Chattisgarh High Court
Vedprakash Diwan vs State Of Chhattisgarh on 24 March, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:14058-DB
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 133 of 2019
Vedprakash Diwan S/o Tikam Singh Diwan, Aged About 28 Years R/o
Madwapathra, P. S. Magarlod, District Dhamtari Chhattisgarh,
... Appellant
versus
State Of Chhattisgarh Through The Station House Officer, Police
Station Magarlod, District Dhamtari Chhattisgarh,
... Respondent(s)
For Appellant : Mr. YC Sharma, Sr. Advocate with Ms. Shruti Jha
and Dr. S.K. Shrivastava, Advocates.
For Respondent : Mr. Abhishek Singh, Panel Lawyer
Hon'ble Smt. Justice Rajani Dubey, &
Hon'ble Shri Justice Sachin Singh Rajput, JJ
Judgment On Board
(24th March, 2025)
Per Rajani Dubey, J
The appellant in this appeal is challenging the legality and
validity of the judgment of conviction and order of sentence dated
11.1.2019 passed by the Additional Sessions Judge, Dhamtari in ST
No.53/2017 convicting and sentencing the appellant as under:
Conviction Sentence
Under Section 302 of Indian Penal Life imprisonment, pay a fine of
Code on two counts. Rs.100/- and in default thereof to
undergo additional RI for 03
months on each count.
Under Section 201 of Indian Penal Imprisonment for 01 year, pay a
Code on two counts. fine of Rs.100/- and in default
thereof to suffer additional RI for
03 months on each count.
All the substantive jail sentences were directed to run concurrently.
02. Case of the prosecution, in brief, is that complainant Gajendra
Diwan through a written complaint informed the police of Police Station
- Magarload that Suklal Kamar, Vedram Kanwar and Govind Ram Sahu
of his village came to him on 22.7.2017 and informed that a few days
ago they had gone near Darra Dodgi Nala for working under the Rojgar
Guarantee Scheme. When they went inside the jungle for catching a
hen, near the Nala by the side of saja tree they saw burnt skeleton
bones of unknown male or female and out of fear did not narrate the
same to anyone. However, when a few days ago they came to know
that wife and son of one Vedprakash @ Prakar Kanwar of his village
are missing, they have come to inform about it to him. Thereupon the
complainant went to the spot along with them and found some burnt
pieces of human bones.
Based on the above information, the police of Police Station -
Magarload registered Merg No.32/17 and during enquiry it was found
that a missing report No.14/17 in respect of Sarojani Mahanand and
Priyanshu Kumar has been registered at Police Station - Kurud.
Further enquiry revealed that deceased Sarojani Mahanand had affair
with Vedprakash and they were living as husband and wife and from
this relationship Priyanshu was born. Vedprakash was going to perform
engagement with one Tikeshwari of his community on 26.2.2017 and
when it came to the knowledge of Sarojani Mahanand, there was
quarrel between the two and therefore, in order to get rid of them,
Vedprakash committed their murder by strangulation. After murder, he
concealed the dead bodies in a pit and burnt them in order to cause
disappearance of evidence of the crime.
03. During the course of investigation, spot maps were prepared,
inquest report of bones of the deceased persons were prepared and
memorandum of the appellant was recorded which led to seizure of 02
pieces of tibia bone, 02 pieces of skulls, 26 pieces of bones etc. The
seized bones were sent for forensic examination and expert opinion.
Blood sample of the accused was obtained for DNA test. Statements of
the witnesses were recorded. As per FSL report, the accused was
found to be biological father of deceased Priyanshu. However, no DNA
profile could be obtained from the tibia bone alleged to be of deceased
Sarojani Mahanand. After completing usual investigation, charge sheet
under Sections 302 and 201 of IPC was filed against the accused.
Learned trial Court framed charges under Sections 302 and 201 of IPC
on two counts for committing murder of Sarojani and Priyanshu and
causing disappearance of evidence of the crime, which were abjured
by him and he prayed for trial.
04. In order to substantiate its case the prosecution examined 20
witnesses. Statement of the accused was recorded under Section 313
of CrPC wherein he denied all the incriminating circumstances
appearing against him in the prosecution case, pleaded innocence and
false implication.
05. After hearing counsel for the respective parties and appreciation
of oral and documentary evidence on record, the learned trial Court
convicted and sentenced the appellant as mentioned above. Hence
this appeal.
06. Learned counsel for the appellants submits that the impugned
judgment is bad in law, perverse, erroneous and liable to be set aside.
In the present case, there is no eyewitness to the incident and the
whole case rests upon circumstantial evidence but there is no
complete chain of circumstances which could unerringly lead to the
guilt of the appellant. Learned trial Court has failed to see that there is
no conclusive proof regarding identification of the bones recovered
from the forest as that of deceased Sarojani Mahanand and Priyanshu.
PW-1 Vedram Kanwar, PW-2 Suklal Kanmar, PW-3 Gajendra Kumar
Diwan and PW-4 Rajni Mahanand have not supported the prosecution
case. Learned trial Court has heavily relied upon the memorandum
statement of the appellant leading to recovery of alleged bones of the
deceased persons as also the appellant being last seen with the
deceased whereas such evidence being weak type of evidence, merely
on that basis the appellant cannot be held guilty of such a heinous
crime. Learned trial Court ought to have appreciated the fact that there
is a considerable time gap of four months between the appellant being
last seen with the deceased and recovery of the burnt bones. The DNA
report is also doubtful in this case. He submits that if facts within the
special knowledge of the accused are not satisfactorily explained, that
could be a factor against the accused but such factor by itself is not
conclusive of guilt and it becomes relevant while considering the
totality of the circumstances. In the present case, the prosecution has
utterly failed to prove guilt of the appellant based on the circumstantial
evidence beyond reasonable doubt and as such, he is entitled to be
acquitted of all the charges by giving him benefit of doubt.
Reliance has been placed on the decisions of the Hon'ble
Supreme Court in the matters of Pradeep Kumar Vs. State of CG,
2023 LiveLaw (SC) 239; Boby Vs. State of Kerala, 2023 LiveLaw
(SC) 50; and the judgment dated 29.4.2024 of this Court in CRA
No.2172/2023 in the matter of Krishna Jhali Vs. State of CG.
07. On the other hand, learned counsel for the State supporting the
impugned judgment submits that on the basis of evidence adduced the
prosecution has successfully proved that the skeleton bones found in
the forest were of deceased Sarojani Mahanand and Priyanshu; as per
DNA report appellant is the biological father of deceased Priyanshu
and further, as per evidence of PW-4 Rajni Mahanand it stands proved
that the appellant was last seen with the deceased persons. The
appellant failed to offer any explanation as to why he took no steps for
about two months after his wife and son went missing. Thus, learned
trial Court having regard to the overall evidence on record, oral and
documentary and conduct of the appellant, has rightly convicted and
sentenced him by the impugned judgment which calls for no
interference by this Court. The appeal being without any substance is
liable to be dismissed.
08. Heard learned counsel for the parties and perused the material
available on record.
09. It is clear from the record of learned trial Court that the appellant
was charged under Section 302 and 201 of IPC on two counts for
committing murder of Sarojani Mahanand and Priyanshu and causing
disappearance of evidence of the crime by burning and concealing the
dead bodies. After appreciation of oral and documentary evidence on
record the learned trial Court convicted and sentenced the appellant by
the impugned judgment as mentioned in para 1 of this judgment.
10. As per prosecution case, deceased Sarojani Mahanand and the
appellant were having affair, they were living together as husband and
wife and from their relationship, Priyanshu was born.
11. PW-17 Nirbhay Singh, Inspector, states that on 22.7.2017
informant Gajendra Diwan made a written complaint Ex.P/10 that burnt
human bones of some unknown male or female are lying in the forest
near Nala and based on this, he registered merg No.32/17 vide
Ex.P/27 which bears his signature from A to A part and that of the
informant from B to B part.
12. PW-3 Gajendra Diwan states that Vedram Kanwar, Suklal Kamar
and Govind Sahu informed him that near Darra Dodgi Nala they saw
human bones and then he made a written complaint to this effect vide
Ex.P/10 which bears his signature from A to A part. He also admits his
signature on the notice under Section 175 of CrPC (Ex.P/1) and bones
panchanamas (Ex.P/2 to P/4) from B to B part. He denied
memorandum statement of the appellant Ex.P/11 to the police before
him. However, he states that bones were recovered from the place of
occurrence and that the police also seized one Nokia mobile and one
black colour motorcycle HF Delux No. CG 05 W 6340. He admits his
signature on seizure memos Ex.P/6, P/7, P/8, P/12 & P/13 from A to A
and B to B part respectively. Prosecution declared him hostile and
cross-examined where he denied the suggestion that at the instance of
accused, the bones were recovered.
13. PW-17 Nirbhay Singh states that he collected the skeleton bones
as per memorandum (Ex.P/11) of the accused and prepared seizure
memo Ex. P/6, P/7, P/8, P/12 & P/13. He also sent application for DNA
test (Ex.P/39) of the accused and the application for giving report after
examination of bones to Forensic Department, Medical College
Hospital, Raipur is Ex.P/40. He sent the seized articles through SP,
Dhamtari to FSL, Raipur for giving its DNA test report vide Ex.P/41. He
also got video shooting of recording of memorandum of the accused
vide Ex.P/43.
14. PW-9 Dr. SMM Murthy states that he preserved blood sample of
the accused as per letter Ex.P/18 which bears his signature from A to A
part and that he took blood sample of the accused vide identification
form of Ex.P/19.
15. PW-8 Dr. Pushpa Janbandhu states that Constable Ganesh
Sahu 210 brought two sealed packets before her, one containing six
burnt bones and another containing 40 burnt bones. She sealed both
the packets and gave the same to that constable for taking it back to
Raipur Medical College.
16. PW-13 Snigdha Jain Bansal, Assistant Professor in Forensic
Medicine Department, Medical College Hospital Raipur, states that on
16.8.2017 she examined the bones sent to her and opined that 40
bones of Carton No.1 could be of a female aged more than 20-21
years and less than 30 years approximately and 6 bones of Carton
No.2 could be of a human child aged approximately 2-7 years. Her
report is Ex.P/22.
17. As per FSL report Ex.P/46, the appellant is found to be biological
father of Art. B which is humerus bone of deceased Priyanshu.
However, no DNA profile could be obtained from Art. A i.e. tibia bone of
deceased Sarojani Mahanand. It is thus clear from the DNA report
(Ex.P/46) that the bones collected from the forest were of biological
son of the appellant.
18. PW-4 Rajni Mahanand, sister of the deceased Sarojani
Mahanand, states that her sister Sarojani was in love with the appellant
and they performed love marriage about 4-5 years ago and were
residing at her house. They had a son namely Priyanshu Diwan who
was murdered by the accused at the age of 1 ½ years only. She states
that the accused wanted to perform second marriage and was going to
perform engagement, on which she along with Sarojani went to the
house of the accused at Village-Madwapathra where they met the
sister and brother-in-law of the accused and the accused introduced
Sarojani and Priyanshu to his parents as his wife and son. In para 4
she states that the parents of the accused told them that they were not
aware of marriage of the accused with Sarojani, therefore, they
performed his engagement and that they will break this engagement
and requested them to go from there. Next day the accused made
them sit in the bus and they returned to their house.
In para 6 she states that on 1.4.2017 the accused came to her
house at Ahiwara and took Sarojani and Priyanshu with them saying
that he would keep them well at his house in the village. On the same
day at around 7 pm when she phoned her sister Sarojani, she replied
that they have just left the house of brother-in-law of the accused after
taking meal there and are on the way and that she would call her after
reaching the house of the accused. Next day i.e. 2.4.2017 when she
phoned Sarojani, it was switched off and it continued for about 15-20
days. Meanwhile she would also phone the accused but he did not pick
up her calls. However, 15 days after her sister Sarojani left her house,
the accused once picked up her call and when she asked him as to
where her sister is and make her talk to her, the accused replied that
there is no network in the village, she is alright and that told that he
would send the installment of Rs.1600/- of the loan taken by him. She
states that only this much conversation took place between them.
In para 8 she states that as she was not able to contact her
sister over phone and the accused was not picking up her calls, being
worried she went to the house of the accused at Madwapathra to see
her sister where she saw that preparation for marriage of the accused
was going on and there were number of guests. The accused and his
brother-in-law took her behind the house and told that her sister is
alright. When she asked them to make her talk to her, they replied that
her phone is not connecting. Despite much insistence when they did
not let her meet Sarojani, she suspected the accused and told him to
bring her sister within two days. However, the elder brother of the
accused requested for giving them four days time and thereafter she
allowed them a week's time, to which the accused expressed his
satisfaction.
19. PW-4 further states that they waited for about two weeks but the
accused did not come with her sister, so she along with her father,
brother-in-law and other persons went to the house of the accused
where he informed that on 2.4.2017 he had made her sit in the bus and
does not know as to where she has gone. Thereafter, they went to PS-
Magarload and lodged a missing report. She states that about three
months thereafter they were informed by the police that they have got
some clue regarding Sarojani. She was taken by the police to the place
of occurrence where skeleton bones and skull were lying. Bones of the
child was lying at some distance.
20. PW-5 Sudarshan also states that Sarojani was his daughter and
that in April, 2017 his another daughter informed him that the accused
has gone to his village Madwapathra with Sarojani and Priyanshu and
thereafter they could not be contacted. The other witnesses have not
supported the prosecution case.
21. Learned counsel for the appellants submits that conviction of the
appellant is based on the only evidence of last seen and memorandum
which are weak type of evidence and not proved by the prosecution
beyond reasonable doubt. Therefore, the appellant deserves to be
acquitted of the charges by giving him benefit of doubt.
22. Admittedly, there is no direct evidence in this case proving the
guilt of the accused/appellant and the whole case rests on
circumstantial evidence. It is a well-established principle of criminal
jurisprudence that conviction on a charge of murder may be based
purely on circumstantial evidence, provided that such evidence is
deemed credible and trustworthy. In cases involving circumstantial
evidence, it is crucial to ensure that the facts leading to the conclusion
of guilt are fully established and that all the established facts point
irrefutably to the accused person's guilt. The chain of incriminating
circumstances must be conclusive and should exclude any hypothesis
other than the guilt of the accused. In other words, from the chain of
incriminating circumstances, no reasonable doubt can be entertained
about the accused person's innocence, demonstrating that it was the
accused and none other who committed the offence.
23. Learned trial Court minutely appreciated the oral and
documentary evidence and found that PW-4 Rajni Mahanand is a
witness of last seen and she remained firm in her statement. Learned
trial Court observed that the evidence on record proved the facts that
death of the deceased persons was homicidal; there was affair
between the accused and Sarojani and from this relationship Priyanshu
was born; dispute between the accused and Sarojani arose when she
came to know about engagement being performed by the accused with
a girl of his community; the deceased persons were last seen alive with
the accused by PW-4; failure of the accused to give any satisfactory
explanation to the incriminating circumstances; seizure of burnt bones
and motorcycle used in commission of crime at the instance of
accused; FSL report confirming accused as biological father of
deceased Priyanshu and the accused being absent from his duty on
the date of incident.
24. In this case, conduct of the accused is very crucial. It is clear
from the record vide Ex.P/20 that the accused himself lodged report on
30.5.2017 at PS-Magarload regarding missing of his wife Sarojani
stating that on 1.4.2017 at around 7 pm he made her sit in the bus but
she did not reach Village-Ahiwara, Distt. Durg by 30.5.2017 and
despite being searched she could not be located so far. Thus, it is
evident that the accused himself admits that on 1.4.2017 he was with
Sarojani and as per PW-4 Rajani he took Sarojani and Priyanshu from
her house on 1.4.2017 and thereafter, she had no contact with her
sister and Priyanshu. If the accused made them sit in the bus on
1.4.2017, then why he did not make efforts for locating them and lodge
report within 2-3 days and waited for about two months and lodged the
missing report only on 30.5.2017. This unusual conduct of the
accused/appellant is highly suspicious and raises serious suspicion on
him.
25. In his statement under Section 313 of CrPC the accused has
either denied or expressed ignorance of all the facts and evidence
except the facts regarding taking his blood sample for DNA test, its
preservation and seizure.
26. The Hon'ble Supreme Court in the matters of Sidhartha
Vashisht Vs. State (NCT of Delhi), (2010) 6 SCC 1 observed as
under:
"274. This Court has time and again held that where an
accused furnishes false answers as regards proved
facts, the Court ought to draw an adverse inference qua
him and such an inference shall become an additional
circumstance to prove the guilt of the accused. In this
regard, the prosecution seeks to place reliance on the
judgments of this Court in Peresadi vs. State of U.P.,
(1957) Crl.L.J. 328, State of M.P. vs. Ratan Lal, AIR
1994 SC 458 and Anthony D'Souza vs. State of
Karnataka (2003) 1 SCC 259 where this Court has
drawn an adverse inference for wrong answers given by
the appellant under Section 313 Cr.P.C. In the present
case, the appellant-Manu Sharma has, inter alia, has
taken false pleas in reply to question nos. 50, 54, 55,
56, 57, 64, 65, 67, 72, 75 and 210 put to him under
Section 313 of the Code."
27. In the matter of S. Govindaraju Vs. State of Karnataka, (2013)
15 SCC 315 the Hon'ble Supreme Court held as under:
"29. It is obligatory on the part of the accused while
being examined under Section 313 Cr.P.C., to furnish
some explanation with respect to the incriminating
circumstances associated with him, and the Court must
take note of such explanation even in a case of
circumstantial evidence in order to decide whether or
not the chain of circumstances is complete. When the
attention of the accused is drawn to circumstances that
inculpate him in relation to the commission of the crime,
and he fails to offer an appropriate explanation, or gives
a false answer with respect to the same, the said act
may be counted as providing a missing link for
completing the chain of circumstances. (Vide: Munish
Mabar v State of Haryana, AIR 2013 SC 912).
31. The prosecution successfully proved its case and,
therefore, provisions of Section 113 of the Evidence Act
1872 come into play. The appellant/accused did not
make any attempt, whatsoever, to rebut the said
presumption contained therein. More so, Shanthi,
deceased, died in the house of the appellant. He did not
disclose as to where he had been at the time of incident.
In such a fact situation, the provisions of Section 106 of
Evidence Act may also be made applicable as the
appellant/accused had special knowledge regarding
such facts, though he failed to furnish any explanation
thus, the court could draw an adverse inference against
him."
28. In the present case also, the accused in his statement under
Section 313 of CrPC denied his relationship with Sarojani and birth of
Priyanshu from this relationship. He also denied that on 2.4.2017 he
made the deceased persons sit in the bus. From this statement it is
crystal clear that he instead of offering any satisfactory explanation to
the incriminating circumstances appearing against him made bald
denial or expressed total ignorance of not only the incriminating
circumstances but even the proved facts, except facts regarding taking
of his blood samples for DNA test, its preservation and seizure. In light
of above settled legal principles, this conduct of the accused serves as
an additional link in the chain of circumstantial evidence and points
towards his guilt.
29. From the evidence on record it stands proved that on 1.4.2017
the accused was with the deceased persons and on the same day at
around 7 pm PW-4 Rajni Mahanand had a talk with her, and thereafter
they were not seen alive by anyone. In these circumstances, it was
obligatory on the part of the accused to explain as to when he parted
company with them and where they went after leaving the house of
PW-4 as all these facts were within the special knowledge of the
accused but he failed to discharge the burden cast upon him under
Section 106 of the Evidence Act. PW-4 states in paras 7 & 8 of her
deposition that since 2.4.2017 she was making calls repeatedly to her
sister Sarojani but she was not responding and when she called the
accused, he also did not pick up her calls. However, once he picked up
her call and replied that her sister is alright. She states that when they
reached the house of the accused, then also the accused told that
Sarojani is alright. This statement of PW-4 was not rebutted in the
cross-examination. Only it was suggested that Sarojani had lodged an
FIR against one person and that person threatened her of life but no
other defence was taken by the accused. The accused also failed to
explain as to why he lodged missing report of the deceased after about
two months on 30.5.2017. As per DNA report (Ex.P/46), it also stands
proved beyond reasonable doubt that the bones of a male child
recovered from the place of occurrence was of biological son of the
appellant.
30. In the totality of facts and circumstances of the case, in particular
the conduct of the accused/appellant during the incident and
subsequent thereto, the oral and documentary evidence as discussed
above, this Court is of the opinion that the prosecution has been
successful in proving the guilt of the appellant based on the
circumstantial evidence adduced by it beyond a reasonable doubt. The
judgments relied upon by learned counsel for the appellant being
distinguishable on facts are of no help to him. As such, the impugned
judgment of learned trial Court calls for no interference by this Court
and the same is hereby affirmed.
31. In the result, the appeal fails and is, accordingly, dismissed. The
appellant is reported to be in jail, therefore, no order regarding his
arrest, surrender etc. is required to be passed.
Sd/ Sd/
(Rajani Dubey) (Sachin Singh Rajput)
Judge Judge
MOHD by MOHD
AKHTAR Date:
2025.03.27
KHAN 16:51:39
+0530
Khan
