B .'j HIGH COURT OF CHHATTISGARH : BILASPUR \ ' : . ' ! ' DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR, JJ. CriminalaDpeal No.234/2005 APPELLANT : Peelaram Uraon, s/o Shri Phoolchandra (in custodv) Uraon, aged about 40 years, residentof yillage Bundiya Rawadih Para, Bhatgaon J§howki, P.S. Pratappur, Dist. Surguja VERSUS RESPONDENT — : StateofChhattisgarh.Throughincharge Chowki Bhatgaon, P.S. Pratappur, Dist. Surguja (C.G.) CRIMINAL APPEAL UNDER SECTION 374 (210F THE fcRIIVIINAL ;PROCEDURECODE Appearance: Shri B.D.Badgaiyan, counsel for the appellant. : Shri Sandeep Yadav.Dy. G.A. forthe State. JUDGNIENT (Passedon 10.01.2011) The challenge in this appealis to the judgment ofconviction and order. of sentenGe dated 21st February, 2005 passed in S.T.No.401/2004 by the 3 Additional Sessions Judge, Surajpur, Dist. Surguja whereby and whereunder after holdihg-the'-'appellant guilty for commission of culpable homicide amounting to murder of his wife Kursela Bai, the Court below cbnvicted the appellant under Section 302 of the I.P.C. and sentenced to imprisonment for life with fine of Rs.5000/- and in default to ta • • • . .' payment of fine, the appellant has to further undergo two months imprisonment. •^ 2. The conviction is'impugned ontRe-ground thatwithputiota of evidence on record.the Cqurt belowconvicfed and sentenced the appellant as aforementioned and thereby committed illegality. !i.i i Uil- .itiiaE ^•.—^-.^-^•S^S^i^^S^-; (ry.I'f!*^-'^•'!•"•.'*''"'"" •II E^ llllli, NMII! ffilsi I! ;ii^';. 3. As per the casev^of prosecution, on fateful night of 24.05.2004 between 8 to 9 p.m. the appellant, deceased wise Kursela Bai and their daughter Neelima P.W.3 were present in the house of the appellant at village Bundia Rawadihpara, P.S. Pratappur. The present appellant assaulted his wife by Bahinga,a heavy bold sized wooden object and caused her death. P.W.3 Neelima was also present in the house and witnessed the incident. She narrated the incident to other persons on 25.05.2004, in particular, to PAV.13 Shivlal Uraon, who went to police itl'i^ Station alongwith P.W.8 Tiwari Kanwari and lodged the first information report vide Ex.P.1 C. Based on Ex.P.1 C, F.I.R. was recorded vide Ex.P.4. Merg intimation was also recorded vide Ex.P.17. Investigating Officer left the scene of occurrence and after summoning the witnesses vide Ex.P.3, inquest over the dead body was prepared vide Ex.P.1. Bloodstained and plain soils were recovered from the spot vide Ex.P.7. Dead body wassent'for autopsy to Assistant Surgeon, Government hlospital, Bhatgaon where Dr. MaheshwarSingh P.W.12conducted the autopsy vide Ex.P.14 and found the following injuries: 1) 2) Haematoma over the forehead, rightside of the chest and backof2x2,4x2 and 10 x4"wasfound. ' .' I ' Right side of 5th, 6th and 7th ribs are found fractured. Mode of death was shock. During the course of investigation, the accused was taken into custody. He made disclosure statement of Bahinga, a kind of heavy wooden objectyide Ex.P.8 and thesame was recovered at the inst^nceof the appellant vide Ex.P.9. ; 4. Statements ofthe witnesses were recorded under Section 161 of the Code of Criminal ProcedDre, 1973 (for short 'the Code'). After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Pratappur, whq in turn committed-lhe case to the Sessions Judge, Ambikapur. The learned 3 Additional Sessions Judge received the case on transferfortrial. !i II Ui..» -~-?T^~-;^;^7' 1 KM% : ~"-"i®|| Bl:li1fci- :'&,.^a./ -,diy llglli:l[?l!~'' »p'"' 5. In order to proye the guilt of the appellant, the prosecution \ . ^ _. examined as many as 13 witnesses. The accused appellant was also examined under Section 313 of the Code in which he denied the circumstances appearing ^gainst them and claimed his innocence and false implication. 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellants as 'll aforementioned. ,ii 7. Learned eounse] forthe appellant aswell as respondenVState are heard at length. Perused the impugned judgmentand record of Court below. , 8. Shri B.D.Badgaiyan, learned counsel for the appellant vehemently 1 • argued that the convictjon is based on the circumstantial evidence and in Case of circumstantial evidence the prosecution is required to prove the following circumstances: (i) the circumstances from which the cpnclusion of guilt is to be drawn shouldbe fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; •••.'St-a ine. f?''*r-"..f'.l'-!-"1; :i;'--,--''"-;::'...---:':..-••(••••••••:••''i^ ,,:; (ii) the facts so established should be consistent only with the hypothesis of the guiltof theaccused, that is to say, they should not be explainable on any other hypothesisexcept that the accused is guilty; (iii) the circumstances should be of a conclusive hature and tendency; (iv) they shoulc^a exclude every possible hypbthesis except the one to be proved; and (v) there must be a chain of evidence ^so eompleteas not tp leave any reasonable ground for the conclusion consistent with the innoc'ence of the :1. . '. . .. . . I :..: :.l accused and must showthat in all human lafli)l-.l BillRilHf'^ li'.MfLEsB'JWil ssn 9 8 / <•- el-i probability the act must have been done by the accus^d. In the present case, the prosecution has utterly failed to link the chain of circumstances as mentioned above. On these premises, learned counsel urged that the appellant is entitled to acquittal. 9. On the other hand, Shri Sandeep Yadav, learned counsel for the respondent / State opposed th^appeal and argued that the conviction of the appellant is based on the circumstantial evidence and the prosecution has successfully proved the complete chain of circumstances which are sufficient for drawihg Tnference 'tliatthe appellarit has ohly committed the offence and none other person could commit such heinous offence. 10. In order to appreciate the arguments advanced on ;behalfof the parties, we have examined the evidenee minutely. In the present case, homicidal death of the de.ceased;- Kyrsela Baias a result of fatal injuries found over the dead body of Kursela Bai has not been disputed on behalf of the appellant, even otherwise established by the evidence of Dr. Maheshwar Singh P.W.12 and autopsy repeirt Ex.P.16 which reveals that the death was due to fatal injuries caused over the body of Kursela Bai and was homicidal in nature. '(•'"---•-;.-••- -"•-•• ••—••^-^;-": ";(;':'•; '";;' • 11. As regardsthe complicity of the appellant in crime iniquestion, the prosecution examined and proved the following facts and circumstances: i. Deceased Kursela Bai, wife of the appellant, was residing with the appellant in the same house. ^ ii. On the date of incident i.e. 24.5.2004 the appellant was presentalong with his wife Kursela Bai and daughter P.W.3 Neelima. iii. Kursela was found de8d in the intervening night qf 24th, and 25 of May, 2004, as a result bffatal injuries. iv. P.W.3 Neelima has narrated the incident that-tfte appellant has caused injury to the deceased Kursela Bai; to other witnessesincluding P.W.7 Shivlal, who has lodged F.1.R. s.'. . :• ' • • '.'.•'•'''•' v. The appellant was ..present in the house on the date of —•{•,!••• \i I) il t, liri, f'i' \: incident and the offence committed in secrecy has not been abletoexplain by ^im relating to death ofhiswife. I: ffiil- •t^ 12. In the present case, the relationship of the appellant and the deceased Kursela Bai is not disputed. The appellant has admitted in his examination under Section 313 of the Code that heand his wife were present in the house and on the date ofincident at about 4.00 a.m when he woke up then he saw that body,of his wife was lying near his leg and she was found dead. As per ^dence of P.W.8 Tiwari Kanwar, the appellant was present in his house and also took the appellant to Police Station. P.W.3 daughter Neelima hasspecifically deposed that pn the date of indderit at-n]ght,'she"was"present-iri his Hbuse along with her father/appellant and her mother Kursela Bai, who was found deadon second day morning. The aforesaid facts and admission ofthe appellant would reveal that only 3 persons i.e. appellant, his daughter P.W.3 Neelima and the deceased Kursela Bai were present in the house of the 1 ' - '^. appellant and Kursela Bai was found dead as a result of fatal injuries. The appellant has offered explanation that when he woke up at 4.00 a.m. at morning then he saw the deceased lying near his legs but he has not offered any explanation as to who has caused injury to his wife Kursela Bai and howshe died. Definitely, the offence was committed by the •i' . • : • '• appellanf in secrecy and the appellant was under obligation to offer explanation in terms. of Section 106 of the Evidence Act thgt how Kursela Bai died ,and who has caused injury. In the matter of Trimukh Maroti Kiran v. Sto(e of Maharashtra, (2006) 10 SCC 681, the Apex Court held that if the offence was committed in the dwelling house, where the r' ..'! • .'•• • husband also resided and if the accused husband did not offer any explanation as to the injuriesreceived by his wife or if the explanation is false, then there is strong cir^imstances which indicates that he committed the crime. In Dhananjoy Chatterjee alias Dhanav. State of W.B., (1994) 2 SCC 220 the Apex Court has also held that in case of offence committed in secre.Gy, the person who was present in such places is underobligation to offer explanatiQn. •"-h .- -' r-~ --..• i.t. ?i..!..e'^ '•?L^-> fi ^:?:%3jat. 13. If the circumstances that there were three persons i.e. the appellant, hiswife Kursefe Bai and their daughter P.W.3 Neelima residing in the house ofthe appellant atthe time of commission of offence; P.W.3 Neelima narrated the incidant to other prosecution witness Shivlal P.W.7, the non-explanation of the appellant aboutthe manner in which Kursela Bai died.are considered tbgether, then an inference would be possible that only the appellant has caused homicidal death of hiswife Kursela Bai and none other person has caused such homicidal death and also exclude i/ the possibility of innocence of Vi^ appellant. 14. After appreciating the evidence available on record, learned Additional Sessions Judge has convicted and sentenced the appelldnt. 1 ~-.;'..'....-... 0<f -.•<!;<.< •<...... .,,<......-,,,.; . —'".., .^ - ••• f •••••••• •".::.::.••.:•••'. 15. On close scrutiny of the material availableon record.we do,notfind any illegalityor perversity in the judgment impugned requiring any interference in exerciseof appellate jurisdiction. 16. Consequently, the appeal being devoid of merit is liabl.e fo be and is herebydismissed. Sd/. . T.P. ShaSBia Judge Sd/- R.L. Jhanwar Judge if II ^. li !1 1