Tulsi Kashyap vs State Of Chhattisgarh

Sanjay K. Agrawal, J

By the impugned judgment, the appellant herein has been convicted under Sections 302 & 201 of the IPC and sentenced to undergo imprisonment for life & pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for three months and rigorous imprisonment for two years & pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for one month, respectively, which has been called in question in this appeal under Section 374(2) of the CrPC.

Case of the prosecution, in brief, is that on 21-5-2012, the appellant herein namely, Tulsi Kashyap (A-1) and other co-accused Heeramani (A-4) caused murder of Pilibai with the help of Mohan (A-2) & Heeralal (A-3) [all three co-accused – Mohan Kashyap (A-2), Heeralal Kashyap (A-3) & Heeramani Kashyap (A-4) acquitted] and in order to screen themselves from the offence, burnt the dead body by pouring kerosene oil and setting the dead body ablaze. Deceased Pilibai was wife of Purushottam, who is younger brother of the appellant herein – Tulsi Kashyap and on the fateful day, some ceremony of the appellant’s sister on her conceiving pregnancy was held, but the appellant went to Janjgir along with his friend Heeralal in the morning itself and came back in the evening and asked for food and other food articles to enjoy with his friend Heeralal which the deceased declined that she will not cook food for his friends, then dispute erupted between the appellant and the deceased and thereafter, the deceased went out of the house to answer the call of nature whereupon the appellant herein followed her and further followed by the dispute as the appellant wanted her to come back to the house, then the appellant and co-accused Heeramani caught hold of her and the appellant strangulated her and thereafter, both of them came back to the house and took two other co-accused Mohan & Heeralal and burnt the dead body of deceased Pilibai. When deceased Pilibai went missing, the matter was reported to the police and thereafter, on the information received, morgue was registered vide Ex.P-15 and inquest was conducted vide Ex.P-2. Thereafter, on the recommendation of panchas, dead body of the deceased was subjected to postmortem which was conducted by Dr. M.L. Sahu (PW-6) vide his report Ex.P-12 in which cause of death was stated to be asphyxia and death was homicidal in nature. Pursuant to the memorandum statement of the appellant vide Ex.P-3, one old plastic jerrycan, full pant and shirt were seized vide Ex.P-4. Seized articles were sent for chemical analysis to the Forensic Science Laboratory, but no FSL report was brought on record.

Statements of the witnesses were recorded under Section 161 of the CrPC.. After completion of investigation, charge-sheet was filed against the appellant and other co-accused persons before the jurisdictional criminal court and the case was committed to the Court of Sessions for trial for hearing and disposal in accordance with law.

The trial Court has framed charges against the appellant and other co-accused for offences punishable under Sections 302 & 201 read with Section 34 of the IPC and proceeded on trial. The appellant and other co-accused abjured guilt and entered into defence stating that they have not committed the offence and they have been falsely implicated.

The prosecution in order to bring home the offence examined as many as 16 witnesses and exhibited 43 documents Exhibits P-1 to P-43. No witness has been examined on behalf of the defence and no document has been exhibited. Statements of the appellant and other co-accused persons were recorded under Section 313 of the CrPC in which they abjured the guilt and pleaded innocence.

The trial Court after completion of trial and after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant herein in the manner mentioned in the opening paragraph of this judgment against which this appeal under Section 374(2) of the CrPC has been preferred by him calling in question the impugned judgment. However, the trial Court has acquitted co-accused persons Mohan Kashyap (A-2), Heeralal Kashyap (A-3) & Heeramani Kashyap (A-4).

Mrs. Seema Singh, learned counsel appearing for the appellant, would submit that the appellant has been convicted solely on the basis of his conduct where it is alleged that when the deceased was missing, the appellant was sleeping in his house. She would further submit that there is no other legally admissible evidence against the appellant and almost on the basis of same set of evidence, the other co-accused persons have been acquitted. As such, the impugned judgment deserves to be set aside and the appeal deserves to be allowed by acquitting the appellant of the charges levelled against them.

Mr. Arjit Tiwari, learned State counsel, would support the impugned judgment and would submit that conviction of the appellant is well founded and well supported leading to inference that the appellant has committed the aforesaid offences, as such, the trial Court has rightly convicted the appellant and therefore conviction cannot be competently questioned by the appellant herein and the appeal deserves to be dismissed.

We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

The first question is, whether the death of the deceased was homicidal in nature, which the trial Court has recorded in affirmative relying upon the statement of Dr. M.L. Sahu (PW-6) proved by his postmortem report Ex.P-12 holding the death of the deceased to be homicidal in nature, which is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the question is, whether the appellant is the author of the crime?

The trial Court has not accepted the version of Ramlakhan Kashyap (PW-12) & Durgesh Prasad Kashyap (PW-14) as they have not seen appellant Tulsi Kashyap & co-accused Heeramani (A-4) returning home and going back to the spot along with other co-accused persons. Memorandum statement Ex.P-3 has also not been accepted by the trial Court and even the statement of Purushottam – husband of the deceased, has also not been accepted. Only the trial Court has found proved that on the fateful day, quarrel took place between the appellant and the deceased on account of serving food and further, when the dead body of the deceased was found in decomposed condition, the appellant was sleeping and he has not cooperated in the investigation. The trial Court has recorded following finding in paragraph 27 of the impugned judgment: -

The trial Court has only convicted the appellant on the ground that on the fateful day, quarrel has taken place between the appellant and the deceased and subsequent conduct of the appellant in sleeping at home after the incident is relevant under Section 9 of the Evidence Act.

The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 has laid down five principles for proving a case based on circumstantial evidence in paragraph 153 of its report 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.”

Reverting to the facts of the present case in light of the aforesaid decision, it is quite vivid that on the fateful day, since quarrel has taken place between the appellant and the deceased, it may be one of the relevant circumstances, but it would not complete the chain of circumstances as held in Sharad Birdhichand Sarda (supra). Further, subsequent conduct of the appellant though may be relevant under Section 9 of the Evidence Act, but only on that basis, the appellant cannot be convicted under Sections 302 & 201 of the IPC. No other circumstance has been pointed out by the trial Court to convict the appellant under the aforesaid offences.

Accordingly, we set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 22-5-2013. The appellant is acquitted of the charges under Sections 302 & 201 of the IPC. He is on bail.

He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.

The appeal stands allowed.