k, Q, HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. RANGNATH CHANDRAKA& JJ. Criminal Appeal No. 696/2005 APPELLANT Dhanushdhari Panda son of Thurchu Pando aged 4O years resident of Basantpur (Pandopara) Police Station Basantpur District Sarguja (C.G.). State of Chhattisgarh through Police Station Basantpur. CRIMINAL APPEAL UNDER SECTION 37412i OF THE CODE OF CRIMINAL PROCEDURE. Present:— Ms. Sangeeta Mishra, Advocate for the appellant. Mr. J.A. Lohani, P.L. for the State/respondent. RESPONDENT JUDGEMENT (Pasged on 27/09/2011) The following iudgment of the Court was_gassed by T.P. Shanna, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 22/7/2005 passed by Additional Sessions Judge Link Court, Ramanujganj, District Sarguja (C.G.) in Sessions Trial No. 329/2004 whereby and where under after holding the appellant guilty for the commission of oEence of culpable homicide amounting to murder of his wife Phoolkunwar, convicted the appellant under Section Indian Penal Code and sentenced 302 .0f the imprisonment for life & tine of Rs. 10,000/—, in default of payment of fme amount, additional rigorous imprisonment for 2 years. Conviction is impugned on the ground that Without any iota of evidence sufficient for conviction of appellant Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the prosecution, unfortunately Phoolkunwar (since deceased) was residing with appellant at village Basantpur Pandopara, District Surguja. On intervening night of 28/4/2004 d5 29/4/ 2004 appellant mercilessly assaulted by stick to Phoolkunwar resulting into her instantaneous death. Villagers informed Mansingar about the incident then Mansingar went to the Police Station and lodged First Information Report vide Ex. P-4. Marg intimation was recorded vide Ex. P—5. Investigating Oificer left for scene of occurrence & after summoning the Witnesses vide Ex. P-7, inquest over the dead body of Phoolkunwar was prepared vide Ex. P-9. Dead body of Phoolkunwar was sent for autopsy to Community Health Center. Wadramagar hem where PW9 Dr. RB. Prajapati conducted autopsy vide Ex. P— 14 and found following Injul‘leSi - (i) Mixed contusions of 40 X 15 c.m. over right thigh. (ii) Contusion of 15 x 3 c.m. over right thigh (front part). (iii) Three lacerated wounds of 1 x 1/2 x 1A c.m. over right forearm. (iv) Contusion of 6 x 3 c.m. over left side of face. Death was homicidal in nature. 4. During course of investigation, appellant was taken into custody and he made discloser statement of stick vide Ex. P-2, same was recovered at his instance vide Ex. P—3. Spot map was prepared vide EX. P— 10. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Ramanujganj who in turn committed the case to the Court of Sessions, Ambikapur from where learned Additional Sessions Judge Link Court, Ramanujganj, District Surguja (C.G.) has received the case on transfer for trial. 6. In order to prove the guilt of the appellant prosecution examined as many as 11 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. After affording an opportunity of hearing to the parties, leamed Additional Sessions Judge Link Court, Ramanujganj, District Surguja (C.G.) has convicted and sentenced the appellant as aforementioned. Ms. Sangeeta Mishra, learned counsel for the appellant and Mr. J.A. Lohani, P.L. for the State/respondent are heard. Judgment impugned and record of the Court below perused. Learned counsel for the appellant vehemently argued that although dead body of Phoolkunwar was found in the house of appellant but in absence of any other circumstances and Without any evidence, appellant cannot be convicted for commission of culpable homicide amounting to murder of his wife Phoolkunwar. Prosecution was under obligation to prove homicidal death caused by appellant by producing credible 85 clinching evidence but prosecution has not adduced such evidence. 10. On the other hand, learned Panel Lawyer for the respondent/State opposed the criminal appeal and argued that appellant 8s Phoolkunwar were residing together in same house, body of Phoolkunwar with fatal injuries was found in the house of appellant except aforesaid two persons no other person was residing or present in house of appellant on the date of incident. In these Circumstances, appellant was under obligation to oifer an explanation that who has committed oifence in secrecy as required'under Section 106 of the Indian Evidence Act but appellant has not offered any explanation which itself strong circumstance and is sufficient to prove the guilt of the appellant. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of fatal injury found over the body of deceased Phoolkunwar has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW9 Dr. RB. Prajapati at autopsy report Ex. P— 14 and death of Phoolkunwar was homicidal in nature. As regard the complicity of appellant in crime in question is concerned, prosecution has not adduced direct evidence. As per evidence of PWI Shanichari Pando, relative of appellant 83 Phoolkunwar, in the intervening night when incident took place appellant was present 1n his house along with his wife Phoolkunwar i.e. sister of PWI Shanichari Pando. On second day, appellant informed about the death of Phoolkunwar and other witnesses who has not supported the case of the prosecution has deposed that appellant who was present in the house when incident took place, second day morning he informed the witnesses about the death of Phoolkunwar. Death of ‘ Phoolkunwar was homicidal in nature. No other person was present in the house of appellant except appellant and his wife Phoolkunwar. In these circumstances, appellant was under obligation to oEer an explanation that who has committed oh‘ence in secrecy in terms of Section 106 of the Indian Evidence Act but appellant has not offered any explanation. In absence of such / explanation and other circumstances, only inference would be possible that only appellant has committed homicidal death with intent to cause death of Phoolkunwar. Autopsy report EX. P- 14 reveals that injury No. l was 40 x 15 cm. in depth of thigh shows size of injury was about 16” x 6” and would have been caused by l 15 to 20 assaults of stick, this shows mercilessness of appellant. After appreciating the evidence available on record, learned Additional Sessions Judge Link Court, Ramanujganj, District Surguja (C.G.) has rightly convicted and sentenccd the appellant as aforementioned. On close scrutiny of the evidence, we do not fmd any illegality or iniirmity in the judgment of conviction and order of sentence. Consequently, criminal appeal is devoid of merits, same is liable to be dismissed and is i i i hereby dismissed. “4* sd/ 'PJ 'T‘P.SHAVRMA’ F $d/' 1 " s RnN. Chandrakar Judge v} l ‘ judge w- r