HIGH COURT OF CHHATTISGARH : BILASPUR-------------------------------------------------------------------------------------------------Division Bench : Hon'ble Shri Yatindra Singh, CJ &

Hon’ble Shri Prashant Kumar Mishra, J.-------------------------------------------------------------------------------------------------

Criminal Appeal No.1997 of 1998

APPELLANTS Sarveshwar Kumar Kaushik & Another

Versus

RESPONDENT The State of Madhya Pradesh (nowState of Chhattisgarh)

-------------------------------------------------------------------------------------------------Present :- Shri Manish Dutt, Sr. Advocate with Shri Vishnu Koshta,

Advocate for the appellants.

Shri Avinash K. Mishra, Panel Lawyer for the State.-------------------------------------------------------------------------------------------------

J U D G M E N T (Delivered on this 2nd day of April, 2014)

The judgment of the Court was delivered by

Prashant Kumar Mishra, J.---This appeal is directed against the

judgment of conviction and sentence dated 3-9-1998 passed by

the 3rd Additional Sessions Judge, Durg, in ST No.1/98, whereby

the learned 3rd Additional Sessions Judge has convicted &

sentenced the appellants in the following manner :

Conviction SentenceIn respect of appellant No.1 :

Section 376 of the IndianPenal Code (for short ‘theIPC’)

RI for 10 years and fine ofRs.5,000/-, in default ofpayment to further undergoRI for 1 year.

Section 302 of the IPC Imprisonment for life andfine of Rs.10,000/-, indefault of payment tofurther undergo RI for 2years.

Section 201 read with RI for 3 years and fine of

Section 34 of the IPC Rs.2,000/-, in default ofpayment to further undergoRI for 6 months.

All the sentences are directed to run concurrently.In respect of appellant No.2 :

Section 201 read withSection 34 of the IPC

RI for 3 years and fine ofRs.2,000/-, in default ofpayment to further undergoRI for 6 months.

2. Appellant No.2 – Gaindlal Sahu has expired on 27-12-2010 and, as

such, the appeal on his behalf has abated, as recorded by this

Court in the order sheet dated 21-1-2014. Therefore, the appeal is

considered for examining the legality and validity of the conviction

& sentence imposed upon the appellant No.1 – Sarveshwar Kumar

Kaushik only.

3. The accused persons have allegedly committed the murder of one

Binjwarin Bai (since deceased) prior to 11.00 am of 8-7-1997.

Shri Singh, Deputy General Manager (Security) of Bhilai Steel

Plant (for short ‘BSP’) telephonically informed the Station House

Officer, Police Station Bhatti, District Durg, at 14.00 hours on

8-7-1997 that a woman is lying dead at the place of occurrence

and her hands & legs are tied. After receiving this telephonic

information, two Constables were sent to the place and found that

the deceased Binjwarin is lying dead in front of centering plant of

BSP. This merg intimation was recorded vide Ex.P/20 and was

later on registered as merg No.23/97 vide Ex.P/3. The concerned

police sent notice to the witnesses vide Ex.P/1 for conducting dead

body inquest and the naksha panchayatnama was prepared vide

Ex.P/2. During the dead body inquest, the suspicion arose that the

2

deceased has been murdered and thereafter, First Information

Report (FIR) (Ex.P/4) was registered at 20.20 hours on 8-7-1997

against the unknown persons. The Investigating Officer obtained

samples of bloodstained soil & plain soil, as also the broken

bangles from the place of occurrence vide Ex.P/5. One lady’s

sleeper of left foot was recovered from the place of occurrence

vide Ex.P/6. Spot map was prepared vide Ex.P/7. The attendance

register of the labours containing the attendance record of the

deceased was seized vide Ex.P/8 from the management of the

BSP. Certificate issued by the Assistant General Manager of Water

Supply Department, BSP, certifying posting of the accused persons

as Chargeman/Spare Chargeman & Operator-cum-Technician,

respectively was recovered vide Ex.P/9.

4. Memorandum statement of appellant No.1 was recorded on

10-7-1997 vide Ex.P/10 wherein he disclosed that the iron strip

used for committing the murder of the deceased, bed sheet used

for moving the dead body and the wrapper of the bulb have been

concealed in the bushes near Eucalyptus tree on the embankment

of the tank. Bloodstained bed sheet, wrapper of bulb and iron strip

length 19.5”, width 2”, thin part 1½” having sharp edges were

recovered vide Ex.P.11 from the place indicated in the

memorandum. Shirt, full pant, baniyan & underwear of the

appellant No.1 were recovered vide Ex.P/12. Memorandum

statement of accused Gaindlal Sahu (now dead) was recorded

vide Ex.P/13 in which he disclosed that the bicycle and Tiffin

3

belonging to the deceased have been thrown near RMP II canteen

cycle stand and pursuant to this memorandum, cycle over which

one plastic bag containing one steel Tiffin wherein name of the

deceased was encrypted and inside the Tiffin one steel bowl was

also kept wherein also name of the deceased was encrypted, were

recovered vide Ex.P/14. Shirt, full pant & baniyan of the accused

Gaindlal Sahu (now dead) were recovered vide Ex.P/15. From

Gaindlal one daily work register was recovered vide Ex.P/16

wherein an endorsement was made at 20.30 hours on 7-7-1997 to

the effect that pump Nos.1 & 2 of the pump house No.47 have

tripped and this was informed to Chawda Sahab. Similarly, 8

broken pieces of red colour bangles, right foot sleeper of the

deceased, one lady’s hair pin, one black thread necklace, 5

currency notes of Rs.2/- denomination and one gate pass of the

appellant No.1 containing his photograph were recovered from the

place of occurrence vide Ex.P/17. Dead body of the deceased

was sent for postmortem to the District Hospital, Durg, vide

Ex.P/18. However, the Medical Officer of the District Hospital,

Durg, opined that since it seems to be a suspicious death, it is

referred to Medical College, Raipur, Department of Forensic

Examination for expert opinion and needful. Postmortem was

conducted by Dr. Sanjay Kumar Dadu (PW-16), who gave his

report (Ex.P/25). Dr. Dadu opined that the death was due to

asphyxia as a result of strangulation, other injuries were also found

present over the body caused by hard, sharp and hard & blunt

4

object. Duration of death was within 1-3 days since postmortem

examination i.e. 10-7-1997.

5. Wearing apparels of the deceased together with vaginal slide and

artificial ornaments worn by the deceased were recovered vide

Ex.P/19. The seized articles were sent for FSL examination vide

Ex.P/22, which were received by the Regional FSL, Raipur vide

Ex.P/23 and the report of the FSL was proved vide Ex.P/24. The

bed sheet and the wrapper of bulb recovered at the instance of the

appellant No.1 marked as Articles G-1 & G-2 were found

bloodstained. Similarly, the full pant recovered from the appellant

No.1 marked as H-2 and underwear marked as Article I were found

to be bloodstained. Gate pass in the name of the appellant No.1

containing his photograph, which was recovered from the place of

occurrence was marked as Article E4 and on this Article also blood

was found. In the underwear recovered from the appellant No.1

marked as Article I, in the petticoat of the deceased marked as

Article K3 and the vaginal slide marked as Article L sperms were

found.

6. The prosecution recorded the case diary statement of witnesses and

submitted the charge sheet against the accused persons. Accused

Sarveshwar was charged for committing the offence under

Sections 376, 302 & 201 read with Section 34 of the IPC whereas

accused Gaindlal Sahu (now dead) was charged for committing the

offence under Section 201 read with Section 34 of the IPC.

7. During trial the prosecution examined 16 witnesses to bring home the

5

charges. Accused Sarveshwar abjured the guilt and stated that he

has been falsely implicated. He examined one defence witness

namely; Dilip Kumar Chaudhary (DW-1). On the basis of

evidence available on record, the trial court has convicted and

sentenced the accused persons for the charges framed against

each of them.

8. We have heard learned counsel appearing for the parties and

perused the record.

9. It has been argued by the learned senior counsel appearing for the

appellant No.1 that the chain of circumstantial evidence is not

complete; evidence of Anjali Bai (PW-11) is contradictory and she

is not a reliable witness; the defence witness has proved that at the

time of occurrence the accused persons were working in the water

treatment plant of the BSP along with the defence witness; the

memorandum & seizure as well as the expert evidence in the form

of FSL report cannot form basis of conviction, therefore, the

appellant No.1 Sarveshwar deserves to be acquitted. In support of

his contention, learned senior counsel placed reliance upon the

decisions rendered by the Supreme Court and High Courts in Dev

Prakash v. State of M.P.1, The State of Punjab v. Bhajan Singh and

Others2, Sakharam Shankar Bansode v. State of Maharashtra3,

Kavita v. State of T.N.4, Manthuri Laxmi Narsaiah v. State of

Andhra Pradesh5, Majenderan Langeswaran v. State (NCT of

1 2004 (2) MPLJ 712 (1975) 4 SCC 4723 1994 SCC (Cri.) 5054 (1998) 6 SCC 1085 (2011) 14 SCC 117

6

Delhi) and Another6, State of Maharashtra v. Kondiba Tukaram

Shirke7 and Babudas v. State of M.P.8.

10.Per contra, learned appearing for the State would support the

impugned judgment.

11. There is no ocular version to the crime and the case of the

prosecution is based on circumstantial evidence. Before

proceeding to marshal the evidence, we would like to keep in mind

the principles laid down by the Supreme Court for proving the guilt

of appellant in cases where the prosecution is relying on

circumstantial evidence to bring home the charges.

12.In Sharad Birdhichand Sarda v. State of Maharashtra9, the Supreme

Court has underlined the conditions, which must be fulfilled for

convicting an accused on the basis of circumstantial evidence and

held in para-152 as under:

“152. A close analysis of this decision wouldshow that the following conditions must befulfilled before a case against an accused canbe said to be fully established :

(1) the circumstances from which theconclusion of guilt is to be drawnshould be fully established.

It may be noted here that this Courtindicated that the circumstancesconcerned ‘must or should’ and not‘may be’ established. There is notonly a grammatical but a legaldistinction between ‘may be proved’and ‘must be or should be proved’ aswas held by this Court in ShivajiSahebrao Bobade Vs. State of

6 (2013) 7 SCC 1927 (1976) 3 SCC 7758 2004 (1) MPLJ 3299AIR 1984 SC 1622

7

Maharashtra, (1973) 2 SCC 793 :(AIR 1973 SC 2622) where thefollowing observations were made:

‘certainly, it is a primaryprinciple that the accused mustbe and not merely may beguilty before a Court canconvict and the mental distancebetween ‘may be’ and must be’is long and divides vagueconjectures from sureconclusions.’

(2) the facts so established should beconsistent only with the hypothesis ofthe guilt of the accused, that is to say,they should not be explainable onany other hypothesis except that theaccused is guilty.

(3) the circumstances should be of aconclusive nature and tendency.

(4) they should exclude every possiblehypothesis except the one to beproved, and

(5) there must be a chain of evidence socomplete as not to leave anyreasonable ground for the conclusionconsistent with the innocence of theaccused and must show that in allhuman probability the act must havebeen done by the accused.”

13.We shall first discuss as to whether the prosecution has been able to

prove the presence and attendance of accused Sarveshwar and

deceased Binjwarin Bai in the water treatment plant at the relevant

time and date.

14.Premraj Buddhiraja (PW-7) is the Assistant General Manager of BSP

at the relevant time. According to this witness, both the accused

persons were working under him and their duty on the date of

occurrence i.e. 7-7-1997 was from 2.00 pm to 10.00 pm and both

8

were present on their duties for which he has issued a certificate

(Ex.P/9). In his cross-examination, this witness stated that on that

day one Shri Chawada was the Shift In-charge.

15.Narendrakumar Verma (PW-9) also works in the water supply

department of BSP. He stated that the deceased was engaged in

cleaning and serving drinking water to the employees in the water

supply department.

16.P.S. Thakur (PW-12) is the Assistant General Manger of BSP. He also

stated that accused Sarveshwar was working in the water supply

department as Chargeman and the deceased Binjwarin Bai was

also working in the water supply department, however, she died

after merely 3-4 days of her work while she was working with

Mishra contractor. This witness also stated that both

the accused persons have attended their duties in “B” shift i.e. from

2.00 pm to 10.00 pm on 7-7-1997.

17.Vidyanand (PW-6) is the Supervisor of Mishra Contractor. He has

proved the attendance register (Ex.P/8) maintained by the

Contractor for registering the attendance of the personnel/labourer

in the water treatment plant. According to this witness, on the date

of occurrence deceased Binjwarin Bai was assigned duty in the

water supply department and was relived from day’s work at 4.30

pm. Her attendance has been recorded on 7-7-1997.

18.Anjali Bai (PW-11) also works under Mishra Contractor along with the

deceased Binjwarin Bai. She has also proved that on the date of

incident she and the deceased were together coming back after

9

completing the day’s work.

19.S.P. Mishra (PW-14) is the contractor with whom the

deceased Binjwarin Bai as well as Anjali Bai (PW-11) were

working. He stated that Vidyanand (PW-6) is his Supervisor who

was responsible for taking the attendance of the personnel/

labourer.

20.Apart from the above witnesses of the prosecution, the defence

witness namely; Dilip Kumar Chaudhary (DW-1) also stated that

after hearing about the death of deceased he along with both the

accused had gone to see the dead body.

21.On the basis of statements made by contractor S.P. Mishra

(PW-14) and his supervisor Vidyanand (PW-6), it is proved that the

deceased was working with them and was assigned the duty of

cleaning and serving drinking water in the water treatment plant

and she attended the duty on the date of incident.

22.Similarly, the officers of the BSP who were the In-charge of the water

supply department i.e. Premraj Buddhiraja (PW-7) and P.S. Thakur

(PW-12) have stated that the accused Sarveshwar had attended

duty in the water supply department on the date of incident for

which certificate (Ex.P/9) was issued.

23.We shall now proceed to determine as to - whether prosecution has

been able to prove that the appellant is guilty of committing the

crime and therefore, he has rightly been convicted by the trial

court ?

10

24.Since the case is based on circumstantial evidence, we shall examine

the circumstances proved by the prosecution to ascertain as to

whether it is the accused Sarveshwar only who could have

committed the crime and thereafter, the accused Gaindlal Sahu

(now dead) assisted him in concealing the evidence of crime and

the hypothesis of innocence of the accused is completely

excluded.

25.As discussed above and found proved by this Court, accused

Sarveshwar and the deceased Binjwarin Bai were working in the

water supply department of the BSP and both of them have

attended the duties on the date of incident, therefore, the first

circumstance about the presence of accused Sarveshwar in the

water supply department at the time of occurrence is established.

26.To prove that accused Sarveshwar was seen near the place of

incident at the relevant time, the prosecution has produced Anjali

Bai (PW-11), aged about 22 years, who was working with the

deceased Binjwarin Bai, aged about 30 years, in the water supply

department of BSP. In her Court statement, this witness stated

that after completing the day’s work, she and the deceased were

coming back. When they reached near pump house, the

deceased asked her to wait and thereafter, the deceased went

inside the pump house while this witness was waiting outside.

After some time accused Sarveshwar came and informed that the

deceased has fallen on account of skidding of sleeper and he

requested this witness with folded hands that she should not

11

inform this to anybody. This witness further stated that she made

statement to the Police and further that accused Gaindlal Sahu

(now dead) was also present with accused Sarveshwar.

27.Anjali Bai (PW-11) makes the following statement in paras 2 & 3 of

her deposition :

“2. ?kVuk yxHkx pkj ikap ekg iwoZ dh gS

fc>okfju ckbZ iEigkml esa fxjh iM+h gqbZ Fkh

eSa ckgj esa [kM+h Fkh rHkh dkSf’kd us cksyk fd

fdlh dks ugh crkuk rc eSa fdlh dks ugh

crkbZ Fkh A NqV~Vh gksus ds ckn eSa vkSj

fc>okfju vyx vyx vk jgs Fks jkLrsa esa eq>s

fc>okfju feyh vkSj iEi gkml ds lkeus

igqapus ij fc>okfju us eq>s :dus dgk rks eSa

ogka :dh vkSj fc>okfju ckbZ iEi gkml esa

xbZ rks eSa ogha ij ckgj esa [kM+h jgh A mlds

ckn dkSf’kd vkjksih us vkdj nkSM+rs gq, eq>s

crk;k fd pIiy fQly tkus ls fc>okfju

ckbZ iEi gkml esa fxj x;k vkSj dkSf’kd gkFk

tksM+dj esjs lkeus [kM+k gks x;k fd fdlh dks

er crkuk A mlds ckn eSa vkSj dqN ugha

tkurh gwa A

3- eSaus iqfyl esa c;ku fn;k Fkk A dkSf’kd ds

lkFk esa vkjksih xSan yky Hkh Fkk A”

28.On a close scrutiny of the statement of Anjali Bai (PW-11) extracted

and quoted above, it would clearly appear that in the first part she

said that accused Sarveshwar stated her that she should not

inform anybody that the deceased had fallen inside the pump

house; then she stated that the deceased met her on the way,

12

when they were together coming back and reached near the pump

house the deceased asked her to wait and the deceased went

inside the pump house and after some time accused Sarveshwar

rushingly came out from the pump house and stated that the

deceased had fallen inside the pump house because of skidding of

slipper and stated before her with folded hands that this should not

be informed to anybody.

29.On a reading of the case diary statement (Ex.D/1) and the Court

statement, it appears that though there are minor contradictions in

the statement of Anjali Bai (PW-11), but the presence of accused

persons; the entry of deceased inside the pump house; the fact of

her waiting outside the pump house for some time; coming out of

the accused after some time and informing her about the fact that

the deceased has fallen down, which is a little sort of saying that

she has died; and the statement made by accused Sarveshwar

that this fact should not be disclosed to anybody else finds place in

both the statements. Thus, the basic prosecution case about the

presence of this witness just outside the place of occurrence, as

also the fact that she had seen the deceased in the company of

accused Sarveshwar soon before her death is clearly proved.

30.In Thoti Manohar Vs. State of Andhra Pradesh10, the Supreme Court

has held that minor discrepancies on trivial matters not touching

the core of the matter cannot bring discredit to the story of the

prosecution. Giving undue importance to them would amount to

10 (2012) 7 SCC 723

13

adopting a hyper-technical approach. The Court, while appreciating

the evidence, should not attach much significance to minor

discrepancies, for the discrepancies which do not shake the basic

version of the prosecution case are to be ignored. {See State of

U.P. Vs. M.K. Anthony11, Appabhai Vs. State of Gujarat12, Rammi

Vs. State of M.P.13, State of H.P. Vs. Lekh Raj14, Laxman Singh Vs.

Poonam Singh15, Dashrath Singh Vs. State of U.P.16}.

31.Any prudent person reading the statement of Anjali Bai (PW-11) can

safely conclude that accused Sarveshwar and the deceased were

together inside the pump house and this was seen by this witness

{Anjali Bai (PW-11)}. Otherwise, there was no occasion or reason

for accused Sarveshwar to inform this witness that the deceased

has fallen inside the pump house because of skidding of slipper

and this should not be informed to any one. Thus, this Court is of

the considered opinion that the statement of Anjali Bai (PW-11) is

the evidence of last seen together, which is an important piece of

circumstantial evidence proved against the appellant.

32.The next piece of circumstantial evidence against the accused

Sarveshwar is his memorandum statement (Ex.P/10). Pursuant to

his memorandum statement, one bloodstained bed sheet, one

paper wrapper of electric bulb and one iron strip of length 19.5”,

width 2”, thin part 1½” having sharp edges were recovered near

11 (1985) 1 SCC 50512 1988 Supp SCC 24113 (1999) 8 SCC 64914 (2000) 1 SCC 24715 (2004) 10 SCC 9416 (2004) 7 SCC 408

14

Eucalyptus tree on the embankment of the tank situate at road

leading to Maroda gate of BSP. Alakh Ram (PW-8) & Lekh Ram

Sahu (PW-13) are the witnesses to the disclosure statements and

the seizure memos.

33.Alakh Ram (PW-8) supports the disclosure statement (Ex.P/10) made

by accused Sarveshwar by stating that the appellant had made the

statement and thereafter, the recovery of the above mentioned

articles were made from the indicated place vide Ex.P/11. He also

supports the seizure of underwear; full pant, shirt & baniyan from

accused Sarveshwar vide Ex.P/12. This witness has also proved

the memorandum statement of accused Gaindlal Sahu (now dead)

vide Ex.P/13. Pursuant to the said memorandum statement, cycle

over which one plastic bag containing one steel Tiffin wherein

name of the deceased was encrypted and inside the Tiffin one

steel bowl was also kept wherein also name of the deceased was

encrypted, were recovered vide Ex.P/14. Shirt, full pant & baniyan

of the accused Gaindlal Sahu (now dead) were recovered vide

Ex.P/15. From Gaindlal one daily work register was recovered

vide Ex.P/16 wherein an endorsement was made at 20.30 hours

on 7-7-1997 to the effect that pump Nos.1 & 2 of the pump house

No.47 have tripped and this was informed to Chawda Sahab.

Similarly, 8 broken pieces of red colour bangles, right foot sleeper

of the deceased, one lady’s hair pin, one black thread necklace, 5

currency notes of Rs.2/- denomination and one gate pass of the

appellant No.1 containing his photograph were recovered from the

15

place of occurrence vide Ex.P/17.

34.In the cross-examination, Alakh Ram (PW-8) has clarified that he was

summoned by the police to pump house No.47, however, nothing

has been asked from this witness that accused Sarveshwar had

not made any disclosure statement in his presence or that the

recoveries made from accused Sarveshwar were not made from

the disclosed place. It appears, after the recoveries were made the

paper work may have been done in the police station.

35.Lekh Ram Sahu (PW-13) admits his signature on the memorandum

statement of accused Sarveshwar (Ex.P/10), however, he denies

that any such memorandum statement was made by the accused

persons to the police in his presence, but in para 2 of his

examination-in-chief he categorically supports the prosecution by

saying that one slipper, iron strip and bed sheet were recovered

near the pump house. He also stated that another sleeper, two

rupees currency notes were also seized near the pump house and

that the police personnel had taken him and Alakh Ram (PW-8) to

the place where from the articles were seized.

36.On a reading of statements of Alakh Ram (PW-8) & Lekh Ram Sahu

(PW-13), it is fully established and proved that the accused

Sarveshwar has made memorandum statement to the police and

consequent thereto articles were seized from him. Thus, this

circumstantial evidence is also proved against him.

37.Other circumstance is in the form of FSL report. The following are the

list of articles sent for chemical examination :

16

S.No. PacketMarked

Particulars foundinside the packet

Markedherein

From whom/whoseseizure

made & date

Description ofmarks, size &

colour

1 A Soil A Place ofoccurrence

(8-7-97)

-

2 B Soil B -do- -3 C Pieces of Bangles C -do- -4 D Sleeper D -do- Muddy stains at

various places,blood is notvisible.

5 E Pieces of Bangles

Hair Pin

ThreadGate Pass

Sleeper

E1

E2

E3E4E5

Near PumpHouse

(10-7-97)

-do-

-do--do--do-

-

Light brownstains at variousplaces

-do--do-

Muddy stains atvarious places

6 F Shirt

Full PantBaniyan

F1

F2F3

Gaindlal(10-7-97)

-do--do-

Visiblebloodstains not

found-do--do-

7 G Bed Sheet

WrapperIron strip

G1

G2G3

Sarveshwar(10-7-97)

-do--do-

Light brownstains-do-

Stains like ruston both sides.Blood is notvisible

8 H Shirt

Full Pant

Baniyan

H1

H2

H3

Sarveshwar(10-7-97)

-do-

-do-

Blood stainshave not been

found

Small lightbrown stains atvarious places

Blood stainshave not been

found9 I Underwear I -do- Light brown

stains at theback side

10 J Piece of saree J Deceased(10-7-97)

Light brownstains at

various places11 K Piece of saree

BlousePetti Coat

K1

K2K3

-do-

-do--do-

Light brownputrefy stains atvarious places

-do--do-

12 L Slide L -do- - 38.In the FSL report (Ex.P/24) bloodstains were found on the following

Articles :

17

A - soil collected from the place of occurrence;E1 - pieces of bangles recovered from pump house;E2 - hair pin recovered from pump house;E3 - black thread necklace, belonging to deceased,

recovered from pump house;

E4 - gate pass, belonging to accused Sarveshwar,recovered from pump house;

G1 - bed sheet recovered from accused SarveshwarG2 - paper wrapper recovered from accused

Sarveshwar

H2 - full pant of accused SarveshwarI - underwear of accused SarveshwarJ - pieces of saree belonging to the deceased K1 - pieces of saree belonging to the deceasedK2 - blouse belonging to the deceasedK3 - petticoat belonging to the deceased

In addition to the above, Article ‘I’ underwear of the accused

Sarveshwar; Article ‘K3’ petticoat of the deceased; and Article ‘L’

vaginal slide obtained from the private parts of the deceased were

sent for sperm examination. FSL report (Ex.P/24) has found

presence of human sperm on these three articles.

39.Despite presence of bloodstains on the articles recovered from the

accused Sarveshwar having been found in the FSL report, more

particularly his full pant, underwear and finding of sperm in his

underwear and the petticoat of the deceased as also of vaginal

slide, the accused Sarveshwar has not offered any explanation

regarding presence of bloodstains and human sperm when he was

asked questions regarding this evidence in his statement recorded

under Section 313 of the Cr.P.C. Thus, the appellant’s connectivity

in committing the crime on the basis of his memorandum

statement, consequent seizure and report of FSL is proved and the

finding recorded by the trial Court is borne out from the evidence

on record.

18

40.Accused Sarveshwar has also been convicted for committing rape.

As earlier stated there is only circumstantial evidence against him,

therefore, to examine the validity of his conviction under Section

376 of the IPC, this Court is again required to fall back on the

circumstantial evidence available in this regard.

41.In the dead body inquest (Ex.P/2) it was found that out of 4 buttons, 3

buttons of the blouse of the deceased were broken. During

observation of private parts of the body of the deceased by the

women inquest witnesses, white material was found near vagina.

42.Dr. Sanjay Kumar Dadu (PW-16), who has conducted postmortem on

the body of the deceased, has not made any specific opinion about

the commission of rape before committing murder, however, he

prepared vaginal slide and referred the same for FSL examination.

43.This Court has already found that seizure of articles made from the

accused has been fully proved. Article ‘I’ is the underwear of

accused Sarveshwar, whereas Article ‘K3’ is the petticoat of the

deceased and Article ‘L’ is the vaginal slide. In the FSL report

(Ex.P/24) human sperms have been found on these articles i.e. ‘I’,

‘K3’ & ‘L’.

44.If the observation made by the inquest witnesses and the report of

FSL are read together, it appears the deceased was subjected to

forcible sexual intercourse before committing her murder. It

appears that during this act, the deceased might have resisted

because of which she was done to death due to asphyxia as a

result of strangulation.

19

45.In Joseph s/o Kooveli Poulo v. State of Kerala17, the Supreme Court

was dealing with a case where the accused was convicted for

committing the offence under Sections 302, 376 & 392 of the IPC.

It was also based on circumstantial evidence. In para 15 of the

judgment, the Supreme Court dealt with the evidence with respect

to the charge under Section 376 of the IPC and after having found

that there was no mark of violence or resistance on the body of the

deceased and the dhoti of the accused contained no stains of

blood or semen, the Supreme Court acquitted him of the charge

under Section 376 of the IPC.

46.However, in the case in hand, it was found during inquest that 3

buttons of the blouse as also bangles of the deceased were

broken. Sperms were found on the petticoat and vaginal slide of

the deceased and importantly sperms and bloodstains were also

found on the underwear of the accused Sarveshwar. Therefore, it

appears the deceased resisted when she was subjected to sexual

intercourse, which led to breaking of buttons of the blouse and

bangles of the deceased and subsequently, she was murdered.

Thus, the decision of the Supreme Court in Joseph s/o Kooveli

Poulo (supra) is distinguishable on facts.

47.On the basis of scrutiny of evidence adduced by the prosecution, the

following circumstances have been proved against accused

Sarveshwar :

On the date of incident i.e. 7-7-1997 accused

17 (2000) 5 SCC 197

20

Sarveshwar was posted as Chargeman in the

water supply department of BSP and attended the

duties in ‘B’ shift i.e. from 2.00 pm to 10.00 pm.

On the date of incident Anjali Bai (PW-11) and the

deceased were coming back in two separate

bicycles at 5.00/5.30 pm and the deceased went

inside the pump house, while Anjali Bai (PW-11)

was waiting outside. After some time, accused

Sarveshwar came out and informed Anjali Bai that

the deceased has fallen down on account of

skidding of slipper and, as such, the appellant was

last seen together with the deceased.

Accused Sarveshwar has made disclosure

statement to the police vide Ex.P/10. Consequent

to his memorandum statement bloodstained bed

sheet, wrapper of bulb and iron strip length 19.5”,

width 2”, thin part 1½” having sharp edges were

recovered from the place indicated in the

memorandum, vide Ex.P/11. His shirt, full pant,

baniyan & underwear were also recovered vide

Ex.P/12.

During FSL examination blood stains were found on

the Articles – G1 (bed sheet), G2 (wrapper), H2 (full

pant), I (underwear), which were recovered at the

instance of accused Sarveshwar.

21

In the FSL examination, bloodstains & human

sperms were found on Article ‘I’ underwear of the

accused and sperms were found on Article ‘K3’

petticoat of the deceased and Article ‘L’ vaginal

slide.

48.On the basis of above circumstantial evidence, this Court is of the

considered opinion that the chain of circumstantial evidence is so

established that it is consistent only with the hypothesis of guilt of

the accused and they are not explainable on any other hypothesis

except that the accused is guilty. The circumstances proved by the

prosecution are of a conclusive nature and tendency and they

exclude every possible hypothesis except the one to be proved i.e.

the guilt of the accused. The chain of circumstantial evidence

found proved by the Court shows that in all human probability the

act has been done by the accused and it does not leave any

reasonable ground for drawing conclusion consistent with the

innocence of the accused. The trial Court has not committed any

illegality or irregularity in convicting the appellant - Sarveshwar

under Sections 376, 302 & 201 read with Section 34 of the IPC.

49.For the foregoing, the appeal is dismissed. Conviction and sentence

imposed on appellant Sarveshwar Kumar Kaushik under Sections

376, 302 & 201 read with Section 34 are hereby maintained. He is

on bail. His bail bonds are cancelled and he be taken into custody

forthwith to serve out the remaining sentence imposed upon him.

CHIEF JUSTICE JUDGE

Gowri

22

HIGH COURT OF CHHATTISGARH : BILASPUR-------------------------------------------------------------------------------------------------Division Bench : Hon'ble Shri Yatindra Singh, CJ &

Hon’ble Shri Prashant Kumar Mishra, J.-------------------------------------------------------------------------------------------------

Criminal Appeal No.1997 of 1998

APPELLANTS Sarveshwar Kumar Kaushik & Another

Versus

RESPONDENT The State of Madhya Pradesh (nowState of Chhattisgarh)

Judgment for consideration

J u d g e -4-2014

Hon’ble the Chief Justice

Chief Justice -4-2014

Post for pronouncement of judgment on the ___ day of April, 2014

J u d g e-4-2014

23