^_ - ^ HI6H COURT OF CHHATriSSARH AT BIL4SPUR Cr-imins!_ Ap&eal No_.180 of 2001 CE^ •<!» Shamsunnishn, W/o AAohammed Hoisim r/o Kedsrpur, P.5. AfT'bikeipur (Surgujo) State of Chhattisgarh, Through Station House Officer. F.5. .Ambikcpur (Surguja). (Appeai under Section 374 of Code of C'rimina! Procedure) 'iyj^i'v^i £?i&?i i. JJ Smt. Hamida Shri Rakesh respondent. Siddiqui. counsel for the appellant. Jha, &y. &wr. Awoco.re for the Stati srtrf (Pssssd on 22 day of Februory, 2010} ssf T.P. Sharma. J. Cha!lenge in this appsai is to the judgment of convictjon and orde" of sentence dated 05-03-1998 passed by FifSt Additsonal Sesswns Judae Ambikaou" in S.T. No.118/1989 whereby and whereunder' iearned AdditionaS Sessions Judge after holding the c2ppe!lant guil-iy for the offence of culpabfe homicide anwunting to murder of her husbtand Mohd. Hasim in sharing common intsntion, convicteO the appellant under Section 302 read with Section 34 of the Indian Penal Code (for short 'the IPC') and sentenced her to undergo imprisonment for iife. 2. Tne judgment is impugned on the ground that without cny iota of evidence, sufficient for conviction of -ths appeilant, the learned Court below has convicted and sentenced the appellant as aforementioneo and thereby committed illegality. 3. Brief facts of prosecution case are that, the appellant j.e. - wife. of the deceased Atohd. Hasim wo.s having illicit relation Wilti ¥ other co-accused Pappi @ Purshottam, the ser-vant of 1-he ^ ^ 7^» "^SSSi appeiiant, who is presently absconding. On the date of incident i.e. 14-05-1985 between 8-30 & 9-30 at night the appeilant along wilh other two co-accused persons ccused fata! irijuries to the deceased who was present in his house along with oll accused persons a"d caused his death. When neighbours came to know the fact of -mufder, they came to the house of the appellant which was closed from inside and which was opened by 1+ie appellant. Zahir Atam went'to fne Police Station, iodged F.I.R. vide Ex. P-15 cnd merg vide Ex.P-16. 4. Investigating Officer proceeded for the place of incident and after sumnioning the witnesses vide Ex. P-3 & P-3A, inquest over -the body of •the deceased wos prepcred vide Ex. P-4. Dead body was sent for autop^y to the District Hospitai, Ambikapur vide Ex. P-8. Autopsy was conducted by Or. A.K. Sharrna vide Ex. P-9. Blood stained and plain soil, hair, broken pieces of bangles, blood stained wrist watch, two pieces of resin belt, Lungi, tape recor'dsr, two bangfes stainecf wi1+i blood were recovered from the spot yide Ex. P-8. Cloths of the deceased we.re "ecovered afte" autopsy vide Ex. P-13. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short the Code') and after completion of investigation, charge sheet was filed before the Chief Judiciat Magistrgte, Ambikapur who in turn, committed the case to the Court of Sessions, Ambikapur from where iearned Additiondl Sessions Judge, received the case on transfer ?r triat; -'' / 6. In order to pr-ove -the guiit of the oppeltant, prosecution examined aa many as 10 witnesses. Accused were examined under Section 313 of the Code where they denied the circumstances •appearing against them, pleaded innocence and faise implication. 1 "«>!,.:„ "% -——-- - • - 7. After affordinQ opportunity of hearing to the parties, learned Additional Sessions Judge convicted the cppellant and acquitted co-accused Istiiiak Khan under Ssction 302/34 of IPC and sentenced the appellant as aforementioned. We ho.ve heard iearned counsel for 1+ie parties, perused the Judgment impugned and record of Court below. 9. Smt. Hamida Siddiqui, lesrned counsei appearing for the appellant, vehemently argued' tiiat the case is based on circumstantial evidence and in cctse of circumstcntial evidence, prosecution is required to prove the complete chain of circumstances sufficient for drav<ing the only hypothesis of guilt of the appeilant but in this case, prosecution has not proved the motive of the offence or any other circumstunces against •t'he appelloRt. The conviction is based on evidence of solitary wiiness Vijay Prakash Shukta (PW-4) who is having inimical refations wi-rti the appellarst. 10. Learned counsel for the appellant piaced reliance in the matter of J'aharial t)as v. Stcte of Orissa, reported in AIR 1991 SC 1388 in which the Apex Court has held that the circumstantial evidence in order to sustain conviction must satisf/ three conditions; (i) the circumstances from whlch an inference of guilt is sought to be drawn must be cogently und fir'mly established; (ii) those circumstances shouid be of a definite tendency unerringiy po'nting towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so cofflpiete that there is no escape from the conclusion 1+iat wiitiin all human proboibilit/ the crime was committed by the accused and none else, and it should aiso be incopable of exptanation on any other hypothesis 1+ian that of the guilt of the accused. Further in cases depending largely upon circumstantial eyidence there is clways a danger 1+snt the conjeclure or suspicion may take the ! ^ll^^'ll!siMs&&¥;?i '<*li's,» -A "i^ <•.•.;. ^. place of jegat proof and such suspicion however so strong ccnnot be oliowed to take the place of proof. The Court has to be watchful and ensure that conjectures ond suspicions do not take -rtie piace of iegal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that. the completed chain must be such as 1'o ru!e out a recsonable iikelihood of the innocence of the accused. 11. Learned counsel for the appellant further placed reliance in the matt'er of Kirl'an Prasad v. S+ete of Madhya Ppadesh, reported in 2005 CRI. L.J. 69 in which High Court of Madhya Pradesh held that conviction could not be based on suspicion nor on conscious of Court being moratly satisfied about complicity of accused - Even if evidence and circumstances conceivably give rise to suspicion that accused was involved in incident - Same shoutd not be allowed to form basis of conviction. 12. On the other hand, Shri Rakesh Jha, learned counsel appearing for' the State/respondent, vehemently opposed the appeal cnd submitted 1+iat the evidence of Vijay Prakash Shuklc O'W-4) draws inference that the appeitant wcxs 1+ie person who committed the offence in sharing common intention. 13. In order to appreciate the arguments advanced on behalf of , the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of ante-mortem fatal injuries has not been ajbstantially disputed by 1+ie appellant; fffherwise also established by 1+ie evidence of Dr. P.K. Shrivastaya (PW-8) and autopsy report Ex. P-9 which reveai that &". P.K. Shrivastava hos conducted the autopsy of deceased and found as mony as 16 fatal injuries including four internal injuries over lungs and deal+i was homicidal in nature. i:^iSi-.^;;t»;l-;:-;:;.^U-i ^j 14. As regards complicity of 1+ie appeliant in the crime in question, conviction is based on the evidence of solitary witness Vijay Prakash Shukla (PW-4), neighbour of the appellant, who hos deposed in his evidence that on the date of incident between 7.00 & 8.00 P.AA., his son came and told that Mohd. Hasim has been murdered then, he went to the house of the appeilant. Other persons of the vicinity were also present near the house of the deceased, tiie house of the deceased was closed from inside. They saw from window that the appellant was standing with her child in the courtyard. They asked her to open the door but she did not open the door. Lastly, sheopened the door then they went inside the house. TTie injured dead body of the deceased was lying stained with blood. They asked tiie appellant to touch the body of the deceased to ensure whether he is alive or dead which was refused and somebody telephoned the police and police came. 15. Defence has not asked anything to this witness. Evidence of this witness is unchstlenged ond reveals thct dead body of the deceased was found in injured condition inside the house, the appeiiant was present afong with her child inside the house, the house was closed from inside ond in the first mstcuice, the appeilant has not opened the door. 16. As held by the Apex Court, in the case of Jaharlal (supra). prosecution is required to prove the chain of circumstances, sufficient from drawing inference that except accysed nobody has committed the offence. In case of Ktrtan (supra) High Court of Madhya Pradesh heicLthat suspicion or satisfaction on the ground of morality are not sufficient for conviction of the accused and prosecution is required to prove its case by adducing cogent cnd reliable evidence. 17. , In the present case, the appellant was present inside her nouse. House was closed from inside. The recent murdered dead ^ •"]-a>» body of the deceased i.e. the husband of the appeilont was found inside her house which shows that murder has been committed in secrecy. As heid in case of Trimukh Maroti Kirkan v. Stote of Maharashira, reported in (2006) 10 SCC 681, the inmates of the house cannot get awoy by simply keeping quiet and offering no exptanation on the supposed premise that the burdsn to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In case of murder committed in secrecy, a person who was present inside the room was under obligation to offer expionation questions relating to aforesaid circumstances have been asked by the Court in qusstion Nos.6 to 10 which -Hie appeliant has simply denied but has not offered any explcmation that how tiie deceased received injuries and how he died. 18. In the present case, the prosecution '-has proyed ths following circumstances against the appeflant; (1) appellant was present in her house: (2)house was closed from insids; (3) recent murdered o'ead body of deceased i.e. husband of the appellant was found inside the house; (4)at the first instance, -t+ie appellant has not opened the door; (5)appellant has not offered any explanation that how her husbiind died and who has caused fatal injuries to her- husband; 19. If -riiese circumstances are considered toqethsr then the same would be sufflcient for hypotiiesis of the guilt of the appellant and none else. As held by the Apex Gourt in case of J'aharlal (supra), the prosecution has proved chain of circumstances in 1+ie present case. As held In case of Kirfan ?-. ::^5»<.. 7 (supra), ths conviction is not based on su^iicion or mora! satisfaction but based on legal and ctinching evidence. 16. After o^ipreciating the evidence available on record, learned Additional Sessions Jud9® has convicted and sentenced the appellant under Section 302/34 of the I.P.C. In our considered opinion, conviction is based on legal and clinching eyidence sustainable under the Saw. Learned Court betow has not committed cny itlegality and we do not find any substemce in the appeal. Therefore, the cppeal is liable to be and is hereby disrnissed. The appeltant is on bait. She shal! surrender her%lf forthwith befora the First Additional Sessions Judge Ambikiipur' for serving remaining part of sentence imposed upon her. Sd/- T.P. Sharma Judgc Sd/- N.K.Agar Judge Kvf