Govind Bariha @ Balram Bariha vs State Of Chhattisgarh
2022 Latest Caselaw 2172 Chatt

                                                                                Cr.A.No.288/2014

                                           Page 1 of 14

                                                                                                AFR

                  HIGH COURT OF CHHATTISGARH, BILASPUR

                             Criminal Appeal No.288 of 2014

{Arising out of judgment dated 17-12-2013 in Sessions Trial No.273/2011 of
                        the Sessions Judge, Raipur}

Govind Bariha @ Balram Bariha, S/o Sahebo Bariha, Aged about 25 years,
R/o Village Bade Onki, P.S. Jharband, District Badgad (Orissa) at present
House of Loknath Sahu, Khapra Bhatti, Lodhipara, P.S. Pandri, District
Raipur (C.G.)
                                                                  (In Jail)
                                                            ---- Appellant

                                              Versus

State of Chhattisgarh, Through S.H.O. of P.S. Pandri, Raipur, District Raipur
(C.G.)
                                                            ---- Respondent

------------------------------------------------------------------------------------------------------
For Appellant:                   Mr. Hanuman Prasad Agrawal, Advocate.
For Respondent/State: Mr. Sunil Otwani, Additional Advocate General and
                                 Mr. Soumya Rai, Panel Lawyer.
------------------------------------------------------------------------------------------------------

                           Hon'ble Shri Sanjay K. Agrawal and
                             Hon'ble Smt. Rajani Dubey, JJ.

Judgment On Board (06/04/2022)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred under Section 374(2) of the CrPC is

directed against the judgment of conviction recorded and sentence

awarded against the appellant herein for offence under Section 302 of

the IPC sentencing him to undergo imprisonment for life and pay a

fine of ₹ 5,000/-, in default of payment of fine to further undergo

rigorous imprisonment for five months, vide judgment dated 17-12-

2013 passed by the Sessions Judge, Raipur in Sessions Trial

No.273/2011.

2. Case of the prosecution, in brief, is that the appellant caused death of Cr.A.No.288/2014

his son Kuber (illegitimate son) on 12-9-2011 and committed the

offence punishable under Section 302 of the IPC. Further case of the

prosecution is that the appellant was residing with Smt. Radheshwari

alias Neha (PW-1) without marrying her in the house of Loknath Sahu

at Lodhipara, Raipur and out of their cohabitation, they were blessed

with son Kuber. At the time of offence, Kuber was aged about 3

months having born on 19-6-2011. It is also the case of the

prosecution that on the fateful day, the appellant herein sent his wife

Smt. Radheshwari alias Neha (PW-1) to bring vegetables particularly,

Karela (bitter gourd) and promised her to look after the son as he was

sleeping at that time. On the promise made by the appellant and

having seen that her son Kuber is also sleeping, she went to bring

vegetables, but when she came back, she found that main door of the

house was open and cooler was found in running condition, but her

husband - the appellant herein and her son Kuber, both were missing

pursuant to which she lodged first information report (FIR) Ex.P-1.

Spot map was prepared vide Ex.P-3 and the accused was arrested at

Village Bade Onki, Police Station Jharband (Orissa). In presence of

Mangal Nayak (PW-11) & Chhatrapal Garg (PW-7), disclosure

statement Ex.P-8 was recorded and dead body of Kuber was

recovered from the byara - courtyard (an open place adjoining the

house of the appellant) in possession of the appellant. Dead body of

Kuber was recovered vide seizure panchnama Ex.P-9, identification

panchnama was prepared vide Ex.P-10, naksha panchnama was

prepared Ex.P-11 and dehati morgue with regard to death of Kuber

was registered vide Ex.P-13/P-14. Postmortem on the dead body of

deceased Kuber was conducted vide Ex.P-7 by Dr. E.K. Thakur (PW-

Cr.A.No.288/2014

5). Plain soil was seized vide Ex.P-15 and body parts of the deceased

were also seized vide Ex.P-16. Seized articles went sent for chemical

examination to the Forensic Science Laboratory, Raipur vide Exs.P-17

& P-18. Statements of witnesses were recorded under Section 161 of

the CrPC..

3. After completion of investigation, charge-sheet was filed against the

appellant for offence under Section 302 of the IPC before the

jurisdictional criminal court which was committed to the Court of

Sessions for hearing and disposal in accordance with law.

4. The trial Court has framed charge under Section 302 of the IPC

against the appellant and proceeded on trial. The accused / appellant

abjured guilt and entered into trial. The prosecution in order to bring

home the offence examined as many as 11 witnesses and exhibited

20 documents Exhibits P-1 to P-20 and also demonstrated two

articles. Statement of Loknath Sahu recorded under Section 161 of

the CrPC has been exhibited on behalf of the accused / appellant as

Ex.D-1. Statement of the appellant was recorded under Section 313

of the CrPC in which he abjured guilt and pleaded innocence.

5. The trial Court after completion of trial and after appreciating oral and

documentary evidence on record, convicted the appellant under

Section 302 of the IPC clearly recording a finding that death of

deceased Kuber was homicidal in nature and the perpetrator of the

crime is the appellant herein and thereby sentenced him to undergo

imprisonment for life as noticed in the opening paragraph of this

judgment against which this appeal under Section 374(2) of the CrPC

has been preferred.

6. Mr. Hanuman Prasad Agrawal, learned counsel appearing for the Cr.A.No.288/2014

appellant, would submit as under: -

1. Death of deceased Kuber to be homicidal in nature has not been

proved beyond reasonable doubt as per the statement of Dr. E.K.

Thakur (PW-5) and therefore once death of Kuber is not proved to

be homicidal in nature, conviction has to be set aside and the

appellant is entitled for acquittal.

2. Dead body of Kuber was highly decomposed and it was not

possible for any of the witnesses including Chhatrapal Garg (PW-7)

to identify the dead body and in absence of proper identification of

the dead body of the deceased, disclosure statement cannot be

relied upon as an incriminating circumstance against the appellant

and therefore the appellant is entitled for acquittal by setting aside

the judgment of the trial Court.

7. Per contra, Mr. Sunil Otwani, learned Additional Advocate General

appearing for the State / respondent, would submit that the trial Court

has clearly recorded a finding that death of the deceased was

homicidal in nature as ligature mark over the neck of the deceased

was found which is clearly indicative of the fact that death was

homicidal in nature and therefore the finding of the learned trial Court

is well founded in this regard. Secondly, dead body of deceased

Kuber has been identified by Chhatrapal Garg (PW-7) - maternal

uncle of the deceased to whom it has not been seriously contradicted

even on behalf of the accused / appellant which goes to show that the

body recovered pursuant to the memorandum statement of the

appellant from his byara (courtyard) in possession of the appellant

was the dead body of Kuber, as such, the dead body has clearly been

identified to be that of Kuber. Mr. Otwani, learned State counsel, Cr.A.No.288/2014

would further submit that conducting of DNA test for identification of

the body is always necessary by other evidence direct or otherwise,

and in the present case, identity of the dead body is established. He

would rely upon the decision of the Supreme Court in the matter of

Pattu Rajan v. State of Tamil Nadu1 to buttress his submission.

8. We have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

record with utmost circumspection.

9. The trial Court after appreciating oral and documentary evidence on

record has found the following incriminating circumstances against the

appellant herein: -

1. Death of deceased Kuber, aged about 3 months, was homicidal

in nature.

2. The deceased and the appellant were in the house on the

fateful day as Smt. Radheshwari alias Neha (PW-1) - the

appellant's wife, had gone out for bringing vegetables and

thereafter, the accused absconded along with his minor son, as

such, the theory of last seen together is established.

3. Pursuant to the memorandum statement of the appellant, dead

body of deceased Kuber was recovered from the byara

(courtyard) / back portion of the appellant's house which was

duly identified by Chhatrapal Garg (PW-7) - maternal uncle of

the deceased.

10. Mr. Agrawal, learned counsel for the appellant, has vehemently

contended that death of the deceased - Kuber was not homicidal in

1 (2019) 4 SCC 771 Cr.A.No.288/2014

nature as it has not been established, therefore, the case of the

prosecution must fall on that ground. He relied upon the statement of

Dr. E.K. Thakur (PW-5), who in paragraph 6 has stated that he cannot

say whether death of the deceased was natural or otherwise.

However, the learned trial Court in paragraph 11 of the judgment after

rejecting the opinion evidence of Dr. E.K. Thakur (PW-5) has clearly

held that a knot was found on the neck of the deceased, ligature mark

was also found on the backside of neck and eyes were found

protruded and thereafter, recorded a finding that death of the

deceased was homicidal in nature.

11. According to the Modi's Medical Jurisprudence and Toxicology 2, 24th

Edition 2011, Strangulation is defined as the compression of the neck

by a force other than hanging. Weight of the body has nothing to do

with strangulation. It has further been stated that ligature

strangulation is a violent form of death, which results from constricting

the neck by means of a ligature or by any other means without

suspending the body. It has also been stated that post-mortem

appearances are external and internal. The external appearances are

those due to the constricting force applied to the neck, and those due

to asphyxia. Appearances on the neck vary according to the means

used. Post-mortem appearance has been described as under: -

"Post-mortem Appearance.-Post-mortem appearances are external and internal.

(i) External Appearance.-The external appearances are those due to the constricting force applied to the neck, and those due to asphyxia.

(a) Appearances on the Neck.-Appearances on the neck

2 A Textbook of Medical Jurisprudence and Toxicology by Jaising P Modi, Twenty-Fourth Edition 2011 Cr.A.No.288/2014

vary according to the means used.

(1) Ligature Mark.-Ligature mark is a well-defined and slightly depressed mark corresponding roughly to the breadth of the ligature, usually situated low down in the neck below the thyroid cartilage, and encircling the neck horizontally and completely. The marks are multiple if the ligature is twisted several times round the neck, also more than one firm knot of the ligature is certain of homicide. The mark may be oblique as in hanging, if the victim has been dragged by a cord after he has been strangled in a recumbent posture, or if the victim was sitting and the assailant applied a ligature on the neck while standing behind him, thus using the force backward and upward. The base of the mark, which is known as a groove or furrow, is usually pale with reddish and ecchymosed margin. It becomes dry, hard and parchment-like, several hours after death, if the skin has been excoriated. The pattern of the ligature may also be seen. Very often, there are abrasions and ecchymoses in the skin adjacent to the marks. In some cases, the mark in the neck may not be present at all, or may be very slight, if the ligature used is soft and yielding like a stocking or scarf, and if it is removed soon after death. A careful search of the neck may reveal minute fibres and any other material from the ligature."

12. Considering the presence of knot on the neck of the deceased and

further finding ligature mark on the backside of neck of the deceased

and further taking into consideration the definition of "strangulation"

and post-mortem appearance / external appearance, we are unable to

hold that the learned trial Court is unjustified in holding the death of

the deceased to be homicidal in nature and we hereby confirm the

finding of the trial Court holding that death of the deceased was

homicidal in nature.

13. This brings us to the next question as to whether the conviction of the

appellant under Section 302 of the IPC holding the appellant to be the

perpetrator of the crime, is justified or not?

14. The trial Court has held that it is the appellant who has caused the Cr.A.No.288/2014

death of Kuber as the appellant himself in order to give effect to the

crime and to commit the murder of Kuber had sent his wife to bring

vegetables and once she has gone out for bringing vegetables, the

appellant absconded with deceased Kuber and thereafter, deceased

Kuber and the appellant both went missing, and on report when the

FIR was made by the wife of the appellant, the appellant was arrested

at Village Bade Onki, Police Station Jharband (Orissa) and thereafter,

on memorandum statement of the accused / appellant, dead body of

the deceased was recovered. Thus, the trial Court has recorded a

finding that the theory of last seen together is established.

15. Smt. Radheshwari alias Neha (PW-1) is mother of the deceased and

wife / concubine of the appellant as no marriage had taken place

between the appellant and Smt. Radheshwari alias Neha (PW-1) and

out of that cohabitation, Kuber was born being an illegitimate son.

Smt. Radheshwari alias Neha (PW-1) has clearly stated that on the

fateful day, the appellant requested her to bring vegetables from local

market, then she went outside to bring vegetables leaving her son

Kuber and her husband as at that time Kuber was sleeping and when

she came back along with vegetables, she found the door of the

house open and the appellant and her son both were missing, even

the milk bottle and clothes of her son were in the house, by which she

apprehended and lodged FIR in the police station vide Ex.P-1.

Though she has been subjected to lengthy cross-examination, but it

has clearly been established that the accused / appellant and the

deceased both were alone in the house when she went out to bring

vegetables as requested by the appellant. As such, the appellant and

the deceased were last seen together and thus, the appellant was Cr.A.No.288/2014

seen together with the deceased and therefore the appellant is

required to explain as to how deceased Kuber died, which he has

miserably failed.

16. In the matter of Harijan Bhala Teja v. State of Gujarat 3, the Supreme

Court has held that since the accused only was staying with his wife at

time of her death, it is for the accused to show as to in what manner

she died and relying upon Section 106 of the Indian Evidence Act, it

was held as under:-

"19. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it is proved on the record that it was only the appellant who was staying with his wife at the time of her death, it is for him to show as to in what manner she died, particularly, when the prosecution has successfully proved that she died homicidal death."

17. Likewise, in the matter of Gajanan Dashrath Kharate v. State of

Maharashtra4, where the accused (Gajanan Dashrath Kharate)

alleged to have killed his father and has not offered any explanation

for homicidal death of his father, conviction was affirmed by the

Supreme Court by holding as under:-

"14. Upon appreciation of oral evidence and the circumstance of the recovery of blood stained clothes of the accused and the conduct of the accused in not offering any explanation for the homicidal death of his father, by concurrent findings, the trial court and the High Court rightly convicted the appellant-accused under Section 302 IPC and we do not find any reason to interfere with the impugned judgment."

18. In the present case, death of Kuber has been established and his

death was also homicidal in nature and pursuant to the memorandum

3 AIR 2016 SC 2065 4 (2016) 4 SCC 604 Cr.A.No.288/2014

statement of the appellant herein, dead body was recovered from the

byara / courtyard of the appellant and it was for the accused /

appellant to explain how Kuber died, but he has miserably failed to do

so. This is the case where Section 106 of the Evidence Act is clearly

attracted, which requires the accused person to explain the facts in his

exclusive knowledge. True it is that burden of proof is on the

prosecution and Section 106 of the Evidence Act does not relieve it of

that duty but the said provision is attracted, when it is impossible or it

is difficult for the prosecution to establish the facts which are fully

within the knowledge of accused persons. Recovery of remains of

dead body of the deceased and other articles from the place disclosed

by the appellant herein in his memorandum statement is fully

established and the accused / appellant had failed to explain as to

how he alone had the information leading to recovery. Thus, the

failure of the accused persons to give an explanation is an additional

circumstance against the accused. (See State of Rajasthan v.

Jagguram5 followed in Suresh and another v. State of Haryana6.)

Thus, we are of the considered opinion that the prosecution has

clearly established the theory of last seen together of the appellant

and the deceased, and the appellant has failed to explain as to how

Kuber died.

19. This further brings us to the next submission of the learned counsel for

the appellant that dead body of the deceased was in such a

decomposed condition that it could not have been identified by

Chhatrapal Garg (PW-7) - maternal uncle of the deceased.

20. Chhatrapal Garg (PW-7) has proved the identification panchnama

5 (2008) 12 SCC 51 6 (2015) 2 SCC 227 Cr.A.No.288/2014

Ex.P-10 and he has clearly stated that on seeing face and clothes of

the child, he has identified the dead body as that of Kuber. Though he

has been subjected to lengthy cross-examination, but nothing has

been elicited from the statement of this witness to disbelieve his

version.

21. Way back in the year 1981, in the matter of Rama Nand and others v.

State of Himachal Pradesh7, their Lordships of the Supreme Court

have held in no uncertain terms that discovery of the dead body of the

victim bearing physical evidence of violence, has never been

considered as the only mode of proving the corpus delicti in murder.

Their Lordships further held that the 'body' doctrine is merely a rule of

caution and not of law. It has also been held that where the dead

body of the victim in a murder is not found, other cogent and

satisfactory proof of homicidal death of the victim must be adduced by

the prosecution. But where the fact of corpus delicti or homicidal

death is sought to be established by circumstantial evidence alone, or

by both, the circumstances must be of a clinching and definitive

character unerringly leading to the inference that the victim concerned

has met a homicidal death. Their Lordships observed as under:-

"28. This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused.

Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. "I would never convict," said Sir Mathew Hale, "a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead." This was merely a rule

7 (1981) 1 SCC 511 Cr.A.No.288/2014

of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old "body" doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eyewitness, or by circumstantial evidence, or by both. But where the fact of corpus delicti i.e. 'homicidal death' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3, Evidence Act, a fact is said to be "proved", if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. ..."

22. The principle of law laid down in Rama Nand (supra) has been

reiterated and followed by the Supreme Court in the matter of Ramjee

Rai and others v. State of Bihar8 and it has been held by their

Lordships of the Supreme Court that discovery of the dead body is a

rule of caution and not of law and where strong circumstantial

evidence exist, conviction can be recorded even in absence of the

8 (2006) 13 SCC 229 Cr.A.No.288/2014

dead body.

23. Again the Supreme Court in the matter of Rishi Pal v. State of

Uttarakhand9 following Rama Nand (supra) held that absence of

corpus delicti is insignificant if cogent and satisfactory proof of

homicidal death of victim is adduced. The decision of the Supreme

Court in Rama Nand (supra) has further been followed in the matter of

Sanjay Rajak v. State of Bihar10.

24. The next submission of the learned counsel for the appellant is that for

identification of the body of the deceased, the DNA test required ought

to have been conducted by the prosecution and failure to conduct

DNA test will vitiate the conviction recorded and sentence awarded to

the accused / appellant.

25. The Supreme Court in Pattu Rajan (supra) has held that though a

DNA test helps the courts immensely in determining reliability of

identification of body of deceased, but rejected the contention that

non-conducting of a DNA test and reliance on evidence regarding

identification through superimposition is improper. It has been

observed in paragraph 57 of the report as under: -

"57. Therefore, we are of the opinion that the scientific evidence of PW 34 was rightly believed by the trial court as well as by the High Court, and strengthens the evidence of PWs 1 and 2 regarding the identification of the body.

Though a DNA test would have helped the courts immensely in determining the reliability of the identification of the body of the deceased, in the presence of other reliable evidence on record in favour of the prosecution version on this aspect, we reject the contention that the non-conducting of a DNA test and the reliance on evidence regarding identification through superimposition is improper. This is all the more true since no material is forthcoming to the effect that the parents of the deceased 9 2013 Cri.L.J. 1534 10 (2019) 12 SCC 552 Cr.A.No.288/2014

were alive during the relevant period, so as to conduct comparative DNA tests."

26. In the present case, as noticed herein-above, other pieces of evidence

including last seen together, recovery of dead body on the basis of

disclosure statement of the appellant herein, particularly motive of the

appellant to kill the deceased, being illegitimate son, are also well

established.

27. In that view of the matter, we are unable to hold that the learned trial

Court is unjustified in convicting the appellant for offence under

Section 302 of the IPC. We accordingly, do not find any merit in the

appeal, it deserves to be and is accordingly dismissed.

                 Sd/-                                               Sd/-
          (Sanjay K. Agrawal)                                (Rajani Dubey)
                Judge                                              Judge

Soma