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2003 DIGILAW 81 (CHH)

BHANU KANWAR v. STATE OF chhattisgarh

2003-05-07

K.H.N.KURANGA, L.C.BHADOO

body2003
L. C. BHADOO, J. ( 1 ) THE accused/appellant has preferred this criminal appeal under Section 374 (2) of the Criminal procedure Code being aggrieved by the judgment dated 24th February, 2000, of conviction passed by the First Additional Sessions judge, Durg, by which the learned additional Sessions Judge after holding the accused/appellant guilty under Sections 302 and 201 of the Indian Penal Code sentenced him to undergo imprisonment for life under section 302 of the I. P. C. and to undergo R. I. for seven years and pay a fine of Rs. 1,000/-in default of payment of fine to further undergo R. I. for six months under Section 201 of the I. P. C. Both the sentences were directed to run concurrently. ( 2 ) THE relevant prosecution story for the disposal of this criminal appeal is that de ceased Tikeshwari Bai was from Sahu Samaj and accused/appellant Bhanu Kanwar was from Kanwar Samaj. They fell in Jove with each other and on account of their physical relations deceased Tikeshwari Bai became pregnant. Panchayat meetings of both the castes were convened and both the deceased and the accused/appellant were outcasted by their respective castes. Thereafter, the accused/appellant and the deceased started living together separately. First of all they started residing in the house of Zarhu Kewat, thereafter they went to the house of Leval baret and in the last they started residing in the house of the uncle of the accused/ appellant namely, Dhaneshram Kanwar. After some time- deceased Tikeshwari Bai all of a sudden was not visible and accused/ appellant Bhanu Kanwar had not informed any one about this fact. Before her disappearance, deceased Tikeshwari Bai met her younger sister Gangotri Bai on Friday and in that meeting, the deceased informed gangotri Bai that her husband is digging a pit for the construction of bath room. When the deceased was not visible for another 3-4 days, gangotri Bai sister of the deceased and Udsiya Bai mother of the deceased enquired about the whereabouts of deceased tikeshwari Bai from the accused/appellant. On enquiry, he informed that the deceased has left his house after taking away the money, Jhabua (a basket for carrying things)and other items. On this, Udsiya Bai mother of the deceased approached the Sarpanch, gram Panchayat, Bhatagaon namely, dwarika Prasad who advised her to report the matter to the Police Station. On enquiry, he informed that the deceased has left his house after taking away the money, Jhabua (a basket for carrying things)and other items. On this, Udsiya Bai mother of the deceased approached the Sarpanch, gram Panchayat, Bhatagaon namely, dwarika Prasad who advised her to report the matter to the Police Station. When udsiya Bai was going to lodge the report in the Police Station accused/appellant Bhanu kanwar requested her not to report the matter to the Police, but when she along with kotwar Devendra Das went to lodge the report before the Police Station the accused/ appellant left the village. Udsiya Bai lodged the missing report of deceased Tikeshwari bai in the police Station: Gunderdehi. The accused/appellant while leaving the village handed over a letter Ex. P-23 to his friend dileshwar and requested him to handover the letter to Village Sarpanch Dwarika prasad, in which he had written that the whereabouts of his wife Tikeshwari Bai has been traced out, she is at present in the house of one of her friends at Balod, he is going to take his wife from Balod and from there theywill go to some other place for the purpose of earning the livelihood. Dileshwar handed over that letter Ex. P- 23 to Dwarika prasad. One day, Keshav Gardiya informed village Kotwar, Udsiya Bai mother of the deceased, Sarpanch Dwarika Prasad and other persons of the village that some foul smell is coming out from the house and small garden of accused/appellant Bhanu Kanwar which is adjacent to his house. On the report of Keshav Gardiya, Kotwar Devendra. Das, Sarpanch Dwarika Prasad, mother of the deceased Udsiya Bai and other persons went to the house of Bhanu Kanwar where the accused along with his wife Tlkeshwari bai used to reside, the house was locked but the smell was emanating from the house. Therefore, Kotwar Devendra Das and sarpanch Dwarika Prasad went to the police Station: Gunderdehi for informing about the same. On this, Sub-Inspector Bhishma dev along with the Kotwar and the Sarpanch came on the scene and inspected. The smell was emanating from a heap of dung cakes and on removing the dung cakes the smell increased. Sub-Inspector bbhishma Dev made an application Ex. On this, Sub-Inspector Bhishma dev along with the Kotwar and the Sarpanch came on the scene and inspected. The smell was emanating from a heap of dung cakes and on removing the dung cakes the smell increased. Sub-Inspector bbhishma Dev made an application Ex. P-15 before the executive Magistrate, Gunderdehi and on that application after getting the permission he came along with the Naib Tehsildar on the spot and on digging the spot the dead body of deceased Tikeshwari Bai was detected which was identified by Kotwar devendra Das and mother of the deceased udsiya Bai. On the information of Kotwar devendra Das merg intimation was registered and thereafter in the presence of the witnesses, the Panchanama of the dead body ex. P-6 was prepared. The postmortem of the dead body of deceased Tikeshwari Bai was got conducted from the Public Health centre, Gunderdehi through letter Ex. P-16. the postmortem was conducted by Dr. Arvind nirlwar and Dr. Ulhas Gonade. They gave the report Ex. P-25. From the scene of the occurrence, in the presence of the witnesses, broken pieces of bangles, simple soil and the blood stained soil were taken into possession by the Investigating Officer through memorandum Ex. P-12. The house of the accused/appellant was opened In the presence of the witnesses and one blood stained shawl, one blue blanket, pillow cover, one cloth and one spade were taken into possession through Ex. P. 13. All these articles were sent for chemical examination. The patwari prepared the site plan Ex. P-2. The letter written by accused/appellant Bhanu kanwar which was handed over to Sarpanch dwarika Prasad by Dileshwar was also taken into possession by Ex. P-4. During the investigation, accused/appellant Bhanu kanwar was arrested and on enquiry he gave the information Ex. P-27 under section 27 of the Evidence Act and on his information one purse, silver rings and the white shining ear rings were taken into possession through Ex. P-8. In the presence of the witnesses, the sample handwriting of the accused/appellant was taken through Ex. P-10. The blood stained lungi and full sleeve shirt of the accused/appellant was taken into possession through Ex. P-11. The recovered items were got identified by mother of the deceased Udsiya Bai before the Naib tehsildar through Ex. P-8 and Ex. P-14. Dehati Nalishi Ex. P-17 was written and thereafter, the case was registered. The letter Ex. P-10. The blood stained lungi and full sleeve shirt of the accused/appellant was taken into possession through Ex. P-11. The recovered items were got identified by mother of the deceased Udsiya Bai before the Naib tehsildar through Ex. P-8 and Ex. P-14. Dehati Nalishi Ex. P-17 was written and thereafter, the case was registered. The letter Ex. P-23 along with the sample handwriting of the accused/appellant was sent for opinion of the handwriting expert and the opinion of the expert was received. After completion of the investigation, the challan was filed against the accused/appellant under Sections 302 and 201 of the I. P. C. ( 3 ) THE learned Additional Sessions Judge framed the charges against the accused/ appellant who denied the same. In order to prove the offence against the accused/appellant the prosecution in all examined 14 witnesses. The statement of the accused/ appellant was recorded under Section 313 of the Cr. P. C. in which either he denied the statement of the witness or he said that he does not know anything and in the last he said that he is innocent. He had not offered any explanation about the circumstances and evidence appeared against him. He simply denied the allegations and said that he is innocent. ( 4 ) WE have heard the learned counsel for the accused/appellant and the learned govt. Advocate for the State/respondent. ( 5 ) IN this case, there is no direct evidence, no eye-witness and the whole case rests on the circumstantial evidence. In order to prove the offence against the accused person based on the circumstantial evidence it is settled law that before the Court can record conviction, it must satisfy itself that circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. ( 6 ) NOW, we shall examine whether the circumstantial evidence adduced in the present case in order to prove the offence against the accused/appellant is up to the expected standard as enunciated in the above principle laid down by the Hon'ble apex Court. ( 6 ) NOW, we shall examine whether the circumstantial evidence adduced in the present case in order to prove the offence against the accused/appellant is up to the expected standard as enunciated in the above principle laid down by the Hon'ble apex Court. ( 7 ) AS far as the question of homicidal nature of the death of deceased Tikeshwari bai is concerned, learned counsel for the accused/appellant had not disputed this fact. In this case, the postmortem of the dead body of the deceased was conducted by pw-13 Dr. Arvind Nirlwar and Dr. Ulhas gonnade. They prepared the postmortem report Ex. P-25 and noticed that no injury was found on the body of the deceased. On account of the putrefaction of the body, they said that no definite opinion can be given for the cause of the death of the deceased. But there is evidence available on the record that the deceased was missing from the residence of the accused/appellant and even after enquiry by the sister and mother of the deceased, the accused/appellant did not disclose the fact. Thereafter in the first instance when the mother of the deceased decided to report the matter to the Police he informed her that deceased Tikeshwari Bai has left his house after taking money and her whereabouts are not known. When the mother of the deceased decided to report the matter to the Police in the first instance, the accused/appellant requested and fell on her feet not to report the matter, but when she was firm to lodge the report and she went to the Sarpanch and Kotwar of the village, the accused/appellant ran way from the village. Even when the accused/appellant was , leaving the village, he handed over the letter Ex. P- 23 to one of his friends dileshwar who handed over the same to the Sarpanch in order to misguide the persons. Ultimately, the dead body was found in the house of the accused/appellant itself which was dumped under the dung cakes in a pit. At one point of time the deceased informed her sister that her husband is digging a pit in their house in order to construct a bath room. Ultimately, the dead body was found in the house of the accused/appellant itself which was dumped under the dung cakes in a pit. At one point of time the deceased informed her sister that her husband is digging a pit in their house in order to construct a bath room. All these circumstantial evidence shows that the accused/appellant after causing the death of the deceased dumped her body in a pit buried and covered it by sand and thereafter put the dung cakes on that place, therefore, from these circumstantial evidence It can he safely concluded, that the death of the deceased was homicidal in nature. The accused/appellant instead of explaining the circumstances and disappearance of deceased Tikeshwari Bai who was living with him as his wife tried to misguide the mother and sister of the deceased as also the Sarpanch of the village. Based on this conduct of the accused/appellant it can safely be concluded that the death of the deceased was homicidal in nature. ( 8 ) NOW coming to the question, as to whether the prosecution has been able to establish the fact of crime against the accused/appellant that he is the person who murdered his wife Tikeshwari Bai and thereafter caused disappearance of the body in order to ensure the disappearance of the evidence in the case to save himself from the punishment for crime. The following are the circumstances upon which the prosecution has placed reliance and tried to establish the crime against the accused/appellant. (a) As per the evidence available on the record from the prosecution witnesses it is admitted fact as mentioned above that accused/appellant bhanu Kanwar and deceased Tikeshwari Bai fell in love, due to their physical relations the deceased became pregnant, the community of both the persons convened a meeting and in that meeting they outcasted the deceased as well as the accused/appellant, thereafter, they started residing together separately in a house of the uncle of the accused/appellant namely, Dhaneshram. (b) The other circumstances is that as per the statement of PW-3 Gangotri Bai, the deceased met her on Friday and during their meeting she informed her that her husband is digging a pit for the construction of the bath room. (b) The other circumstances is that as per the statement of PW-3 Gangotri Bai, the deceased met her on Friday and during their meeting she informed her that her husband is digging a pit for the construction of the bath room. This fact informed by PW-3 to hef mother Udsiya Bai PW-4 which she has narrated in her statement and in cross examination this statement has not been shaken and ultimately as per the statement of the I. O. PW-9 S. K. Dubey. on 26-3-1999 kotwar Devendra Das informed him that some smell is emanating from the small garden at the residence of accused/appellant bhanu kanwar and on hearing this he reached to the site and also requested the executive Magistrate, Gunderdehi to give permission to dig the pit and also requested him to accompany him through Ex. P. 15. The Magistrate permitted and the Tehsildar accompanied the I. O. As PW-11 B. S. Chandrakar, Additional Tehsildar has stated in his statement that on 26-3-1999 he along with the Station House Officer and Sarpanch went to the site and the Panchanama of the dead body of deceased Tikeshwari Bai was prepared in his presence which is Ex. P-6. Therefore, from this evidence the dead body of the deceased was recovered from the same pit, as informed by the deceased to her sister, which was dug by the accused/appellant in order to dump the body of the deceased. This evidence of preparation and the conduct of the accused/appellant is admissible under Section 8 of the Evidence Act as the same relates to the fact in issue i. e. the murder of Tikeshwari Bai. (c) The other circumstance is that when the sister of deceased Tikeshwari Bai namely, Gangotri Bai PW-3 and the mother of the deceased PW-4 enquired about the whereabouts of the deceased, the accused/ appellant informed them that she ran away from the house on Sunday after taking money and Jhaua (a basket meant for carrying the things ). This was informed by the accused/appellant in order to misguide them whereas he knew that the body of the deceased is lying in the pit near the house. Thereafter, when the mother of the deceased decided to report the matter to the Police, the accused/appellant in the first instance requested her not to do so and when she did not agree he ran away from the village. Thereafter, when the mother of the deceased decided to report the matter to the Police, the accused/appellant in the first instance requested her not to do so and when she did not agree he ran away from the village. This conduct of the accused/appellant also shows that he was apprehensive as he himself murdered the deceased, therefore he ran way from the village instead of co-operating with the mother and sister of the deceased to find out the whereabouts of the deceased. This conduct of the accused is also admissible in evidence under Section 8 of the Evidence Act. (d) The other circumstance against the accused/appellant is that he has not informed any body about the missing of de ceased Tikeshwari Bai. On the contrary, he gave wrong information to the mother and sister of the deceased as also to the sarpanch of the village by letter Ex. P-23 to misguide them so that nobody should take any action in the matter. (e) The other circumstance is that while leaving the village, the accused appellant handed over a letter Ex. P-23 to his friend dileshwar PW-14 and asked him to handover the same to Dwarika Prasad pw-2. This fact has been proved by PW-14 as well as PW-2 Sarpanch Dwarika Prasad. In that letter, the accused/appellant, again in order to misguide, written that her wife tikeshwari Bai has been traced out, she is residing with her friend at Balod, he is going to take her and from there they will go to some other place in order to earn the livelihood. This letter has been proved by PW-14 as well as PW-2 and the same was handed over by PW-2 to the S. H. O. who took it into possession through Ex. P-4. The s. H. O. also after arresting the accused/ appellant took the undisputed hand writing of the accused through Ex. P-10 and both ex. P-23 and Ex. P-10 were sent to the hand writing expert for his opinion. As per the report Ex. P-24 received from the hand writing expert namely, M. S. Thakur, Additional state Examiner of Questioned Documents, govt. of Madhya Pradesh, Bhopal, it has been stated that both the hand-writings are similar and after examining the documents he reached to the conclusion that the author of both the hand-writing is common. Through this letter Ex. As per the report Ex. P-24 received from the hand writing expert namely, M. S. Thakur, Additional state Examiner of Questioned Documents, govt. of Madhya Pradesh, Bhopal, it has been stated that both the hand-writings are similar and after examining the documents he reached to the conclusion that the author of both the hand-writing is common. Through this letter Ex. P-23 also, the accused/appellant tried to misguide the sarpanch of the village that the whereabouts of the deceased have been traced out and from Balod he along with the deceased were going to somewhere else to earn the livelihood so that nobody can take action in the matter. If the accused/appellant was innocent why he left the village has not been explained by him. ( 9 ) THE accused/appellant during the police custody gave the information Ex. P-7 to the S. H. O. and pursuant to that information the ear rings and other rings meant for wearing in the finger of the foot of the deceased were recovered at his instance. These items the accused/appellant kept with him. If deceased Tikeshwari Bai left the house, as informed by the accused/appellant with money then why she left these items behind is not known. Rather this cir cumstance shows that the accused/appellant after murdering the deceased dumped the body in the pit. ( 10 ) AS discussed above, from the statement of I. O. ; the Naib Tehsildar; other witnesses; witness Keshav; Sarpanch PW-2 and the mother of the deceased PW-4, it has been proved that the dead body of the deceased was recovered from a pit which was in house where the accused/appellant was residing along with his wife Tikeshwari Bai and the dead body has been identified by udsiya Bai The doctor PW-13 has stated the dead body was in a position to be identified. The accused/appellant Instead of explaining the circumstances which were appearing against him in his statement under section 313 of the Cr. P. C. has simply denied the same. ( 11 ) THEREFORE, from all the circumstances appeared against him and about his conduct the only inference and conclusive inference can be drawn is that he is the only person who is responsible for committing the murder of the deceased who at that point of time was residing with him and the innocence of the accused/appellant is ruled out by the evidence adduced by the prosecution. ( 12 ) IT is also proved that the accused/ appellant with the Intention to screen himself from the legal punishment caused the disappearance of the body of the deceased and evidence of the commission of the offence by him and dumped the body of the deceased in the pit. Therefore, the offence under Section 201 of the I. P. C. is also proved. ( 13 ) IN the result, there is no force in the appeal and the prosecution has established the offence against the accused person under Sections 302 and 201 of the I. P. C. The finding of the trial Court is based on the convincing and legal evidence and the chain of circumstantial evidence is complete. The appeal has no merit and the same is dismissed. ( 14 ) CONSEQUENTLY, M. (Cri) P. No. 2903/ 2002 stands disposed of. K. H. N. KURANGA, J. : 15. I agree. Appeal dismissed. --- *** --- .