HIGILCOURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: APPELLANT (IN JAIL) RESPONDENT HON'BLEMR. T.P. SHARMA& HON'BLE MR. N.K. AGARWAL, JJ. CRIMINAL APPEAL N0. 1025 OF 91 Shobhitram son of Jhadiram Binjhawar, aged 30 years, resident of Mongra, Police Station Bsinki Mongra, District Bilaspur, M.P. Versus 1. State of Madhya Pradesh through Police Station Banki Mongra, Bilaspur, M.P. MEMO^ANDUM OF CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973. Present:- Smt. Savita Tiwari, Advocate for the appellant. Shri Sandeep Yadav, Dy. G.A. for the State/respondent. ORAL-JUDGEMENT (Passedon 22/02/2010) The following iudgment of the Court was passed by T.P. Sharma^ J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 23/10/91 passed by Sessions Judge, Bilaspur in Sessions Trial No. 17^/91 whereby and where under after holding the appellant guilty for the commission of culpable homicide araounting to murder of his wife deceased Bhukhaibai alias Bandhanbai convicted the appellant "R. under Section 302 of the Indian Penal Code and sentenced imprisonment for life. Conviction is impugned on the ground that without any iota of evidence Court below has convicted and sentenced the appellant aforementioned and thereby committed an illegality. Case of the prosecution, in brief, is that deceased wife of the appellant was residing with appellant in his house situated at village Mogra District Bilaspur. On fateful day of 12/3/90 appellant was assaulting his wife between 8 to 9 P.M. PW5 Chhatrapal Singh tried to intervene but he also received injury over his head then he went to his house on second day morning the dead body of the deceased was found in the house of the appellant in injured condition. PW1 Mohitram went to the police station and lodged the First Inforniation Report vide Ex. P-1 . Marg was also recorded vide Ex. P- 14. Investigating Officer left for scene of occurrence and after sunimoning the witnesses vide Exs. P-15 8s P-16, inquest ove-r the dead body of the deceased was / prepared vide Ex. P-7. Dead body was sent for autopsy to Primary Health Center, Banki Mongra vide Ex. P-12. Autopsy was conducted by PW8 Dr. R.S. Kanwar vide Ex. P-12A and found following injuries:- •<.' Ji —^.•N ..ps\^! ^ f€'» t&{ 'l, i^.^y 4. (i)-Lacerated wound over right teraporal region of 1" x %" x 1/4", (ii)-Contusion over left temporal region of 2" x l", (iii) Contusion ef right upper SE lower lids swollen, (iv) Contusion of right whole breasts, (v) Contusion over back (over and below) scapula. They are long and 4 in number of 5" x Va" tO 3" X 1/2», (vi) Three long contusions over right lower back of 6" x Vs" to 4" x 1/2", (vii) Open fracture of right middle of ulna, (viii) Pour lacerated wounds over anterior aspect of middle third of left lower limb, of 2" x 1" to 1" x l", (ix) Contusion in the middle third and lateral aspect ofrightlower limb (tibia) of 2" x l", (x) Fracture of 3rd Ss, 4th ribs on right side. There was large haemotoma below the skull on right temporal region, brain matter was contused eu-id injuries over the lungs. Mode of death was shock as a result of mjury. Blood stained 85 plain soil, broken pieee of bangles were recovered fFom the spot vide Ex. P-3. One underwear of / the appellant was recovered vide Ex. P-4. Appellant was taken into custody. He made discloser statement of stick vide Ex. P-9, same was recovered at the instance of appellant vide Ex. P-8. Appellant was arrested vide Ex.. P-10. One petticoat and Sari stained with blood •;'^3^^. .,;';. :a4'~*^", *'.••' "^fc "; :B'-SSS& :•.,. ."»•'y^ were recovered from the house of the appellant vide Ex. P-17. Seized articles were sent for chemical examination vide Ex'. P-18. Patwari prepared spot map vide Ex. P-20. 5. Statement of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Katghora who in turn comm.itted the case to the Court of Sessions, Bilaspur. 6. In order to prove the guilt of the appellant/accused prosecution examined as many as 10 witnesses. Accused was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. 7. After affording an opportunity of hearing to the parties learned Sessions Judge has convicted and sentenced the appellant as aforementioned. 8. ^. Learned counsel for the appellant Smt. Savita Tiwari and learned counsel for the State/respondent Shri / Sandeep Yadav, Dy. G.A. are heard. Judgment impugned and record of Court below perused. 9. Learned counsel for the appellant vehemently argued that case is based on circumstantial evidence and .prosecution has not proved the chain of circum.stances ,.;..-"*if<!'' /:;'A '"S '^ "frlSte. ii '^"^^ ?: ^.-/' •.lnis"';'' sufficient for drawing an inference that appellant was a person who was committed the offence and except appellant nobody ha's committed the offence, although this is a offence 'committed in the house of the appellant but dead hody was found in the open courtyard therefore, appellant was not liable to offer any explanation. 10. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that on the date of the incident appellant has assaulted the deceased Bhukhaibai alias Bandhanbai at about 8-9 P.M. and during intervening night of 11/3/90 8s 12/3/90, deceased Bhukhaibai alias Bandhanbai died as a result of fatal injury in the house of the appellant. Appellant was under obligation to explain the circumstances that who has caused the injury to the deceased and how she died as required under Section 106 of the Evidence Act. In absence of such explanation aforesaid circum.stances is against the appellant and is sufficient for drawing an inference that appellant was a ^ / person who has committed the offence. 11. In order to appreciate the argument advanced on behalf of the parties we have exacained the evidence adduced on behalf of the prosecution. •»t ^•«'. "•"^. ^lv'.-''^^" •''. ;JL • "".: --.^...•4 ^*. 12. In the present case hom.icidal death of the deceased as a result of ante-n'iortem fatal injury has not been substantially disputed by the appellant, on the other hand, also established by the evidence of PW8 Dr. R.S. Kanwar and autopsy report vide Ex. P-12Awhich reveal that ribs were found fractured. Ulna bone was found fractured and injuries were found on the lungs. Death was horaicidal in nature. 13. As regard the complicity of the appellant in crime in question is concerned the conviction is based on circumstantial evidence. In case of circumstantial evidence prosecution is required to prove that all chain of circumstantial evidence so coraplete to indicate towards the appellant and none else and also the evidence adduced must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the appellant but . should be inconsistent with his innocence. 14. In the present case PW5 Chhatrapal Singh has deposed / in his evidence that at about 8-9 P.M. he heard the crtes .of son of the appellant then he went to the house of the appellant where he was assaulting his wife. He tried to intervene but he also received injury then he •~ ' carae back to his house and second day morning he J /''.'• K. "•""* •». "-^.^ i.3SSS^' 15. heard that deceased i.e. wife of the appellant died. Death as a result of injury has not been substantially disputed by the appellant. According to the evidence of PW1 Mohitram, PW2 Bahorandas, PW4 Jhadiram, PW6 Mohanlal, PW7 Dhansay^ the dead body of the deceased Bhukhaibai alias Bandhanbai was found in the house of the appellant in his courtyard. According to the case of the prosecution and defence, deceased was present in the house of appellant and she was found dead as a result of injury in intervening night of 11/3/90 8s 12/3/90. Appellant was under obligation to explain that how his wife died, who caused injury but appellant has not offered any explanation interalia the evidence of PW5 Chhatrapal Singh reveal that just before the death of the deceased appellant quarreled with his wife. Ex. P-3 reveals that blood stained and plain soil, broken piece of bangles were recovered from. the house of the appellant and not from the courtyard, it shows that deceased died in the house of the appellant. She has receiyed ~ injury in the house of appellant where / appellant was also present. In the present case prosecution has proved the following circumstances against the appellant that :- (i) just before the incident appellant has quarreled with his wife and has assaulted his wife, .••;£•-' ^T. ^^ '.; i' •l';aiy''::, R 'l;- .''•-.. /, .ff (ii) appellant and deceased were residing in the same house, (iii) deceased died inside the house, (iv) deceased died as a result of fatal injury, (v) appellant has not offered any explanation that how she died and who has caused injuries to her. If these circumstances are considered together then only hypothesis of the guilt of the appellant would be possible. 16. After appreciafing the evidence available on record learned ^essions Judge has convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life. Conviction is based 17. on circurastantial evidence. The aforesaid circumstances proved by the prosecution is sufficient for drawing an inference that appellant was a person who has committed the offence of murder of his wife. The conviction is based on legal, clinching and credible evidence sustainable under the law. On,close scrutiny of the evidence, we do not find any llegality or infirraity in the judgment impugned. The appeal is devoid-*of merits. Consequently, the criminal appeal is liable to be dismissed and is hereby dismissed. Sd/- T.P. ShaiTfla •Tudge Sd/- N.K.Agrawal Judge ^/