HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench Coram : Hon'ble Shri T.P.Sharma and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ. APPELLANT (In Jaill RESPONDENT Cr.Appeal No. 1125 of 2003 Mahendra Yadav. Versus The State of Chhattisgarh. JUDGMENT FOR CONStDERATION Sd/- ' JUDGE f3.04.2010 HON'BLE SHRI T.P.SHARMA, J.: 3.o^>-^c Sd/- T.P. Sharma Judge Post for pronouncement of iudament < 3 -04-2010 Sd/- R.L. Jhanwar Judge HIGH CQURT OF CHHATTISGARH AT BILASPUR Coram : Hon'ble Shri T.P.Sharma and Hon'ble Shri R. L Jhanwar, JJ. Cr. Appeal No. 1125 of 2003 APPELLANT (In Jaill RESPONDENT Mahendra Yadav, s/o Sapuran Yadav, aged about 21 years, Occupation - Agriculture, r/o village Sukhanri, Chowki- Bariyon, P.S. Dhaurpur, Distt. Surguja, C.G. Versus The State of Chhattisgarh, through P.S. Dhurpur, Distt. Surguja (Ambikapur), C.G. APPEAL UNDER SECTION 3747(2) OF THE CODE OF CRIIVIINAL PROCEDURE Appearance: Shri A.K.Prasad, Advocate for the appellant. Shri Sudhir Bajpai, Dy.G.A. forthe respondenVState. JUDGMENT (Delivered on 013.04.2010) The following judgment of this Court delivered by Rajeshwar Lal Jhanwar, J. This appeal is directed against the judgment of conviction and order of sentence dated 28.08.2003 passed by the Sessions Judge, Surguja (Ambikapur) in S.T.No.385/2002 whereby the appellant was convicted under Section 302 of the I.P.C. and sentenced to imprisonment for life with fine of Rs.500/- and in default of fine to further undergo rigorous imprisonment for one month for commission of culpable homicide amounting to murder of his wife - Smt. Pratima. 2. The judgment of conviction and order sentence is challenged on the ground that without considering any iota of evidence sufficient for conviction of the appellant, the Court below has convicted and sentenced the appellant as mentioned in paragraph 1 and thereby committed illegality. x 3. Brief facts of the prosecution story is that on 16.07.2002 at 2.45 P.W.1 Rajendra Kumar Yadav lodged a report in Dhourpur stating therein that in the morning between 10.30 -11.00 a.m. the appellant got annoyed for not serving meals to him, gave blows to his wife - Smt. Pratima by sharp edged weapon on her neck and Panjar (back), as a result of blows, she died instantaneously. On this information, merg was recorded vide Ex.P.2. F.1.R. is Ex.P.1. Investigation took place and during investigation summons was issued to the witnesses vide Ex.P.4 and Ex.PA. Inquest over the dead body was prepared vide Ex.P.5. Vide Ex.P.14 the dead body was sent for autopsy and autopsy was conducted by Dr.S. Grewal P.W.14 who vide Ex. P.20 found the following injuries: i. Incised wound of 9.5 cm. length x 3 cm. breadth and 4.5 cm. depth was found behind the left ear upto the nape of neck. Parietal bone was found fracture and brain matter came out from the fracturedpart. ii. Incised wound of5 cm x 3 cm. x 3 cm. was present just above injury No.1. iii. Incised wound was present at above lumber region of vertebral column. Size is 4.5 cm. x 3 cm. x 2 cm. There was fracture of vertebra present. Blood was oozed and dried up in all the wounds. On internal examination, Dr. S. Grewal P.W.14 found that parietal bone was fractured under wounds No.1 & 2 above. The.membrane of brain was cut; the brain matter came out from injury and there was fracture in lumber vertebra. The above injuries were ante-mortem. Cause of death was syncope due to head injury and excessive loss of blood. Doctor opined that death was homicidal in nature. He also examined weapon of offence i.e. Tabbal and found blood on it. He further opined that injuries found over the body could be caused by that Tabbal. 4. Cloths of the deceased were seized from the Constable Dilip Behra vide Ex.P.16. On the disclosure statement Ex.P.SA Tabbal was seized vide Ex.P.SA at the instance of the appellant. Bloodstained towel and one under ga.rment (Banian) was seized from the appellant according to Ex.P.QA. Blood stained soil and plain soil was seized vide Ex.P.9. Spot map was prepared vide Ex.P.10. Vide Ex. P.18 seized artictes were sent for chemical examination and report of F.S.L. is Ex.P.21, according to which blood was confirmed on Tabbal, cloths of the deceased and blood stained soil. Accused was arrested vide Ex. P.17. Statements of the witnesses under Section 161 ofthe Code of Criminal Procedure (for short the Code). After completion of investigation, charge sheet was filed before the Court of J.M.F.C., Ambikapur, who in turn committed the case to the Court of Sessions where the trial was conducted. 5. The learned Sessions Judge framed charge under Section 302 of the I.P.C. The charge was read over and explained to the appellant who abjured his guilt and pleaded his innocence and false implication. 6. The prosecution examined as many as 15 witnesses. The accused / appellant.was examined under Section 313 of the Code in which he denied the circumstances appearing against him and led no evidence in defence. 7. After recording evidence and hearing both the parties, learned lower Court has convicted and sentenced the appellant as above. 8. Learned counsel for the appellant argued that the conviction is based on the circumstantial evidence, substantially on the alleged last seen theory, memorandum of the appellant and seizure of weapon of offence. In case of conviction based on circumstantial evidence and last seen theory, prosecution is required to prove complete chain of circumstances sufficient for drawing an inference that the appellant has committed the offence and except the appellant no other person has committed the offence. In case of circumstantial evidence prosecution is required to prove motive of the appellant for commission of the offence. In the present case, according to learned counsel for the appellant, prosecution has failed to prove it. In this regard, learned counsel for the appeltant placed reliance in the matter of Dinesh Borthakur v. State of Assam, (2008) 5 SCC 697, Vinay D. Nagar v. State of Rajasthan, (2008) 5 SCC 597, State ofGoa v. Sanjay Thakran andanother, (2007) 3 SCC 755, Raj Kumar Prasad Tamrakar v. State ofBihar & Anr., 2007 Cr.L.J. 1174, Arvind Singh v. State of Bihar, 2001 Cr.L.J.2556 and Vaduguchati Babu v. State ofAndhra Pradesh, AIR 2002 SC 2911. 9. On the other hand, learned counsel for the opposed the appeal and submitted that in the present case the appellant and deceased were living together in separate house. On the date of inddent, accused went to filed and came back and asked for food which was not provided immediately to him. Therefore, he has killed his wife and fled. When the accused was fleeing, one Thakur Prasad P.W.3 saw him. The conduct of accused was doubfful because he did not come to the place of incident and fled from the spot and was arrested after 4 days. The wife of the accused was found dead in his house but no explanation wasoffered by fhe accused. Even the accused did not lodge F.1.R. Seizure of weapon of offence was made at the instance of the appellant. Thus, these all circumstances proved that the accused only has committed the offence and none other than the appellant. 10. We have heard learned counsel for the parties at length, perused the judgment impugned and record of Court below. 11. In the present case, it is not disputed that the death of the deceased is homicidal in nature. On the other hand, the death of deceasedwas also established by the Dr. S. Grewal P.W.14 and autopsy report Ex. P.20 which revealed that the above fatal injuries found over the deceased - Smt. Pratima were ante-mortem in nature and the death was homicidal. 12. The learned Sessions Judge has convicted the appellant on circumstantial evidence especially last seen theory and memorandum of the appellant and seizure of weapon of offence based on memorandum and the conduct ofthe accused after the death of his wife. 13. It is evident from the statement of Rajendra Kumar P.W.1, Amarawati P.W.2, Ramlagn P.W.5, Niranjan P.W.6, Sampooran P.W.12 that the accused Mahendra and his wife were living together in the same house in which Smt. Pratima, wife ofthe appellant, was found dead. 14. It is evident from the evidence of Rajendra Kumar P.W.1 that when he was teaching in the school, at that time Balram P.W.4 came there and informed him that his brother's wife - Smt. Pratima waskilled and some people gathered there. Thereafter, he went to the house of his brother and saw that Smt. Pratima was lying dead. The persons present at the spot told him to report the matter to Police, therefore, he reported the matter to Police according to Ex.P.1. Thus, it is clear from his evidence that the deceased Smt. Pratima was found dead in the house of the accused. It is also evident that this witness did not know as to how she died and who assaulted her. In his cross-examination, he denied the statement Ex.P.7 which was given by him to the Police. One thing that he has stated in his cross-examination is that his brother was present in the field at that time. Amarawati Bai P.W.2 also saw the dead body of the deceased and denied the statement Ex. P.8 which was given to the Police, therefore, this witness has turned hostile. 15. Balram P.W.4 has stated in his evidence that when he was coming back from Sarpanch house near about9 - 10 a.m. morning, he heard the voice of mother of the accused from the house of the accused that Mahendra killed his wife. Then, he went to inform to Rajendra Kumar P.W.1, who was present at that time in school. According to him, he told Rajendra Kumar that your brother killed his wife - Smt. Pratima. Though this piece of evidence does not find in the statement given to the police, but he himself has stated in Court that he heard the voice of mother ofthe accused saying that Mahendra killed his wife. In this manner, it is clear from his evidence that he heard the voice of mother of the accused. Rajendra Kumar P.W.1 denied this fact because he is the brother of the accused. 16. Thakur Prasad P.W.3 has stated that he also saw the dead body of Smt. Pratima. It was further deposed that near about 10-11 a.m. in the morning when he was coming back from field he saw accused Mahendra Yadav going by his bicycle towards Rajpur. Though he has turned hostile, but did not contradict on this point that he saw Mahendra Yadav going towards Rajpur on bicycle. In means when incident took place at 9— 10 a.m., he saw the accused going on bicycle from his house towards Rajpur. 17. It is clear from the above evidence of Rajendra Kumar P.W.1, Amarawati Bai P.W.2, Thakur Prasad P.W.3, Balram P.W.4, Niranjan P.W.6, Sampooran P.W.12 that they saw the dead body of the wife of Mahendra Yadav in his house and it is also clear that this news already prevailed all over the village and each and every relative of the deceased gathered there but her husband accused Mahendra was not present there, though according to Rajendra Kumar P.W.1 and Thakur Prasad P.W.3, they saw the accused in village and according to Rajendra Prasad, the accused was present in the field. It means at the time of incident accused was present in his house and after killing his wife he fled and that was seen by Thakur Prasad at the same time. Thus, it is the duty of the accused to explain why he did not come back despite the news of murder of his wife spread over in the entire village, which createsa serious doubt because this is unnatural conduct ofthe accused. In these circumstances, the appellant was under obligation to offer explanation but has not offered any explanationin his statement under Section 313 of the Code nor led any evidence in that behalf. 18. So far seizure Ex.P.GA is concerned, Gajru Ram P.W.7 admitted his signature on Ex.P.6A and stated that Police seized one Tabbal from the roof of the house of the Mahendra Yadav. S.N. Kapoor P.W.13, Sub- Inspector prepared Panchnama Ex.P.5 and also prepared spot map Ex.P.3. He has stated that after taking accused Mahendra in custody asked about the weapon of offence whereupon the accused informed him about Tabbal and his clothes which he was wearing at the time of incident. According to discovery memo Ex.P.8, this witness seized Tajbjba/from the house of Mahendra and sealed it vide seizure memo Ex.P.6. This memorandum and seizure was also supported by the witness Ramkumar P.W.15. In this way, it is clear that at the instance of theaccused, the weapon of offence i.e. Tabbal v/as seized by the police. Seized articles were sent to F.S.L., Raipur and according to report of F.S.L. Ex.P.21, bloodstains were found on Tabbal (article C). '^ 19. So far as motive is concerned, Ramlagan P.W.5, father-in-law of accused Mahendra and father of deceased - Smt. Pratima, has stated that at the time of incident Pratima was living with Mahendra. He has also stated that his daughter used to say that Mahendra used to quarrel with her and used to assault her and due to that she does not want togo to the house of Mahendra but the uncle of accused Shivratan came to him and told him to send his daughter, therefore, a Panchayat was held and after Panchayat, he sent his daughter to the house of accused - Mahendra Yadav. In this way, it is clear that the relation between the wife and husband was not cordial. 20. Thus, on close scrutiny of the above evidence, it is clear that accused Mahendra lived with his wife in the same house. On the date of incident both were living together. He was seen by Thakur Prasad just after the incident while going towards Rajpur on his bicycle which shows that he was in village. It is also evident from the above evidence that the witnesses, who are his relatives, and also villagers, came to know the incident but in spite of being present in the village, the accused did not come to the spot and has not offered any explanation as to who has killed his wife and how she died, which is a strong adverse circumstance. It is clear from the document Ex.P.6 and the statement of investigating officer fhat the accused was arrested on 21.07.2002 i.e. after five days of the incident which also shows the conduct of the accused, which is unnatural. The motive of the accused is also clear that he used to quarrel with his wife and used to assault her, which also shows that there was strained relation between them. It is also evident that the weapon of offence was also seized at the instance of the accused from his house and blood stains were found over it, according to F.S.L. report. 21. When the case rests upon circumstantial evidence, 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 be of a definite tendency unerringly pointing towards guilt ofthe accused; ..^ fif. ^ 8 (3) the circumstances, taken cumulatively, should form a chain so complete and 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 the guilt of the accused but should be inconsjstent with his innocence. 22. Having thus considered, in the present case, the prosecution has proved following circumstances: i) The relation between the appellant and his wife was not cordial. ii) Both the appellant and his wife (since deceased) lived together in the same house on the date of incident. iii) The accused/appellant was seen by one witness namely Thakur Prasad while fleeing from the spot immediately after commission of offence. iv) His wife was found dead in the same house in which appellant also lived with her and the appellant was not found at that time. v) On the disclosure statement of the appellant, weapon of offence i.e. Tabbal was recovered and bloodstains were also found over the weapon of offence, according to F.S.L. report. vi) The conduct of the appellant that he was in village on the date of incident and did not come to the spot. vii) The appellant has not offered any explanation that how the deceased died. If the aforesaid circumstances are considered together, then the only hypothesis would be possible that the appellant was the person who has caused the death of his wife and except the appellant no other person has caused the death of his wife. 23. After appreciating the evidence available on record, learned Sessions Judge has convicted and sentence the appellant as aforementioned. Conviction and sentence of the appellant are based on 9; 9 clinching and credible evidence sustainable under the law. Thus, the citations relied on by the appellant, as stated above, are distinguishable onfacts ofthis case. 24. On close scrutiny of the evidence, we do not find any illegality in the judgment impugned. The appeal being devoid of merit is liable to be dismissed and it is accordingly dismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge