Shivdayal @ Mannu Mathur Vs State of Chhattisgarh

________________________________________________________ Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Agrawal

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Judgment on Board (18.06.2024)

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellant, under Section 374(2) of CrPC, is directed against the judgment & order dated 14.12.2017 passed by learned Sessions Judge, Janjgir-Champa in Sessions Trial No.43/2017, by which the appellant has been convicted and sentenced in the following manner:-

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Conviction	Sentence
Under Section302of IPC	Life Imprisonment with fine of
	Rs.100/- and in default of payment
	of fine amount, to undergo
	additional R.I. for 10 days.

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(Cr.A. No. 169 of 2018)

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Under Section392of IPC	R.I. for	10 years with fine of
	Rs.100/-	and in default of payment
	of fine	amount, to undergo
	additional	R.I. for 10 days.
Both the sentences have	been directe	d to run concurrently.

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2. Case of the prosecution, in short, is that during the period between 10:00pm on 3.5.2017 to 8:00am on 4.5.2017 at Village Bhanwar (Thadgabahra), Ward No.1, within the jurisdiction of Police Station Baloda, District Janjgir-Champa, the appellant committed murder of Aghaniya Bai, who was sleeping in the verandah of her house, by strangulating her neck from the sari worn by her at that time. Thereafter, the appellant is also said to have looted silver bangles and other articles belonging to deceased Aghaniya Bai.

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3. The matter was enquired into by the Investigating Officer PW-10 Santosh Kumar Sariwan on the report of PW-1 Jhadidas Manikpuri, son of deceased Aghaniya Bai. Dehati Merg Intimation was recorded vide Exhibit P-1. Sketch map of the place of incident was prepared vide Exhibit-2. Vide Exhibit P-12, a small purse in which one gold locket stringed with crystal beads thread was recovered from the house of the deceased. Inquest was conducted vide Exhibit P-5 and the dead-body of the deceased was subjected to post-mortem which was conducted by PW-7 Dr. S.S. Tomar vide Exhibit P-16 in which cause of her death was opined to be asphyxia as a result of cardiorespiratory arrest due to strangulation and its complicacies and the nature of her death was homicidal.

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(Cr.A. No. 169 of 2018)

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4. FIR was registered against the unknown person vide Exhibits P-19 & 20. Memorandum statement of the appellant was recorded vide Exhibit P-8 pursuant to which, 4 nos. of silver bangles each weighing 10gm and total amounting to Rs.1600/- and one small bag containing a sari and pass-book of Jila Sahakari Bank Maryadit, Bilaspur issued in the name of deceased Aghaniya Bai were seized vide Exhibit P-9 and the arrest of the appellant was made vide Exhibit P-14. Vide Exhibit P-7, identification proceeding was conducted in the Tahsil office wherein PW-2 Usha Bai Manikpuri, wife of PW-1 Jhadidas Manikpuri and daughter-in-law of deceased Aghaniya Bai, identified the seized silver bangles, sari and bag to be that of deceased Aghaniya Bai, in presence of the Executive Magistrate, PW12 Suryakant Say, and two witnesses, PW-3 Purandas Manikpuri and PW-4 Gajanan.

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5. After due investigation, the appellant was charge-sheeted before the concerned Magistrate Court from where the matter was committed to the Court of Sessions and subsequently it was put to trial before the Trial Court where charges under Sections 302 and 392 of IPC were framed and read out/explained to the appellant who abjured his guilt, took a plea of false implication and entreated for trial.

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6. During the course of trial, in order to bring home the offence, the prosecution examined as many as 12 witnesses as PW-1 to PW-12 and exhibited 27 documents vide Exhibits P-1 to P-27. Statement of the accused appellant was recorded under Section 313 of CrPC in

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(Cr.A. No. 169 of 2018)

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which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. Though in defence neither any witness has been examined nor has any document been relied on.

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7 . After conclusion of trial, the Trial Court, by impugned judgment & order dated 14.12.2017, on appreciation of oral and documentary evidence came on record, held the appellant guilty of the offence punishable under Sections 302 and 392 of IPC and accordingly convicted and sentenced him in the manner as mentioned at the table shown in paragraph-1 of this judgment, which led to filing of the present appeal by the appellant calling in question the legality, validity and correctness of the impugned judgment & order.

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8. Mr. A.K. Yadav, learned counsel appearing for the appellant, would submit that on the basis of alleged recovery, the appellant could not have been convicted for the offence under Section 302 of IPC. He would further argue that there is no direct evidence against the appellant showing his involvement in commission of the instant crime. The appellant as such is entitled for acquittal and the appeal deserves to be allowed.

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9. Mr. Ashish Shukla, learned Additional Advocate General, appearing for the State, would submit that PW-2 Usha Bai Manikpuri, daughter-in-law of deceased Aghaniya Bai, has duly identified the silver ornaments and other articles belonging to deceased Aghaniya Bai in the identification proceeding (Exhibit P-7) and the appellant has

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(Cr.A. No. 169 of 2018)

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failed to give any explanation as to how he came in possession of those articles. The appellant as such is the author of crime and the Trial Court has rightly convicted him for the aforesaid offences and the appeal therefore does not have any merit and the same is liable to be dismissed.

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10. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the record with utmost circumspection.

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11. The first and foremost question, as to whether the death of deceased Aghaniya Bai was homicidal in nature, has been answered by the Trial Court in affirmative, relying on the statement of PW-7 Dr. S.S. Tomar who has conducted the post-mortem examination of deceased Aghaniya Bai and also proved the post-mortem report (Exhibit P-16) in which cause of her death has opined to be asphyxia as a result of cardio-respiratory arrest due to strangulation and its complicacies and the nature of her death has been stated to be homicidal, which, in our considered opinion, is correct finding of homicidal death recorded by the Trial Court based upon the medical evidence and which is neither perverse nor contrary to record. Even otherwise, the nature of death to be homicidal has not been seriously questioned on behalf of the appellant. We, therefore, affirm the said finding of the Trial Court, holding that the death of deceased Aghaniya Bai was homicidal in nature.

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(Cr.A. No. 169 of 2018)

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12. Now, the next question for consideration is, whether the appellant is author of the crime, which the Trial Court has also recorded in affirmative finding the incriminating circumstances, as culled out in paragraph 16 of the impugned judgment, proved against the appellant.

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13. Since the case of the prosecution is not based on direct evidence rather it is based on indirect or circumstantial evidence, the five golden principles, which constitute the panchsheel of the proof of a case based on circumstantial evidence, which have been propounded by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 would be

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profitable to notice herein under:-

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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. 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 following 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

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1 (1984) 4 SCC 116

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(Cr.A. No. 169 of 2018)

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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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14. The incriminating circumstances, which have been culled out in

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paragraph-16 of the impugned judgment, on the basis of which, conviction of the appellant has been found proved by the Trial Court are as follows:-

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1- मृति�काकीमृत्युति�नांक 03/05/2017 की jkf= सेति�नांक 04/05/2017 dks izkr% 08.00 बजे�ककी izd`fr हत्यात्मकथी।

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2- अ०सा०-1 झड़ी�ास मातिनकपुरी, अ०सा०-2 उषाबाई मातिनकपुरी, अ०सा०-3 पूरन�ासमातिनकपुरीनेसर्व iz थममृति�काके शर्वको�ेखाथाऔरयहपायाथातिकमृति�काके�ोनोंहाथोंकीचां�ी कापटा (चूड़ी) र्वगलेमेंपहनाहुआपीपरपत्तीर्वालालॉकेटउसके हाथर्वगलेमेंनहींथा।

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3- घटनाके�ूसरेति�नति�नांक 05/05/2017 कोआरोपीतिशर्व�याल केबयानमेंब�ायेअनुसारचां�ीकापटा (चूड़ी) 04 नग, प्लाति0टक काछोटाथैला, लालरंगकीछींट�ारसाड़ीएर्वंएकपासबुकको उसकेब�ायेगये0थानसेजप्�तिकयागयाथा।

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(Cr.A. No. 169 of 2018)

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4- आरोपीद्वाराब�ायेगये0थानसेजोचां�ीकेचारपटा (चूड़ी), प्लाति0टककाथैलाएर्वंपासबुककीजप्�ीकीगई, उसेपहचानकी काय र्वाहीमेंमृति�काकीबहुअ०सा०-2 उषाबाईमातिनकपुरीनेमृति�का काहोनापहचानाथा, तिजसेन्यायालयमेंभीमृति�काकेपुrz अ०सा०-1 झडी�ासमातिनकपुरीनेपहचानाहै।

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5- आरोपीनेइसआशयकाकोईभी0पष्टीकरणनहींति�याहैतिक मृति�काकीहत्याके�ूसरेति�नमृति�काकेहाथकेचां�ीकेचारोंपटा, थैला, मृति�काकेबैंककीपासबुकउसकेआति<पत्यमेंकैसेआई?

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15. So far as the aforementioned incriminating circumstances culled

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out by the Trial Court are concerned, it has already been held in the preceding paragraph that the prosecution has proved the death of deceased Aghaniya Bai to be homicidal in nature. Furthermore, it is also evident from the statement of PW-1 Jhadidas Manikpur, PW-2 Usha Bai Manikpuri and PW-3 Purandas Manikpuri that silver bangles and other articles which the deceased Aghaniya Bai was wearing were missing when she was found dead. The incident had occurred in the intervening night of 3^rd & 4^th May, 2017 and the appellant was apprehended on 5.5.2017 and his memorandum statement was recorded on the same day, pursuant to which, 4 nos. of silver bangles, one small plastic bag, a sari and pass-book of Jila Sahakari Bank Maryadit, Bilaspur issued in the name of deceased Aghaniya Bai were seized vide Exhibit P-9 in presence of PW-3 Purandas Manikpuri and PW-4 Gajanan who have substantially proved the seizure of the aforesaid articles at the behest of the appellant. Subsequently, in the Identification proceeding conducted vide Exhibit P-7 by the Executive Magistrate, PW-12 Suryakant Say, PW-2 Usha Bai Manikpuri, wife of PW-1 Jhadidas Manikpuri and daughter-in-law of deceased Aghaniya

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(Cr.A. No. 169 of 2018)

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Bai, has clearly identified the seized silver bangles, sari and bag to be that of deceased Aghaniya Bai, in presence of the two prosecution witnesses, PW-3 Purandas Manikpuri and PW-4 Gajanan, who have duly proved the identification proceeding. Thus, the seizure of silver ornaments and other articles has also been duly proved by PW-3 Purandas Manikpuri and PW-4 Gajanan and the said silver ornaments and other articles seized were identified by PW-2 Usha Bai Manikpuri as belonging to her mother-in-law, deceased Aghaniya Bai, in the identification proceeding which has also been proved by the Executive Magistrate, PW-12 Suryakant Say. Moreover, the appellant has also failed to explain the possession of the said stolen articles and recovery of the same at this behest. Thus, in view of the evidence which have come on record, the finding of guilt recorded by the Trial Court on the basis of the aforesaid incriminating circumstances is absolutely justified.

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16. However, the submission on behalf of the appellant is that even if it is assumed that the seized articles were belonged to deceased Aghaniya Bai and were found in possession of the appellant, even then the appellant can be convicted only for offence under Section 379 of IPC and not for the offence under Section 302 of IPC. On the contrary, it is the case of respondent-State that where murder and robbery are proved to have been integral parts of one and the same transaction, the presumption under Illustration (a) to Section 114 of the Indian Evidence Act, 1872 (henceforth shall be referred to as, 'the

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(Cr.A. No. 169 of 2018)

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Evidence Act') would be drawn that it is only the appellant who not only committed the murder of deceased Aghaniya Bai but also committed robbery of her silver ornaments and other articles after strangulating her to death, which form part of the same transaction, as the prosecution has led sufficient evidence to connect the appellant with the commission of the offence in question.

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17. In order to consider the aforesaid submission put forth on behalf of the appellant, it would be appropriate to notice Illustration (a) to Section 114 of the Evidence Act, which states as under: -

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“114. Court may presume existence of certain facts. —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

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Illustrations

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The Court may presume—

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(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; ”

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18. In order to draw an inference that fact in dispute has been established, there must exist, on record, some direct material facts or circumstances from which such inference could be drawn. Inference of proof of that fact could be drawn from given objective facts, direct or circumstantial (see R. Puthunainar Alhithan, etc. v. P.H. Pandian and others² ).

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2 AIR 1996 SC 1599

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(Cr.A. No. 169 of 2018)

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19. Furthermore, the illustrations appended to the aforesaid section are not exhaustive but merely illustrate the principle underlying the main provision. The presumption to be drawn under that provision is one of fact and whether it should be drawn or not in a particular case must depend upon the facts of that case.

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20. In the matter of Tulsiram Kanu v. The State3 , while considering Illustration (a) appended to Section 114 of the Indian Evidence Act, their Lordships of the Supreme Court have held that the presumption permitted to be drawn under Section 114, illustration (a), the Evidence Act, has to be read along with the important time-factor. If ornaments or things of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. Their Lordships observed in paragraph 7 as under: -

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“7. Apart from this confession, the judgment of the High Court is based on the identification of the gold ornaments. The Sessions Judge recognised that if the ornaments had been proved to have been the property of the deceased it would have been possible to infer that the accused was the person who committed the murder and robbed the murdered man. In our opinion, this reasoning, under the circumstances of the case, is unsound. The alleged murder took place on 28-5-1949 and assuming that the ornaments were traced to the accused at the end of October 1949, no legitimate inference could be drawn about the appellant being the murderer of the deceased. The important factor which appear to have been overlooked is that five months had elapsed between the date of the alleged murder and the tracing of the ornaments. The presumption permitted to be drawn under

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3 AIR 1954 SC 1

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(Cr.A. No. 169 of 2018)

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S. 114, illu. (a), Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. The criticism applied equally to the reasoning of the High Court for its conclusion.

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21. Thereafter, in the matter of Wasim Khan v. The State of Uttar

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Pradesh4 , the Supreme Court posed a question for consideration, whether the evidence in the case establishes that the appellant murdered and robbed the victim and their Lordships answered the question that recent and unexplained possession of stolen articles can well be taken to be presumptive evidence of the charge of murder as well as robbery.

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22. Thereafter, in the matter of Alisher v. State of Uttar Pradesh5 , it has been held by their Lordships of the Supreme Court that illustration (a) to Section 114 of the Indian Evidence Act makes it plain that the time factor has a material bearing and the Court must keep it in view before it can draw the presumption in accordance with the illustration. It was further held that the presumption can be raised if a person is found to be in possession of stolen goods soon after the theft. If, however, a long period elapses between the date of the theft and the date on which a person is found to be in possession of the stolen articles, the Court would not be justified in drawing the presumption in accordance with illustration (a) to Section 114. It was also held that the

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4 AIR 1956 SC 400

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5 (1974) 4 SCC 254

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(Cr.A. No. 169 of 2018)

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question as to how much period should elapse after the theft in order to rule out the presumption under illustration (a) would depend on the nature of the stolen article and the facts of each case.

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23. In the matter of Baiju alias Bharosa v. State of Madhya Pradesh6 , the Supreme Court following the decisions in Wasim Khan (supra) and Alisher (supra) and while dealing with the presumption to be drawn under illustration (a) to Section 114 of the Evidence Act has held that it is a matter which depends on the evidence and circumstances of each case. Further, their Lordships pointed out the following factors in order to attract illustration (a) to Section 114 of the Evidence Act:-

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The nature of the stolen article,

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the manner of its acquisition by the accused,

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the nature of the evidence about its identification,

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the manner in which it was dealt with by the accused,

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the place and circumstances of its recovery,

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the length of the intervening period, and

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the ability or otherwise of the accused to explain his possession, are factors which have to be taken into consideration in arriving at a decision.

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24. Thereafter, in the matter of Gulab Chand v. State of M.P.7 ,

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following the decision of the Supreme Court in Tulsiram Kanu (supra), their Lordships have held that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act has to be read along with the “important time factor” and if the ornaments in

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6 (1978) 1 SCC 588

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7 (1995) 3 SCC 574

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(Cr.A. No. 169 of 2018)

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possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted, but if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case.

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25. Similarly, in the matter of George v. State of Kerala8 , relying upon the earlier decision in “ Baiju ” (supra), the Supreme Court while dealing with the phrase “soon after” employed in illustration (a) to Section 114 of the Evidence Act held, as under: -

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“7. … The possession of the articles which had been duly identified by the witnesses as belonging to the deceased were found in his possession within less than 24 hours of the incident. It would lead to inference under Section 114(a) of the Evidence Act that the appellant has himself committed the robbery, an offence punishable under Section 392 IPC. According to the statement of PWs 10, 12 and 13 the deceased had been saying “take whatever you want, leave me alone”, which shows that he must have been under some apprehension or threat thereof. ”

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26. The Supreme Court in the matter of Earabhadrappa alias Krishnappa v. State of Karnataka9 has held that it is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings particularly articles of personal use in the family.

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27. Reverting to the facts of the present case, in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-referred decisions, to invoke Illustration (a) to Section 114 of the Evidence Act, it is quite vivid that immediately on the next day of incident, i.e., on 5.5.2017, the appellant was

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8 (2002) 4 SCC 475

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9 (1983) 2 SCC 330

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(Cr.A. No. 169 of 2018)

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interrogated and taken into custody and his memorandum statement (Exhibit P-8) was recorded at 10:20 a.m., pursuant to which silver ornaments and other articles were seized at his behest vide Exhibit P-9 at 11:25 a.m., and the seized silver ornaments including other articles were identified by PW-2 Usha Bai Manikpuri in the identification proceeding (Exhibit P-7). The seized silver ornaments and other articles were recovered at the behest of the appellant immediately after he was apprehended and his memorandum statement was recorded. Therefore, it satisfies the requirement of important time-factor envisaged by the Supreme Court in Tulsiram Kanu (supra) to invoke Illustration (a) to Section 114 of the Evidence Act, as the ornaments and other articles were duly identified by PW-2 Usha Bai Manikpur, daughter-in-law of deceased Aghaniya Bai, to be that of deceased Aghaniya Bai and which has been duly proved by PW-3 Purandas Manikpuri and PW-4 Gajanan who have fully supported the case of the prosecution and remained uncontroverted in their cross-examination. This would meet the requirement of Illustration (a) to Section 114 of the Evidence Act and, as such, murder and robbery are proved to be integral parts of one and the same transaction. Therefore, the presumption permitted under Section 114, Illustration (a), of the Evidence Act, would apply and it is held that the Trial Court has rightly reached to the conclusion that it is the appellant who not only committed the murder of deceased Aghaniya Bai but also robbed her silver ornaments and other belongings, which

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(Cr.A. No. 169 of 2018)

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form part of one and the same transaction for which the prosecution has led ample evidence to connect the appellant with the offence in question.

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28. In view of the aforesaid discussion, we are of the opinion that the prosecution has been able to prove the offence beyond reasonable doubt. Immediately after the incident i.e. on the next day, the looted silver ornaments among other seized articles were recovered from the possession of the appellant pursuant to his memorandum statement and the seized silver ornaments and other articles recovered have been duly proved by PW-3 Purandas Manikpuri and PW-4 Gajanan. In addition to this, no explanation also has been offered on behalf of the appellant regarding the ornaments and other seized articles which were recovered from his possession.

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29. In that view of the matter, the Trial Court is absolutely justified in holding that it is the appellant who is the author of the crime and, as such, the Trial Court is justified in convicting the appellant for the offences punishable under Sections 302 and 392 of IPC.

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30. For the foregoing reasons, we do not find any merit in this appeal which deserves to be and is accordingly dismissed.

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

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sharad

Shivdayal @ Mannu Mathur v. State of Chhattisgarh

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Shivdayal @ Mannu Mathur v. State of Chhattisgarh

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