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
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Shri Ravindra Kumar Rajput, Advocate for the appellant.
Shri Sourabh Shrivastava, Dy. Government Advocate for the
respondent/State.
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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 2009was 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’