HEGH COURT OF CHHATTISGARH AT BILASPUR 1 DIVISION BENCH: Ccram: HON’BLE MR.T.P.SHARMA & HON’BLE MR.R.N. Chandrakar, JJ. Criminal Appeal No. 657 of 2003 Appeilant/ Sonit Kumar, S/o Shri Motiram Banjare, (in Jag!) aged about 29 years, R/o Village Malpuri'Khurd, Police Statiorj. Nandini, District Durg, Chhattisgarh. Versus K Vf ‘ State of ChhattisgafhkThrough : Station Respandent House Officer, Police Station Nandini, District Durg, Chhattisgarh $ (CRMWAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr. RS‘ Mamas, counsel for the appellant“ Mr. D.K. Gwalre, Govt. Advocate for the Stale. ORAL JUDGMENT (Passe‘d on o1 3t September, 201 1) ’ x‘. Per T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 21 .042003 passed by the lst Additional Sessions Judge, Burg, in Sessions Trial No.288/2002, whereby & whereunder learned lst Additional Sessions Judge after holding‘appellant guilty for commission cf culpable homicide amounting to murder of his wife Chameli Bai (since deceased) convicted the appellant under Section 302 of the i.P.C. and sentenced him to undergo imprisonment for life and fine of Rs.500/-’, in default of payment of fine further to undergo RJ. for one month 2. Conviction is impugned on the ground that without there being any iota of 1 evidence, the trial Court has convicted & sentenced the appetiant as : fetementioned and thereby committed tiiegality. ‘l 3. s per case of prosecution, at intervening night of 08.07.2002 and 09.07.2002 appellant husband of deceased Chameli Bai was present " and sleeping in his house along with deceased. On the second day morning dead body of deceased was found in the house of appeiiant. PW/i-Lakhanlai Banjare went to police station and merg was intimated vide EXP/l F.l.R. was lodged vide Ex.P/14. lnvestigating officer left for scene of occurrence; after summoning the witnesses vide EXP/3, inquest over dead body of deceased was prepared vide EXP/4. Spot map was prepared vide EXP/13. Dead body was sent for autopsy to Govt. Hospital, Durg. Dr. Lal Mohammad (PWI8) conducted autopsy vid'e EXP/11 and found ligature mark of 13x1 1/2 cm. over neck along with abraéifon of 1/4 x 1/6 cm in size. Mode of death was asphyxia as a resuit of strangulationand death was homicidal in nature. 4. Duringicourse ofuinvestigation, appellant was taken into custody. He made disclosure statement of belt vide EXP/6, same was recovered at his instance vide EXP/5. Clothes of deceased were seized vide EXP/5A. Sealed clothes of deceased was seized yide EXP/9. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the ‘Code’). After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate First Ciass, Durg, who in turn committed the case to the Court of First Additional Sessions Judge, Durg, 'learned Additional Sessions Jj'udge received the case on transfer for trial. in order to prove the guilt of the accused/appellant, prosecution has O"‘ .5 examined as many as 12 witnesses. Statement of the accused/appellant vrias recorded under Section 313 of the Code. where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. f. After providing opportunity of hearing to the parties, learned First Additional Sessions Judge, convicted 8: sentenced the appellant as aforementioned. 0 8. r. RS. Marhas, counsel for the appeliant and Mr. D.K. Gwalre, Govt. dvocate for the State are heard. Perused the judgment impugned and record of the trial Court. l \ / 4" 9. Learned counsel for the appellant vehementiy argued that although this is g case of house murder, appellant and deceased only two persons were present at the time of death of deceased but defect remains that appellant was suffering from schizophrenia. He was not able to uhderstand meaning ’of wooden, belt and consequence of his act; therefore he is not liable for commission of offence. 10. On‘the other hand, learned Govt. Advocate for the State opposed the appeal and submits that appellant was under obligation to take and proVe such defence under Section 105 of the Evidence Act but appeliant has taited to prove such defence. Evidence adduced on behalf of prosecution is sufficient to establish the fact that appeilant was the person who has committed culpable homicide amounting to murder and Court below has rightly convicted the appeiiant aforementioned. 11.tn order to appreciate the arguments advanced on‘behalf of the parties, we have examined the evidence avaiiable on record. 12.in the present case, homicidal death of deceased Chamett Bai as a resutt of strangulation has not been substantially disputed on behalf of the appellant; even otherwise same is also established by the evidence of PW/8-Dr, Lal Mohammad and autopsy report EXP/11 that death of deceased Chameli Bat was homicidal in nature. 13ers.} regard compiicity of the appellant in crime in question is concerned, ‘copviction of the present appellant is substantially based on cirpumstantial evidence. tn case of conviction based on circumstantial evidence, as held by the Apex Court in the matter of C. Changa Roddy V. State of AP. , the prosecution is required to adduceevidence and ”ears xi 5; (2) those circumstances should of a definite tendency unerringly (3) the circumstances taken cumulatively should form a chain so subh evidence must satisfying the following test:— (t) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; pointing towards the guilt of the accused; complete that there is no escape from the conclusion that within atl 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 l evidence should not only be consistent with the guitt of the accused but should be inconsistent with his innocence. 14.in5 the present case, prosecution has tried to prove the following circumstances:- (i) That appeiiant and deceased, Wife of appetiant, were residing in the same roomi (ii) On the date of incident and at the time of incident appeiiant and deceased only two persons were present in side the room as . husband and wife. (iii) On second day morning, appellant was present in his house and deceased Chameli Bai died as a result of strangulation and her death was homicidal 15.Appell‘ant has not offered any explanation as required under Section 106 of the Evidence‘Actr As per evidence of PW/23Mongra Bai, sister-in-law of the geceased,‘ deceased did not wakeup on second day morning, when deceased not woke up in morning then mother-in—Iaw of deceased t. went inside the room, she found dead body of deceased in side the room and appellant was sitting in veranda in front of room. Factum of recovery of dead body from the room of appellant has been corroborated by the evidence of PW/3-Durga Prasad, PW/4—S.R.Dhruw. As per evidence of 'PWI2—Mongra Bai, appellant Was sitting in the veranda adjoining to his room. Dead body of deceased was lying on bed inside the room. Appeilant and deceased were husband and wife. He has not offered any explanation as required under Section 106 of the Evidence Act that who has caused death of deceased Chameli Bai He Was present at the time 02f incident in the house. lnter alia, he has tried to take defence of mental illness but has not proved the aforesaid exception by adducing defence ir‘l terms of Section 105 of the Evidence Act. These evidence and circumstances established the fact that at the time of incident appeliant ahd deceased were residing in same house and was present inside the room. On second day morning dead body of deceased was found inside the room and appellant was sitting in veranda adjoining to the groom. ln absence of any explanation under Section 106 of the Evidence ii, Act only inference would be possible that only appellant has caused ~, aforesaid homicidal death amounting to murder of his wife and except i l a pellant no other person has committed the aforesaid offence. i