tf' :!> <^° HIGH CQURT OF CHHATTISGARH: BiLASPUR Division Bench : HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI RAJE8HWAR LAL JHANWAR, JJ Cr., Appeal No. 139 of 2004 ARnelIant dn iail) Resnandent Balram and anothei. ti f< Versli? State of Chhattlsgarh JUDQIVIENTFOR eONSIDERATION HON'BLE SHRI JUSTICE T.P.SHARMA ^ • CtB^--/s r Sd/" R.L. Jhanwar Judge Sd/- T.P. Sharma Judge Pronouncement of Jydgment ; ('.09.2010 Sd/- R.L. Jhanwar Judge f .'. fig-l'»!'' H1GH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: AON'BLE &l-fl%l T.P.SHARMA AND HON'BLE 8HRI R.L.JHANWAR, JJ. APPBLI-ANTS (iniail) RESPONDENT Criminal Aopeal No. 139/2004 1. Balram 8/0 Chetan Ram Sahu, aged about2'l years. 2. Jethiya Bai, W/o Chetan Ram Sahu, aged about 40 years. ' , Both residents of Seonikhurd, Police St^tion Lalbag, Distt. Rajnandgaon (CG) \. VERSUS TheState^af Chhattisgarh, Through the District Magistrate, Rajnandgaon (C.G.) CRllVllNAL APPEALUNDERSECTIQN 374 (2) OF THE CRIIVIINAL PROCEDURE CODE Appearance: Smt. Indira Tripathi, counselfor-the appellants. Shri Neeraj Mehta, P.L. for the State. iHJDSMIiMI (Passedon ^.&9'2010) Per R.L.Jhanwar, J. The challenge jn this appeal is.to the judgment of conviotion and order of sentenoe dated 29.01.2004 passed in S.T.No.157/2003 by thel Additional Sessions Judge, Raigarh, whereby and whereunder after holding the appellanfs guilty for commjssion of culpable homicide amounting to murder of Tizkunwar, ttie Court below convicting the appellant under Section 302/34 of thel.P.C. sentenced them to life' imprisonment with fine of Rs.25,000/- and (n default offine, to undergo R,l. fortwoyears each. . :2. The conviction is impugned on the ground thatwithout appreciating the legal, clinching and eredible evidence, the Court below has convicted and sentenced the appellants and thereby cdmmitted illegality. 1,1 !.i t- ^r". J"^!l * s 3. Brief facts of the prosecution story are that Tizkunwar was married to Ghetan Ram Sahu. Jethiya Bai is the first wife of Chetan Ram Sahu and Balram is their son. Chetan Ram Sahu is working at Nagpur and is residing with his second wife. Jethiya Bai was reluctant to bear Tizkunwar and wanted to drive out Tizkunwar from their house and forthis sheused to quarre] and beat her. Ultirpately, in furtherance ofcommon intention, on 10.05.2003 at about 16.30 p.m. b&th the appellants causeddeath of Tizkunwar by strangulating her neck. Dehati Nalishlwas fii-st recorded on 10.05.2003 at 16.30 p.m. and op/the basie ofwhichF.I.R. was lodged on •11.05.2003 at 10.30 A.M. Investigatmg offlcer left for scene of occurrence and after summoning the witnesses vlde Ex.P.4, inquest over the dead bddy was prepared vide Ex.P.5. Dead body was sent for autopsy vide Ex.P.31. Autopsy on dead body was conducted vide Ex.P.24 by P.W.7 Dr., Smt. Shail Khare, District Hospital, Rajhgndgaon.whofound thefollowing injunes: ' , 1. Bruise of 1x 1 cm. wasfound onforehead atrightside. 2. Multiple bruises on front of neck were present. 3. One bruise of 1 x 1 cm; over left side and smaller bruise 4 in number on right with joint linear bruise in between right and left about 2 cm. in breadth. 4. Nail scratches were also found over right side of the neck below mandible region. 5., Found loose hyold bone and fractured hyoid bone. 6. There is old scar of caesarian operation on anterior abdomen below umbilicus Doctor opined that modg of death was probably cardio respiratory arrest and Asphyxia due to strangulation Vthrottling and cause of death was homicidal in nature. The accused Balram was also examined by Dr. Madhuri Khunte P.W.5, who found abrasion of 1 x 2 cm. over right cheek, abrastoh over right side of below nose and above the lip and its size is 0.2 x 0.2 cm., abrasion over left cheek and its size is 0.5 x 0.5 Cm. According tp her, injuries could be caused by nail scratches. During investigation photographs of the dead body of Tizkunw^r were obtained vide Ex.P.6 to Ex.P.19. Necessary selzures were made. Seized articles were sent to ^>--^.-^A>..&^^£^.'^^"-^'--^ •' •'> t •b,. 5 F.S.L. Raipur for its examination and vide its report Ex.P.32, the F.S.L. blood was conflrmed on soils, full pant, sports shoe, cotton, nails, blouse, sari, fulliand ring. 4. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completidh of investigation, charge sheet was filed before the J.IVI.F.C. who in tum committed the case to the learned Sessions Judge. The learned Additional Sesslona Judge received the case on transfer for trial. ' i/r. . ••• "" ' . ' ' . . 5. |n order to appreciate the guUt of the appellants the prpsecution examined as marty as 15 witnesses. Accused persons were also examined under Section 313 of the Gr.P.C. and pleaded their false implrcation andinnocence. 6. After affordihg an opportunlty of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned. , 7. Srnt. Indira Tripathi, learhed cQUnBel for the appellants ,and Shri Neeraj Mehta, P.L. forthe State are heard. Judgment impugned and record of Court below perused. 8. Learned oounsel for the appellant argued that the dead body of deceased found is the courtyard (Purchee) where anybody could easily enter and commit murder ofthe deeeased; The learned Court below has erred in holding the appellants guilty for such heinous commission of offence. She further argued that the at tlie time of incident the deceased was living with their father and rtiother ahd not with the appellants and the learned Court below ought to have held so. It was further argued that none of the persons stated that accused persons have committed the murder of Tizkunwar. At the time of incident, the accused Jethia Bai and Balram were neither present npr any witness. If theconviction is based on ciroumstantial evidence, then the proseoution is required to prove chain of circumstances to oonnect the accused persons in the said crime. But the prosecution has not been able to prQye even single cireumstance against the accused persons to conneet them in the said crime. Therefore, the "imBs. .<'• - iiit tl conviction and sentence ofthe accused persons bythe Court below is not proper as such they are entitled to apquittal. 9. On the other hand, learned counsel for the State supported the judgment and argued that the evidenoe produced by the prosecutlon is sufficient to connect them in the commission of heinous crime. There were inimical terms between the deceased and the appellant Jethia 'Bai: from the beginning because Jethia Bai is the first wife of Chetan Ram Sahu and the deceased was thirdwife ot' Chetan Ram Sahu, who is also having one wife and residing wjth her at Nagpur. After marriage with Chetan Ram Sahu, the deceas'ed vveis r6siding in his house where the appellant Jethia Bai is also residing and from the Inception of marriage, Jethia Bai improved grudge agalnstthe deoeasedand wanted to drive the deceased out from her house. For that, JethiaBai subjected the deoeased to harassment and used to quarrel with the deceased. The abrasions found on the cheek .of oo-accused Balram were of nail sGratches and he had not offered any explanation how hesustained those scratohes. It was further submifted that on the spot scars ofsports shoes , were found and that shoes belonged to Balram and were seized vide Ex.P.28. In that shoes blood stain was also found and no explanationwas , forthcoming from Balram on this pojnt, therefore, the conviction and sentence of the appellants is proper anc^ impugned judgment does not, warrant any interferenoe. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examlned the evidenee adduced bythe prosecution minutely. In the presence case, death of deceased Tizkunwar was Asphyxia due to strangulation / throttling has not baen significantly i disputed bythe appellants, even otherwlse established by the medical ' evidenceof P.W.7 Dr. (Mrs.) Shail Khare and autopsy report Ex.P.24 which revealed that death was most probably cardio respiratory arrest and ! eause of death was Asphyxia due to strangulation / throttling and death ! was homicidal ih nature. , 11. It is evident from the statements of P.W.1 Tularam, father of the deceased -Tizkunwar and P.W.2 Kamla Bai, mother ofthe deceased thaf :'"r' F I^i'^ ;3'^^u?T Ls^;^;~;^--—-" 5 »Blt the deceased was third wife of Chetan Ram Sahu whereas Jethia Bai, the appellant herein, is the first wife of Chetan Ram Sahu and Balram is the son of Jethia Bai and Chetan Ram Sahu. According to the above witnesses, from the inception of tnarriage bftheir daughter, Jethia Bai was reluctant to keep the deceased - TizkunwQr with her in the house. Jethia Bai used to beat the deceased and did not provide meals to their daughter. The deceased Tizkunwar often told them that she Was subjected to harassment by-Jethia Bai and for that a Panchayat meeting was called for wherein compromise took plaoe to the effect that Jethja Bai t-f. ~ .'•••••. shall look after the deeeased in a goo'd manner. Even then the deceased was agaln subjected to harassment by Jethia Bai. The evidence of above witnesses was also supported by the eviclence of P.W.8 Ghamsu, P.W.10 Kanti Bai, P.W.11 Anand, P.W.12 Derhaclas Sahu, P.W.13 Samaru Ram and P.W.14 SurendraKumar who have reiterated thatJethia Bai, being a woman of fanciful nature, subjected the deceased to ill-treatment and harassment. In this manner, It is olear froiTi the above evidence that there wereinimical terms between Jethia Baiand the deceased Tizkunwar. Itis also clear from the evidenee of above witnesses that the dead body of deceased Tizkunwar was found lying in the eourt yard (Purchee) house of Jethia Bai and this piece of evidencewas alsosupported by Ex.P.5 Naksha Panohnamain which it was mentloned the dead body was found inthepurchee ofthe house of Jethai Bai; Itwas also mentioned in Ex.P.5 that one scar of shoes was also found npar the dead body of deceased where blood stain was found. The defence has cross-examined the above witnesses but nothing has been able to ellcit from their cros's-examination. 12. During investigation a pair of sho@8 was seized vide Ex.P.28 from the accused Balram. Similarly ohe shirt was also seized but one button was missed and according to Ex.P.26 that button was seizedfrom the spot. That button also belonged to the shirt of Balram. According to F.S.L. r^port Ex.P.32, blood stain was found on the full pant 'article G', sports shoes 'article l' and nails 'articles K and L'. Thus, it is clear that nails,spori:s shoes, full pant and one button of shirt were seized during investigation from the accused Balram arid pn those articles blood stain was found, which would • show that appellant Balram in furthdrance of common intention, has committed murder of Tizkunwar with the help of his 11-1i; -ji' 'w ,f ia mother, Jethia Bai. This apart, no explanation was forthcoming from him as to how blood stains were found in seized articles belonged to him. These circumstances are sufficient to connect Balram in the said offehee. 13. It has come in evidence of Dr.Madhuri Kunte P.W.5 who examined , co-accused Balram and found vide injuries on Balram vide Ex.p.22, they are abrasions of 1 x 2 cm. over right cheek, over right side of below nose and above the lip and its size i$ 0.2 x 0.2 cm. and over left cheek and its i size iSi0.5 x 0.5 cm. According to her, ipjuries could be caused by nail; scratches. Noexplanation was fo'rthcoming from Balram as to how he sustained those injuries. It appears thgtsome thing might have done between the deceased and the present appellants otherwise Balram , would ncit have received such injuries. 14. It has also come in evidence of P.W.8 Ghamsu, P.W.10 Kanti Bai, P.W.11 Anand, P.W.12 Derhadas Sahu, P.W.13 Samaru Ram and ' P.W.14 Surendra Kumar that when they rsached to the incident spot, they found that front door of the h'ouse was closed and at the same time police also reached there and with the help of pallce that front door was brok^n. ' As soOn as they entered, they found in courtyard that a dead body of Tizkunwar was lying and nobody was present there. These witnesses have also stated that there isone passage also from there any body can easily enter. On this, the accused persons have not offered any explanation that how the death ofTizkunwar took plaoe and the accused peraons have also not stated that there were inimical terms between them and Tizkunwar npr they have stated that death of Tizkunwar could be eaysed by third person. 15. It is also noticeable from the evidence adduced by the prosecution that Jethia Bai used to quarrel with the deceased Tizkunwar without any rhyme or reason and taking that advantage she alsowanted to drive the deceased out from her house which would ahow that Jethia Bai developed grudge against Tizkunwar from the inception of her marriage with Chetan Ram Sahu and ultimately in furtherance common ihtention, Jethia Bai with the help ofher son Balram committed murder ofTizkunwar heinously. "1"N1 i'lii; ¥ ^.ii! B.MH 16. According to appellants, on the date of incident they were not present in their house and went to attend nearby marriage function but no evidence was led by them on this polnt in their defence and no explanation was forthcoming that if theyw6re not in their house then how the dead body of Tizkunwar was found in their house. Therefore, it can easily be inferred that the appellants have, in furtherance of sharing common intention, have brutally and heinously committed murder of Tizkunwar and noother person has oommitted murderofthe deceased. 1 17. This is a special clrcumstance g'nd It must be within the knowledge of the accused persons, therefore, in aecisrdance with Section 106 of the Evidence Act, the appellants were under obligation to prove the fact that how the deceased has.received injuries and how she died. The appellants were also under obligation to prove the fact that how ante- mortem injuries were found on her neek. In the matter of Trifnukh Maroti Kiran v.State of Maharashtra, {2006} 10 SCC 681 and Dhananjoy Chatterjee alias Dhana \i. State ofW.B., (1994) 2 SCC220 theApex Court hqs held that in ease of offence committed in secrecy, the person who was present in such places is.under obligation to offer explanation, 18. In view of marshalling of the above evidence, we hold that the act/offence has been committed in secrecy in presence of the appellants ; and the appellants are under obligation prove/offer explanation in terms of i Section 106 of the Evidence Act, but they have not offered any' explanation that how the deceased died and how shesustained ante- mortem injuries on her neck. The prosecution has proved other circumstances thaf the appellants and the deceased were residing togefher and were present inside the house on the fateful night and the deceased died as a result of ante-mortemfatal injuries sustained by her. In the absence of any explanation on behalf of the appellants, the only inference that the appellants are the perSons who have committed the offence and caused the death of deceaBed and except the appellants none other persons have caused injuries to the deceased would be possible. Lf n " it- ^r 'gji; ;; ...,(.s> «;. 8 ^ 19. Aftpr appreciating the evidence available on record, learned Additional Sessions Judge has convicted and sentenced theappellant. 20. On close scrutinyof the material available on record, we do not find any illegality or perversity in the judgment impugned requiring our interference. Thus, the convictipn of the appellants under Section 302/34 ofthe I.P.C. and the sentence'awarded thereunder are affirmed. 21. Consequently, the appeal being devoid of merit is liable to be and is dismissed. <( Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge .(-•• l.'t1 TBI ii:li