Research › Search › Judgment

Chhattisgarh High Court · body

2011 DIGILAW 320 (CHH)

DEVNARAYAN @DEVLAL v. STATE OF C. G.

2011-09-16

R.N.CHANDRAKAR, T.P.SHARMA

body2011
JUDGMENT As per Hon 'hie Shri R.N. Chandrakar, J. :- 1. This criminal appeal under Section 374 (2) of the Code of Criminal Procedure is directed against the judgment of conviction and order of sentence dated 12-5-2005 passed in Sessions Trial No.449 of 2004, whereby learned Additional Sessions Judge, Baikunthpur, District Koriya, after holding the appellant guilty for committing murder of his wife Dhanmat Bai and concealing the evidence of criminal case, convicted him under Sections 302 and 201 of the IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.1000/-, in default of payment of fine to further undergo RI for six months and RI for one year respectively. All the sentences are directed to run concurrently. 2. Prosecution case, in short, is that deceased Dhantmat Bai was the wife of the appellant. She was living with her husband - appellant in village Govindpur in the house of Somarsai (PW 19). Deceased Dhanmat Bai was cousin of Somarsai (PW 19). Rameshwar (PW 11 0) father of deceased was also residing in village Govindpur separately. On 23-11-2003 accused/appellant and his wife Dhanmat Bai went to Baikuntpur market at 8.00 a.m, thereafter they did not return to their house from the market. On 29-11-2003 Rajaram (PWI7) saw the dead body of one woman in his field near "Gadaguda nala" and informed the villagers about the incident. Thereafter, Heera Singh (PW/l) and Narayan Singh (PW/8) went to the spot and also saw the dead body. 3. Narayan Singh (PW/8) went to Police Station Baik6'nthpur and lodged merg intimation vide EX.P/l2 which ,;"as recorded by Lav Kumar Pandey (PWI 17) on 29-11-2003 as crime No. 67/2003. After summoning witnesses vide Ex.P/3, inquest over the dead body of the deceased was prepared vide Ex.P/4. Requisition for conducting autopsy of the dead body was sent to Community Health Centre, Baikunthpur, from where Doctor D.K. Chikenjuri (PW/l4) along with Doctor Neelam Tirkey came and conducted autopsy on the spot. They gave their report vide Ex.P/17 and found the dead body in following condition: (i) Dead body was in state of decomposition lying supination over ground; (ii) No clothings present, head unvisible due to turndown beneath the body on removal, skeletonised and no organ remained, lower jaw completely separated. Loss of teeth except molar. (iiI) Half of chest ribs lost, heart, lungs, liver and spleen lost. Loss of teeth except molar. (iiI) Half of chest ribs lost, heart, lungs, liver and spleen lost. (iv) Breast and perineal region blackish colour and loss of skin and muscle over lower limbs and upper limbs. (v) Loss of greater toe intact at right side at metatarsal broken, and left side greater toe intact remaining lost. Maggot rolling over body, except linear, piece of petticoat tom and wrapped around loin. Internal: (i) Body skeletonised at chest, head, neck. Skull bone fully skeletonised, no brain matter separated; lower jaw separated. (ii) Clevical bone badly intact and adhered. (iii) Clavical anterior ribs separated and broken. (iv) Upper limbs and lower limbs. Loss of muscle, Bangles over upper limb and tattoo present over lower limb and loss of tarsal bone. (v) Blackish discolouration over breast perineum petticoat tied around loin. After washing reddish spin & material present; (vi) Perineum• region, blakish and maggots present. The Doctor opined that cause of death was due to cardio respiratory arrest and homicidal in nature. 4. Spot maps were prepared vide Ex.P/9 & P/10, half burnt blouse and saree of deceased were seized from the spot vide Ex.P/1 & P/2. On the basis of merg intimation vide Ex.P/12, first information report was lodged by Investigating Officer l.Tirkey (PW/6) vide Ex.P/12. During the course of investigation, accused/appellant was arrested on 16-8-2004 vide Ex.P/20 and he made a discloser statement of 30 grams of kerosene oil in a plastic bottle vide Ex.P/14 and the same was seized at the instance of the appellant vide Ex.PI 8. Clothes of the appellant were seized vide Ex.P/15. Seized articles were sent for chemical examination to FSL, Raipur vide Ex.P/I8 but report thereof was not received. 5. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Baikunthpur, who in turn committed the case to the Court of Sessions Judge Baikunthpur and the same was received on transfer by learned Additional Sessions Judge, Baikunthpur, who framed charges under Sections 302 & 201 of the IPC against the appellant who abjured the guilt. 6. In order to prove the guilt of the appellant, prosecution examined as many as seventeen witnesses. 6. In order to prove the guilt of the appellant, prosecution examined as many as seventeen witnesses. Accused person was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and pleaded innocence and false implication. However, he did not examine any witness in his defence. 7. After affording an opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. 9. Mr. Abhay Tiwari, learned counsel appearing for the appellant vehemently argued that the case is based on circumstantial evidence of last seen together. Ramkushal (PW/2) and Hari Om (PW/4) are the witnesses of the fact but Ramkushal (PW/2) turned hostile and had not supported the case of prosecution. Learned counsel further submits that merg intimation (Ex.P/l2) was lodged by Narayan Singh (PW/8) but Lav Kumar Pandey (PW/17), the writer of merg intimation stated that name of the deceased was mentioned as unknown person and he did not know as to how the name of Dhanmat Bai was added later on in Ex.P/12. Thus, the merg intimation becomes doubtful. Learned counsel for the appellant further submits that the prosecution has failed to establish the factum of last seen theory by cogent evidence. The next submission of learned counsel for the appellant is that dead body of the deceased was also not properly identified by the relatives and there was no missing repot in the case. Therefore, the trial Court was not justified in convicting and sentencing the appellant only on the basis of weak type of circumstantial evidence like last seen theory. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the present appellant has caused homicidal death of deceased Dhanmat Bai. 10. Per contra Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State supporting the judgment impugned submitted that conviction of the appellants is based on the evidence of Ramkushal (PW/2), Hari Om (PW/4), & Narayan Singh (PW/8). After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. 12. The present case rests upon the identification of the dead body, last seen theory and autopsy report. So far as the identification of the dead body is concerned, it was said to be identified by PW /9 Somarsai, cousin of the deceased, PW/l 0 - Rameshwar, father of the deceased and PW/11 Mangli Bai., mother of the deceased. PW/9 Somarsai stated in his deposition that he, being informed by Dheer Singh and Pancham Bai he went to "Gadaguda" (Gadabuda) forest to see the dead body and identified the same to be of Dhanmat Bai on the basis of her wearing apparels. In his cross-examination he has specifically admitted that one day before the identification of the dead body, Rameshwar (PW/I0) and Mangli Bai (PW/Il) had gone to the forest to see the dead body but they could not identify as the dead body was in the shape of skeleton and there was no flesh. He further adinitted that the clothes found over the dead body were red coloured and usually worn by many persons in the village. He had not seen the deceased Dhanmat Bai going to market with the appellant and the dead body was recovered after eight days since she left the house with the appellant. Thus, the testimony of this witness regarding the identification of the dead body is doubtful as he identified the dead body only on the basis of wearing apparels of the deceased which is generally used by common people. 13. PW/10 Rameshwar, father of the deceased deposed that her daughter (deceased) lived with the appellant in the house of Somarsai (PW /9). Prior to eight days of the identification he was informed by Somarsai (PW/9) that his daughter had gone to market with the appellant and thereafter the dead body of his daughter was found in Gadaguda forest. He went to see the dead body and found the same in almost nude condition. There were some clothes over the waist. He identified the dead body on the basis of wearing apparels generally worn by other women in the village. He went to see the dead body and found the same in almost nude condition. There were some clothes over the waist. He identified the dead body on the basis of wearing apparels generally worn by other women in the village. In his cross-examination he admitted the fact that hair over the head, ears and chin were missing from the dead body and there was flesh at some places. He specifically admitted that the dead body was not identifiable. He further admitted that on the date on which her daughter left the house with the appellant, neither he met them nor he saw that what was worn by her. He admitted the suggestion that one day before the identification when they went to see the dead body they could not identify the same. This witness himself stated that he had not gone on that day but his wife (Mangli Bai-PW/11) and Somar Sai (PW/9) had gone to see the dead body who could not identify. 14. The other witness of the identification is Mangli Bai (PW /11), the mother of deceased who also stated to identify the dead body on the basis of wearing apparels and "Godna" (Tattoo) whereas in her cross-examination she admitted that the wearing apparels found over the dead body were commonly worn by many women of the village and the ditto Godna mark was common over the bodies of the women belonging to his caste. That apart, she admitted that one day prior to the identification when they had gone to see the dead body they could not identify the same. She had not seen her daughter going to market with the appellant and she did not have any talk with Somarsai (PW I 9) for this period of eight days regarding whereabouts of her daughter and the appellant. She also admitted that the dead body was nothing but skeleton• and there was flesh at some places. 15. On a minute scrutiny of the testimonies of the aforesaid witnesses, it reveals that the dead body was identified to be of Dhanmat Bai only on the basis of her wearing apparels which are commonly worn by other women of the village and on the basis of Tattoo (Godna) that too is common to the women of the caste of deceased. Admittedly, the dead body was nothing but skeleton which was not identifiable. Admittedly, the dead body was nothing but skeleton which was not identifiable. Moreover, there was no missing report about the deceased in which description about the age, colour, height, physique and wearing apparels are given which would have been helpful for identification after recovery of the dead body. It is pertinent to mention here that none of the aforesaid witnesses had seen the deceased going with the appellant to the market, thus, their identification through the wearing apparels is doubtful and becomes errelevant. Corroborating the versions of the aforesaid witnesses, PW 18 Narayan Singh, who lodged the merg intimation (Ex.P/I2) also stated that the dead body was nothing but skeleton. In view of the above, it cannot be held that the dead body was properly identified and was of the deceased. 16. The other circumstance is the theory of last seen together. In this regard, Ramkushal (PW/2) and Hari am (PW/4) were examined. PW/2 Ramkushal turned hostile and put to leading questions wherein he admitted that the dead body of wife of appellant was recovered after one week of the day of Baikunthpur market when they had come to his shop. Except this, he denied almost all the suggestions given by the prosecution. Finally in his cross-examination, para 7, even he denied to identify the appellant. As per evidence of PW 14 Hari am, prior to the incident, while he was grazing his cattle, he had seen the appellant and his wife returning from Baikunthpur market in the evening at the time of sunset from the distance of 100 - 150 ft., and after 15 days of the incident he came to know that a dead body of a woman was found in Gadaguda nala. In his cross-examination he admitted that he did not have any talk with the appellant. He further admitted that he did not identify the woman accompanied to the appellant and he stated the woman to be the wife of appellant by guessing. The woman was wearing sari and blouse but he could not mention her body and physique. He could not describe the clothes worn by the appellant on that day. The aforesaid witnesses are father and son and they have not corroborated each other. The woman was wearing sari and blouse but he could not mention her body and physique. He could not describe the clothes worn by the appellant on that day. The aforesaid witnesses are father and son and they have not corroborated each other. PW/2 Ramkushal has clearly denied to identify the appellant and his wife as also to give statement of Ex.P/6 marked from "A to A" whereas PW/4 Hari am, son of PW/2 Ramkushal though admitted to see the .appellant and deceased from the distance of 100 - 150 ft., created doubt on identification stating that he did not identify the woman accompanied to the appellant and he stated the woman to be the wife of appellant by guessing. Thus, from the .above circumstance, there is no credible and cogent evidence regarding the theory of last seen together, so it looses its credibility and significance. Apart from this, there is eight days time gap between the date of recovery of body and the appellant was last seen together with the deceased. 17. In order to establish the offence of murder against the accused based on circumstantial evidence of last seen, the prosecution is obliged to prove that the time gap between the last seen and the murder is so proximate and so close that there should not be any possibility of drawing any inference of the innocence of the accused and there should be no possibility of meeting of anyone else to the deceased in between. The last seen circumstance is a weak type of evidence, requires corroboration from some other independent evidence about the guilt of the accused. There is difference between "seen together" and "last seen together", therefore, the prosecution is required to prove by a cogent and firm evidence that the gap between the death of deceased and the fact of last seen had proximate and close nexus. Hon'ble the Supreme Court in the matter of Bodhraj @ Bodha and others Vs. State of Jammu and Kashmir1, held that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive together and when the deceased is found dead is so small, that possibility of any person other than the accused being the author of crime becomes impossible. State of Jammu and Kashmir1, held that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive together and when the deceased is found dead is so small, that possibility of any person other than the accused being the author of crime becomes impossible. Hon'ble the Supreme Court further held that it would be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to. conclude that the accused and the deceased were last seen together. Similarly, Hon'ble the Supreme Court in the matter of Subhash Chand Vs. State of Rajasthan2, observed that last seen together must be near about the date and time of the incident. Merely on the basis of last seen, the accused cannot be held guilty. 18. PW/8 Narayan Singh has deposed that on being informed by Dheer Singh that dead body of a woman was lying in the field of Rajaram (PW/ 7), he went to the spot and seeing the dead body of a woman went to Police Station Baikunthpur and lodged merg intimation vide Ex.P/12. The dead body was not in a position to bring for postmortem, therefore, police took the Doctors to the spot on the next day. The dead body was in the shape of skeleton and flesh was not appearing. He did not disclose the name of deceased in his deposition but on perusal, name of deceased was found in Ex.P/12 whereas Lav Kumar Pandey (PW/17), writer of the merg intimation (Ex.P/12) corroborating the version of Narayan Singh stated that on 29-11-2003 merg intimation (Ex.P/12) was lodged by Narayan Singh (PW/8) and in his cross examination he admitted that the merg was recorded in the name of unknown person and name of deceased was not mentioned in it. He further stated that in merg intimation (Ex.P/12) in "C to C", the name of Dhanmat Bai was added later on which was not written by him. He was unable to say that by whom the name of Dhanmat Bai was added in merg intimation (Ex.P/12). He further stated that in merg intimation (Ex.P/12) in "C to C", the name of Dhanmat Bai was added later on which was not written by him. He was unable to say that by whom the name of Dhanmat Bai was added in merg intimation (Ex.P/12). Thus, on analysis of the evidence of the aforesaid witnesses, it is clear that neither the name of the deceased was disclosed by Narayan Singh (PW/8) while lodging the merg intimation nor it was written by Lav Kumar Pandey (PW/17) but the inquest (Ex.P/4) and autopsy report prepared on the next day i.e., 30-11-2003 show the name of the deceased Dhanmati Bai which was not explained by the prosecution as to how the name of deceased found place in inquest (Ex.P/4) as well as in merg intimation (Ex.P/12),specifically in view of the fact that the dead body was nothing but skeleton and it was not identifiable as discussed above. 19. So far as the memorandum of appellant and seizure of 30 grams of kerosene oil in a plastic bottle Ex.P/8 is concerned, the memorandum was recorded on 16-8-2004 after about nine months from the open field and the witnesses namely Bhuvanswar Pandey (PW/12) and Siyamber (PW/13) of memorandum and seizure turned hostile and did not support the case of prosecution. That apart, it is highly improbable that a bottle of alleged kerosene was found protected and preserved in the open place for such a long period of about nine months. It is pertinent to mention here that the seizure of kerosene oil was tried to bring into picture from the evidence of PW 12 Ramkushal and PW/4 Hari Om. PW/2 Ramkushal turned hostile and PW/4 Hari Om admitted the fact that he had not seen the articles carrying by the appellant in his bag. Thus, the seizure of kerosene oil from possession of appellant also goes in vain and does not appear trustworthy. 20. The other circumstance which we find fit to discuss in the case is the motive. In this regard, the evidence of PW/11 Mangli Bai, mother of deceased is noticeable who clearly admitted that there was love marriage between the appellant and deceased and they were leading happy and peaceful married life. From the evidence of PW 19 Somarsai and PW/10 Rameshwar, it is clear that the appellant was having houses in village Badesalhi, Ketma and Korba. From the evidence of PW 19 Somarsai and PW/10 Rameshwar, it is clear that the appellant was having houses in village Badesalhi, Ketma and Korba. He used to visit his houses at aforementioned places with the deceased. Thus, only on the basis of absconding from the village where the incident took place the appellant cannot be held guilty for commission of murder of his wife without any motive. 21. On re-appraisal of the evidence it is found that the prosecution failed to establish that the alleged dead body was of Dhanmat Bai and thus the autopsy report also becomes irrelevant as no FSL report about the viscera or the other seized articles was obtained in the case. The prosecution also failed to establish the theory of last seen together by cogent and firm evidence as discussed above. 22. On a close scrutiny of the evidence available on record and considering all the aspects of the matter, we find that the trial Court while convicting and sentencing the appellant has not considered all the material aspects of the matter and thereby committed illegality. The evidence adduced on behalf of the prosecution is not sufficient for drawing a definite conclusion that the present appellant has committed murder of his wife. 23. Accordingly, the appeal is allowed. Judgment of conviction and sentence passed by the court below is set aside and the appellant is acquitted of both the charges. Appellant is in custody and he be released forthwith, if not required in any other case. Appeal Allowed.