•\\ ^ HIGH COURT OF CHHATTISQARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P. SHARMA & HON'BLE MR. RANGNATH CRIMINAL APPEAL N0. 113/2006 APPBLLA3S[TS (IN JAILj ic; 1. 2. 3. VBRSUS RESPONDENT Narendra, S/o Anand Das, Aged about 23 Yeai's, Caste Satnami. Anand Das, S/o Kebal Das, Aged about 40 Years, Caste Satnami. Geetabai, W/o Anand Das, Aged about 38 Years. All R/o ViUage- Tingipur, Thaaa- Mungeli, District- Bilaspur (C.G.) State of Chhattisgarh, Through P.S. Mungeli, Distdct Bilaspur (c.a) c CRIMINAL APPEAL UNDBR SECTION 374121 OF THB CRIMINAL PROCEDURE CODE 1973. Prescnt:- Mr, HeiiiLaat Kesharwaoi, Advocate for fhe appeUaixts. Mr. J,A. Lohaai, P.L. for the State/respondent. JUDGEMENT fPassedon 08/l2/201l| The following iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in fhis appeal is to the judgment. of conviction and order of sentence dated 10/01/2006 passed by Additional Sessions Judge, Mungeli, District BUaspur (C.G.) m Sessions Trial No. 235/2005 whereby and where under after holding the appellants guttty for commission of offence of culpable homicide amounting to murder of Savitabai, wtfe of appellant No. 1 Narenclra 8& daughter-tn- :-^'^'-" r^^"^ ^fSKS^^^- ^, Is..,...^ -.%^1?^ ^: law of appellants No. 2 & 3 namely Anand Das & Geetabai in sharing common intention, convicted fhe appeUants under Section 302 read wifh Section 34 of the Indian Penal Code and sentenced miprisonment for life & fine of Rs. 1000/-, in default of payment of fine ainount, additional rigorous imprisonment for 6 months to each appellant. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of tlie appellants, Courts below has convicted and sentenced ftie appeliants as aforementioned and thereby committed an illegality. As per case of the prosecution, unfortunately Savitabai (since deceased) wife of appeUant No. 1 Narendra & daughter-in-law of appellants No. 2 8& 3 namely Anand Das & Geetabai was residing with appellant at village Tingipur, TahsU MungeU, District Bilaspur. On 19/4/2005 at about 4:00 P.M. all fhe appellants brutally assaulted Savitabai and caused her death by fhrottltng. Appellant No. 2 Anand Das lodged Marg mtimation on 20/4/2005 at about 11:30 A.M. at Police Station, Mungeli in which he has infornied the Police that on account of some dispute, appeUaat No. 1 Narendra assaulted Savitabai and caused some injuries thereafter whUe they were bringing her to Mungeli Hospital, she died durmg course of joumey. Appellants informed PW4 Narayan Prasad Manhar, fafher of Savitabai. PW4 Narayan Prasad Manhar lodged DehaUnalishi on ^: € 20/4/2005 vide Ex. P-10 against aH fhe appellants. On the basis of Ex. P-10, First Information Report was registered vide Ex. P-9. Investigating Officer left for scene of occurrence and al'ter summoning fhe witnesses vide Ex. P- 7, inquest over the dead body of Savitabai was prepai'ed vide Ex. P-8. Spot map was prepared vide Ex. P-1. Broken piece of bangles & hairs of head of deceased found in flie room of appellant were seized vide Ex. P-2. Babool stick was seized from appellant No. 1 vide Ex. P-5. Dead body of Savitabai was sent for autopsy to Community Health Center, MungeU Vide Ex. P-11A where PW8 Dr. Smt Usha Suiyavanshi conducted autopsy vide Ex. P-11 and found following injuries & symptoms:- (i) Eyeballs protruded. (ii) Pupils dUated. (iii) Blood mbs: t'rofli coming out from bofti the nostrils. (iv) Dried blood stain mark seen on right ear. (v) Tongue was protruded and bitten by teeth. (vi) Face swollen. (vii) Lips are markebly swollen. (viii) Blue cynosed thumb Uke impression on right cheek of8 x 4 c.in. (ix) Neck swoUen & cynosed of 10 x 5 c.m. (x) Contusion of 15 x 3 c.m. over right side of chest. (xi) Contusion of 10 x 5 c.m. over left side of chest ^'"^& '"^•^%. ,'( ^ ^ '^^ife ^:!/ €-. G. (xii) Contusion of 8 x 3 c.m. over chest. (xiii) Abdomen is markebly distended. (xiv) Two contusions of 8 x 3 c.m. over right side of abdomen. (xv) Two contusions oflO x 5 c.m. over left side of abdomen* (xvi) Contusion of 5 x 3 c.m. over pubic area. (xvii) Contusions of 15 x 3 c.m., 10 x 3 c.m., 5 x 3 c.m., 15 x 3 c.m., 10 x 3 c.m. & 5 x 3 c.m, over back. (xviii) Blue cynosed contusion about whole upper arm. (xix) Three contusions of 10 x 3 c.m. over left forearm. (xx) Contusions of 10 x 3 c.m. &8 x 3 c.m. over right upper aiin. (xxi) Four contusions of 8 x 3 c.m. over right forearm. (xxii) Bofh wristjoints are freely movable. (xxiii) Four contusions of 10 x 3 c.m. over left buttock. (xxiv) Three contusions of 10 x 3 c.m. over right buttock. (xxv) Three contusions of 15 x 3 c.m. and bvo contusions of 10 x 3 c.m. over left fhigh. (xxvi) Three contusions of 10 x 3 c.m. and ^wo contusions of 15 x 3 c.m. over right fhigh. (xxvii) Three contusions of 15 x 3 c.m. and t\vo contusions of 10 x 3 c.m. over left leg. (xxviii) Two contusions of 10 x 3 c.m. and tw^o contusions of 8 x 3 c.m. over right leg. (xxix) Genitals are markebly swollen. (xxx) Fracture on right distal end of radius. ^.»:'' 'i^. ^^ k fc Q (xxxi) Fracture on left distal end of ulna. (xxxii) A liner fracture was foiind over thyroid cartilage. (xxxiii) Internal organs are congested. Mode of death was asphyxia due to throttling, deatih was homicidal in nature. Statements of the witnesses were recorded under Section 161 of the Code of Crimmal Procedure, 1973 (in short the Code'). After completion of mvestigation charge sheet was filed before Judicial Magistrate First Class, Mungeli who in tum committed the case to the Court of Sessions, Bilaspur from where leamed Additional Sessions Judge, Mungeli, District BUaspur (C.G.) has received the case on ti'ansfer for trial. In order to prove the guilt of the appellants prosecution examined as many as 12 witnesses. AppeUants were examined under Section 313 of fhe Code where they denied the circumstances appearing agatnst them, tnnocency and false tmplication in crime in question are claiiried. Appellant No. 1 Narendra has taken defence that on fhe date of incident, at about 12:00 at noon when he came fi'om Mungeli then he was iiiformed by his brothers namely Jitendra, Dhamiendra & sister Dhanteshwad that some unknown person had come to their house, at about 4:00 P.M. and has brutally assaulted Savitabai, then he immedlately rushed to Nawagaon for giving infonnatlon to Q his mother & father, they came and took injured to Mungeli Hospital for treatment, during course of joumey, she died, Ofher appellants have taken defence fhat they were intbrmed by appellant Narendra about the incident then arranging cart and durmg course of joumey, Savitabai died. After affording an opportunity of hearing to the parties, leamed Additional Sessions Judge, MungeU, District Bilaspur (C.G.) convicted and sentenced ftie appellants as aforementioned. Mr. Hemant Keshaiwani, leamed counsel for fhe appellants and Mr. J.A. Loham, P.L. for the State/respondent are heard. Judgment impugned and record of Court below perused. Leamed counsel for fhe appellants vehemently argued that in the present case, prosecution has not collected evidence to connect the appeUants wifh crime in question. Conviction of the appellants is based on circumstantial evidence but prosecution has failed to prove complete cham. of circumstances sufllcient for pointing out guilt of the appeUants. In absence of any clinching evidence, conviction & sentence of fhe appellants are not sustainable under the law. On the other hand leamed P.L. for the State/respondent opposed the criminal appeal and argued that evidence ^SSK:.^ ^' adduced on behall' of the prosecution is sufficient for conviction of fhe appellants. Savitabai is wife of appellant No. 1 and daughter-in-law of appellants No. 2 & 3, she died in the house of appellants as a result of brutal injuries and flirottling. Appellants were mider obligation to offer an explanation that how she died, who has caused injuries to her, who was thi'ottled her neck and when & where but instead of givmg explanation, they have given false explanation that Savitabai was ill and was having simple mjury and has died during course ofjoiuney which is impossible in case ofthrottling. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of prosecution, 11. In the present case, evidence of PW8 Dr. Smt. Usha Suryavanshi and autopsy report Ex. P-11 is sul'ficient to prove fhe fact that death of Savitabai was homicidal in nature. Virtually, this is a case of brutal murder in which injuries over eve^ part of body of deceased have been noticed tncludmg private part and markebly swollen has been noticed over face & private part, more ttian 30 injuries have been noticed over ftie body uicluding fracture of bofh the hands and thyroid cartilage. 12. As regard fhe complicity of appeUants in crime m question, appellant No. 1 Narendra has taken speciflc defence that / ^^^•^. -i. ;t i •'«^.1: '^& *ss/ '^teEE^^ c- he was not present in ttie house, he was mfonned by his brofhers namely Jitendra, Dhannendra & sister Dhanteshwad, these facts have not been suggested to any of fhe witnesses. Appellant has not adduced any evidence in support of aforesaid facts. Ofher two appellants had also taken defence that they were informed by appellant No. 1, when they were brtnging Savitabai to Mungeli Hospital, during course ofjoumey, Savitabai died on 19/4/2005. As per explanation offered by appeUant No. 1, some uiiknown person came to Iiis house and brutally assaulted his wife on 19/4/2005 but he has not lodged First Infonnation Report on or after 19/4/2005 relating to such meident agaiiist any unknown person interalia appellant No. 2 Anand Das has lodged Marg intimation on 20/4/1994 in which he has mformed the Police fhat Appellant No. 1 Narendra caused some inju^ to Savitabai which is contradictoiy to defence of present appellant No. 1 Narendra, they have not adduced any evidence to show that why durmg course ofjoumey, Savitabai died that too near Mungeli even they have not lodged any report at Mungeli when she died and when appellant No. 1 was having special knowledge that somebody had assaulted his wife. These all facts and circumstances show that defence of appellants are after thought and does not find supports from any evidence. :^- .. R...^ ^ '^.^rf^ c- 1- 13. Dead body of Savitabai was found in the house of appellants and as per seizure Ex. P-2, broken piece of bangles and hairs snatched from head of Savitabai was found m fhe house of appellants, atbresald death along with injuries have not been substantially disputed by fhe appellants. Prosecution witnesses have not directly supported the case of the prosecution. PW4 Narayan Prasad Manhai', father of Savitabal & PW5 Sammat Bai, mother of Savitabai have specifically and categorically deposed against all the appellants that they have committed murder of their daughter. Defence has cross- examined PW4 Narayan Prasad Maahar m detail, m Para- 38 of his cross-examination, he has admitted facts on fhe basis of suggestion given by defence fhat he was intbrmed by appellants No. 2 & 3 ftiat when fhey came from Nawagaon, at fhat time, Savitabai was agonizmg then they took her to Mungeli Hospital by cart, during course of joumey at Mungeli near Electiricity Ofiice, she died then they again took her back to their vUlage. Defence has also suggested PW5 Sammat Bai, in Para-39 of her cross- examination, she has admitted that she was inlbrmed "by appellant No. 1 that Savitabai was sufiermg from fever and while th.ey were taking her to Mungeli Hospital for treatment and durmg course of journey, she died near Electricity Office. '^^. .^'^^%^ ^./.i " - '^ ' ^ r 10 14. The suggestions given by defence to PW5 Sammat Bai, although denied, reveal that Savitabai has died as a result of natural death i.e. on account of illness and fever which is patently false in fhe ligtit of inedical evidence and even on fhe basis of defence taken by appellant No. 1 Narendra. As per autopsy report, Savitabai died as a rcsult of throttling but as suggestion given by defence to PW4 Narayan Prasad Manhar & PW5 Sammat Bai, Savitabai was alive when they saw and she alive tfll reaching Mungeli by cart, distaace of village where they took ttie tnjured to Mungeli is 20 Kms. which shows that she was alive for more than an houi' which is also patently talse in the light of evidence of doctor and autopsy report Ex. P-11. These all suggestions, evidence adduced on behalf of tlie prosecution and ctrcmiistances shown by fhe prosecution is sufficient to establish the facts that Savitabai died in the house of appellants, her death was homicidal and as a result of throttiing, she has been brutally murdered, huge number of tnjuries in different parts of her body were noticed, most part of her body was swoUen mcluding private part, both the hands and fhyroid cartridge were fractured, fatal injury was found over fhe neck. In these circumstances, appellants were under obligation to offer aii explanation that who has caused such huge number of injuries and who has committed throtfling, they have y !t.' 11 offered inconsistent and contradictory explanation who have been they do not support, such explanation does not appear to be nature or possible. In absence of reasonable explanation by the appellants that in whose custody Savitabai died, onty presumption would be possible in terms of Section 106 of the Indian Evidence Act that appellants were author of crime, they have committed ^ homicidal deafh with intent to cause death of Savitabai. 15. After appreciating the evidence available on record, learned Additional Sessions Judge, Mungeli, District Bilaspur (C.G.) has rightly convicted and sentenced fhe appeUants as aforementioned. 16. On close scrutiny of the evidence, we do not fmd miy illegality or inllrmity in the judgment of conviction and order of sentence. Consequently, crimmal appeal is devoid of merits, same is liable to be dismissed and is hereby dismissed* Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge /^^