Chattisgarh High Court
Bhagirathi vs State Of Madhya Pradesh on 8 March, 2010
Author: T.P.Sharma
Bench: T.P.Sharma
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No.851 of 1992
Bhagirathi
...Petitioners
Versus
State of Madhya Pradesh
...Respondents
(CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL
PROCEDURE, 1973)
! Mr.Abhay Tiwari, counsel for the appellant.
^ Mr.Ashish Shukla, Government Advocate for the
State/respondent.
HONBLE MR.T.P.SHARMA, HONBLE MR.R.L.JHANWAR, JJ.
Dated: 08/03/2010 : Judgment JUDGMENT) (Delivered on 8th March, 2010) The judgment of the Court was delivered by T.P.Sharma, J.:-
1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 20.5.1992 passed by the Second Additional Sessions Judge, Raigarh, in Sessions Trial No.35/92, whereby & whereunder learned Second Additional Sessions Judge after holding the appellant guilty for commission of culpable homicidal death of deceased Aghnuram amounting to murder, convicted under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay fine of Rs.200/-, in default of payment of fine to further undergo rigorous imprisonment for two months.
2. Conviction is impugned on the ground that without there being any clinching and credible evidence sufficient for conviction of the appellant, learned Second Additional Sessions Judge has convicted and sentenced the appellant as aforementioned and thereby committed illegality.
3. Case of the prosecution, in brief, is that appellant a carpenter who was preparing vyas gaddi (furniture) at the instance of deceased Aghnu Ram, on the fateful day of 24.12.91 at about 7 a.m., Aghnuram went to the house of the appellant, the appellant assaulted him by axe when he and the deceased were present inside the house of the appellant and thereafter the appellant fled from the house after closing door. At about 9 a.m., Dwitiya Bai (PW-3) wife of the deceased along with Baran Lal (PW-2), son of the deceased Aghnuram went to the house of the appellant, door was closed, they open the door and went inside the room where they saw the dead body of the deceased stand with blood, then they came back and intimated the incident to Kalyan Yadav, Rikhi Ram Samaru, Kotwar Girdhari and other persons, they searched the appellant, but he was not present, then Ghasiram (PW-1) younger brother of the deceased went to the police station and lodged the F.I.R.
vide Ex.P/1 and merg intimation vide Ex.P/2. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses vide Ex.P/3, prepared inquest over the dead body of the deceased vide Ex.P/4. Bloodstained soil, plain soil and one bloodstained bed sheet were recovered from the spot vide Ex.P/6. One vyas gaddi (furniture) was seized vide Ex.P/7 from the spot. Dead body of the deceased was sent for autopsy to Primary Health Centre, Gharghoda vide Ex.P/15. Autopsy was conducted by Dr.N.C.Rai (PW-11) vide Ex.P/21 and found following injuries over the body of the deceased,
i) One incised wound over head, size 9 cms. x 1 cm. x 3 cms.
ii) Two incised wounds over neck, size 7 cms. x done deep and 6 cms. x bone deep Muscles and blood vessels were found cut. Injuries were ante-mortem. Mode of death was shock as a result of excessive bleeding and death was homicidal in nature. During the course of investigation, the appellant was taken into custody, he made disclosure statement of axe hidden in well and clothes vide Ex.P/8. Clothes of the appellant were seized at his instance vide Ex.P/9. One axe was recovered from well at the instance of the appellant vide Ex.P/10. Nails of the appellant were cut and seized vide Ex.P/12. Sealed clothes of the deceased were seized vide Ex.P/13. Spot map was prepared by the investigating officer vide Ex.P/23. Patwari also prepared spot map vide Ex.P/11. Seized articles were sent for chemical examination vide Ex.P/17.
4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code') and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Gharghoda, who in turn committed the case to the Court of Sessions, Raigarh, from where the Second Additional Sessions Judge, Raigarh received the case on transfer for trial.
5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 13 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question.
6. After affording opportunity of hearing to the parties, the Second Additional Sessions Judge has convicted and sentenced the appellant as aforementioned.
7. We have heard Mr.Abhay Tiwari, counsel for the appellant and Mr.Ashish Shukla, Government Advocate for the State, perused the judgment impugned and record of the Court below.
8. Learned counsel for the appellant vehemently argued that in the present case, the conviction is based on circumstances, but the circumstances adduced on behalf of the prosecution are not sufficient for drawing definite conclusion of the guilt of the appellant. The evidence creates grave doubt upon the story of the prosecution. The evidence of Ghasiram (PW-1) reveals that house of the appellant was closed from outside, then he along with Baran Lal (PW-2) open the door and went inside the room and again open door of inner room and saw the injured dead body of the deceased. It shows that Ghasiram (PW-
1) and Baran Lal (PW-2) were present near dead body of the deceased. There was no propriety for opening the door which was closed from outside by the stranger not owner and occupier of the house. It shows the involvement of Ghasiram (PW-1) and Baran Lal (PW-2) in the crime in question.
9. On the other hand, learned State counsel supported the judgment impugned and argued that the prosecution has proved its case beyond all shadow of doubt by adducing chain of circumstantial evidence sufficient for drawing definite conclusion of the guilt of the appellant.
10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of ante-mortem fatal injuries of deceased Aghnuram has not been substantially disputed by the appellant, on the other hand, also established by the evidence of Dr.N.C.Rai (PW-11) and autopsy report Ex.P/21 which reveals that three injuries were found over head and neck of the deceased and death was homicidal in nature.
11. As regards the complicity of the accused/appellant in the crime in question is concerned, the conviction is based on chain of following circumstances,
i) The appellant was preparing vyas gaddi (furniture) in his house at the instance of deceased Aghnuram,
ii) At about 7 a.m., the appellant came to the house of the deceased and took the appellant with him for getting vyas gaddi (furniture) in the presence of Dwitiya Bai (PW-3), wife of the deceased,
iii) On 24.12.91 at about 7 a.m., the deceased proceeded from his house to the house of the appellant,
iv) The deceased did not come back to his house till 9 a.m.,
v) Baran Lal (PW-2), son of the deceased and Ghasiram (PW-
3), younger brother of the deceased went to the house of the appellant for calling the deceased,
vi) Mother and other members were not present in the house of the appellant on the date of incident,
vii) At the time of incident, the appellant was going towards Gharghoda in hurry,
viii) Dead body of deceased Aghnuram was found inside the house of the appellant in injured condition.
12. Dwitiya Bai (PW-3), wife of deceased Aghnuram, has deposed in her evidence that the appellant was preparing one vyas gaddi at the instance of her husband. On the date of incident at morning, she was working in her house and preparing tea and breakfast, at that time, the appellant came to her house and told to her husband that he has prepared vyas gaddi and also told for getting the same, then her husband along with the appellant went towards the house of the appellant, but her husband did not come back till 8-9 a.m., then she sent her son Baran Lal (PW-2) and bother-in-law (devar) Ghasiram (PW-3) to the house of the appellant. Both witnesses came back and told that dead body of her husband was lying in the house of the appellant. She also went to the house of the appellant and finally Ghasiram (PW-1) lodged F.I.R. (Ex.P/1) and merg intimation (Ex.P/2). Ghasiram (PW-
1) and Baran Lal (PW-2) have corroborated the evidence of Dwitiya Bai (PW-3) and have deposed that when they went to the house of the appellant, house was closed from outside, they open chain (sankal) and went inside and again open chain (sankal) of inner room where they saw bloodstained dead body of deceased with profuse bleeding, then they narrated the incident to Rikhi, Kalyan Yadav, Samaru and Girdhari Kotwar, they also came to the house of the appellant, the appellant was not present in his house, then Ghasiram (PW-1) went to the police station and lodged the F.I.R. and merg intimation vide Exs.P/1 and P/2. Kalyan (PW-4) and Samaru (PW-7) have corroborated the evidence of Ghasiram (PW-1). Sadh Mati (PW-
9), mother of the appellant, has deposed in her evidence that she along with the appellant and her one daughter Gouri Bai were residing in the same house in different room. Wife of the appellant had left the appellant since last one year. She has specifically deposed that on the date of incident, she went for collecting fuel, at that time, she has not seen the deceased, but when she came back to her house, then she saw dead body of Aghnuram in the room of the appellant and the appellant was not present in his house. She has not supported the case of the prosecution and the prosecution has declared her hostile. In para 2 of her cross-examination, she has admitted that when she went for collecting fuel, at that time, only the appellant was present in his house and he was preparing some furniture by carpenter axe (basula) at about 8- 9 p.m. In para 4 of her cross-examination, she has further deposed that first time she came with fuel which she kept, but she did not enter into the house and kept the same near the house and again went back for collecting fuel. Dokri (PW-8), neighbour of the appellant, has deposed in his evidence that on the date of incident he was sitting in front of his house, he saw that the appellant went from his house towards Gharghoda in hurry. Thereafter, persons gathered near the house of the appellant and dead body of the deceased was found inside the house of the appellant.
13. Defence has cross-examined Dwitiya Bai (PW-3) in detail, but has not been able to elicit anything in her cross- examination to discredit her statement up to the extent that the appellant came to her house and took her husband to his house for giving him vyas gaddi, but her husband was not come back alive and was found dead in the house of the appellant. The evidence of Sadh Mati (PW-9), mother of the appellant, clearly reveals that when she went for collecting fuel at morning at 8-9 a.m., the appellant was present alone in his house and he was working in his house and afterwards she came back, then she found dead body of the deceased in the room of the appellant. The evidence of Dokri (PW-8) also reveals that on the date of incident at morning, the appellant went towards Gharghoda in hurry and thereafter, he saw dead body of the deceased inside the room of the appellant. Defence has cross- examined Ghasiram (PW-1) and Baran Lal (PW-2). In para 4 of cross-examination of Ghasiram (PW-1), he has admitted that the appellant used to go out for work, but there was no fixed time. He has admitted that Shanti Bai and Dokri were neighbours of the appellant. In para 5, he has admitted that when they went to the house of the appellant, then they saw chappal of deceased Aghnuram in front of room of the appellant which was closed from outside by chain (sankal), then they open chain (sankal) of the room, dead body of deceased Aghnuram was lying inside the room. He has deposed in para 6 of his cross-examination that he has also stated about presence of chappal in his statement recorded by the police under Section 161 of the Code, though it does not find place in Ex.D/1. Defence has cross-examined Baran Lal (PW-2) in detail, but he has also corroborated the evidence of Ghasiram (PW-1). He is struck in his version. F.I.R. Ex.P/1 and merg intimation Ex.P/2 reveal that doors of the house of the appellant were not closed from the outside or inside, but was simply closed (HkhM+k Fkk) which they pushed and went inside. The conduct of Ghasiram (PW-1) and Baran Lal (PW-2), brother and son of the deceased, was not natural. After having definite information that the appellant took the deceased with him to his house, they have gone to the house of the appellant and when door was simply closed, then they pushed and went inside the house where they saw the deceased in injured condition and the appellant was not present there. This part of the evidence has gone unchallenged in their cross- examinations.
14. By adducing the aforesaid witnesses, the prosecution has proved the following chain of circumstances,
i) The appellant was preparing vyas gaddi (furniture) in his house at the instance of deceased Aghnuram,
ii) At about 7 a.m., the appellant came to the house of the deceased and took the appellant with him for getting vyas gaddi in the presence of Dwitiya Bai (PW-3), wife of the deceased,
iii) On 24.12.91 at about 7 a.m., the deceased proceeded from his house to the house of the appellant,
iv) The deceased did not come back to his house till 9 a.m.,
v) Baran Lal (PW-2), son of the deceased and Ghasiram (PW-
3), younger brother of the deceased went to the house of the appellant for calling the deceased,
vi) Mother and other members were not present in the house of the appellant on the date of incident,
vii) At the time of incident, the appellant was going towards Gharghoda in hurry, If the aforesaid circumstances are considered together, then same would be sufficient for hypothesis of the guilt of the appellant and exclude possibility of commission of offence by any other persons or innocency of the appellant.
15. After appreciating the evidence available on record, the Court below has convicted and sentenced the appellant as aforementioned. The conviction is based on credible, clinching and legal evidence sustainable under the law. The Court below has also awarded minimum sentence prescribed under the law.
16. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned warranting any interference. The appeal being devoid of merit is liable to be dismissed and is hereby dismissed.
JUDGE JUDGE