K, g ® . HIGH COURTrOF CHHATTISGARH, BILASPUR Criminal Appeal No.1086 of 2003 n‘ . {Appeal under Section 374 (2) of Code of Criminal Procedure} Present: Mr. Prashant Jayaswai, Senior Advocate with Mr. Ajay Mishra, Advocate for the appellant. Mr. Neeraj Mehta, Panel Lawyer for the State/respondent. Division Bench: - V ‘ ‘ A " m ' Hon’ble Mr. T.P. Sharma and Hon’ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (1 ‘i—1 1-2010) T.P. Sharma, J: - r 1. Chalienge in this appeal is to the judgment of conviction & order of sentence dated 14-1—2003 passed by the 3rd Additional Sessions Judge, F.T.C., Mungeli in Sessions Trial No.447/2001, whereby & whereunder learned Additional Sessions Judge after holding, the appellant guilty for“ i "~ commission of culpable homicide amounting to murder of his wife Tulsi Bai, convicted the appellant under Section 302 of the l.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs.-1,000/-, in default of payment of fine to further undergo S.l. for six months. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant and thereby committed illegality. 3. Case of the prosecution, in brief. is that the appellant was residing with ' his wife Tulsi Bai (since 'deceased) at Village Chorha undelihPoiicer" " \\ July, Station 2001, Mungeli, the appellant Distt. Bilaspur. and deceased l‘h the intervening Tulsi Bai were night of present 15m & in 16m their of 7\\ room, the appellant strangulated her and caused her death and after / / APPELLANT: Vishram Singh S/o Chandan Singh ‘ (In Jail) about 47 years R/o Village Chorha Bundeli, ~ P.S. Mungeli Distt. Bilaspur (CG) ‘ Versus 1 . k RESPONDENT: State of Chhattisgarh Through P.S. Mungeli Distt. Bilaspur (CG) 2. locking the door from outSIde he went away from his house Second day morning, the room was found locked by Phul Bar (PW 1) Phul Bar ' “(PW-1) and other persons made search of the appellant but the . appellant was not found In the vrllage Thereafter the vrllagers tned to , see lnsrde the room they saw the body of Tulsr Bar lyrng on the cot and I they broke open the door Ramnrhora Srngh (PW-1 0) went to the polrce astatron and lodged merg vrde EX P 12 The lnvestrgatrng Offrcer left for ' the scene of occurrence and after recordrng dehatr nalshr vrde Ex P-6 ‘ and summonrng the wrtnesses vrde Ex P 8 prepared Inquest over the . Dead body was sent for autopsy to Communrty Health Centre Mungelr V . . vrde Ex P 13 Dr Akhrleshwar Uraon (PW-11) conducted autopsy vrde L :‘Ex P 14 and found followrng symptoms - ‘ > Face swollen cyanosed bleedy from mouth nostrrl and ears tongue protruded and brtten between teeth eyes closed > Horrzontal lrgature mark on neck below hyord cartrlage encrrclrng ‘ the neck ‘ ' > Fracture of hyord hyord bone larynx and trachea Cause of death was asphyxra as a result of strangulatron and death was .homrcrdal rn nature Spot map was prepared by the lnvestrgatrng Offcer vrde EXP 18 Patwarr also prepared spot map vrde EXP2 The w ”accused was taken rnto custody on 22 72001 he made drscloser ' statement of key vrde Ex P 3 and same was recovered from patra of the house at the Instance of the accused vrde Ex P 4 Mosqurto net and lock were serzed from the spot vrde EX P 10 Sealed clothes of the deceased were serzed vrde Ex P 17 ' ‘ 4. Statements of the wrtnesses were recorded under Sectron 161 of the .Cr P C After completron of rnvestrgatron charge sheet was frled before the Court of Judrcral Magrstrate Frrst Class Mungelr who commrtted the :case to the Court of Sessrons Brlaspur from where learned Addltronal » Sessrons Judge recerved the case on transfer for trral V :1 5. ln order to prove the gurlt of the appellant the prosecutron has examrned ' > as many as srxteen wrtnesses The accused was examrned under Sectron 313 of the CrPC rn whrch he denred the Circumstances t 'appearrng agarnst hrm pleaded Innocence and false rmplrcatron 6 After affordrng opportunrty of hearrng to the partres learned Addrtronal Sessrons Judge convrctedl,&. sentenced thetappellant as aforementroned. ,. a dead body of the deceased vrde Ex P—9 F l R was lodged vrde Ex P 5 t 'v ,ym r!_ r ' tr , I .L 7 We hav eard learned counsel for the parttes erused the 1udgment that m the present 06 of the tndta gned and record of the trial Cour e appellant vehemently argued Learned counsel for th of Section ru mp case m order Act 1872 to attract (for short the the provrsrons Act) or o fasten any lrabrlrty upon the d to prove the fact that the appellant Evrdence appellant & the 16‘“ deceased of July the prosecutron 2001 were when present rs deceased require tn te roo Tulsl tn Bax the dred mtervemng and the fact nrght that of 1 th ed rnjury resulting m deat of Tulsr Bar but the d any evrdence to pre eatorsard fact aellant has caus prosecution has not adduce herefore the appellant rs entrtled for acquttta l e appea an mstantral evrdence l t d State counsel opposed th . On the other hand learne ubmrtted that the present cas rs s e n ha proved husband t flowrn of deceased facts Tulsr — Bar was resrdtng wrh The precutro based on crrcu s he olg t 1) The appellant — rs wrfe Tulsr Bar tn same roo (2) On the date of tnCtdentt e tnterventng night oft ed Tulsr Bat were tn on ly 2001 the room was oun locked from outStde and the appellantwas n ” & 16‘ r e room 2001 the appellant & deceas 3 Second day morntng on 16 Ju (4) 5) Dead Cause body of death of TulSt of Bat Tulsr was Bat found ws tnside stranulaion the roo and death homtCtdal tn natur 6Key of lock used f tnstance of the appellant 7)The appellant has not offered any expl ommttted the murde o hts wrfe and when c r f hts Wtf he aforesatd facts were Wtthtn th planatton tn 0t resent p W33 Lt ~ u ’~ : ct t‘ I, ( e oe e or locking th room was recverd at th anatton as to who has he left the company o lt pelan t e specral knowledge of the ap termsof Sectton 106 of the Ac on behalf of the partte lf of the prosecutto ut he has not offered any ex 10 ln order to appr we have examtned the evtdence a 11 ln the present case homtcrda s of a f evr ecrate the arguments advanced dduced on beha as a result o een substanttall l death of deceased TuISt Bat trangulatton has not b llartt otherWtse also tt ts establtshed by the and autopsy report Ex P 14 sphyxra on the basr dtsputed on behal of the appe dence of Dr Akhtleshwar Uraon (PW 11) t he l hat t death of TUISt Bat was homtCtda tn nature. p e h t 1 n ‘ L t & h m 5 e ‘ h ov the s. T pp l d os ( h m fd 5* “ e Jury, () ( a gt m e () ( e T b f s 1" r f y n s 12.As regards complicity of the appellant in the crime in question, conviction of the appellant is based on circumstantial evidence. As held by the Supreme Court in the matter of C. Changa Reddy v. State of A.P_1, In case of conviction based on circumstantial evidence the prosecution is required to adduce evidence and such evidence must satisfy the following tests: - (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should of a definite tendency unerringly pointing towards the guilt of the accused; (3)the circumstances taken cumulatively should form a chain so c0mplete that there is no escape from the conclusion that within all human probability‘the crime was committed by the accused and none else; and (4) 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 l the guilt of the accused but should be'“ V inconsistent with his innocence. 13. ln the present case, Phul Bai (PW-1) — mother of deceased Tulsi .Bai has deposed in para 2 of her evidence that the appellant was residing with his wife in same house where she was residing and on the date of incident, the appellant was present in her house along with his wife, byt second day morning room of the appellant was found locked from outside and the appellant was not present. As per para 3 of her evidence, the appellant came on 10th day of the death of deceased Tulsi ‘Bai. She has further deposed that they searched for the appellant a‘ndw' n "" thereafter they opened the door where the dead body of Tulsi Bai was found inside the room. In para 4 of her cross—examination she has specifically deposed that the appellant was residing in the room besides her room. Defence has cross-examined this witness at length but has not been able to elicit an‘ything to discredit the fact that the appellant was residing with his wife and on the date of incident he was present with his wife, but second day morning the room was locked from outside, the \\ , appellant was not present and the' dead body of the deceased was found l ~«l ,n‘, cf?! inside the room. 1 AIR 1996 SC 3390 : (1996) 10 SCC 193 14 In the present case whlle replymg question N02 In hls examination under Section 313 of the Cr P C the appellant himself has admitted that i ; i he was reSiding With his Wife in the house of Phut Bai (Pi/V- .). lt also corroborates the fact that the appellant was reSiding With his Wife in the a same room and in the same premises 15 As per the eVIdence of Prahlad Singh (PW 3) — Witness of discloser ‘ statement and recovery, he has not directly supported the case of the ' prosecution but has admitted,3ignature on memorandum Ex.P 3rand seiz‘ure of lock Ex P 4 ln p‘ara 2 of his evidence he has specifcally . deposed that the police has seized the key tied to a piece of cloth which has not been contradicted by defence Rambhadra (PW-6) has deposed in paras 2 & 6 of his eVidence that the appellant made discloser statement of key and produced the same to the police 16.ln the present case, Witnesses of discloser statement and seizure off key namely' Prahlad Singh (PW-3)"& Trilok Singh (PW-4) have not'fully " supported the case of the prosecution and documents Exs P 3 & P-4 but ' they have not stated anything to show as to why they have Signed on 'Exs P 3 &“ P4 and whether there was any pressure by the police Therefore it appears that both the Witnesses were concealing the truth / In these circumstances only the eVidence of the Investigating Officer i e Police Offcer M S Katlam (PW—16) remains for conSIderation He has deposed in para 7 of his eVIdence that he has recorded the statement of the appellant as per the statement given by him Vide Ex P 3 and on the . a ZbaSisof his statement, the appellant took out the key from the house and _ ' i ' same was seized vide Ex P 4 M S Katlam (PW-16) is police offCer but I ii ‘ his eVidence cannot be discarded only on the ground that he is police officer and interested in the outcome of the case The police officers are also normal Witnesses and their evrdence cannot be discarded on the . aforesaid ground unless there is interestedness or departure from the ‘ procedure prescribed l g ,..t H], it 17 While dealing With the question of ewdentiary value of police offcer the, Supreme Court in the matter of Anil alias Andya Sadashiv Nandoskar ‘ vState of Maharashtraz has held thatwitnesses being policeofficers dOes not by itself Create a doubt about their creditworthiness if no‘na ‘ y examination of Panch Witnesses is” explained satisfactorily. ' Relevant ', .‘ ; portion reads as under: , i 7o/ge, ‘“ lT’ T .2 AIR 1996 sow 2943 6 “indeed all the five prosecutiori witnesseswho have/ been examined in support of search and seizure were members of .the raiding partyLThey are all police omcials. There is,"hewever, no rule of law that the evidence, ofpolice officials has to be discarded or;that it uffers from some inherent infirmity. 4‘ Prudence, however, requires that the evidence of the police ofhcials, who-are‘interested in the.'outcome ofthe result s of the case, needs to be carefully scrutinizedand- independently appreciated, The police oftiCials do, not ' >suffer from any disability to give evidence and the mere fact that they are police‘officials does not byitse’lf‘give , rise to anydOubt about‘their creditworthiness. We have V l- carefully and critically analysed the evidence of all'the 5 > that any one of them was hostile to the appellant and despite lengthy crossgeXamination their evidencehas remained unshaken throughout. These‘witnesses have .deposed in clear terms the details of the‘trap that was laid to apprehend the‘app‘ella’ntand the manner in which she was apprehended. Their evidence regarding search ' police officials. There is nothing On the record to show , and seizure of the weapons from the appellant :is _ . straightforward, Consistent andispecifi'c. lt inspires ‘ “w . confidence and learned counsel for the appellant has' ' ’ not beenable to points out any serious, let alone fatal, infirmity in their evidence. In our opinion, the factum of ‘ ' search and seizure of thecountry made revOlver from the conscious possession of the appellant has been g " established by the prosecution. beyond any reasonable doubt. The explanation given by the prosecutiongfor the _ ’ ’- ‘ ' ’ - a non—examination of the two Panch witnesses. Which is Supported by’the report Ex; 24V filed by PW-4 P.l. Gaikwad is satisfactory. The evidence on the record shows thatthe raiding party made sincere efforts to join with them 'two independent Panchas at the time of I search and seizure and they were so joined. They are _ ' I also cited as prosecution witnesses and summoned to ~ .. , .Vv I give evidence. However, despiteidiligent efforts made. ' ‘> by the prosecuting agency to serve them, they could‘not ' ‘ be located or traced and therefore, they could-not be V examined at the trial; ln the‘face of the facts stated in i'v I v report Ex. 24, the correctness of which h‘as remained ’ a . ..virtually ‘unchallenged during the cross examination of PW-4, the non examinatiOnof‘the two Panchas cannot ‘ be said to be on account of any oblique reason,.Their ' non in the, production prosecutions at the case. trial thushasnot The. prosecution-cannot created anydent be V accused of withholding these'witnesses since it made ,failed on account of the, fact that they had left the; n every effort to trace and produce them at the trial but: ' address furnished by‘them at the time of search, and .. , , , th‘eirwh'ereabouts could not be traced ‘despite diligent V V‘ “i ' . ’ effort made in that behalf. We,.therefore, dovnot finduany‘ ,reason to doubt the correctness of the prosecution version relating to the apprehension of theappellant, : recovery from. :the appellant of the country made , "the search andseizure by the raiding party and the s $ " ' ‘ revolver and cartridges for which he could produce n0‘ license or authority because of the non examination of the Panch witnesses we find that the evidence of PW 1 to PW-5 is reliable, cogent and trustworthy.” 18. lf the aforesaid evidence is considered together the following facts would be emerging out: - (1) The appellant was residing with his wife Tulsi Bai and on the date of incident he was also present in his room with deceased Tuisi Bai. (2) Second day morning the appellant was not present and room was b Iocked from outside.i (3) Dead body of Tulsi Bai was found inside the room. (4) Cause of death of Tulsi Bai was stranguiation. (5) The appellant has made discloser statement of key of the Iock which was found outside the room and on the basis of discloser statement of key, ‘key has been recovered at the instance of the appellant. (6) Offence was committed in secrecy within the knowiedge of the appellant, but he has not made any explanation in terms of Section 106 'of the Act, though as held by the Supreme Court in the matter of Trimukh Maroti’ Kirkan v. State of Maharashtra3 he was“ under obligation to offer explanation that how his wife who was present with him, died and who has caused injury to her. 19.lf the aforesaid circumstances are considered together, only inference would be possible that only the appellant was author of the crime and except the appellant no person has committed the offence, and it completely excludes the innocence of the appellant. 1 20.After appreciating the evidence available on record learned Additional Sessions Judge convicted & sentenced the'appellant as aforementioned. l 21.Conviction of the appellant is based on credible, clinching and legal evidence sustainable under the law. On close scrutiny of evidence, we do not find any illegality in the judgment impugned. 22.Consequently, the appeal is devoid of merit, same is liable to be dismissed and it is hereb‘y dismissed. Sd/- Tr? i/ R.L. Jhanwar 5d]. Ti its“ Ll v i i JiJudge ’ l