Jairam Yadav vs State Of Chhattisgarh
2023 Latest Caselaw 904 Chatt

                                   1

                                                                NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR
                          CRA No. 19 of 2014
    Jairam Yadav, S/o Ratno Ram Yadav, aged about 30 Years, R/o
     Village Mati Pahad Chharra, PS Tumla, District Jashpur, C.G.

                                                         ----Appellant

                                Versus

    State of Chhattisgarh, Through the Tumla, District Jashpur, C.G.

                                                     ---- Respondent


For Appellant           Mr. Kalyan Kalamkar, Advocate.
For State               Mr. Sudeep Verma, Deputy Government
                        Advocate and Mr. Wasim Miyan, Panel Lawyer.


                 Hon'ble Shri Sanjay K. Agrawal and
                Hon'ble Shri Radhakishan Agrawal, JJ.

Judgment On Board (13.02.2023)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant herein under

Section 374(2) of the CrPC is directed against the impugned

judgment of conviction and order of sentence dated 22.11.2013

passed in Sessions Trial No.08/2012 by the Additional Sessions

Judge Kunkuri, District Jashpur, C.G., by which the appellant

stands convicted & sentenced as under:-

Conviction Sentence

Under Section 302 of Indian Imprisonment for life and fine of Penal Code (for short, 'IPC') Rs.7,000/-, in default of payment of fine additional rigorous imprisonment for one year

Under Section 201 of IPC Rigorous Imprisonment for three years and fine of Rs.3,000/-, in default of payment of fine additional rigorous imprisonment for one year

(Both sentences were directed to run concurrently)

2. Case of the prosecution, in brief, is that on 27.09.2011 appellant

herein assaulted his father / deceased- Ratno Ram Yadav with

Tabbal and committed his murder. Appellant in order to conceal

the evidence, severed dead body of the deceased from head,

enwrapped rest of the body in blanket and buried the same in the

courtyard adjoining the badi of the house and kept the head of

the deceased in an earthen pot, buried at a separate place and

planted a mango tree over there. On the report of PW-4

Bhojoram, police registered the aforesaid offence and lodged the

FIR Ex.P-15 against the appellant. Merg intimation was

registered vide Ex.P-16. Spot panchnama & inquest proceedings

were conducted vide Ex.P-3 & Ex.P-3A respectively, except

head, other parts of the body of the deceased were noticed by

villagers. Dead body of the deceased was sent for postmortem

examination which was conducted by PW-17 Dr. Ajit Kumar Minj,

who has proved the postmortem report Ex.P-27. According to

postmortem report, cause of death was shock and blood loss due

to head injury and the death was homicidal in nature. Thereafter,

appellant was arrested vide Ex.P-25. Memorandum statement of

the appellant was recorded vide Ex.P-2 consequent to which

head of the deceased, Tabbal, Bermuda and other articles were

seized vide Exs. P-4A to P-7 respectively. Seized articles were

sent to FSL for chemical examination and as per FSL report

Ex.P-23, blood was found on the seized Tabbal and Bermuda.

3. After due investigation, the appellant was charge-sheeted before

the jurisdictional criminal Court and the case was committed to

the trial Court for hearing and disposal in accordance with law, in

which appellant/accused abjured his guilt and entered into

defence by stating that he has not committed the offence.

4. The prosecution in order to bring home the offence, examined as

many as 17 witnesses in support of its case and exhibited 29

documents Exs.P-1 to P-29. However, the appellant in support of

his defence has not examined any witness and only exhibited

one document i.e. Ex.D-1.

5. The trial Court after completion of trial and upon appreciation of

oral and documentary evidence, by its impugned judgment,

convicted and sentenced the appellant as mentioned in the

opening paragraph of this judgment against which he has

preferred the instant appeal under Section 374(2) of the CrPC.

6. Learned counsel appearing for the appellant submits that only on

the basis of memorandum statement of the appellant (Ex.P-2), he

has been convicted which is absolutely illegal and bad in law. He

also submits that though the seizure has been made of Tabbal

and Bermuda but no human blood has been found and in

absence of that, the FSL report is no way useful for the

prosecution and therefore, recovery is of no use. He further

submits that in this case motive is also not proved. Therefore, the

impugned judgment of conviction and order of sentence deserves

to be set aside and the appellant be acquitted of the charges.

7. Learned counsel for the State supports the impugned judgment

and submits that the prosecution has brought home the offence

against the appellant and has proved the case beyond

reasonable doubt. They submit that the head of the deceased,

Tabbal and Bermuda were recovered pursuant to the

memorandum statement of the appellant. Blood was also found

on the seized articles. As such, the appellant has rightly been

convicted and sentenced for the aforesaid offence.

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 first question for consideration would be whether the death

of the deceased was homicidal in nature which has been

answered by the trial Court in affirmative relying upon the

postmortem report (Ex.P-27) proved by Dr. Ajit Kumar Minj (PW-

17) which is a finding of fact based on evidence available on

record, it is neither perverse nor contrary to the record and we

hereby affirm the said finding.

10. Now, the question would be whether the appellant is the author of

the crime in question for which the trial Court has relied upon the

circumstantial evidence by delving into the incriminating evidence

which have been found to be proved by the trial Court resulting

into conviction of the appellant.

11. Admittedly, the present case is based on circumstantial evidence.

The five golden principles to constitute the panchsheel of the proof

of a case based on circumstantial evidence have been narrated by

their Lordships of the Supreme Court in the matter of Sharad

Birdhichand Sarda v. State of Maharashtra 1 , in which it was

observed in paragraph 153 as under :

"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 Maharashtra2 where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] 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, 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793

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."

12. Now, we shall consider the circumstances found proved by the

trial Court. Appellant's memorandum statement is Ex.P-2 pursuant

to which head of the deceased was recovered vide Ex.P-7 in

presence of witnesses PW-1 Tikeshwar and PW-2 Kanhaiya Lal.

The appellant after severing the head from the body of deceased,

kept the head in the earthen pot, buried the same under his

controlled possession and planted a mango tree over it, which was

recovered vide Ex.P-7 at the instance of the appellant, which is

duly proved by PW-1 Tikeshwar and PW-2 Kanhaiya Lal.

13. The Supreme Court in the matter of State of Maharashtra v.

Suresh3 held that if an incriminating material is recovered

pursuant to memorandum statement of accused, he is required to

explain as to how else he came to know of such concealment and

non-explanation is fatal to the accused and observed in Para-26

as under:

"26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was conceded by himself.

One is that he himself would have concealed it Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was

3 (2000) 1 SCC 471

concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities me criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can Offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court mat the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."

14. The aforesaid principle of law laid down in Suresh (supra) was

followed with approval in the matter of Ningappa Yallappa

Hosamani v. State of Karnataka and others4.

15. Reverting to the facts of the present case in light of the aforesaid

principles of law laid down by their Lordships of the Supreme

Court in the matters of Suresh (supra) and Ningappa Yallappa

Hosamani (supra), it is quite vivid that pursuant to the

memorandum statement of the appellant, head of the deceased

was seized vide Ex.P-7, which has been duly proved by the

prosecution witnesses PW-1 Tikeshwar and PW-2 Kanhaiya Lal

and the same has also been found established by the learned trial

Court which is one of the incriminating circumstances against the

appellant. The said finding recorded by the trial Court is a finding

of fact based on evidence available on record, it is neither

perverse nor contrary to the record.

4 (2009) 14 SCC 582

16. The other circumstances relied upon by the prosecution and

found proved by the trial Court are the recovery of Tabbal &

Bermuda, vide memorandum statement Ex.P-2, seizure memos

Ex.P-4 & Ex.P-6, query report Ex.P-28 and FSL report Ex.P-23,

according to which blood has been found on the said articles. As

such, the aforesaid circumstantial evidence duly proved by the

prosecution also establishes the complicity of the appellant in the

crime in question.

17. The next circumstance that has been found established from the

statement of PW-5 Smt. Juli Bai is that on the date of incident,

only appellant and deceased were present in the house and

deceased's wife (PW-5) had gone to her maternal home on the

date offence and was not available in the house. The wife of the

appellant PW-6/Smt. Beena has though turned hostile but she has

clearly stated that prior to the date of incident, she had gone to her

maternal home along with her children. As such, she was also not

present in the house. It is a case of house murder, therefore,

appellant was required to explain under Section 106 of the

Evidence Act as to how and under what circumstances his

father/deceased was murdered as the said fact was within his

special knowledge but he has not explained the same in his

statement under Section 313 of Cr.P.C. Further more, the motive

of the offence also stands established as per the statement of

appellant's wife PW-6 Smt. Beena. She states that on the date of

incident she had gone to her maternal house and the appellant

used to ask his father to go to the village of his wife and bring her

back which was refused by his father and on that account the

appellant had murdered his father. As such, keeping in view the

five golden principles laid down by the Supreme Court in the

matter of Sharad Birdhichand Sarda (supra), all the

circumstantial evidence appearing against the appellant are taken

together, they unerringly point towards the guilt of the appellant

beyond all reasonable doubts. Being so, we do not find any reason

to interfere with the impugned judgment of conviction and order of

sentence passed by the trial Court.

18. In the result, the criminal appeal being without any substance is

liable to be dismissed and is, accordingly, dismissed.

                Sd/-                                  Sd/-
           (Sanjay K. Agrawal)                (Radhakishan Agrawal)
               Judge                                Judge




Akhilesh