Ajay Nageshiya Vs State of Chhattisgarh

appellant has has engaged Mr.Pushkar Sinha as private counsel to argue in the present matter on his behalf. However, on a pointed query being made from Mr.Pushkar Sinha who is also present before the Court, he submits that he is ready to argue the matter and also states that he has also been issued ‘No Objection Certificate’ in favour of the appellant and further no instructions have been received in the matter.

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3. In view of the above, as the appellant is in jail since 24.03.2018, we direct that the matter be called again at 12:00 Noon for interaction with the appellant from the concerned Jail through Video Conferencing in order to ascertain whether he wishes to engage a counsel of his own choice or seeks assistance from Legal Aid as the counsel engaged by him has issued ‘No Objection Certificate’. For the said purpose, the concerned Jail Superintendent is directed to ensure the appearance of the appellant in this criminal appeal before this Court through Video Conferencing at 12:00 Noon and the Registrar (Judicial) is also directed to make necessary arrangements to facilitate the hearing through Video Conferencing at 12:00 Noon today itself.

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4. Later on, when the matter was called again at 12:00 Noon, the appellant was connected through Video Conferencing and he was identified by Mr.A.K. Bajpai, Assistant Jail Superintendent, Central Jail, Ambikapur.

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5. Upon being queried about his counsel, he stated that he had engaged Mr.Pushkar Sinha, learned counsel, to argue the appeal on his behalf, but he has taken ‘No Objection Certificate’ from him. Consequently, the Court further queried whether he wishes to engage a counsel of his own choice or would prefer to argue the matter by learned counsel representing him through legal aid, the appellant states that he was willing to have his appeal argued by Mr. Anupam Dubey, learned counsel, who is already appearing on behalf of the appellant through legal aid.

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6. In view of the above, this Court permits Mr.Anupam Dubey to argue the appeal on behalf of appellant-Ajay Nageshiya.

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7. This criminal appeal arises out of the judgment of conviction and order of sentence dated 5.1.2022 passed by the First Additional Sessions Judge, Ramanujganj in Sessions Case No.R-60/2018, whereby the appellant has been convicted and sentenced in the following manner :

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Sl.	Conviction	Sentence
No.
1.	Under Section	RI for 10 years and fine of Rs.500/-, in
	376 of the Indian	default of payment of fine to further
	Penal Code	undergo RI for 15 days.
2.	Under Section	RI for life and fine of Rs.500/-, in default
	302 of the Indian	of payment of fine to further undergo RI
	Penal Code	for 30 days.

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8. The prosecution story, in brief, is that on 27.01.2018, complainant Sundarlal lodged a report of untimely and accidental death in Police Station Samaripath to the effect that on 26.01.2018, some people had come from Shankargarh for marriage of his cousin Mansay Nagesia's daughter, in which Sundarlal had gone with his family. After seeing the girl, the guests called a Bolero from Samari at around 11.00 P.M. and went back and he slept under a mango tree with the villagers. On 27.01.2018, at 10 A.M., the villagers informed him that his sister Jaswanti Nagesia was lying dead in Bhuneshwar Nagesia's field and she had injuries on her head and face. He immediately went to Bhuneshwar's field and saw that his sister Jaswanti was lying dead and her forehead, head and face were swollen due to injuries. Upon the information of the complainant, Samaripath Police Station registered the merg intimation regarding the untimely and sudden death of Kumari Jaswanti vide Ex.P-1.

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9. On the basis of information regarding untimely and accidental death (Ex.P-1), First Information Report (Ex.P-2) was registered. Identification Panchnama (Ex.P-3) was prepared. Notice (Ex.P-4) was issued to the Panchas for their presence on the spot itself. In presence panch witnesses, naksha panchayatnama (Ex.P-5) was prepared. On the identification of complainant Sundersai, spot map of the incident was prepared vide Ex.P-6. The body was sent to Community Health Center, Kusmi for postmortem by constable Premsai Kujur and Niranjan Singh (PW 15) along with

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postmortem application Ex.P-9. Postmortem was conducted by Dr.T.Sai (PW-9) vide Ex.P-9 and found following injuries:-

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“1. Bruise was present on the right side of head towards front, measuring 6 x 4 cm, irregular in shape, bluish grey in colour.

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Bruise was present on the left anterior part of the head, measuring 5 x 4 cm, irregular, bluish grey in colour.

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Bruise was present on left cheek, measuring 4 x 3 cm, irregular and brown in colour.

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Bruise was present on the right cheek, measuring 3 x 2 cm, irregular and brown in colour.

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Abrasion on right forearm size 4x3 cm, irregular brown in colour. Eye closed, pupil diluted, conjunctive congested. Blood come out from the mouth.

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Skull, Cranium and Vertebrae- right frontal bone was cracked.

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Brain and spinal cord – congested and blood clot was present.”

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The doctor has opined that cause of death was come & internal haemorrhage due to head injury and mode of death was homicidal.

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10. During investigation, on 27.01.2018, upon inspection in Chota Bari adjoining the house of Mansai Nagesia at a distance of one hundred and fifty meters from the incident spot, sky blue colour plastic bangles worn by girl, round shiny white pink colour top

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earring, buckle, four pieces of centre foot chivigam, gudakhu and National Agriculture Fair Chhattisgarh 2018-0010-1 identity card of Farmer name Ajay Ram District Balrampur, Block Kusmi Village Jamipath, at male dead 24.01.2018 were seized as per the seizure memo Ex.P-12 and the the victim's belongings were preserved, the items were seized as per seizure memo Ex.P-17.

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11. During investigation, on the basis of suspicion, the appellant was taken into police custody and interrogated and his memorandum statement was recorded in front of witnesses vide Ex.P-13 and he was arrested on 24.03.2018 as per arrest memo Ex.P-14. On 24.03.2018 underwear of the appellant was seized vide Ex.P-15. On 25.03.2018, report Ex.P-11 was sent to Block Medical Officer Kusmi for conducting physical examination of the appellant and report Ex.P-10 was sent for physical examination of the seized undergarments of the appellant. In the case, underwear of the appellant was sent to FSL Ambikapur for chemical examination and as per DNA report Ex.P-27, the allele of each marker found in the male (Y) DNA profile obtained from Exhibit B (591) of appellant Ajay Nagesia are the same as those found in the male (Y) DNA profile obtained from Exhibit (590A) vaginal fluid of the deceased, Exhibit A (590A1) blood stained pubic hair and Exhibit A (590A2)) public hair.

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12. Statements of the witnesses were recorded under Sections 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) and

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after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Rajpur, who in turn, committed the case to the Court of Sessions, Balrampur at Ramanujganj, from where the First Additional Sessions Judge, Ramanujganj received the case on transfer for trial.

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13. Learned trial Court framed the charges for offences under Sections 376(1), 302 and 201 of the IPC against the appellant. Moreover, the appellant denied the charge and face trial.

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14. In order to prove the guilty of the accused/appellant, the prosecution has examined as many as 16 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and claimed innocence and false implication in the crime.

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15. After affording an opportunity of hearing to the parties, learned trial Court has convicted and sentenced the appellant as mentioned above. Hence, this appeal.

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16. Learned counsel for the appellant vehemently argued that although this is unfortunate murder after committing rape of the deceased, but only on account of unfortunate rape and murder, liability could not be fastened upon the appellant without any admissible and legal evidence. In case of charge of rape and murder, heavy duty is cast upon the prosecution for strict proof of the offence beyond all shadow of doubt. In the present case, as per evidence of the prosecution witnesses, rape and murder of

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the deceased is not substantially disputed. The prosecution has tried to connect the appellant in the crime in question on the basis of evidence of Smt.Lalvati (PW-5) and Ku.Sumitra (PW-8) who have claimed themselves as last seen witnesses. The conduct of the witnesses is suspicious and is not worth of credence for convicting the appellant for commission of heinous offence of rape and murder. Suspicion, however strong it may be, cannot take the place of legal proof. He further submits that there is no direct evidence in this case against the appellant, therefore, the appellant must be acquitted from the charge under Sections 376 and 302 of the IPC. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be quashed.

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17. On the other hand, learned State counsel supported the judgment impugned and argued that the appellant after committing rape brutally murdered her and looking to the seriousness of the crime, the appellant is not entitled for any sympathy. Therefore, looking to the heinous as well as brutal act of the appellant, learned trial Court has rightly convicted and sentenced the appellant for offence under Sections 376 and 302 of the IPC, which warrants no interference by this Court.

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18. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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19. In the present case, homicidal death as a result of ante-mortem fatal injuries of the deceased has not been substantially disputed by the appellant, on the other hand, otherwise also established by the evidence of Dr.T.Sai (PW-9) and autopsy report Ex.P-9 which reveals that cause of death was coma & internal haemorrhage due to head injury and death was homicidal in nature.

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20. It is the case of no direct evidence, rather conviction is based on circumstantial evidence.

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21. We may also make a reference to a decision of the Supreme Court in C. Chenga Reddy and Ors. v. State of A.P., (1996) 10 SCC 193 , wherein it has been observed thus:

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“In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”.

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22. In Padala Veera Reddy v. State of A.P. and Ors., AIR 1990 SC 79 , it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

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“(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

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(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

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(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

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(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”

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23. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104) , it was pointed out by the Supreme Court that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

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24. Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who

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asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted”.

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25. Five golden principles which constitute Panchseel of proof of case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 which state as under :-

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“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established;

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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

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

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26. The Supreme Court in the matter of Suresh and Another v State

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of Haryana, (2018) 18 SCC 654 has observed that cases of circumstantial evidence, the courts are called upon to make inferences from the available evidence, which may lead to the accused's guilt. The court at paras 41 and 42 has observed thus :

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“41. The aforesaid tests are aptly referred as Panchsheel of proof in Circumstantial Cases (refer to Prakash v. State of Rajasthan). The expectation is that the prosecution case should reflect careful portrayal of the factual circumstances and inferences thereof and their compatibility with a singular hypothesis wherein all the intermediate facts and the case itself are proved beyond reasonable doubt.

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Circumstantial evidence are those facts, which the court may infer further. There is a stark contrast between direct evidence and circumstantial evidence. In cases of circumstantial evidence, the courts are called upon to make inferences from the available evidence, which may lead to the accused's guilt. In majority of cases, the inference of guilt is usually drawn by establishing the case from its initiation to the point of commission wherein each factual link is ultimately based on evidence of a fact or an inference thereof. Therefore, the courts have to identify the facts in the first place so as to fit the case within the parameters of “chain link theory” and then see whether the case is made out beyond reasonable doubt. In India we have for a long time followed the “chain link theory” since Hanumant

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case, which of course needs to be followed herein also.”

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27. The Supreme Court in the matter of Sailendra Rajdev Pasvan and Others vs. State of Gujarat Etc., AIR 2020 SC 180 observed that in a case of circumstantial evidence, law postulates two-fold requirements. Firstly, that every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt and secondly, all the circumstances must be consistent pointing out only towards the guilt of the accused. We need not burden this judgment by referring to other judgments as the above principles have been consistently followed and approved by this Court time and again.

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28. The question for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime by relying upon the following circumstances:-

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(i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P-9) of Dr. T. Sai (PW-9), who conducted autopsy.

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(ii) As per the case of the prosecution, the fact of death of the deceased was within the knowledge of the appellant, however, there was no any explanation given by the appellant in his statement under Section 313 of the CrPC. Thus, burden of proof was on the appellant to explain such circumstance, which he failed to explain.

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29. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused ‘must be’ and not merely ‘may be’ proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that 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 probabilities the act must have been done by the accused.

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30. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.

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31. Smt.Lalvati (PW-5) has stated in para 2 of her evidence that on the day of the incident, people from Jotad village came to their house at around 4:00 P.M. to see the girl and went back to their

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home after eating and drinking the same night. No one stayed at their house, everyone left. The guests who had come to cook food from the village and family members were eating together and appellant Ajay and Jashwanti were sitting together in her house. After that, she went inside the house to put the children to sleep.

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32. Ku.Sumitra (PW-8) has stated in para 3 of her evidence that there was a wedding engagement ceremony in her elder sister Phulmait Nagesia's house in village Kerapath. Many people had come to attend the engagement ceremony. The deceased was her aunt, she had also come to Phulmait's house. Neelam, Maheshwari, Krishni and she from their village had all attended the ceremony. Appellant Ajay had also come to that ceremony in the evening on the same day. Krishni and others had given food to appellant Ajay. In para 4 of her evidence, she has stated that the guests who had come to Phulmait's house had all left for their respective homes at around 7:00 P.M. She, her brother and aunt stayed back. The appellant and deceased Jashwanti were sitting near the stove house. She had slept in the same house, so she don't know whether they left or not. She saw the appellant and the deceased sitting near the stove house at around 9:00 P.M. In para 5 of her evidence, she has stated that next day morning, the deceased's sister-in-law Maheshwari told her and Neelam that deceased Jashwanti was not at home at night and she asked them to look for her. When they went out to look for her, they saw a banana tree next to the deceased's house, a shawl, a gudaku, a center

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fruit, a hair buckle, a broken bangle lying there. In para 6 of her evidence, she has stated that then they went ahead and saw Jashwanti lying dead. Then she told her mother Lalvati and the deceased's sister-in-law Maheshwari about seeing Jashwanti dead. Then all the people of the house went and saw the dead body of the deceased.

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33. Thus, on the basis of evidence of the above witnesses, it is proved that the deceased was last seen with the appellant on the date of the incident and thereafter the deceased was found in a dead state, on whose body injury marks were found, which has been confirmed on the basis of the postmortem report as well and the death of the deceased due to those injuries is proved on the basis of the postmortem report. On the basis of DNA and FSL test, it is proved that the deceased was raped and it is also proved that the appellant after committing rape caused murder of deceased Jashwanti in the course of rape. The motive of the appellant is also proved from the above evidence that the victim was murdered because she resisted the rape.

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34. Applying the aforesaid well settled principles of law and taking into consideration the facts in totality and considering the facts and circumstances of the case, in our considered view, the prosecution was able to establish the guilt of the appellant beyond reasonable doubt. The impugned judgment of conviction and

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order of sentence is just and proper warranting no interference of this Court.

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35. In the result, the criminal appeal being devoid of merit is liable to be and is hereby dismissed .

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36. It is stated at the Bar that the the appellant is in jail, he shall serve out the sentence as ordered by the learned trial Court.

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37. The trial court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

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38. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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Sd/- Sd/-

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(Bibhu Datta Guru) (Ramesh Sinha ) Judge Chief Justice

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Bablu

Ajay Nageshiya v. State of Chhattisgarh

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Ajay Nageshiya v. State of Chhattisgarh

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