ex.P/24 regarding which, Investigating Officer, S.L. Sahu (PW-27) has given affirmative statement and that has remained un-rebutted in his cross-examination. Although the recovery proceeding has not been supported by Roshan (PW-1) and Kampta Prasad (PW-25) which, however, according to the ratio laid down by the Supreme Court in the case of Govindaraju @ Govind vs. State By Sriramapuram P.S. and Anr. reported in 2012(4) SCC 722 that mere absence of independent witnesses, when the Investigating Officer recorded the statement of the accused and the article was recovered pursuant thereto, is not a sufficient ground to discard the evidence of the Police Officer relating to recovery at the instance of the accused.
Reliance has also been placed on the judgment of Supreme Court in the case of State, Govt. of NCT of Delhi vs. Sunil, reported in 2001 (1) SCC 652. Hence, on this basis, the evidence of Investigating Officer, S.L. Sahu (PW-27) can be regarded as reliable and trustworthy as nothing has been found in his deposition on that basis, this evidence should be regarded. 15 The evidence of the Investigating Officer can be taken into consideration. On making appreciation of whole deposition, it is found that there is no such statement made that he had any personal interest against the appellant to falsely implicate them. This evidence regarding seizure of motorcycle and cash amount does not appear to be of much value, as the motorcycle belonged to Parmanand Nishad himself, however, regarding the cash amount explanation given for the same in the confessional statement made by him mentions something else. This question was put to Parmanand Nishad under Section 313 of the Cr.P.C. which he has simply denied and no claim was placed by him upon the amount seized from him. Hence, this may be regarded as circumstance as to in what manner appellant - Parmanand Nishad found the money in his possession and further, there is statement of the witnesses from whom he had borrowed some amount earlier and repaid the same on some day after the incident as per the statement of Meena Sharma (PW-3) and Mathura Bai (PW-7).
20. Similarly, there is statement of Murli Prasad (PW-16) about repayment of amount of Rs.10,000/- by appellant - Suresh Vishwakarma subsequent to which, he came to know about the incident of murder of the deceased. This question was also put to appellant - Suresh Vishwakarma in his examination under Section 313 of the Cr.P.C. to which he has clearly denied and neither offered any explanation, nor put any claim on the amount and these are the circumstances which show the suspicious conduct of the appellant subsequent to the offence of the appellant and the said conduct is a circumstance against them which has also been taken into consideration by the learned trial Court.
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21. After making close scrutiny of the evidence present in the case and finding that the circumstances have been clearly established according to which, it was at the instance of the appellants, the dead-body of the deceased was recovered and the body of the deceased was identified as that of Kamlesh Deshmukh who was missing. There being no plea of defence of the appellants that Kamlesh Deshmukh is alive and further, the report regarding presence of blood on the wooden leg of a sleeping cot seized from the appellants are the circumstances which point the finger of accusation only against the appellants. Therefore, we are of the view that the prosecution has successfully proved the charges against the appellants and there is nothing present in the whole case to hold or to consider otherwise. Hence, it were the appellants who had intentionally caused the death of the deceased and then buried the body of the deceased and thus, concealed the evidence of the offence of murder. Therefore, the offences under Sections 302 & 201 of the IPC are clearly made out against them. No error has been committed by the trial Court in convicting and sentencing the appellants by the impugned judgment. Therefore, we do not find any reason to interfere with the impugned judgment.
22. Hence, both these appeals are dismissed.
Sd/- Sd/-
(R.C.S. Samant) (Arvind Singh Chandel)
Judge Judge
Nimmi