W HIGH COURT OF CHHATTISGARH AT BILAsPUR Criminal Agpeal No.3512004 AFPELLANT Devlal s10 Amamath Kewat, aged about 26 years, Resident of ViHagc Baghod, RS. Dhabra, District Janjgir Champa (CG) VERSUS RESPONDENT State of Chhattisgarh CRIMINAL APPEAL UNDER SECTION 374 2 OF THE CODE OF CRIMINAL PROCEDURE Aypearance: Shn‘ Hamida Siddique, counsel for the appellan. Shli D.K. Gwalre, Government Advocate for the State. Division Bench:~ Hon’ble Shri T.P. Sharma & Han’ble Shri R.L.Jhanwar,JJ ORAL JuDGMEm (10.02.2010) Per T.P.Sharma, J. 1. Challenge in ’rhis appeal is to the judgment of conviction and order of‘ sentence dated 12.122003, passed by the Additional Sessions Judge, Sakti, District Bilaspur in Sessions Trial No. 266/2002 whereby and whereunder the learned Additional Sessmns Judge after holdmg the appellant guxlty for comnussxon of culpable hom1c1de amountmg to murder of hls w1fe Dllkuman conv1cted the appellant under Secuon 302 of the IPC and sentenced to undergo unpnsonment for hfe and to pay a fine of Rs 1000/ m default of payment of tine to further undergo R I for 3 months ' t ”Wu 2. The judgment impugned is challenge& on the ground that without any iota of evidence, the leaxned Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 8. Prosecution case in brief 1's that on the fateful day of 25.4.2002, after 4 days of the marxiage of the appellant with the deceased, in the hrst night, the appellant and the deceased Wexe present inside the room and dead body of the deceased was found in the house of the appellant. The appellant made extra judicial confession to his uncle Pujarilal Kewat (PW—7) that he had committed murder of his Wife on the ground of his impotency and he also made extra judicial confession to Ravishankar Chouhan (PW-1). Ravishankar Chouhan (PW-1) went to Police Station and lodged the report vide Ex. P/ 1. Merg was also recorded The Investigating Officer left for the scene of occurrence and after summoning Witnesses, inquest over the dead body of the deceased was prepared vide EXP/7. Spot map was prepared vide Ex. P/8. The dead body was sent for autopsy to Assistant Surgeon Government Hospital, Dhabra vide Ex. P/ 14‘ Autopsy was conducted by Dr. Shashikala Miri (PW—9) vide Ex. P/ 15 and found following injuries : i. One lacerated wound of 3 5’2” x 1" x bone deep over the chin i, to angle of right mandible bone having sharp margin. n One stab wound of 2cm x 2cm x 3 V2 cm circular like over the right side of the neck. 1n Vagina admits one hnger an The Doctor opined that the cause of death was shock as a result of excessive haemorrhage and the death was homicidal in nature. On 25.4.2002 i.e. on the date of lodging of the F.I.R., the appellant was taken into custody. He made disclosure statement of one cutter vide Ex. P/2 and the same was recovered at the ‘1” instance of the appenant along with blood stained shirt vide EX. P/3. The accused/appellant was anested vide Ex. P/4. Blood stained soil and plain soil was recovered along with bed shect vide Ex. Pl6 mm the spot. List of articles given in dowry at the time of maniage is Ex.P/5. The appellant also tried to commit suicide and burn himself. He was examined by Dr. J.R. Ghn'tlahare (PW-14) vide EX. P/ 19 and found burn injuries over his chest and clavicle bone, hands and legs. Seized alu'cles were sent for chemical examination and presence of blood over the cutter and clothes of the accused/appellant was coniirmed vide F.S.L. report Ex. Pl 20. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short “Code”). 4. After completion of investigation, charge sheet was tiled before the Judicial Magistrate First Class, Sakti, who in turn, committed the case to the Court of Sessions, Bilaspur, from Where the learned Additional Sessions Judge received the case on transfer for trial. 5. In order t0v prove the guilt of the accused/appellant, prosecution has examined as many as 16 Witnesses. The accused was examined under Sech'on 313 of the Code, in which, he denied the circumstances appearing against him and pleaded innocence and false implication. He has also taken the defence of alibi that at the time of incident i.e. in the intervening night of 24.4.2002 and 25.4.2002 he was not present in his house and at that time he had gone to Village Faguram to attend the marriage. He has also examined Roshan Kumar Teli (DW- 1), who has deposed that at the time of incident, the appellant was with him and they have attended the marriage. n, 6. After affording opportunity of heming to the parties, the learned Additional Ssssions Judge has convicted and sentenced the appellant as aforementioned. 7. We have heard Smt. Hamida Siddique, leanxed counsel for the appeliaut and Shn‘ D.K.Gwalre, leamed Government Advocate for the State, perused the judgment and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that the case of prosecution is based on circnmstantial evidence and prosecution has adduced the evidence relating to following circumstances z i. Extra judicial confession made to Ravi Shankar Chouhan (PW-1) and Sunder Sai Banjaie (PW- 12), but those witnesses have not confirmed the extra judicial confession made by the appeliant to them. 11 The appellant and the deceased weie present inside the room at the time of incident and appellant has not oifered any explanation. in The appellant has oh‘ered false explanation and has taken false defence of alibi. Learned counsel further argued that Ravi Shankar Chouhan (PW— 1) and Sunder Sai Banjare (PW-12) have not deposed in their evidence that the appellant has made any extra judicial confession to them. As regards the other circumstances are concerned, the appellant was not present at the 1jn1'e of incident and he had gone to village Faguram to attend marriage of his niend- Tejram and wi‘hen he returned back then he came to lmow that somebody has murdered his wife. She further argued that prosecution has not proved the motive of the appellant, which is sine qua non. In case of circumstantial evidence, prosecution has tried to adduce 2 sets of evidence that the appellant was impotent and he has demanded dowxy. The incident took plaCE inside the room. It appears that at the spur of moment on sudden provocan‘on, the appellant would have caused the injury to the deceased not with intent to cause her death, therefore, if the case of prosecution is admitted then even the act of the appellant does not travel beyond the scope of Section 304 Part II of the IPC. 9. On the other hand, learned counsel for the State opposed these arguments and submitted that this is a case of brutal murder of the wife by the appellant that too on the day of hrst night of their marriage. The appellant has used the chopper, an instrument of cutting grass and assaulted over the neck and face of the deceased and also fled away, which shows his grave intention of causing the death of the deceased. He further submitted that the appellant has not oEered any explanation as required under Section 106 of the Evidence Act and has oEered false explanation, which is also an additional circumstance. Even after commission of offence, the appellant has tried to commit suicide, which is admissible against him under Sections 6, 7 and 8 of the Evidence Act. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death of the deceased as a result of fatal ante mortem injury has not be substantially disputed by the appellant. On the other hand, it is established by the evidence of Dr. Shashikala Miri (PW—9) and autopsy report EX. P/ 15 which revealed that 2 fatal injuries were found over the neck and face of the deceased and death was homicidal in nature. ’ a” 12. As regards complicity of the accused] appellant in cn‘me in question is concerned, the conviction is based on following circumstances i. Ex_tta judicial confession made to Ravi Shankar Chouhan (PW-1) and Sunder Sai Banjare (PW— 12). 11 The appellant and the deceased weie present inside the room at the time of incident at night and Wife of the deceased was found dead as a result of injury. m The appellant has not offered any explanation that how the deceased received injuxy interalia the appellant has odered false explanation of alibi. 13. In the present case, Ravi Shankar Chouhan (PW- 1) has lodged the F.I.R. vide Ex. P/ 1 and he has not deposed anythingto show that the appellant has made any extra judicial confession to him. Sunder Sai Banjare (PW-12) has deposed in para 2 of his evidence that the appellant made extra judicial confession to him that he has killed his wife, but in para 5 and 7 of his cross examination he has specifically deposed that the appellant has not made any extra judicial confession before him. Although, he has made confessional statement to Police. Prosecution has not adduced any other evidence in support of the extra judicial confession. The confessional statement made by the appellant to Police is not admissible in evidence in terms of Sections 25, 26 and 27 of the Evidence Act except relating to discovery of fact. As relating to other circumstances is concerned, Ravi Shankar Chouhan(PW-l) has deposed in his evidence that the dehd body of the deceased was lying in the verandah of the appellant’s house and injury was present over the neck of the deceased and he went to Police Stationand lodged the report. Punichand Sawara (PW—3) has also deposed the same thing and he has also deposed that at that time, he has not talked to Devlal. Vinod Kumar Choudhaly (PW-4) has deposed that the appellant has manicd with the deceasad on 21.4.2002 and her dead body was found on 25.4.2002 ie. after 4 days of the marriage. Sunder Sai Banjare (PW-12) has deposed in his evidencc that he went along with Pitambar to the house of the appellant. The dead body of the deceased was lying in the inner part of the house. Father and mother of the appellant were not present in the house. The appellant was sleeping in Khalihaan adjoining to his house. They asked the appellant, but at that time, he was sleeping. Aher some time, when he woke up, then they asked Devlal about the incident. Ravi Shankar Chouhan (PW-1), has deposed that he has lodged F.I.R. vide Ex. P/ 1. The F.I.R. also reveals that the marriage of the appellant with the deceased was solemnized on 21.4.2002 .and the deceased was found dead in the intervening night of 24.4.2002 and 25.4.2002. The appellant has examined defence, witness Roshan Kumar Teli (DW—l), who has deposed that at the time of incident the appellant was with him in one maniage function. In his cross examination he has admitted that one hour will take to go from Baghod to Faguram wheie the maniage was solemnized. In the light of EX.P/ 1 and evidence of Sunder Sai Banjare (PW-12), it is clear that the deceased has been killed in the fiist night of xher marriage and the appellant was present in house. Roshan Kumar Teli (DW-l) has tried to show that the appellant was not present in his house and he was present with him. The evidence of Roshan Kumar Teli (DW- 1) is not teliable. It is clear thatqthe present appellant has on‘eted false explanation and has taken false defence of alibi, but taking this false defence, itself is not suflicient for drawing an inference against the appellant. Evidence of Dr. J.R. Gritlahare (PW-14) and Ex. P/ 19 revealed that on 26.4.2002, the appellant was examined by him and burn injury was found over the body of ths appellant, which shows that he has attempted for suicide. 14. As regards the question of motive is concemed, prosecution has not adduced any dehnite evidence, but Ex. P/ 1 reveals that the incident took place in the nxst night of the maniage of the deceased. Autopsy report and evidence of Dr. Shashjkala Miri (PW-9) in para 6 of her evidence revealed that vagina of the deceased admits one finger. The same is suggestive of her virginity and is suEcient for drawing an inference that the marriage has not been consummated. The evidence adduced on behalf of the prosecution clearly reveals that the appellant was present inside the room in the first night of their marriage and he is the only person who has caused fatal injury to his wife and has not consummated the marriage. Non— consummation of marriage is also suggestive of the fact that either the appellant was impotent or there was some cause for non-consummation of the marriage. ’I\vo fatal injuries were found over the head of the deceased, which shows that the appellant has caused repeated injury, which is sufdcient for drawing inference that the appellant has caused the injury with intent to cause the death of the deceased, 15. After appreciation of the circumstantial evidence adduced on behalf of the prosecution, the learned Court below has convicted and sentenced the appellant as aforementioned. Admittedly, the oEence has been committed in secrecy and the appellant was under obligation to Oder explanation under Seétion 106 of the Evidence Act, but he has not oh‘ered any explanation. In absence of any explanation as held in the matter of Dhwm Chutteriec Versus state of W.B.,reported in £1994) 2 SOC, 220, the aforesaid circumstances are adverse against the appellant and are sumcient for drawing an inference that the appellant was the only person and author of the crime. The conviction of the appet is based on credible and clinching evidence, sustainale under law. 16. On close scrutiny of the evidence, we do not nnd any illegality or impropriy in the conviction, required any interference by this Court. 17. Consequently, the appeal is liable to be dismissed and it is llan b et . I l . hereby dismissed. nnfc my“ ‘ e nnfc I. sw. Sd/- 1 - TVESHARMA' Judge * R.L. Jhanwar Judge ~.n—.mra V: 1.