Pritinker Diwaker, J
1. As the above cases arise out of a common judgment dated 11 th February, 2009 passed by 4th Additional Sessions Judge (FTC), Raigarh in ST
No.84/2008, they are being disposed of by this common judgment. By the impugned judgment, the trial Judge has convicted accused Shivnandan and
Shanker Nagwanshi u/s 302/34 of IPC and sentenced them to life imprisonment & fine of Rs.1000/- with default stipulation whereas accused
Thakurram and Shaniram have been acquitted of the said charge.
Assailing their conviction, accused Shivnandan and Shanker have filed Cr.A.No.159/09 whereas against the acquittal of accused Thakurram and
Shaniram, the State has filed appeal i.e. Acquittal Appeal No.160/2010 and complainant has filed revision i.e. Cr.Rev.No.243/2009.
2. Brief facts of the case are that on the eve of Holi i.e. 22.3.2010, there was some quarrel between the accused persons and the complainant party
where accused Shivnandan and Thakurram seemed to have been beaten. It is said that in the night intervening 22/23rd March, 2008, accused
Shivnandan and Shankar gained entry in the house of deceased Panikram, took him outside his house, committed his murder by throttling and
thereafter took his body inside his house and in order to give it a colour of suicide, hanged the body with the wooden beam of the roof with the help of
dhoti. PW-9 Sonkunwar, wife of the deceased, a handicapped lady, saw the accused persons Shivnandan and Shankar taking the deceased outside the
house and then she slept and in the next morning she found dead body of her husband/deceased in hanging condition. PW-12 Usatram also saw the
accused Shivnandan and Shanker near the house of the deceased at the relevant point of time. After seeing the dead body of the deceased, PW-9
was crying aloud and upon coming to know about the incident, her son PW-1 Madan Rathiya rushed to the spot, saw dead body of his father and
lodged Dehati Merg on 23.3.2008 (Ex.P/1). Inquest (Ex.P/7) on the dead body was conducted on 23.3.2008 and thereafter the body was sent for
postmortem which was conducted on the same day by PW-4 Dr. A.S. Thakur vide Ex.P/13. The autopsy surgeon noticed that a dhoti without knot
was wrapped around the neck, saliva dribbled over right cheek upto abdomen, thigh and leg also; eyes were closed; finger nails had bluishness; tongue
bitten in between teeth; abrasion marks by nail over left side of chin, left collar bone and on the back in the center also; there was ligature mark over
half left side of neck appears to have been caused due to tying of dhoti, it was not deep and was not the mark developed due to suicide. There was no
such pressure on the windpipe as is found in the cases of suicide by hanging. There was fracture on right side of neck. In his opinion, the cause of
death was asphyxia due to strangulation and the death was homicidal in nature.
Regular merg (Ex.P/19) was recorded on 23.3.2008 at 4.10 pm and Dehati Nalishi (Ex.P/16) was recorded on 27.3.2008 at the instance of Madan
Rathiya (PW-1). FIR (Ex.P/18) was registered on 27.3.2008 under Section 302 of IPC against unknown person. After investigation charge sheet was
filed against the accused persons under Section 302/34 of IPC followed by framing of charge accordingly by the trial Judge.
3. In order to prove the complicity of the accused persons in the crime in question, the prosecution has examined 17 witnesses. Statements of the
accused under Section 313 Cr.P.C. were also recorded in which they denied their guilt and pleaded innocence and false implication in the case. In
their defence, they examined three witnesses.
4. After hearing the parties and appreciation of the material available on record, the Court below by the impugned judgment while acquitting accused
Thakur Ram and Shaniram of the charge, has convicted and sentenced the accused/appellants Shivnandan Rathiya and Shanker Nagwanshi as
mentioned above in paragraph No.1 of this judgment.
5. Smt. Laxmin Tondey, learned counsel appearing for the accused persons submits as under:
(i) that so-called eyewitnesses to the incident PW-9 Sonkunwar has exaggerated her version while deposing in the Court. In her statement u/s 161 of
CrPC she has nowhere stated that she saw the accused persons committing murder of her husband but in the Court she claims herself to be an
eyewitness.
(ii) that PW-12 Usatram is also not a reliable witness.
(iii) that most of the witnesses examined by the prosecution are interested witnesses and they have falsely implicated the accused persons on account
of village politics.
(iv) that the witnesses wanted to remove accused Shivnandan Rathiya from the post of Secretary of Gram Panchayat and that is why the entire
exercise was done.
(v) that accused Thakur Ram and Shaniram have rightly been acquitted of the charge and thus, the trial Court ought to have acquitted appellants
Shivnandan and Shanker Nagwanshi also on the basis of same set of evidence.
6. On the other hand, State counsel while supporting the judgment impugned insofar as it relates to conviction of appellants Shivnandan Rathiya and
Shanker Nagwanshi, submits that even if there is some improvement by PW-9 Sonkunwar in the Court, considering her overall statement which finds
due support from the evidence of PW-12 Usatram and the medical evidence, the trial Court was justified in convicting appellants Shivnandan and
Shanker. He submits that considering the statements of these two witnesses, the Court below ought to have also held accused Thakur Ram and
Shaniram guilty of the offence.
7. Heard the counsel for the parties and perused the material available on record.
8. PW-9 Sonkunwar, wife of the deceased, has stated that she is suffering from rheumatism, she is unable to walk and was living in the village along
with her husband deceased Panikram. On the eve of Holi, she was in her house along with the deceased; her grand-son and grand-daughter-in-law
provided meals to her and her husband and thereafter, both of them slept in the cot. At night Shanker and Shivnandan (convicted accused) came to
her house, called out her husband Panikram, asked Panikram to accompany them to their house and then Panikram went with them. At that time she
also saw other acquitted accused Thakur Ram and Shaniram standing outside near the boring. She states that accused Thakur Ram pressed neck of
her husband, Shaniram pressed his testicles and then all the four accused persons brought the deceased to her house, made him sit on the cot naked,
tied his dhoti around his neck and one end of the dhoti was tied with the roof beam. She states that when the accused persons brought her husband to
her house, by that time he had died.
In cross-examination she has stated that she did inform the police of seeing acquitted accused standing near boring at the relevant time and likewise
also informed the police of seeing accused persons killing the deceased and if the same is not recorded in her diary statement she cannot tell the
reason. It is relevant to note here that in her statement u/s 161 of CrPC (Ex.D/4) she merely states that the accused persons Shivnandan and Shanker
called out her husband, took him with them and thereafter she slept and in the next morning she saw dead body of her husband. This witness was
cross-examined at length but her statement insofar as it makes allegations against convicted accused Shivnandan and Shanker remains intact and
nothing could be elicited from her by the defence to its advantage in respect of these convicted accused.
9. PW-12 Usatram, neighbour of the deceased, states that on the eve of Holi, at about 12.30 in the night he woke up to ease himself and while doing
so, he saw convicted accused Shivnandan and Shanker calling out deceased, and when the deceased came out, he (this witness) went inside the house
and slept. In the next morning while he was brushing his teeth, he heard cries of PW-9 and then he came to know that the deceased had been killed.
When he along with other villagers went to the house of the deceased, he saw that the deceased was naked and in sitting condition on the cot, one end
of his dhoti was tied around his neck and the other end was tied with the roof beam. He states that on being asked PW-9 informed that in the night
accused Shivnandan and Shanker had taken the deceased with them and then brought him back, made him sit on the cot and tied dhoti around his neck
in this manner. He further clarifies that PW-9 did not disclose the name of any other persons except Shivnandan and Shanker. In cross- examination
this witness remained firm and reiterated that he saw accused Shivnandan and Shanker calling out the deceased.
10. PW-13 Shamsuddin Khan, investigating officer, has duly supported the prosecution case. PW-4 Dr. AS Thakur conducted postmortem on the
body of the deceased on 23.3.2008 vide Ex.P/13 and noticed that a dhoti without knot was wrapped around the neck, saliva dribbled over right cheek
upto abdomen, thigh and leg also; eyes were closed; finger nails had bluishness; tongue bitten in between teeth; abrasion marks by nail over left side of
chin, left collar bone and on the back in the center also; there was ligature mark over half left side of neck appears to have been caused due to tying
of dhoti, it was not deep and was not the mark developed due to suicide. There was no such pressure on the windpipe as is found in the cases of
suicide by hanging. There was fracture on right side of neck. In his opinion, the cause of death was asphyxia due to strangulation and the death was
homicidal in nature.
11. PW-1 Madan Rathiya, son of the deceased, is the informant. He states that as soon as he came to know about death of his father Panikram he
rushed to the spot and saw dead body of the deceased. He states that his mother (PW-9) was sitting there crying and she informed him that his father
was taken out by convicted accused Shivnandan and Shanker in the night and after some time the accused persons brought him back dead. Almost
similar statements have been made by PW-3 Raviprasad, PW-8 Teejram and PW-11 Chaitram Rathiya. Though, legally speaking, these witnesses can
be termed as hearsay witnesses but the fact remains that as soon as they entered the house of the deceased, they were informed about the incident by
PW-9 Sonkunwar.
12. DW-1 Rajkumari, wife of accused Thakur Ram, states that on the date of incident Amrit Tirki, Kanhai, Anand, Usat, Bhogram, Shodhan, Bodhan,
Upas, Ravi and Chaitram committed marpeet with Shivnandan accusing him of not distributing Ration Card and they also threatened him of removing
from the post of Secretary and when she intervened in the matter, she too suffered injury. She further states that these persons were also searching
for accused Thakur Ram and Shaniram for beating and after some time entered their house and beat them also. Similar is the statement of DW-2
Ramnath.
DW-3 Matwar Singh, Police Constable, produced copy of Rojnamchasanha (Ex.D/8) and stated that on 23.3.2008 accused Thakur Ram lodged a
report that accused Shivnandan, Shriramnath, Rajkumari Mohanmati were beaten by Kanhai Chandra, Usatram, Mohan, Chaitram, Bhogram and
Upasram as a result of which they suffered injuries.
13. Admittedly, there is no direct evidence against the accused persons to prove their complicity in the crime in question and the entire case rests upon
circumstantial evidence. In the matter of Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 21 0the Supreme Court while
dealing with circumstantial evidence observed as under:
11. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343,] which is one of the earliest decisions on the subject, this court observed
as under:
10. ...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is
to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt
of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but
the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done
by the accused.
12. In Padala Veera Reddy v. State of A.P. [(1989) Supp (2) SCC 706], this court held that when a case rests upon circumstantial evidence, the
following tests must be satisfied:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should
be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete
that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the
circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of
the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.ﾵ
13. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held that the onus was on the prosecution to prove that the chain
is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the
prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on
circumstantial evidence. These are: (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 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.
14. In the present case, close scrutiny of the evidence makes it clear that though PW-9, who claims herself to be an eyewitness to the incident in the
Court, had not seen the actual occurrence of killing of the deceased and her court evidence is at variance with her diary statement (Ex.D/4) on this
point, however, she has been consistent enough in stating that in the fateful night it is convicted accused Shivnandan and Shanker who having called
out her husband/deceased, had taken him out with them and after some time brought him back dead. Her version also finds due corroboration from the
evidence of PW-12 Usatram who states that in the night when he woke up to ease himself he saw convicted accused Shivnandan and Shanker calling
out deceased and when the deceased came out, he (this witness) went inside the house and slept, and that in the next morning he came to know about
killing of deceased. He further states that on being asked PW-9 informed that in the night accused Shivnandan and Shanker had taken the deceased
with them and then brought him back, made him sit on the cot and tied one end of dhoti around his neck and the other with the roof beam. These
convicted accused/appellants have not offered any explanation on this point in their statements u/s 313 of CrPC as to where they had taken the
deceased, what transpired between them during this period or as to when they parted with the company of the deceased or who could have killed the
deceased. Having gone through the evidence of PW-9 & PW- 12, we do not find any reason to disbelieve the same. Medical evidence also supports
the prosecution case. According to the autopsy surgeon, the deceased had suffered number of abrasions, there was ligature mark over the neck which
appeared to have been caused due to tying of dhoti, and that the death was homicidal in nature.
15. Further, after coming to know about the incident when PW-1 Madan Rathiya, PW-3 Raviprasad, PW-8 Teejram and PW-11 Chaitram Rathiya
entered the house of the deceased, all of them were informed about the incident by PW-9 who specifically named convicted accused Shivnandan and
Shanker. Even if they are hearsay witnesses, their evidence insofar as it is consistent with the other legally admissible evidence can be taken into
consideration to draw inference of guilt of the accused persons or otherwise. This apart, evidence of the defence witnesses also goes to show that
prior to the present incident, there was fight between the accused party and the complainant party in which the accused persons were beaten and as
such, it serves as a strong motive for the accused persons to commit the offence. Thus, from the above circumstantial evidence, the prosecution has
successfully proved guilt of appellants Shivnandan Rathiya and Shanker Nagwanshi and as such, the trial Court was justified in convicting them under
Section 302/34 of IPC.
16. So far as acquittal appeal preferred by the State and revision preferred by the complainant are concerned, from perusal of the evidence on record,
we find no legally admissible evidence against acquitted accused Thakur Ram and Shaniram which could prove their involvement in the crime in
question beyond reasonable doubt. The evidence of PW-9 cannot be believed in respect of these accused firstly for the reason that she has not named
them in her diary statement, secondly her evidence does not find support from medical evidence as the autopsy surgeon did not notice testicles of the
deceased being crushed/broken whereas PW-9 has alleged that these accused persons had pressed the testicles of the deceased hard and thirdly,
PW-12 also does not support her version and categorically states that neither he had seen these persons at the relevant time nor PW-9 had disclosed
their names as the persons accompanying the convicted accused.
17. Thus, considering the overall evidence on record, the trial court came to the conclusion that the prosecution has failed to prove its case beyond
reasonable doubt against accused Thakur Ram and Shaniram and thus acquitted them of the charge u/s 302/34 of IPC by extending them benefit of
doubt. We find no illegality in the judgment impugned acquitting these accused. Even otherwise, there is a settled legal position that if on the basis of
record two conclusions can be arrived at, the one favouring the accused has to be preferred and scope of interference in appeal or revision against
acquittal is very limited and can only be made if finding recorded by the trial Court is highly perverse or arrived at by ignoring the relevant material and
considering the irrelevant ones. In the present case, no such circumstance is there warranting interference.
18. In the result, the appeal preferred against conviction of accused Shivnandan Rathiya & Shanker Nagwanshi and the appeal and revision filed
against acquittal of accused Thakur Ram & Shaniram being without any substance, are liable to be dismissed and are dismissed as such.
Accused/appellants Shivnandan Rathiya & Shanker Nagwanshi are reported to be on bail, therefore, their bail stands cancelled and they are directed
to be taken into custody forthwith to serve out the remaining part of their sentence.