^SC—78 ^TT^T ?FT ^Jch T[SH 3TR^T st)^l<=h 3^cT ^ll^l^^, ^)T{1-(rl4l<S, [sf^l'y^ f^60 C_-^-(V. N0. ^<4r!.^o^ ^l^dl tb^icb • ••••••••••••••-••••••-•-•—•-•"—-^ 200 37r^r ^r^ (^f^^r) '^TTW^fN-3?1^T APPELLANT/ ACCUSED (in custody) Smt^ Shai! Sahu, aged 22 years, Wife of Omr|ath Sahu, resident of viiiags Suheia, P.S.I Suhela, Baloda Bazar, Dist. Raipur (CQl RESPONDENT Stat^ DisStl (Appea! under Se^ Dlvjsion Bench : Hon'ble Shri L.C. Bhadoo & Hon'bie Shri Sunil Kumar Sinha. 27-8-2007 Shri Yogeshwar Sharma, coitnsel Shri Vinay Harit, Dy. Advocalje Heard. Ora! judgment dictated on di^fs. L.C. Bhadoo. J The accused/appeilant has p| conviction and order of sentence dat Sessions Judge, Baloda Bazar, Di^trict whereby she has been heid gullfry for commjtting murder of Ku. imprisonment for Jife & to pay a fin^ to further undergo R.i. for one yeaL cM^?<n^i<1 TTR?Tf ^'fe^ <p3l<^l< ^^rRww^ •Versus- of Chhattisgarh, Through P.S. Suhela, Ralpur (CG). tion 374(2) oftheCr.P.C.) for the appeliant. General for the State. 1-eferred this appeai against the judgment of ^ed 21-4-2001 passed by Second Additional Raipur, in Sessions Trial No.245/2000 jnder Section 302 of the indian Penal Code Rharati and sentenced her to undergo of Rs.1,500/-, in defauit of payment of fine XI-HC—78 371^T ^T (^-tich ^T^T 371^T st>^lc^ 3^T ^l-^l^, ^Tfly^t^, ^<7'>l^y NIJ4dl sb^Sch '•^ 200 w^ ^w (^^^) 2) The case of the prosecutictr unc.'e of the deceased, gave mer|g on 11-4-2000 at about 7.40 p.m. taking mea! he went towards timfc|€ p.m. he was returning on the wayj near the ciinic of Dr, Tiiak keeDint his iap. Dr. Tilak examined Bl Therefore, they brought her to accused i.e. Shail, second wife of| disclosed that Bharati was sieep|ng and thereafter she went to anoth^ When she went towards the roor she was iying on the ground and ] thls report, the Invsstigating Offic^ notice (Ex.P/6) to the Panchas, ii Bharati. Pieces of nails of Bharatil accused Shaii were seized un< postmortem examination to the Pl Soni, oonducted postmortem and cause of death was asphyxia due nature. Death was homlclda! in n^ CEx.Pt 4) was reaistered, Slte custodv, accused gave memoranc kept the towel, Vi/hich was used fc recovered the towei under Ex.P/1 site plan under Ex.P/12. Bed sl' cb{^i<rt^4 'HP^Tf ^T.rs^ <R»l'^l< ^T 3TRlH 3?i7^T tn, in brief, is that PW-2 Kamta Prasad Sahu, intimation (Ex.P/3) to Police Station Suhela the effect that today at about 2.00 p.m. after ?r house (wood toD from where at about 5.00 |he saw that his brother Omnath was standing his daughter Bharatl, aged about 4 years in mratj and said that she is alreadv dead, ^heir residence. Enquiries were made from lOmnath and the step mother of Bharati. She in her bed room.she woke-up to urinate room for sleeping at about 2.30 to 3.00 p.m. |i where Bharati was sieeping, she saw that |she saw the injuries on her body. Receiving ^er left for scene of occurrence. After giving tquest (Ex.P/7) was prepared on the body of Iwere seized under Ex.P/8. Pieces of naiis of per Ex.P/9. Body of Bharati was sent for I'imary Health Centre, Suheia where Dr. A,K. |3repared report (Ex.P/1). He opined that the p:o strangu!ation. Injuries were ante mortem in jiture. Based on that First hformation Report [lan (Ex.P/15) was prepared. In the pollce |um (Ex.P/10) regarding the place where she stranguiation. in pursuance of that she got !|1 from her bed room. Patwari prepared the hieet was seized under Ex.P/1 6. The seized XI-HC—78 ^E^^TPTT^r, ^rf^FR, isl<?'>W^< MWv{\ *^1<*» •^ 200 3TT^T ?FT f^rll<=n ^^T 3>ff^T 5RTTW 3?T^?T x?^? (^?1^<^) •^TT^R^rfiHW^ wifeNN iTm^f^^-rf^R '^stfOT^n^T case to the Court of Sessions Additional Sessions Judge, Baiod articies were sent to Forensic Sci^nce Laboratory, Raipur under Ex.P/16A from where report Ex.P/19was recsived. 3) After completion of investlg^tion, charge sheet was fiied in the Court of Additionai Chief Judiciai Magistrat^, Batoda Bazar, who in turn committed the judge, Raipur, from where learned Second b Bazar, received the same on transfer for trial. 4) In order to estabiish the ;harge against the accused/appeliant, the is. Statement of the accused was recorded Criminai Procedure in which she denied the |he prosecution evidence. She stated that |eiy implicated. She examined one defence (DW-1), who has stated that in the eiection Drosecutjon examined 12 witness4 under Section 313 of the Code of materia! appearing against her in she Is innocent and has been fal^ witness namely, Daman Lal Sahu Omnath. husband of the accused) was opposing Niranjan Verma, Sarpanch and Dhanwar was supporter of Nir^njan Verma. of Nir^nji 5) Learned Additional Sessio respective parties, convicted arl aforementioned. is Judge after hearing counsei for the |d sentenced the accused/appeiiant as S) appeilant and Shri Vinay Harit, Dy. ^ We have heard Shri Yog^shwar Sharma, iearned counsei for the ^dvocate General for the State. 7) Learned counsel for the app^llant has not disputed the homicidal death of Ku. Bharati. Moreover, PW-1 Dr| conducted postmortem on the body] A.K. Soni has stated that on 12-4-2000 he of Ku. Bharati. He steted that the tongue of the deceased was between the te^th. Eyes were ciosed. Conjunctiva was XI-HC—78 75^ '^11^10^, ^Tfly41<o, Rl(y>>l<-)^< W^TT sb^lch •^ 200 STI^T^i f<Tii<=h ^T^TT W^T ^RT^ 3Tli(9T ^^F (ljc<I^<^) ^^TT'^TT 3TT^T blo4d i) (ii) tHse congested. Fluid mixed with There was a ligature mark aroundj Abrasion in ofnsckjustaj Abrasjon in t| right side ofn| Abrasion in tlt supra ciavicul Abrasion in shoulder. (v) Abrasion in rogson. Multiple abras thiyh. MultipJe abrsj aspsctofthe (iv) (VI) (vii) was coming out from the mouth and nose. the neck and there were following injuries: size of3 x 1!4 cm. on left side )ove the iigaturs mark. se size of 7 x % cm. oblique on sck just beiow the ligature mark. le size of 3 x % cm. on the right ar rsglon. ;he size of8 x ^ cm. on left ie size of 2 x 1 cm. on pubic ion on medial aspect of the right In the opinion of the Doctor. c^ strangulation. Postmortem repoi based on the postmortem report, homicidal in nature. 8) As far as complicity of the there is no direct or ocular evid circumstantial evidence and as accused based on the circumstar matter of Dhananjoy Chatterjee "in a case based circumstances from I(1994)2SCC220 chNfd^lrl TTTR?ff ^\'felst <^l^l< ^•3?^pT<3?n^ jsion on anterior and media! leftthigh. |use of death was asphyxia as a resuit of is Ex.P/1. In view of the above evidence |t is estab!ished that death of Ku. Bharti was )cused in the crime in question is concerned, ^nce in this case. The case rests on the ber the settled iaw in order to convict an •jtiai evldence, the Hon'bie Apex Court in the |rs. State ofW.B.1 heid that: ^n circumstantial evidence, the ^'hich the conciusion of guiit is 'v XI-HC—78 '5^ ^ii^i^^, t$Tf1'y'i<3, (s)<?)>iy^< MWvit *^|eh • •—•••••• •—••••••••••—•—-—-••-^ 200 3?T^?T '^F3F (^f^oS^) W^T ^T ^{ch '^8H ^ll^l ?h<-l|ob ^^TTW^rftcf 3^r to be drawn have not aiso that ai! ths be of a conclusive n; the hypothesis of the| circumstancss shoul< expiained by any othet the accused and the so compiete as not to| for the beilef consisN accused. It needs estabiished circum^l indignation of the convictiQn and the greater should be th^ evidence lest suspicioh l^nly to be fuily established but circunlstancss so sstabisshsd should |ture and consistent on!y with guilt of the accused. Those not be capsbte of bsing hypothesis except the gui!t of |;hain ofthe evidence must be leave any reasonabie ground ^nt with the innocence of the no reminder that lega!!y ^tances and not mereiy cburt can form the basis of ^ore serious the crime, the care taken to scrutinize the takes the place of proof." 9) !n the present case the prot against the accused based cn the fc|l (i) That, the act confession. That, the accused when death. --t' 10) As far as first circumstance) concerned, PW-7 Ripusudan Verm^ and enquired from Shaii (accused) gagged cioth in the mouth of Ku. kept the doth. Memorandum (Ex.Fl/ cioth from the house of Omnath anything from the accused. Only anything in their presence. Theref<|)re the Extra Judicial Confession is of no cM<4t<n4l TrPTOf ^"fe^t if^K^K ^^fftm^Ti^T >ecution has tried to estabiish the charge llowing circumstances namely: fcused made extra judiciai decefesed was !ast seen v^ith the she was aiive just before her [with regard to extra judiciai confession is has stated that Police came in the viliage in their presence. Shail disciosed that she ^harati, but she did not disciose where she HO) bears his signature. Police seized the under Ex.P/11. They had not enquired Ipolice enquired and Shail did not disclose ^ the evidence of this witness regarding use. XI-flC—78 •S^ ^l^ll^, ^'H^KS, fsf<>-»l<-t^< ^TT^T ^ ^ich 'cTSTT 3H^T 5b^li<=b MW<^{ skNlcb 3TT^?T Tra^ ( 4c<f'ifi<ci^) •^ 200 '^TTW^TT^T^T Cbl^{<r(<fltl *4l<-i<vff ^l^t ^^K ^" arRpT'STT^T 11) Even, PW-10 Omnath, fal|ier of the deceased and husband of the accused, has stated that on the f2|teful day he went to village Bhatbhera, from where he returned and went to ^ilaspur at about 1.00 p.m, Santhosh Naik telephoned him about the death of cn a motorcycle. On that day, tl^ere were two marriages in his house. One marriage was of Dhaleshwari and| namely Romnath. The deceased There were injuries on the persor| Shai! about the cause of death of the ground floor for work and Dh| has not stated that the accused ms Bharati was prepared in his pres^ enquiry, Shail disclosed that she <j give her chocoiate, switched on <j his daughter. Therefore, he came to Suhela second marriage was in his brother's house Lised to reside with him aiong with his wife. of Ku. Bharati. He enquired from his wife Ku. Bharati. She disclosed that she went cn aleshwari called her and disclosed that she saw that Ku. Bharati was lying on ^he floor, there was no movement in her body and Shail disclosed nothing to hinji. This witness was declared hostile and he de extra judicial confession in his presence. 12) Other witness relating to ^xtra judicial confession i.e. PW-6 Niranjan, Sarpanch of the viiiage, has stat^d that inquest (Ex.P/7) on the body of Ku. 'nce. There were injuries on her body. On alled Ku. Bharati on the pretext that she will ;oo!er Ss fan and thereafter she pressed her nose. For some time she let off i(Cu. Bharati and after some tlme she gagged the towel in her mouth and press^d the neck. In the cross-examination, this witness has stated that he is a vijiage Sarpanch. The incident took place on 11 . They enquired from the accu^ed on the next day of ihe incident i.e. 12m or L in the evening. On cross-examinafion, he >th 13ffl at about 5.00 p.m. to S.OQ p.r has denied that Police recorded hi s statement on 16-4-2000. !t is not Sike that after 4 days of the incident i.e. 14^4-2000, he, Santosh, Thanvar enquired from Shail. They did not enquire from $haii on that day at 10.00 a.m. Again he has XI-HC—78 ^n^T ^>T ^ich ^T^T3^?T $h^lcn 'S^ •^1141^, ^TO^^KS, isf^iyy •WR^n" *NI<=k •^ 200 ^y x§^^ (^f^^y) '^nw^rf^T^i^T stated that in the night of the inci^ the piace of occurrence. in the incident because they were si^s stepmother of Ku. Bharati as sucjh, true that in the night of the incid^nt scene. When they enquired fror|i crime, poiice personal were not started saying that the accused she must have committed the mu| incident they were not abie to kn<| the incident, he had no occasion of the day of incident; he had a ta| were made from the accused. Therefore, as per the evidence o1] and the husband of the accus( (Omnath) has not supported the any extra judicial confession. emerges i.e. (i) they started enqi same day and, (ii) he has said in| from the accused either on 12th the villagers were suspecting the deceased and that is why the vill murder. 13) On the other hand, PVV-9 confession said to have been Incident he aiong with Niranjan, ch{^i<rS^l^ ^l^dT ^.ft^ <f^^« '^3tfN3iT^T lent thousands ofthe persons had gathered at light itself, they asked the accused about the >pecting her to be the culprit as she was i, she must have committed the murder. !t is itself one or frn/o policemen reached on the the accused about her invoivement in the ^here. It is correct to say that ai! the viiiagers |s the stepmother of the deceased; therefore. rder. it is correct to say that tiii the next day of ^w that who has committed the crime. Before to talk to Shaii, for the first time in the evening |k with the accused. After cremation, enquiries At that time, Omnath was aiso present. this witness, about six persons had enquired td was also present, whereas the husband jcase of the prosecution that Shaii had made 1-om the evidence of this witness two thinas |jring from the accused in the evening of the a definite term that the enquiries were made jr 13th evening. He has further stated that ai! iccused as culprit being the stepmother of the l^gers said to her that she has committed the "hanvar Singh, before whom the extra judiclal iade, has stated that after 2-3 days of the ipusudan, Santosh 81 Dilip went to the house XI-HC—78 aqi^i^T ^ich <cT^IT OTG[?T'^RT^' ~5:S3( ^J^Il^, lS)T{iy41<o, is<<VI>l'M^< ^INdl 5b^lcb •^ 200 3n^?r v^ (^f^s^?) ^HW^f^T'3:i1^T of the accused and asked her to t| disclosed that she has committed t married, therefore, she wanted to the murder of Ku. Bharati. The a[ Bharati on the first floor on the thereafter she pressed her nose, ot doing, therefore, she let off her for wiil disdose this fact to the eider moth and pressed her neck. In th( that at that time Ripusudan was not at about 4.00 to 5.00 p.m. At that also present there. On 14-4-20001 Santosh & Diiip had not gone to th< He did not disciose to the Police Niranjan, Ripusudan, Santosh & D| further stated that from the day of accused; as she is the stepmot^ committed the murder. Specific qi stated that extra judicial confessionl he has also stated that accused m< out of these two statements whlci' thinking for some time stated that ei 2000. Therefore, the evidence regarding extra judicial confession extra judicial confession was made stated that extra judicia! confessior 4){^id41'i *TR<^f '^f^'fe^ '<^1^l< ^ 3-tf^TT'STI^T !1 what is the correct thing, on which Shaii ie murder because Dhaleshwari was being s|:op that marriage that is why she committed ;cused a!so disclosed that she cailed Ku. retext that she v^iil give chocoiate to her which the deceased sald that what she Is »ometime. Thereafter she thought that she rrljother, therefore, she gagged a towei in her cross-examination, this witness has stated jthere. They went on 16-4-2000 for enquiry jme, Omnath, husband ofthe accused, was at about 10.00 a.m. Sarpanch Niranjan, house of the accused for enquiry from her. that on 14-4-2000 at about 10.00 a.m. lip went to the house of Omnath. He has tfie incident the villagers were saying to the ter of the deceased, therefore, she has lestion was put to this witness that he has [ was made 2-3 days after the incident and ^de extra judicial confession cn 16-4-2000, one is correct, on this, the wltness after ^tra judiciai confession was made on 16-4- PW-9 Thanvar Singh & RA/-6 Niranjan jis contradictory. Niranjan has stated that bjther cn 12th or 13th whereas Thanvar has was made on 16-4-2000. Therefore, their XI-HC—78 -3?n^?T ??T ^ich '^^1 STI^T Sib^i<^ 7v3( -q |41^^, ^T{i<-)<l<0, fc|01-(-l^< "Rl^dS tb^lsb W^ 200 3Ht?T'<CT^ (<|^I^<^T) ^^TTW^f^T'ST^T evidence regarding extra judiclal the Court. 14) Moreover, it is settled law tj extra judicial confession it must b^ before whom the extra judicial unbiased, not even remotely inirj nothing is brought out v/hich may t^ attributing an untruthful statement ^ unmistakabiy that the accused is witness which may miiitate agains^ test on the touchstone of credibilit^ can be the basis for conviction. 15) On this test also, the prosej these two witnesses nameiy, PV^ susoecting the accused to be the c! view of the above evidence, it canri 16) Moreover, PW-9 Thanvar Sij confession on 16-4-2000 wherea^ cM<4l<n^1'l "HTR^ff ^t\fe^ T{W$K ^sif^TT^n^T jconfession does not inspire confidence of jiatin order to place explicit rellance on the voluntary, true & prompt and the witnesses ccfifession said to have been made must be inirtiicai to accused and in respect of whom ^nd to indicate that he may have a motive for Jo the accused, words spoken are clear, and |the offender and nothing is omitted by the it, after subjecting the evidence to rigorous if it passed the test, it can be accepted and bution evidence is not worth reliance. Both F-9 Thanvar Singh & PW-6 Niranjan have categorically stated that since fir^ day of the incident ail the villagers were jlprit being stepmother of Ku. Bharati, that Is why they were saying to the accu^ed that she has committed the murder. In ot be said that extra judlcjal confession, if at al! made, was voluntary because th|ere was pressure on her by the viiiagers. igh has stated that Shail made extra judicial as per the record, Shail was arrested on 14-4-2000. On her discloser (Ex.F^/10) the towei, which was used for gagging the mouth of the deceased, w^s recovered on 14-4-2000. Under these circumstances where there was rf> occasion for the accused to make extra JudidaJ confession without presenc^ of police on 16-4-2000. Recovery of towei XI-HC—78 T^ET ^|^|<v')<q, ^)Tf!y41<5, IS|<T'>I<-)^< ^ 10 ^Wv\l *^(cb '^ 200 3TI^[?RT f^li.ch ^T^T 'STT^T sti^icti 3^?r 'qirsF C^t^^r) '^fTWRf^T'SII^T is aiso cooked up evidence for th^ given by the accused. The towel ^ the accused lying on the sofa andj of incident number of persons w^i towel was in a concealed posses^ oftheaccused. Therefore, this re<| Court. reason that the memorandum (Ex.P/10) was >aid to have been recovered from the room of that too on 14-4-2000 whereas from the date re moving in the room. it is not a case that ion and the same was only in the knowledge ^overy a!so does not inspire confidence of the 17) As far as last seen theory i4 the site plan prepared by the Inve^ the body was recovered from the As per the prosecution case, th^ which she stated that she committe^ towe! in her mouth and thereafterl (abrasions), sustained by Ku. Therefore, the last seen theory a| because there were two marriage^ house. Moreover, the body was Dhateshwari. Therefore, it canr|ot accused only and there was no other persons. 18) !n view of the above, w circumstantial evidence adduced accused in the crime in question Apex Court in the matter of res evidence i.e. in order to rest the cogent & clear; and irresistibie cor <^i^t<n<?li ^H<?if ^fe^lf <RI^K ^3?fOT3:n^r concerned, it is admitted position that as per ^tigating Officer as weli as Halka Patwari that toom, which was being used by Dhaleshwari. accused made extra judicial confession in ped the murder of Ku. Bharati by gagging a Ipressed her neck. How injuries No.5. 6 & 7 Sharati on her private parts is not clear. |so does not inspire confidence of the Court and number of persons were moving in the ^ound in the room, which was being used by be said that Ku. Bharati was with the ^ossibility of her being in company of some f^ are of the considered opinion that the jby the prosecution in order to connect the |as not stood up to the test laid down by the ^stina conviction based on the circumstantial cojnviction, the circumstantia! evidence must be Idusion must have been drawn, on the basis XI-HC—78 11 'STT^T ^T ^jch ^TSff^?T^T 9h^|cti Gowri 3^ET ^<MI?''>^,i'@Ti1'H41<S, fs)<?'>iy^< 'RTR^TT ^hW^h ^ 200 W^?T ^(^ ( ^f^^ ) '^TTW^rf^T <3?T^T of which it can be said that the question and there is no possibili| cnme. 19) In the result, the appeal su(| the accused/appellant under Sec| aside; she is acquitted of the said| required in any other case. laccused is the only author of the crime in |y of coming any third person to commit the |ceeds. Conviction & sentence imposed upon tion 302 of the Indian Penal Code are set ]charge. She be set at iiberty forthwith, if not Sd/- L.C. Bhadoo Judge cbH{<rt<iir1 ^l*-i<;lt '£f,feTSt'rf^$R ^3f^rH3TT^T Sd/- Sunil Kumar Sinha Judge