S. Vishrampuri, District Kondagaon Chhattisgarh v. State of Chhattisgarh, Through Arakshi Center, Vishrampuri, District
Case Details
1 Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.01.03 18:16:29 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR CRA No. 588 of 2020 Judgment Reserved on : 04.11.2024 Judgment Delivered on : 03.01.2025 (Arising out of judgment of conviction and order of sentence dated 21.05.2020 passed by the learned Additional Sessions Judge, Kondagaon, District Kondagaon, in Session Case No.26/2018) Phoolchand Salaam, S/o Ramlal Salaam, aged about 38 years, R/o Village Kosmi, P. S. Vishrampuri, District Kondagaon Chhattisgarh ... Appellant versus State of Chhattisgarh, Through Arakshi Center, Vishrampuri, District Kondagaon Chhattisgarh ... Respondent For Appellant : Mr. Basant Dewangan, Advocate For Respondent/State : Mr. R.N. Pusty, Government Advocate Division Bench Hon'ble Smt. Justice Rajani Dubey Sanjay Kumar Jaiswal Hon'ble Shri Justice CAV Judgment 2 Sanjay Kumar Jaiswal, J. 1. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, the appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 21.05.2020 passed by the learned Additional Sessions Judge, Kondagaon, District Kondagaon (C.G.), in Session Case No.26/2018 by which the appellant has been convicted for offence as under:- Conviction Sentence & Fine U/s 302 of the IPC Life imprisonment and to pay fine (for deceased Bhupendra) ₹ of 5000/-; in default of payment of fine, additional rigorous imprisonment for 6 months U/s 302 of the IPC Life imprisonment and to pay fine (for deceased Bhunesh) ₹ of 5000/-; in default of payment of fine, additional rigorous imprisonment for 6 months 2. It is an undisputed fact that 12 year old deceased Bhupendra and 10 year old deceased Bhunesh are the sons of the appellant Phoolchand Salam. The mother of the
Legal Reasoning
deceased i.e. the appellant's wife is Smt. Santabai (PW-3). It is also an undisputed fact that the appellant lived with his family in a house in village Kosami and the blood-stained 3 bodies of Bhupendra and Bhunesh were found in the same house. 3. The prosecution case in brief is that on the intervening night of 18-19/01/2018 at about 07-08 pm, when the appellant and his family had dinner and went to sleep, there was a dispute between the appellant and his wife Smt. Santabai (PW-3) on the pretext of the appellant drinking alcohol, on which the appellant started murmuring, due to which Santabai, scared, went to call the Baiga of the village, when he did not come, she returned home, and the appellant ran to beat her, then she, scared, went to sleep at the house of her sister-in-law Smt. Pilabai Salam (PW-4) and sister-in-law Smt. Bisanbai Salam (PW-6) in the neighbourhood, from where, when she returned home in the morning, she saw that both her children were lying dead in a blood-soaked state on the bed and the appellant was not there, then she started crying and screaming. Hearing this, the people of the neighbourhood came. Smt. Santabai (PW-3) said that the appellant had killed her children. Then, on the information of Sarpanch Birsingh Markam (PW-2), the police registered a case, made a Panchnama and got the bodies examined. Thereafter, the spot map was prepared by the Patwari. Blood stained pillow, bedsheet, soil, blanket were seized from the spot. Statements of witnesses were recorded by the investigating 4 officer and memorandum (Exhibit P-11) was prepared after taking the statement of the appellant. On whose indication two axes used in the incident were seized vide Exhibit P-12. The seized axes and clothes were examined by a doctor. The doctor gave his opinion that the injuries found on the deceased could have been caused by the said axes. The seized items were sent for chemical examination and after completing the investigation, a charge sheet was filed. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses and exhibited 29 documents. Statement of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. However, in support of his case, no defence witness was examined by the Appellant nor any document was exhibited by him. 5. After hearing both the parties, the trial Court passed the impugned judgment of conviction and order of sentence. Hence this appeal. 6. Learned counsel for the appellant submitted that the relevant aspects pertaining to the crime in question were not properly investigated and even the relevant witnesses were not examined by the prosecution. There are no eye- 5 witnesses in this case. The burden of proof comes upon the prosecution to prove that the appellant had intention and knowledge to commit the offence. The Trial Court convicted the appellant only on the basis of circumstantial evidence. He further submitted that the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. In support of his argument, he relied the judgment in the matter of Anjan Kumar Sharma & Others Vs. State of Assam reported in (2017) 14 SCC 359 and submits that the Apex Court has specifically broached that "In a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction, in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at 6 the place of incident or before the commission of crime in the intervening period”. The Counsel lastly submits that the conviction of the appellant has been made mechanically which is not based on legal evidence. Therefore, the appeal may be allowed and the decision in question may be set aside and the appellant may be acquitted. 7. On the other hand, learned counsel for the State submitted that the conclusion given by the trial Court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed. In support of his argument, he relied the judgments in the matters of Ram Gopal Vs. State of Madhya Pradesh reported in (2023) 5 SCC 534, Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681 & State of Rajasthan Vs. Jaggu Ram reported in (2008) 12 SCC 51. 8. We have heard learned counsel appearing for the parties and perused the available record with utmost circumspection. 9. Mother of the deceased Smt. Santabai (PW-3), Smt. Pilabai Salam (PW-4) and Smt. Bisanbai Salam (PW-6), Raghuram 7 Salam (PW-8), Pyarelal (PW-1), Kotwar Jagdish Korram (PW-7) have clearly stated in their statements that when they reached the appellant's house, they saw that both the children were lying dead in a blood-soaked state in the bed. The main investigation proceedings in the case have been conducted by Inspector Naveen Borkar (PW-13). Doctor Anurag Bharti (PW-10) has stated that he has examined the dead body of deceased Bhupendra Salam and given a report Exhibit P-15 and examined the dead body of deceased Bhunesh Salam and given a report Exhibit P-16. According to which their death was due to shock caused by bleeding from the injuries, which was homicidal in nature. Thus, the trial Court has found on the basis of the said evidence that both the children were murdered. The above finding of the trial court is not perverse or contrary to the facts and evidence available on record. Thus, the fact of murder of both the children has been proved. 10. There is no direct evidence of the incident in this case. The prosecution case against the appellant is based on circumstantial evidence. The important circumstance is that the appellant's wife and mother of the deceased, Smt. Santabai (PW-3), on the night of the incident, due to the appellant's babbling and quarreling, went to the neighbourhood and slept at the house of her sister-in-law, 8 Smt. Pilabai Salam (PW-4) and sister-in-law, Smt. Bisanbai Salam (PW-6). When she returned to her house in the morning, she saw that the appellant husband was not at home and both her children were lying dead on the bed in a blood-soaked state. On hearing her cries and screams, the neighbours gathered. Thus, the case is primarily based on the last seen. The appellant husband was seen with the deceased children on the night of the incident and the circumstance that when he was last seen with the children in the house in the possession of the appellant and thereafter the children were found dead, the appellant, having personal knowledge of the matter under Section 106 of the Indian Evidence Act, did not give any explanation as to how the children died. Apart from this, other circumstantial evidence was found that human blood was found in the jacket of the appellant, for which also the appellant did not give any satisfactory explanation and on the basis of the said circumstantial evidence, he has been convicted. 11. The provisions of Section 101 and Section 106 of the Indian Evidence Act, 1872 are as follows:- 101. Burden of proof.-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the 9 existence of any fact, it is said that the burden of proof lies on that person. Illustrations (a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. (b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts. 106. Burden of proving fact especially within knowledge. - When any fact is especially within the knowledge of any person, burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. 12. In the matter of Ram Gopal s/o Mansharam Vs. State of Madhya Pradesh, (2023) 5 SCC 534 the Hon’ble Supreme Court regarding the burden of proof has expressed its views as follows:- “The burden to prove the guilt of the accused is always on the prosecution, however, in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. Section 106 is certainly not intended to relieve the prosecution of its duty to prove the guilt of the accused, nonetheless it is also equally settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, in view of Section 106 of the Evidence Act, such failure on the part of the accused may be used against the accused as it may provide an additional link in the chain of circumstances required to be proved against him. In the case based on circumstantial evidence, furnishing or non-furnishing of the explanation by the accused would be a very crucial fact, when the 10 theory of "last seen together" as propounded by the prosecution is proved against him.” 13. Considering the circumstantial evidence and the legal provisions in this regard, if we consider the evidence in this case, the main evidence in this matter is of the mother of the deceased and the wife of the appellant, Smt. Santabai (PW-3), who has stated in her Court statement that after having dinner at night, when she went to sleep in the room, she told the appellant that he always drinks alcohol and starts mumbling, then the appellant started mumbling, so she went to call the Baiga, when she returned from there, the appellant ran after her mumbling to beat her, due to which she went to the house of her sister-in-law, Smt. Pilabai Salam (PW-4) and sister-in-law, Smt. Bisanbai Salam (PW-6) and stayed there for the night. At that time, only the appellant was in her house with the children. When she came back to her house in the morning, the door was open, the appellant was not at home. Both the children were lying dead on the bed, then she started crying loudly, then the neighbours came, then she told them about the incident. 14. Thus, she has clearly stated that due to a dispute over the consumption of alcohol by the appellant, she had gone to sleep in a neighbour's house and at that time only her husband/appellant was at home with her children, i.e. she 11 had last seen the appellant husband with the children and when she returned home the next day morning, she found the children dead where the appellant was not there. Thus, when the appellant husband was last seen with the children in her house, then the responsibility lies on the appellant to explain how their children died when there was no one else in the house except him. The appellant had specific knowledge about this, hence under section 106 of the Indian Evidence Act, 1872, the burden of proof was on the appellant to give a satisfactory explanation as to how the children died. But in the statement given under section 313 of the Code of Criminal Procedure, the appellant has not given any satisfactory explanation in this regard. 15. According to the spot map of the incident, Exhibit P- 26 prepared by the investigating officer Naveen Borkar (PW- 13) and the map (Exhibit P-19) prepared by Patwari Sunil Kumar (PW-11), the neighbouring house adjacent to the house of the incident belongs to Smt. Bisanbai Salam (PW- 6). This witness has stated in her Court statement that her sister-in-law Smt. Santabai (PW-3) came to her house and slept there at night. In the morning she got up and was sitting in the pavilion outside the house. When asked, she told that she had come to her house and slept there. Then Smt. Santabai (PW-3) went to her house and started crying 12 and screaming. Then she and the people of the village went there where Santabai told that the appellant had killed both her sons. Thus, the statement of this neighbour sister- in-law, Smt. Bisanbai Salam (PW-6) corroborates the statement of Smt. Santabai (PW-3), mother of the deceased. 16. Smt. Pilabai Salam (PW-4) and her husband Raghuram Salam (PW-8) have also confirmed the statement of Smt. Santabai (PW-3) that at night Santabai came and told her that the appellant beats her and asked her to make him understand and then she slept at their house. When Santabai went back to her house in the morning, she saw that both her children were dead. On hearing her screams, they went to the spot and saw that the children were dead. These witnesses have confirmed the fact that Santabai had told them that the appellant had quarreled with her at night itself, due to which she came to their house and slept. Thus, Smt. Pilabai Salam (PW-4), who is the sister-in-law of Smt. Santabai (PW-3), and Raghuram Salam (PW-8), who is the husband of Smt. Pilabai Salam (PW-4), both of them have confirmed the statement of Smt. Santabai (PW-3). According to which, on the night of the incident, only the appellant was present with the children at the house of Smt. Santabai (PW-3) and in the morning the children were found dead while the appellant was not at home. 17. Pyarelal (PW-1), who is a neighbour, has also stated in 13 his Court statement that in the morning Smt. Santabai (PW-3) cried and screamed and said that the appellant had killed both her children by hitting them with an axe (Basula) and when he went to see, the blood-stained bodies of the children were on the bed. He himself has admitted in cross-examination on the suggestion given by the appellant's side that whenever there was a fight between the appellant Phoolchand Salam and his wife Smt. Santabai (PW-3), the wife Smt. Santabai (PW-3) used to sleep at her sister-in-law's house. In this way, the statement of neighbour Pyarelal also supports the statement of Smt. Santabai (PW-3). 18. Kotwar Jagdish Korram (PW-7) has also stated in Court statement that Sarpanch Birsingh Markam (PW-2) had come and told him that the appellant had killed both his children by hitting them with an axe, then he also went to the spot where both the children of the appellant were dead. There the appellant's wife Smt. Santabai (PW-3) had told that the appellant had quarreled with her and chased her at night, so she went to another house and slept at night. In this way, this witness who is the Kotwar of the village has also confirmed the statement of Smt. Santabai (PW-3) that on the night of the incident, only the deceased 14 father was at home with the children, while the mother Smt. Santabai (PW-3) went to another house and slept. 19. Thus, the first and important circumstantial evidence, which is stated by Smt. Santabai (PW-3) that the appellant was last seen with the children in his own house, is also confirmed by the statements of other witnesses in the neighbourhood. He was not found at home in the morning either. In such a situation, under Section-106 of the Indian Evidence Act, 1872, it was the responsibility of the appellant to explain how his children died while residing in his house? He alone had the specific information about this, but the appellant has not given any explanation in this regard. 20. On the basis of the facts of the case and the evidence presented, the Trial Court asked the Appellant necessary questions under Section 313 of the Cr.P.C. but, the Appellant did not give any explanation, hence the Appellant will not get any benefit of the cited judgment referred on his behalf. Hence, the first and important circumstantial evidence is found to be proved. 21. The second important evidence is that the investigating officer, Inspector Naveen Borkar (PW-13), on the basis of memorandum of the statement of the appellant 15 (Exhibit P-11), has stated that he had seized two pieces of axe (Basula) from him and prepared Exhibit P-12. However, the witnesses of this memorandum statement and seizure, Birsingh Markam (PW-2) and Chamruram Vatti (PW-5), have not confirmed the above memorandum and seizure. Rather, Birsingh Markam (PW-2) and Jagdish Korram (PW- 7), who had reached the scene of crime in the morning, have stated that the blood-stained axes (Basula) were lying at the scene of crime. In such a situation, the fact that the axes were seized at the point of view of the appellant and in his sole possession becomes doubtful. 22. Doctor Anurag Bharti (PW-10) while examining the said axes and giving report Exhibit P-17 has stated that the injuries found on the deceased could have been caused by the said axes which could have also caused their death and as per the chemical test report of the State Forensic Science Laboratory (Exhibit P-29), human blood has been found in both the axes. Since, the fact of seizure of the axe from the sole possession of the appellant is doubtful. In such a situation, seizure of the said axes cannot become the basis for the conviction of the appellant. 23. Inspector Naveen Borkar (PW-13) has stated that he has prepared Exhibit P-8 and Exhibit P-10 which include 16 bedsheet, blanket, plain soil, blood stained soil etc. seized from the crime scene. Along with this, he has stated that he has seized the jacket worn by the appellant under Exhibit P-9. The seizure witnesses Birsingh Markam (PW-2) and Chamruram Vatti (PW-5) have not confirmed these seizures but have stated that they have signed the memorandum statement and seizure. No challenge has been raised in the cross-examination regarding the seizure of the jacket which Inspector Naveen Borkar (PW-13) has stated to have seized from the appellant. According to the chemical test report of the State Forensic Science Laboratory(Exhibit P-29), human blood has also been found in the soil, pillow, blanket, shirt, vest, T-shirt of the deceased recovered from the crime scene. Besides this, human blood has also been found in the jacket seized from the appellant. Only the human blood found in the shirt of deceased Bhupendra could be tested to be of "A" group. The blood group of others could not be tested to determine their blood type. The appellant could not give any explanation as to why and how human blood was found in his jacket. In such a situation, the presence of human blood in his jacket is also a circumstantial evidence which corroborates the statement of Smt. Santabai (PW-3) and supports the ‘last seen together’ theory. 24. On the basis of the above presented evidence, we find 17 that on the basis of circumstantial evidence, it has been proved that the appellant had killed both his children by causing fatal injuries to them on sensitive parts with an axe. In such a situation, the conviction of the appellant for offence under Section-302 Indian Penal Code (twice) is found to be appropriate in the context of the facts and evidence available on record. Thus, there is no error or illegality in the conclusion of the trial court, hence there is no need to interfere in it. 25. 26.
Decision
Hence, the appeal is dismissed. Let a certified copy of this judgment along with the original record be sent to the concerned Trial Court and concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Rajani Dubey) (Sanjay Kumar Jaiswal) Judge Judge Shubham