^...^ @ IN THE HIGH COURT OP J13BICATX?RE CHH^TFISGARH AT BTIASPUR CR.APPSM, H0.'76~:?!- /2002 APPELLANT (3o N\ Goverdhan Ram Sahu S/6 Suldi Ram Salm Aged aboitit 26 years» R/^p village! *KhattJ.?A P • S o Magarlo^ Teh^:Kurwa^ ©istt»©hamtari(CG) . / ^7 T VER.SUS Itespoi®^? q^ o' State of Chhattisgarli Throxagh P.S. tMagarlod^ Disfct^ laiamtari < «° CRIMIH&I, APPEXL UBDER SECTION 374(2) OP THS CODE OF CRININMi P R OC B B U R E L., HI^H COUKT OF JUDICATURE AT BILASPUR. CHHATTISGARH fDIVISION BENCH^ Criminal Appeal No. 757 of 2002 Goverdhan Ram Sahu - Versus - State of Chhattisgarh JUD&MENT FOR CONSIDER^TION Sd/- ^TV^^T 03-2-2006 HON'BLE MR. JUSTICE DHIRENORA MISHRA Sd/- Dhirendra Mishra Judge POST FOR JUDGMENT ON 6TH FEBRUARY. 2006 Sd/- L.C. Bhadoo Judge ^B HI<?H COURT OF CHHATTIS^ARH. BILASPUR Criminal ApDeal No.757 of 2002 6overdhan Ram Sahu - Versus - State of Chhattisgarh Present: - AAr. T.K. Tiwari, Advocate: Mr. Akhil Mishra <& Mr.M.P.S. Bhatia, Panel Law/yers: For the appelicint. For the respondent/ State DIVISION BENCH: - HON'BLE MR. L.C. BHADOO AND HON'BLE MR.DHIRENDRA MISHM. JJ. JUDGMENT (Deiivered on _<?t^February, 2006) The foliowinq JudQment of the Court was d^iivered by jS.-^ Bh^dac^ J1:- 1. By this appea! under Section 374 (2) of the Code of Criminai Procedure appellant &overdhan has questioned the legaiityof judgment of conviction and order of sentence dated 17t July, 2002 passed by learned Additional Sessions JucJge, Dhamtori in Sessions Tria! No.7/2001 whereby learned / Additional Sessions Judge after holding the accused/ appetlant &overdhan guilty for commission of offence under Sections 302 & 201 of the Indian Penal Code for committing murder of his w\fe Tomin Bai sentenced hirn to undergo imprisonment for iife and to pay a fine of Rs.2,000/m/ in default of payment of fine to further undergo rigorous imprisonment for one year;and R.I. for 5 years and to pay a L__._:: Page 2 of 13 fine of Rs. 2/000/-, in default of payment of fine to further undergo rigorous imprisonment for one year respectively. 2. The prosecution case, in brief, is that Radha Bai was married to the accused/appellant &overdhan, as she WGS not abie to conceive,. therefore/ in the year 1999 Tomin Bai (since deceased) was married with accused/appellant. As Tomin Bai was not ailowing the accused/appellant to have physical retations with her, therefore, in the intervening night of 19th <& 20th September, 2000 when Tomin Bai was steeping in her room the accused/appellant vi/ent to her room and pressed her neck with the hands and she died as a result of asphyxia du@ to strangulation. In order to cause disappearance of the evidence and to create evidence that Tomin Bai has died on account of consumption of poison/the Qccused/appeIlQnt put the pesticide in the mouth of Tomin Bai. Further case of the prosecution was that the accused/appellant along with his famity mernbers used to harass and subject Tomin Bai with cruelty for not bringing sufficient dowry. Accused &overdhan gave false information to the police that Tomin Bai has died on account of consumption of poison. Based on the report, Station House Officer initiated investigation and reached to the scene of occurrence, after givlng notice (Ex.P-l) to the Panchas prepared the Panchnama (Ex.P-2) of the body of deceased Tomin Bai. As PW-1 ChQndulal/ father of deceased Tomin Bai raised suspicion about thc cause of death of Tomin Bai, therefore, it was decided to send the body of Tomin Bai for postmortem examination and sameWas sent for postmortem examinGtion to the Community Health Centre, MagarioGcl where Dr. K.K.Soni (PW-9) along with Dr. Navratan conducted postmortem on the body of deceased Tomin Bai on 21.9.2000 at about 11.30 a.m. and found that thyroid cartilage of Tomin ?L '"•E":SK^2;r"m2"*S?s"S: Page 3 of13 Bai was ruptured, there was bruising and ecchymosed on the neck, bruising on deeper tissues, larynx & pharynx were congested, tungs, iiver, spteen/kjdney were congested, bloody mucous was coming out from the mouth <& nostrils and doctor opined that mode of death of Tomin Bai was asphyxia as a result of strangulGtion, may be ciosure of air passage by external pressure on the neck ond the death is homicidal in nature. 3. On receiving this postmortem report (Ex.P-9), Station House Officer Shri K.R.Bhoi, Police Station MQgartoad registered the F.I.R. (Ex.P-4) on 24.9.2000 for commission of offence under Section 302 of the I.P.C. Site plan (Ex.P-5) of the piace of occurrence and where the body of deceased Tomin Bai was lying was prepared by the Investigating Officer. During poiice custody accused/appellant &overdhan gave memorandum (Ex.P-6) under Section 27 of the Evidence Act regarding the place where he kept the bottle of pesticide and in pursuance of that he got recovered one plastic bottle 'Parch/ar' under Ex.P-7. One piastic cap of the bottle in which smeil of pesticide WQS present was also taken into possession under Ex.P-8. 4. After compietion of investigation, charge sheet was fiied against the accused/appellant &overdhan for commission of offence under Sections 302. 201 <& 498-A of the I.P.C. and also against Sukharam, father of accused &overdhan, Smt. Ramhala Bai; mother of accused &overdhan, HemlQl/ brother of Gccused &overdhan <& Smt. Radha Bai, first ^/ife of accused 6overdhan for commission of offence under Section 498-A of the Indian Penal Code in the Courtof learned Chief Judicial Magistrate, Dhamtari who in turn, committed the case to iearned Sessions Judge, Raipur, from where tearned Additional Sessions Judge, Dhamtari received the CGS€ on Page4ofl3 r ./ /@ transfer for trlal. Learned Additional Sessions Judge after hearing learned counsel for the parties and perusal of record was of the opinion that offence under Sections 302, 201&498-A of the Indian Penal Code against the accused/appeltant &overdhan and offence under Section 498-A of the Indian Penai Code agGinst Sukharam, Smt. Ramhala Bai, Hemlal & Smt. ftadha Bai w/ere prima-facie made out, therefore, he charged the accused persons for the aforesaid offences. However, the accused persons abjured the charge. 5. The prosecution in order to prove the charge against the accused persons examined nine witnesses. On the other hand, iearned Additional Sessions Judge recorded the statements of the accused persons under Section 313 of the Cr.P.C. in which they denied the prosecution evidence appearing against them. Accused &overdhan has stated that he is innocent, he had not committed murder of Tomin Bal and other persons used to come to Tomin Bai. 6. LeQrned Additiondl Sessions Judge after hcaring the arguments of the Additional Pubiic Prosecutor and counsel for the accused persons convicted and sentenced the accused/appellant &overdhan in the manner as mentioned in Para-1 of this judgment, however he acquitted the accused Sukharam, Smt. Ramhala Bai, Hemlal <& Smt. Radha Bai from the charge of Section 498-A of the Indian Penal Code. 7. We have heord Mr. T.K. Tiwari, learned counsei for the accused/appellant and Mr. Akhil Mishro & Mr. M.P.S. BhGtia, Panel Lawyers on behalf of the State/respondent. 8. It is an admitted position that In this case there is no direct evidence and the case against the accused/appellant rests on the circumstantia! evidence and in order to convict an Page 5 of13 r accused based on the circumstantial evidence as per decisions of the Hon<ble Apex Court in the matters of Padala Veera Reddy Vs. State of A.P. and others reported in AIR 1990 SC 79; Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 and in other decisions, the circumstantial evidence must satisfy the fotlowing tests: a, the circumstances from which an inference of guilt is sought to be drawn, must be cogentiy and firmty established; b. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; c. the circumstances/ taken cumulatively should form a chain so complete that there is no escape from the conclusion that w/ithin ail human probability the crime WQ€ committed by the accused and none else; and d. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should be not onty be consistent with the guilt of the accused but should be inconsistent with his innocence. 9. Learned counset for the accused/appellant argued that based on the above tests the prosecution has utterly faiied to prove the offence against the accused/appeilant for which he has been convicted by the trial Court. He argued that as per postmortem report <& prosecution co.se, deceased Tomin Bai died on account of asphyxia as a result of stranguiation, but as per postmortem report & medicai evidence no external Page 6 of 13 injury was found<on the body of deceased, whereas as per prosecution case accused/appellant after pressing both the hands of deceased with the legs pressed the neck of deceGsed Tomin Bai with the hands. As per doctor's evidence thyroid'cartilage was found ruptured/ in such a case there must have been externat injury on the neck and as no injury WQS found on the neck of deceased, therefore, that falsify the prosecution case. He further argued that when accused/appellant tried to press the neck of deceased, in ordinary course, the deceased must have tried to save herself and in that process she ought to have received injuries/ but no injuries were found on her body. He also argued that in the mouth of deceased Tomin Bai/ pesticide, a poisonous substance, was found and as per doctor's report viscera were preserved for chemicat examination but no report has been placed on record by the prosecution, therefore, the defence case that Tomin Bai consumed poison cdnnot be ruled out. H€ further argued that as per postmortem report finger nails were bluish and that can only be due to consumption of poison. Learned counsel for the accused/appeiiant also fiied written submission in support of his arguments. 10. On the other hand, learned Panel Lawyers for the State/respondent supported the judgment of the trial Court. ll.In order to appreciate the arguments advanced by iearned counsel for the accused/Qppellant if we look into the postmortem report (Ex.P-9) in which it has been mentioned that on external examination the body was found cyanosed and swollen, ear and finger nails were bluish in colour, bloody mucous was coming out from the mouth A nostrils, eye- conjunctive congested, pupil ditated, chest abdomen genitalia r Page 7 of13 ^" V"- J limb neck has swolten, congested blackish incolour, on neck ligature mark is not seen oniy seen swelling blackish congested, rupture of thyroid cartilage and muscle sweiting, bleeding from ear. On internal exQmination doctor found that on the neck ecchymosed on sub-cut tissue, bruising and ecchymosed on the neck, on cut section, bruising on deeper tissues, larynx & pharynx were congested/ heart is empty/ iarge veins are full of blood and he opined that "mode of cieafh is asphyxia due to strangulation, may be closure afair passage by external pressure on the neck and nature af death is homicidai^ 12. PW-1 Chandutal, father of deceased Tomin Bal, has stated that since there was no child from the first wife of accused &overdhan that is why he married with his daughter Tomin Bai. He further stated that Tomin 3ai gave birth to a female child, however, that child died on account of weakness. He went to the accused house and brought Tomin Bai to his house on Pola festival. Tomin Bai remained at his house for 15-17 days and thereafter she was sent to the accused house. After 4-5 days accused Hemlal came to his house and informed that Tomin Bai has consumed poison and she was taken to Marload. When he enquiredl from the vitlagers about the death of his daughter, they told that one day before the incident accuscd &overdhan had beaten Tomin BGJ/ therefore, she called the PanchayGt of vilEage. PW-4 Laduram hasstated that on the Dusshera day Tomin Bai co.me to his house and informed him that her in-laws are quarrelling with her therefore, you cGmeand settle the matter, on which he alongu/ith Shivprasad, Awadhram, Sonau, Somaru etc went to the accused house and advised them not to quarrei and on the second day at about 5.00 a.m. Hemlal came to him and informed that Tomin Bai has consumed Page 8 of 13 / poison and she was vomiting, on which he went to the accused house. Smeil of pesticide WGS coming from the vomit. PWaw5 Awadhram has corroborated the above evidence of PW-4 Laduram. PW-9 Dr. K.K. Soni has stated that he along with Dr. Navratan conducted postmortem on the body of deceased Tomin Bai and on externGlexamination of the body found that her ears <& nails were btuish, mucous blood ^as present in the mouth & nose, eyes were congested, pupilwere dilated and there was no visible externai injury, but her neck skin was brown biackish and swelting was present. Thyroid cartitage was ruptured and clotted blood was present in the ear. On internal examination doctor found that thyroid cartiiagewas ruptured, there was blood in the brain, kidney spleen, both the chambers of heartwere empty, there was blood in the targer intestine, tissues of nose <& @ar were found fractured, there was hatf digested food in the stomach but there was no smell of anypoisonous substance in the stomach. The food, which was found in the stomach of the deceased, vi/as preserved for sending the same for chemicQt examination and in his opinion the death was on account of asphyxia as a result of strangulation. 13. Therefore, we have to appreciate the evidence in the above background. It is odmitted position that when accused ^overdhan married with Tomin BGI/ he was already married, as there was no issue from the first wife, therefore, he married with Tomin Bai. Thereafter, Tomin Bai gave birthto a femaie child who died due to weaknesis and as per evidence of.ChandulaI (PW-1), father of deceased, PW-4 Laduram & PW-5 Avi/adhram the relations of accused &overdhan with deceased Tomin Bai were not cordial. When accused and his family members harassed Tomin Bai, she approached PW-4 Laduram <& PW-5 Awadhram for settling the matter and they Page 9 of13 went to the accused house and advised them not to quarrel. Therefore, in the light of this background the medicai evidence and doctor's evidence has to be appreciated. It is true that as per medicai evidence no externai injury wae found on the body of deceased, but it is definite that thyroid CQrtilage was found ruptured, there was swelling on the neck, bloody mucous was present in mouth & nostrits, clotted blood was present in the ears, there was bruising and ecchymosed on the neck and there was bruising of deeper tissues also. PWW9 Dr. K.K. Soni u/ho has proved the above findings of postmortem examination has not been cross- examined on these aspects. Doctor has further stated that in the stomach there was no smelt of poisonous substance. But the doctor has not been cross-examined by the defence counsel on this aspect regarding consumption of poison by deceased Tomin Bai. He vs/as also not cross-examined on the aspect that whether without any visible externat injury rupture of thyroid cartilage was possibte and without cross- examining on these aspects merety arguing that no external injury was found on the body of deceased based on the medica! jurisprudence that doctor's opinion is not correct, the arguments advanced by learned counsel for the accused/Qppetlant cannot be accepted. The Hon bte Apex Court in the matter of Stat® of Madhya Pradesh Vs. Sanjay Rai reported in 2004 SAR (Criminal) 445 Supreme Coyrt has heid that "un/ess the opinions af authors are put ta fhe e^pert ejxamlned m the case the evlclence af expert cannot be discrecfit." The Hon'ble Apex Court in the matter of Sunderlal Vs. The Stat®of Madhya Pradesh reported in AIR 1954 SC 28, disapproved of Judges draw/ing conclusions by reiying upon such passages in the absence of their being put to medicai witnesses. In the matter of Bhagwaii Das and Page 10 of 13 another Vs. State of Rajasthan repor-ted in AIR 1957 SC 589 the Hon'ble Apex Court has held that ^though apfnians expressed in text baoks by speciaiist authors may he of conslderable assistance ancf importance for the Court In arnvmg at the truth, cannot atways be treated or vlewed to be either canciusive or finaf as to what such authar says to cfeprive even a Caurt of hw to comc ta an appropriate condusaan of Its oy^n an the pecuiiar facts pravecf In a given case. In substance, though such views may have persuasiye vaiue cannat afyyays be consicferedl to be Quthorstatively blnding, even ta cfispense with the actual praaf otherwise reasonQbly requirecf of the gullt -af the accusedi in a given case. Such apinians cannot be efevated ta ar piaced on hi'gher pedestai than the aplnion ofan expert examined /n Caurt Qnd the welght ordmarlly to which it may he ent/f/ec/ ta ar deserves to be gtven^ Therefore, the arguments Gdvanced by iearned counsei for the accused/appellant that since no external injury was found on the body of deceased Tomin Bai, therefore, the evidence of &r. K.K.Soni (PW-9) cannot be accepted is baseless, as the doctor who appeared before the Court was not cross-examined on this aspect. He ^QS the better person to explain because he was thc person who infact examined the body of deceased at the time of postmortem and was in a position to reply the arguments advanced by learned counsel for the accused/Gppellant. The facts and opinion of the doctor is based on his personal examination of the body, as there was a rupture of thyroid cartitage, bloody mucous was present in the mouth <& nose, clotted btood vi/as also present in the ear, swelling y/as present on the neck and even bruising and ecchymosed y/as present on the neck and there was bruising on the deeper tissues. Atl these factors are suggestive of throttling and Page 11 of 13 ^) based on that doctor (PW-9) has given his opinion. Therefore, mere absence of any ligGture mark on the neck or any external injury on the body of deceased, the above evidence of the doctor cannot be brushed aside, moreover, the above medical evidence has to be apprcciated in the light of background of the co.se, as has been mentioned above/ that the relations of Tomin Bai and accused &overdhan were not cordiQl and even one day before the incident a Panchayat of viltagers wo.s convened at the request of deceased Tomin Bai, as per evidenceof PW"4 Laduram <& PW-5 Aw/adhram. 14. Novs/ coming to the argument advanced by tearned counset for the accused/appellant that deceased Tomin Bai died on account of consumption of poison i.e. pesticide and he tried to substantiate his argument saying that deceased's noils became bluish, both the chambers of heart were found empty & congested and as per medical Jurisprudence atl these symptoms are suggestive of consumption of poison. But as per doctor's evidence no smell of poison was present in the stomach and there was no smelt of poison in the food which was found in the stomQch/show/'s that poison was not consumed by Tomin Bai rather that was put in the mouth of Tomin Bai in order to show that deceased has consumed poison. The consumption of poison is ruted out from the fact that thyroid cartilage was found ruptured and there was no explanation by the accused/appellant that how that had happened. Because the death was in the house of accused, therefore, accused was the best person to explain as to hovi/ the death took place in the house. Even the finger nails can become biuish on account of none supply of oxygen, therefore, only on the 9round of symptoms just like that bloody mucous waspresent in the mouth & nostrils and the Page 12 of 13 finger nailswere bluish, it cannot be presumed that same VI/QS on account of consumption of poison. It is true that chemical examinQtion report ofthe food material/which WGS preserved, could have been a 9reat ossistance to ascertain the fact whether the poison was present in the stomach or not, but QS the same has not been produced by the prosecution even then looking to the facts Of this case that thyroid cartilage WQS found ruptured, there was bruising and ecchymosed on neck and on the deeper tissues, the evidence of doctor (PW-9) can be accepted without the chemical examination report and the doctor has stated that no smell of poison was coming out from the stomach ofthe deceased. In the circumstances, non-production of the report cannot be hetd to be fatol to the prosecution case. Even at the instance of the accysed as per information given by the accused under Ex.P~6/ ptastic bottle of poison was recovered. 15. Moreover, perusol of Panchnama (Ex.P-n2) of the body of deceased Tomin Bai shoyi/s that PW-1 ChQnduial/ father of deceased Tomin Bai raised suspicion even at the time of preparation of Panchnama and on the inspection of slte it was found that floor of the room of Tomin Bai/ where Tomin Bai was found dead, was plastered with the dung and on enquiry the accused/appeitant informed that as Tomin Bai vomited, therefore, floor of the room has been plastered. Plastering of the floor of the room of deceased Tomin Bai before arrival of the police suggests that poison/ which was put m the mouth of Tomin Bai/must have been splashed on the ground and in order to cause disappearance of that effect the ftoor was plastered. This circumstance also shows that the poison w/as put in the mouth of the deceased in order to show that she had consumed poison. <;—., Page 13 of 13 16. In view of the foregoing discussion/ we are of the considered opinion that deceased Tomin Bai cliedon occount of strangulation and thereafter in order to misiead and cause disappearance of the evidence of murder the poison was put in the mouth of Tomin Bai and when poison splashed on the fioor, same WQS plastered with the dung. Accordingly/ we do not find any illegality or Jrregularity in the judgment of the trial court convicting and sentencing the accused/appellant under Sections 302 A 201 of the Indian Penal Code. 17. In the resuit, we do not find any merit in this appeai, therefore, same is liable to be dismissed and it is hereby dismissed. fto^han/- Sd/- L.C. Bhadoo Judge Sd/- Dhirendra Mishra Judge j^_-2-2 006