HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON’BLE MR.T.P.SHARMA & HON’BLE MR.R.N. CHANDRAKAR, JJ. I Criminal Appeal No. 784 of 2006 Sonsai, S/o Anandram Kaushik, Aged about 45 years R/o Sargaon, Police Station Hirri, District Bilaspur, C.G. x Versus State of Chhattisgarh, Through Police Station Hirri, District Bilaspur, C.G. (CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF ‘ CRIMINAL PROCEDURE 1973) Appellant (Accused in jail) Respogdent Present - Mr Mirza Kalser Baeg counsel for the appellant Mr JA Lohani Panel Lawyerforthe State JUDGMENT (Passed on _T__ 29 September, 201 1) Per T.P.Sharma, J.:- 1. Challenge in this appeal is' to the judgment of conviction & order of sentence dated 05.09.2006 passed by the 9th Additional Sessions Judge (FTC), Bilaspur, in Sessions Trial No.137/2002, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife Shakuntala Bai (since deceased), convicted under Sections 302 of the l.P.C. and sentenced him to undergo imprisonment for life and to pay fine of Rs.100/—. . Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. @) . As per the case of prosecution, unfortunate deceased Shakuntaia Bai, wife of the appellant was residing with appellant in same house at village Sargaon, police station H'irri, District Bilaspur. Relations between them were not cordial. On 30.07.2005 at morning time deceased Shakuntaia Bai went to ease with PW/17—Smt. Uma Pandey. They came back at about 7:00 am and both of them went inside their respective houses. At the same time, PW/17-Uma Pandey heard the sound ‘dhadham’ and she immediately came out from her house. At that time appellant also came a s out from the house of deceased Shakuntaia and went from her house. immediately, PW11’7-Uma Pandey entered into the house of Shakuntaia and found Shakuntaia in unconscious condition, blood was oozing from her head. Her kids PW/5-Sunita and PW/7-Pankaj were sleeping, she knocked door and told them that their mother is unconscious. PW/5-Sunita informed the same to their grant father and grand mother, thereafter PW/17- Uma Pandey came back to her house. PW/1-Tola Ram along with other persons brought injured Shakuntaia to Baitalpur hospital for treatment, there were three injuries found over the head of injured which was stitched, thereafter he brought injured to CIMS, Bilaspur for treatment and during the course of treatment Shakuntaia died. Merg was intimated vide EXP/27. PW/1—Tola Ram, younger brother of the appellant went to police station and lodged FIR EX.P/1. investigating officer left for scene of occurrence, after summoning the witnesses vide Ex.P/2-A, inquest over dead body of deceased Shakuntaia Bai was prepared vide EXP/3. Blood stained and plain soil was recovered from the spot vide Ex.P/7. Dead bc-dy of deceased was sent for autopsy to CIMS, Bilaspur. Dr. Khulesh Kumar Mandle (PW/8) conducted autopsy vide EXP/13 and found following injuries:- i) Incised wound of 5.2 cm in Iength, 5 stitches were found. Depth of injury was 1.2 cm over right occipitai bone temporal parietal region. ii) Stitched lacerated wound of 5.1 cm with 5 stitches bony deep. iii) Stitched lacerated wound of 3.2 cm with 3 stitches over right occipital region. iv) Compound fracture of occipital bone of 9.2 x 5.4 cm. Mode of death was sho'ck and injuries were ante—mortem in nature. 6. Durir’fg‘fthe course of investigation, appellant/accused was taken into custody. He made disclosure statement of ‘Kudali’ vide Ex.P/8 and 3 same was recovered at his instance vide EXP/6. Blood stained clothe i.e. iungi of appellant was seized vide Ex.P/9. Seized articles were sent for chemical examination and presence of human blood over Kudali and Iungi of the appellant was confirmed vide EXP/31. A K&"\’VK‘ 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the ‘Code’). After completion of investigation, charge sheet was tiled before the Court of Judicial Magistrate First Class, Bilaspur, who in turn committed the case to the Court of Sessions, Bilaspur from where the learned 9‘“ Additional Sessions Judge (FTC), Bilaspur received the case on transfer for trial. " 5. ln order to prove the guilt of the accused/appellant, prosecution has examined as many as 21 witnesses. Statement of the accused/appellant was recorded 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. (y . After providing opportunity of hearing to the parties, learned 9th Additional Sessions Judge, convicted & sentenced the appeliant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that conviction is based on evidence of PW/17—Uma Pandey who has deposed that she has sggn the incident and is eye witness. She has also deposed that before her appetlant left his house, which reveals that this witness has witnessed the incident and also witnessed for circumstantial evidence ' but she has not stated anything in her previous statement recorded under Section 161 of the Code as Ex.D/2 that she has seen the incident. ln these circumstances, evidence of sole eye witness does not inspire confidence and she is not fully reliable witness. He also submits that her‘ ' evidence is not safe to rely without any further corroboration from the independent source. gx’wxex‘ .7 \y 9. On the other hand, learned‘Panel Lawyer for the State opposed the ‘ appeal and submits that statement. recorded under Section 161 of the Code Ex.D/2 and evidence of PW/17-L ma Pandey is sufficient for proving the case of prosecution and Courtb'elowhas rightly conviCted ‘N ;F g and sentenced the appellant as aforementioned. 10. ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. l ‘i11.ln the present case, homicidal death as a result of fatal injuries found over the body especially on vital parts of deceased Shakuntala Bai has y not been substantially dsputed on behalf of the appellant; 'even i otherwise same is also estabiished by the evidence of Dr. Khulesh Kumar Mandie (PW/8) and autopsy report Ex.P/13 that death of deceased was homicidal in nature. 12.As regard complicity of the appellant in the crime in question is concerned, conviction of the present appellant is substantially based on evidence of PW/17-Uma Pandey and evidence of PW/1- Tola Ram. As as per the evidence of PW/17-Uma Pandey, just before the incident she «n along with deceased came back after ease and both of them went inside their respective houses, thereafter she heard the sound of assault of injured Shakuntala‘ Bai, she saw the incident from wall. Appellant assaulted deceased by Kudali then she came out from her house, appellant also came out from the house of deceased and went towards village. She went inside the house of Shakuntala where body of injured‘ ' . Shakuntala was lying in the verandah. She asked injured Shakuntala but she didrnot reply, thereafter she told to PW/5—Sunita, and PW/7-Pankaj, daughter and son of Shakuntala and sent them to call their uncle, grand father and grand mother. As per PW/1-Tola Ram, brother of the appellant and brother-in-law of deceased, his residential house is 250 — 300 foot away from the place of incident. He was informed by her niece PW/5—Sunita, daughter of appellant about the injury of deceased then he rushed to the house of appellant along with his father and saw his sister-in-iaw’s body in injured condition lying in the verandah. He immediately brought her to the hospital and finally to the CIMS, Bilaspur “’ ‘ j ‘ . where she died during the course of treatment. As per his evidenceand FIR Ex.P/1, he has not seen the incident. As per evidence of KS’W~- A " (99 PW/17—Uma Pandey except herself no other witness has witnessed the incident or has seen the appeiiant while he was going from his house. There is contradiction in. the previous statement Ex.D/2 and court evidence of PW/17-Uma Pandey specifically relating to the fact of witnessing the incident, but the fact remains that she heard the sound of assault, she immediately came out from her house and at the same time appellant was also came out from,his house and went toward the village. She went inside the house of appellant where she saw the dead body "e 3‘ Shakun'talaBai in injured condition. Kids of deceased were sleeping in to the room; she called and sent them to their grandparent’s house. This $ evidence clearly reveals that at the time of incident only appellant, his wife deceased Shakuntala Bai and two kids were present. Both kids were sleeping in the room and deceased was present along with appellant. In these circumstances, at the time of causing such injury to: deceased Shakuntala Bai only one person i.e. appellant who capable for causing injury was present and the act committed in secrecy in presence of appellant. ln these circumstances, appellant was under obligation to offer an explanation that who has caused injury to deceased in term of Section 106 of the Evidence Act. In absence of such explanation only inference would be possible that only appellant has caused homicidal death of deceased amounting to her death. This fact is further corroborated by evidence of PW/17-Uma Pandey that just before the incident deceased came back after ease and went to her house, which shows that deceased had received injury at the time of incident. PW/17-Uma Pandey had also heard the sound of assault i.e. ‘dhadam’ which is further corroborated by the act attributed to the appellant. Even Ks VW. ._ ‘\ flw4‘1—\F—- if the evidence of PW/17-Uma Pandey relating to the fact that she has witnessed the incident is disbelieved then even second part of her evidence is sufficient to establish the fact that appeilant has caused homicidai death of deceased. 13. After appreciating the evidence available on record the learned 9th Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. s t 14. On close scrutiny of the evidence adduced on behalf of the prosecution, *s 1‘ we do not find any illegality or infirmity in convicting and sentencing the appellagt. 15. Consequently, the appeal being devoid of merits is liable to be Vijay : / / dismissed and is hereby dismissed. ' l sw- 7 {ll =\\ sw— ‘ 'T.P. SHARMA- ‘ R.N. Chandrakar Indge I‘F/f Judge