Jitendra Dhruv S/o Awadh Ram Dhruv Aged About 35 Years Gram Telinsatti, Police Station v. State Of Chhattisgarh Through Police Station Arjuni, District Dhamtari, Chhattisgarh
Case Details
1 2025:CGHC:40409-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 981 of 2023 Jitendra Dhruv S/o Awadh Ram Dhruv Aged About 35 Years Gram Telinsatti, Police Station Arjuni, Permanent Address Gram Palari, Police Station Gurur, District Balod, Chhattisgarh. --- Appellant(s) versus State Of Chhattisgarh Through Police Station Arjuni, District Dhamtari, Chhattisgarh. --- Respondent(s) For Appellant(s) : Mr. V.R.Tiwari, Senior Advocate assisted by Mr. Atul Kesharwani, Advocate. For Respondent(s) : Mr. Soumya Rai, Panel Lawyer Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 12/08/2025 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 24.02.2023 passed in Sessions Trial No. 30/2018 by the learned Additional Sessions Judge (FTC) District Dhamtari, by which the appellant has been convicted and sentenced as under: Conviction Under Sentence Fine Default Sentence Section Rigorous imprisonment Rigorous imprisonment 2 302 of the Indian Penal Life Rs. 2000/- 6 months Code (for short, the imprisonment IPC) (twice) 376 IPC 450 IPC 380 IPC 201 IPC Life Rs. 2000/- 6 months imprisonment 10 years 7 years 7 years Rs. 1000/- 3 months Rs. 500/- 3 months Rs. 500/- 3 months All the sentences have been directed to run concurrently. 2. The convict/appellant was charged for the offences under Sections 450, 302 (twice), 376, 380 and 201 of the IPC alleging that on 18.08.2016 at 23:00 hours, in village Khapri under Police Station Arjuni of District Dhamtari, with the intent to commit an offence punishable with life imprisonment or death penalty, he entered the house of the complainant Devanand (PW-3), which is used as human habitation, and committed house trespass and on the same date, time and place, killed Victim-1 and Victim-2 by inflicting fatal blows with an iron shovel, causing their death and on the same date, time and place, established physical relations with the deceased Victim-1 and from the house of the complainant Devanand, which is used as human habitation/custodianship of property, dishonestly stole the mangalsutra worn by the deceased Victim-2, a pair of silver anklets, mobile and bag kept in the room, without her consent and destroyed the evidence of the said offence. With the intention of destroying the evidence, the stolen property was destroyed by throwing the mobile phone on the road and selling one mangalsutra and a pair of silver anklets at Siddharth Jewellers, Dhamtari. 3. The important admitted facts in the case are that the convict/appellant used to live with his maternal uncle (Mama) and maternal aunt (Mami) in village Telinsatti and later he was living in a rented house of Lalit Kumar Sinha (PW-11) for one and half years. Lalit Sinha (PW-11) used to work as a 3 driver and supply material and on 04.02.2018 the convict/appellant sold an earring to Bhurchand (PW-12). 4. The prosecution case in brief is that on 19.08.2016, the complainant Devanand Bande (PW-3) lodged a report against an unknown person at Police Station Arjuni to the effect that he lived in village Dhokla, District Kanker and was a labourer and his father, mother Victim-2 and sister Victim-1 lived in village Khapri. On 15.08.2016, his father had gone to village Dhokla to do farming activities. On 18.08.2016, as it was Raksha Bandhan festival, he left village Dhokla at 5:30 p.m. and reached Dhamtari at 7:00 pm. From Dhamtari, he went to village Khapri on foot. When he reached home at 8:00 pm, the door of the house was locked from inside. When he knocked on the door and there was no response, he kept his bag at the door and came on the road and called his sister's mobile from his mobile. The phone was ringing but no one was receiving it. Even after calling 18-19 times, there was no response from the other side. At that time, he met Dron Kumar Sinha (PW-4) of the village with whom he went to the FCI Gdown while roaming around. Then after an hour, he called his sister. After coming back, he went near the house and called out for his mother and on not getting any response, he took the bag and went to his uncle's son Sandeep Bande's (PW-8) house and Sandeep Bande asked him why they were not opening the door and that they should check. On this, he went back to his house with Sandeep Bande (PW-8) and looked inside the house and saw his sister Victim-1 lying naked on the bed and the box was open on the floor and clothes were scattered. This made him suspicious and he called his uncle Pratap Singh (PW-6), Vishnu Meshram (PW-9), Suresh Meshram and Kotwar's father Ramdas and in front of them, he opened the door from and entered the room and saw that the clothes in the box were taken out and scattered. His sister Victim-2 was injured by hitting her with a 4 solid object on the left side of her head and his mother Victim-2 was injured by hitting her with a solid object on the right side of her head due to which both of them died. The body of his sister Victim-1 was found lying face down on the cot and the body of his mother Victim-2 was found face down under the cot and an iron rod was lying there with blood on it.
Facts
5. On the complainant (PW-3), FIR No. 207/2016 under Section 302 IPC (Ex. P/9) was registered in Arjuni Police Station and merg intimation (Ex. P/10 and P/11) were recorded. During the investigation, a spot map of the incident spot was prepared (Ex.P/12). Notice was given to the witnesses for the Panchnama of the bodies of deceased Victim-1 and Victim-2. Panchnama of the bodies was made in the presence of witnesses respectively and inquest (Exhibit P/17 and P/18) were prepared. The bodies were sent to the District Hospital, Dhamtari for postmortem and the postmortem report was obtained. During the investigation, blood-soaked soil, plain soil, broken glass, bangles, shovel, salwar suit, pyjama, bed and cot were seized from the crime scene in presence of witnesses. During the investigation, on 31.01.2018, appellant/convict Jitendra Dhruv told in his memorandum statement (Ex.P/1) that he was caught twice in Bhopal Habibganj in a theft case and after a dispute with his father, he came to village Telinsatti, District Dhamtari with his mother. In the year 2016, he used to go to village Khapri in Dujram Sinha's tractor to supply bricks, soil and sand, during which he used to joke with Victim-1 of village Khapri while going and coming, due to which he got acquainted with her. His maternal uncle's daughter is married in the same village, whose house was at a little distance from Victim-1’s house, where he used to visit frequently. Victim-1 was beautiful, so he was after her in the desire to have her. A day before Raksha Bandhan festival, on 17.08.2016, when he had gone to work in the morning, Victim-1 met him in front of her house and he asked her to come to 5 meet him at night, but she ignored him. That night, at around 10-11 pm, he reached Victim-1’s house on foot from the fields. The door was locked from inside and a space was left near the door to make a window and a sack curtain was put in it, which he removed and entered inside, as mother and daughter were sleeping in the same room, he though that if he forcibly had sex with Victim-1, her mother would woke up so he hit Victim-1's head and face with the sharp edge of the shovel lying in the veranda two-three times continuously. Victim-2 woke up and when she was coming to intervene, the appellant hit her head also with the shovel two-three times and she fell on the ground near the cot. He dumped Victim-2’s dead body under the cot and after removing victim-1’s clothes and covering her blood smeared face with a cloth, he raped her in a half-dead state and fulfilled his desire. He left the shovel there and after wiping the blood from his hand, he broke the tin box kept in the room and stole a pair of silver anklets kept in it. Then he looked at Victim-1 and her mother's bodies and found that her mother was wearing a gold mangalsutra, which he removed and kept. He also kept the mobile kept in the cot. He was looking at a bag kept in the room and at that time, he heard someone's footsteps and he kept the anklet and mangalsutra in the bag and went out of the window and was walking towards the road stealthily and threw it near a tree on the roadside thinking that he would be caught if he kept the mobile with him and taking the bag he went towards
Legal Reasoning
Bench of this Court in Kishan Kumar Sidar v. State of Chhattisgarh {Cr.A. No. 676/2018, decided on 01.07.2025}. 13. On the other hand, Mr. Hariom Rai, learned Panel Lawyer appearing for the State/respondent submits that the appellant has committed a heinous crime of rape against after severely injuring a girl who later died and also committed murder of the mother of the girl. After commission of rape and murder, the appellant also stole jewelleries from the house of the victims and he is a habitual offender and as such, the appellant deserves no leniency and the judgment passed by the learned trial Court is just and proper. The conviction and sentence of the appellant is based on cogent and sound reasons and the same does not warrant any interference and the appeal deserves to be dismissed. 14. We have heard learned counsel for the parties, considered their rival 9 submissions made herein-above and went through the records with utmost circumspection. 15. Case of the prosecution is not based on direct evidence, it is based on circumstantial evidence and as such, the prosecution was required to establish the five golden principles which constitute the panchsheel of a case as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra {(1984) 4 SCC 116}, in which it has been held in paragraph 153 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 10 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.” 16. There is no dispute that the death of Victim-1 and Victim-2 was homicidal in nature which is evident from Exhibit P/43 and P/44 which clearly states that the deceased/victims had received grievous injuries on various parts of body including the skull. Dr. Abha Hishikar (PW-22) in her deposition has also stated that the death was homicidal and caused by sharp and hard object. She had also given a query report that the injuries sustained by the victims could have been caused by the shovel seized by the police. However, the Doctor could not give any definite opinion with regard to commission of rape against Victim-1. 17. The shovel, which is the weapon of offence in the present case, was seized vide Exhibit P/23, but it has been seized from the place of incident and not at the instance of the appellant. Exhibit P/53 is the FSL report which is in respect of soil seized from the place of incident, shovel, Salwar Suit, bedding, wooden leg of the cot, Kurta, Bra, Blouse, Saree and Peticoat of the Victim-1 and Victim-2. As per the FSL report, in all these articles, human blood was found. However, there is no seizure of any clothes from the appellant containing blood stains etc. so as to firmly connect him with the commission of the offence. 18. The vaginal slides obtained from both the victims were also sent for FSL examination in which no human sperms were found as per report (Exhibit P/58). Even the Doctor who had conducted the postmortem, had found the hymen of the Victim-1 to be old torn and habitual of sexual intercourse and she could not give any definite opinion with respect to recent sexual intercourse. The nature of death being homicidal has not been disputed by the learned counsel for the appellant, however, it is the argument of the 11 learned counsel that there is nothing on record to connect the appellant with the commission of the said offence, except the memorandum statement recorded in another crime. 19. So far as the offences under Sections 302 (twice) and Section 376 IPC are concerned, the prosecution could not prove its case beyond reasonable doubt as neither there is any FSL report to connect the appellant with the commission of the crime of rape and murder nor is there any witness to the said effect, except the memorandum statement. Even the weapon of assault has been recovered from the place of incident and not at the instance of the appellant. As such, the benefit of doubt is required to be given to the appellant and the conviction and sentence awarded to the appellant/convict for the offences under Sections 302 (twice) and Section 376 IPC are set aside. 20. Admittedly, the FIR was registered on 19.08.2016 but the appellant was made accused in the case and arrested on 05.02.2018 on the basis of a memorandum recorded by the police with respect to other offence i.e. Crime No. 196/2017 which also related to the offences under Sections 450, 307, 302 and 380 of the IPC where he admitted of having committed murder and rape of a lady and murder of the said lady alongwith her family members. In the said memorandum, the appellant had disclosed that in the year 2016, he had committed the present offence and he some of the ornaments which he had stolen on that day, was lying in his Diwan inside a carry bag. On the basis of said disclosure, a canvas bag was seized from the house of the appellant on 04.02.2018 (Exhibit 2) which contained two nos. of passport photo, one of Victim-1 and another of Victim-2. Exhibit P/7 is also a seizure memo wherein one gold locket weight 3.47 grams, one Gehu Dana made of gold weight 1.18 grams, one pair of silver Payal, register of Siddharth Jewellers relating to purchase with respect to the year 2017-2018 and on 12 22.06.2017, it is written that the appellant had sold the above articles to Bhurchand Jain (PW-12). 21. The photograph seized from the house of the appellant was duly identified by the witnesses Drone Kumar (PW-4) and Jitendra Soni (PW-10) to be of the Victim-1 and Victim-2. The ornaments seized at the instance of the appellant has also been identified by Devanand Bande (PW-3) in presence of witnesses namely Mahendra and Bhojraj as also Govind Kumar Sinha, Nayab Tahsildar cum Executive Magistrate, Dhamtari. He is the son of the Victim-2 and brother of Victim-1. He has duly identified the ornaments to be belonging to the victims. The appellant has also not been able to give any explanation as to how the photographs of the victims were found in his house. 22. Tikendra Gajendra and Dhananjay Sinha (PW-1 and PW-2) are the witnesses of memorandum statement given by the appellant in Crime No. 196/2017. They have admitted that the appellant had given the memorandum statement and disclosed the fact with regard to commission of the offences, one committed in the year 2017 and and the earlier one in the year 2016 which is with respect to the present offence. The appellant had stated that he had sold some of the jewelleries in the market and some of them were lying with him which were later seized in presence of witnesses. 23. In the present case, the appellant had refused to undergo Polygraphy Test, BEOS test, and Narco Analysis Test. However, the Directorate of Forensic Science, Gandhinagar, had conducted a Psychology Assessment Test and given its report (Exhibit P/64). The appellant was medically examined by Dr. Rajesh Kumar Suryavanshi (PW-26) who has deposed that the smegma was found in the prepuce and cremasteric reflex was also present and as such, the appellant was fully capable of performing sexual intercourse. 13 However, there is nothing which may conclusively prove that Victim-1 was subjected to sexual assault by the appellant and even otherwise, the date of incident is said to be 18.08.2016 and he was arrested much later on 05.02.2018 by which time, the availability of any forensic evidence diminishes. 24. Another aspect of the matter is that the appellant has not been able to offer any explanation as to how the jewelleries which have been identified by PW- 3, came to be in his possession and the purchase register (Exhibit P/24C) has also been proved by Bhurchand (PW-12) owner of Siddharth Jewellers, Dhamtari. This witness has clearly deposed that he had purchased one gold locket, four Nos. of Gehu Dana, one pair of silver Payal from the appellant. The statement made by the appellant in his memorandum corroborates with the aforesaid circumstances and as such, it can safely be held that so far as the offence of house trespass, and commission of theft is concerned, the same is duly proved. The appellant after commission of theft, has tried to cause disappearance of the jewelleries by selling it in a shop. 25. Though while lodging the FIR with respect to commission of the murder of Victim-1 and Victim-2, the fact with regard to commission of theft could not have been mentioned as immediately after the commission of the offence, it is quite natural that the complainant could not have guessed as to what things went missing from his house. However, the disclosure, recovery, seizure and identification of the jewlleries clearly indicate that the said articles were stolen from the house of the victims by the appellant himself and as such, this Court is of the view that the conviction and sentence awarded to the appellant for the offences under Section 380 and 201 of the IPC by the learned trial Court is just and proper and warrants no interference. 14 26. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/ convict so far it relates to the offences under Sections 380 and 201 of the IPC are concerned. 27. So far as conviction of the appellant under Section 450 of the IPC is concerned, since the offence of murder or rape could not be proved by the prosecution, the case of the petitioner would fall under Section 457 of the IPC and not under Section 450 of the IPC. As such, this Court deems it appropriate to award sentence of rigorous imprisonment for 10 years with fine of Rs. 1000/-, and in default, to undergo rigorous imprisonment for three months, under Section 457 of the IPC, instead of Section 450 of the IPC. 28. As a result, this appeal stands partly allowed. 29. The appellant is stated to be in jail. He shall serve out the remaining part of the jail sentences for the offences under Sections 457, 380 and 201 of the IPC. 30. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentences 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 High Court Legal Services Committee or the Supreme Court Legal Services Committee. 31. Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.08.18 18:24:43 +0530
Arguments
Shrinath Cold Storage from the field side and hid the jewellery in the bag in the middle of the grass at the corner of the boundary wall and washed his blood stained hands and feet in the ravine water nearby and went to his house. After two days, he brought that hidden bag and hid it inside his Divan bed. The mangalsutra stolen from village Khapri contained a gold locket and four gold wheat grains and a pair of anklets was sold by him one and a half months ago to Siddharth Jewelers near Sihawa Chowk. 6. During investigation, as per memorandum, on the pointing out of the 6 accused, the bag stolen from the crime scene was seized from the rented house of the convict as per Ex. P/2 and the gold locket and anklet sold by the accused and the purchase-sale register of Siddharth Jewelers were seized in presence of witnesses as per Ex.P/7. During investigation, formation map Ex.P. 6 was prepared in respect of the demo given by appellant/convict and search panchnama (Ex.P/3) was prepared for the mobile thrown by the accused on 02.02.2018. The private parts of the appellant were examined and on finding sufÏcient evidence against the appellant, he was duly arrested and his family members were informed about it. The seized items in the case were sent to FSL Raipur through a letter from Superintendent of Police, Dhamtari and FSL test report (Ex.P/53 and P/58) respectively, were obtained and letter (Ex.P/61 and P/63) were sent to Director, Forensic Science, Gandhinagar (Gujarat) regarding conducting Narco test, Brain Mapping test and Polygraph test of the convict/appellant. 7. After recording the statements of the witnesses and conducting a thorough investigation, the accused was found to have committed the offences under Sections 450, 302 (twice), 376, 380 and 201 of the IPC and a charge-sheet was filed by the police in the court of Chief Judicial Magistrate, Dhamtari which was committed to the Court of Sessions for trial. 8. Charges were framed against the appellant / convict under Sections 450, 302 (twice), 376, 380 and 201 of the IPC. The appellant abjured the guilt and prayed for trial. 9. In order to bring home the offence, the prosecution examined as many as 27 witnesses namely Tikendra Kumar Gajendra (PW-01), Dhananjay Sinha (PW-02), Devanand Bande (PW-03), Dron Kumar Sinha (PW-04), Mansingh Bande (PW-05), Pratap Bande (PW-06), Chitrasen Sahu (PW- 7 07), Sandeep Kumar Bande (PW-08), Vishnukant (PW-09), Jitendra Soni (PW-10), Lalit Kumar Sinha (PW-11), Bhoorchand (PW-12), Patwari Santosh Kumar Shandilya (PW-13), Constable Bhupesh Kumar Sinha (PW- 14), Assistant Sub-Inspector (Asst.) Sub-Inspector Rajendra Sori (PW-15), Head Constable Uttam Nishad (PW-16), Bhagesh Baid (PW-17), Constable Kamlesh Sahu (PW-18), Constable Mohit Kumar Chaturvedi (PW-19), Constable Phanesh Sahu (PW-20), Head Constable Virendra Bais (PW- 21), Dr. Abha Hishikar (PW-22), Constable Girish Sahu (PW-23), Inspector C. Tirkey (PW-24), Inspector Umesh Kumar Tandon (PW-25), Dr. Rajesh Kumar Suryavanshi (PW-26) and CSP Udayan Behar (PW-27)were examined exhibited as many as 73 Exhibits. 10. The statement of the appellant was also recorded under Section 313 Cr.P.C. in which the appellant expressed his ignorance to most of the questions and some of them were denied as well. He stated that he did nothing. 11. The learned trial Judge, after considering the evidence on record, convicted the appellant/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict. 12. Mr. V.R.Tiwari, learned Senior Advocate appearing for the appellant/convict submits that the case is based on circumstantial evidence. There is no eye witness to the incident. The appellant was arrested almost after two years of the incident and the offence with respect to the present case was disclosed when he was arrested and interrogated by the police in another case being Crime No. 196/2017 of Police Station Arjuni, District Dhamtari, where his memorandum statement was recorded on 31.01.2018 whereas the offence in the present case had occurred on 18.08.2016. No separate memorandum was recorded with respect to the present case and as such, reliance placed by the prosecution on memorandum statement of another case is 8 misplaced. Admittedly, the death of the victims was homicidal in nature as is evident from the postmortem report, however, there is nothing to connect the murder of the victims with the appellant. The learned trial Court has failed to consider that there is hardly any reliable evidence to warrant the conviction of the appellant beyond all reasonable doubts. It is further submitted that when the offence in question occurred, at that time, report was lodged only with respect to murder of the victims and not with regard to any theft and for more than 1 ½ years, there was no mention of the theft of ornaments committed in their house. The circumstances from which the conclusion of the guilt is drawn is not cogently and firmly established and conclusive. Further, the chain of evidence was not complete so as to reasonably conclude that the appellant was guilty of the offences in question. There are omissions and contradictions in the statement of the prosecution witness and as such, the appellant deserves to be acquitted. In support of his contentions, he places reliance on a decision of a Division