Dismissed

Raja Khan v. State Of Chhattisgarh

Chhattisgarh HC4 Jul 2023CRA/855/2014

Case brief

AI extract

What is this about?

High Court dismissed criminal appeal against conviction and death sentence under IPC Sections 302 and 201. Court affirmed trial court's finding that death was homicidal and upheld conviction based on circumstantial evidence including motive, last seen theory, and recovery of incriminating items from appellant.

What did the court decide?

Criminal appeal stands dismissed; conviction and sentence of the appellant are upheld.

Raja Khan Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.855 of 2014

¶4

Judgment Reserved : 20/06/2023 Judgment Delivered : 04/07/2023

¶5

Raja Khan, S/o Abdul Baari, aged about 22 years, R/o Moa, Laxmi Nagar, Police Station Moa, Pandri, Raipur, District – Raipur (CG)

¶6

---- Appellant

¶7

Versus

¶8

State of Chhattisgarh Through Station House Ofcer, Police Station Vidhan Sabha, District Raipur, (C.G.)

¶9

---Respondent

¶10

For Appellant : Shri Ashim Bhagwat Gopal, Advocate For State : Ms. Akanksha Jain, Dy. Govt. Advocate

¶11

Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Arvind Singh Chandel,

¶12

CAV Judgment

¶13

Arvind Singh Chandel, J.

¶14

1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1908 is directed against the impugned judgment of conviction and order of sentence dated 12.08.2014 passed in Sessions Trial No.42/2014 whereby the learned 3^rd Additional Sessions Judge, Raipur, Chhattisgarh has convicted the appellant for the ofence under Sections 302 and 201 of the Indian Penal Code (hereinafter referred as ‘IPC’) and sentenced him imprisonment for life and to pay fne of Rs.500/- and rigorous imprisonment for fve years and fne of Rs.200/-, respectively with default stipulations.

¶15

¶16

2. In the present case, name of the deceased is Neeraj Yadav. On 29.11.2013 the deceased left his house but did not return to his house. On 30.11.2013, a missing report was lodged. On 01.12.2013 Chandrashekhar Verma (PW-1) informed the police that a dead body has been found foating in the pond of stone quarry at Village Dondekala Matia. Upon receiving information, police personnel of police station Vidhan Sabha reached at the spot, thereafter, merg was registered. The dead body of the deceased was identifed by Balram Yadav (PW-21). Thereafter, merg intimation (Ex.P-17) was registered, thereafter, crime No.228/2013 was registered. During course of investigation, it was found that there was some dispute between the appellant herein and the deceased over transaction of the interest amount with the deceased. Thereafter, the appellant was interrogated. Further case of the prosecution is that the appellant along with the co-accused Tarachand Verma (acquitted) had taken the deceased in an auto to the place of incident where they assaulted him with an iron pipe and battleaxe and thereby committed his murder and with intention to cause disappearance of evidence, smashed his head with stone and after removing his full pant tied a rope around his waist and threw the dead body in the water of quarry No.1. Inquest proceeding (Ex.P-3) was conducted. Dead body of the deceased was sent for postmortem (Ex.P-13) which was conducted by Dr. Nitin Shyamrao Barmate (PW-10). Memorandum statement (Ex.P-24) of the appellant under Section 27 of the Indian Evidence Act, 1872 has been recorded. Two gold chains of the deceased were seized from the instance of the appellant. Seized articles were sent for F.S.L. and its report is Ex.P-

¶17

¶18

F.S.L. report shows that human blood stain was found on the stone which was seized. Statement of the witnesses were recorded under Section 161 of Cr.P.C. After completion of the investigation, the appellant and co-accused Tarachand were charge-sheeted for the ofence punishable under Sections 302/34 and 201 of the IPC which was committed to the Court of Sessions for hearing and disposal in accordance with law.

¶19

3. In order to bring home the ofence, prosecution examined as many as 26 witnesses and brought into record 39 documents. No defence witness was examined. In examination under Section 313 of the Cr.P.C., the appellant denied the guilt and pleaded innocence.

¶20

4. Learned Trial Court, after appreciating the oral and documentary evidence on record, acquitted co-accused Tarachand Verma from the charges but convicted the appellant herein for the ofence punishable under Sections 302 and 201 of the IPC and sentenced him as mentioned in paragraph one of this judgment against which the appeal has been preferred.

¶21

5. Learned Counsel for the appellant would submit that the Trial Court has committed grave legal error in convicting the appellant for the aforesaid ofence and that the prosecution has not been able to bring home the ofence beyond reasonable doubt. There is no eye witness of the incident in this case and entire case of prosecution is based upon the circumstantial evidence only. The prosecution has failed to prove the complete chain of evidence for drawing inference that the appellant was the author of the crime. It is further argued that the prosecution has relied on the recovery of two gold chains owned by the deceased, which is recovered from

¶22

¶23

the possession of the appellant as per his memorandum statement (Ex.P-23), and prosecution has further relied on the last seen theory of Bhagwat Prasad Sahu (PW-23) and Balram Yadav (Ex.P-21) but their evidence does not inspire confdence and is not trustworthy. It is further argued that the motive has also been not duly established. Further, the stone and the gold chains were seized from open place, therefore, there must be a possibility that the said seized articles would have been kept by some other person also.

¶24

6. Per contra, Ms. Akanksha Jain, Dy. Government Advocate supported the impugned judgment and submitted that prosecution has been able to bring home the ofence beyond reasonable doubt, therefore, appellant has been rightly convicted for the aforesaid ofence. She further submitted that the deceased was last seen with the company of the appellant which found support from the evidence of Balram Yadav (PW-21) and Bhagwat Prasad Sahu (PW23). Further from the recovery of two gold chains which were owned by the deceased were recovered on the basis of disclosure statement of the appellant. Also the stone which has been recovered from the instance of the appellant was stained with human blood. Thus, the Trial Court has rightly convicted the appellant. As such, the instant appeal deserves to be dismissed.

¶25

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

¶26

8. The frst question for consideration would be whether the death of the deceased was homicidal in nature.

¶27

¶28

9. Learned Trial Court has recorded an afrmative fnding with regard to this question relying upon the statement of Dr. Nitin Shyamrao Barmate (PW-10) who conducted the postmortem of the deceased and his report is Ex.P-13. In our considered opinion, the fnding recorded by the Trial Court that the death of the deceased was homicidal in nature, is a correct fnding based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby afrm the said fnding.

¶29

10. Now, the question would be whether the appellant is the person who committed the crime in question?

¶30

11. It is not in dispute that in this case, there is no eye witness of the incident and the entire case of prosecution is based upon circumstantial evidence. In case of Sharad Birdhichand Sarda v. State of Maharashtra¹ the Supreme Court has laid down fve golden principles that constitute the panchsheel of the proof of a case based only on circumstantial evidence, which states as under:

¶31

“ 153. A close analysis of this decision would show that the following conditions must be fulflled before a case against an accused can be said to be fully established:

¶32

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

¶33

(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,

¶34

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

¶35

1 (1984) 4 SCC 116

¶36

¶37

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

¶38

(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.”

¶39

12. In order to convict the appellant, the following incriminating circumstances have been put forth by the prosecution and they have been found proved by the trial Court, which state as under :-

¶40

(i) Motive of the ofence.

¶41

(ii) Theory of last seen together.

¶42

(iii) On the basis of disclosure statement recorded under Section 27 of the Indian Evidence Act recovery of stone in which human blood was found and recovery of two gold chains of the deceased found from the appellant.

¶43

13. On the basis of the above principles, now we are examining the circumstances on the basis of which the Trial Court has hold the conviction of the appellant.

¶44

Motive of ofence:

¶45

14. It is the case of the prosecution that the appellant had borrowed some money from the deceased, as such, the deceased used to demand his money back due to which dispute took place between the appellant and the deceased. Also one day prior to the alleged incident, a dispute arose between the appellant and the deceased in the same matter. Purnima Yadav (PW-2) who is the wife of the deceased has categorically deposed in paragraph 4 of her cross-

¶46

¶47

examination that her husband (deceased) had told her that the appellant would return his money and on 28.11.2013. Prem Lal Yadav (PW-5) who is the father of the deceased has also deposed that there were money transactions used to take place between his son (deceased) and the appellant and sometimes the appellant would come to his son and borrow money and sometime he come for returning the money. Though lengthy cross-examination of these two witnesses were conducted but they remained frm on their statements. There is nothing suspicion on their statements on the basis of which there statements can be disbelieved. Therefore, from the statements of Purnima Yadav (PW-2) and Premlal Yadav (PW-5), it is established that there was motive available with the appellant to commit murder of the deceased. Thus, the Trial Court has rightly held that motive for committing the ofence has been found proved against the appellant.

¶48

Theory of Last Seen Together:

¶49

15. One of the main incriminating circumstances that has been found proved by the Trial Court is that the appellant and deceased were last seen together by Bhagwat Prasad Sahu (PW-23). Balram Yadav (PW-21), in his Court statement deposed that Bhagwat Prasad Sahu (PW-23) had informed him that he had lastly seen the deceased with the appellant in the auto. Bhagwat Prasad Sahu (PW-23) in his Court statement has deposed that on 29.11.2013 at about 5:00-6:00 PM, when he was going for tuition, at that time he saw that the appellant came near the house of the deceased in an auto and took him in the same auto and had gone towards Saddu. It is further deposed by him that on the next day when he came to know that the deceased

¶50

¶51

Neeraj Yadav was missing, then he informed the family members of the deceased that he had lastly seen the deceased with the appellant. This witness remained frm on this point during his crossexamination. There is nothing suspicious in his cross-examination on the basis of which his statement can be disbelieved.

¶52

16. In the matter of Kanhaiya Lal v. State of Rajasthan 2 their Lordships

¶53

of the Supreme Court have clearly held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the appellant. It has been held in paragraphs 15 and 16 as under :-

¶54

“15. The theory of last seen – the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan³ .

¶55

In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving beneft

¶56

2 (2014) 4 SCC 715

¶57

3 (2010) 15 SCC 588

¶58

¶59

of doubt. He is directed to be released from the custody forthwith unless required otherwise.”

¶60

17. Further, in the matter of Anjan Kumar Sarma v. State of Assam4 their Lordships of the Supreme Court have clearly held that in a case where other links have been satisfactorily made out and circumstances point to guilt of accused, circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction.

¶61

18. Reverting to the facts of the case in the light of the above principles of law laid down by the Supreme Court, in the present case, it is evident from the testimony of Bhagwat Prasad Sahu (PW-23) that the deceased was last seen together with the appellant and thereafter, he went missing and subsequently, his dead body was found on 02.12.2013 foating in the pond of stone quarry at Village Dondekala Matia. The statement of Bhagwat Prasad Sahu (PW-23) was also corroborated with the statement of Balram Yadav (PW-21) to whom Bhagwat Prasad Sahu had informed on 30.11.2013 regarding last seen and missing of the deceased. There is nothing on the crossexamination of Bhagwat Prasad Sahu (PW-23) and Balram Yadav (PW21) on the basis of which there statements can be disbelieved. Thus, it is established that the deceased was last seen together with the deceased and thereafter, on 02.12.2013, his dead body was found in the pond of stone quarry at Village Dondekala Matia. As such, the burden of proof was upon the appellant who could have clearly

¶62

4 (2017) 14 SCC 359

¶63

¶64

stated in his statement under Section 313 of CrPC as to what happened and what transpired with the deceased after he was last seen with the deceased but no such explanation has been provided by the appellant in his statement under Section 313 of CrPC and therefore, the theory of last seen together has duly been proved by the prosecution.

¶65

Recovery of Stone:

¶66

19. Recovery of the stone has been found from the instance of the appellant which was used in commission of crime in question. According to the case of prosecution on 03.12.2013, the disclosure statement (Ex.P-24) of the appellant was recorded under Section 27 of the Indian Evidence Act, and it was disclosed by the appellant that the stone which he used for committing the crime, was thrown by him in a pond situated at Kachna. According to the said disclosure statement and seizure memo vide Ex.P-25, the said stone was seized which weigh about 20-25 kg. Theerath Dhruw (PW-22) who is the witness of the memorandum statement and seizure memo, has duly supported the same. The seized stone was sent for chemical examination to the FSL and as per the FSL report (Ex.P-39), human blood was found on the said stone.

¶67

20. Further case of the prosecution is that on the basis of the disclosure statement two gold chains which belonged to the deceased were also seized from the instance of the appellant i.e. from the roof of the house of the appellant, which has been duly proved by Teerath Dhruw (PW-22). Said seized gold chains were identifed by Purnima Bai (PW-2) (wife of the deceased) vide memo of identifcation Ex.P10 which has been duly proved by Gopi Sahu (PW-6).

¶68

¶69

21. The Supreme Court in the matter of State of Maharashtra v. Suresh5 held that if an incriminating material is recovered pursuant to memorandum statement of accused, he is required to explain as to how else he came to know of such concealment and nonexplanation is fatal to the accused and observed in Para-26 as under:

¶70

“ 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 that it was concealed by the accused himself. This is because accused is the only person who can Ofer 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 justifed 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.”

¶71

22. Reverting to the facts of the case, from the testimony of Teerath Dhruw (PW-22) and Gopi Sahu (PW-6), it is well established that from the instance of the appellant, the stone was seized from a pond situated at Kachna in which human blood was found and from the roof of the house of the appellant, two gold chains were seized which were owned by the deceased. The appellant has not given any explanation as to how the gold chains were found in his possession. Though the argument was raised by counsel for the appellant that the stone and gold chains were found in an open place and anyone

¶72

5(2000) 1 SCC 471

¶73

¶74

could have kept it there. But the said argument is not acceptable as the appellant was the person who was having specifc knowledge of whereabouts of the ornaments and the weapon (stone) which was used in commission of crime and the said gold chain and stone were seized from the instance of the appellant. Thus, it is established that the Trial Court has rightly held that the stone which was stained with human blood was seized from the instance of the appellant, also two gold chains were found from house of the appellant regarding which the appellant has not given any explanation.

¶75

Conclusion:

¶76

23. In view of the aforesaid legal discussion, we are of the considered opinion that the fve 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 ofence beyond reasonable doubt and the Trial Court has rightly convicted the appellant for the aforesaid ofence. In that view of the matter, we do not fnd any merit in this appeal.

¶77

24. Accordingly, this criminal appeal stands dismissed.

¶78

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

¶79

Sd/Sd/- (Sanjay K. Agrawal) (Arvind Singh Chandel) Judge Judge

¶80

Prakash

Raja Khan v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Raja Khan v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ramnath Yadav And Ors. Vs State Of Chhattisgarh

Dr. M. Nupur Vs State of Chhattisgarh

Chhattisgarh Rajya Van Vikas Nigam Limited Vs P.v. Rao and Anr.

Shankar Lal Verma Vs State of Chhattisgarh

In Reference of State of Chhattisgarh Vs Madan Lal Tekam

Madanlal Tekam Vs the State of Chhattisgarh