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2016 DIGILAW 306 (CHH)

Mahadeo Mandal v. State of C. G.

2016-08-24

CHANDRA BHUSHAN BAJPAI, PRITINKER DIWAKER

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JUDGMENT : Chandra Bhushan Bajpai, J. 1. This appeal arises out of the judgment of conviction and order of sentence dated 9-7-2003 passed by the 4th Additional Sessions Judge, (FTC), Raigarh in S.T. No. 179/2002 convicting both the appellants under Sections 302 and 201 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life with fine of Rs. 500/-, to undergo RI for 7 years with fine of Rs. 500/- respectively with default stipulations. Both the substantive jail sentences are directed to run concurrently. 2. Facts of the case in brief are that on 31-5-2002 at 10.00 am P.W.11 Santosh Kumar Biswas father of deceased Sanjay Biswas lodged merg intimation Ex. P-15 before Deharamjaigarh police stating that on 30-5-2002 at about 10.30 pm the deceased along with accused/appellants consumed liquor and thereafter they went to Amadarha Mand river and while taking bath deceased was missing. Thereafter during search in the morning at about 8.30 hrs. the dead body of Sanjay Biswas was found in the said Amadarha Mand river. This fact was informed by others, During investigation, police prepared inquest Ex. P-2 and thereafter the dead body was sent for post mortem. P.W. 7 Dr. A.S. Thakur conducted autopsy and the doctor noticed vide his report Ex. P-9 that the body is in state of rigor mortis, eyes closed, eyelid swollen, mouth partially open, no external injury is seen on body. The doctor opined that the deceased died due to mechanical asphyxia which may be as a result of obstruction to passage of air into respiration track due to causes other then constriction of neck and drowning, nature homicidal. The autopsy surgeon answered query 1, 2, 3 and 4 which are as under:- VERNACULAR MATTER 3. Wife of the deceased P.W. 10 Sulekha Biswas lodged a written complaint alleging in it that she has doubt that her husband was killed by the accused/appellants. On 10-6-2002, Dharamjaigarh police registered FIR Ex. P-16 and Crime No. 54/2002 against both the accused/appellants. During investigation, statements of the witnesses were recorded under Section 161 of the Cr.P.C. Thereafter Police filed charge sheet against the accused/appellants under Sections 302 and 201 of the IPC followed by framing of charge by the trial Court under the same sections. 4. In order to establish the guilt of the accused/appellants, prosecution has examined 15 witnesses. During investigation, statements of the witnesses were recorded under Section 161 of the Cr.P.C. Thereafter Police filed charge sheet against the accused/appellants under Sections 302 and 201 of the IPC followed by framing of charge by the trial Court under the same sections. 4. In order to establish the guilt of the accused/appellants, prosecution has examined 15 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. Accused/appellants also examined one defence witness D.W. 1 Subhash Barhai who has deposed that the deceased used to consume excessive liquor. He saw the deceased in an unconscious condition and thereafter he was being treated by one Dr. Khurshid Khan who administered him drip, thereafter he regained consciousness in his house and family members also massaged on his chest with oil. He is a hearsay witness and has not said anything specific about the matter. After hearing the parties, the trial Court has convicted and sentenced the accused/appellants as mentioned above. Hence the present appeal. 5. Learned counsel for the accused/appellants submits that:- "i. Prosecution has failed to demonstrate any motive for the offence. The autopsy surgeon has not given any definite opinion and has not stated the reasons on the basis of which it can be held that the death was homicidal in nature. In absence of any reason, the opinion of the autopsy surgeon that the death was homicidal may not be accepted. ii. The accused/appellants were not required to offer explanation in their statements under Section 313, Cr.P.C. under the provisions of Section 106 of the Evidence Act. iii. As the prosecution has failed to establish the death of the deceased as homicidal, both the accused/appellants may not be convicted on the basis of merely circumstantial evidence i.e. the last seen. iv. As per memorandum Ex. P-3 of accused/appellant Mahadeo, police had seized one cotton towel, but in absence of any FSL report, merely on the basis of seizure from the accused/appellant Mahadeo, the same cannot be held as admissible evidence so as to connect the accused/appellants with the offence. v. The prosecution has failed to adduce admissible evidence to connect the accused/ appellants with the murder of the deceased. vi. v. The prosecution has failed to adduce admissible evidence to connect the accused/ appellants with the murder of the deceased. vi. Even if the entire case of the prosecution is taken as it is, the accused/appellants cannot be convicted under Sections 302 and 201 of the IPC." 6. Per contra, learned counsel for the State while supporting the impugned judgment submitted that:- "i. Conviction of the accused appellants is strictly in accordance with law and there is no infirmity in the same. ii. The autopsy surgeon opined that the death of the deceased was due to mechanical asphyxia which may be as a result of obstruction to the passage of air into respiration track due to causes other than constriction of neck and drowning. Hence the doctor has opined that nature of death was homicidal. iii. The deceased was in the company of both the accused/appellants and was taking bath in the Amadarha Mand river. His death was homicidal. In absence of explanation of drowning or otherwise offered as required under the law, the trial Court has rightly convicted and sentenced the accused/appellants for the offence." 7. We have heard learned counsel for the parties and perused the record. 8. P.W.1 Ajay Biswas is the witness who made search along with other villagers of the deceased in the evening and night and again in the morning. The dead body of deceased Sanjay Biswas was recovered from the river in the morning. Similar statement was given by P.W.2 Ramchandra Sigdar. He is also the witness of inquest Ex. P-2 and memorandum statement of accused Mahadeo Mandal Ex. P-3, seizure memo Ex. P-4, P-5, and P-6 by which seizure of water from the spot, cloth of the deceased from P.W. 10 Sulekha Biswas and other articles were effected. P.W. 3 Kutiram Biswas is the witness who saw both the accused/appellants along with the deceased going towards river in a bike thereafter accused/appellant Mahadeo informed him that Sanjay Biswas is missing. Thereafter they made a search but not succeeded. Next morning, the dead body of the deceased was recovered. P.W. 4 Shiv Prasad is a witness of last seen. As per this witness, both the accused/appellants and the deceased demanded liquor. They consumed liquor and thereafter all the three went on a motorcycle driven by deceased Sanjay Biswas and other accused/appellants were sitting as pillion riders. Next morning, the dead body of the deceased was recovered. P.W. 4 Shiv Prasad is a witness of last seen. As per this witness, both the accused/appellants and the deceased demanded liquor. They consumed liquor and thereafter all the three went on a motorcycle driven by deceased Sanjay Biswas and other accused/appellants were sitting as pillion riders. P.W. 5 Mariyam is a witness who has stated that accused/appellants and an another boy came to her. They consumed liquor and thereafter all the three left the place on a bike. P.W. 6 Francis Ekka is the witness before whom currency note of Rs. 50/- has been recovered from P.W. 5 Mariam vide Ex. P-8. P.W. 7 Dr. A.S. Thakur has conducted post mortem and opined that the death of the deceased was due to mechanical asphyxia which may as a result of obstruction to the passage of air into respiration track due to causes other than constriction of neck and drowning. The doctor has opined that nature of death was homicidal. He also answered to the query vide Ex. P-10. P.W. 8 Kamal is the witness of inquest P-2 and has admitted his signature on memorandum statement Ex. P-3, seizure memo Ex. P-4 and 5 but has turned hostile. P.W. 9 Dharmajit Singh Paikra prepared map Ex. P-12. P.W. 10 Sulekha, the wife of the deceased, is the witness before whom both the accused/appellants asked the deceased to go to Piparmal, thereafter her husband along with accused/appellants left at about 8 am. Thereafter at about 4 pm she saw the accused/appellants coming on the motorcycle of her husband. When she inquired about her husband, the accused/appellant said that all the three went to take bath and Sanjay was missing from there and despite search he is not traceable. Thereafter they left along with P.W. 8 Kamal and P.W. 2 Ramchandra telling her that they are going to search the deceased to Arnadarha. Neighbours also made a search. The body of her husband was recovered from Arnadarha Mand river next day morning. Appellants returned back and gave motorcycle, clothes and slipper of her husband which were seized during investigation vide seizure memo Ex. P-5 and P-13. She had also made a written complaint to the police Ex. P-14. During cross-examination, the witness has remained very firm and nothing could be elicited so as to discredit her version. Appellants returned back and gave motorcycle, clothes and slipper of her husband which were seized during investigation vide seizure memo Ex. P-5 and P-13. She had also made a written complaint to the police Ex. P-14. During cross-examination, the witness has remained very firm and nothing could be elicited so as to discredit her version. P.W. 11 Santosh Kumar Biswas, the father of the deceased, is a hearsay witness. Next day morning, when he along with others made a search in the Arnadarha Mand river, they recovered the body of the deceased. He had also lodged Merg Ex. P-15. P.W. 12 L.D. Diwan performed major part of investigation and supported the prosecution case. P.W. 13 Haricharan Singh is the 10, after investigation prepared charge sheet and filed it before the Court. P.W. 14 Ramniranjan Rathiya, Head Constable has helped in the initial investigation and recorded the statements of the witnesses and has duly supported the prosecution case. P.W. 15 Ramprasad Biswas, father-in-law of the deceased, is a hearsay witness and made search along with other villagers in the morning and during search the body was recovered. 9. D.W 1 Subhash developed almost a new story that the deceased was in a condition of unconsciousness, he was treated by a private doctor Khurshid Khan in his house who administered drip to him and thereafter the deceased allegedly regained consciousness and family member applied massage on his chest. 10. Close scrutiny of the evidence makes it clear that the deceased was in the company of both the accused/appellants. The accused/appellants took the deceased from his house at about 8 am on 30-5-2002. They were seen by P.W. 3 Kutiram Sigdar, P.W. 4 Shivprasad and P.W. 5 Mariam and most importantly when the deceased left his house along with accused/appellants, P.W. 10 Sulekha, his wife was present there and thereafter in the evening, the deceased was reported to be missing. Neighbours and villagers made a search in the evening and again in the morning at Amadarha Mand river where the accused/appellants and the deceased went to take bath and ultimately on next day morning his dead body was recovered. The prosecution proved this fact that from 30th May, 2002 at 8 a.m. till recovery of the dead body or the information regarding missing in the evening of 30-5-2002, the deceased was in the company of accused/appellants. The prosecution proved this fact that from 30th May, 2002 at 8 a.m. till recovery of the dead body or the information regarding missing in the evening of 30-5-2002, the deceased was in the company of accused/appellants. In the statements under Section 313, Cr.P.C. both the accused/appellants denied that they had taken the deceased from his house and he was in their company, all the three after consuming liquor reached to Amadarha Mand river and thereafter the deceased disappeared. This is a very important circumstance and the accused/appellants are required to explain the circumstances regarding the fact as to when they parted with the company of the deceased. Both the accused/appellants failed to offer the explanation as required from them under the provisions of law under Section 106 of the Evidence Act. Even the accused/appellants denied this fact in their statement under Section 313 of Cr.P.C. that they returned the motorcycle, cloths of the deceased and other articles. Therefore, the fact emerges is that the accused/appellants are denying last seen in the company of the deceased. It is an additional circumstance and unexplained fact for the last seen. Though last seen is a weak type of evidence and to hold someone guilty, prosecution is required to prove more in corroboration of last seen theory, but in the present case, overall conduct of the accused/appellants regarding these facts are suspicious. Hence this itself is an additional circumstance against the accused/appellants. 11. The prosecution has duly proved that the deceased was in the company of the accused/appellants. They consumed liquor and thereafter they left in the same bike of the deceased and then body of the deceased was recovered from Amadahra Mand river. Statement of P.W. 10 Sulekha Biswas is reliable and trustworthy for the fact that the accused/appellants returned back at about 5 pm in the motorcycle of her husband and on being asked, the accused/appellants admitted that all the three went to take a bath and thereafter deceased Sanjay was missing. Therefore, the accused/appellants are required to offer an explanation as to what happened when all the three were taking bath in the river. Both the accused/appellants have not offered any explanation. This is an additional incriminating circumstance as the conduct of the accused/appellants is suspicious. Therefore, the accused/appellants are required to offer an explanation as to what happened when all the three were taking bath in the river. Both the accused/appellants have not offered any explanation. This is an additional incriminating circumstance as the conduct of the accused/appellants is suspicious. In their statements under Section 313 of the Cr.P.C., accused/appellants have not said anything regarding the bath they were taking in the said river and regarding disappearance of the deceased and the other attending facts. 12. So far as the death of the deceased is concerned, P.W. 7 Dr. A.S. Thakur opined that the deceased died due to mechanical asphyxia which may be as a result of obstruction to passage of air into respiration track due to causes other then constriction of neck and drowning. The doctor has clearly opined the death as homicidal. In this case there is no FSL report regarding the seized towel from accused Mahadeo Mandal. It is not the case of the accused/appellants that the death occurred on account of drowning. Though there was a suggestion in this regard but the autopsy surgeon denied that suggestion and merely a suggestion cannot take the place of evidence and medical opinion. In these circumstances, we are of the considered opinion that no second view may be possible that the death was on account of drowning. P.W. 7 Dr. A.S. Thakur remained very firm that the death was on account of mechanical asphyxia i.e. by closure of air passage. We are not agree with the arguments advanced in this behalf that the cause of death was not properly proved. So far as the reason for said opinion is concerned, the autopsy surgeon has duly substantiated the reasons for the findings of the team of the doctors and he remained very firm during cross-examination and nothing could be elicited so as to hold that the death was not homicidal. Therefore, we are agree with the finding of the trial Court that the death was homicidal in nature. Therefore, it is proved that the death of the deceased was homicidal, he was in active company of the accused/appellants, the accused/appellants have failed to offer any explanation especially as to when they parted with the company of the deceased. P.W. 3 Kuriram Biswas is the witness to whom accused/appellant Mahadeo Mandal informed that all the three were taking bath. Therefore, it is proved that the death of the deceased was homicidal, he was in active company of the accused/appellants, the accused/appellants have failed to offer any explanation especially as to when they parted with the company of the deceased. P.W. 3 Kuriram Biswas is the witness to whom accused/appellant Mahadeo Mandal informed that all the three were taking bath. Accused/appellants were on the deeper side of the river and the deceased was at the shallow part of the river and thereafter the deceased was missing. There is no reason to disbelieve his statement. 13. It is by now settled that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof. 14. Keeping in mind the aforesaid principles of law relating to circumstantial evidence, on close scrutiny of the entire evidence it emerges that the deceased was in the company of accused/appellants. His dead body was found next day morning in a river and the doctor opined that the death of the deceased was homicidal. The entire conduct of the accused/appellants goes to show that it is they who have committed murder of the deceased and none else and after committing murder thrown the body in the river. As per statement of P.W. 10 Sulekha, wife of the deceased, at about 4 pm she saw the accused/appellants coming on the motorcycle of her husband and when she inquired about her husband, they gave false information and said that all the three went to take bath and Sanjay was missing from there and despite search he is not traceable. As per statement of P.W. 10 Sulekha, wife of the deceased, at about 4 pm she saw the accused/appellants coming on the motorcycle of her husband and when she inquired about her husband, they gave false information and said that all the three went to take bath and Sanjay was missing from there and despite search he is not traceable. It may also be noticed that along with other villagers, they also went to search the body of the deceased just to project themselves innocent which goes to show that they have concealed the offence and therefore, their conviction under Section 201, IPC is proper. 15. Considering all the facts and circumstances of the case, the judgment of conviction and sentence passed by the trial Court is fully justified. Instant criminal appeal has no substance. The same is liable to be and is hereby dismissed. 16. Accused/appellants are reported to be on bail. Their bail bonds are cancelled and they are directed to be arrested and sent to jail forthwith to undergo remaining part of sentence imposed against them by the trial Court. Appeal Dismissed.