Mahendra Yadav Vs State of Chhattisgarh

This appeal is directed against the impugned judgment of conviction and order of sentence dated 19.02.2020 passed by 2^nd Additional Sessions Judge, Jagdalpur, District Bastar (C.G.),

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in Sessions Trial No.24/2018 whereby and whereunder, the appellant has been held guilty for commission of offence under Sections 302 and 201 IPC and sentenced as described below:-

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Conviction	Sentence
Section 302 IPC	Life Imprisonment with fine of Rs.2000/-, in default, 3 months additional R.I.
Section 201/34	R.I. for 01 year with fine of Rs.2000/-, in default, 01 month additional R.I.

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According to the prosecution story, as unfolded from the impugned judgment and the records of the case, is that deceased Gayatri Yadav, resident of village Mutanpal Pidepara, Police Station Burgum, was working in Bihaan Self Help Group Yojna. On 17.11.2017, deceased had gone to Kilepal for attending meeting of Woman Self Help Group. Deceased Gayatri and Manko Kashyap were also working in Bihaan Self Help Group. Upon called by Janpat Office for official work, Manko Kashyap, Gayatri and Anantram went to Janpat Panchayat where they did their office work and then told Anantram that if he was going to Mutanpal, take them along as there was no transport available in the village. Thereafter, all three of them sat on a motorcycle and left at 03 o'clock. Gayatri's brother Prakash’s house was on the way, so they stopped for a while in Bastanar to leave rice with him and from there they reached Mutanpal. On reaching Mutanpal Bazarpara, Manko Kashyap took her bicycle and went to her home and Anant Ram and Gayatri went via Burgum Road as Anant Ram's house was

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towards that direction. At the relevant time, accused/appellant Mahendra Yadav who was standing between Peedepara and Bajarpara said deceased Gayatri Yadav that he would drop her to Chowk and pulled her bag and accused/appellant Mahendra Yadav took deceased Gayatri on his motor cycle on the same day i.e. 17/11/2017 between 4.00 to 4.30 pm. When Gayatri did not return home till 6.00 pm, her family members inquired whereabouts of her. Upon extensive search around, deceased Gayatri's bag and mobile were found near the kitchen-garden. At around 12.00 pm, Gayatri's fiancé Mahendra Yadav's brother Dhansai Yadav informed that the body of deceased Gayatri Yadav was lying near a mango tree. Thereafter, on 18/11/2017 at 2.00 pm, the body of the deceased was found under a mango tree in the mustard garden of her house in Peedepara. On the information of complainant Somaru, zero dehati merg intimation was registered. Postmortem of the dead body was conducted. In the postmortem report, it was found that deceased Gayatri Yadav died due to hanging. During the course of investigation, upon interrogating from deceased's friend Manko Kashyap, Shanti Yadav and Lakhan Yadav, it came to fore that her fiancé accused/appellant Mahendra Yadav was suspecting fidelity of Gayatri Yadav. On the basis of information of co-accused Dhansai Yadav, offence under Section 306 IPC was registered against the accused/appellant Mahendra Yadav at Police Station Burgum. During the course of investigation, accused/appellant Mahendra Yadav’s brother Dhansai Yadav told that

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accused/appellant Mahendra Yadav after calling deceased Gayatri Yadav in new house of Lalaguda hanged her by pulling into a wooden pole. After the incident, the accused/appellant ran away leaving the motorcycle of Dhansai Yadav bearing registration No. CG17KJ4833 in his kitchen-garden beneth the mango tree to give the colour of suicide to the entire case.

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After the incident, inquest on the body of deceased was prepared vide Ex.P/2 and dead body was sent for postmortem examination to C.H.C. Badekilepal vide Ex.P/30, where Dr. Shashikant Vitthalrao Koulaskar (PW/19) conducted postmortem examination on the body of deceased and gave his report under Ex.P/31 and noticed following injuries/symptoms :-

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(i) Face was in central position, congested, both eye lids were closed, cornea hazy, pupils dilated, conjunctiva congested. Tongue was inside the oral cavity, mouth was closed, lips closed, lips were bluish, no injuries on inner side of lips. Nasal and ear opening were clear. No purging. No saliva stains on face. Violet coloured nail polish on nails of both legs and left hand. Fingers of hand were bluish. Both upper limbs were partially flexed and lower limbs were straight. Rigor mortis present in all joints and well developed. Hypostasis was present on the back and fixed, except on pressure areas.

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(ii) A single ligature mark was in the form of pressure abrasion, brownish in colour, completely encircling the neck. Present above the level of thyroid cartilage. Directed obliquely downwards and backward on both sides from left side of chin making inverted “V” shape, apex of the “V” was 4cm lateral

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to chin. Single horizontal ligature mark present on back of neck.

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(iii) ligature mark of 5 cm on left side of neck below mastoid bone, width was 1 cm.

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(iv) Ligature mark of 4 cm on front side of neck below the chin, width was 1 cm. (v) Ligature mark of 4 cm on right side of neck below mastoid bone, width was 1 cm.

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The Autopsy Surgeon opined the cause of death to be hanging and mode of death pending police investigation.

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Memorandum statement of co-accused Dhansai Yadav was recorded vide Ex.P/4 and at his instance, one plastic bakkal, mobile phone of samsung and vivo & vehicle Honda Deluxe bearing registration No.CG17KJ4833 were seized under Ex.P/5, P/6 and P/8 respectively. Likewise, memorandum statement of accused/appellant Mahendra Yadav was recorded vide Ex.P/10 and at his instance, one plastic rope and red colour bag, ladies purse, ladies slipper, plain soil were seized under Ex. P/11 and P/12 respectively. The co-accused Dhansai Yadav and accused/appellant Mahendra Yadav being suspect, were arrested vide Ex.P/13 P/52 respectively. Confession panchanama of co-accused Dhansai Yadav was prepared under Ex.P/14. Spot map was prepared vide Ex.P/20. On the basis of material, the accused/appellant being suspect, an FIR was registered against him under Section 306 IPC.

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After usual investigation, charge sheet was filed against the coaccused and accused/appellant under Sections 302, 201, 34 of

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IPC before the jurisdictional Court and prosecution was launched against them on the allegation of commission of murder of Gayatri Yadav, which led to trial culminating in impugned judgment of conviction and order of sentence.

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Learned counsel for the appellant submits that the conviction of the appellant is based on evidence of last seen theory and circumstantial evidence but the chain of circumstantial evidence is not so complete to bring home the guilt of the accused/appellant. The impugned judgment of conviction and order of sentence is perverse, erroneous, contrary to law, facts and circumstances of the case, therefore, is liable to be set aside. The learned trial Court has failed to appreciate that there is no eye witness in this case and without any evidence, the accused/appellant has been falsely roped in this case. Learned counsel further submits that the prosecution has failed to establish any motive or intention on the part of the appellant to commit the murder of deceased Gayatri Yadav. The learned trial Court convicted the appellant only on the basis of testimony of interest witnesses, without there being any clinching or cogent evidence. The material prosecution witnesses have not supported the case of the prosecution and turned hostile, therefore, also the conviction of the appellant is not sustainable in the eye of law. The finding recorded by the learned trial Court is baseless, perverse, erroneous and contrary to the evidence available on record. Lastly, learned counsel submits that the prosecution in this case has utterly failed to prove the cause and

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nature of death of the deceased and the death of deceased to be homicidal in nature. Thus, the impugned judgment of conviction and order of sentence is liable to be set aside. In support of her submission, learned counsel placed reliance on the decisions of Hon’ble Apex Court in the matter of S.K. Yusuf V. State of West Bengal reported in (2011) 11 SCC 754, Sattatiya @ Satish Rajanna kartalla V. Staet of Maharashtra reported in AIR 2008 SC 1184 and Chandrapal V. State of Chhattisgarh reported in ILR 2022 CG 1473 : AIR Online 2022 SC 805 .

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On the other hand, learned State counsel supporting the impugned judgment of conviction and order of sentence submits that the learned trial Court minutely appreciated oral and documentary evidence and prosecution has successfully proved its case beyond reasonable doubt and the evidence against the appellant is last seen, memorandum and seizure thereto and also supported prosecution case. Thus, the learned trial Court rightly convicted the accused/appellant. This appeal is without any merit and liable to be dismissed.

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We have heard learned counsel for the parties, perused the impugned judgment and also gone through the material on record.

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It is apparent from the record of the learned trial Court that charges under Sections 302 read with section 34 and 201 read with section 34 of the IPC were framed against the accused/appellant Mahendra Yadav and co-accused Dhansai

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Yadav & after appreciating oral and documentary evidence, the learned trial Court acquitted co-accused Dhansai Yadav and convicted the accused/appellant as mentioned in para 1 of this judgment.

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According to the case of the prosecution, it is the accused/appellant who hanged her fiance deceased Gayatri Yadav on 17.11.2017 because he was suspecting her fidelity. As regards the hanging of deceased, this Court carefully gone through the evidence of Dr. Shashikant Kaulaskar (PW/19) who conducted postmortem on the body of deceased and found that :- (i) Face was in central position, congested, both eye lids were closed, cornea hazy, pupils dilated, conjunctiva congested. Tongue was inside the oral cavity, mouth was closed, lips closed, lips were bluish, no injuries on inner side of lips. Nasal and ear opening were clear. No purging. No saliva stains on face. Violet coloured nail polish on nails of both legs and left hand. Fingers of hand were bluish. Both upper limbs were partially flexed and lower limbs were straight. Rigor mortis present in all joints and well developed. Hypostasis was present on the back and fixed, except on pressure areas; (ii) A single ligature mark was in the form of pressure abrasion, brownish in colour, completely encircling the neck. Present above the level of thyroid cartilage. Directed obliquely downwards and backward on both sides from left side of chin making inverted “V” shape, apex of the “V” was 4cm lateral to chin. Single horizontal ligature mark present on back of neck; (iii) ligature mark of 5 cm on left side of

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neck below mastoid bone, width was 1 cm; (iv) Ligature mark of 4 cm on front side of neck below the chin, width was 1 cm.; (v) Ligature mark of 4 cm on right side of neck below mastoid bone, width was 1 cm. The Autopsy Surgeon opined the cause of death to be hanging, the manner of death to be pending police investigation and duration of death was approximately 30-38 hours since postmortem & gave his report under Ex.P/31.

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In cross-examination, the autopsy surgeon (PW/19) admitted that he cannot tell what was the width of neck of the deceased; that there was mark of rope around the neck of deceased but cannot tell its length; he cannot tell that whether the mark on the neck of the deceased was caused by rope or the dupatta; it is true that there was no mark of injury inside the neck of the deceased; it is correct to say that the cause of death given by him as hanging but he cannot tell whether it was self inflicted or hanged by somebody else. The autopsy surgeon himself admitted that the mark of rope on the neck of the deceased was after the death. This witness has also admitted that except mark of rope there was no other mark of injury on the neck of the deceased. Thus, from the aforesaid evidence of autopsy surgeon and perusal of postmortem report Ex.P/31, it is clear that nature of death was not opined by the doctor.

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The conviction of the appellant is based on circumstances evidence of last seen and in this context this Court examined the evidence of Ku. Manko Kashyap (PW/9), who was with the deceased Gayatri. This witness has stated that she and

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deceased Gayatri were working in Bihar Yojana Self Help Group and on a call from Janpad Office, she, deceased Gayatri and Anantram had gone to Janpad Panchayat to perform official work. After performing official work, she and deceased Gayatri requested Anantram to take them to Nutanpal because there was no transport facility in the village and they sat on his motorcycle and left the office at 3.00 PM. This witness has also stated that on the way at Baastanar there was house of deceased Gayatri’s brother, so they stayed there for some time to give rice and thereafter came to Mutanpaal. This witness has also stated that after reaching Mutnpaal Bazarpara, she went to her house on bicycle and deceased Gayatri and Anantram went through Burgum road where the house of Anantram was on that side. Thereafter, on next day at around 6.00 am, elder brother of deceased Gayatri and one boy namely Sunil came to take her and informed about the death of Gayatri. When she went to the house of Gayatri, she saw the dead body of Gayatri lying under a mango tree. Village Kotwar, Sarpanch and villagers had also come there. Police had also come there and inquired, whereupon she said that she used to work with deceased Gayatri. This witness has also stated that deceased Gayatri used to tell her that accused/appellant Mahendra Yadav was suspecting her (Gayatri’s) fidelity and used to scold her.

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Anantram (PW/10) who was with the company of the deceased Gayatri before her death has stated that when deceased Gayatri and Manko Kashyap (PW/9) met him near Mutanpal Bazarpara,

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they stopped him and deceased Gayatri asked where was he going, then he said that he is going to Janpad Panchayat Kilepal. Thereafter, both of them told him to drop them there too then he dropped both of them at Janpad Panchayat and started doing their work and he started doing his work. After the work got over in Janpad Panchayat Kilepal, when he, Manko Kashyap (PW/9) and deceased Gayatri were leaving from there at around 3.00 pm, he called accused/appellant Mahendra and told him that you (accused) have not come yet, thereafter, this witness, deceased Gayatri and Manko Kashyap (PW/9) were leaving from Janpad Panchayat Kilepal on motorcycle, then accused/appellant Mahendra called and said to stay in Bastanar, he would meet them there. Accused/appellant Mahendra had also said to leave a little late from Bastanar, then they waited for Mahendra for 1015 minutes in Bastanar, but he did not come, then they left towards Mutanpal. This witness has also stated that when he was driving his motorcycle, accused/appellant Mahendra was calling him over phone. Since he was driving the motorcycle, he could not pick-up Mahendra Yadav's call. After some time, accused/appellant Mahendra Yadav called him again, then he received his call. The accused/appellant told him that he (accused/appellant) would meet him in Mutanpal. This witness has also stated that they reached Mutanpal at around 4 o'clock. Since Manko Kashyap (PW/9) had parked her cycle in Mutanpal Bazarpara, she got down there. Deceased Gayatri and he went ahead of Mutanpal Bazarpara, then accused/appellant Mahendra

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Yadav was standing ahead at some distance. He stopped his motorcycle after seeing accused/appellant Mahendra Yadav, then accused/appellant Mahendra Yadav told deceased Gayatri that he was coming to her house and commanded her to accompany him on which deceased Gayatri said that she would not go with him. At the same time, accused/appellant Mahendra Yadav snatched Gayatri's bag and kept it in his motorcycle and said that how she don’t come, then Gayatri sat in accused/appellant Mahendra Yadav's motorcycle.

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This witness (PW/10) in para 6 of his evidence has also stated that on same date, at around 6 pm, Gayatri Yadav's brother Lakhan ringed him and asked that he was coming with deceased Gayatri but she did not come yet, where is Gayatri, then he said that Gayatri had gone to her home with accused/appellant Mahendra Yadav. But Lakhan said that Gayatri has not reached home yet. Thereafter, he immediately called accused/appellant Mahendra and said that Gayatri's brother was asking me whereabouts Gayatri, then accused/appellant Mahendra Yadav told him that he had left her near the bridge of her house. After that he (this witness) ringed Gayatri but Gayatri was not picking up the phone. After some time, he again ringed Gayatri, but accused/appellant Mahendra picked up Gayatri's mobile and said that he (accused/appellant) is not with Gayatri, but Gayatri's voice was coming from the phone, and she was uttering in Halbi that why was he (accused/appellant) was lying. Then he (this witness) said that Gayatri's voice is coming on the phone,

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thereafter again he called Gayatri's on mobile but it was reported to be switched off. This witness has also went on to state that on the night itself at around 12.00 o’clock, accused/appellant ringed him and said that there was a big mess, whereupon he asked as to what had happened then he told that deceased Gayatri died by hanging herself.

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The another circumstance which the prosecution relied upon is the memorandum statement of accused/appellant which was recorded during the course of investigation under Ex.P/10. According to memorandum statement, accused/appellant stated that he went into the bedroom of Gayatri, made a noose of the plastic rope and tied it with Gayatri's dupatta and then holding Gayatri, pushed her out of the bedroom and took her to the front room and tied the noose to the wooden pole and pulled it so that Gayatri's body rose above the ground and Gayatri started struggling and after some time she stopped struggling. Thereafter, he pressed her neck. He has also stated that he took the body of Gayatri near mango tree and left it there. Further, according to this memorandum statement, one rope was seized under Ex.P/11. The prosecution subjected the rope to query from Dr. Shashikant Kaulaskar (PW/19) that whether the mark on the neck of the deceased could have been caused by dupatta when it was in her neck and the rope above dupatta when accused hanged the deceased ?, and whether the mark on the neck of the deceased could have been caused from rope which was seized from the courtyard of the deceased’s house on the basis

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of suspicion & he (doctor) replied to query No.1 Yes, it can come and to query No.2 – No.

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It is apparent from the postmortem report (Ex.P/31) of the deceased, and query report (Ex.P/32) that Dr. Shashikant Kaulaskar (PW/19) did not opine nature of death and he admitted this fact in para 20 that the cause of death given by him as hanging but he cannot tell whether it was self inflicted or hanged by somebody else.

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While dealing with the issue where nature and mode of death was not opined by the autopsy surgeon, this Court in the matter of Jitendra Sen V. State of Chhattisgarh [Neutral Citation 2024:CGHC:41045-DB] referring the decision of Hon’ble Apex Court in the matter of Chandrapal V. State of Chhattisgarh [2022 SCC Online SC 705], held in paras 26, 27, 28 and 29 as under :-

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“26. Thus, it is clear that both the deceased and the appellant were in relationship and they used to talk with each other over the mobile phone but this fact is not sufficient to prove this fact that the accused committed murder of the deceased as there is no last seen evidence in this case. Sabana Bai (PW-7) in her examination-in-chief only stated that on the date of the incident, deceased Indira went alone on bicycle and in her cross-examination, she stated that she saw the appellant and the deceased going on motorcycle.

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As per the law laid down by Hon’ble Supreme Court in the case of Chandrapal (supra) , if the

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evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out then only the last seen theory is not sufficient to convict the accused/appellant for the offence of murder.

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In view of the law laid down by Hon’ble Supreme Court in the case of Chandrapal (supra), in this case also, it is clear that the prosecution has failed to prove that the death of the deceased was homicidal in nature beyond reasonable doubt and last seen theory is also not sufficient to hold the accused guilty for the alleged offence.

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It is a well settled principle of law that when other circumstances relied upon by the prosecution are proved by the prosecution beyond reasonable doubt, then only explanation of the accused/appellant is important, however in this case, prosecution has utterly failed to prove the chain of circumstances against the accused/appellant. Learned trial Court only on the basis of memorandum statement of the accused wherein he did not offer any sufficient explanation, convicted the appellant which is not in accordance with facts and circumstances of the case. Therefore, the findings recorded by the learned trial Court is not applicable to the facts of this case.”

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Further, Hon’ble Supreme Court in the matter of Chandrapal (supra) held in para 13 as under :-

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“13. This takes the court to examine the theory of “Last seen together” propounded by the prosecution. As per the case of prosecution, PW-1 Dhansingh had

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seen the accused Chandrapal calling the deceased Kanhaiya and taking him inside his house on the fateful night. Apart from the fact that the said Dhansingh had not stated about the time or date when he had lastly seen Kanhaiya with Chandrapal, even assuming that he had seen Chandrapal calling Kanhaiya at his house when he was sitting at the premises of village panchayat, the said even had taken place ten days prior to the day when the dead bodies of the deceased were found. The time gap between the two incidents i.e., the day when Dhansingh saw Chandrapal calling Kanhaiya at his house and the day Kanhaiya’s dead body was found being quite big, it is difficult to connect the present appellant with the alleged crime, more particularly when there is no other clinching and cogent evidence produced by the prosecution.

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In the light of above quoted judgment, in the present case also Anantra (PW/10) is witness of last seen but it is apparent that nature of death whether it is homicidal or not was not proved by the prosecution beyond reasonable doubt and the Dr. Shashikant Kaulaskar (PW/19) admitted this fact that he cannot tell whether it was self inflicted or hanged by somebody else. No definite opinion regarding hanging was given by the autopsy surgeon.

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It is evident from the memorandum statement of the accused/appellant that one rope was seized at his instance but according to the query report (Ex.P/32), Dr. Shashikant Kaulaskar (PW/19) replied to query No.2 that the mark present on the neck of the deceased cannot come from the rope which was seized from the courtyard of the deceased’s house. The

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evidence of rope said to be recovered from the courtyard of the deceased at the instance of accused/appellant, in the peculiar circumstances of the present case, by itself cannot be said to be an incriminating evidence of a clinching nature so as to rest conviction on it. The rope said to be recovered from the premises of the deceased was subjected to query but nothing incriminating has been proved or brought by the prosecution that the alleged rope was used in commission of crime. On such a weak circumstantial evidence, conviction cannot be sustained.

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In view of above discussion, our irresistible conclusion is that the prosecution has failed to prove beyond reasonable doubt that the death of deceased Gayatri was homicidal in nature and the last seen theory also not sufficient to hold the appellant guilty for the alleged offence. The appellant is accordingly entitled for benefit of doubt.

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The appeal is accordingly allowed. Impugned judgment of conviction and order of sentence is set aside and he is acquitted of the charge levelled against him by the trial Court by extending him benefit of doubt. The appellant is reported to be in jail. He be set at liberty forthwith, if not required in any other case.

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Sd//Sd/- (Rajani Dubey) (Bibhu Datta Guru) Judge Judge

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(Bibhu Datta Guru) Judge

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Digitally signed by VIJAY BHARATRAOPEKDEpekde Date: 2024.12.11 15:21:38 +0530

Mahendra Yadav v. State of Chhattisgarh

Case brief

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Mahendra Yadav v. State of Chhattisgarh

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