HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON’BLE SHRI T.P.SHARMA AND HON’BLE SHRI R.L.JHANWAR, JJ. Criminal Appeal No_640l2005 APPELLANTS 1. Chandrasekhar, Son of Chakradhar Lin JAIL) Sahu, agedabout 25 years. ' 2. Chakradhar, Son of Banshidhar Sahu, . aged about 51 years. 3. Smt. Rupa Bai, Wife of Chakradhar Sahu, aged about 46 years. All residents of village : Paterapali, Police Station : Basna, District Mahasamund (C.G.) VERSUS State of Chhattisgarh, Through The Police Station : Basna, District Mahasamund (CG) CRIMINAL APPEAL UNDER SECTION 374 I2! OF THE CRIMINAL PROCEDurgg CODE, 1973 RESPONDENT Appearance: Shri V. K. Pandey, counsel for the appellants. Shri Sanjeev KumarAgrawal, P.L. for the State. ‘4 rs ORAL JUDGMENT (Passed on 15.02.2011) Challenge in this appeal is to the judgment of conviction and order of sentence dated 29.07.2005 passed in S.T.No.131/2004 by the 13‘ Additional Sessions Judge, Mahasamund, whereby and whereunder after holding the appellants guilty for commission of culpable homicide amounting to murder of Hemlata, wife of appellant No.1 and daughter-in- law of appellants No.2 & 3 and for concealing the evidence in criminal case and also for commission of torture and cruelty to Hemlata, the Court below convicted the appellants under Section 302, 201 and 498A of the l.P.C. and sentenced to imprisonment for life with fine of Rs.1000O/- each under Section 302 of the l.P.C., to undergo rigorous imprisonment of 7 years with fine of Rs.1000/— each under Section 201 of the l.P.C. and to undergo rigorous imprisonment for 3 years with fine of Rs.1000/- each @ under Section 498A of the l.P.C. In default of payment of fine, each appellant shall undergo further R.l. for 4 months, one month and one month respectively. 2. Conviction is impugned on the ground that without ioa of evidence on record, the Court below convicted and sentenced the appellant as aforementioned and thereby committed illegalityt 3. As per the case of prosecution, Hemlata was married wife of appellant Chandrasekhar and their marriage has taken place on 12.03.2000. Chandrasekhar and his parents subjected Hemlata to cruelty and torture on account of not bringing sufficient dowry. Appellant No.1 assaulted her on several times. On 03.01.2004 at 10.30 — 11.00 a.m. appellants, in sharing common intention, throttled her neck by jute rope and caused injuries, due to which, she died. Thereafter, with a view to conceal the evidence of criminal case, all the accused persons hanged her by rope and intimated the villagers and police. Appellant Chakdradhar went to police station Basna and lodged merg intimation vide EX.P.6. Investigating Officer left for scene of occurrence and after summoning the witnesses vide EX.P.1, inquest over the dead body was prepared vide Ex.P.2. Spot map was prepared vide Ex.P.3. Dead body was sent to Government Hospital Basna. Teamlof doctors consisting of Dr. M.K.Naik and Dr. Jayasri Sahu P.W.8 conducted autopsy vide Ex.P.4 and found the following injuries and symptoms: Rigor mortis was present in lower extremities, face was bluish in colour, eyes were closed, there was congectiva congested pupil present in the eyelid, mouth was open, tongue protruded, swollen and dark in colour. Lips were found in bluish colour. There was bloody froth present in mouth, nostrils and eyes. Mark of press groove was found around the neck 1 1/2 cm below the thyroid cartilage and mark of scratch of 1/2 x 1A cm above and below scratch mark. Neck was tightened with rope which was removed and the rope was 1 cm. width, injury was found over the neck. The jute rope was constricting the mark present between chin and thyroid cartilage and knot was present on right side of neck below right ear. Removal of the rope and the mark is 1 cm. wide and surface was not pale and hard. Margins t @ were not red. Frécture of trachea and thyroid cartilage was found. Case of death was asphyxia due to strangulation and death was homicidal in nature. 4. Sealed cloths of the deceased were seized vide EX.P.7. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (in short Code). After completion of investigation, charge sheet was filed in the Court of J.M.F.C., who in turn committed the { case to the Court of Sessions, Mahasamund. The learned Additional 7' Sessions Judge received the case on transfer. 5. ln order to prove the guilt of the appellants, prosecution examined as many as 9 witnesses. Accused persons were examined under Section 313 of the Code where they denied the circumstances appearing against t. them and pleaded their innocence and false implication in crime in L question. The appellant have also examined Basikeshan @ Fataha D.W.1, Rambati D.W.2, Dr. JR. Patel D.W.3, who have deposed that at the time of incident, the appellant Chakradhar Sahu was not present in the house. The deceased herself committed suicide inside her room. When door closed from inside was pushed, then bolt was broken. They went inside the room and saw the dead body of Hemlata in hanging position. D.W.3 especially has deposed that the deceased was suffering from a disease called as sickle—cell, which is a painful disease and make the body weak, 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge has convicted and sentenced the appellants as aforementioned. 7. Shri V.K.Pandey, learned counsel for the appellants and Shri Sanjeev Kumar Agrawal, learned counsel for the State are heard at length. Perused the record ofthe Court below and impugned judgment. is 8. Learned counsel for the appellants vehemently argued that although conviction of the appellants is substantially based on the medical evidence of Dr. Jaisri Sahu but her evidence does not inspire confidence W wKs). -. ’ l L\ and trustworthy and also self-contradictory. As per evidence, one complete encircled injury was found around the neck and the second encircled injury was found below the rope. In her detailed cross- ~examination, she has admitted that injury found below the jute rope was also ante-mortem in nature and she.has not noticed any mark of resistance on her body which shows that she has not made any resistance which is suggestive of suicidal death. No person was present in the house and the deceased all alone was present inside her room exclude the possibility of throttling. Deceased who was present herself committed suicide on account of unbearable pain of sickle—cell. He further argued that evidence adduced relating to demand of dowry and concealing the evidence of criminal case is also net sufficient for drawing an inference that the present appellants have committed aforesaid offence. The present appellants have offered explanation that the deceased herself had committed suicide inside her room and for that the appellants should not be held liable for commission of her murder. 9. On the other hand, learned counsel for the State opposed the arguments and submitted that the evidence of P.W.8 Dr. Jaisri Sahu is sufficient for drawing an inference that deceased died due to throttling and not died by hanging and for concealing the evidence of criminal case, the present appellants have hanged her. They have also demanded dowry and subjected her to cruelty and torture. After appreciating the evidence " available on record, the learned Additional Sessions Judge has rightly convicted and sentenced the appellants. 10. In order to appreciate the arguments advanced on behalf of the parties, we' have examined the evidence adduced on behalf of the prosecution. ln the present case, the appellants have not admitted the death of deceased as homicidal death and as per their defence Hemlata committed suicide. The defence has examined D.W.1 Basikeshan @ Fatha has deposed that he was called by the appellant — Rupa Bai and told him that Seema, daughter of deceased is weeping and her mother is inside the room. Thereafter, he went to the spot and knocked at the door, which was closed. He and Rupa Bai gave the door a hard-push resulting into breaking ofbolt. Then they saw body of Hemlata was hanging by rope and one stool was also present near the body of Hemlata. l-le @ thereafter came out and asked Rupa Bai-about the other members of family whereupon she informed him that Chakradhar had gone to barn whereas Chandrasekhar had gone to field. This witness sent his son - Kamalesh to call Chakradhar who came from the barn. 12. Autopsy on dead body of Hemlata was conducted by Dr. Jaisri Sahu P.W.8 along one Dr. M.K.Naik. As per autopsy report EX.P.4, one complete encircled injury was found over the neck and second injury encircled the neck was found below the jute rope. Internal bones of the neck were found fractured. ln her cross-examination, Dr. Jais’ri Sahu P.W.8 has deposed in paragraph 9 that marks ofjute rope found over the neck were post-mortem, in paragraphs 16 and 17 of her cross— examination she has admitted that she did not measure the length of first injury which was encircle injury grove found below the thyroid cartilage. She has categorically deposed that there were two parallel complete encircled injuries over the neck, one is below the jute rope and the other parallel to above injury. She has further deposed in paragraph 19 of her cross-examination that she has mentioned the colour of injury found below the jute rope which is not pale, hard and red. She has explained that colour was black and in case of'colour of injury, the injury would be ante- mortem. She has seen no marks of struggle over the body of the deceased. Her evidence clearly revealed that there are two complete encircled injuries found over the neck, injury No.1 was ante-mortem in nature and injury No.2 found just below injury No.1 was because ofjute rope and caused as a result oftightening the jute rope. Second injury was caused as a result of hanging of body. Injury No.1 is fatal injury sufficient to cause death of the deceased. In case of death by injury No.2, injury No.1 was not possible by the deceased and in case of injury No.1 subsequent hanging by the deceased herself was also not possible. Thus, upon clearly distinguishing both the injuries, it revealed that the deceased herself did not commit suicide by hanging and other person has caused injury No.1 which was fatal to the life resulting into her death. The evidence of P.W.8 and autopsy report Ex.P.4 are sufficient for drawing inference that death f the deceased was not suicidal in nature but was homicidal in nature. x (I/f l o @ 13. As regards complicity of the appellant in crime in question, appellant No.1 is husband whereas appellants No.2 & 3 are in-laws of the deceased. The deceased has died in the house of the appeliants where 4 persons including one child Seema were‘ present. Appellant No.2 Chakradhar has lodged merg intimation. He has informed the police that the deceased has committed suicide by hanging. Defence has also examined D.W.1 Basikeshan @ Fatha, who has deposed that Rupa Bai was present, he was called by Rupa Bai and other three persons were present and as soon as he reached to the house and upon being asked, Rupe Bai told him that Chakradhar had gone to barn whereas appellant Chandrasekhar had gone to field. Subsequently, Chakradhar was called from the barn. All the appellants have offered explanation that deceased was suffering from the painful disease namely sickle—cell and they have tried to show that the deceased has died herself by committing suicide but the fact remains that she did not commit suicide. Evidence of defence has been adduced on behalf ofthe appellants Chandrasekhar and Chakradhar that they were not present at the time of such commission of homicidal death of Hemlata. It was not possible for Rupa Bai alone to cause- homicidal death of Hemlata and to hang her but the fact remains that death of Hemlata took place in their house, therefore, all the appellants we‘re under obligation to offer explanation in terms of Section 106 of the Evidence Act that how she died and who has caused such homicidal death by causing fatal injury to her. ln the present case, no marks of struggle were found in the body of the deceased. As per defence evidence, the deceased was a woman of weak constitution. ln these circumstances, absence of marks of struggle would not be fatal to the prosecution. Marks of struggle are not always necessary in case of throttling. In the absence of any explanation in terms of Section 106 of the Evidence Act, the only inference would be possible that all the appellants have committed homicidal death of deceased Hemlata and with a view to conceal the evidence of criminal case have hanged the body to show that she committed suicide. 14. As regards demand of dowry or commission of torture and cruelty upon Hemlata, the prosecution has examined P.W.4 Antarmayi Sahu, father of the deceased Hemlata, who has deposed that the appellants have demanded cycle, gold and silver articles. He has further deposed ZD that the appellants have previously assaulted Hemlata but no report was Iodged. He has deposed the same after death of her daughter, which did not find support from independent sources. In these circumstances, it is difficult to hold that the appellants have committed torture and cruelty upon the deceased in connection with demand of dowry. 15. While convicting the appellants under Section 498A of the l.P.C. the Court below did not consider inconsistence evidence relating to commission of torture and cruelty and thereby committed illegality. 16. Consequently, the appeal is partly allowed. Conviction of the appellants under Section 302 and 201 of the l.P.C. and the sentence awarded thereunder, being sustainable under law, are hereby affirmed whereas the conviction of the appellants under Section 498A of the l.P.C. and the sentence awarded thereunder are hereby set aside. >- r sw- l. Sd/- ' 'Ty. SHfRMA R.L. Jhanwar 1" g“, Judge