:-5;^ i^!^t"^;'t^ 'vsss-'*' HIGH COURT OF CHHATTISGARH AT BSLASPUR DSVISION BENCH: HON'BLE MR.T.P.SHARMA& HON'BLE MR.R.L. ,JJ. Criminai Aopeal No.88S of 2006 Eshwar Das Manikpuri Versus The State of Chhattisgarh Sd/- [-r Sharma Judge Hon'bie Mr.R.L.Jhanwar, J. Sd/- R.L. Jhanwar Judge Post for prsnouncement of fhe Judgment on : 11W281 1 Sd/- ••''" ^, 'Sii' .f'^-^.. j j •^. '!c,^' HiGH COURT OF CHHATTiSGARH AT BILASPUR DiVision Bench:- Coram: HON BLE MR.T.P.SHARMA & HON'BLE MR.R.L.JHANWAR, JJ. APPELLANT (In Jaii) RESPONDENT Crimmal Appeal No.SSS of 2808 Eshwar Das Manikpuri S/o Govardhan Das Manikpuri, aged about 25 years, Occ.Tailering R/o Viiiage Kode, P.S. Balod, District - Dwg (C.G.) Versus The State of Chhattisgarh Through: P.S. Balod, Distt.Durg (C.G.) (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Mre.Kiran Jai, counsel for the appeilant. Mrs.Madhu Nisha Ssngh, Panei Lawyer for the State/respondent. (Delivered on 11t''April, 20ri) The judgment of the Court was deiivered by T.P.Shanna, J.:- 1. Chaiienge in this appeal is to the judgment of conviction S oreier of sentence dated 30.4.2005 passed by the Additionai Sessions Judge, Balod, in Criminal Case No.31/2005, whereby & whereunder learned Additional Sessions Judge after hoiding the appeliant guilty for the offence of criminal house-trespass with intent to commit offencs punishable writh death and culpabie homscide amounting to murdsr of Laiatinbai and simple injury to Gopaichand Kotai convicted him under Seciions 302, 450 and 323 of the i.P.C. and sentenced to undergo imprisonment for isfe and fine of Rs.1000/-, R.i. for five years and fsne of Rs.1000/- and R.i. for one year and fine Rs.1000/'-, in defauit of payment of fine to further undergo R.l. for three months for each defeuits. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appeliant as aforementioned and thereby committed itlegaiity. ?6 3. As per case of prosecutlon, on 13.10.2004 at about 12.30 p.m. Gopaichand Kotsl (PW-1), husband of deceased LalatiRbai cams {o his house after depositing eiectricity biii, the appeiiant was hiding himseif in the house of Gopaichand Kotai (PW-1), suddeniy he assaulted by crowbar upon the head of Gopalchand Kotal (PW-1) wifh intent to kffl him, he shouted for hetp, then other persons came. The appellant aiso killed Lalatinbai in the house of Gopatehand Kotal (PW-1) and fled from the spct. Gopalchand Kotai (PW-1) went to Police Station Balod and lodged the F.i.R. within two hours and forty five minutes vide Ex.P/1. Merg was recorded vide Ex.P/2. investigating officer procesded for scene of occurrence and after summoning the witnesses vlde Ex.P/5 inquest over dead body of deceased Lalatiribai was prepared vide Ex.P/6. Spot map was prepared by investigating officer vide Ex.P/'3. Bloodstained ciothes of injured Gopalchand Kotal were seized vide Ex.P/8. Bloodsiained & plain soii, broken piece of opticai, broken piece of bangfes anci one pensui (instrument for cutting vegetsbie) were ssized from the spot vide Ex.P/14. injured Gopaichand Kota! was sent for medicai examination, he was examined by Dr.J.S.Sahu (FW-10) vide Ex.P/15 and found foliowing injuries :- (i) Laceratsd wound of Z' x 1 /8" x 1 /8" over frontai region. (ii) Lacerated v/ound of 2" x 1 " x 1/8" over left parietal bone. (iii) Lacerated wound of 2 %" x 1 /8" x 1 /8" near injury No.2. (iv) Lacerated wound of 2" x 1/8" x 1/8" over occipftai region. (v) Pain over ieft thigh. (vi) Abrasion of W over teft thumb. (vii) Abrasion of 1/8" x 1/8" over smali finger of right hand. Ke was advised for x-ray but no bone injury was found vide x-ray repot Ex.P/17. Dead body of deceased Laiatinbal was sent for autopsy to Community Heaifh Centre, Baiod vids Ex.P/21 where Dr.G.D.Baghs! (RA/-9) conducted autopsy vide Ex.P/15 and found foilowing tnjuries:- (i) Lacerated wound of 5 cm. x .2 cm. x .25 cm. over right parietai region, bone was vfsible and bone underlying injury was found fractured. (ii) Contusion of 5 cm. x 3 cm. over right occipital and parietal region. Cause of death was coma due to head injury anci death was homiddal in nature. During ths course of investigation, the accused was taken into custody, he made disciosure statement of crowbar and ash of burn ciothes vide Ex.P/9. Same was recovered at the instance ofthe appeilant vide Ex.P/10. Bioodstained undenwear of the appeliant was seized vide Ex.P/11. Pafawari aiso prepared spot map vide Ex.P/4. Sealed clothes of the deceased were seized vide Ex.P/13. Seized articies were ssnt for medical examination vide Ex.P/22. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminai Procedure, 1973 (hereinafter referred to as 'the Code') snd after compietion of investigation, charge sheet was fiied in the Court of Judfoial Magistrate First Ciass, Batod, who in turn committed the case to the Court of Sessions, Durg, from where ieamed Additionai Sessions Judge, Balod received the case on transfer for trial. 5. !n order to prove the gui!t of the accused/appeiiant, prosecution has examined as many as fourtsen witnesses. Statement of the accused/appeilant wss recorded under Section 313 ofthe Code, In which he denled the circumstancss appearing against him and pteaded innocence and feise impiication in the crime in question. He has taken defence that he was having love affair with daughter of Laiatinbai and Gopaichand Kotal (PvV-l) nameiy Kalpna Kotai and the deceased and Gopalchand Kotai (PW-1) were not happy with the actlvity of the appeiiant. Af ths time of incident he v.'as cieaning hls 'nouse, he has not committed any offence and he has bsen falseiy implicated In crime in questlon. 6. After providing an opportunity of hearing to the parties, the Ackiitiqnai Sessions Judge has convicted and sentenced the appeiiant as aforementioned. Mrs.Madhu the 7. 'We have heard Mrs.Kiran Jain, counsel for the appellant and Nisha Slngh, Panei Lawyer for the State/respondent, judgment impugned and record of the triai Court. 8. Leamed counsei for the appeilant vehemently argued itiat as per case of prosecution, inddent took piace in two parts. Firstiy, Gopalchand Kotai •seiyed 34^0 iseiisq uo peonppe aouspiAS st^ peujtuexs SAeq Q,"A 'sssyed eij} ^o lieqaq uo peoueAps stueiunfije etji 3}eio8jdde 0^ jspjo Uj'oi. 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Kotwar Kirtan Das Manikpuri <PV\/-^ has substantially corroborated the evidence of Damodhar Prasad (PW-4) and has deposed that he aiong with Gopai and other pereons entered into ihe house of Gopatehand Kotal where ihey found dead body of Laiatin in kitehen. One pensui (instrument for cuttlng vegetabie) and broken optical of Gopalchand Kotai were found in the house. Ku. Kalpna Kotai (PW-2) has deposed jn her evidence that on account of purchase of house she and her family came into contact with the present appellant. On 13 she was present in Daiiirajhara where she was informed that her mother has died and her father has injured. Her evidence reveais that intimaoy of t'nis witness with the appeiiant was not acceptable to her parents and they have directed to keep distance with the appellant. Her evidence reveals that she was having intimacy with the appeliant and same was not acceptable to her parents. 13.Virtuaiiy in the present case, evidence of Ku.Kalpna Kotal (PW-2), Damodar Prasad (PW-4) and Kotwar Kirtandas ManiKpuri (PW-5) are corroborative in nature. Damodar Prasad (PW-4) and Kotwar Kirtandas Manikpuri (PW-5) reached to the spot after commission ofoffenc®,they have not seen the accused or they have not seen the incidwt. As ?»r their evidence, when they entered into se house of Go|»ichand Kotal (FW-1), then they saw injured dead body of Lalatinbai in kitohen of Gopaichand Kotal and house was ciosed from inside. 14.1n these circumstances, only evidence of Gopalohand Kotal (PW-1) remains for consideration. Defence has cross-examined Gopalchand Kotal in detail. As psr para 12, the appellant was not unknown fo him. He has admitted in para 13 of his cross-exammation that inttiaiiy the appellant used to come in his house but subsequertiy he objected the appeiiant. In para 17 of his cross-examination hs tias speciflcaliy admitted that upto two assauits he has not seen the appeliant, but at {he time of third assauit he has seen the appsilarrt. There is some dfecrepancy about the number of assault and time of sfruggie with ths appeilant. In para 21 of his cross-examination he has further admitted that crowbar was found in his kltchen garden which was his crowbar. He has admitted that he has not seen the assaults made by the appeiiant to /^' u his wsfe. in para 24 of hls cross-examination he has deposed that at the time of iodging report he was not known the name of the appeliani, therefore, he has not stated the poiice about the name of fhe appellant, but F.i.R. reveais the name of the appeilant. In para 27 of Ms cross- examination he has denied the suggestion that he himself has commttted murder of his wife on the ground that he was not happy wlth behavior of his wife on account of reguiar visit of the present appeiiant. 15.As per evidence of Gopalphand Kota! and promptly lodged F.i.R. Ex.P/1, the appellanf was hiding himself in the house of this wttness behind cooier and he has assaulted him and caused sufficient injuries. As per evidence of DrJ.S.Sahu (FW-10) and medical examination report Ex.P/16, as many as seven injuries were noticed and out of seven injurles, four injures were found over scaip of suffscient dimension. These injuries were not possible to cause by this witness himself. 16.0efence has cross-examined Gopaichand Kotai (PW-1) in detail not been ab!e to etteit anyt'ning in his cross-examination to show present appellant has not caused seven injuries to Gopaichand and some other person has caused the aforesaid injuries. nas :the Kota! 17.Gopslchand Kotai (PW-1) was not happy with the activlty of the appellant, especiaiiy his intimacy with his daughter Ku.Kaipna Kota! (PVV- 2) or love affair between Kalpna and the appellant and this may te ground for false impiicatlon or for commission of offence to clear the persons i.e. parents of Kaipna from the activity and iife ofthe appeilant. 18.Evidence of Gopaichand Kofal (PVrf-1) is sufficient to estabiish the fact that only the appeiiant has caused aforesaid seven injuries to him and dsad body of Laiatinbai was aiso found in kitehen of Gopaichand Kotai. Evicience of Gopaichana' Kotai shows that before causing injury to him only the appellant was present in the house of Gopatehanci Kofal. Previously he was objected by this witness by his visit to his house, then there was no propriety or occasion for his presence in the house of Gopalchand Kotai. Dead body of Laiatinbai was found in the same house, the appellant v»as not simply sitting in drawing room of Gopalchand Kotal, but he was hiding himself behind cooier wlth dangerous weapon cieariy reveals that before causlng injury tc Gopaichand Kotai, only the appeiiant and wife of Gopsichand Kotal i.e.Laiatinbai were present in the house of Gopatchand Kotai and Lalatinbai was found dead as a result of fatai injuries. 19.0ffence committed in secrecy. The appeilant was under obiigation to offer expianation in terms of Section 106 of the Evidence Act that how he wss found in the house of Gopalchand Kotai, how he was hidsng himself behind cooier, who has caused injuries to Gopalchand Kctai and how La!atinbai died. The present appellant has not offered any explanation. As held by the Supreme Court in the matter of Trimukh Marrti Kirican v. State of Maharashtra1, in case murder committed in sscrecy inside a house, the inltiai burden to establish the case woutd undoubtediy be upon the prosecution, but the nature and amount of evidence to be !ed by it to estabiish the charge cannot be of the same degree as is required in other cases of circumstantiai evidence. Para 15 of the saW judgment reads as under:- "15. Where an offence iike murder Is committed h secrecy inside a houss, the initiai burden to estabiish the case wouid undoubtediy be upon the prosecution, bui the nature and amount of evldence to be Sed by it to estabSish the charge cannot be of the same degree as is required in other cases of circumstantia! eyidence. The burden would of a comparativeiy lighter character. in view of Section 106 ofthe Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent expianation as to how the crime was committed. The inmates of the house cannot get away by simpiy keeping quiet and offering no explanation on the supposed premise that the burden to establish its case iies entirely upon the prosecution and there is no duty at al! on an accused to offer any explanation." 20.in case offence committed in secrecy andthe person who was pr^ent in the piace of incidenfhouse did not offer &ny expianation, then oniy Inference would be possibie that ihe present appellant has committed the offence and in absence of such expianation only inference wouid be possible that the pressnt appeiiant who was having grudge and motive for causing such death to continue his reiation with daughter of tieceased Laiatinbai has committed culpabie homicide amounting to murder of Laiatinbai. \20Qb'i iO SCC 681 ->> 9 for ilfe fine of iltof 21.As per evidence of injured witness Gopaichand Kotia (PW-1), tti( present appeliant was found in hls house wth crowbar, ha was hiding himself shows that he has committed criminai house-trespass and committed murder of Lalatinbai. 22.After appreciating the evidence avaitable on r«:ord, leamed Sessions Judge, Balod has convicted the appeitant under Secti( 450 and 323 of the i.P.C. and sentenced to undergo imprisonment and to pay fine of Rs.1000/-, R.i. for five years and to Rs.1000/- and R.i. for one year ancs to pay of fins Rs.1000/-, in payment of fine to further undergo R.i. for three months for 23,Whiie convicting and sentencing the appeiiant for commissioR of aforesaid offencs, the triai Court has not committed any iiiegaiity or irreguiarity. 24.Consequentty, the appeai being without substance is iiable^W &e dismissed ar^l tt is hereby dismissed. --t=/-^ Sd/- l-r- Sharoia Judge Sd/- R.L. Jhanwar Judge w-