HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri T.P. Sharma & Hon'bleSliri R.N. Chandrakar, JJ. Criminal AppealNo. 1089 of2004 Appellant (in jail) Rahilo s/o. Pandru Korwa, aged 45 years, resident" of village Chiparkaya, Police Station: Batauli, District Sarguja (CG). Vs. •if. Respondent. S^te of Chhattisgarh through Pofce Station Bathauli. (Criminal Appeal under Section 374 (2) of the Cr.P .C.) Present: Mr. B.D. Badagayya, counsel forthe appellant; Mr. Vivek Shrivastava, Govt. Advocate for the State. ORAL JUDGMENT (Deliveredon 6-7-2011) PerT.P.Sharma, J. Challenge in this appeal is to the judgmentof conviction and order of sentence dated 27-11-2004 passed by 2nd Additional Sessions Judge, Ambikapur, District Sarguja, in Sessions Trial No.378/2004, whereby and whereunder learned Sessions Judge after holding the appellant guilty for the commission of culpable homicidal death amounting to muder of his wife - Rajkumari, convicted the appellant under Section 302 of IPC and sentenced him to undergo life imprisonment and to pay fine of Rs.1 ,00,000/-, in default of payment of fine to undergo further Rl for 5 years and l-1 BB* illiJ!'ll under Section 309 of IPC for attempting to commit suicide convicted and sentenced him to undergo Rl for one year, respectivelyand both sentences are directed to run concurrently. Conviction of the appellantis impugned on the ground thatwithout there being any iota of evidence, thecourt below has convicted and sentenced the... appellant as aforementioned and thereby committed illegality. „{ ,''- • As per case of the prosecutionT on fateful day of 1 9-4-2004 at about 5.00 p.m. the appellant was present in his house atong with his wife - unfortunate deceased Rajkumariand his two daughters and other children. The appellant assaulted his wife Rajkumari by axe over her head and caused her instantaneous death. After committing myrder of his wife, the present appellant attempted to commitsuicide by hanging. When his two daughters shouted for help, then the neighbours rushed to the spot and rescued the appellant. PW/1 - Ghursat Korwa went to Police Station, Batouli and loged first information report videEx.P/1 and merg intimation was recorded vide Ex.P/2. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex.P/6, inquest over the body ofthe deceased was prepared vide Ex.P/7. Spot map was preparedvide Ex.P/8. Blood smeared earth and plain earth were seized vide Ex.P/9 and rope wasseized fram the house of the appellant vide Ex.P/10. Blood stained axe Was seized from the possession of the appellant vide Ex.P/11. Dead body of the deceased Rajkumari was sent Jor autopsy to ^lll Blft'1^1 Ij-lf^^, -^ '..^•- Commynity Health Centre,Batouli, vide Ex.P/17where Dr. G.S. Kurre (PW/9) conducted postmortem vide Ex.P/13 and found the \. following injuries; i) one incised wound atthe leftoccipital region ofthehead inthesizeof 31/2" x2"x 21/2" extended upto brain deep; ii) anotherincisedv(oundadjacenttotheinjuryNo.1 blood clot in the size of 2" x 1 %" x 2". Injuries were ante mortem in nature and cause of death was Coma precipitated by shock (blood loss) due to head injury and death was homicidal in nature. Appellant was also examined by Dr. G.S Kurre (PW/9) who found thefollowing injuries vide Ex.P/15; 1)abrasion over the neck; 2) abrasion above the forearm near wrist joint and 3) aboration over right eye and gave suggestion of the fact that the appellant tried to commit suicide by hanging by rope and injuries were simple in nature. Seized articles were sent for medical examination to FSL, Raipur vide Ex.P/22. After completing the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate, First Class, Ambikapur, who in turn committed the case to the Court of Sessions Judge, Ambikapur. Learned Additional Sessions Judge, received the case on transfer, who -;framed charges under Sections 302 & 309 ofthetPC against the appellant who abjured the guilt. Prosecution in order to establish the charge against theappellant examined 14 witnesses in all. Thereafter the statement of the accusedwas recorded under Section 313 ofthe Code of Criminal Procedure, in which he denied the circumstanc§s appearing 'y' il _ '\y^sf i ,r^ct~- ,-;^iaP"''1[-. . 1;--;.: <-. • • -'. r '^A 1. : ^sB.^y '?^^^^ • :l!ili I. ! 8. against him in the prosecution case and pleaded innocence and false implication. The appellant took the defence that he was \ insane prior to the commission of the incident and has not committed murder of hiswife. The trial Court after hearing counsel for the respective parties, convictedand sentenced the appellant as mentioned in paragraph one of thejudgment. < ^^; Mr. B.D. Badagayya, leamed'counsel appearing for the appellant vehemently argued thatthe conviction ofthe present appellant is only based on the suspicion. The trial Court has nptadduced any evidence for involvementof the appellantin crime in question. Theevidence adduced on behalf of the prosecution may be sufficient for drawing suspicion that the appellant might have committed the offence but thesame is not sufficient for drawing conclusion that the appellant was the only person whoeommitted the aforesaid offence. On the other hand.Mr. Vivek Shrivastava, learned Govt. Advocate appearing on behalf of the State supported the impugned judgment and submits that the court below after considering all the aspects of the case has rightly convicted and sentenced the accused/appellant. He further submits that the evidence adduced on behalf ofthe prosecution is sufficient for drawing inference that the appellant had committed homicidal death of his wife and after committing murder of his wife Rajkumari, he himself attempted to commit suicide. WSSyk S 10. 11 12. 13. We have heard learned counsel for the' parties and perused the record of the trial court a^ also the impugned judgment In order to appreciate the arguments advanced by learned counsel for the parties, we'have examined the evidence adduced on behalf of the prosecution. In the present case, taomicidal death of the deceased Rajkumari as a result of fatal injujries is,rnot substantially disputed by the ^^.. appellant. On the other hana,.it is established from the postmortem report (Ex.P/13) of Dr. G.R. Kurre (PW/9), death of Rajkumari was homicidal innature. In the present caseinjuries present over the neck ofthe appellant were not disputed onbehalf of the apRellant. Theappellant himself admitted that he attempted to commit suicide which is corroborated by the evidence of Dr. G.R. Kurre (PW/9) vide Ex.P/15. As regardscomplicity of the appellantin the crime in question, as perevidence of PW/1- Ghursat, PW/2—Prem Sai, PW/3 - Sanak Singh, PW/4 Setram, PW/5 Jitan, and PW/8 Karam Sai, at about 5 p.m. on the dateof incident, daughters of appellant namely Dheli Bai (PW/6) and Ram Bai (PW/7) were weapingand when theycalled the aforesaid witnesses to their house stating that their father had committed murder of their mother Rajkumari and thereafter he attempted to commitsuicide by hanging, they immediately rushed to the spot where dead body of Rajkumari waslying on the ground and at that time the appellant was hanging, they immediately removed the rope and rescued the appellant. Defence has cross-examined these».witnesses, but ; i 4 i.. .^' has not been able to elicit anything to show that at the timeof incident, appellant was not presentin his house, dead body with fatal injuries of Rajkumari was not found in the house of the appellant and the daughtersof the appellant have not called the aforesaid witnesses forhelp and theappellant himself has not attempted to commitsuicide. Even if the evidence of these witnesses are considered altpgether, then inference would be 'i-f- possible that at the time of commjssion of offence appellant along with his wife andchildren was present in the house andout of four persons, Rajkumaridied as a result of fatal injuries and his two daughters have offeredtheir explanation that the appellant had killed the deceased. The appellant has not offered any explanation, /nter a//a, after the incident he himself attemptedto commit suicide which shows his conduct after commission of offence and the same is relevant in terms of Section 8 of the Evidence Act. Thus, it is sufficient to draw inference that only the appellant had committed homicidal death amounting to murder of his wife Rajkumari and has alsoattempted to commit suicide. It was also inGumbentupon the appellant to establsh the factumof exception to believe that hewasmentally ill or insane in terms of Section 105 of the Evidence Act. In absence of such proof and without explanation the only ihference is possible that it was the appellanf who committed homicidal death of hiswife and there is no evidence to suggest thatthe appellant was insane prior to the commission of the offence. ^jfHiirfii»^3r?T.^ft|E3TPT^na a^^ f .!r?J?^€~w^ f £;. '^ ^: ^•~r°w%t Raju 14. Afterappreciating the evidence available on record, learned Additional Sessions Judge has convicted the appellant under Section 302 and 309 of the IPC and sentenced as aforementioned. As per case of prosecution and the evidence adduced on behalf^of the prosecution, after-commission of culpable homicidal death amounting to murder of his wife Rajkumari, appellant has,attemptedto commit suicide which ^. shows that he was punishing.himself, therefore, sentence of one year to the appellant under Section 309 of the IPC, in the present case, is not just and proper and likewise considering the circumstances, fine of Rs,1,00,000/- awarded to the appellant is also not proper. 15. For the foregoing reasons, the appeal is partly allowed and conviction of the appellant under Section 302 and 309 of IPC are hereby maintained. Instead of life imprisonment and fine of Rs.1,00,000/- under Section 302 of the IPC, the appellant is sentenced to undergo life imprisosnment and under Section 309 of the IPC, the appellant is sentenced to undergo Rl for seven days instead of one year. SdA T.P.Sharaiii Judge Sd/- R.N. Chandrakar Judge