Chattisgarh High Court
Madan Lal Tandan vs The State Of Chhattisgarh on 5 August, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.685 of 2014
Judgment reserved on:22.7.2022
Judgment delivered on:5.8.2022
Madan Lal Tandan S/o Late Bisahuram, aged about 44
years, R/oVillageChhipali Sahid Chowk, Police
StationNagari, DistrictDhamtari (CG)
Appellant
(In Jail)
Versus
State of Chhattisgarh Through the Police Station
Nagari, DistrictDhamtari (CG)
Respondent
For Appellant: Mr.Roop Naik, Advocate
For Respondent/State: Mr.Ishan Verma, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sanjay S. Agrawal
C.A.V. Judgment
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant herein
under Section 374(2) of the CrPC is directed against
the judgment of conviction and order of sentence dated
26.5.2014 passed by the Additional Sessions Judge,
Dhamtari in Sessions Trial No.45/2013, by which the
appellant herein has been convicted for offence
punishable under Section 302 of the IPC and sentenced
him to undergo imprisonment for life and fine of
Rs.200/, in default of payment of fine to further
undergo R.I. for 3 months.
2. The case of the prosecution, in brief, is that on
06.10.2013 between 9 a.m. to 2.30 p.m. near Dodkinala
Chipli Forest, P.S. Nagri, the appellant herein caused
death of his wife Maheshwari and thereby committed the
offence under Section 302 of the IPC. It is further
case of the prosecution that the appellant herein used
to suspect the character of his wife Maheshwari and
used to quarrel with her on that account. On 06.10.2013
the appellant herein along with his wife Maheshwari and
his sister Hem Bai (PW6) had gone to Chipli forest
(dodkinala kup No.8) for collecting wood for domestic
purpose and after cutting wood and after bundling it,
the appellant asked her sister Hem Bai (PW6) to go
back to village and he & his wife Maheshwari would
follow and will come after sometime, but thereafter on
account of illicit relationship of deceased Maheshwari
with Om Prakash Tandon (PW1) and other villagers, some
quarrel took place between them and the appellant
herein has assaulted his wife Maheshwari by axe over
her neck twice by which she suffered grievous injuries
and died instantaneously. Omprakash Tandan (PW1) after
having inquired the matter from Hem Bai (PW6)
(father's sister) reported the matter to Police Station
Nagri vide Ex.P1. Thereafter inquest was conducted
vide Ex.P4. Spot map was prepared by the investigating
officer vide Ex.P2. Dead body of the deceased was
sent for postmortem to Primary Health Center, Nagri,
where Dr.D.R.Thakur (PW9) conducted postmortem vide
Ex.P9 and opined that mode of death was coma due to
cut of spinal cord and death was homicidal in nature.
Thereafter, FIR was registered vide Ex.P9"B" and the
matter was taken into investigation. As per memorandum
statement of the appellant (Ex.P10), axe was seized
vide Ex.P11 and the accused was arrested vide Ex.P13.
Clothes of the appellant and the deceased were seized
vide Ex.P12 and Ex.P15 and were sent for chemical
examination to FSL, but FSL report was not brought on
record. The appellant was chargesheeted in the Court
of Judicial Magistrate First Class, Nagri, who in turn,
committed the case to the Court of Session, Dhamtari,
from where the Additional Sessions Judge, Dhamtari
received the case on transfer for trial in accordance
with law. The appellant / accused abjured the guilt and
entered into defence.
3. In order to prove the prosecution case, the prosecution
examined as many as 14 witnesses and exhibited 38
documents Exs.P1 to P38. Statement of the
accused/appellant was recorded under Section 313 of the
CrPC, in which he denied guilt. However, the accused
has examined none in his defence.
4. The trial Court upon appreciation of oral and
documentary evidence available on record, by its
judgment dated 26.5.2014, convicted the appellant for
offence under Section 302 of the IPC and sentenced him
as aforementioned, against which, this criminal appeal
has been preferred.
5. Mr.Roop Naik, learned counsel appearing for the
accusedappellant, would submit that theory of last
seen together is not established and furthermore,
motive is also not established and memorandum & seizure
have not been proved in accordance with law and FSL
report has not been brought on record and as such,
conviction deserves to be set aside being without
evidence on record. He would rely upon the judgment of
the Supreme Court in the matter of Digamber Vaishnav
and another v. State of Chhattisgarh1.
6. On the other hand, Mr.Ishan Verma, learned Panel Lawyer
for the respondent/State, would submit that death of
the deceased was homicidal in nature and motive &
theory have been established by the prosecution and on
the basis of disclosure statement of the appellant, axe
was recovered and no explanation was offered by the
appellant under Section 313 of the CrPC and as such, it
is the case where the appeal is liable to be dismissed.
He would rely upon the judgment of the Supreme Court in
the matter of Dharam Deo Yadav v. State of Uttar
Pradesh2.
7. We have heard learned counsel appearing for the parties
and considered their rival submissions made hereinabove
and also went through the records with utmost
circumspection.
8. The first question for consideration would be, whether
1 (2019) 4 SCC 522
2 (2014) 5 SCC 509
death of deceased Maheshwari was homicidal in nature ?
9. The trial Court has answered the issue in affirmative
relying upon the statement of Dr.D.R.Thakur (PW9), who
has conducted postmortem and taking into account the
postmortem report (Ex.P9) held that death of the
deceased was homicidal in nature. A careful perusal of
the postmortem report (Ex.P9) would show that the
deceased died due to coma on account of cut of spinal
cord in cervical region. In that view of the matter,
the trial Court has rightly recorded a finding that
death of deceased Maheshwari was homicidal in nature.
We hereby concur with the view taken by the learned
trial Court in this regard.
10. Next question for consideration would be, whether the
appellant is author of the crime as held by the trial
Court ?
11. The trial Court has found the motive to be established
as the appellant used to suspect the character of his
wife deceased Maheshwari with his son Om Prakash Tandon
(PW1) and other villagers, which has been stated by Om
Prakash Tandon (PW1) in his statement before the Court
as well as other son Lokeshwar Kumar Tandon (PW7) and
that is the reason why on the fateful day the appellant
and the deceased along with Hem Bai (PW6) [appellant's
sister], all had gone to forest for collecting wood for
domestic purpose, but the appellant sent her sister Hem
Bai (PW6) firstly stating that he & his wife deceased
Maheshwari would follow her, but thereafter he started
quarreling with the deceased on the pretext that she is
having illicit relationship with Om Prakash Tandon
(PW1) and other villagers and by use of axe, he
assaulted Maheshwari, by which she suffered grievous
injuries and died. Dr.D.R.Thakur (PW9) has conducted
postmortem vide Ex.P9, in which he has opined that
cause of death was coma due to cut of spinal cord in
cervical region and death was homicidal in nature. As
such, motive has rightly been held established by the
trial Court. We hereby affirm that finding.
12. The trial Court has found proved the theory of last
seen together. It is trite law that a conviction cannot
be recorded against the accused merely on the ground
that the accused was last seen with the deceased. In
other words, a conviction cannot be based on the only
circumstance of last seen together. The conduct of the
accused and the fact of last seen together plus other
circumstances have to be looked into. Normally, last
seen theory comes into play when the time gap, between
the point of time when the accused and the deceased
were seen last alive and when the deceased is found
dead, is so small that the possibility of any person
other than the accused being the perpetrator of the
crime becomes impossible. It will be difficult in some
cases to positively establish that the deceased was
last seen with the accused when there is a long gap and
possibility of other persons coming in between exists.
However, if the prosecution, on the basis of reliable
evidence, establishes that the missing person was seen
in the company of the accused and was never seen
thereafter, it is obligatory on the part of the accused
to explain the circumstances in which the missing
person and the accused parted company. (See Dharam Deo
Yadav v. State of Uttar Pradesh3).
13. Reverting to the facts of the present case in light of
principle of law laid down by the Supreme Court in the
matter of Dharam Deo Yadav (supra), it is quite
established that in the instant case, admittedly, the
appellant, deceased Maheshwari and Hem Bai (PW6)
[appellant's sister] went to forest for collecting wood
on the fateful day and after collecting wood, the
appellant along with wood sent his sister Hem Bai and
told her that they would follow her, but thereafter he
started quarreling with the deceased on the pretext
that she (Maheshwari) was having some illicit
relationship and assaulted her by axe, by which she
suffered grievous injuries and died. A careful perusal
of statement of Hem Bai (PW6) would show that all
three had gone to forest for collecting wood, but she
was sent by the appellant promising her that they will
follow her, but when the appellant and the deceased did
not come back home till evening, then Om Prakash Tandon
(PW1) [son of the appellant and the deceased] inquired
from Hem Bai, to whom Hem Bai (PW6) informed that she
3 (2014) 5 SCC 509
was told by the appellant to go back to the home along
with wood and they would follow her, but they could not
come and thereafter dead body of the deceased was
recovered. Similar statements have been made by Om
Prakash Tandon (PW1) and Lokeshwar Kumar Tandon (PW7)
[two sons of the appellant and the deceased] that on
the fateful day, the appellant, deceased Maheshwari and
Hem Bai (PW6) all had gone to dense forest for
collecting wood. As such, it is clearly established
that the appellant was last seen with his wife
deceased Maheshwari and the trial Court has rightly
recorded a finding that the appellant and the deceased
both were seen together and on the fateful day, they
had gone to forest for collecting wood. As such, theory
of last seen together has rightly been proved.
14. On the basis of statements of Om Prakash Tandon (PW1),
Hem Bai (PW6) and Lokeshwar Kumar Tandon (PW7), the
prosecution has clearly established that the deceased
was seen in the company of the accused/appellant herein
and was never seen thereafter. It was obligatory on the
part of the accused/appellant herein to explain the
circumstance in which deceased / Maheshwari and the
accused parted company, but the appellant has failed to
explain in what circumstance the deceased (his wife)
died. Apart from this, pursuant to memorandum statement
of the appellant (Ex.P10), axe was seized on the place
shown by the appellant vide Ex.P11. As such, motive of
the appellant to cause death of the deceased and theory
of last seen together have been established and
furthermore, the appellant has failed to explain as to
under what circumstance his wife died when she along
with him had gone to forest for collecting wood and
furthermore, at the instance of disclosure statement of
the appellant (Ex.P10), axe in question was seized by
the police, which has been duly proved by the statement
of investigating officer Prem Singh Netam (PW11).
15. In that view of the matter, we are of the considered
opinion that chain of circumstances are fully
established by the prosecution and as such, the trial
Court has rightly held that it is the appellant who has
caused death of his wife Maheshwari Tandon. We do not
find any merit in this criminal appeal. Accordingly,
the appeal being devoid of merit is liable to be and is
hereby dismissed.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
B/
