HIGH COURT OF CHHATTISGARH AT BILASPUR M Criminal Aggeal No.417/2003 APPELLANT w khan v.swas Vuss aout 0 Villa Rl! P5 Tcf ur (CG) I sha @ Kho h s/o em;- hwa aged b 5 years R/o, ge ave Abhanpur, (In jail) \ Sa're Chhafgar ough Police _ Sfa‘o npu lcf Rmpur- f fnsh Thr (C5) hn Abhar- Dlsw CRMINAL APPEAL UNDER SECTION 37 R OF THE CODE OF M I 4 _ CRIMI_NAL PROCEDURE Aeranc ppae - hrl Vm e l h r S od Rafhor counse for 1'e appellan' 5h Neem Meh'ra, Panel Lawyer for fhe Suf (‘1 ' ‘ H Hon'ble Division Shri Bench:— T.P. $harma , & Hon'ble Shri R.L.Jhanwar‘JJ ORAL ggDeMENT, 7 ‘ (28.08.2010) Per T. P. Shawna, J. 1. Challenge In This appeal Is To The Judgmenf of conwchon and - ordEr of senfence dated 110 2002 passed by The 1" Addmonal J Sessions Judge Ralpur- (CG) In Sessxons Tnal No 289/2002 whereby " land whereunder 1'he learned 1 Addrhonal Sesswns Judge affler holding ‘the appellan‘r guilly for commlssion of murder of'his molher- ‘ in law- Kusumbai, convic‘led The appellant under Section 302 of The DIsrI Ralp VERsus RESPONDENT r: J te. IPC and sen'renced 1-0 undergo imprisonment for life and To pay av , fine of Rs.2000/-, in defauh' of payment of fine 1’0 furWher undergo R.I. for 6 momhs. 2. The convicfion is impugned on ‘rhe ground Thu? wi‘rhouw any iofa of evidence, The learned Additional Sessions Judge has onvicfed and sen‘lenced The appellan'r ‘as aforementioned and 'l‘hereb commi‘ffed illegali‘l'y. y 3 Bief case of fhe prosecu‘rion is Thu-r Kusumbai (since v decead), mo‘iher in law of 1he appellant was residing with the ; appellant, his wife and children. On 24.3.2002, in between 11 - 12 O'clock in the night, the appellant assaulted Kusumbai, causing seral injuries resulting into her death. The incident was intimated by riy Vishwas (PW-9) wife of the appellant to Keshlal (PW-1), Kotwa. Keshlal lodged merg intimation vide Ex. P/1 and F.I.R vide Ex. P/2. After summoning witnesses vide Ex. P/3, inquest over the dead body of Kusumbai was prepared vide Ex. P/4. Spot map was repared vide Ex. P/10. Dead body was sent for autopql to Medical olle Hospital, Raipur, where Dr. 5.K. Dadu (PW-8) conducted autopsy vide Ex. P/12 and found following injuries: i. Abrasion over forehead of 10 cm Abrasion over face with haematoma in 3.5 cm‘area ‘ ii. Abrasion over right arm in 6.5 cm area i iv. Multiple abrasion over left arm and laceration over elbow of 3 cm and humorousvbone was found fractured. i > v. Multiple abrasion over chest vi. Multiple abrasion over knee joint c r se ve Pa r p Cge vii. Lacerd‘fed wound of 3 cm dinme‘rer over righf leg, fibiq and fibula bones were found fractured. viii. Muifiple abrasion over righ‘r forearm, and ulna bone was found fmcmred. Abrasion over right leg of 8 x 5 cm Mul‘ripie abrasion over- back, heama‘l'oma was found over neck, hyoid bone was found fraéiured Cause of deafh was shock as a resuIT pf aforesaid mulfiple injuries and deafh was homicidal in na'rure. The accused/appellant " was faken info cus'rody. He made disclosure sfafemenf of Bamboo sfick vide Ex. P/6. The same was seized from The appellan‘r vide Ex. P/7. Blood sTained and plain soil was recovered from ‘ihe sporvide Ex. P/8. Seized arficles were sen? for chemical examination and presence of blood was found over 1'he stick recovered from The dooeIIMf vide Ex.P/15. Sfafemenfs of fhe wifnesses were recorded under Secfion 161 of fhe Code of Criminal Procedure, 1973 (in short fhe Code). 4. AfTer complefion of invesfigafion, charge sheef was filed , before The J.M.F.C. Raipur, who in furn, commi'h'ed the rme fo ‘H'ie Cour‘i of Sessions, Raipur,’ from where, fhe learned 1“ Additional Sessions Judge received fhe case on fransfer for trial. ‘ 5. Vln order 1’0 prove fhe guil'r of The accused/appellant ‘prosecufion has examined as many as 9 wiinewes. z Accused/appellanf was examined under Section 313 of The Code, where he denied The circumsTances appearing againsT him, innocence and false implicaTion in crime in quesTion was claimed. 6. Afwr affording oppor‘runi'ry of hearing To fhe parties, learned 1" Addi‘l’ional Sessions Judge has convicted and sentenced the, appellanf as aforemen'rioned. 7. In_+he presenf case, deafh as a resul‘r of multiplefmc’rure and muHiple injuries has not been subs-ranfially dispufed on behalf'of " ‘rhe appellant .On fhe other hand, it is established by the evidence it of Dr. $.K.Dadu (PW-8) and autopsyreport Ex. P/12,_which revealed that hands, leg and ribs were found fractured, including fracture of Hyoid bone of the neck and death was homicidal in nature. ‘ 8. As regards complicity of the appellant in Crime in question is concerned, substantially the conviction is based on the' circumstantial evidence. As‘per evidence of "Piya Vishwas (PW-9), e wife of the appellant, the appellant came from outside and thereafter, she left the house along with her children. The appellant was present in the house and on second day morning, her mother was found dead. She has also deposed that at about 6.00 ta am, when the appellant was present in thehouse, her mother fell down from the cot and received inlury. Keshlal (PW—1), who has lodged the FIR deposed that at about 6.00 am, Piya Vishwas (PW-9), wife of the appellant came to him and told that the appellant has-7’ liilled his mother. He went to the house of the appellant; The t appellant was not present in his house. After some time, the appellant came. On asking from him, he made extra judicial confession that he has assaulted the deceased. As per evidencesof Lachhuram (PW-7), present appellant has not admitted hisguilt. The appellanf has no? offered any explana‘rion relafing 1’0 The injuries found over fhe body of fhe deceased. Keshlal (PW-1) and Piyu w Vishwas (PW-9) have furned hostile. 9. I‘r is an admiffed fac'r ‘rha+ at fhe fime of incident i.e. in 'the infervening nighf of 23.3.2002 and 24.3.2002, only 1he deceased and “rhe appellanfwere presen'r in The house of the appellant The deceased received mulfiple injuries including fracture of leg, hands and neck and died infrhe house of ’rhe appellant The appellant has nof offered any explanafion. ‘Admi‘Hedly, the offence has been ‘- commi‘l’ted in secrecy and The appellant was under obligation to ‘ explain the circumstances in terms of Section 106 of the Evidence/y Act, but he has not offered any explanation. 10. While dealing with the offence committed in secrecy and requirement of explanation in case of Tnmukk Mfi fir/ran V V 57‘afe of Maharashrra (2006) 10 562' 681 In case murder- committed in secrecy inside a house, the initial burden to establish) ; the case would undoubtedly be upon the prosecution, but the nature i 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 r circumstantial evidence. Para 15, of the said‘udgment reads‘as under : 15. Where an offence like murder is committed in i secrecy Inside a house the initial burden fa esfuh/idr ‘52: the case would undoubtedly be upon the prosecution but the nature and amount of ewdence to be led by If to establish the charge cannot'be of the some degree» l t as Is renamed In other cases of circumstmtlal ‘ j \ evidence. 771a burden wouldofa compararive/y liqhfer i ~ ‘ chamcfer. In View of Secfion 106 of fire Evidenae‘ Acf #rere will be burden an fhe Acf a carreqyandrhg inmafes of fhe hau£ fa give a cagenf em/anarioh' as fa how rhe crime was cammiffad. 7713 inmafes ofuiha‘ ‘ " house cannaf gef away by simpél keeping quiet and offering no ew/anafion an fhe suppbsedpremis‘e ifmt : fire burden fa esiub/ish ifs case lies enrinely upanyifie r ., ,, and fhere is no wiy of all on an aceuxd ‘ prosecution fo offer any ew/anafion". 11. In fhe presem' case, fhe circumsfonces proved'\@ainsf fhe appellant showed fha? of “(he fime of offenceaonly 1he appellan'r was 3 a presem in the house wifh ‘rhe deceased Kusumbqi and she has receiyed‘mul'riple injuries, resJH'ing info her death. Inobsence of '7 any explano'rion, only hypothesis would be possible fhn'l' The oppellom has caused injuries To The deceased resul‘ring info her dea‘ih. i 7, 12. After appreciafing ‘rhe evidence available on record, the i ‘ a learned Addifional Sessions Judge has convicted and senfenced 'ihe appellani as aforementioned. 51 13. On close scrufiny of 1he evidence, we do no? find any illegali'ry , in fhe warran‘ring .in‘rerferenoe by or infirmiiy judgmeni’ impugned, This Court 14. Consequen‘ily, fhe appeal devoid of merifs is liable +0 be l dismissed and if is hereby dismissed. / ' so. ell l sw- musHARMA; k Judge R.L. Jhanwar \ ‘2 Mg? \5 I)