HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram : Hon’ble Shri T.P. Sharma & Hon’ble Shri Rangnath Chandrakar, JJ, Criminal Appeal No. 673 of 2003 Appellant Jairaj s/o. Late Uttam SinghBani Vs. Respondent State of Chhattisgarh. JUDGMENT FOR CONSIDERATION Sd/- RN. Chandrakar: Judge Hon’ble Shri T.P. Sharma, J. a’w—M POST FOR JUDGMENT ON Qg -9-2011 sw- ' T.P. SHARMA- Judge hW"*r&“‘~r ;‘ ’ * ~ , v ' :Vz: w HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENcFI: Coram: Hon’ble Mr.T.P.SHARMA & Hon’ble Mr.R.N. CHANDRAKAR, JJ. Criminal Appeal No. 673 of 2003 Appellant Jairaj S/o Late Uttam Singh Bani, aged Accused about 26 years, Occupation — Private (In Jail) Service, R/o Behind Den‘a Bank, Near Water Tank, Kharora, Thana Kharora, Raipur (C.G.). Versus State of Chhattisgarh Respondent (Criminal Appeal u/S.374 (2) of the Code of Criminal Procedure, 1973) ' Present:- Mr. Arun Kochar, counsel for the appellant. Mr. J.A. Lohani, Panel Lawyer for the State. JUDGMENT (Delivered on 2Q +'1 September, 201 1) Per Rangnath Chandrakar, J.:— . The appellant has preferred this appeal under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 30.04.2003 passed in Sessions Trial No.469/2002whereby learned VIII Additional Sessions Judge, Raipur (C.G.), after holding the appellant guilty for committing murder of his own mother — M. Bani (sincedeceased), convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment WW ”g as for life an to pay fine of Rs.1,000/—, in default f yment of fine to d o pa furth undergo R.i. for one month. . The prosecution story, n b that appellant Jam Ba along h s ter Sushma Ban (PW/1 Verm compounder worng n hosal Kharora and Sukhchand Mande went to police station, Kharora and gave oral report that on 22.07.2002 deceasd was doing official rk at home and went to drink water. he felt dizziness, becae unconscious and fell down Appellant rushed to her and saw inju Sid his M i di t ititio Vid x 8 tigtin ry over back e of head of mother Ban who ed on the spo Merg nman was recorded e E P/ invesag officer left for scene of occurrence, after summoning the witnesses vide Ex.P/9-, inquest over the dead body of deceased was prepared vide , Ex.P/10. Nazri naksha was prepared by Patwari ’tride' Ex.P/1. Dead body of deceased was sent for autopsy to Govt. Hospital, Kharora vide Ex.P/8-A where Doctor RR. Banjare (PW/4) conducted postmortem vide Ex.P/Q and found the following injuries: i) Lacerated wound of 2 inch length x 1/2 cm width over upper left parietal bone. i'i) Abrasion of 1 1/2 x 1cm over leftvand right side of nose. Two abrasions of 1 1/2 x1 1A cm over left side of neck. iv) One contusion of 10 cm below left ear lobule. v) ‘ Where injury No. 4 ends below right ear there were three contusions and abrasions of irregular size 1 3/4 cm x % cm, 1 1/2cmx1/2cm, &2cmx1 cm. The doctor opined that the cause of death was asphyxia due to strangulation. er I rief is air ni wrt hi Sis i ) J P a ki i pit e wo é m A é. After receiving the postmortem report EXP/9, offence under Section 302 was registered and the F.l.R. EXP/15 was iodged against the appellant. The accused/appellant was taken into custody. He made disciosrt statement vide Ex.P13 and wooden ‘khute/a’ and ‘nylon thread’were seized at his instance vide Ex.P/14. . Statements of witnesses were recorded under Section 161 of th Cr.P.C’ After completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Raipur, who in turn committed the case to the Court of Sessions Judge, Raipur, from where the case was received by learned 8‘“ Additional Sessions Judge (FTC), Raipur for trial who framed charge under Section 302 of the IPC against the appellant Jairaj.‘ The appellant abjured the guilt. . in order to prove the guilt of the appellant, prosecution examined as many as 14 witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and pleaded innocence and false implication. . After affording an opportunity of hearing tothe parties, the learned 8‘“ Additional Session Judge convicted and sentenced the appellant as aforementioned. i . We have heard learned counsel for the parties and perused the record of the trial court and also the impugned judgment. . Shri Arun Kochar, learned counsel for the appellant vehemently argued that conviction of the appellant is based on evidence of Sushma Bani (PW/1), sister of appellant and daughter of deceased, e Nilambu Chandrakr PW/5), Firtu Ram Thakur (PW/6), Mahendra j a ( Kumar (PW9) and Alwis John (PW/1‘0). He also argued that conviction is based on circumstantial evidence d there is no eye witness to the incint and there was no motive to commit the said offence. He de further argued that the piece of stone was not hown i the map Ex.P/1 which was prepared by Firtu (PW/6). He ao argued that findings o the lower court on the face of it are perverse ad contrary f n to lw. Evidence of iestigating Officer (PW/13) and octor R.. a nv D R Banjare (PW/4) s not corroborated by the circumstantial evidence. i . Per contra, Shri J.A. Lohani, learned Panel Lawyer for the State supporting the impugned jugment submits that conviction of the d appellant well founed and Court below has gtly convicted and js d rih sentenced the. ppellant as aforementioned. a . ln order to appreciate the arguments advanced on behalf of the parties, w have examined the evidence available on rord. e ec In te present case, the deceaed died ue to asphyxia as a result of h s d ante-mortem injuries over back side of head and around the neck. As per the evidence of Dr. S.R. Banjare (PW/4) the deceased died due to asphyxia as a result of strangulation. Thus, the death of deceased was homicidal in nature which is also evident from autopsy report EXP/9. 11. Admittedly, there is no eye witness to the incident and the conviction of the appellant is solely based on circumstantial evidence. On going through the evidence on record, it is clear that at the time of incident v only the appellant was present in the house with the deceased which an s n ls is corroborated by Sushma Bani (PW/1). As per the evidence of Sushma Bani (PW/1) on the date of incident when she returned from the market at about 4.00 to 500 p.m., she found that the appellant was sitting in the house holding the head of deceased. On being asked, the appeliant replied that the deceased fell down because of vertigo as a result of which she sustained grievous injuries over head. On this, she called Doctor Devsingh Verma (PW/2) who after examination declared the deceased to be dead, thereafter the report was lodged in the police station. Her version is also corroborated by Dr. Devsingh Verma (PW/2) to the extent that when he went to see the deceased, she was dead. lWv ‘ . 12. The merg intimation EXP/8 was given by the appellant stating that his mother fell down on the floor due to dizziness and sustained injuries on the back side of head which resulted into her death. The offence under Section 302 of the IPC was registered against him only after receiving the postmortem report (EXP/9) wherein it was mentioned that the death was caused due to asphyxia as a result of strangulation. The evidence of Dr. S.R. Banjare (PW/4) in this regard remained unchallenged by the defence. The deceased was a staff nurse by profession and working under Dr. S.R. Banjare (PW/4) who had also gone to the house of deceased after hearing about the incident before conducting the autopsy. In para 15 of his deposition the Doctor stated that when he went to see the deceased, the dead body was covered with a shawl and there were blood stains on wearing apparels of the appellant. On inquiry, it was stated out by the appellant that after sustaining injuries by his mother, he was sitting by putting the head of ¢ , his mother on his Iap, therefore, his clothes got blood stained. On the basis of the aforesaid appreciation of the evidence, it is clear that at the time of incident except the appeiiant there was nobody in the house with the deceased. In such a situation, the appeiiant was under obligation to offer categorical explanation regarding the injuries found over the body of deceased to satisfy the conscience of the court, specifically in view of the opinion given by the doctor that the cause of death was asphyxia as a result of strangulation. . The appellant in his statement under Section 313 of the Code though admitted to lodge merg intimation regarding death of his mother (question No.31 onwards), denied/showed his ignorance about the summons issued to the witnesses vide Ex.P/9, inquest over the dead body vide EXP/10 and requisition for postmortem report etc., despite his signatures were present on the aforesaid documents. These circumstances also put heavy burden on him to offer explanation of each and every circumstance appearing against him. The appellant X was under obligation to explain as to how the-mark of strangulation other than the head injury was found over the body of the deceased, if the story as projected by the appellant is accepted. It is needless to say that the appellant not only failed to‘explain the aforesaid fact but also offered false explanation regarding the injuries. He further denied to know about issuance of summons to the witnesses for inquest, preparation of inquest and sending of the dead body for postmortem etc, as mentioned above which again falsify his innocence. 14. In the matter of Trimukh Maroti Kirtan vs. State of Maharashtra1 interpreting the provisions of Section 106 of the Evidence Act, Hon’ble the Supreme Court held as under: n . if an offence takes place inside the privacy of a house and in such circumstances where the assaiiants have ail the opportunity to plan and commit the offence at the time and in circumstance 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 Court. A Judge does not preside over a criminal trial merely to see that innocent man is punished. A Judge also presides to see that a guilty man does not escape. 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 it required in other cases of circumstantial evidence. The burden would be of 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 suppose premise that the burden to establish its case likes entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In case of no explanation or false explanation it would because an additional link in chain of circumstances.” Further. In the matter of State of Rajasthan vs. Kashi Ram2, Hon‘ble the Supreme Court held as under: “Whether an inference ought to be drawn under Section 1.06 is a question which must be determined by reference to facts proved. lt is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. The respondent, accused having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by S. 106 of the Evidence Act. This circumstance, therefore, provides 1 2006 AIR ’scw 5300 2. 2006 AIR scw 5768 the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt. The Court further held that: u ...... The Principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain”. ga ga u 16. The other aspect of the case which requires to be considered is the motive. Definitely, the question arises in the mind of a common person that how and why a son» would commit murder of his own mother. In this regard, the evidence of PW/1 Sushma Bani and PW/5 Nilambul Chandrakar requires to be appreciated. Both the witnesses stated that Rs.1 ,00,000/- was deposited by the deceased in the name of her son i.e., the appellant who misused the money. The deceased objected the act of the appellant which was plausible motive for commission of murder of his mother as the appellant was unemployed and depended Upon the deceased. The incident might have been ,. é? r taken place on a sudden and grave provocation on a spur of moment but in absence of any explanation offered by the appellant and also for producing false explanation, the benefit cannot be extended to the appellant and his conduct points only towards his guilt. The evidence adduced on behalf of the prosecution is sufficient for drawing inference that the present appellant has caused homicidal death of his mother and after appreciating the evidence available on record the court below has rightly convicted and sentenced the appellant as aforementioned. . Considering all the aspects of the matter, on a close scrutiny of the evidence and also in view of the principles laid down by the Supreme Court in the aforesaid case laws, we are of the considered opinion that the court below has not committed any illegality orinfirmity in passing the impugned judgment. Raju .. 18. Accordingly, the appeal being devoid of merit is liable to be dismissed and is accordingly dismissed. K i Sd/- ¥ a Sly. , fl RN. Chandrakar . ‘ g g Kai musaARNm Judge ' Judge v‘x,