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2013 DIGILAW 64 (CHH)

Bhukhan Siware v. State of Chhattisgarh

2013-02-14

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

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JUDGMENT SUNIL KUMAR SINHA, J. This appeal is directed against the judgment dated 15th of February, 2008 passed in Sessions Trial No. 192/2006 by the Additional Sessions Judge (FTC), Bemetara, District Durg (C.G.). By the impugned judgment, the appellant has been convicted u/S. 302, IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/- with default sentence of R. I. for 6 months. 2. The facts, briefly stated, are as under: 2.1. Deceased was a male child, aged about 4 years. The appellant is uncle of the deceased. On 23-2-2006 at about 8.00 a.m, the deceased was playing with other children, including Rupen (PW-9), near his house in village Lolesara. The case of the prosecution is that the appellant came there with a bicycle and said the deceased that they will go for a visit to bandha side and took the deceased on his bicycle. When the family members of the deceased made a search, Rupen (PW-9) told them that the deceased was taken on a bicycle by the appellant. Bhagbali (PW-1- father of the deceased) was a teacher in High School, Maatra. A telephonic message was given to him by his wife (mother of the deceased). He came to village Lolesara. Rupen (PW-9) told him also about taking of the deceased by the appellant. Bhasbali (PW-1), then lodged a missing report (Ex. P/1) on 24-2-2006. In the missing report, he mentioned that his son (deceased) was taken by the appellant at about 8.00 a.m. on 23-2-2006. On 25-2-2006 at about 8.00 a.m. some persons saw the dead body of the deceased in the outer area of the village in bandha side. Father of the deceased was informed. A merg intimation (Ex. P/2) was lodged. The Investigating Officer reached to that place, gave notice (Ex. P/3) to the Panchas and prepared inquest (Ex. P/4) on the dead body of the deceased. Face of the deceased was badly injured. The hands and legs of the deceased were tied with a rope. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. Naresh Tiwari (PW-6). He noticed contusions and lacerations on the face of the deceased. There were fractures over the maxilla and mandible bones. The Autopsy Surgeon opined that the cause of death was shock and haemorrhage on account of the above injuries and it was homicidal in nature. The post-mortem examination was conducted by Dr. Naresh Tiwari (PW-6). He noticed contusions and lacerations on the face of the deceased. There were fractures over the maxilla and mandible bones. The Autopsy Surgeon opined that the cause of death was shock and haemorrhage on account of the above injuries and it was homicidal in nature. The post-mortem report is Ex. P/9. The appellant was also not seen in the village since 8.00 a.m. of 23-2-2006. He could be traced on 2-3-2006. He did not offer any explanation as to where he had gone. He was taken into custody. His memorandum statement (Ex. P/6) u/S. 27 of the Evidence Act was recorded and a bicycle was seized at is instance from an open field in village Bammi (a nearby village) vide seizure memo Ex. P/7. The clothes of the appellant and the deceased were also seized. The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Raipur, from where, a report (Ex. P/22) was received. According to the FSL report, blood stains were found over various articles including clothes of the appellant and the deceased. 2.2. The Sessions Judge mainly relied on the four circumstances namely (i) The deceased was lastly seen with the appellant on 23-2-2006; (ii) The appellant had taken the deceased with him on his bicycle on the said date and time: (iii) The appellant was absconding since the said date and time and he could be traced on 2-3-2006; and (iv) The appellant did not offer any explanation that where he parted with the company of the child or where he had left the child whom he had taken on his bicycle. 3. Mr. Neelknth Malviya, counsel appearing on behalf of the appellant, has argued that the circumstance of last seen was not fully established; there was a long time gap between the last seen and dead body found; thus only on account of abscondance, the appellant cannot be held liable for punishment u/S. 302, IPC. 4. On the other hand, Mr. Rajendra Tripathi, Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. Having heard counsel for the parties at length, we have perused the records of the sessions case. 6. Rupen (PW-9) was a child witness. 4. On the other hand, Mr. Rajendra Tripathi, Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. Having heard counsel for the parties at length, we have perused the records of the sessions case. 6. Rupen (PW-9) was a child witness. He deposed that on the fateful day, he was playing with the deceased near his house. The appellant came there and took the deceased on his bicycle saying that they will go to the bandha side. Thereafter they did not return. When mother of the deceased asked him, he had told her that the deceased was taken by the appellant on his bicycle towards bandha side. The evidence of Rupen (PW-9) is corroborated by the evidence of Bhagbali (PW-1) who deposed that he had inquired from Rupen (PW-9) who had told him that his son (deceased) was taken by his uncle (appellant) on his bicycle saying that they will go towards bandha side. 7. Bishahin Bai (PW-3) is grand-mother of the deceased and the mother of the appellant. According to her diary statement, Rupen (PW-9) had stated her that the deceased was taken by his uncle, but, she turned hostile and did not support the case of the prosecution to that effect. However, in the cross-examination done by the Public Prosecutor, she admitted that the appellant was absconding from the date of incident and was brought to the house after 4-5 days. On the date of incident itself, Bishahin Bai (PW-3) had asked Tikaram (PW-4) to make telephone call to the father of the deceased. Tikaram (PW-4) has supported the case to that effect. 8. Rupen (PW-9), Bhagbali (PW-1) and Tikaram (PW-4) have been cross-examined at length by the defence, but nothing material could be brought in their cross-examination, on which, either their evidence may be discarded or it may be said that they were falsely implicating the appellant. In appreciation of their evidence, we find that it was proved that Rupen (PW-9) had seen the appellant taking the deceased with him on his bicycle saying that they will go to bandha side. 9. So far as argument relating to long time gap between the deceased seen alive in the company of the appellant and the dead body found is concerned, it is not a case of last seen simpliciter. 9. So far as argument relating to long time gap between the deceased seen alive in the company of the appellant and the dead body found is concerned, it is not a case of last seen simpliciter. In the instant case, the deceased was not only lastly seen in the company of the appellant, but there is also positive evidence that the deceased was taken by the appellant on his bicycle. Therefore, on application of the instance of long time gap, the circumstances of last seen which was coupled with the circumstance of taking of the deceased by the appellant on his bicycle cannot be ignored. Had there been a case in which the appellant and the deceased would have been simply seen along with each other and there was no incident of taking the deceased by the appellant on his bicycle, it would have shadowed the evidence of last seen. But in the instant case, there is clear evidence of taking of the deceased by the appellant on the pretext that they will go for visit towards bandha side. We further note that when the appellant came to the house after 8 days, he did not offer any explanation to show that either he was not involved in the occurrence or he had parted with the company of the deceased after the deceased had gone with him. 10. In Arabindra Mukherjee v. State of West Bengal, 2012 AIR SCW 1032, the deceased was divorced wife of the appellant. She was residing separately from the appellant. The appellant was frequently visiting to her house. The deceased was taken by the appellant for watching movie in the cinema hall. She went with him and later on her dead body was found on railway track. The appellant was also absconding. It was held that once the appellant was last seen with the deceased, the onus was upon the appellant to show that either he was not involved in the occurrence at all or that he had left the deceased at her home or at any other reasonable place. 11. In the instant case, as we have already stated, the appellant was absconding since last 8 days and on his return, he did not offer any explanation either regarding his innocence or regarding the fact that when he parted with the company of the deceased. 11. In the instant case, as we have already stated, the appellant was absconding since last 8 days and on his return, he did not offer any explanation either regarding his innocence or regarding the fact that when he parted with the company of the deceased. Thus the conduct of the appellant was suspicious and it was also an incriminating circumstance against him. We are of the view that to rebut the evidence of last seen and taking of the deceased and their consequences the onus was upon the appellant to lead the evidence in order to prove his innocence. He had to show that he was falsely implicated. No stand has been taken by the appellant in his S. 313 Cr. P. C. statement. He simply denied his involvement. 12. So far as motive is concerned, it comes in the evidence of prosecution witnesses that the appellant was not keeping good relations with the mother of the deceased. He had tried to outrage her modesty at 2-3 occasions and had assaulted her also. 13. Besides the above, the blood stains were found on the clothes of the appellant and the appellant had not offered any explanation for the same. 14. On due appreciation of the entire evidence available on record, we find that it was proved that the deceased was lastly seen in the company of the appellant; he (deceased) was taken by the appellant on his bicycle on the pretext that they would go for visit towards bandha side; since the date and time of taking the deceased, the appellant was absconding for about 8 days and when he met with the police or his family members, he did not explain as to when he parted with the company of the deceased and where he had left the deceased. The above circumstances were fully established against the appellant. They were of conclusive nature and tendency and were not capable of being explained and the chain of circumstantial evidence was also complete. 15. For the foregoing reasons, we do not find any substance in the appeal. The appeal is liable to be dismissed and is hereby dismissed. Appeal dismissed.