iwai "'Ss HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMASc HON'BLE MR. R.L. JHANWAR, JJ. CRIMINALAPPEAL N0. 738/03 APPELLANT (IN CUSTODY) RESPONDENT: VERSUS Sant Lal son of Ram Sai aged 25 year&? Resident of village Nava^avade P.S. Koyalibeda District Kanker (€.G.) State of Chhattisgarh. APPEAL UNDER SECTION 374 (21 OF THE CODE OF Cr.P.C^ 1973. - Present:- Ms. Rrishna Gupta, Advocate for the appellant. Mr. Sandeep Yadav, Dy. G.A. for the State/respondent. :l':-i r'ft ORAL-JUDGEMENT (Passedon 18/01/2011) The following iudgment of the Court was passed by T.P. Sharma. J:- 1. Challenge in this appeal is~'ta~ the judgment of irl,' , I:... ^. - . ,^.^^.-,^,.. _. , conviction and order of sentence dated 30/4/2002 passed by 4th Additional Sessions Judge (F.T.C.), Kanker in Sessions Trial No. 458/2001 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of his wife Dayawati and coneealing the evidence of crirainal case, convicted the appellant under Sections 302 SE 201 of the Indian Penal Code and sentenced imprisonment for life with fine of Rs. 1000/-, ^"v !,:E^^ms^vt '€ in default of payment of fine amount additional rigorous imprisonment for 6 months, rigorous imprisonment for 2 years with fine of Rs. 1000/-, in default of payment of fine amount additional rigorous imprisonment for 6 nionths. Conviction is impugned on the ground that without any <f'. iota of evidence sufficient for conviction of the appellant, Court below has convicted and sentenced the appeUant as aforementioned and thereby committed an illegality. As per case of the prosecution, appellant was residing with his wife Dayawati (since deceased) in village Nawragawdegaon, Police Station Koyalibeda. On fateful day of 9/5/2001 appellant was present in his house and caused the death of his wife Dayawati by strangulation thereafter on 10/5/2001 he went to the Police Station and lodged Marg intimation vide Ex. P- 12. Investigating Officer left for scene of occurrence and after summoning the witnesses, inquest over the dead body of deceased Dayawati was prepared vide Ex. P-1. Blood stained and plai'n soil were recovered from the spot along with one stick stained with blood vide Ex. P- 2. Dead body of Dayawati was sent for autopsy to Govemmenf Hospital, Koyalibeda vide Ex. P-9. PW10 -»/' r - Dr. R.K. Shrimali conducted autopsy vide Ex. P-10 and found following injuries and symptoms:- (i) Tongue protended and bitten by teefh. Vagina lacerated. (ii) Injury found irr front of the neck just" below thyroid cartilage. (iii) Bruise over right elbowjoint of I" x l/2". (iv) One bruise of VS" x,.i^" below the injury No. 1. (v) One bruise of Va" above'injury No. 1. (vi) Irregular bruises over right elbowjoint of 1" x 1A". (vii) Bruise of Va" x W near left axailla. (viii) Bruise of Ya" x l/2" near left axallia. (bc) Bruise of 1/2" x l/2" near left axallia. (x) 4 bruises over back with irregular shape and size. (xi) Trachea was congested. (xii) Injury was caused by hard and blunt object. Mode of death was strangulation and death was hoxnicidal in nature. Patwari prepared spot map vide Ex. P-8. Appellant was taken into custody; he made discloser statement of stick vide Ex. P-6 and same was recovered at the instance of appellant vide Ex. P-2. Stick was examined by doctor vide Ex. P-11. On the basis of marg intimation, finally First Information Report was lodged vide Ex. P-13. Map was prepared vide Ex. P-15. Seized articles were sent for medical examination. Statements of the witnesses were recorded under Section 161 ofthe Code ofCriminal Procedure, 1973 (in ;•-.<'' ^me'vff^" tir,i:''" BS; B .':\ ^) short 'the Code'). After completion of the investigation \, charge sheet was filed before the Judicial Magistrate First Class, Bhanupratappur who in turn committed the case to the Court of Sessions, Kanker from where learned 4th Additional Sessions Judge (F.T.C.), Kanker has received the case on transfer for trial. •li. In order to prove the gui^t of the appellant/accused 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, innocency and false implication is claimed. After affording an opportunity of hearing to the parties learned 4th Additional Sessions Judge (F.T.C.), Kanker has convicted and sentenced the appellant as aforementioned. Ms. Krishna Gupta, learned counsel for the appellant and Mr. Sandeep Yadav, Dy. G.A. for 'fhe State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that conviction of the appellant is based on circumstantial evidence. In order to sustain the conviction on.- the basis of circumstantial evidence, prosecution is required to satisfy the following tests:- N. ^:; 1 ' "-'^r^ \. 10. ll^ 12. \ ^ i. the circumstances from which an inference pf guilt issought to be drawn, must be cogently and firmly established; ii. those circumstances should of a definite tendency unerringly pointing towards the guilt of the accused; iii. the circumstances taken cumulatively should form a chain so complete that there is no, esoape from the conclusion that within all hyman probability the crime was committed by the accused and none else; and iv. 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 not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the present case, prosecution has not proved the complete chain of circumstances for drawing an inference fhat only appellant has committed the offence and except appellant nobody has committed the offence J and excludes the possibility ofhis innocence. Learned counsel for the appeUant further argued that present appellant has iritimated the Marg that his wife has committed suicide by hanging in his house but he has been falsely implicated in crime in question. On the other hand, leamed Dy. Govt. Advocate for the respondent/State opposed the appeal and submits that as per autopsy report cause of death was asphyxia as a iJ-....- "-? ' /e5f.^!!^ i'l1..—:..i ^-.^^ result of strangulation and. injuries were found over the body of deceased but with a view to conceal the evidence of criminal case, present appellant has falsely lodged the report that his wife has died as a result of hanging and committed suicide. 13. Leamed counsel for the State/respondent further •<<- submits that evidencev adduced on behalf of the prosecution is sufficient for drawing definite conclusion that only appellant has committed the aforesaid offence and except appellant nobody has committed the aforesaid offence. 14. In order to appreciate the argument advanced on behalf of fhe parties, we have examined fhe evidence adduced on behalf of the prosecution. 15. In the present case, learned counsel for the appellant subraits that deceased has committed suicide but as per evidence of PW10 Dr. R.K. Shrimali and autopsy report Ex. P-10 cause of death was asphyxia as a result of strangulation and death was homicidal in nature. Defence has cross-examined this witness at length, in his detail cross-examination he has categorically deposed that death was as a result of strangulation and not as a result of hangi.ng. Present appellant has lodged Marg Ex.-P-12 in which he has not admitted the guilt therefore, same can be safely relied. Ex. P-12 Marg 'iS, .'i}-.,,,^yj I1K; v?''".^' '5Z /~ reveals that his wife has committed suicide by hanging \ and dead body was kept in his house. He has not infornied Police that who has removed the dead body although dead body was lying in the house pf appellant. In absence of any injury relating to hanging and positive sign of strangulation as per evidence of PW10 •'f. Dr. R.K. Shrimali, it is ^ifficult to hold that death of deceased was suicidal and not homicidal. Evidence of PW10 Dr. R.K. Shrimali is sufficient for drawing an inference that death of Dayawati is homicidal in nature. 16. As regard the complicity of the appellant in crime in question, conviction is based on circumstantial evidence, prosecution has adduced the evidence relating to following circumstances:- (i) Appellant and deceased Dayawati was residing together in one house. (ii) Homicidal death of Dayawati caused in the house of appellant. (iii) Appellant has lodged Marg intimation Ex. P- 12 in which he has offered explanation that his wife has committed suicide which is patiently false. (iv) Appellant has not'offered other explanation relating to homicidal death of his wife Dayawati. Although he was under obligation to offer explanation. 17. In case of'conviction based on circumstantial evidence, as held by the Supreme Court in the case of C. Changa ',/ -{••r-—-! Sii- ! ^ ''%>.. '•' '"1»-... i\ 18. Reddy v. State ofA.P., the prosecution is required to adduce evidence and such evidence must satisfying the , following tests:- i. the circurastances frora which an inference o? guilt is sought to be drawn, must be cogently and firmly established; ii. those circyrustances should of a definite tendency unerringly pointing towards the guilt ofthe accused;. iii. the circumstances taken cumulatively shoUld form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and iv. 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 not only be consistent with the guilt of the accused but should be inconsistent with his innocence. While dealing with the same question in the case of Dhananjoy Chatterjee Vs. State pf W.B. the Supreme Court has held that :- "In a case based on circuinstantial evidence, the circurastances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and ' AIR-1996 SC 3390 : (1996) 10 SCC 193 2 (1994) 2.SCC220 El :i iLi consistent only with the hypothesis of the guilt of the.accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be s.o tomplete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no remind^r that legally established circumstances and ftqt merely indignation of the court can forin the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." 19. In the present case, as per evidence of PW10 Dr. R.K. Shrimali, death of deceased Dayawati was homicidal in nature as a result of strangulation and not as a result of hanging. Present appellant has not lodged Marg or report that his wife has been died but has lodged Marg that she has coinnaitted suicide in his house which is patiently false in the light of evidence of PW10 Dr. R.K. Shrimali. 20. As per evidence of prosecution witness whom prosecution has declared hostile the dead body of deceased was lying in the house of appellant. As per evidence, appellant has removed the dead body which was hanging in his house but injuries were found on the body including injury over neck. Appellant has not , , offered any explanation that who has caused injuries ^ and how injuries were found in the body of deceased. He was residing with the deceased Dayawati in his house, he has not offered any explanation that at the time of such incident, he was not present. Aforesaid facts proved the following circumstances fhat:- (i) Dayawati has died as a result of strangulating •'(;. and not as a resiilt of hanging. (ii) Appellant was present in the house when the incident took place. (iii) Appellant has offered false explanation by MargEx. P-12. (iv) Appellant has not offered any explanation relating to cause of death of his wife. 21. If aforesaid circumstances are considered togefher then only inference would be possible that only appellant has committed the culpable homicide amounting to murder of his wife Dayawati and has concealed the evidence of criminal case by showing the same as a case of hanging and except appellant no other person has committed the aforesaid offence and same is sufficient for excluding the possibility of his innocence. 22. After appreciating the evidence available on record learned 4U1 Additional Sessions Judge (F.T.C.), Kanker has conyicted and sentenced the appellant as aforementioned. Convicti.on of the appellant is based on credible, clinching and legal evidence sustainable under the law. ^ 23. On close scrutiny pf the evidence, we do not find any illegality or infirmity in the judgment impugned. Consequently, criminal appeal is devoid of merits, sarae is liable to be dismisse'd and is hereby dismissed. Sd/- T.P. Sharms Judge Sd/- R.L.Jhanwar Judge