1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellant-accused, is to the legality, validity and correctness of the judgment dated 31.08.2019 passed by the Sessions Judge, Kondagaon, District Kondagaon, Chhattisgarh, in Sessions Trial No. 38/2018 by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of ₹ 25,000/-; in default of payment of fine amount to undergo additional rigorous imprisonment for six months.
Prosecution story:-
2. During the intervening period from 6:00 pm on 17.02.2018 till 05:00 pm on 18.02.2018, at the forest of Bhatgaon village, Police Station Farasgaon District – Kondagaon Chhattisgarh, the appellant assaulted his wife Dineshwari Yadav by axe, by which she suffered grievous injuries and died and thereby committed the aforesaid offence.
3. It is further case of the prosecution that Baldev Yadav (PW-2), father of the deceased, reported the matter against the appellant herein to the police that the marriage of the appellant and his daughter (deceased) was solemnized prior one year to the date of offence. Further, 15 days’ prior to the incident, her daughter Dineshwari came to his house from the house of her husband-appellant and on 17.02.2018 at about 6:00 pm the appellant came to his house (PW-2) and took her daughter-deceased with himself on motorcycle. On the next day i.e. 18.02.2018 at about 5:00 pm, on phone call, Bhatgaon village Sarpanch Lachchhan Markam (PW-4) informed him (PW-2) about the death of his daughter- deceased, thereafter, he (PW-2) along with the other villagers went on the spot and saw the dead body of his daughter pursuant to which merg intimation and FIR were registered vide Exs.P/1 & P/13, respectively. Wheels of investigation started running and the appellant was arrested. Crime details form and spot map were prepared vide Exs.P/3 & P/10, respectively. Inquest proceedings (Ex.P/9) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/22) proved by Dr. Jyotirmay Prabhawali (PW-16), cause of death was asphyxia and excessive traumatic haemorrhage due to stragulation and head injury. Pursuant to memorandum statement of the appellant (Ex.P/5), axe and his clothes were seized vide Exs.P/6 & P/7, respectively. Other articles were also seized. Seized articles were sent for chemical analysis to FSL. As per FSL report (Ex.P/21) on the axe (article C), clothes of the appellant (articles D & E) and on the clothe of the deceased (article G) as well, human blood was found. As per query report (Ex.P/23) proved by Shailendra Kumar Bhoyar (PW-17) the injuries found over the body of the deceased could be caused by the axe which was seized pursuant to memorandum statement of the appellant.
4. After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.
5. During the course of trial, in order to bring home the offences, the prosecution has examined as many as 17 witnesses and exhibited 23 documents, whereas, the appellant in defence has not examined any witness but exhibited 1 document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.
6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.
Submission of the Parties:-
7. Mr. Ashok Varma and Mr. Gajendra Sahu, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. They would also submit that the finding with regard to the theory of last seen together recorded by the trial Court on the basis of statements of Lakhmi (PW-1), mother of the deceased, Baldev Yadav (PW-2), father of the deceased, Maheshwari Yadav (PW-3), sister of the deceased, and Dinesh Kumar Yadav (PW-6), brother of the deceased, is not established at all as there is considerable time gap between when the appellant was seen along with the deceased and when the dead body of the deceased was found and even otherwise, as per the prosecution, the other two persons namely Harish and Charkai who came with the appellant to the house of PW-2 and allegedly taken the deceased, were not examined by the prosecution by which adverse interference has to be drawn against the prosecution. They would further submit that there is a considerable time gap in recording statement under Section 161 of the CrPC PW-6. They would further submit that the memorandum statement of the appellant (Ex.P/5) and seizure (Exs.P/6 & 7) were made prior to the arrest of the appellant and hence, these are not duly admissible in evidence. Even, in the chemical examination (Ex.P/21) origin of blood was not found and only human blood was found. They would further submit that the case of the prosecution is based on the surmises and conjectures and no direct evindence has been brought on record by the prosecution against the appellant and in absence of corroborative piece of evidence only on the basis of theory of last seen together, the appellant could not be convicted and, therefore, he is entitled for acquittal on the basis of benefit of doubt and the instant appeal deserves to be allowed. In support of their submissions, they would rely upon the decisions of Supreme Court as well as decisions of the High Courts i.e. R. Sreenivasa v. State of Karnataka AIR 2023 SC 4301; Harbeer Singh v. Sheeshpal & Ors. (2016) 16 SCC 618; Chandrabhan Sudam Sanap v. State of Maharashtra 2025 SCC OnLine SC 174; Rupesh v. The State of Maharashtra (In Criminal Appeal No.604 of 2017; decided on 18.01.2019); Pooja Bansal v. State of Madhya Pradesh through Police Station Bairagarh District Bhopal 2024 SCC OnLine MP 4362 & Ramdayal v. State of Madhya Pradesh 1993 MPLJ 532.
8. On the other hand, Mr. Pankaj Singh, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offences beyond reasonable doubt. He would also submit that in presence of Lakhmi (PW-1), mother of the deceased, Baldev Yadav (PW-2), father of the deceased, and Maheshwari Yadav (PW-3), sister of the deceased, the appellant had taken the deceased with himself on motorcycle on 17.02.2018 at about 6:00 pm, from their custody, which has duly been proved by them (PW-1, PW-2, PW-3 & PW-6) and thereafter, as per merg intimation (Ex.P/1) on 18.02.2018 at about 5:00 pm the dead body of the deceased was recovered, within 24 hours and it is the case of the prosecution that the deceased was taken by the appellant only with himself from the custody of her parents and, therefore, the appellant is required to exaplain in his statement recorded under Section 313 of the CrPC that as to how and under what circumstances his wife (deceased) died within 24 hours. He would also submit that pursuant to memorandum statement of the appellant (Ex.P/5) weapon of offence i.e. axe and his clothes were seized vide Exs.P/6 & P/7, respectively, on which in FSL report (Ex.P/21) human blood was found and, therefore, the trial Court has rightly convicted the appellant for the aforesaid offence. Thus, the instant appeal deserves to be dismissed.
9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely.
Discussion & Analysis:-
10. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/22) proved by Dr. Jyotirmay Prabhawali (PW-16), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.
11. Now, the question for consideration would be whether the appellant has assaulted the deceased
12. The case of the prosecution is based on the circumstantial evidence and the trial Court has found incriminating circumstances established. The five golden principles which constitute panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 in paragraph 153 which state as under:-
“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 :
(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:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(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,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(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.”
13. In order to base the conviction of the appellant, the trial Court has relied upon the theory of last seen together on the basis of statements of Lakhmi (PW-1), mother of the deceased, Baldev Yadav (PW-2), father of the deceased, Maheshwari Yadav (PW-3), sister of the deceased, and Dinesh Kumar Yadav (PW-6), brother of the deceased, as in their presence, the appellant on 17.02.2018 came to the house of deceased’s father (PW-2) along with two persons, but only the appellant had taken the deceased (wife of the appellant) with him on his motorcycle and thereafter, on 18.02.2018 at about 5:00 pm the dead body of the deceased was recovered, within 24 hours, as, as per the merg intimation (Ex.P/1) village Sarpanch Lacchham Markam (PW-4) informed about the said fact to Baldev Yadav (PW-2), father of the deceased. Furthermore, pursuant to memorandum statement of the appellant (Ex.P/5) axe and his clothes were seized vide Exs.P/6 & P/7, respectively, duly proved by Lacchham Markam (PW-4) and Arjun Yadav (PW-8) and on the seized articles pursuant to memorandum statement of the appellant human blood was found in the FSL report (Ex.P/21).
14. Now, we will discuss each of the incriminating circumstances one by one.
15. First incriminating circumstance i.e. theory of last seen together:- The prosecution has cited Lakhmi (PW-1), mother of the deceased, Baldev Yadav (PW-2), father of the deceased, Maheshwari Yadav (PW-3), sister of the deceased, and Dinesh Kumar Yadav (PW-6), brother of the deceased, as witnesses of theory of last seen together and the same has been accepted by the trial Court. Lakhmi (PW-1), mother of the deceased, in her statement before the Court has stated that on 17.02.2018 in the evening, when she, her husband (PW-2), deceased and her younger daughter (PW-3) were in the house, the appellant came to her house along with his two friends and asked her daughter–deceased to come with him, which she (deceased) refused, then the appellant threatened her (deceased) to kill and forcefully took her with him on his motorcycle and on the next day she got the information about the death of her daughter. Baldev Yadav (PW-2), father of the deceased. In his statement before the Court has stated that on 17.02.2018 in the evening, when he, his wife (PW-1), deceased and her younger daughter (PW-3) were in the house, the appellant came to his house along with his two friends and asked his daughter–deceased to accompany him, which she (deceased) refused, then the appellant threatened her (deceased) to kill and forcefully took her with him on his motorcycle and on the next day he got the information about the death of her daughter on phone call made by Lacchham Markam (PW-4). However, in the cross-examination, he (PW-2) has stated that the appellant had taken his daughter (deceased) to his home in a good manner. Similar statement has been made by Maheshwari Yadav (PW-3), sister of the deceased, that on 17.02.2018, when she was in the house along with the deceased and her parents (PW-1 & PW-2), the appellant came to the house along with his two friends and asked her sister (deceased) to come with him, though she (deceased) refused to come, but the appellant forcefully took her with him on his motorcycle and on the very next day i.e. 18.02.2018 in the evening she got the information about the death of his sister. Similarly, Dinesh Kuamr Yadav (PW-6) in his statement before the Court has stated that on 17.02.2018 in the evening the appellant came to house and took his sister (deceased) forcefully with him and on the next day i.e. 18.02.2018 he got the information about the death of the his sister.
16. Admittedly, from the statements of PW-1, PW-2, PW-3 & PW- 6, it would appear that it is the appellant who took the deceased forcefully against her wishes from the house of PW-1 with him in presence of PW-1, PW-2 & PW-3 on 17.02.2018 and thereafter, within 24 hours on 18.02.2018, dead body of the deceased was noticed by Mahendra, villager, who informed the same to Lacchham Markam (PW-4) and PW-4 informed about the death of the deceased to PW-2 Baldev Yadav, father of the deceased, on phone call. As such, it is the case where the appellant had taken the deceased forcefully with him from the custody of her parents and within 24 hours, she was found dead, therefore, the appellant is required to exaplain in his statement recorded under Section 313 of the CrPC that as to how and under what circumstances his wife (deceased) died, which he failed to explain in his statement. Thus, the theory of last seen together has clealry been established on the basis of statements of PW-1, PW-2 & PW-3, however, non-examination of Harish and Charkai, who are said to have accompanied the appellant to the house of PW-2, could not make the case of the prosecution weak and, as such, the trial Court has rightly held that it is the appellant who caused the death of his wife Dineshwari Yadav as he failed to explain in his statement recorded under Section 313 of the CrPC as to how and under what circumstances his wife died and we hereby affirm the said finding of the trial Court.
17. However, in order to convict the appellant on the basis of last seen together, corroboration is required in view of the decision of the Supreme Court in the matter of Navaneethakrishnan v. State by Inspector of Police (2018) 16 SCC 161. In shape of corroboration, the trial Court has held that pursuant to memorandum statement of the appellant (Ex.P/5), blood stained weapon of offence i.e. axe and blood stained clothes of the appellant were seized vide Exs.P/6 & P/7. Moreover, in the query report (Ex.P/23) proved by Shailendra Kumar Bhoyar (PW-17), it has been opined that the injuries caused over the body of the deceased could be caused by the said seized axe. Even otherwise, in corroboration, the trial Court has found proved that in the chemical analysis of the seized articles [FSL report (Ex.P/21)] human blood was found on the axe as well as on the clothes of the appellant and deceased. As such, the seizure of the aforesaid incriminating articles pursuant to the memorandum statement of the appellant, on which human blood has been found in the FSL report (Ex.P/21), also connects the appellant with the commission of the crime and, therefore, the finding of the trial Court in this regard also a correct finding of fact based on evidence available on record and we hereby also affirm the said finding of the trial Court. However, the judgments cited on behalf of the appellant is clearly distinguishable to the facts of the present case.
Conclusion:-
18. In view of the aforesaid discussion and analysis, firstly the nature of death of deceased to be homicidal in nature has been duly found to be established from the evidence of Medical Officer, PW-16 Dr. Jyotirmay Prabhawali. The theory of last-seen together on the basis of the statements of PW-1 Lakhmi, mother of the deceased, PW-2 Baldev Yadav, father of the deceased, PW-3 Maheshwari Yadav, sister of the deceased, PW-6 Dinesh Kumar Yadav has also been found to be established beyond doubt as the appellant had taken the deceased with him on his motorcycle in their presence. Similarly, on the incriminating articles i.e. axe (weapon of offence) and on the clothes of the appellant, human blood was found in the FSL report (Ex. P/21) which also establishes the involvement of the appellant in the crime in question in shape of corroboration of the other incriminating circumstance which have been found proved and estalbshed. As such, in our considered opinion, the prosecution has discharged its primary burden of proving its case and also completed the chain of circumstances in light of decision of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra).
19. In that view of the matter, the trial Court is absolutely justified in convicting the appellant for offence under Section 302 of the IPC and we do not find any merit in the instant appeal and it deserves to be and is accordingly, dismissed.
20. The Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, informing the appellant that he is at liberty to assail the present judgment passed by this Court by preferring an appeal under Article 136 of the Constitution of India before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee.
