1 / 11 2025:CGHC:18998-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 526 of 2021 Daya Shankar Rajpoot S/o Moong Ram Rajpoot, Aged About 46 Years R/o Village Kanharpur, P.S. Pathariya, District Mungeli Chhattisgarh. ... Appellant(s) versus State of Chhattisgarh Through P.S. Pathariya, District Mungeli Chhattisgarh. ---- Respondent For Appellant : Mr. Ravindra Sharma, Advocate (Amicus Curiae). For State : Mr. Shakib Ahmad, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Arvind Kumar Verma, Judge Per Ramesh Sinha, CJ 28/04/2025 1. Challenge in this criminal appeal is to impugned judgment of conviction and order of sentence dated 08.03.2021 (Annexure A- 1) passed by learned Session Judge, Mungeli, (C.G.), in ST No.13/2019, whereby the appellant stands convicted and sentence as under: 2 / 11 Conviction Sentence Under Section 302 of the IPC. Rigorous Imprisonment for life with fine of Rs.2,000/-, in default of payment of fine, 01 month additional RI. Under Section 201 of the IPC. Rigorous imprisonment for 03 years & fine of Rs.500/-, in default of payment of fine, 06 months additional RI. 2. Case of the prosecution, in brief, are that a missing report was lodged before the concerned Police Station. On the basis of suspicion, present appellant was taken into custody and during investigation he disclosed in his memorandum statement that he committed murder of his mother Jagbai (deceased) and, thereafter, dig her dead body in kitchen garden (badi) of his house. On the instance of present appellant/accused, the pointed place was excavated and dead body of deceased was taken out from the pit and same was identified by the daughters of deceased. Statements of witnesses were recorded, whereby it came to the light that the deceased was suspected to be a Tonahi and, therefore, the present appellant alongwith his wife (Chameli Bai) have committed the murder of the deceased. Thus, the appellant and his wife (Chameli Bai) have been arrested for the offence under Sections 302/34 & 34 of IPC. 3. On completion of investigation, challan/charge-sheet was filed against the appellant and his wife under Sections 302/34, 201 of IPC and Sections 4 & 5 of of the Chhattisgarh Tonahi Pratrana 3 / 11 Niwaran Adhiniuam 2005 and based upon which, trial Court framed the charges against them. 4. Prosecution in order to prove its case examined total 18 witnesses. Statement of appellant (accused) was also recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. However, no evidence was adduced by him in his defence. 5. After hearing learned counsel for the parties and appreciating the evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described in Para-1 of this judgment. Hence this appeal. 6. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the evidence available on record, the prosecution has failed to prove their case beyond the reasonable doubt. The material/evidence against the appellant and his wife (Chemali Devi) are identical, but trial Court found the present appellant only guilty and at the same time acquitted the Chameli Devi (wife) from the charges. Case of the prosecution is solely based on the circumstantial evidence, in which, motive plays an important role. As per prosecution case, the motive behind the alleged offence/crime is that on the suspicion of Tonahi, the deceased was stated to be murdered by the accused, 4 / 11 but the trial Court has acquitted the appellant/accused from the charge of Sections 4 & 5 of Chhattisgarh Tonahi Pratrana Niwaran Adhiniuam 2005, hence, when foundation of the case is lacking, the entire edifice raised by the prosecution crumbles to the ground. Learned Counsel further submits that from the evidence of PW-2/Rani Bai (daughter of deceased) it has come that the deceased had gone to house of PW-2 to attend the post death ritual of mother-in-law of PW-2 from where she turned back to his house, but none of the villagers/witnesses had seen the deceased in the village or in the house of the appellant, thus, there is no martial/evidence on record to establish the fact of last seen theory. Even the neighbour Vijay Ram, who was examined before the trial Court as P.W-3 had not stated that he had seen the deceased in the house of the appellant. Witnesses of memorandum and recoveries P.W.7/Mani Ram & P.W-8/Jaklu Ram have not supported the prosecution case. Further, the place where the dead body of deceased was buried is an open place and it is accessible to all. There person have also resided in the house where the dead body of deceased was recovered. As such, the appeal deserve to be allowed and the impugned judgment deserve to be set aside. 7. On the other hand, learned counsel for the State supporting the impugned judgment would submit that based on material/evidence available on record, trial Court has rightly passed the impugned order/judgment and convicted the appellant for the aforementioned 5 / 11 offence/crime. Hence, present appeal being sans merits is liable to be dismissed. 8. Heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 9. In case at hand, there is no direct eye-witness of commission of murder of the deceased and conviction of appellant rests mainly on circumstantial evidence i.e. recovery of dead body of deceased at the instance of the accused/appellant from kitchen garden (badi) of his house where she was buried. 10. It is well settled law that in a case of circumstantial evidence, the Court is required to be more cautious while analyzing the evidence available before it. Whenever any case is decided only on the basis of circumstantial evidence, following conditions are required to be fulfilled :- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (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 6 / 11 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." 11. In case at hand, the deceased was the mother of accused/appellant. 12. Perusal of the record would show that Dr. S.N. Gole (PW-18), who conducted postmortem examination on the body of deceased, has stated in his evidence that on 12.1.2019 he conducted autopsy on the dead body of deceased brought by police. It was a putrefied body of 65 years old woman and tied with yellow colour rope. He has not given definite opinion regarding cause of death of deceased because the body was in highly decomposed condition but opined that there was evidence of fracture of hyoid bone and injury on head. He has further opined that death of deceased occurred within one month from the postmortem examination. Postmortem report is Ex.P-38. This medical evidence remain unchallenged and there is nothing on record to look the aforesaid evidence with any suspicion and it establishes the fact that ante mortem injuries were noticed on the body of deceased. 13. From the records it can be seen that police registered FIR on 10.1.2019 based on missing complaint lodged by complainant Rajkumar Lodhi (PW-4). During course of investigation, police interrogated the appellant and he disclosed in presence of witnesses that he had strangulated the deceased to death by suspecting her to have practiced witchcraft and buried her body in 7 / 11 his kitchen garden. He has further stated that he would lead the police party so that they may recover the dead body which was hidden by him in his house. Memorandum statement of accused/appellant is Ex.P-12 dated 10.1.2019. Thereafter, the accused took the police to his house, he had shown the place where the dead body of deceased was buried and thereafter in presence of the Tahsildar-cum-Executive Magistrate (PW-13) and other witnesses, the dead body was exhumed from the place pointed by the accused/ appellant in his house. 14. Subhash Kumar Shukla (PW-13), Naib Tahsildar-cum-Executive Magistrate, Udaipur, District Surguja, has conducted the exhumation proceeding. He has stated that on being directed by the Sub-Divisional Officer, Pathariya, he had conducted exhumation proceeding in the house of accused/appellant situated in village Kanharpur. Upon exhumation of dead body, it was identified to be body of Jagbai by the witnesses present there. Witnesses have identified the dead body on the basis of her face and clothing. These witnesses were cross-examined at length by the defence and nothing could be elicited from them which could be regarded to consider that their statements about exhumation and identification of the deceased can be doubted in any manner. 15. The witnesses of memorandum statement of accused/appellant and exhumation procedure have fully supported this investigation procedure. PW-7 Maniram, who is an independent witness of memorandum and exhumation proceeding, has stated that in his 8 / 11 presence, accused made disclosure that he had committed murder of deceased by pressing her neck. This witness admitted his signature on memorandum Ex.P-12. Similarly, Jakluram (PW-8) has stated about committing murder of deceased Jagbai and the place where he had buried her body. This witness has also admitted his signature on memorandum statement Ex.P-12 and dead body recovery memo Ex.P-18. Mansingh (PW-10) has stated that accused/appellant dug under bamboo tree in his kitchen garden and took out the body of old lady. There is nothing in the cross examination of these witnesses to doubt their veracity regarding memorandum statement of accused/appellant before the police and exhumation procedure. 16. Dead body, which was eventually recovered at the instance of accused/appellant and on his pointing out, was placed, before recovery, in such a way that it could not have been visible to anyone else unless pointed out and produced by accused/appellant. The onus to explain as to how dead body of Jagbai came to be buried in kitchen garden of his house and how he got the body recovered from the house which was in his possession. Appellant has not discharged this onus. When the case rests on circumstantial evidence, the failure of accused to offer any satisfactory explanation as to how dead body came in kitchen garden of his house enables a presumption as to commission of offence against accused because the fact being in the exclusive knowledge of the accused it was for him to have 9 / 11 offered an explanation which present appellant failed to do. In the absence of any explanation from the side of the accused/appellant about presence of body in his kitchen garden, there was every justification for drawing an inference that he has murdered the deceased and thereafter buried her dead body in his kitchen garden in order to screen himself from the legal punishment. 17. In case of Anuj Kumar Gupta v State of Bihar reported in (2013) 12 SCC 383, the Hon’ble Supreme Court has observed thus:- "18. In such circumstances, in the absence of any convincing explanation offered on behalf of the appellant-accused as to under what circumstances he was able to lead the police party to the place where the dead body of the deceased was found, it will have to be held that such recovery of the dead body, which is a very clinching circumstance in a case of this nature, would act deadly against the appellant considered along with rest of the circumstances demonstrated by the prosecution to rope in the appellant in the alleged crime of the killing of the deceased. Therefore, once we find that there was definite admission on behalf of the appellant by which the prosecuting agency was able to recover the body of the deceased from a place, which was within the special knowledge of the appellant, the only other aspect to be examined is whether the appellant came forward with any convincing explanation to get over the said admission. Unfortunately though the above incriminating circumstance was put to the appellant in the Section 313 CrPC questioning where he had an opportunity to explain, except a mere denial there was no other convincing explanation offered by him. 10 / 11 19. Thus, we reach a conclusion that the said circumstance of recovery of the body of the deceased from the place called Maldiha Dhar (a river stream) at the instance of the appellant as spoken to by PW 9, is supported by the evidence of PW 4; we have to only see whether rest of the circumstances considered by the trial court, as well as the High Court, were sufficient to confirm the ultimate conviction of the appellant and the sentence imposed on him. On this aspect when we perused the judgment of the trial court, as well as the High Court, the following circumstances have been found to be established:" 18. In case at hand also, the incriminating circumstances were explained to the appellant in terms of Section 313 CrPC and was given an opportunity to respond, but except for denial and false implication, there was no other convincing explanation given by him. 19. Another important circumstance appearing from the material available in record is the conduct of appellant-accused. Deceased went missing 10-15 days prior to the discovery of her dead body on 10.1.2019. Accused/appellant, son of the deceased, did not take any prompt steps either to trace her or to report the matter to the police. Further, on being inquired by PW-1 Fulmani Bai and PW-2 Rani Bai, daughters of deceased, the accused/appellant told that the deceased had gone to village Bhanwarkachhar to the house of PW-2 Rani Bai, which was found to be false as Rani Bai (PW-2) denied coming of deceased to her house. There is no explanation by appellant-accused even in his statement recorded 11 / 11 under Section 313 CrPC for giving false information that deceased had gone to the house of Rani Bai (PW-2). The conduct of accused/appellant being unnatural rules out hypothesis of innocence rather it speaks volume with regard to his involvement in the crime. 20. Cumulatively effect of the above circumstances found proved against the appellant i.e. recovery of dead body at the instance of accused/appellant and complicit conduct, is that they form a complete chain which points unerringly that none other than accused-appellant himself has committed the crime in question. 21. For the foregoing discussion and reasons, we are in agreement with the conclusion arrived at by the trial Court. The impugned judgment of conviction and order of sentence passed by the trial court against the appellant does not require any interference. It is hereby affirmed. The appeal being meritless is liable to be and is hereby dismissed. 22. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. 23. The Court appreciate the valuable assistance rendered by Shri Ravindra Sharma, learned Amicus Curaie in the matter. Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice J/-