Partly allowed

Panda Sahu v. State Of Chhattisgarh

Chhattisgarh HC6 Dec 2022CRA/11/2013

Case brief

AI extract

What is this about?

Two appeals against a sessions judgment in a double-murder case resting on circumstantial evidence. The court set aside the murder conviction and the conviction for concealing the first victim's remains, upheld only the conviction for concealing the second victim's body, and dismissed the complainant's appeal against the co-accused's acquittal.

What did the court decide?

Conviction and sentence under Section 302/34 IPC (twice) and under Section 201/34 IPC for concealment of evidence of the murder of Bharat Janghel set aside; conviction under Section 201/34 IPC for con

Panda Sahu Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2022)

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NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 11 of 2013

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Reserved on 7-11-2022

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Delivered on 06-12-2022

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Panda Sahu S/o Dhanuram Sahu Aged About 50 Years R/o Kurwa, P.S. Sahaspur Lohara, Dist. Kabirdham C.G.

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---- Appellant /Accused

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Versus

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State Of Chhattisgarh S/o Through P.S. Sahaspur Lohara, Dist. Kabirdham C.G.

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---- Respondent

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& ACQA No. 76 of 2013

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Tokendra Kumar Janghel S/o . Late Bharat Janghel Aged About 35 Years R/o. Vill. Belgaon (Narmada), P.S. Chhuikhadan, Distt. Rajnandgaon C.G.,

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---- Appellant /complainant

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Versus

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Uttam S/o . Chain Singh Sahu Aged About 32 Years R/o. Vill. Kamanbod, P.S. Sahaspur Lohara, Distt. Kabirdham C.G. ---- Accused

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The State Of C.G. Through The P.S. Sahaspur Lohara, Distt. Kabirdham C.G., District : Kawardha (Kabirdham), CG

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---- Respondents

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For Appellant in Cr.A. No. 11/2013 :

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Mr. Rahil Arun Kochar, Adv.

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For appellant in ACQA No. 76/2013 :

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Mr. Dashrath Prajapati, Adv.

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For State :

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Mr. Devesh Chandra Verma, GA

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For respondent No. 1 in Acq. A. No. 76/2013 :

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Mrs. Indira Tripathi, Adv.

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DB : Hon'ble Mr. Goutam Bhaduri & Hon'ble Mr. N.K. Chandravanshi, JJ

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CAV JUDGMENT

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Per NK Chandravanshi, J

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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.

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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 :-

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Sr.	Conviction for	Sentence	Fine	Default clause
No.	Offence u/S.		sentence
1	302/34 of IPC (twice)	Imprisonment for life (twice)	Rs. 2,000/- (twice)	RI for six months (twice)
2.	201/34 of IPC (twice)	RI for 7 years (twice)	Rs. 1,000/- (twice)	RI for six months

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All the substantive jail sentences have been

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directed to run concurrently.

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Facts of the case, in brief, are that on 7-1-2011, Bharat Janghel (deceased) and Meghnath Yadav (deceased)

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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.

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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

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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.

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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

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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

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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.

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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

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Birdhichand Sarda -v- State of Maharashtra [(1984) 4 SCC 116].

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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.

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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

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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.

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Learned counsel for the respondent No. 2 Uttam Sahu would support the judgment of acquittal passed by learned Sessions Judge.

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We have heard learned counsel for the parties at length and perused the record of the Court below with utmost circumspection.

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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:

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“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

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must be such as to show that within all human probability the act much have been done by the accused.”

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In the case of Sharad Birdhichand Sarda v. State of Maharashtra (supra) , Hon'ble Supreme Court observed thus:

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“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:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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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 :

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“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.”

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(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,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(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.

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These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

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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 :-

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“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

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must show that in all human probabilities, the act must have been done by the accused.”

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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.

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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

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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.

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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.

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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.

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15.3 Prithvi Dubey (P.W. 26) has deposed in his Court statement that on 6-4-2021, on being dug through JCB machine,

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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).

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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

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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.

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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.

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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.

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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.

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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 :-

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“eSa xzke dq:ok esa jgrk gWaw A fdlkuh dke djrk g W w A xkseq[k ,oa vatksj lkgw esjs nkekn gSa] rFkk mRre lkgw] xkseq[k lkgw dk HkkbZ gS A fnukad

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07@01@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]000@& #- 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] 6@02@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”

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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

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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 crossexamination to disbelieve their such statements.

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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 :-

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(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

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the field of appellant Panda Sahu and they had seen him in the night near pond;

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ii. Remains of dead body of Bharat Janghel were recovered from tube well situated in the field of appellant Panda Sahu; and

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(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.

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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.

¶112

¶113

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.

¶114

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.

¶115

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)

¶116

¶117

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.

¶118

¶119

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 -vJeet Singh [(1999) 4 SCC 370] has observed as under :-

¶120

“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

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¶122

immaterial that the concealed place is accessible to others.”

¶123

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.”

¶124

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.

¶125

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

¶126

¶127

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.

¶128

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

¶129

¶130

digging that place through JCB machine, therefore, nonpreparation of recovery / seizure memo in this regard is not found fatal to the case of prosecution.

¶131

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.

¶132

¶133

In the case of Kaliram (supra), Hon'ble Supreme

¶134

Court has observed in para 25 as under :-

¶135

“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.”

¶136

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.

¶137

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.

¶138

¶139

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.

¶140

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.

¶141

In view of above discussion, the Criminal Appeal No. 76/2013 preferred by appellant/complainant Tokendra Kumar Janghel is dismissed.

¶142

Other direction of the trial Court shall remain intact.

¶143

Record of the trial court be sent back forthwith along with a copy of this judgment for compliance.

¶144

Sd/- Sd/-

¶145

(Goutam Bhaduri) (N.K. Chandravanshi) Judge Judge

¶146

Pathak/-

Panda Sahu v. State Of Chhattisgarh

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Panda Sahu v. State Of Chhattisgarh

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