IIIMI l:l§BSI$:to ^pf^ HI6H COURT OF CHHATTISeARH AT BILASRJR Coram'- Hon'bte Mr.T.P.Sharma & Hon'ble Mr.R.L.Jhanwar. JJ. Crinrinal Appeal No.267 of 2001 Nayadh<ir Prcsad ftsrthod » Vapsus ff. State of Chhattisgarh JUO^EW FOR CONSIDERATION Hon'bls Mr.R.L.Jhanwar. J. Sd/- T.P. Sharma Judge ^4^^" Sd/" R.L. Jhanwar Judge Post forjud^nent w : 8/3/2010 Sd/- T.P. Sharma Judge "•^ ^-^ tii-\ . ^..^ fn'vssay A-P^ HI6H COUKT OP CHHATTIS6i4RH AT BILASPLR Criminai ABOW» No. 2&7 of 2001 Coram: HON'BLEMR.T. P. SHARMA <S HON'BLEMft.R. l.. JHANWAR.JJ. APP6LLANT V's. .Noyadhar Prasad ftethod Son of -Jagatmm Rathod n9ed about 45 y®»rsitesjdent of Khamiha faichanda Baradwar Di^tt, ^ Choinpa at Present Resicla'it of M&/237 .Deepika Colony, P.S. Kuanunda Oistt. Korba.; Stats of Chhat+isgarh. (CKE.MINAL APPE.A.L UN&ER SeCTCON 374 (Q Cf THE CO&E OF CMMINAL PROCE&URE. 1973) Present:- M!~. B.N. Nnnde, counse! for -the appelkmt. Mr. Ashidi Shukla. fiovemment Advocote fop •Ae State. JUD&ttENT (Delivered on 8* MarA, 2010) 1. Chaltenge in this appea! is to the judgment of conyction A order of sentence dcted 31/1/2001 passed by -ths Si?<;th AdditJonalSessio" Judge, Bitaspur 'n Sessions Trkit No. 335/2000, whereby& whereunder letuned Sixth Addit'onal Sessio" Judge after holding -the agpelkmt guilty fw commissior> of culpable homicidal death of deceassd Laxmin 6ai atnount'ng to murder conyicted under Sectmn 302 of the Indicn Rend Code and sentenced him to under^o "iiprisonment for Iffe ond to pcy a fteof Rs. 2000/-, in default of pcyment of f'ne to furt+ier andergo ample imprisoninent for one year. 2. Conyiction is impugned on the ground 1+iat without any iota of clinehing1 cndcredible evidence, the Court be'tow has convieted and SCTi'tencsd the £sppe!lan+as aforementioned and Ihereby committed tl!egality. 3. Ceise of -tlie prosecution, in br'ef, is that decsased Laxmin Bai, wife sf the appet!ant, was r'asiding wth the oppeHontot Oeepika Cotony, <5!St!"ct Ko>'ba. Reiatio" between wife cnd husbaid was not cor'dia), eyen in the year 1996-97 the deceased had todged 1+ie report agcinst the apps!!ant relating to his misbehayior ahd assoult vide Exs. P/24, P/25, P/26 and P/27. On -the fateful day o{ 14/6/2000 at about 9 p.m.oppellon)- was present in his house situated est &eepika colony, E)sepika, bistrict Korba, deced^d Laxmin Bai canie into bed room of the e^tpellant nnd quarpeled with hins, then the c^pelkmt assaailted his wife Lwnin 3ai by hamwe!* on her forshead, n®^end ten'porat regidn, he pushed his wifa on the bed and also strongufated her,his wife died, then he covered dead body of his wife by bed drvast, he also hanged his bloodstained Airt in h's bed room and hidden bteodstained hai"mer on the gailsry. Second ckiy msming i.e. on 15/6/2000, the appe!kant proceeded to police stct'g" fot' lodging the report. Wi+nesses '&heB'mendra ftathod, Sdisram Patel and Sontoshrar" Patel met in -the wcy whom he mcde extni judicid confess'on a"d he went to -riie potice stnt'on Kusnnunda aiong with Dha''"«endra to+hod, Sah.srom Patel and Sontoshram Pstel <wid loc^ed P-I.R. vide Ex. P/28. At the time of causing injury to h's wife the cppellont has also received injury oyer his phalonx of middte finger "f right hcnd. Investigating Officer pr-oceeded for the scene of oca-irresnce "nd after summoning witnesses yide Ex- P/l, inquest oyer 1+ie deod body of the deceased was prepared yide Ex.P/2. Pcnchnannof •the ^otwasprepared vide Ex.P/3. Ths oppeilsint who h>v»ss\fwospresent in -the pelicestatiw was sent f"!" medical examinat'on yide Ex.P/t3A. He was examined by &r..A.N.Kunwar (PW-'n vide Bx.P/13 and found <»»bca^sted wound nf 1 cm. x i cm. on middle f'nger of right hond. &sori bsdy of decefssd Laxmini Bai was sent for autopsy yide Ex.P/29 to Bistora Hospitat, Korbn. br-A.b.Puroina (PW-16) conducted autopsy yide Ex.P/3S <md found fonowing injur'ies oyer the body of deceased Lcxmin Bai, i) Lacerated wound of 2 CBIS. ?< 2 cms. oysr uppsr" side of left eyebrow V, "^."5.\ SP§ "^. .ffi,^i'tl ii) Lacerated wound of 4 cms. x i cm. oyer nose !ii) Lccerated wound of 6 cms. x 3 cms. oysr left tenyorat region. Fnicture bone was yisible from the !nju''y iv) Swslt'ng of the right face and fnicture of mL^tiple fractupes of waxillciry bone ; ") Swelling on the abdomen &f 10 cms. x t0 ems. vi) Press injury over neck stnined with blood y")Frac1ure of frwtal bone, feft pa'tetal bone^ nasat bone eind mosdib boris. Fr<scturs of 5 ar,d 6 i"!bs were aiso faw.d. Liv'sr was ruptured. Moda of death was shock as n resu!t of unte-mortent fatal >nju''ies and dsath was homicidal in "ature. 4. Clothes fro'" the SDOt were recoyersd yide Ex-P/4. Bloodstained A Dlc'n soi! were seized frwn the spot yide Ex.P/5. Fiv« lett'ers wrltten by 1+ie deceosed were se'zed yide Ex.P/6. Letters Exs.P/8, P/9, P/10 wd P/U and mo+her' ie+ter Ex.P/12 were seized yids Ex-P/7. The accused was take" 'nto custody after' tedging the report by him on 15.6.2000. He made disctosure stateoent of hont'ner ond b'oodstained shirt yide Ex-P/15. The p<?!ice took him to his house frcm where the oppellant took out btoodstainad ha'nine'' fronn 'riie gallei^ a"d bloodstained shirt fr'om his house and produced before the police which were seized vide Ex.P/16. On persona! search, c pair of esr ring, broken mca'igalsutro with locket were seized yide Ex.P/17. The accused was arrested yide Ex-P/18. Spot mqs was prepared by inyestigating offjcer yjde 6.X-P/20- ietters writtsn by the deceosed were seiasd yide E?<s.P/22 w-d P/23- Photogrophs of the dececsed were takes. Ssated clothes of the deceasednfter eut(^»sywera seized vide Ex.P/34. Hamtner was sent for sxamination to Dr.A.bPuroina (PW-16) and he has exanninsd hamme'' yide Ex.P/36. Seized art'cles were se"t for chemical sxamination vide E^.P/31 cnd presene» of blood over hammer recovered front ths accused was conf"'med yide Ex.P/32. 5. S+ate">ents of the witnesses were reconied under Section 161 of the Code of Crtminat Procadure, t97S (in short ltha Code) end after completion of inyestigstio'n, charge sheet wce fited m the Court- sf Judicial Atagistrate First Ctass, Kntghora, who in turn comm'tl'ed the coss to the Court of Ssssions, Bihspur, from where the Sixlfi Add'tional Sessions Judge, B'laspur receiyed the case on tr^nsfer for triel. 6. In order to proye the guilt of the acttised/appellont, the prosecut'on has &xanrnsd as meny as 18 witnesssjS. Statement of Ihe aceused/appell&nt was a!so recorded under Sec+ion 313 of the Code whe he denied the circumstances <sppear'"g egainst him ond claimed innosence <t"d false i'npHcation in the cri'ne in question. 7. Aftsr proyiding opporhinity of hea''»'3 to the p®rt»s,the Sixth Additional Sessions Judge has conyicted and sentencad the oppellent as aforementioned. 8. We hwe heard ttr'.B.N.Naide, counsel for ths appeltairt' anci M.r'-Ashish Shukla, ©c'vemnient Adyocate for the State, perused +he jjdgment innpugned cnd record of the Court below. 9. Learned counsel for tiie <!ppet!a"+ vehementty argued thot n the p'^sait case, the pr-nsecution has not adduced <my evittencB to a'nnect the qipellant in the crime in question. Only on the basis •that •Hie appellomt is husbond of 1he decssised hos been conyicted &"d sentenced for the con'mission of murder- of his wife. Lett-ers written by the pnrties show that relation betweai Ihe parties ar^ not cor'dial, but 'etfrers are not sufficisnt for conyiction of the appellant. 10.0n -riie other hand, leawed State counsd St^porled the judgment impugned aid wgued thct the pre»ntcase is bosed on drcumstantia! ey'dence in which •th.e appellant higiself hes loc^ed •rtie r-epmrt of the incident. The eyidence adducsd on bahclf of the prosecution issufficier'+ fos" drowin9 in'ference that the appeltent was •tiie person "'ho has caused fatal inju'-ies to his wife. ..,£'it;c!Sii»i % :lS w»S. ^. ' w" Sa.-.faa^ 11. In order' to apprecittte the 0'rgunNents adyanced on beha!f of 'rtie po"'ties, we haye e.vanninsd the eyidence adduced on behalf of the prosecution. In +he present case, homicjdal death as a rasult of ante-mo''tem'ft>ta! injuries of deceased Laxmin Bai, wife of •the deceased; hcs not been substiantially disputed by the oppellant, on ths other hand, also establ'died by 1he evidence of &r.A-b.^irainoi (PW-16) and autopsy wport' Ex.P/35 which reveals -that seyen fatat injuries were foBnd oyer the body of deceased Laxmin Ba' including frcctur-e of frental, pin'ieta! and nasal bone and ruptured "f liye*'. &eath was hoinicidal in nnture. 12.As ^ards the compticity of tt>e accuad/<ype(kint in the crime 'm question, the conyiction is based on following circumstantittl eyidence, i) The appellont wns not haying cord'iat j'etation wfth his wife ii) He was suspecting to his wife »%!atingto his charactep, iii) On ths date of incident, the ^(pellont was present in his house a!ong with the dscsosed, iv) The deceased waS found dead cis a resuh' of onte-mortem fatal injuries, v) The appe!!ant had himself has iodged the report of the incidsnt, yi) The eppellont has made extra ^id'cial confession before ths witrwssas, yii) The appeflant has not offered eBiy explonntien that how his wife died and who has ccused fcrtal injuries to her, i yi.i') The oppellflint has made extra judicial statement under Section 27 of the Eyidence Act rebting to blnftdstc'ined shirt and bloodstained hammer*, ix) Biobdstained hamme!" wcs hidden i" •the gaBery of the oppaltait cnd same was rscoyered at his instmce x) Blood vws found over h's sh'rt «a'd hamme'' seized front the occused/appellaint. "tetS, ^^,'^^i. i'- ;;^^1pi '"•^: ^ ~t<'^f 13. As regurds •the extn judicial confession <?f the appejla"t is cofKemed, R.P.Para^sar yW-1) and ftamkumac 0'W-2) haye depo%d m -riieir eyidence that the appellant made extra judicial confessisn that he has kilted his wife. but they haye not specifi.calty admitttd that at the time of extra Judicial confession, the police was present, therefore, snme was hit by Sections 24, 26 <ind 27 of 4he Eyidence Act cnd is not aAnisstble m ey'dence. bharmendrn Rathod (PW-9), Sohasram Pa-te! PW-IO^ and Sontoshram (PW-11) haye <s!so not supported the case of Ihe proaecuKon retat'ng to extra judiciat confessron rnade by l+ie flppellsint atd prosecution decla>'ed •tlien' hostile. 'They have nbt admitt'ed/stsstecl aiything 'n their* cross-exan'inctions in aipport' of extra judiciai confessio". The prosecution has eramined 5uraj (PW-14), 6 years aged chiid w'tness son of the qipe!la"t and the decsased who has deposed in' his eyidence that the oppellant has assaulted his mother by haininer and at the t'me of mc'ident his father i.e. appellent Noyorihnr, his gnimdmothn'. his mo-tiier, himself, his brother Oeepak fflvl siater &tyya were present. befence has cross-exatijimed this wstness at tength- In para 4 of his cross-exam'nation, he has stated •that he has naprated the incident to the poi'ce that he has ssen the incident &"d his molher was agonizing, but this statement does not find place in his statement recorded unde'' Section 161 of the Code Ex.b/3. Ex.E)/3 peve'als thut he has "ot seen the incident- On!y he has heard quarrel of his mether' and father and he was sleeping in the room adjoining to the room of his mother-father with his grQndmother ond brsther ond siste'*. According to his eyidence, he is witnessed the incide"t, buthis stcrtement r«cor<ted under Section 161 of the Code reyea's that he has heardquarrel be+ween his fa+her and mo'rtier while he present in ths roam of his father, "then he teft their room a"d went for sheep to the n»om of his grwdinother. It rsveals that he has see" first pcrt of quarrel. The eyidance of this witness is not reliable up to the extsnt that •the oppeflitfit has asaiulted his mother by han'mer, but ihe ey'denoe of this witnsss te ret'ableonly to th»extent that some quarret took place between husbosnd and wife i.e. •'••< .*;-' appeHant cnd h's wife at night ond Ihe apptllant <snd the deceased were present m their room at the time of incident and on the second day moming, dead body of Ifie'deceased i.e. his mother in injursid cmdition was found. 14.1nvest>gating officer S.S.Rajput PW-15) hos deposed 'm his eyidence that the (^pellant himself came to the police statten and lodged the F.I.R. yide Ex.P/28, 'n wfhich he has made discloairestatement ofhamme?' <and diirt y'de Ex.P/15, then he ^ame alsng with the oppellant and the ""tnesses to his house from where the appelhnt produced hainmer" and riiirt which he seized yide Ex.P/16. He hns also depoaed in para 5 of his evidence that he made sear-ch of Iha appeliflnt and found a pair ear ring, broken piece of mangalsutr'c with locl'et which he seized "'de Ex-P/17. I" his cross-exam'nation, defence has not aaked anything relatmg to •the disclosure statement made by 1tie appelkmt or bdging of •Ae report by 1tie cppellont. Ex.P/28 ond Ex-P/t5 are r'elatmg to confessien sta+ement fnade by the cppellant. The appellent himself has lodged the F.X-R. vide Ex.P/28 which r'syedis that he ond his wife were pre«ntm the room at night a"d his wife died as a result of ante-mortem fatal injuries. Except the admission of guiit, rests part of the F-I-ft- is adinissible in eyidence. S-S-ftajput PW-1S) has categoricatly deposed that the appe!lcL"t himself has produc<d hammer afte'- tsking -the same from gcltery ca'id dhirt. Same were sent for" che"*ical eran'ination <md presence of blood oyer hanimei* and shirt seized from the accused hce been conf'rmed by FSL r«port yide Ex.P/32. 15-The eyidence of S-S-ftajput (PW-1S), FXR. Ex.P/28 Ipdgsd by the appella"t snd eyidence of Suraj (PW-14), ssn of the deceased and ths appellant are suff'cient for drawing infsrence thnt on •the date of incident betwesn intervening night of M/t5.6.200, the cppe!kmt wcs present in h>s room along wi+h •rfie decea%d ond •the deceased was found dead as a reajlt of fatal injuries. 1-tan'mer'wis hidden in Itie gattery <md was recovered at the instGnce of the appellant. The appellant has not ^a&Q^^ offered cny expkination thoit who has coused mjuries •to the deeensed end how shc dtscf. \ 16.In -Hie present case, the offence has been committedm secrecy where the eppellcirit was present. The appelhnt wos under ofcKgation to offer expfcncition under Section 106 of the Eyidence Act that who has caused injuries to the deceosed and how she disd. Non offering of axplanat'on is adfwse. circumstances against the oppellont. 17.In the matts," of Padata Ra<idyv. Stats af A,P. & Ofs, it ^os !aid down by the Apex Court that ^riien •a c<Ke pests ugsn cipcumstwtin! evidence, such eyidence must sstisfy Ihe following tests: (1) Itie circumstances from which onir'ferencs of guilt is sought to be drawn, must be cogently cnd firmly estaMished; (2)1t>ose circumstemces should be of a defintte •tendency unerringiy po'nting towards guilt of the ccaised; (3)the circumstances, taken cumulntively shoutd from cchainso complete that there is no escape from "the conctu«ion that with.in atl human probsbility the crime was committed by the accused and none else; and (4)the cir-cumstantial i" order to sustoin coriyictfon must be complete and incapabte of e^lanert'iwi of ariy ol+ter hypothesis than that of the gullt of 1+ie aecused cnd such evidence should "ot only be cons"stent with ihe guilt of the accused but^iould be inconsistentwithhis innocence. 18. By adducing the aforesaid eyidence, the prosecutign has establishsd the fo!!owing circuinstaices, i) The sppellant and •the deceased wsre found pr-esent in one rooim at the time of jncident when the deceased diec! as e result of fota! injuries. •' ii) The qspeUiint has not offered any e?<pla"ation that as to how the deceased receiyed injuries a"d how she died. 1AIR1990SC79 •3 s 1 j •i'EiK.S?^ KE^- ^) If the aforeaaid circumstemces are considered toge-rtier, then only the afor-esaid hypothesis of the gui'd of the iippetlnnt would be poasibte. Except hypothssis of the guild of the appe!!cnt, rw o+her hypothesis "f the a'ppellant would be possibte. 19-After apprecinting the eyidwce avajlable on record, iecmed Swth Additinnal Sessions Judge has conyicted the a^etl&"»under Ssction 302 of the Indion Pena! Code and sentenced him to undergo tnyrisonment for !ife ond to pay a fine of fts.20!00/-, in defcult of payment of flne to furtiier under90 simpte "T'p''ia'ni"ent fsr o"e year. 20.0n close scrutiny of +he eyidence, we do not find cny i!lega!ity or infirmit/ in the iudgment impugned. The appea! being devoid of merit (s liabie to be dismissed ar<.d it is hereby disniissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ",'!, / w '