HLGH GOURT OF GHHATTISQARH : BtLASPUR DIVISION BENCH: HON'BUE SHRI T.P.SHARMA AND HON'BLESHRI R.L.JHANWAR. JJ. Appellant (in jail) RESPONDENT Criminai ApReal No.772 of 2005. Firanta Yadav, S/o Jugnu Yadav, aged 28 years, resident of village Godadih, Chowki Pachpedi, P.S. Masturi, Dist. Bilaspur (C.G.) VERSUS State of Chhattisgarh, through Police Station Masturi (Chowki Pachpedi),Dist. Bilaspur (C.G.) l-l^iEtB'CHS'^! iBBSSiSKK Criminal Appeal underSection 372 (41 of the Criminal Procedure Code Appearance: Shri DevendraKumar Shukla, counsel for the appellant. Shri Jamil AkhtarLohani, P.L. forth^State, ORDER (Passedon 22.06.2011) Per T.P.Sharma, •). Chatlenge in thisappeal is to the judgment of eonvtetion and order of sentence dated •t6t11 September, 2005 passed in S.T.No.43/2005 by the Sessions Judge, Bilaspur whereby and whereunder after hdding the appellant guilty for commission of cutpable homicide amourting to murcter of his wife Sunita Bai, the Court betow convicted the appellant under Sectton 302 of the I.P.C. and sentenced him to imprisonment for life wlth flne of Rs.5000/- and in default of payment of fine, the appellant stiatl furfter undergo rigorous imprisonment for one year. 2. The conviction fs impugned on the ground ttiat wittiout credible, clinching and legal evidence, the Court below convlcted and sentenced the appellants as aforementioned and thereby committed illegattty. 3. As per the case of prosecution, on 31.1 0.2004 at afeout 10.45 am, the appellant and his wife Sunita Bai (since deceased) were present in thelr house. The appellant demanded his wife Tor sexual Intercourse which she .? refused. Then Uie appellant pressed his neck whereupon she becama unconscious and thereafter the appellant committed intercoure®with her in the state of unconscious. After that, the appetlant inserted stk* in to the vagina of the deceased, as a result such act, the deceased died. Later on he took out the sttek from the vagina of the deceased. Death of deeeased was intimated to the police stetion Masturi vide Ex.P.20 and ttien Ex.P.26. Merg was recorded vide Ex.P.19 and then Ex.P^S. Investigating Officer left for scene of occurrence and after summoning witnesses vide Ex.P.2 and Ex.P.4, inquest over the dead body of Uie deceased was prepared vids Ex.P.5, in which, it has been speclfically noticed that private part of the deceased was swollen and dried blood spots were found. Broken piece of bangles, undergarment of the deceased and bangles after removing from the body of the deceased's body have been racovered vide Ex.P.7. Wet soil was recovered from the spot vide Ex.P.10. Dead body was sent for autopsy to Community Heatth Center, Masturi videEx.P.21. P.W.6 Dr. A.R. Banjare conducted autopsyvide EX.P. 14 andfound the following injurtes: 1. Contusion of 3 x2 cm. over left side of neck. 2. (A) Abrasion of % x % cm and (B) % x % cm. below the angle of left side of collar bone. 3. Right eye was red in colour. 4. Abrasion of5 x % cm ovar right stde betow clavicle. 5. Abrasion of 1 x % cm. over right side lower lip. 6. Abrasion witti contusion of 3 x 2 cm. over right side near the neck. 7. Face and lips were in cyanosed. Fractureof bronchial. 8. Smalt quantity of btood clots were found in th®utems Cause of death was opined to be throttling. During tt»e cours6 of invesBgation, accused was taken into custody and macte disctosure statement of stick vide Ex.P.6 and the same was recovered vide Ex.P.8 at the instance of the appellant. Spot map was prepared vide Ex.P.17. Undergarment of ffie appellant was examined vkle Ex.P.9. Accused/appellant was medically examined by P.W.7 Dr.R.L.Thrari victe Ex.P.16 and found that the appellant was capable to commit Intercourse. Statements of witnesses were recorded under Sectlon 161 <rf the Code of Criminal Procedure, 1973 (for short 'the Code'). 4. After completion of investtgation, charge sheet was filed before Ihe Court of Additional Chief Judlcial Magistrate, Bilaspur, who in tum committed the case to the Court ofSessions. 5. In order to appreciate the guilt of the appellant, prosecution examined as many as 14 witnesses. Accused/appellant was atso examined under Section 313 of the Code wherein he denied all the circumstanc^ appearing against him and innocence and false Implteation is claimed. 6. After affording opportunlty and hearing the parUes, the leamed Sessions Judge, Bilaspur .convicted and sentenced tte appellant as aforementioned in paragraph 1 ofthisjudgment. 7. We have heard Shri Devendra Kumar Shulda and Shri Jamil Akhtar Lohani, counsel for the parties at tength and have perused the juc^ment impugned including record ofthe Court betow. 8. Learned counsel for the appellant vehementty argued that convicUon ofthe appetlant is substanUally based on cireumstanUal evidenee oflast seen theory and extra judicial confession mada by the appeUant before P.W.2 Punauram and other persons. The aforesaid evidence does not inspire confidence and trustworthy and the same is not sufficient for drawing definite conclusion that only the appellant has committed the aforesaid offen<%. Even otherwise prosecution has not proved motive for commission of culpable homicide of murder. There was no case for cauaing culpsAte homicide amount to murder of wife by her husband. 9. On the ottier hand, learned counsel for the State opposed and submitted that the evidence adduced on behalf ofthe prosecution is sufltetent for drawing definite conclusipn that the appellantwas seen with the company of deceased alive in the house of ttie appellant and within short time the deceased Sunita was found dead in the house oftheappellantas a result of fatal tnjury. The appellant has not offered any explanatton but mada extra judiciat confession before P.W.2 Punauramand other pereons snd then they rushed to the house of the appellant where they found dead bocfy of Uie deceased. He further submitted that the aforesaid evidence and comptete chain of cireumstances are sufRcient for drawing deflnite conclusion that only the appellant has committed the afbresaid offence. 10. tn order to appreciate the arguments advanced on behalf of the parties, we have examined the evklenced adduced on behalf of ths prosecution. In this case, homicidal death as a resutt of fatal injuiy found over the body of the deceased SunHa Bai has not been substantiaNy disputed on behatf of the appellant but on the other hand also ^tablished from Uie medical evidence of P.W.6 Dr. A.R. Banjare and autopsy vkteEx.P. 14and death was homicidal in nature. 11. As regards complicity of the appellant in crime in qiisstion, TOnvictton of the appetlant is substantially based on ths evidence <rf P.W.1 Kum. Yashoda, who has seen the deceased in the eompany of the s^pellant and the deceased was alh/e and thereafter wttin short Ume she found the dead body of the deceased in the house of the appellant and the factum ofextra judicial confession made before P.W.2 Punauram bythe appellant. As per the evidence of P.W.1 Ku. Yashoda, sisterofthe appeltant, she wenttothe house of the appellant where the appellant and deceased were present and aftersome time againshe visited the house ofthe appeltant aralatthat time the appellant was present inside the room, he told that he is taking rret, then she came back. Thereafter dead of the deceased was found in the house of the appellant. As per her evidence, first Ume she found the appellant and deceased in the house of the appellarrt. Thereafter, within a short Ume, the dead body of the deceased was found in the hpuse <rf the appeBant. In these circumstances, the appellant was under obligation to offer exptanatton that how his wife was dead and who has caused the injury but the appeltant has not offered any such explanation, which is mandatory in terms ofSecUon 106 oftheEvidenceAct. 12. As per evidenee of P.W.2 Punauram, the appellant made ®<trajudKaail confession before him and ottier persons that by throttling Vhe neck of Ws wife Sunita, he has killed her. The defence has cross-examined thts witness at length but has not been ellcited anything to discredit his tesUmony especially the aforesaid evidenee of exha judicial confession made before him by theappellant. The extra judiciat confsssion is a kind of evidence and once it is proved to be true, the same can be relied upon for conviction <rf Vhe appellant. The evidence of P.W.1 Ku. Yashoda, sister of the appellant and P.W.2 Punauram is sufficient for drawing defintte conclusion tt»at the appellant was present atong with wife and has committed culpabte homicidal death of his wife. As per medical evidence, he has committed homieidal e» ? death by UifotUing her neck shows the brutat act. ABhough prosecution has not proved the fact that the appeltant has ireerted the stick in Ihe vagina of his wife, but blood clot foundin the vagina and the uterus awl injury nottced at the time of inquest revealed that present appellant has used force even In fte private part of the deceased shows the act of brutality of ttie appellant. The same is sufficient for drawing definite conclusion.that the appellant has caused injurywrth intent to cause her death. 13. After appreciaUng ttie evidence available on record, the learnec! Sessions Judge has righUy convteted and sentenced the appellait as aforementioned. 14. On close scrutiny of the evidence and material available on record, we do not find any illegality and infirmity in the impugned conwction and sentence ofthe appellant. 15. Consequently, the appeal, being devoid of merit and substanee, is liable to be and is hereby dismissed. —— — Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge