yis "s.^see& HIGHCOUItTOFCHHATTISGARHATmLASPUR DWISION BENCH CQRAM: HON'BLEMR. T.P.SHARMA& HQNtBI,EMR.R.L..JHANWAR.JJ. CRIMtItAL APPESAL N0.104^/04. APPELLANT (INJAIL) 4: -Sa: VBSRSUS RESPONDEatT PROSECOTION T^ejram Yadao son of Nachkar Yada^ aged 22 years resident of village3i©atudaP.S. Janjgir Distt. Janjgir - Chainpa,(C.G.). State pf Ghhattisgarb Throuigh R.S. Janjgir ©istt.Janjgu^Ghampa- A|®|a fflR[D^$SEC3a6N^74(210F"THE CODE OF CRIMINAL Preseiit:- St]ii3|S?@^sI|BEiai|^^|n^.lAd:vqcate fi)f the appellant. SlMN^'Meti^^lK^^^I^State^spQnden^ ^:'.:tl'assed,;oi^:i(3t/fl^^l0) :,:.,, .'^ The IbllcwirKiudgmeiitoftheGourtveaso^sedby T.P. Sharma, J:- 1. ChaUfinge in fhis appeal is to fhe judgment of convictionandorder^ofsentencedated 30/10/2004 passed by 3ra ^(IditionalSessions Judge (F.T.C.) Janjgu' in Sessions Trial No. 245/2004 whfirebyandwhere under wfaile acquittmg .ftie other fhree co-acGused persons i.e. broQier, iaQigr and mofher offte appellant, after holffli^ the appellant guilly fbr tlie eommissioa of - ofience of culpable homicide ainoyatmg to murc^ '^IS^ ff. •^ ^^ ^^!:^ •<3-[.1 w: S his wife Laxhiia Bai convicted the appeltant under Section 302 of Indian Penal Code and sentenced rigorous imprisomnent for Itfe and flne of Rs. 1,000/-, in default of payment of fine amount addltiorial rigorous impnsonment for 3 moriths. ^ Conviction is lmpid|ped on the ground that wifhout any ^ .''.. • • . •'.': '. • • '• • •.'.'''. iota of evidence su&icient for convlctlon of fhe appellant, Court below has convicted and sentenGed fhe appellant as aforementioned and thereby couamitted an illegality. As per case of fhe prosecution, appellant Teejram, Iiusbai^ofdeceasedl^axminBaiwasresidingvnthhis wife Laxmin fiai (since deceased). On 3/5/2004 at about 2:00 P.M. present appeUant went to the Police Station Janj@r and lodged Marg m.tiiaation relating to death of his wife Laxmln Bai that she had died as a result of han^ng and with a view to save her he had cut (he rope/ligature but he had found dead and dead body of Laxmin Bai is lying in hls house. Marg was recorded vide Ex. P^. Afl^ summoning the wttnesses vide Ex. P-3, inqufist over ftie dead body jof.deeeased was prepared vide Ex. P-4. Dead body ofjLaxmin Bal was sent ftM- autppsy to Goiveminent Hosoital, Jamgir vide Ex. P-6 where a team of doctors i.e. PW12 Dr. " r:! .1 .B' iyssx niii!K< K!l Wv m 4. Anlta Shrivasta^a 85 PW13 Dr. B.S. Chandel conducted autopsyvldeEx. P-11 and found followinginjuries:- (i) 3 smaU. bruises on teft upper parf of fhe neck and 2'bruises on right side of fhe iieck of 3 x 1 e.m. (ii) Bruises in Iront^inside of fhe neck with <t abrasion indtEf'rise margin. (ui) Bruiseonnght~side®ofthechestof9x6 c.m.. :. ' : . • ;, , ' (iv) Bruise on left slde of the chest (v) Botll lipper limbs WCT®eGcIiymosed and patechialandhemoErhagewerepresent. (vi) Blood was found tnside ffae muscles of the head & chest. Blobd was found cultural cavity.;. :: . . ^ , , (vii) Multiple brulses were found in laiynx and trachea. Blood was present. (viil) Laceration on right lung. (ix) I^erat^ andbriiises pn right liver of9 x 4 c.m. BIo<xl was fioi^^ pentoiieal cavity. (x) Bone beneafh wifh fhe ear aiid jaw was fburid iractured. (xi) 6 months dead fetus was fbiuid in the uterus. Cause of deatli was asphyxia as a result of strangulatidn and death wasi . hoimcidalin natUTe. i After report of postmortem, father of deceased Rtainbar Lal made'S'coinplamttoPbUGe Station, Jarygirvide Ex. •Vt ••'.'• ' : • .... • •. '• '•'•..: P-1, on the basis of such coiirplaiiit First IiiGarmajtion Si^BaSS^SSESSSSiSSSS^S:^••sS»'S'^:StlS' l-,W.V iSSS'S S^^!'^!3^'!'!!^:^^ ^i^i^^^ • y^Hi Kllii' KBK' ^s^, E81 •I; irii B isli Uft III ^l^.ii lili ii; iilt Report was recordedon 9/5/2004 affer 6 days of tncident vide Ex." P-2. Patwari prepared spot map vlde Ex. P-8. 'Viscera'and other artictes were seized vide Ex. .-,•"" .. ''••'.'• .• '''•..'• . . • Statemerits of 4he<i'witaesses were recorded under •'''v ::';' ':: ., ' ', Secticm 161 QEtheGode^ofG^ninalProcedure, 1973 (iri short fhe. Code'). After completion of fhe myestigation ctiarge sheet was filed before the Chlef Judk^ Msgistiate, Jai^gir who m turn Gommttted^ & fhe Court of Sessions, BUaspur from where leamed 3rd Additlonal Sesslons Judge (F.T.C.) Jaryigir reGeived fhe case ortfrarisfer feirtnal. In order to pKiye fhe guilt ofthe appeUant and 3 othfir eo-acGused persons prosecution exammed as many as 14 wttoesses. Acc^ed rpersons were exam^^ under V •• '.-.' .' :'" ' '•. ' • • • ; •:.'''• •.-:'•••"'•' ••••••• • • '• Section 313 of the Code •vyhere fhey denied fhe circumstances appearmgagaiiist tKem, innocency^^a^ faise implication.are claimed. After aEEbrdmg^ OppoTtynity pfhear^ while acquittmg the Gp-acGused p^ tM-other, mofher and lattiCT of^^^^^^t^ appellaHt leamed 3rd Additional Sesaons Judg& (F^T.G.) danjgiF Iias convicfed anfl seiitgnced fhe present appellant as afciremeiitioned. ^S^SSSSSL :^.^:;. ^SA Ifil ••^"f •.- 1;.':: ii'^y^ -.''s^ \.y ''••'. ft i'fS s>. 3S6 a ""a'tjfa 8. Shri Yogeshwar Shanna, leamed coiinsel for ttie appeUant and Shri N.K. Mehta, P.L. for fhe State/respondent are heard. Judgment impugned and record of Court belowperused. 9. Leamed counsel for the appeUant vehemently aTgued 4 : : • • . •: that in the present''Sase, appellant has lodged Marg tntunation relating to hangmg of his wife Laxmin Bai Ex. P-9. Prosecution has not coUected. arry evidence to show that present appellant has pressed fhe neck and has caused the death of Laxmin fiai by throttUng. Prosecution has also not adduced any evidence to show fhat appellaiife and deeeased Laxmin Bai were present in the faouse at ftie time of Commission of pfEence and any motnrefcfffhecomimssibnofofience. 10. The conviction is based on Gircumstantial evidence. tn case of conviction based on ctrcumstantial evldence, prosecution is required to prove fhe complete ehatn of circiimstances sufficient to prove the fact fhat only appellant has committed fhe ofience and except appeUant nobody has committed ftie aforesaid offence and would also sufficient to ruled out the possibiUly of his innocency but in fhe present case, prosecution has not proyed^ any chain of ctrcumstanees sufiBcient for drawiae an aforesaidmference. - - —.^-i V.'^^'-h^:,^ r'"^ *s '•^•~ 11. .l!t,, i'tl' 12. 13. Leamed counsel for the appellant placed reliaace in fhe luatter of State of M.P. v, Sanjay Ral1 in wNch Supreme Cozirt has held that conviction is based on circumstantial evidence of strangulation based on reference to some text books of medical jurisprudence ^ : : : but sych opiiiiori cafanot be placed on higher pedestal fhan optnion of expert examined in this Court, in such clreumstartces appeUant is entitled for acqulttal. Leamed counsel for the appeUant furtfaer placed reliance in the matter of Sashi Jena and Others v. Khadal Swain and Another2 tn which Supreme Court has faeld fhat only^^^^^^^to fhat deafh was homicidal is not sufficient for convicting the appellant for commission of culpable homicide aniounting to murder. Leamed counsel for tfae appellant also placed relianGe in fhe matter of State ofAndhra Pradesh v. Punati Ramulu and Others3 in whlch Supreme CourtKas held that deliberately delay in registenng fhe Eu'st Information Report and registration of such report after due deliberations, eonsultations and discussion is not Ftrst bifonnation Report and is hit by SeGtion 162 pf the Code. 1 '2004(2)0080916 • 2®Q4:(3)CCSC 732 31,993 C!RI-;I,.J. 3684. .^; .jf' /' 14. Leamed counsel^for the appellant also placed relianee in £he matter of State of U.P. v. Chhotey Lal and Others4 ta which High Cdurt of AUaIiabad has held that difference between time of occurrence and time given in postmortem report supported by defence ^ ' ' '• :' verskirimakB thfi case^bf proseeution suspkaous.l 15. Leamed counsel for fhe appeUant also placed rellanee in fhe matter of State of U.P. through C.B.L S.P.E. Lucknow and Another v. R.K. Srivastava and Others6 in which Supreme Court has held fhat Fu~st Infdrmation Report dld not contajn any definite accusaticin, itramciii.uiteci to an abuse of ftie prbGess of the Court and same is liable to be quaished iinder Sectfon 482 of ttie Code. 16. Leamed counsel for the appellant also placed rellance iii fhe matter of Davinder, v. State of Haryana aad Others6 lnwlu.ch High Coiirt of Punjab and Haryana. has held that mvestigation wifhout recording the First Infprmation Report is liable to be quashed. 17. Leamed counsel for fhe appeUant also placed reliance in the matter of L/NK. Mehara} Singh v. State o£U.P. and Kalii v. State of U.P. & Ora7 in wliich Supreme Court has beld fhat First InfiH-matton Report|is vital 41998eRI.L.J. 1075 'AIR 1989 SC 2222 1998-CRI.L.J.3787 7li(1994)eCR516(SC) .1 n •%8 :'^ %f-^^ "^^f^, and valuable piece ofevidenGe in murder case; delay in lodging First Infopmation Report r^sults in embeUlshment and creature afan after fhought. 18. Leamed counsel for fhe appeUant also placed Felianee in tKe matter of Ramesfa Chandra v. State of I^asthan8 tn,whicK High Court of Rajasthan has held that in absence of.coabectmg evidence, the aceused is ^. ! . " ! . entitledfbr aGquittaI. - ^ 19. Cto ^Q^ aQ]^^^^ respondeat/Statebpposedtl^appealandsubmitsthat conviction is based oh circumstantial evidence. As per Marg mtimatlon recorded at the instance of appellant deattiwas as a resiilt of hangtng but as per medical evideace^ deiath was ruat Eis a result of hangmg but was as a result of strangtiliatio^^^ a^ other injunfis. Appellartt was present at fhe time of such death/incident, he has not only failed to pfier the explanation that how sheL died but faas oQered feilse explanation whicK is additional liak of chaia sufiicient fbr drawmg the fact fhat oiily appellant has commttted fhe afbresaid oHence. 20. In ordertC) appreeiatefhe argtimentaidy^^ of fhe parties, weliave examiiied tllfi evideace adduCT^ onbehalfoft&eprosecytion. i ' 1998 CRI.L.J. 1994 "'''•i^^. -. :-"-:^ 21. In fhe present case, homicidal deafh as a result of injury of Laxmm Bai has not been substantially disputed on behalf of fhe appellant on flie other Uand, otherwise algo established by fhe evidence of FW12 Dr. Anita Shrivastava gs PW13 Dr. B.S. Ghandel and autopsy report Ex.. P-ll jn which PW12 Dr. Axiita Shrivastava has specifically deposed that Laxmin Bai has died as a result of sti'angulation. As per Marg intunation Ex. P-9 recorded at tUe instance of appellant when appellant went t6 hls house he saw the body of deceased.was hanging m his room, neck was tied by the rope and was hanging in hook attached to roof. On assiimpticMi, fais wife is ative and wifh a viewr to save her he Iiad cut fhe rope but whlGh was found dead.As per Ex. P-9 Maig intimation was recorded at fhe instanee of appellant. Cause ofdeathwas hangiag. This part is not a confessional statement therefore, tlus part is admissible in evidence relatmg to appeUant. No othec witness has deposed t&at he has seen tfae body hanging in the ropm of appellant. Appel]ant has not exainined aiiy defence witness to prove fhat toddy of deceased LaxminBaiwashaiigingm.tusroom. PWl^Dr. Anlta Shriyastaya a iiiemberj of team of doctors who had Gonducted autopsy has specifically deposed that 3 bFyj^es iri one side aiid ;2 bruises of :® :^- 10 \ : ; ^ : • - : • ' other sideOf the neck was found. No Ugature mark was found in the neck althoi^ti some diffuse bruises and abrasionwas fQund uifront and side ofttieneck.Ageof deceased Laxmin Bai was as per autopsy report 20 years. Iii case bo^y of deceased Laxmin Bai found in .^'„:.,,..;,: 1. ; . hai^mg position tH^n ttieEe must be clear Ugature mark around the neck inore deep and front side to superficial on back but no such clear distinguishable ligature Diark or anv Ugature mark was found on ftie neck of deceased Laxmia Bai interalia 5 contusions/ bruises were found pn the neck, lungs & liver was found lacerated, blood was found inside the plural cavity, peritoneuin and other part of the llbdy. Bone beneath andjaw was found fl-actured. These all injuries negates the factum of hanging and are su^estive of fhe facts that deceased Eaxmin Bai had died as a result of steangulation along withofher injunes found over her chest and face. In fhese circumstances, death was homicidal in iiature. VirtuaUy except this substantial ewdence, prosecutfon has liot adduced any substantial evidence except soine conversatkn pfthe appeUant wi£hotherwitnesses that ifKISwifewiUcometohishousethenIiew^ In the present case, appeUant has l<idged Marg mtunatton vide Ex. P-9 th wtuch 'he has; infaniied that body of 11 deeeased was foUnd hanging in his room and he had cut fhe rope but no sueh haaging mark or Ugature mark was found in the body of deceased. Per contra fhe marks of strangulation aad ofher assault were found tn the body of deceased Laxmin Bal. As per Ex. P-9, at the 1,1. time of such ineiderit appellant wi!I present In his :il. • : '- house alone and no oCher'person were present. In fhis cu^umstaiic^, Aie was under obll^tion to oSer sxplanation that how hiswife received injuries and how she died but instead of explaining the circiimstances appellaat has offered aforesaid false explanation of causeofdeathasahangmg. 24. In fhe present case, virtyally offence has comimtted in secrecy as held by fhe Suprem.e Court ui case of Trimukh Maroti Kirkan v. State of Maharashtra9, in case murder coiimutted insecrecy inside a house, the initial burden to establish the case would undoubtedty be upon the prosecution, but fhe nature and amount of evidence to be led. by it to establish the charge Gannot be of the same degree as is required in ofher cases 6f circumstantial evidence. Para 15 of the sald judgment reads as under:- "15. Where aa offeitGe like m.urder is cominitted in secrecy iuside aliouse/the iuitial burdentb •(2006) 10 SCC 681 s.. m i;i lit: iBi IMIIl inni 11:1 12 estabUsU'fhe case would undoubtedly toe upon the prpseGutioii, but fhe nature and amount of evideDce t& be led by ifliO estabUsh tfae chai^e caunot be of the same degree as is required ia otfaer cases (if circuiastantial evideace. The bTMdgn would df a cotnparatively lighter character. Inview ofSection 106 ofthe Evidence <t ' :'.;'- ; . ;',: . 1:;. Act there wiH^ a eorrespoxidingbuiden'ontte imnates 6f -ftie~'^.Bouse to give a cogient e^laaation as to Uow^fhe ciiine was eomnutte^ The iumates of the Uouse caaiiot get away by simply keepuig quiet and pfferiog no explanation on the supposed preimse that the burden to establish its case lies entirely; upoa fhe prosecution and fhere is no duty at aU on an atxmsed to ofl^ aay explauatjon.'' 25. Appellaiit v^ iind^^^x^ offeir satisfactoiy explanation aiid m al^nce of such satisfactoiy explanation, same would be adverse ciFcuiastance sufB.eient for drawing an mference that appeUant has autfaar of crime. > 26. In case of conviction is based oa Gircumstantial evidence, as per fhe settled law in order to convlct an accused based on the cireymstantial; evidence, fhe Supreme GS<xu^ in case of Dliaa^oy^^^^^^^CT StateofW,B.'"lhasheldthat:- 'Iiiacasetoased^^ncarcufflslantiaItwideEJce/^f^ cireuiusfaBces ^®6ni'which fhe conclusion of giult ^ to ^66diEsa^;^have uot oxiJy to^^^^^b establisB^ bWalsb "tfaat aU 1iie ci^^ Wi :;:li s/s 'lJSI -Sijlfil ^Ms^" VSK\ i?s%i: ^ 13 so established should be of a conclusive nature and consistent only vritb fhe hypofhesfa of fhe gtult of the accused. Those cucuiustaaces should not be capable ofbeiagexplauied by aay other hypothesis except the giult of the aecused and the ^ham. of fhe evidenee laust be so coiaplete as not to leave any reasonable ground 'i.f. ....•' • . '. • for the belief conslsteat wifh the inaocence 6f ^ •..'•.."'. fhe aceused. It needs "ao remlnder that legatly estabUshed . circumstarices and not merely iadignatibri 6f tfae court can ft>rm the basis of conviction aad (tie luore serious fhe cnme, fhe greater sliould be fhe care takeu to scrutiruze the evidence lest suspicion takes fhe place of proof." 27. Incaseofc<xiviGtionbasedoncircumstantialevldenc^ as held by fhe Supreme Gourt ul the case of C. Clian^ Reddy v. State of A.P.1, the prosecutioii is required to adduce evidence and such evidence must satistying the fbUowingtests: - (1) The circuinstances fi-om. wluch aa inference of guilt is sought to be drawn, must be cogently aad firmly established; (2) Those circumstaaces should of a defiiiite tendericy unerringly poiatiug towards the guitt ofthe accused; (3)' The circumstances taken cutuulativetyshould fbrm a chain so comptete fhat there is jDO' escape fixun llie conclusioa that withia jall humau probabUity tfae enmewas conuafttedjby the^ccused atid B.OIIC else; aud AIR 19§6'SC3390 : {1996) 10 SCC 193 ^ al a:- 14 (4) The eircAiistautial evidence ia order to sustain convietion inust be complete and incapable of explanatioD. of any otller hypothesis thau fhat of the guilt of the accused aud such evidence should not only be ponsistent wifh the guilt of , the accused but should be inconsistent with his irmocence. V. 28. In fhe present case, prosecution has proved foUowmg \, circumstances:- •" (i) Wife- of the appeUant died iu the house of appeUant. (ii) Laxmia Bai has died as a result of strangulation & injury and not as a result of haagiag. {ii^ AppeUant has pffered false explaxiatkm^^ & she has dffidas aresiilt;Dfharigiag. (iv) The ofFence was GOTntnitted ia sccrecy and appeUaat has not ofiFered any explanation as required under Section 106 of fhe Evidence Act. 29. In case of State 6f M.P. (Supra) Supreme Court has held that Coi.irt has relied the factum of strangulation on the basis ofreference tp some text books against fhe opmion of expert but in fhe present case, prosecutlon has adduced. the evidenee of expert whlch inspires coTifidence and trustwortfay therefore, case of State of M.P. (Supra) is distinguishable on the grounds offact 30. In casebf Sashl Jena and Others (Supra) prosGcution has not prSved onty^Iiomieidal deafh but has proved •V . .. •• '••- '.•••• ' ••• •• other clrcumstances agamst the appeUaht ineluding : i iis! s i 15 31. 32. 33. offeni^ false e^Ianation therefbre, case 6f Sashl Jena and Others (Supra) is distingulshable on the grounds offact. In case of State of U.P. (Supra) the tune of death and time expected tiiat as per postmortem was not telled ^ : :! '• •- : ': which is followed b^ ofher drcumstances against fhe prosecution but inthe present case, fhere is no dispute betweaa tune of deafh, such fact was not fbBowed by other suspicious circumstances fherefore, case ofState of U.P.(Supra) is distinguishable bn fhe grounds of fact. In case of Rannesh Chandra (Supra) in absence of connectmg evklence a^iiisfr the appellant accused Is entitled for acquittal but in the present case, proseGution Kas adducedstifficieht Gonnecting evldence therefbre, case of Rannesh Chandra (Supra) is distmguishableon fhegroundsoffa.Gt. In case af State bfAndhra Pradesh, State of U.P. throu^t C.B.I. S.P.E. Lucknow arid Another, Diroluder & L/NK. Meliaraj Sing^i (Suprs^ delay in recording First Infonnatloh Report, First Information Report recorded after deUberations, eonsiiltELtions and discyssion, the absence of deflnite accusation in First Infetrmation Report tnvestigation. wtthout recprding Flrst Informatlon Report has been held as fatal to '^'' ( .:».fi E-::'^' 1 «t». 16 34. prosecution includ.ing anti-tlmed First Information Report. In fhe present case, virtually fhe Ex. P-9 prompfly lodged Marig tntimation is aFirst Informatipn Report and Ex. P-2 the document recorded in the fonn ofFirst IirfoniiaHon Report is based on Gomplaint Ex. P- "i' . . -—— —„ 1. In the present caSe, (S&ntents ofEx. P-2 or Ex. P-1 is not a basis for positive endehce but circumstances specially based and attached to Ex. P-9 and autopsy report is basis for inference. If aforesald circumstances is considered together then oiily mference would be possible that present appellant had committed culpable homicide amounting to miirder pf hls wife I^axmin Bai and except appellant nobody has coamiitted fhe aforesaid ofEence and aforesald circumstances completely ruled out fhe possibility of tnnocency of fhe appeUant. After appreciating fhe evldence available on record leamed 3rd Additional Sessions Judge (F.T.C.) Janjgir has righfly convicted and sentenGed fhe appellant as aforementloned. On close scrutiny offhe evidence, we do not flnd any Ulegality iii the judgment impugned. Conviction of the api llant i's based on credible, clinching and legal evidence sustainable iirider the 1aw. Criminal appeal is i7 l^, '•w^. r^. ^ '^. w .^ .;..,:;?*' ' 17 VMl K devoid of merits.'Gonsequently, criminal appeal is Mable to be disinissed and is bereby dismlssed. Sd/- ^ Sharma Judge Sd/- t.L. JhaBwar Judge JM N