^ ^ - HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANT: RESPONDENT: Criminal Appeal No.464 of 1995 Kartik Ram, S/o Baisakhu Ram, Caste Rawat, aged about 30 years, R/o Village Koopar Thothapara, Potice Station Dantewada, Distt. Bastar (C.G.) Versus State of Chhattisgarh Through P.S. Dantewada. {Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Abhay Tiwari, counsel for the appellant. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (1-4-2010) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 24-9-1994 passed by the 1st Additional Sessions Judge, Jagdalpur in Sessions Trial No.76/94, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife Sundari, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without any iota of clinching and credible evidence, the trial Court has convicted & sentenced the appellant and thereby committed illegality. 3. Case of the prosecution, in brief, is that in the intervening night of 20-12-93 & 21-12-93 the appeltant demanded food from his wife Sundari (since deceased) which she refused, then they went to steep and at about 3 a.m. while Sundari was sleeping on floor, the accused took out a stone and thrown over her face and caused her instantaneous death. Laxminath (PW-1) - nephew of the deceased T" L <..: present in the house saw the incident and immediately went from the house and informed to other persons. Other persons came to the house of the appellant and the appellant fled from his house. Laxminath (PW-1) went to the Police Station along with other persons and lodged F.I.R. vide Ex.P-1 and merg vide Ex.P-2. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-4 prepared inquest over the dead body ofthe deceased vide Ex.P-5. Bloodstained soil, plain soil, one mat, one pillow and one big size stone of 20 K.G. were seized from the spot vide Ex. P-6. Dead body was sent for autopsy to Primary Health Centre, Dantewada vide Ex. P-7. Autopsy was conducted by team of doctors namely, Dr. V.P. Khunte & Dr. B.K. Tirkey (PW-6) vide Ex.P-14 and following injuries were found on the person ofthe deceased: - (l)Lacerated wound on right supra orbital region ranging 3 c.m. x 2 c.m. x 1 c.m. (2)Abrasion on right shoutder 4 c.m. x 3 c.m. (3)Abrasion below right ear 3 c.m. x 2 c.m. On internal examination, supra orbital bone & zeugmatic bone were found fractured, membrane of brain was found ruptured and mode of death of the deceased was coma. Spot map was prepared vide Ex.P- 8. Sealed clothes of the deceased were seized vide Ex.P-9. Stone was examined by Dr. B.K. Tirkey (PW-6) vide Ex.P-15 and blood like stains were found on the stone. Seized articles were sent for chemicalexamination vide Ex.P-12. 4. Statements of the witnesses were recordedunder Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Dantewada, who in turn, committed the case to the Courts of Sessions, Jagdalpur, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as eight witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circdmstances appearing against him, pleaded innocence and false implication. L i^. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment and record of the trialCourt. 8. Learned counsel for the appellant vehementty argued that this is an accident and the stone used as support of temporary roof felt on deceased Sundari and thereby, she sustained fatal injuries, but the appellant has been falsely implicated in the crime in question. Learned counsel further argued that even otherwise, if the case of the prosecution is admitted in its face value, case of the appellant does not travel beyond the scope of Section 304 Part-II of the I.P.C. on account of the injuries sustained by the deceased onsudden provocation. Learned counsel ptaced reliance in the matter of Hanmappa v. State of Karnataka {(2010) 1 SCC (Cri) 273 = (2009) 12 SCC 446} in which the Apex Court has held that at the time of quarrel between two persons, injuries caused by pelting stone shows that the accused has not caused injury with intent to cause death, but at the time of causing injury he was knowing the fact that the deceased may die, therefore, conviction would be under Section 304 Part-II of the I.P.C. Learned counsel also argued that in case of sudden provocation, no immediate provocation is required and injury may be caused after interval. 9. On the other hand, learned State counsel opposed the appeal and submitted that the appellant is the person who was under obligation to save & secure the life of his wife, but instead of securing & saving the life of his wife, the appellant himself has caused fatal injuries to his wife and committed the murder of his wife. The triat Court has rightly convicted & sentenced the appellant. 10.In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. ll.In the present case, homicidal death of the deceased as a result of fatal inj.uries sustained by her has not been substantially disputed on behalfofthe appellant, otherwise also established by the evidence of Dr. B.K. Tirkey (PW-6) & autopsy report Ex.P-14 which reveal that fatal injuries were found over face of the deceased including fracture of scalp & rupture of brain membrane and death of the deceased was homicidal in nature. l2.As regards complicity of the appettant in the crime in question/as per the case of the prosecution, Bhagchand (PW-2) - son of the deceased & the appellant who is a child witness aged about 6 years, is eyewitness to the incident, but he has not supported the case of the prosecution and the case is substantially based on circumstantial evidence. As per the evidence of Laxminath (PW-1), Bhagchand (PW-2), Warsa Suklu (PW-3), Sukman (PW-4) & H.P. Shukla (PW-5), dead body of Sundari was found inside the house of the appellant at 3 a.m. on the date of incident where the appellant was residing with his wife i.e. deceased Sundari & his son Bhagchand (PW-2) and on autopsy, death of Sundari was found to be homicidal in nature as a resultoffatal injuriessustained by her. l3.As held by the Apex Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra {(2006) 10 SCC 681}, if the offence was committed in the dwelling house, where the husband also resided and if the accused husband did not offer any explanation as to the injuries received by his wife or if the explanation is false, then there is strong circumstance which indicates that he committed the crime. Paragraphs 14 and 15 of the said judgment are relevant which read as follows: nl4. If an offence takes place inside the privacy of a house and in such circumstances where the appellants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of public Prosecutions (1944 AC 315 — quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh {(2003) 11 SCC 271}. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of teading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of [ ^^ the Evidence Act whichsays that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (6) appended to this section throws some light on the content and scope of this provision and it reads: "(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him." 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed.. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." l4.This is a special circumstance and it must be within the knowledge of the accused, therefore, in accordance with Section 106 of the Evidence Act, the appellant was under obligation to prove the fact that how his wife received injury and how she died. l5.While dealing with same question, the Apex Court in the matter of Dhananjoy Chatterjee alias Dhana'v. State of W.B. {(1994) 2 SCC220} has held that in case of offence committed in secrecy, the person who was present in such places is under obligation to offer explanation. l6.The act/offence has been committed in secrecy in presence of the appellant and the appellant is under obligation to prove/offer explanation in terms of Section 106 of the I.P.C. but he has not offered any explanation that how his wife died and how she sustained injuries. The prosecution has proved other circumstances that the appellant & the deceased were residing together and were present inside the house at 3 a.m. on the fateful night, and the deceased died as a result of ante-mortem fatal injuries sustained by her. In absence of any explanation on behalf of the appellant, the only inference that the appellant is the person who has committed the offence and caused the death of his wife and except the -^^^^MW^W.^^^; Soma 6 appetlant none less has caused injuries to the deceased, woutd possible. l7.After appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellant. l8.This is not the case of sudden quarrel and, therefore, the case of Hanmappa (supra), is distinguishable on facts to that of the present case. 19.0n close scrutiny of evidence, we do not find any iltegality in the judgment requiring any interference. The appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. 20.The appellant is on bail. He shall surrender immediately before the Court of 1st Additional Sessions Judge, Jagdalpur for serving the remaining sentence awarded to him in Sessions Trial No.76/94. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge