Keshav Jangde @ Balla And Anr vs State Of Chhattisgarh on 30 January, 2023

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Chattisgarh High Court

Keshav Jangde @ Balla And Anr vs State Of Chhattisgarh on 30 January, 2023

1. Two appellants herein have preferred this criminal appeal under Section 374(2) of the CrPC questioning the impugned judgment passed by the 4th Additional Sessions Judge, Raipur in Sessions Trial No.53/2012, by which the appellants herein have been convicted for offences under Sections 302, 450 & 397 of the IPC Cr.A.No.681/2013 Page 2 of 20 and sentenced to undergo imprisonment for life and pay fine of ₹ 500/- each, in default, to further undergo simple imprisonment for seven days; rigorous imprisonment for five years and pay fine of ₹ 100/- each, in default, to further undergo simple imprisonment for seven days; and rigorous imprisonment for five years and pay fine of ₹ 100/- each, in default, to further undergo simple imprisonment for seven days, respectively.

2. Case of the prosecution, in short, is that in the intervening night of 28th & 29th October, 2011 at Village Murethi, Police Station Mandir Hasoud, the two appellants herein trespassed the house of complainant Jitaran Das Bande (PW-1) and snatched silver & gold articles from his wife Smt. Punni Bai and murdered her by deadly weapons, and thereby committed the offence. It is the further case of the prosecution that complainant Jitaran Das Bande (PW-1) and his wife were living at Village Murethi, they had eight married daughters and at the relevant point of time, all were married and staying in their maternal house and the appellants are their grand-sons in relation. Jitaran Das Bande (PW-1) - complainant, lodged dehati nalsi vide Ex.P-1 that on 28-10-2011, in the afternoon, he along with his wife was at home and at that time, his daughter Raj Kumari came there and after meeting them returned back to her home and thereafter, in the evening at about 4.00 p.m., after giving understanding to his wife to stay alert, he along with his nephew grand-sons i.e. the appellants herein went to Village Chapora to meet his daughter Cr.A.No.681/2013 Page 3 of 20 Munni Bai and thereafter, the appellants herein returned back to village and on 29-10-2011 at about 7.00 a.m., the complainant went from Village Chapora to Village Chote Donde to meet his another daughter Santoshi Bai and was staying in the house of Santoshi Bai; at 9.30 a.m. his son-in-law Chandrika Satnami (PW-17) came there and informed him that his mother-in-law Punni Bai is lying dead inside the house in the village as informed by Tekram Satnami (PW-9) & Karan Satnami over telephone. In the mean while, Rohit Satnami came on his motorcycle with whom Jitaran Das Bande (PW-1) came back to his house, when he reached to the house, he noticed that lights of his house were on, gate was open and his wife Punni Bai was lying dead on floor in front of the door of house, her ornaments were snatched and all the household items were scattered; it appeared to him that some unknown person had committed her murder after looting the mangal sutra and silver & gold ornaments of Punni Bai (deceased). On the basis of said dehati nalsi, dehati morgue intimation Ex.P-2 and morgue intimation Ex.P-19 were registered and thereafter, FIR Ex.P-20 was registered for offences punishable under Sections 302, 397 & 450 of the IPC. Thereafter, the appellants were apprehended and on the basis of memorandum statement of appellant No.1 Keshav Jangde vide Ex.P-26, the investigating officer has seized one bamboo stick and clothes which were wore by him at the time of incident vide Ex.P-27. On the basis of memorandum of Cr.A.No.681/2013 Page 4 of 20 appellant No.1, the looted ornaments i.e. one pair of silver anklet weighing 190-200 gm. amounting ₹ 1,000/- and one old mangal sutra weighing about 8.5 gm., which has 5 gold leafs weighing about 3.5 gm. were also seized from one Radhabai Sonwani (PW-3) vide Ex.P-10 and her statement was also recorded under Section 161 of the CrPC in which she has admitted that same were given to her by appellant No.1. Similarly, from the memorandum statement of appellant No.2 Dhanesh Jagnde vide Ex.P-28, seizure of one bullock cart's wheel's stick, which was used as weapon of offence, was made from one mud pit behind the school at Village Murethi and clothes worn by appellant No.2 at the time of incident were also seized vide Ex.P-30 in presence of Chandrika Dhritlahre (PW-17). Thereafter, identification of recovered articles was conducted by Additional Tahsildar Brijnath Sai (PW-14) in presence of Hariram Nirmalkar (PW-10) & Ajay Verma (PW-11) vide Exs.P-7 & P-21. Rajkumari Dhritlahre (PW-

8) - daughter of the deceased identified the looted articles vide Ex.P-21 and Shantilal Begani (PW-15) made statement before the court that the jewellery produced by the police was purchased from his shop and he also recognised the stolen ornaments. On the recommendation of panchas, postmortem of the dead body of the deceased was conducted by Dr. S.K. Bagh (PW-12) vide Ex.P-22 in which the deceased was found to have suffered eight injuries on vital parts of the body and cause of death was excessive bleeding from head and injuries, and death Cr.A.No.681/2013 Page 5 of 20 was stated to be homicidal in nature. As per the query report Ex.P-24, death could be caused by the murder-weapon seized from the two appellants.

3. Statements of the witnesses were recorded under Section 161 of the CrPC. After usual investigation, the accused / appellants were charge-sheeted for offences under Sections 302, 450 & 392 read with Section 397 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the 4 th Additional Sessions Judge, Raipur received the case on transfer for trial and for hearing and disposal in accordance with law.

4. The accused / appellants abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as nineteen witnesses and brought on record 36 documents Exs.P-1 to P-36 apart from Article 1 & Article A. The defence has examined none and exhibited no document.

5. The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellants under Sections 302, 450 & 397 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.

6. Mrs. Fouzia Mirza, learned Senior Advocate appearing on behalf of the appellants, would submit that the appellants have been convicted on the basis of circumstantial evidence of recovery of Cr.A.No.681/2013 Page 6 of 20 looted property which the prosecution has failed to prove beyond reasonable doubt. She would further submit that Jitaran Das Bande (PW-1) has stated in paragraphs 10 & 11 of his cross- examination that the recovered articles were earlier given to him by the police as such, recovery becomes highly doubtful. She would also submit that so far as identification of seized articles is concerned, Rajkumari Dhritlahre (PW-8) has given details and make of jewellery which is different from one which is said to be purchased by the deceased and it does not tally with the description given in Ex.P-9. Furthermore, memorandum statements of the appellants were recorded on 21-11-2011 and the test identification of jewellery was conducted on 15-12-2011 after delay of 24 days and as such, there is no explanation of delay in conducting the test identification parade which has no evidentiary value at all. Mrs. Fouzia Mirza, learned Senior Counsel, would rely upon the decisions of the Supreme Court in the matters of Sanwat Khan and another v. State of Rajasthan1, Hardyal Prem v. State of Rajasthan 2, State of Rajasthan v. Talevar and another3, Vijay Kumar v. State of Rajasthan4, Durga Burman Roy v. State of Sikkim5, Raj Kumar alias Raju v. State (NCT of Delhi) 6, Ashish Jain v. Makrand Singh and others7 and Tulesh Kumar Sahu v. State 1 AIR 1956 SC 54 2 1991 Supp (1) SCC 148 3 (2011) 11 SCC 666 4 (2014) 3 SCC 412 5 (2014) 13 SCC 35 6 (2017) 11 SCC 160 7 (2019) 3 SCC 770 Cr.A.No.681/2013 Page 7 of 20 of Chhattisgarh8 to buttress her submissions. According to the learned Senior Counsel, conviction recorded and sentences awarded deserve to be set aside and the appeal deserves to be allowed.

7. Per contra, Ms. Ruchi Nagar, learned Deputy Government Advocate appearing for the State / respondent, would support the impugned judgment and would submit that the prosecution has been able to prove the offences beyond reasonable doubt and there is overwhelming circumstantial evidence available on record to connect the two appellants with the offence in question and therefore they have rightly been convicted and minor discrepancies in the prosecution case cannot be a ground to reject the prosecution case, at all. Ms. Ruchi Nagar, learned State counsel, would rely upon the decisions of the Supreme Court in the matters of Sanjay alias Kaka v. State (NCT of Delhi)9 and Krishnamoorthy and another v. State by Inspector of Police and others 10 to buttress her submissions. Therefore, the appeal deserves to be dismissed.

8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

9. The first question for consideration would be, whether the death of deceased Punni Bai was homicidal in nature, which the trial 8 2022 LiveLaw (SC) 228 9 (2001) 3 SCC 190 10 (2007) 12 SCC 110 Cr.A.No.681/2013 Page 8 of 20 Court has answered in affirmative holding the death to be homicidal in nature relying upon the statement of Dr. S.K. Bagh (PW-12) who has proved the postmortem report Ex.P-22. In our considered opinion, the finding of homicidal death recorded by the trial Court based upon the medical evidence is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record. Even otherwise, the nature of death to be homicidal has not been seriously questioned on behalf of the appellants. We hereby affirm the aforesaid finding.

10. The next question for consideration would be, whether the appellants are authors of the crime, which the trial Court has recorded in affirmative and held that the appellants are authors of the crime.

11. It is the case of the prosecution that the appellants are grand- sons of the deceased (Punni Bai) & her husband Jitaran Das Bande (PW-1) and they have sold one piece of land for ₹ 7 lakhs and have distributed the sale proceeds to their daughters, but nothing was given to the present appellants to which they were objecting and having grudge against the deceased & her husband and on that account, the appellants are said to have snatched gold & silver ornaments and looted the deceased, and thereby committed the offence. It is stated by Jitaran Das Bande (PW-1) that one day prior to the date of offence, the two appellants herein had come to his house and have taken him to Village Chapora and after leaving him at Village Chapora, they Cr.A.No.681/2013 Page 9 of 20 had returned back to the village to watch dance. As such, it has been established that the appellants being close relatives of the deceased & Jitaran Das Bande (PW-1) were aware that the deceased is all alone in the house on the fateful day as all her daughters were married and living in separate villages and her husband Jitaran Das Bande (PW-1) had already gone to Village Chapora as it is the appellants themselves who had taken and left him in the house of his daughter Munni Bai at Village Chapora, and they were also having grudge for money not having been given to them after sale of the property which they wish to have being close relatives. It is admitted fact that the appellants are grand-sons of the deceased sister of complainant Jitaran Das Bande (PW-1).

12. Pursuant to the memorandum statement of appellant No.1 vide Ex.P-26, the investigating officer has seized bamboo stick and clothes which were worn by him at the time of incident vide Ex.P- 27 and pursuant to the memorandum statement of appellant No.2 vide Ex.P-28, one bullock cart's wheel's stick which was used to assault the deceased was recovered from a mud pit behind the school at Village Murethi vide Ex.P-29 and the clothes worn by appellant No.2 at the time of incident were also seized vide Ex.P-30 in presence of Chandrika Dhritlahre (PW-17) and they were sent for forensic examination to the FSL. In the query report Ex.P-24, Dr. S.K. Bagh (PW-12) has opined that the injuries suffered by the deceased could have been caused by the Cr.A.No.681/2013 Page 10 of 20 weapons of offence seized from both the appellants No.1 & 2. Though the weapons of offence were sent for chemical examination to the FSL, but for the reasons best known to the prosecution, FSL report has not been brought on record. However, considering the opinion of the doctor answering the query invited by the investigating officer and the memorandum & seizure duly proved by Chandrika Dhritlahre (PW-17), it is held that the weapons of offence seized from the possession of appellants No.1 & 2 were used in the commission of murder of deceased Punni Bai.

13. Identification of recovered ornaments from appellants No.1 & 2 was conducted by Additional Tahsildar Brijnath Sai (PW-14) who in his statement before the Court had clearly stated that before putting up the said ornaments before Jitaran Das Bande (PW-1)

- husband of the deceased, the same were duly covered and vide Ex.P-7, the ornaments were identified by Jitaran Das Bande (PW-1) and witnesses to Ex.P-7 - Hariram Nirmalkar (PW-10) & Ajay Verma (PW-11) have also stated that Jitaran Das Bande (PW-1) has identified the ornaments mangal sutra and silver anklet. Similarly, vide proceeding Ex.P-21, some ornaments were identified by Rajkumari - daughter of the deceased, in presence of Hariram Nirmalkar (PW-10) & Ajay Verma (PW-11). The Executive Magistrate, who has conducted the identification proceeding i.e. Brijnath Sai, Additional Tahsildar, has been examined as PW-14. Though number of questions have been Cr.A.No.681/2013 Page 11 of 20 put to him, but nothing has come out to hold that the identification proceeding is not in accordance with law. The argument based on delay in conducting the identification proceeding deserves to be noted for rejection as investigating officer Vikas Thakur (PW-

19) has explained the delay in conducting the identification proceeding on the ground of being remained busy in investigation of offences. Similarly, we do not find any merit in the argument based on paragraphs 1 & 11 of the evidence of Jitaran Das Bande (PW-1), of the learned Senior Counsel.

14. Now, the next submission on behalf of the appellants is that even if the seized articles were owned by the deceased and were found in possession of the appellants, they can only be convicted for offence under Section 379 of the IPC, but cannot be convicted for offence under Section 302 of the IPC, whereas it is the case of the State / respondent that where murder and robbery are proved to have been integral parts of one and the same transaction, consequently, the presumption under Illustration (a) to Section 114 of the Evidence Act would be drawn that it is only the appellants who not only committed the murder of the deceased but also committed robbery of her gold and silver ornaments which form part of the same transaction, as the prosecution has led sufficient evidence to connect the appellants with the commission of the offence in question.

15. In order to consider the submission, it would be appropriate to notice Illustration (a) to Section 114 of the Indian Evidence Act, Cr.A.No.681/2013 Page 12 of 20 1872, which states as under: -

"114. Court may presume existence of certain facts.

--The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations The Court may presume--

(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;"

16. In order to draw an inference that fact in dispute has been established, there must exist, on record, some direct material facts or circumstances from which such inference could be drawn. Inference of proof of that fact could be drawn from given objective facts, direct or circumstantial (see R. Puthunainar Alhithan, etc. v. P.H. Pandian and others11).

17. Furthermore, the illustrations appended to the aforesaid section are not exhaustive but merely illustrate the principle underlying the main provision. The presumption to be drawn under that provision is one of fact and whether it should be drawn or not in a particular case must depend upon the facts of that case.

18. In the matter of Tulsiram Kanu v. The State12, while considering Illustration (a) appended to Section 114 of the Evidence Act, their Lordships of the Supreme Court have held that the presumption 11 AIR 1996 SC 1599 12 AIR 1954 SC 1 Cr.A.No.681/2013 Page 13 of 20 permitted to be drawn under Section 114, illustration (a), Evidence Act, has to be read along with the important time- factor. If ornaments or things of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. Their Lordships observed in paragraph 7 as under: -

"7. Apart from this confession, the judgment of the High Court is based on the identification of the gold ornaments. The Sessions Judge recognised that if the ornaments had been proved to have been the property of the deceased it would have been possible to infer that the accused was the person who committed the murder and robbed the murdered man. In our opinion, this reasoning, under the circumstances of the case, is unsound. The alleged murder took place on 28-5-1949 and assuming that the ornaments were traced to the accused at the end of October 1949, no legitimate inference could be drawn about the appellant being the murderer of the deceased. The important factor which appear to have been overlooked is that five months had elapsed between the date of the alleged murder and the tracing of the ornaments. The presumption permitted to be drawn under S. 114, illu. (a), Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. The criticism applied equally to the reasoning of the High Court for its conclusion.

19. Thereafter, in the matter of Wasim Khan v. The State of Uttar Cr.A.No.681/2013 Page 14 of 20 Pradesh13, the Supreme Court posed a question for consideration, whether the evidence in the case establishes that the appellant murdered and robbed Ram Dularey and their Lordships answered the question that recent and unexplained possession of stolen articles can well be taken to be presumptive evidence of the charge of murder as well as robbery.

20. Thereafter, in the matter of Alisher v. State of Uttar Pradesh 14, it has been held by their Lordships of the Supreme Court that illustration (a) to Section 114 of the Evidence Act makes it plain that the time factor has a material bearing and the Court must keep it in view before it can draw the presumption in accordance with the illustration. It was further held that the presumption can be raised if a person is found to be in possession of stolen goods soon after the theft. If, however, a long period elapses between the date of the theft and the date on which a person is found to be in possession of the stolen articles, the Court would not be justified in drawing the presumption in accordance with illustration (a) to Section 114. It was also held that the question as to how much period should elapse after the theft in order to rule out the presumption under illustration (a) would depend on the nature of the stolen article and the facts of each case.

21. In the matter of Baiju alias Bharosa v. State of Madhya Pradesh15, the Supreme Court following the decisions in Wasim Khan (supra) and Alisher (supra) and while dealing with the

13 AIR 1956 SC 400 14 (1974) 4 SCC 254 15 (1978) 1 SCC 588 Cr.A.No.681/2013 Page 15 of 20 presumption to be drawn under illustration (a) to Section 114 of the Evidence Act has held that it is a matter which depends on the evidence and circumstances of each case. Further, their Lordships pointed out the following factors in order to attract illustration (a) to Section 114 of the Evidence Act: -

1. The nature of the stolen article,

2. the manner of its acquisition by the accused,

3. the nature of the evidence about its identification,

4. the manner in which it was dealt with by the accused,

5. the place and circumstances of its recovery,

6. the length of the intervening period, and

7. the ability or otherwise of the accused to explain his possession, are factors which have to be taken into consideration in arriving at a decision.

22. Thereafter, in the matter of Gulab Chand v. State of M.P. 16, following the decision of the Supreme Court in Tulsiram Kanu (supra), their Lordships have held that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act has to be read along with the "important time factor" and if the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted, but if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case.

16 (1995) 3 SCC 574 Cr.A.No.681/2013 Page 16 of 20

23. Similarly, in the matter of George v. State of Kerala17, relying upon the earlier decision in Baiju (supra), the Supreme Court while dealing with the phrase "soon after" employed in illustration

(a) to Section 114 of the Evidence Act held as under: -

"7. ... The possession of the articles which had been duly identified by the witnesses as belonging to the deceased were found in his possession within less than 24 hours of the incident. It would lead to inference under Section 114(a) of the Evidence Act that the appellant has himself committed the robbery, an offence punishable under Section 392 IPC. According to the statement of PWs 10, 12 and 13 the deceased had been saying "take whatever you want, leave me alone", which shows that he must have been under some apprehension or threat thereof."

24. The Supreme Court in the matter of Earabhadrappa alias Krishnappa v. State of Karnataka 18 has held that it is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings particularly articles of personal use in the family.

25. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court to invoke Illustration (a) to Section 114 of the Evidence Act, it is quite vivid that though the appellants were grand-sons of the deceased & Jitaran Das Bande (PW-1) (being grand-sons of sister of PW-1) and the appellants had visiting terms with deceased Punni Bai & Jitaran Das Bande (PW-1), but they were unhappy about the money not being given to them after 17 (2002) 4 SCC 475 18 (1983) 2 SCC 330 Cr.A.No.681/2013 Page 17 of 20 alienating the land and they were having close-eye on the property of Jitaran Das Bande (PW-1) and on the relevant date and time they had left the husband of the deceased - Jitaran Das Bande (PW-1) to his daughter's place (Munni Bai) at Village Chapora and returned back to the village and knew that the deceased is all alone on the fateful day and is staying that night separately. On 29-10-2011, Jitaran Das Bande (PW-1) went from Village Chapora to Village Chote Donde to meet his another daughter Santoshi Bai and was staying there; in the morning, he was informed by his son-in-law Chandrika Satnami (PW-17) that his mother-in-law Punni Bai is lying dead inside the house in the village, then he came back to his village and finding the things in his house not in order made dehati nalsi and the wheels of investigation started running upon which the appellants were taken into custody and their memorandum statements were recorded on 21-11-2011 at 12.05 p.m. & 12.35 p.m. pursuant to which silver & gold ornaments were seized from the place shown by them and same were recovered, and recovery was made from appellant No.1 at 1.45 p.m. and from appellant No.2 at 1.10 p.m.. The seized ornaments were recovered immediately after the appellants were apprehended and memorandum statements were recorded on 21-11-2011. Thus, ornaments of the deceased were found in possession of the appellants soon after the murder and the memorandum statements of the appellants were recorded and therefore it satisfies the requirement of important Cr.A.No.681/2013 Page 18 of 20 time factor envisaged by the Supreme Court in Tulsiram Kanu (supra) to invoke Illustration (a) to Section 114 of the Evidence Act, as the ornaments were duly identified. Possession of the articles of the deceased has duly been proved and identified by the husband of the deceased - Jitaran Das Bande (PW-1) and daughter of the deceased - Rajkumari Dhritlahre (PW-8) as belonging to the deceased. This would meet the requirement of Illustration (a) to Section 114 of the Evidence Act and as such, murder and robbery are proved to be integral parts of one and the same transaction and therefore the presumption permitted under Section 114, Illustration (a), of the Evidence Act, would apply and it is held that the trial Court has rightly held that it is the appellants who not only committed the murder of deceased Punni Bai but also robbed her gold and silver ornaments which form part of one and the same transaction for which the prosecution has led ample evidence to connect the appellants with the offence in question.

26. The Supreme Court in Earabhadrappa alias Krishnappa (supra) in the like case it has been held that denial by the accused where the accused has no satisfactory explanation to offer for his possession of stolen articles, as in this case no satisfactory explanation has been offered, rather it has been denied, their Lordships held that false denial by itself is an incriminating circumstance (see paragraph 13).

27. The judgments relied upon by the learned Senior Counsel in the Cr.A.No.681/2013 Page 19 of 20 matters of Sanwat Khan (supra), Hardyal Prem (supra), Talevar's case (supra), Vijay Kumar (supra), Durga Burman Roy (supra), Raj Kumar alias Raju (supra), Ashish Jain (supra) and Tulesh Kumar Sahu (supra) are clearly distinguishable and not applicable to the facts of the present case in light of the finding reached herein-above.

28. In view of the aforesaid discussion, we are of the opinion that the prosecution has been able to prove the motive of the appellants to commit the offence on account of having an evil eye on the property of their grand-mother. Furthermore, pursuant to the memorandum statements of the appellants, gold & silver articles were seized and duly identified by Jitaran Das Bande (PW-1) and Rajkumari Dhritlahre (PW-8) in the test identification conducted by Brijnath Sai (PW-14) - Executive Magistrate, to be belonging to the deceased. The appellants have failed to offer explanation about the ornaments which were recovered and have given false explanation which itself is an incriminating circumstance.

29. In that view of the matter, the trial Court is absolutely justified in holding that it is the appellants who are the authors of the crime and as such, the trial Court is justified in convicting the appellants under Sections 302, 450 & 397 of the IPC.

30. For the foregoing reasons, we do not find any merit in this appeal, it deserves to be and is accordingly dismissed. The appellants are reported to be on bail. Their bail bonds shall stand forfeited and they are directed to surrender forthwith to Cr.A.No.681/2013 Page 20 of 20 serve out the remaining sentences failing which they shall be apprehended in accordance with law.

             Sd/-                                      Sd/-
       (Sanjay K. Agrawal)                   (Rakesh Mohan Pandey)
            Judge                                     Judge

Soma

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