Dilsai Lohar vs State Of Chhattisgarh
2025 Latest Caselaw 2024 Chatt

Chattisgarh High Court

Dilsai Lohar vs State Of Chhattisgarh on 20 February, 2025

Author: Sanjay K. Agrawal

Bench: Sanjay K. Agrawal

                                             1


                          Digitally signed
                          by BHOLA
                          NATH KHATAI
                          Date:
                          2025.02.27
                          10:53:25 +0530




                                                        2025:CGHC:8835-DB
                                                                     NAFR

       HIGH COURT OF CHHATTISGARH AT BILASPUR

                     CRA No. 1249 of 2019

Dilsai Lohar S/o Sukhuram Lohar, Aged About 55 Years R/o
Village Mudapara (Narayanpur) Police Station - Lailunga, District
- Raigarh, Chhattisgarh.
                                                               ... Appellant
                                    versus
State Of Chhattisgarh Through - Police Station Lailunga, District
- Raigarh, Chhattisgarh
                                                             ... Respondent


For Appellant     : Mr. C. R. Sahu, Advocate
For Respondent : Mr. Amit Buxy, Panel Lawyer


                          (Division Bench)


             Hon'ble Shri Justice Sanjay K. Agrawal
         Hon'ble Shri Justice Sanjay Kumar Jaiswal


                      Judgment On Board
                             (20.02.2025)
Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 16.07.2019, passed by learned Additional Sessions Judge, Gharghoda, District Raigarh, Chhattisgarh, in

Sessions Trial No.12/2018, by which, the appellant herein has been convicted and sentenced as under:

Conviction Sentence u/s 302 of IPC Life imprisonment and fine of Rs.500/-, in default of payment of fine, 2 months additional RI.

u/s 201 of IPC Rigorous imprisonment for 5 years and fine of Rs.500/-, in default of payment of fine, 2 months additional RI.

u/s 363 of IPC Rigorous imprisonment for 5 years and fine of Rs.500/-, in default of payment of fine, 2 months additional RI.

2. The case of prosecution, in short, is that on 26.04.2018 at about 4:00 p.m., at village Mudapara, Narayanpur, P.S. Lailunga, District Raigarh, the appellant herein kidnapped Vishnu Lohar (now deceased) aged about 7 years from the lawful guardianship of his parents and committed his murder. It is alleged that in order to destroy the evidence, the appellant decapitated/severed the head from trunk/torso with an axe and hid the head near Muda Talab and the trunk in Pokdega Khalhe Talab, thereby the offence has been committed. It is further case of the prosecution that the father of the deceased Panchram (PW-1) lodged a missing report at Police Station Lailunga on 27.04.2018 pursuant to which FIR (Ex. P-1) was registered against unknown person considering it to be a case of kidnapping. During investigation, on 28.04.2018, upon receiving information that dead body of a child is lying in a sack in Pokdega Khalhe pond of village Mudapara, Sub Inspector Niranjan Rathiya (PW-8) went to the spot and recovered the trunk vide Ex.P-6. Identification Panchnama was prepared vide Ex.P-2. On the basis of information given by complainant Panchram (PW-1), Dehati Merg Intimation was

registered vide Ex.P-4. During investigation, the statement of witness Dinesh Delki (PW-4) was recorded and the appellant was taken into custody. Pursuant to the memorandum statement of appellant (Ex.P-8), the head of the deceased was seized vide Ex.P-9, the axe and the clothes of the deceased were seized vide Ex.P-11 and the clothes of the appellant were seized vide Ex.P-10. Inquest was conducted vide Ex.P-5 and dead-body (trunk) of the deceased was sent for postmortem examination which was conducted by Dr. Manoj Kumar Patel (PW-9). In the postmortem report (Ex.P/18), it was opined that the cause of death of deceased was due to haemorrhagic shock due to sharply clear cut margin from forceful hard and sharp object below C7 cervical vertebra and nature of death was homicidal. The seized articles were sent for chemical examination to FSL and as per the FSL report Ex. P-20, blood was found on Article-A i.e. axe and Articles - B, C & E which are the clothes of the appellant. After completion of investigation, the appellant herein was charge - sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law.

3. During the course of trial, the prosecution, in order to prove its case examined as many as 11 witnesses and exhibited 20 documents. The statement of the appellant/accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

4. Learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellant for the offence as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence.

5. Mr. C. R. Sahu, learned counsel appearing for the appellant would submit that Dinesh Delki (PW-4) who saw the appellant kidnapping the deceased is not a reliable witness as he was only 9 years of age at the time of incident, therefore, his statement cannot be relied upon. He would further submit that the trial Court has erred in relying on the postmortem report (Ex.P-18) as the postmortem was conducted of only the trunk of the deceased as the head was missing, on the basis of which, the opinion has been given. Moreover, as per the FSL report (Ex.P-20), only blood was found on the axe and no human blood was found on the seized articles, therefore, it could not be established that the appellant has committed the said offence. Hence, the present appeal deserves to be allowed by setting aside the conviction and sentence imposed upon the appellant by the trial Court.

6. Mr. Amit Buxy, learned State counsel supports the impugned judgment of conviction and order of sentence and submits that the chain of circumstances have been duly proved by the prosecution beyond reasonable doubt by leading evidence of clinching nature. He submits that from the statement of Dinesh Delki (PW-4), it is proved that the deceased was kidnapped by the appellant and pursuant to the memorandum statement of the appellant the head of the deceased was recovered which is a strong incriminating

circumstance proved by the prosecution. Moreover, the appellant could not explain in his statement recorded under Section 313 of CrPC as to how and under what circumstances the deceased died after he was kidnapped. As such, the trial Court has rightly convicted the appellant for the aforesaid offence and the appeal is liable to be dismissed.

7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

8. The case of prosecution is not based on direct evidence. It is based on circumstantial evidence. The five golden principles which constitute the Panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads 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

1 (1984) 4 SCC 116

was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra2 where the following 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."

9. In the instant case, the main circumstance which the trial Court has found to be proved is that the appellant had kidnapped deceased Vishnu Lohar, aged about 7 years, from the lawful guardianship of his parents on 26.04.2018 at about 4 p.m., which is duly established by the statements of Dinesh Delki (PW-4) and the elder brother of the deceased Shiv Vishwakarma (PW-3). However, the appellant could not explain as to what happened with the deceased thereafter and how and in what circumstances, deceased Vishnu died after he was kidnapped. Therefore, the trial Court drew an 2 (1973) 2 SCC 793

inference that it was the appellant who committed the murder of the deceased. Next circumstance is that pursuant to the memorandum statement of the appellant (Ex.P-8), the head of the deceased was recovered vide Ex.P-9 which is duly supported by witnesses Phuleshwar (PW-6) but the appellant could not explain as to how he came to know about the place where the head was concealed.

10. Now, we consider the circumstances recorded by the trial Court one by one in the light of the principles of law laid down by the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda (supra).

Nature of Death of the deceased

11. The first question is as to whether the death of deceased Vishnu Lohar was homicidal in nature, which learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex. P-18 proved by Dr. Manoj Kumar Patel (PW-9), according to which, the cause of death was haemorrhagic shock due to sharply clear cut margin from forceful hard and sharp object below C7 cervical vertebra and nature of death was homicidal, 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.

Kidnapping

12. This is the main incriminating circumstance which the trial Court has found proved by relying on the statement of Dinesh Delki (PW-4). In this regard, Dinesh Delki (PW-4) has categorically stated before the Court that on the date of incident, he, his sister, deceased Vishnu and his sister were playing near their house. Thereafter, he and the deceased

went to Mudapar pond for fishing. The appellant met them near his house and he also went to the pond with them. The appellant has a field near the pond and there is a gate outside the field. The appellant asked him to stay outside the gate and he took Vishnu with him inside the field. After that, his friend Vishnu did not come out for a long time. Then he went inside the field and saw the appellant running away from the field. This witness has been subjected to brief cross-examination but he has remained consistent on the fact that it is the appellant who had taken his friend Vishnu along with him and thereafter his friend did not return. PW- 4 has clearly stated that he is stating what he has seen with his own eyes. He had told this fact to the Police in presence of the elder brother of the deceased Shiv Vishwakarma (PW-

3) who has also reiterated this fact in his statement before the Court. The trunk of the deceased was recovered on 28.04.2018 vide Ex.P-6. As such, the statement of Dinesh Delki (PW-4) has rightly been relied upon by the trial Court to hold that it is the appellant who took the deceased along with him in the presence of Dinesh Delki (PW-4) and thereafter, the trunk of the deceased was recovered but the appellant could not explain as to how and in what circumstances the deceased died.

13. From the testimony of Dinesh Delki (P.W.-4), it has clearly been established that the appellant had kidnapped the deceased and thereafter, he caused his death. As it was on the appellant who could have clearly explained in his statement under Section 313 of CrPC as to what happened with the deceased after his abduction/kidnapping but no such explanation has been provided by the appellant in his statement under Section 313 of CrPC.

14. The Supreme Court in the matter of Sucha Singh vs. State of Punjab3 while dealing with a case where two persons were taken away by armed assailants from their house at night and their dead bodies, studded with gunshot injuries, were found next morning lying near their house and the abductors did not explain and furnish any information, which was within their exclusive knowledge as to what happened to the deceased therein after they were abducted. It was held that presumption can be drawn and the abductors were responsible for murder of the deceased therein and observed in Para-15, 18, 19 & 20 as under:

"15. The abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased.

* * *

18. Learned senior counsel contended that Section 106 of the Evidence Act is not intended for the purpose of filling up the vacuum in prosecution evidence. He invited our attention to the observations made by the Privy Council in Attygalle and anr. vs. The King (AIR 1936 PC

169) and also in Stephen Seneviratne vs. The King (AIR 1936 PC 289). In fact the observations contained therein were considered by this Court in an early decision authored by Vivian Bose, J, in Shambhu Nath Mehra vs. State of Ajmer (AIR 1956 SC 404). The statement of law made by the learned Judge in the aforesaid decision has been extracted by us in State of West Bengal vs. Mir Mohammad Omar (supra). It is useful to extract a further portion of the observation made by us in the aforesaid decision:

3 (2001) 4 SCC 375

"33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act.

It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case."

19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.

20. We have seriously bestowed our consideration to the arguments addressed by the learned senior counsel. We only reiterate the legal principle adumbrated in State of West Bengal vs. Mir Mohammad Omar, AI 1936 PC 169 that when more persons than one have abducted the victim, who was later murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 of the IPC could be invoked for the aid to that end, unless any particular abductor satisfies the court with his explanation as to what else he did with the victim subsequently, i.e. whether he left his associates en-route or whether he dissuaded others from doing the extreme act etc. etc."

15. In view of the aforesaid decision of the Supreme Court in the case of Sucha Singh (supra), we are of the considered opinion that the trial Court has rightly held that the appellant kidnapped/abducted minor Vishnu aged about 7 years and thereafter the trunk of the deceased was recovered but no explanation under Section 313 of CrPC has been furnished by him as to what happened to the deceased after he was last seen together with the deceased by Dinesh Delki (P.W.-4) as he kidnapped the minor deceased.

Recovery of head of the deceased on the memorandum statement of appellant

16. It has been established from the evidence available on record that the head of the deceased was recovered vide Ex. P/9 pursuant to the memorandum statement of the appellant (Ex. P/8). In this regard, it is well settled that the incriminating material recovered pursuant to memorandum statement of accused, he is required to explain as to how he came to know of such concealment and non-explanation is fatal to the accused. In this regard, the decision of the Hon'ble Supreme Court in the case of State of Maharashtra v. Suresh4 has to be noticed wherein in Para-26 it has been observed 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 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 4 (2000) 1 SCC 471

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."

17. The aforesaid principle of law laid down in Suresh (supra) was followed with approval in the matter of Ningappa Yallappa Hosamani and others v. State of Karnataka and others5.

18. Thereafter, in the matter of Arvind Singh v. State of Maharashtra6, this Court has observed as under :-

"88. ... In the present case, the dead body was lying in a concealed place and that there was no possible explanation on behalf of the accused as to how the body came to be concealed at that particular place, when the prosecution evidence proves that the accused were near the place of recovery of dead body almost at the probable time of death."

19. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by the Supreme Court, it is quite vivid that in the memorandum statement of the appellant (Ex. P/8), he has disclosed that after committing murder of deceased Vishnu Lohar, he concealed his head near Muda Talab. Thereafter, the head of the deceased was recovered from the spot as disclosed by the appellant vide Ex. P/9 which is clearly established from the statement of Phuleshwar (PW-6). However, the appellant has failed to explain in his statement under Section 313 of CrPC as to

5 (2009) 14 SCC 582 6 (2021) 11 SCC 1

how he came to know about the place where the head of the deceased was concealed, which he was required to explain in order to prove that he was not guilty of the offence. As such, the trial Court has rightly held that it is the appellant who has kidnapped/abducted deceased Vishnu and brutally beheaded him and concealed the head near Muda pond which was recovered as per his memorandum statement.

Conclusion :-

20. In view of the aforesaid legal discussion, we are of the considered opinion that the five golden principles to prove a case based on circumstantial evidence as laid down by their Lordships of the Supreme Court in Sharadchand Birdichand Sarda (supra) have rightly been proved by the prosecution and it has been able to prove the appellant guilty of the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. In that view of the matter, we do not find any merit in this appeal.

21. Accordingly, this criminal appeal stands dismissed.

22. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned for information and necessary action, if any.

23. The Registry is directed to send a copy of this judgment to the concerned Superintendent of jail where the appellant is undergoing his jail term, informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal under Article 136 of the Constitution of India before the Hon'ble Supreme Court with the assistance

of the High Court Legal Services Committee or the Supreme Court Legal Services Committee.

                 Sd/-                               Sd/-
         (Sanjay K. Agrawal)               (Sanjay Kumar Jaiswal)
               Judge                               Judge


Khatai