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Chandrabhan Singh vs The State Of Madhya Pradesh on 29 August, 2018

1 Cr.A. No.2233 of 2009

HIGH COURT OF MADHYA PRADESH, JABALPUR
DIVISION BENCH
Hon’ble Mr. Justice Subodh Abhyankar

Hon’ble Mr. Justice Akhil Kumar Srivastava, JJ

CRIMINAL APPEAL NO. 2233 OF 2009
Chandrabhan Singh
Vs.
State of Madhya Pradesh
——————————————————————————-
Shri Ravindra Kumar Rajput, Advocate for the appellant.
Shri Sourabh Shrivastava, Dy. Government Advocate for the
respondent/State.
——————————————————————————–
JUDGMENT

(Delivered on this the 29th day of August, 2018)

PER: Subodh Abhyankar,J.

This appeal has been filed under Section 374 (2) of the

Code of Criminal Procedure, 1973 being aggrieved by the

judgment dated 29.01.2008 passed by the First Additional

Sessions Judge, Shahdol in S.T. No.100/2007, whereby the

appellant has been convicted and sentenced as under :

Conviction u/s Sentence Default clause
376 of IPC 07 years’ R.I. with R.I. for one year
fine of Rs.1,000/-
2 Cr.A. No.2233 of 2009

302 of IPC R.I .for life with fine R.I. for one year
of Rs.1500/-
201 of IPC 07 years’ R.I. with R.I. for six months
fine of Rs.500/-
All the sentences are directed to run
concurrently.

2. In brief the facts giving rise to the present appeal are that the

appellant Chandrabhan Singh was known to the deceased Sugari

Bai and her family and used to come to their house. On the date

of incident i.e. on 4.3.2007, a Marg Intimation under Section 174

of Cr.P.C. was lodged by the complainant Patiram wherein it was

stated that Sugari Bai, aged 18 years has left her house on

3.3.2007 at around 12 O’clock but did not return till night, she

was also searched in the night but in the morning of 4.3.2007 one

Daduram Singh Gond came to the complainant and informed him

that Sugari Bai is lying in the field near a mango tree. It was also

stated that Sugari Bai was last seen with the appellant

Chandrabhan Singh at around 2 O’clock in the noon by Ramphal.

Subsequently the FIR (Ex.P/18) was lodged on 6.3.2007 in which

the name of the appellant is also mentioned as a suspect. However,

the charge sheet was filed against the appellant and the learned

Judge of the Trial Court after recording the evidence has found the

appellant guilty under Section 376, 302 and 201 of IPC as
3 Cr.A. No.2233 of 2009

aforesaid.

3. Learned counsel for the appellant has vehemently argued

before this Court that the appellant is entitled to be acquitted as

the learned Judge of the Trial Court has not appreciated the

evidence in its proper perspective. It is further submitted that the

learned Judge of the Trial Court has erred in not considering the

import of Ex.P/6, Ex.P/8 Ex.P/9 which are spot maps and there

is material discrepancies among these documents.

4. Learned counsel for the appellant has submitted that the

appellant was not on the spot when the incident took place and the

persons who were earlier suspected of committing the same

offence have been made the witnesses in the case. The counsel

has drawn the attention of this Court to the testimony of Roopwati

(PW-1). The counsel has further submitted that the learned

Judge of the Trial Court has lost sight of the fact that the evidence

adduced by the prosecution in respect of the last seen together is

shaky and cannot be relied upon to convict the appellant as

admittedly the prosecutrix was lastly seen together in the morning

of 3.3.2007 whereas her dead body has been recovered in the

morning of 4.3.2017 at around 2.00 O’clock, thus the contention

of learned counsel for the appellant is that the appellant is
4 Cr.A. No.2233 of 2009

entitled to be acquitted as the chain of circumstances leading to

only hypothesis of guilt of the accused is not complete.

5. On the other hand, learned counsel for the State has opposed

the prayer and has submitted that the prosecution has been able to

prove its case beyond reasonable doubt by adducing the evidence

in support of its story. It is further submitted that it may be that

there is no eye witness account on record but the circumstantial

evidence led by the prosecution is sufficient to bring home the

charge of rape with murder. The counsel has further submitted that

the FSL report is also against the appellant as the clothes

recovered from the body of the deceased contained semen marks

which is sufficient to draw a presumption of guilt of the appellant

as he was last seen together with the deceased. It is further

submitted that Roopwati (PW-1) who is the mother of the

deceased Sugari Bai has clearly stated that the appellant had

stayed at their home in the night and in the morning at around 9

O’clock when he started for his village he also asked the deceased

Sugari Bai to accompany him and thereafter she did not come

back till night and when she went to the house of the appellant,

she was informed by his parents that neither Sugari Bai had come

nor their son appellant Chandrabhan Singh. In addition, it is also
5 Cr.A. No.2233 of 2009

submitted that at the instance of the appellant his jerkin was also

recovered vide Ex.P/29 which was torn from collar.

6. The counsel has further submitted that apart from that there

is an evidence of last seen together which is clinching in nature

and cannot be discarded lightly. The counsel has further submitted

that the entire evidence on record has been properly appreciated

by the learned Judge of the Trial Court, hence no interference is

called for. Thus the counsel has prayed for dismissal of the appeal.

7. Heard learned counsel for the parties and perused the record.

8. So far as the nature of the death of Sugari Bai is concerned,

Dr. D.J. Mohanti (PW-11) has stated that he conducted the

postmortem of the deceased – Sugari Bai on 5.3.2007 at around 9

a.m. and in the PM report (Ex.P/12) had found as many as 14

injuries on the person of the deceased and all of them were either

the scratches or the contusions. On internal examination it was

found that her hymen was old ruptured and her hyoid bone was

fractured. All the injuries were ante mortem in nature and caused

by hard and blunt object. The death was homicidal and the cause

of death was said to be asphyxia or strangulation. The time of

death is said to be between 24 to 36 hours at the most. In his

cross-examination, he has also stated that there was a sexual
6 Cr.A. No.2233 of 2009

assault prior to her death which he found at the time of

postmortem report. Thus, the deceased had died a homicidal death

and prior to that she was also subjected to sexual assault.

9. The FIR Ex.P/18 in the present case was lodged on

06.03.2007 on the basis of Marg intimation Ex.P/3 dated

04.03.2007 and the time of the incident is said to be from 12 am of

03.03.2007 to 9 am of 04.03.2007. In the FIR the name of the

appellant is already mentioned as the suspect.

10. So far as the theory of last seen together is concerned, it is

supported by the prosecution witness namely Roopwati (PW-1)

who happens to be the mother of the deceased Sugari Bai and

who has stated that in the earlier night of the incident i.e. on

02.03.2007, the appellant had stayed in their house and on the date

of the incident i.e. on 03.03.2007, in the morning at 9′ O Clock, he

took Sugari Bai with him and thereafter, Sugari Bai did not come.

She had also gone to the house of the appellant in the evening to

inquire about the whereabouts of the Sugari Bai but neither the

appellant was found at his home nor the deceased Sugari Bai. This

witnesses in her statements under Section 161 of Cr.P.C., had

stated that the appellant Chandrabhan Singh had also come to her

house in the night at around 10′ O Clock to inquire whether Sugari
7 Cr.A. No.2233 of 2009

Bai had come which fact was stated by her however, she has

omitted the same in her examination-in-chief in the Court, to

which she has also been confronted in her cross examination after

declaring her hostile and has denied the same.

11. Basantibai (PW-2), who is sister of the deceased, had also

seen the deceased going with the appellant at around 9′ O Clock.

Similarly Raju Yadav (PW-4) had also seen the deceased along

with the present appellant at the same time i.e. 9:30 in the

morning. He has also admitted that in the present case, along with

Padmu Yadav and Ram Prasad, he was also detained by the police

for a while. Padmu Yadav (PW-16) is also yet another witness

who had seen the appellant and the deceased together at around 9

am in the same morning.

12. Dr. J.M.Garg (PW-10) had examined the appellant

Chandrabhan on 07.03.2007 at around 12.30 pm vide Ex.P/15 in

which he had found that he had light bruise marks on both his

knees caused within 96 hours of the examination which comes to

around 12 am of 03.03.2007 and had no smegma under his

foreskin suggesting commission of sexual intercourse in the

immediate past. Although he has admitted that the injuries on the

knees can be caused due to fall.

8 Cr.A. No.2233 of 2009

13. Patiram (PW-3), father of the deceased Sugari Bai, who has

lodged the Marg Intimation Ex.P/3 has deposed that on

03.03.2007 when he came back from work, he was informed by

his wife that the deceased Sugari Bai has not returned after she left

in the morning with appellant Chandrabhan and on 04.03.2007 he

was informed by Daduram that Sugari Bai is lying under a mango

tree in his field. Daduram (PW-5) is the person who had seen the

deceased lying under a Mango tree and informed her father,

although he had not seen the appellant along with the deceased.

14. Mangal Singh (PW/13) who is also the paternal uncle of the

appellant Chandrabhan, has stated that on the day of incident

appellant Chandraban asked him to accompany to Sugari Bai’s

home and when they reached there, Charndrabhan asked a girl

there that whether Sugari Bai had come, to which she had denied

but in his cross-examination, this witness has not even been

suggested that appellant Chandraban had not gone there at the

house of Sugari Bai.

15. Thus, from the aforesaid discussion the factum of appellant

Chandrabhan leaving the house of the deceased Sugari Bai’s with

her on 03.03.2007 is established. Thereafter, both of them were

also seen by Raju Yadav (PW-4) and Padmu Yadav (PW-16). It is
9 Cr.A. No.2233 of 2009

true that according to the P.M. report (Ex.P/11) which was

conducted on 05.03.2007 at around 9 am the time of death had

occurred between 24 to 36 hours from the time the postmortem

was conducted, thus, the possible time of her death would be 9 pm

of 03.03.2007 whereas she was last seen with the appellant at

around 9 am in the morning. Apparently, there is a huge and

unexplained time gap of around 12 hours between her death and

the time she was last seen alive with the appellant.

16. So far as the proximity of time between the evidence of last

seen together and the recovery of dead body is concerned,

reference may be had to the decision rendered by the Apex court

in the case of Dharam Deo Yadav v. State of Uttar Pradesh,

(2014) 5 SCC 509 : (2014) 2 SCC (Cri) 626, para 19 of the same

reads as under:-

“19. It is trite law that a conviction cannot be
recorded against the accused merely on the ground
that the accused was last seen with the deceased. In
other words, a conviction cannot be based on the only
circumstance of last seen together. The conduct of
the accused and the fact of last seen together plus
other circumstances have to be looked into. Normally,
last seen theory comes into play when the time gap,
between the point of time when the accused and the
deceased were seen last alive and when the deceased
is found dead, is so small that the possibility of any
person other than the accused being the perpetrator
of the crime becomes impossible. It will be difficult
in some cases to positively establish that the deceased
10 Cr.A. No.2233 of 2009

was last seen with the accused when there is a long
gap and possibility of other persons coming in
between exists. However, if the prosecution, on the
basis of reliable evidence, establishes that the missing
person was seen in the company of the accused and
was never seen thereafter, it is obligatory on the part
of the accused to explain the circumstances in which
the missing person and the accused parted company.
Reference may be made to the judgment of this Court
in Sahadevan v. State. In such a situation, the
proximity of time between the event of last seen
together and the recovery of the dead body or the
skeleton, as the case may be, may not be of much
consequence. PWs 1, 2, 3, 5, 9 and 10 have all
deposed that the accused was last seen with Diana.
But, as already indicated, to record a conviction, that
itself would not be sufficient and the prosecution has
to complete the chain of circumstances to bring home
the guilt of the accused.

(emphasis supplied)

17. Applying the aforesaid dictum to the facts of the present

case, before the benefit of time gap between the point of time

when the accused and the deceased were seen last alive and when

the deceased is found dead, can be extended to the appellant, he is

also required to explain as to why in the night of 03.03.2007 at

around 10′ O Clock he went to the house of Sugari Bai when in

the morning Sugari Bai had left her home with him as has been

stated by his own uncle Mangal Singh (PW-13) that appellant

Chandrabhan Singh had gone to the house of the deceased in the

night but in his statement u/s.313 of Cr.P.C. no explanation has

been given by the appellant, nor has he explained the injuries
11 Cr.A. No.2233 of 2009

suffered by him on his knees, the time of which is proximate to

the time when the appellant was last seen with the deceased. It

was also incumbent upon him to explain as to what happened to

Sugari Bai after he left his house with her, but the appellant has

remained totally silent about all the aforesaid incriminating

circumstances. It is often seen that real culprits visit the scene of

crime in order to obviate any doubt in the minds of any person

that he may also be involved in the case, and in the absence of

any explanation in this behalf, this Court has no hesitation to hold

that the presumption of guilt against the appellant stands

unrebutted and he is liable to be convicted.

18. So far as FSL report Ex.P/33 is concerned, the clothes of

the deceased had the semen marks which would also substantiate

the charge of rape against the appellant. The appellant has also not

explained the recovery of his jerkin vide Ex.P/29 which was torn

from collar which has also been duly proved by Padmu Yadav

(PW-16).

19. So far as the conviction of the appellant u/s.201 of IPC is

concerned, no conclusive proof of the same is present on record.

Spot maps Ex.P/6, P/8 P/9 do not prove that the body was

removed from one place to another and the conviction of the
12 Cr.A. No.2233 of 2009

appellant under Section 201 of IPC is hereby set aside. Thus, the

appeal stands partly allowed to the extent as above but her

conviction under Sections 376 and 302 of IPC is hereby

maintained. The appellant to suffer the remaining part of his jail

sentence as ordered by the Trial Court.

(Subodh Abhyankar) (Akhil Kumar Srivastava)
Judge Judge
29/08/2018 29/08/2018

DV

Digitally signed by DINESH
VERMA
Date: 2018.08.29 17:00:09
+05’30’

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