Chattisgarh High Court
Tokendra Kumar Janghel vs Uttam And Anr on 6 December, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 11 of 2013
Reserved on 7-11-2022
Delivered on 06-12-2022
Panda Sahu S/o Dhanuram Sahu Aged About 50 Years
R/o Kurwa, P.S. Sahaspur Lohara, Dist. Kabirdham C.G.
---- Appellant /Accused
Versus
State Of Chhattisgarh S/o Through P.S. Sahaspur Lohara,
Dist. Kabirdham C.G.
---- Respondent
&
ACQA No. 76 of 2013
Tokendra Kumar Janghel S/o . Late Bharat Janghel Aged
About 35 Years R/o. Vill. Belgaon (Narmada), P.S.
Chhuikhadan, Distt. Rajnandgaon C.G.,
---- Appellant /complainant
Versus
1. Uttam S/o . Chain Singh Sahu Aged About 32 Years R/o.
Vill. Kamanbod, P.S. Sahaspur Lohara, Distt. Kabirdham
C.G. ---- Accused
2. The State Of C.G. Through The P.S. Sahaspur Lohara,
Distt. Kabirdham C.G., District : Kawardha (Kabirdham),
CG
---- Respondents
---------------------------------------------------------------------------------------
For Appellant in Cr.A. No. 11/2013 :
Mr. Rahil Arun Kochar, Adv.
For appellant in ACQA No. 76/2013 :
Mr. Dashrath Prajapati, Adv.
For State :
Mr. Devesh Chandra Verma, GA
For respondent No. 1 in Acq. A. No. 76/2013 :
Mrs. Indira Tripathi, Adv.
DB : Hon'ble Mr. Goutam Bhaduri &
Hon'ble Mr. N.K. Chandravanshi, JJ
CAV JUDGMENT
Per NK Chandravanshi, J
1. Since both the above appeals arise out of same
crime number and same sessions trial, they are heard together
and are being decided by this common judgment.
2. Both the appeals have been preferred against
judgment dated 21-12-2012 passed by the Sessions Judge,
Kabirdham (Kawardha), CG in Sessions Case No. 42/2011,
whereby the respondent No. 1 Uttam (of Acq. Appeal No.
76/2013) has been acquitted from the offences under Section
302 (twice) and Section 201 of the Indian Penal Code
(hereinafter referred to as "IPC") (twice) and appellant Panda
Sahu (of Cr. A. No. 11/2013) has been convicted and
sentenced as under :-
Sr. Conviction for Sentence Fine Default clause
Offence u/S. sentence
No.
1 302/34 of IPC Imprisonment Rs. 2,000/- RI for six
(twice) for life (twice) (twice) months (twice)
2. 201/34 of IPC RI for 7 years Rs. 1,000/- RI for six
(twice) (twice) (twice) months
All the substantive jail sentences have been
directed to run concurrently.
3. Facts of the case, in brief, are that on 7-1-2011,
Bharat Janghel (deceased) and Meghnath Yadav (deceased)
had gone from their village Belgaon to village Kurva on
motorcycle bearing Registration No. CG 04 CD 2331 to meet
Gomukh and Anjor Sahu. When they did not return, then on
17-1-2011, missing report No. 01/2011, about them was
registered in Rojnamchasanha (Ex. P-25-C) of PS Chhuikhadan,
and later, on written complaint (Ex. P-26) made by Tokendra
(P.W. 25), son of Bharat Janghel, FIR bearing Crime No.
36/2011 (Ex. P-26-A) was registered under Section 365 of IPC
against unknown persons. Since no possibility of kidnapping was
found by police, therefore, Closure report (Ex. P-27) was
submitted. It is said that in respect of missing report of said
persons, Gomukh Sahu and Anjor Sahu had been called by the
police of PS Chhuikhadan and due to fear of being caught, in the
intervening night of 5th - 6th of February, 2011, they i.e. Gomukh
Sahu and Anjor Sahu committed suicide by consuming
pesticides. In this regard, merg No. 3/2011 and 4/2021 were
registered in PS Lohara, Distt. Kawardha and closure report
Ex. P-27 was filed by the police.
3.1 During merg inquiry, on the basis of public
discussion and information received from informant, cleaning of
casing pipe of tube well situated in the agricultural field of
appellant Panda Sahu was done on 5-3-2011, wherein pieces of
rotten flash, hair, pieces of bones, pieces of clothes, etc. were
recovered from casing pipe of tube well. Unnumbered merg
report (Ex. P-28) and numbered merg (Ex. P-28A) were
registered. Panchnama of place of occurrence Ex. P-6 and
recovery memo of aforesaid articles vide Ex. P-8 and Ex. P-32
were prepared on 5-3-2011 by the police. Vide Ex. P-9-A,
inquest report of body parts was prepared. PM report vide Ex.
P-51/52 was received. Aforesaid articles recovered from casing
pipe of tube well were found to be of deceased Bharat Janghel.
On the basis of Merg report and PM report, FIR Ex. P-59 bearing
Crime No. 57/2011 was lodged on 24-3-2011 against Gomukh
and Anjor Sahu.
3.2 During investigation, appellant Panda Sahu on
6-4-2011 vide disclosure memo (Ex. P-33) disclosed that he
along with Gomukh, Anjor and Uttam had murdered Bharat
Janghel and Meghnath by means of axe and carpenter axe and
after cutting the body of Bharat Janghel into pieces, they had put
the pieces of dead body in casing pipe of tube well situated in the
filed of appellant Panda Sahu and had buried dead body of
Meghnath by keeping it in a sack, at Amalidih Khar beside
Koelari Jhori (nala) near mangrove of Bodhi Sahu. He also
disclosed that by damaging the motorcycle bearing No. CG 04
CD 2331 by separating its parts, the same has been buried in the
Badi situated in the backyard of house of Uttam Sahu. On the
basis of disclosure statement of appellant Panda Sahu, dead
body of Meghnath and damaged motorcycle /parts thereof were
recovered from above places. Dead body was identified as body
of Meghnath Yadav. Merg report Ex. P-54 was registered after
recovery of dead body of Meghnath, inquest report of dead body
was prepared, post mortem was got done vide Ex. P-52. On
15-4-2011, memorandum statement of accused Uttam Sahu was
also recorded vide Ex. P-23, who also stated the facts as has
been disclosed by appellant Panda Sahu vide seizure memo
Ex. P-24. Carpenter axe, spanners were seized, DNA test was
also got conducted on remains of dead body and on dead body
recovered near nala, which were reported to be dead body of
Bharat Janghel and Meghnath respectively. Report of DNA test
is Ex. P-70. FSL report was also received about other seized
articles.
3.3 After completion of investigation, charge sheet was
filed in the Court of Judicial Magistrate First Class, Kawardha,
Distt. Kabirdham, who in turn committed the case to the Court of
Session. Thereafter, case was tried by the Sessions Court.
4. Charges under Section 302, in alternate, 302/34, of
IPC (twice), and Section 201, in alternate, 201/34 of IPC (twice)
were framed against both the accused persons, which were
denied by them. To bring home the guilt of the accused persons,
prosecution examined as many as 27 witnesses. Statement
under Section 313 of the Cr.P.C. were also recorded, in which
they denied the circumstances appearing against them and
pleaded not guilty. But, they admitted DNA test report Ex. P-70.
Each of the accused persons examined one defence witness in
support of their defence.
5. After hearing both the parties, learned Sessions
Judge acquitted accused Uttam Sahu from all the charges and
convicted the appellant Panda Sahu, as stated in para 2 of this
judgment, which is assailed by the appellants in these appeals.
6. Learned counsel for the appellant Panda Sahu
would submit that there is no direct evidence against the
appellant in the case. Prosecution case rests only on
circumstantial evidence. It is further submitted that in this case,
there is only one incriminating circumstance adduced against
appellant Panda Sahu, which is alleged to be disclosure
statement recorded on 6-4-2011 (Ex. P-33), on the basis of
which, dead body of Meghnath Yadav and damaged motorcycle /
parts thereof, were said to be recovered. It is further submitted
that appellant has been convicted for murder of Bharat Janghel
also, but as per case of prosecution itself, alleged rotten flesh of
human, bones, clothes, etc., which are said to be of Bharat
Janghel, had been recovered from casing pipe of tube well on
5-3-2011 and Panchnama Ex. P-6, recovery memo Ex. P-8 and
recovery memo Ex. P-32 had also been prepared on 5-3-2011,
whereas memorandum statement Ex. P-33 of appellant Panda
Sahu was recorded after one month i.e. on 6-4-2011, thus
aforesaid recovery had been made one month prior to alleged
disclosure statement of appellant Panda Sahu. Although on the
basis of memorandum statement, alleged damaged motorcycle,
in which both the deceased had gone, was recovered, but only
on that basis, appellant Panda Sahu cannot be held responsible
for act of murder of Bharat Janghel, therefore, impugned
judgment of conviction of appellant Panda Sahu is perse illegal,
as the same is without any iota of evidence.
6.1 Learned counsel would further submit that so far as
conviction of appellant Panda Sahu for murder of Meghnath
Yadav is concerned, there is only one incriminating circumstance
that allegedly, his dead body and damaged motorcycle/parts
thereof bearing registration No. CG 04 CD 2331, in which
deceased persons had gone from their village on 7-1-2011,
were recovered from the place shown/disclosed by appellant
Panda Sahu, but as per evidence and documents of prosecution
itself, places from where dead body of Meghnath and damaged
motorcycle/parts thereof were recovered, are open places, which
are accessible to one and all.
6.2 It is further submitted by learned Defence Counsel
that Dudasan Ram Verma (P.W. 7) has deposed that as per
paper news, after one week from recovery of remains of dead
body of Bharat Janghel, the dead body of Meghnath Yadav and
motorcycle were recovered, Kanshu Yadav (P.W. 8) who is
brother of deceased Meghnath Yadav has also deposed in his
deposition that when the dead body of Meghnath was found,
police had taken Panda Sahu from the spot and no one has told
police about dead body of Meghnath. Rajjelal Sahu (P.W. 15)
who is driver of JCB, has clearly stated in his deposition that on
instruction of police, he dug two places at village Kurva, where
they did not find anything and on third place, they found dead
body (of Meghnath) in a sack. Tokendra (P.W. 25), who is son of
deceased Bharat Janghel has deposed in para 12 that he had
gone along with Rakesh, Bheshaj, police personnel and various
other villagers, to Badi of Uttam situated at village Kamanbod,
where on the basis of suspicion, Badi of Uttam Sahu was dug,
from where parts of motorcycle were recovered vide seizure
memo Ex. P-35. Thus, aforesaid evidence shows that police
were already aware about the places from where dead body of
Meghnath and damaged motorcycle / parts thereof, were alleged
to have been recovered, that too, from open place. Therefore, it
has not been proved beyond reasonable doubt that dead body of
Meghnath and motorcycle/parts thereof were recovered at his
behest. It is further submitted that even police have not prepared
any recovery panchnama or seizure memo of dead body of
Meghnath from alleged place. Any motive of appellant Panda
Sahu for alleged crime has also not been proved by the
prosecution. Therefore, in view of above facts and evidence, the
impugned judgment deserves to be set aside, so far as it relates
to conviction of appellant Panda Sahu.
6.3 In this regard, he relied on judgment rendered by
Hon'ble Supreme Court in the case of Kaliram -v- State of
Himachal Pradesh [(1973) 2 SCC 808] and Sharad
Birdhichand Sarda -v- State of Maharashtra [(1984) 4 SCC
116].
7. Per contra, learned counsel appearing for the State
submits that prosecution has fully established the case, as dead
body of Meghnath and motorcycle were recovered on the basis
of disclosure statement made by appellant Panda Sahu. He
further submits that remains of dead body and other articles of
Bharat Janghel were also recovered from where they had been
concealed, as he has stated in his disclosure statement.
Particularly, damaged motorcycle by which, both the deceased
persons had gone, has been recovered at the instance of
appellant Panda Sahu. These facts have been proved by ocular
evidence which are well supported by documentary evidence
adduced by the prosecution. It is next submitted that from the
evidence available on record, incriminating circumstances have
been proved beyond reasonable doubt against the appellant, as
such, the appeal is liable to be dismissed.
8. Learned counsel appearing for the appellant
Tokendra in Acq. Appeal No. 76/2013 would submit that while
acquitting accused Uttam Sahu, learned Sessions Judge has not
appreciated the evidence properly as motorcycle bearing
Registration no. CG 04 CD 2331 has been seized from Badi
situated in the backyard of accused Uttam Sahu and his
involvement has also been shown in memorandum of appellant
Panda Sahu, who has been convicted by learned Sessions
Judge. Therefore, the order of acquittal passed by learned
Sessions Judge in respect of accused Uttam deserves to be set
aside and he may also be convicted for the offence charged
against him.
9. Learned counsel for the respondent No. 2 Uttam
Sahu would support the judgment of acquittal passed by learned
Sessions Judge.
10. We have heard learned counsel for the parties at
length and perused the record of the Court below with utmost
circumspection.
11. The law with regard to conviction in cases based on
circumstantial evidence has been very well crystallized in the
celebrated case of Hanumant, son of Govind Nargundkar v.
State of Madhya Pradesh [(1952) 2 SCC 71]. A three-Judge
Bench of Hon'ble Supreme Court, in this regard, observed thus:
"It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is
to be drawn should in the first instance be fully
established, and all the facts so established should
be consistent only with the hypothesis of the guilt of
the accused. Again, the circumstances should be of
a conclusive nature and tendency and they should
be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must
be a chain of evidence so far complete as not to
leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it
must be such as to show that within all human
probability the act much have been done by the
accused."
12. In the case of Sharad Birdhichand Sarda v. State
of Maharashtra (supra), Hon'ble Supreme Court observed thus:
"153. A close analysis of this decision would show
that the following conditions must be fulfilled before
a case against an accused can be said to be fully
established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned "must or should" and
not "may be" established. There is not only a
grammatical but a legal distinction between "may
be proved" and "must be or should be proved" as
was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC
793] where the observations were made :
"Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a
court can convict and the mental distance between
'may be' and 'must be' is long and divides vague
conjectures from sure conclusions."
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on
any other hypothesis except that the accused is
guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case
based on circumstantial evidence."
13. Further referring aforesaid case laws, Hon'ble
Supreme Court in Lochan Shrivas -v- The State of
Chhattisgarh [2021 SCC Online SC 1249] has held as below in
para 16 :-
"16. As has been held by this Court, in a case of
circumstantial evidence, before the case can be
said to be fully established against an accused, it is
necessary that the circumstances from which the
conclusion of guilt is to be drawn, should be fully
established, and all the facts so established should
be consistent only with the hypothesis of the guilt of
the accused. They should not be explainable on
any other hypothesis except that the accused is
guilty. The circumstances should be of a conclusive
nature and tendency. They should exclude every
hypothesis except the one to be proved. There
must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion
consistent with the innocence of the accused and
must show that in all human probabilities, the act
must have been done by the accused."
14. Reverting to the instant case, Tokendra (P.W. 25) is
son of deceased Bharat Janghel. He has deposed in his
deposition that on 7-1-2011, his father and his uncle Meghnath
had gone to village Kurva in Hero Honda Splendor motorcycle of
his maternal grant-father D.R. Verma (P.W. 7), whom Meena Bai
(P.W. 3), wife of Meghnath, had seen, but they did not return and
despite being searched, they could not trace them. He has
further stated that on 5-3-2011, police dug tube well of appellant
Panda Sahu through compressor machine, from which slippers,
clothes, sweater, rotten flesh like human, towel, etc. were
recovered. In this regard, panchnama of place of incident Ex. P-
6, recovery memo Ex. P-8 and Ex. P-32 were prepared by police.
He has further deposed that police also got dug field (Badi) of
Uttam through JCB machine, from where, damaged motorcycle/
parts thereof in open condition along with documents were
recovered, by which, his father and uncle had gone. In this
regard, seizure memo Ex. P-35 and memo of identification Ex.
P-18 were prepared by the police. Kansu Yadav (P.W. 8),
Nagdas (P.W. 10), Abdul Hamid Rizavi (P.W. 21), Rakesh
Janghel (P.W. 22) are respective witnesses of aforesaid
documents, which they have supported in their deposition.
15. Prithvi Dubey (P.W. 26) is the Investigating Officer of
the case. He has stated in his deposition that in respect of death
of Gomukh and Anjor Sahu, merg report Ex. P-20 and Ex. P-21
respectively were registered by him. During aforesaid merg
inquiry, he came to know that in respect of missing report No.
1/2011, deceased Gomukh and Anjor Sahu had been called by
police of police station Chhuikhadan, thereafter they were found
dead on 6-2-2011. He has further deposed that on the basis of
public discussion and information received from informant, after
getting necessary approval, tube well of appellant Panda Sahu
was got cleaned, in which rotten flesh, bones, clothes, sweater
were recovered. In this regard, recovery panchnama Ex. P-32,
Ex. P-8 and memo of place of incident Ex. P-6 were prepared by
him, which has been supported by the witnesses namely
Tokendra, Nagdas and others, as has been stated above.
15.1 Prithvi Dubey (P.W. 26) has further deposed that in
respect of remains / articles seized from the tube well, merg
report Ex. P-28 and P-28A were lodged. Inquest report Ex. P-9A
was prepared and post mortem report Ex. P-51 was received. He
has further stated that articles came out from the tube well were
identified by Tokendra (P.W. 25) as articles of his father Bharat
Janghel, which is well supported by Tokendra also.
15.2 Investigating Officer Prithvi Dubey (P.W. 26) has
proved in his deposition that vide Ex. P-15 he had sent rotten
flesh, hairs, bones, clothes and other articles for post mortem /
examination.
15.3 Prithvi Dubey (P.W. 26) has deposed in his Court
statement that on 6-4-2021, on being dug through JCB machine,
at Amalidih Khar beside Koelari Jhori (nala) near mangrove of
Bodhi Sahu, dead body of Meghnath, kept in a sack, was
recovered, he lodged Dehati Nalishi (Ex. P-54) in this regard. He
has also stated that dead body was identified as dead body of
Meghnath, by his brother (P.W. 8 Kanshu Ram) through jacket
worn by the dead body. In this regard, memo of identification Ex.
P-19 was prepared. He has also prepared inquest report vide Ex.
P-15-A and sent dead body of Meghnath vide Ex. P-31 for post
mortem. These facts have been proved by Kanshu Ram (P.W.
8), Rakesh Janghel (P.W. 22), Nagdas (P.W. 10), Bheshaj Ram
Janghel (P.W. 20) who are witnesses of Ex. P-19 and Ex. P-15A.
Ex. P-11 is spot map prepared by Investigating Officer Prithvi
Dubey and Ex. P-14 is Patwari Naksha prepared by Patwari
Ashok (P.W. 16), which they have also proved in their statement.
In these documents also, place of recovery of dead body of
Meghnath has been shown beside Nala (Koelari Jhori).
16. Dr. Rajkumar Singh (P.W. 27), Professor, Medical
College, Raipur conducted post mortem of remains of body parts
and examined clothes recovered from tube well. He has deposed
that in this regard two sealed packets were received, small
packet was not opened as the same contained mud/soil. On
opening of big packet, 9 packets were found which contained
various bones of ribs, vertebrae, scapula, tissues, articles
appears to be pieces of underwear, sandow banyan, chappal, full
pant, full shirt and sweater. He has stated in his statement that
on being examined, sharp cuts with slicing effect were found over
bones, broken effect were also found in two of the thoracic
vertebrae, such sharp cut were also found on various places of
sweater, full pant and full shirt. He preserved bone pieces for
DNA profiling and other articles for identification and FSL
examination. He has opined that aforesaid bones were found to
be of male human and multiple sharp cuts present on the bones
and clothes were caused by sharp and hard object(s), but he
could not have opined that whether they were caused during life
or after death, but he has further opined that if they were caused
during life, they were sufficient to cause death and then homicidal
in nature. He has proved in his statement, detailed post mortem
report Ex. P-51 prepared by him.
16.1 Dr. Rajkumar Singh (P.W. 27) also conducted post
mortem over body of deceased Meghnath and has proved post
mortem report Ex. P-52, wherein he has stated that 11 lacerated
wounds were found on various parts of body of the deceased
including vital parts coupled with various fractures. He has
opined that multiple injuries present on the dead body were
caused by hard and blunt object and some of injuries were
caused by hard and sharp object, which were sufficient to cause
death, if inflicted during life and nature of death would be
homicidal. He also preserved bones of both the dead bodies for
DNA profiling and viscera for chemical examination.
17. DNA test report (Ex. P-70), which has been admitted
by the appellant Panda Sahu, proves that rotten flesh, bones and
clothes, etc. excavated and seized from tube well of field of
appellant Panda Sahu was dead body of Bharat Janghel and
dead body recovered in a sack from Amalidih Khar beside
Koelari Jhori (nala) near mangrove of Bodhi Sahu was dead body
of Meghnath.
18. The manner in which dead body of Bharat Janghel
was disposed of /cut into pieces and injuries caused over body of
deceased Meghnath, as has been proved by Dr. Raj Kumar
Singh (P.W. 27) and also the manner in which dead bodies of
both the deceased were buried, proves that nature of death of
both the deceased was homicidal.
19. So far as the issue, as to whether homicidal death of
both deceased namely Bharat Janghel and Meghnath were
caused by appellant Panda Sahu, is concerned, Prithvi Dubey
(P.W. 26) has stated in his deposition that after merg inquiry, he
lodged FIR bearing Crime No. 57/2011 under Section 302, 201,
34 of the IPC against Gomukh Sahu and Anjor Sahu. As per
prosecution, both these persons committed suicide by consuming
pesticides. He has further deposed that during investigation, on
6-4-2011, appellant Panda Sahu was taken into custody and was
interrogated, in which, he stated vide Ex. P-33 thus :-
"eSa xzke dq:ok esa jgrk gWaw A fdlkuh dke djrk gWWw A xkseq[k ,oa vatksj
lkgw esjs nkekn gSa] rFkk mRre lkgw] xkseq[k lkgw dk HkkbZ gS A fnukad
[email protected]@2011 dh jkf= esa] esjs [ksr ds V~;wc csy esa ge pkjksa us xzke
csyxkWo ds Hkjr ta?ksy o es?kukFk ;kno dk udyh lksuk [kjhnus dh ckr
dks ysdj >xM+k gks x;k A rc ge pkjksa us Hkjr ta?ksy dks ihNs rjQ ls
flj esa Vafx;k ls ekjdj gR;k dj fn;s A rHkh es?kukFk ;kno gs Hkxoku
cpkvks dgdj Hkkxus yxk ftls nkSM+kdj Vafx;k ls ekjdj gR;k dj
fn;s A Hkjr ta?ksy ds 'ko dks clqyk ls VqdM+k&VqdM+kdj V~;wc csy ds
dsflax ikbZi esa Mky fn;s Fks A rFkk es?kukFk ;kno ds 'ko dks cksjk esa
Hkjdj veyhMhg [kkj esa cks/kh lkgw ds vke cxhpk ikl dks;ykjh >ksjh
ds tehu esa nQu dj fn;s rFkk eksVj lk;dy ghjks gks.Mk LIys.Mj
Iyl dz- lh-th- 04 C.D. 2331 dks ikuk isafpl ls [kksydj {kfr xzLr dj
mRre lkgw ds ?kj ds ihNs ckM+h ds tehu esa xM+k fn;s gSa A Hkjr ta?ksy
ds ikl fey 2]00][email protected]& #- dks ckn esa caVokjk djsxsa dgdj xkseq[k o
vatksj vius ikl j[ks Fks A ftl Vafx;k ls gR;k fd;s gSa] mls xkseq[k
vius ikl j[kk Fkk A rFkk clqyk o ikuk] isafpl dks mRre lkgw j[kk
gS A fnukad 5] [email protected]@2011 ds njE;kuh jkf= esa xkseq[k o vatksj lkgw
Lo;a tgj ihdj ej x;s gSa A pyks eS mDr eksVj lk;dy o es?kukFk
;kno ds 'ko dks cjken djk nsrk gWwA"
20. Prithvi Dubey (P.W. 26) has further deposed that on
6-4-2011, at the instance of appellant Panda Sahu, beside
Koelari Jhori situated near mangrove of Bodhi Sahu was dug
through JCB machine, from where, rotten dead body of Meghnath
was recovered and Badi situated in the backyard of house of
accused Uttam Sahu at village Kamanbod, when was dog,
damaged Hero Honda motorcycle/parts thereof bearing Regd.
No. CD 04 CD 2331 was recovered and the same was identified
by Tokendra Janghel (P.W. 25) saying that by the same
motorcycle, his father Bharat Janghel had gone. These facts
have been well supported by Bheshaj Ram Janghel (P.W. 20)
and Rakesh Janghel (P.W. 22) who are witnesses of disclosure
statement Ex. P-33 and recovery memo of motor cycle / parts
thereof Ex. P-35. Nothing has been brought in their cross-
examination to disbelieve their such statements.
21. Kanshuram (P.W. 8) has also stated that Tokendra
had identified the motorcycle. They have proved memorandum of
identification of damaged motorcycle (Ex. P-18) in their
statements. Charan Sahu (P.W. 4) and Krishna Sahu (P.W. 6)
have deposed that in the intervening night, when they were
present in the agricultural field of Krishna Sahu (P.W. 6) for
watering the field, they heard the noise of beating and 'Save God,
Save God' coming towards Amalidih Khar, where tube wells/
bore of Panda Sahu, Mehatar and Gomukh are situated. They
have also stated that due to fear, they came to village and after
taking Jhaduram, when they were again going to agricultural
field, then they had seen appellant Panda Sahu near pond and
on being inquired, he stated that he had gone for nature's call.
Thus, as per evidence adduced by the prosecution, 3
incriminating circumstances emerge against the appellant Panda
Sahu in respect of crime in question, which are as follows :-
(i) In the intervening night, Charan Sahu (P.W. 4) and
Krishna Sahu (P.W. 6) heard noise of beating and 'Save
God, save God' coming towards the tube well situated in
the field of appellant Panda Sahu and they had seen him in
the night near pond;
ii. Remains of dead body of Bharat Janghel were
recovered from tube well situated in the field of appellant
Panda Sahu; and
(iii) On disclosure statement made by Panda Sahu,
dead body of deceased Meghnath and damaged
motorcycle / parts thereof, bearing Regd. No. CG 04 CD
2331 were recovered from the place shown by him in
disclosure statement Ex. P-33.
22. So far as the first 2 incriminating circumstances
appearing against appellant Panda Sahu are concerned, Krishna
Sahu (P.W. 6) has stated that, towards the place from where the
noise of beating and 'Save God, save God' were coming, tube
wells of others like Mehatar, Gomukh are also situated, therefore,
only on the basis of hearing aforesaid noise, it cannot be
conclusively held that the noise was coming particularly from the
tube well situated in the field of appellant Panda Sahu. Although
the agricultural field where the tube well from where remains of
dead body of Bharat Janghel were recovered is said to be of
appellant Panda Sahu, but Nag Das (P.W. 10) who is Kotwar of
village Kurva, Tokendra (P.W. 25) and Ram Kumar (D.W. 1) who
is also a resident of village Kurva have deposed that Panda Sahu
had given that agricultural field to his son-in-law Gomukh (who
has committed suicide) and Gomukh was using that tube well.
More over, that tube well was situated in agricultural field which
was accessible to one and all, hence it cannot be held that
appellant Panda Sahu is involved in committing murder of
deceased Bharat Janghel and concealing remains of his dead
body in the tube well.
23. Like wise, as per deposition of Charan Sahu (P.W.
4) and Krishna Sahu (P.W. 6), on being inquired by them,
appellant Panda Sahu explained them that he had gone for
nature's call. He was found near the pond of village and it is
common fact that villagers used to go to attained natures call
near such place. These witness have also not stated any
incriminating fact that he was under any fear or they had seen
any blood stain etc. on his clothes or he was having any weapon,
therefore, seeing him in the intervening night near pond by
aforesaid witnesses is also not found to be an incriminating
circumstance against appellant Panda Sahu for commission or
his involvement in the alleged crime.
24. So far as 3rd incriminating circumstance is
concerned, it is the case of prosecution itself that remains of
dead body of Bharat Janghel were recovered on 5-3-2011,
whereas memorandum statement of appellant Panda Sahu (Ex.
P-33) was recorded on 6-4-2011 i.e. prior to one month, before
his disclosure statement. As per statement of Prithvi Dubey (P.W.
26), Uttam (acquitted co-accused/respondent No. 2 in acquittal
appeal No. 76/2013) had made disclosure statement (Ex. P-23)
on 15-4-2011 i.e. after more than one month of recovery of
remains of dead body of Bharat Janghel, that too, 9 days after
disclosure statement of appellant Panda Sahu and carpenter axe
& spanner etc. seized vide Ex. P-24 at his behest from the house
of his father-in-law are articles of common use & no blood stain
found reported on carpenter axe in FSL report Ex. P-69. Thus, it
is apparent that remains of dead body of Bharat Janghel were
neither recovered at the behest of appellant Panda Sahu nor
acquitted co-accused Uttam Sahu. Although damaged Hero
Honda Splendor motorcycle was recovered on the basis of
memorandum statement of appellant Panda Sahu, but only on
the basis of this evidence, he cannot be held guilty for committing
murder of Bharat Janghel as except this, there is no other
evidence against him to implicate for murder of Bharat Janghel.
Alleged damaged motorcycle was recovered well before
memorandum statement of Uttam Sahu, therefore, he also
cannot be held guilty for committing murder of Bharat Janghel.
Hence, the judgment of conviction and order of sentence passed
by learned Sessions Judge against appellant Panda Sahu for
committing murder of Bharat Janghel and concealment of his
dead body/ evidence of murder, is not found to be in accordance
with the evidence available on record. Hence, the same is not
sustainable. But, impugned judgment of acquittal of accused
Uttam Sahu passed by learned Sessions Judge is found to be
just and proper.
25. Now, so far as involvement of appellant Panda Sahu
in committing murder of Meghnath is concerned, there is only
one incriminating circumstance remains against him, that at his
instance, dead body of Meghnath Sahu and damaged
motorcycle/ parts thereof were recovered, which has been
assailed by learned counsel for the appellant on the ground that
the same is from open places accessible to one and all. In this
regard, Hon'ble Supreme Court in the case of State of HP -v-
Jeet Singh [(1999) 4 SCC 370] has observed as under :-
"26. There is nothing in Section 27 of the
Evidence Act which renders the statement of the
accused inadmissible if recovery of the articles
was made from any place which is "open or
accessible to others". It is a fallacious notion that
when recovery of any incriminating article was
made from a place which is open or accessible
to others, it would vitiate the evidence under
Section 27 of the Evidence Act. Any object can
be concealed in places which are open or
accessible to others. For example, if the article is
buried in the main roadside or if it is concealed
beneath dry leaves lying on public places or kept
hidden in a public office, the article would remain
out of the visibility of others in normal
circumstances. Until such article is disinterred,
its hidden state would remain unhampered. The
person who hid it alone knows where it is until he
discloses that fact to any other person. Hence,
the crucial question is not whether the place was
accessible to others or not but whether it was
ordinarily visible to others. If it is not, then it is
immaterial that the concealed place is accessible
to others."
26. Following aforesaid observation, Hon'ble Supreme
Court in the case of Lochan Srivas (supra) has held that "It
could thus be seen that this Court has held that what is relevant
is not whether the place was accessible to others or not, but
whether it was ordinarily visible to others. If the place at which
the article hidden is such where only the person hiding it knows
until he discloses that fact to any other person, then it will be
immaterial whether the concealed place is accessible to others."
27. In the instant case, it has been proved that dead
body of Meghnath and damaged motorcycle/ parts thereof were
recovered from the place shown by the appellant Panda Sahu,
which were buried beneath the land and they were recovered
after digging that place through JCB machine, which has also
been proved by JCB Machine driver Rajjelal Sahu (P.W. 15) and
other witnesses. Thus, considering the aforesaid observation
made by Hon'ble Apex Court, only because those places are
open and accessible to one and all, appellant Panda Sahu
cannot be exonerated from aforesaid incriminating circumstance
appear against him. Hence, argument advanced by his counsel
is not sustainable so far as concealment of dead body of
Meghnath is concerned.
28. The statement of Dudashan Ram Verma (P.W. 7),
that a week after recovery of dead body of Bharat Janghel, dead
body of Meghnath was recovered, is based only on news of
newspaper, he is neither a witness of recovery of dead body of
Bharat Janghel nor dead body of Meghnath and damaged
motorcycle also, therefore, his statement in this regard is
worthless. Although Tokendra (P.W. 25) has stated in his
deposition that on the basis of doubt, field (Badi) of accused
Uttam Sahu was dug, from where, damaged motorcycle/ parts
thereof were recovered, but investigating officer Prithvi Dubey
(P.W. 26), witnesses Bheshaj Ram Janghel (P.W. 20) and
Rakesh Janghel (P.W. 22) have specifically deposed that on the
basis of disclosure statement Ex. P-33 of appellant Panda Sahu,
damaged motorcycle/ parts thereof were recovered vide Ex. P-35
from the place shown by appellant Panda Sahu, therefore, only
on the basis of aforesaid statement of Tokendra (P.W. 25),
recovery of damaged motorcycle/ parts thereof at his behest
cannot be disbelieved. Since recovery of dead body of Meghnath
and damaged motorcycle/ parts thereof, were made from the
place shown by appellant Panda Sahu, therefore, who are the
owner / possessor of such place is immaterial.
29. Although recovery/seizure memo of dead body of
Meghnath was not prepared, but in inquest report Ex. P-15-A of
Meghnath, identification memo Ex. P-19 of his dead body, merg
report Ex. P-54 and spot map Ex. P-11, which have been proved
by Investigating Officer Prithvi Dubey (P.W. 26) and witnesses of
aforesaid documents, that dead body of Meghnath was
recovered from the place shown by the appellant Panda Sahu by
digging that place through JCB machine, therefore, non-
preparation of recovery / seizure memo in this regard is not found
fatal to the case of prosecution.
30. In the statement recorded under Section 313 of the
Cr.P.C., though, aforesaid incriminating circumstances have
been put to the appellant Panda Sahu, but he has not offered any
explanation except saying that it was wrong and false. Hence, on
the basis of evidence available on record, it is proved that the
dead body of Meghnath and damaged motorcycle, by which they
had gone from their village was recovered at his behest. But only
on the basis of these evidence, it cannot be held proved that
appellant Panda Sahu has committed murder of Meghnath or he
is involved in his murder, because in this regard, no other
material evidence or circumstance has been proved by
prosecution. Recovery of dead body and damaged motorcycle at
his behest shows possibility of his involvement, but it is also
possible that he might be involved in aforesaid crime after act of
murder and only for concealment of evidence/dead body and
motorcycle. It is golden principle of criminal jurisprudence, that
only on the basis of possibility and probability, any person cannot
be convicted. Moreover, as per statement of Suresh Yadav (P.W.
9), both the deceased had told him that they were going to meet
Gomukh and Anjor Sahu at village Kurva. It is also pertinent to
mention here that any motive of appellant Panda Sahu for
causing murder of Meghnath has also not been proved.
31. In the case of Kaliram (supra), Hon'ble Supreme
Court has observed in para 25 as under :-
"25. Another golden thread which runs through the
web of the administration of justice in criminal cases
is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the
accused and the other to his innocence, the view
which is favourable to the accused should be
adopted. This principle has a special relevance in
cases wherein the guilt of the accused is sought to
be established by circumstantial evidence."
32. Thus, only on the basis of one incriminating
circumstantial evidence, that at the instance of appellant Panda
Sahu, dead body of Meghnath and damaged motorcycle were
recovered, it cannot be held beyond reasonable doubt that he
committed murder or he is involved in the act of murder of
Meghnath.
33. In view of aforesaid discussion, we find that offence
against the appellant Panda Sahu under Section 302 of IPC
(twice) for commission of murders of Bharat Janghel and
Meghnath, is not found proved, but since at his instance, dead
body of Meghnath and damaged motorcycle were recovered,
hence we find that he has rightly been convicted and sentenced
under Section 201/34 of IPC for concealment of evidence
(motorcycle) of offence of murder of Meghnath, but his conviction
and sentence under Section 201/34 of IPC for concealment of
evidence (motorcycle) of murder of Bharat Janghel is not
sustainable and the same is set aside.
34. Resultantly, the Criminal Appeal No. 11/2013
preferred by appellant Panda Sahu is partly allowed. His
conviction and sentence under 302/34 of IPC (twice) and Section
201/34 of IPC for concealment of evidence of murder of Bharat
Janghel, are set aside and he is acquitted of the said offences.
However, his conviction and sentence for offence punishable
under Section 201/34 of IPC for concealment of evidence of
murder of Megthnath is maintained.
35. It is directed that appellant Panda Sahu be released
from jail forthwith in this case, if he has already served the
sentence imposed on him and if not required in any other case,
on his furnishing a personal bond of Rs. 25,000/- with one surety
of the like amount to the satisfaction of trial Court, for his
appearance before the higher Court, if required. Said bail bonds
shall remain in force for a period of six months.
36. In view of above discussion, the Criminal Appeal No.
76/2013 preferred by appellant/complainant Tokendra Kumar
Janghel is dismissed.
37. Other direction of the trial Court shall remain intact.
38. Record of the trial court be sent back forthwith along
with a copy of this judgment for compliance.
Sd/- Sd/-
(Goutam Bhaduri) (N.K. Chandravanshi)
Judge Judge
Pathak/-
