sil^l.qff K-u'fi WT 3ni?r '**<i<* \^'^^r^""' 3^^ '^WIW-'i, ®Tfl<1'IS,fsKtl+iy c-<-. fi- ^" • ^S" **<!<* """"""""""""""""""""""""""" an^?r'q'R; (ipf^si^r) TCIRR ^lfeT 3)I^?f ^tlti^y ?t^T§?TF?CT, Division Bench Hon'ble Shri Dhirendra Mishra & Hon'bie Shri T.P. Sharma. JJJ Criminal Aobeal No.78of2002 APPELLANT (inJail) RESPONDENT Shri Sanjeev Kumar Agravtal, Smt. Anju Ahuja, Govemm|ent Per Hon'ble Shri DMrendra Mishra sentelnce The appetlant has Section 374 (2) of the Code of Q 'the Code') challenging the legalit of conviction and order of learned 2 Additiona! Sessions Triat No.317/2001 wherebythe Section 302 of the IPC and imprisonment of life for Chandrautin Bai. causi<ig chl^i<5Til1l 'RFI^ff ^ ft^ <M-^K ^aiRpTsn^T RamlDaval, S/o Mohan Vish^/akarraa, Aged 60 years, Sakin —Do^erpaii,P.0. Pithoura, Tahsil & Distt.lMahasamund (C.G.) Versui Statel of Chhattisgarh (ORAL JUD0MENT) 25.01.2(te8 counsel for the appetlant. Advocate for the State. ^J, pref^rred this eriminal appeal under riminal Procedure, 1973 (for short (y and correctness of the judgment dated 24.11.2001 passed by |Judge, Mahasamund in Sessions aj>peltant has been convicted under ^entenced him with the rigorous homicidal death of his wife —FS/59— 8/20m —30.GOU. Bl" IBt.. ,««&,. 1 t'-:.iist^w's'&~;';^; ^ 'vl';Vts' .af ^..- ';L-;^ '^^^=£^^^-1 3:E?T -<11<< !?'><<, ®TT|+|'|<o,ISlrt|+f^< NWdl **<!* Wt 200 sn^r iTa^ (ipf^^r) sn^i.Tr ft'ii'b wn siKw '*w* 'TOiiWdf??! sn^i —1-- Case of the prosecution, in tharge-sheet is that the appellant phandrautin Bai, aged about 55 yeai| fehe came from outside after wati] ^ppellant expressed his desire to (•efused by her which enraged the apj fetomach and pressed her neck as a r| pied due to asphyxia. Merg intimation Ex. P-3 was ^t about 12.30 hours on 28.04.2001.1 ^lace of occurrence, prepared inquesf lof the deceased in presence of the |sent for autopsy to the Government ^yhere Dr. Smt. Tara Agrawal, (PW4 |and gave the report Ex. P-1 A. A |specify as to whether the death was| the mark present over the neck is| bwhether the deceased could sustain |the above query, it was opined that 1| Ihomicidal, ligature mark could be lon the neck of the deceased did not Ireceiving the report of the docto^, 15.5.2001 against the appellant vide |cloth was atso recovered on being |Ex. P-8. Spot map was got prej lEx.P-11. .-.' :, brief, as rerlected from the |s the husband of deceased i|s. In the night of the incident j;hing video, whereupon the h&ve sex with her, which was lliellant and he mounted on her rfesult of which Chandrautin Bai ct)|'siI<!1<ftT1 '^TR^ff tf fS1^ <Hri^)< '^aiRnsn^r jiven by the appeilant himself The police proceeded for the uesjt (Ex. P-5) over the dead body (vitnesses and dead body was l^iospital, Pithoura vide Ex. P-1 11) conducted the postmortem qijiery was sent to the doctor to Ihomicidal or suicidat, whether of rope or sari or hand and injuries by hanging. In reply to ttie death of the deceased was caifsed by rope and ligature mark |ook like a hanging mark. After offence was registered on :.I.R. of Ex.P-7(A). A piece of (troduced by the appellant vide bared bv Halto Patwari vide GRPRJ—FS/24'~~<?f2007— 50.UOO. ^essssi^^ ,yt-., "*•'&. 3:55T ^|<<|i?)<), yrflyKo, Rj<?iiy^< NINdl tht^lcb aii^yr'qa^; (Tjdf^g^tT) SiI^I.'qiT R;-<i«b Wil 31CTT '*t| 'TCiim'dfeT an^i 3- After completing investigatioiji, charge sheet was flled in the Court of Judicial Magistrate, First Qtass, Mghasamund who in turn committed the case to the learned and the same was received on t Additional Sessions Judge, Mahasa|Tnund. During trial, the prosecution and thereafter. statement of accu^ appellant denied the cireumstance! prosecution case and pleaded inno ^ appearing against him in the i^ence and false implication and pleaded that witness Mahavir ffrasad demanded a sum of Rs.1000/-and on his refusal, he g^ve fatse evidence against him. His wife was mentally retarded, health and because of the above ftiistration, she herself committed suicide by hanging. He is innocent|and has been falsely implicated in the case. However, learned trial court the respecUve parties, convicted ^nd sentenced the appellant as mentioned in Para 1 of this judgmei|it. Learned counsel for the aop^tlant submits that the deceased committed suicide by hanging as resultof hanging. However,the tf-ial Court has erroneousty hetd that the death of the deceased wa|s homlcidal. He further argued ttiat there is no witness to the incident and the conviction is based on the cireumstantial evidence. Th|e cireumstances relied upon by the trial Court is that the deceased 4iT-4i<?riH IffR^ ^f 'ft^ <M^:.K ^;3lRPT 311^1 Sessions Judge, Mahasamund ^nsfer for trial by the learned examined six witnesses in all ed was recorded in which the he was not maintaining good fter hearing learned counsel for |she died due to asphyxia as a died homicidal death while she 1 was residing with the present appellant in his home and the »m'S\ii sl*T g?w ' . /WVS — FS/59—8/20"~ —30,GOU. ^scia. -^ a I S't^-cfXS^ % 3 E|gjP!!a8S[-HC—7S 'S^f ^ll.ill (•><), yTf)<^(o, [c|fl|y^< Sf^ ?iT (<-fi<4i ~^\^ 3^¥Tsti+ll^ '•<,,. l^l^fi^^ NINdl sb*11°b"""""""""""""""""""""""""""""^ 3II^?T TRW (li«lfl«l<liT) '?snw ^ftg aii^r - L, - cannlot appellant gave faise informatic further based on the extrajudici before Mahavir Prasad Agrawaf is claimed that the extra judj appellant before number of extra judicial confesslon has b< implication as explained by U Section 313 of the Code has n<j judgment ofthe triat Court On the other hand, teari] supported the impugned judgm) We have heard tearned perused the record as atso the So far as the cause concerned, Dr. (Smt.) Tar^ postmortem vide Ex.P-1(A), postmortem report that there anteriority of the deceased. lt| side just below the angle of middle of the neck at the out muscte. It looked reddish blac| cmx2 cm x % cm. Face slighfl extemally. In her reply of Ex. Ff. found over the deceased neclt same could be caused by rop^. peflsons steted that ligature mark foun<|l cbl<l[("1<nTf •MI^I<?lT Tf,'feI3l' <^4^K ^sifiTTsn^r jn that she died by hanging. It is itil confession made by the appeltant [ (PW/5) & Rajaram (PW/6) though it ijcial confession was made by the >, however, no other witness of }en examined. The reason for false 1e accused in his statement under It been considered and therefore e be sustained. ied counsel appearing for the State ^nt. counsel for the parties. We have (mpugned judgment. of death of Chandrautin Bai is Agrawal, who condireted the has categorically opined in the |was a ligature mark over the neck was obliquely upward on the right ^nandlbte, downwards reaching the ter border of sterno claido mastoid |< poreh next like abrasion of size 14 iy congested. No other injuries seen L2(A) to the query that ligature mark was possible by homicidal and the In reply to the query the doctor has on the deceased's neck anteriority g^T ^ww^, QTS\ww, is|0iyy 3II^T ^iT [^•lish 'cfSff 3TT^T sh^liq) ^giwgfta sn^r Has region did not look like a hangin^ evidence of Doctor Smt. Tara Agijawal (RW/5) and Rajaram (PW/6) confession in which the appeltant wife and caused her death. Thusl established that deceased Chandr^utin The cireumstances relied convicting the appellant are that: mark. Apart from the above I, Mahavir Prasad Agrawal, 4re witnesses of extrajudicial admitted that he throttled his from the above evidence, it is Bai died homicidal death. |upon by the Trial Court for (1) The deceased died with the present night when the app^l home. (2) The appellant gave the deceased hang^ committed suicide after seeing her hang) (3) The appellant made Mahavir Prasad (PW/p antl trtat So far as first circumstancel held in the foregoing paragraphs deceased is homicidal in nature suicidal hanging and the appellan1| that his wife committed suicide bv So far as 2 circumstance i^ established and even it is not dispijted ^ ' :' <^E'41d41T1 ^t*i<;l{ ^^^ <^t^K ^73tRPT3iI^[ Ihomicidal death while residing api^ellant in her home and in the llant was alone present in the fEllse information in the police that ^d herself from the roof and he brought down the deceased |ng in the morning. |extra Judicial confession before fe and Rajaram (PW/6). is concerned. we have aireadv the cause of the death of the land it was not as a result of gave merg intimation informing tfanging. concerned, it has already been that the deceased died whiie "~(!"~I it!lff!"» "^%s. ,.^s?.^- "'^ if "ssas'a'i 'ft. .fp .ff t-HC—'i 3^cT '<ii<ii!?><i|, ®Tii^*i<o,isi<?iiyy,< SII^T 1BW ('^f^RtT^ STl^t ?>T ft4|eh J 'tTSff 3TR^T sb^(P^ r ^giwgf^t sn^r -6 she was residing in the matrimc|nial home with the present appellant. The third and materiai circum that he made extra-judicial confe; ^ra^Wti-il Hi^<"?f '^\f?(:^ <R^^K IT 3iSa*T SII^T stance against the appeltant is tsion before Mahavir Prasad Agrawal and Rajaram is concerned, S/lahavir Prasad has stated that son of Chandrautln Bai namelv Duk^lu did not reside with her and resided separately. In the night of tt(e incident Chadrautin Bai was watching video programrrie near hi^ surprised to learn about her death son Dukalu who informed that she and thereafter she went to graze his | how she died. In paragraph 6, thi^ inquest the dead body was sent fo| was sent, 8 to 10 persons sitting n| house and therefore, he was |n the morning. He asked her |comp!ained pain in the chest goat and he is not aware as to witness has stated that after postmortem. After the body &ar the house of the accused asked him as to how it happened, s|ie was a simple lady, at that juncture, the accused told in their pr^sence that he wanted to have sex with his wife, however, she us^d to refuse and therefore, he ctimbed over her chest while she wa^ steeping on cot and pressed her neck with the help of rope and mbrdered her. The accused has taken a defence in his examination tnder Section 313 of the Code that witness Mahavir demanded Rs.1.000/- from him after the death of his wife, which was refused by hirti and therefore, he has fatsely implicated him in the crime. Howev^r, nosuch question was putto the said witness in his cross-exanlination and this defence has been taken for the first time in the ex^mination u/s 313 of the Code. INIrl -HC—78 7S:ET='ffTT553c, ^Tf)'M'l<o, isl^iyy 3^'?T^Tp;-)i°h OTT 311^1 shW'h ai^?r XRW (i^f-iaiiET) ^gKR "Hft? SiI^T 7- Rajaram (PW-6) has aiso deDosed in the similar fashion that the appeilant made extrajudicia otherwise inspire confidence of th In the result, the appeal b' to be dismissed and is accordingl' ± •*i<<i<'i''fl-) 'W^V ^fS^I '(fSR^R ^TaffipTsn^ff confession that he caused the death of Chadrautin Bai by strartgulating her virtth the rope. This witness has not been cross-e^amined and therefore, in our considered opinion non-examinatjon of the other witnesses before whom extra-judicial confession w^s made by the appellant will not impeach the credibility of the abo'|/e two witnesses whose evidence |s Court. ^ing devoid of substance is liable dismissed. Kw sa'- T.¥.StaaTma JudSe k