!;fe^~ ;ij^?' KiGH COURT OF CHHATTiSGARH AT BU-ASPUR Division Bench:- HON'BLE MR.T.P.SHARMA HON'BLE MR.R.L.. R, JJ. fe) IS? i ~si-Ei APPELLANT ?in Jall) RESPONDENT Criminai AooeaS No.690 of 2806 Rakesh Kumar S/'o Gandharva, Age about 25 years, Viiiage-Binouri, P.S.-Masturi, Chowki- Pachpedi, Biiaspur, Tehsi! & Dtett.- Bliaspur (C.G.) Vsrsus Sfate of Chhattisgam Threugh-P.S. Ratanpur Dist.Biiaspur (C.G.) (CRMINAL APPEAL UNDER SECTiON 374 (2) OF THE CODE OF CRSMINAL PROCEDURE, 1973) Mr.N.K.Mehta, counse! forthe appeliant. !li4r.J.A.Lohani, Pane! Lawy'er forthe rsspondenVState. on 1SIJu!y,2011) PerT.P.Sharma,J.:- 1, Chalienge in this appeal is to ihe judgment of conviction and order of sentsnce daied 31.7.2006 passed by the First Additionai Sessions Judge, Biiaspur in Sessions Triai No.164'l2006, whereby & whereunder iearned First Adoliional Sessions Judge after hoiding the appellant guitty for commission of cuipabis homteide amounting to murder of his wife Rajkumari convicted him under Sections 302 ofthe i.P.C. and sentenced to undergo imprisonment for iife & fine of Rs.200/', in default of payment of fine to further undergo R.i. for three months. 2. Conviction is impugned on the ground that without there being any ioia of evidence, the triai Court has convicted and sentenced the appeiiant as afcrementioned and thereby committed iliegaiity. 3. As per case of the prosecution, in the Intervening nlght 11/12.2.2006 the appeiiant after some hot taiks with his wife, unfortunate dec^sed Rajkumari went for sieep tn room, the members of the family woke up at morning and dead body of the deceased was found wtth injury over the SB 4. 5. 6. 7. neck. Both the iegs wers tied with towe! and the appeilant was not present in his room. Gayatri Bai (PW-3) mother-in-iaw of ths appeiiant and mother of the decsased has todged merg vide Ex.P/4. F.i.R. was iodged vide Ex.P/5. investigating officer ieft for scene of occurrence and after summoning the witnesses vide Ex.P/2 prepared inquest over dead body ofthe deceased vide Ex.P/3. Dead bedy ofthe deceassd was sent Tor autopsy to Primary Heaith Centre, Ratanpur where Dr.Smt.hiladhu Saxena (PW-1) conducted autopsy of dead body of deceassd Rajkumari vide Ex.P/1 and found muitipie brushes over the neck caused by fingers. Frothy blood was present in the right iung. Fracture of lurking and trachea. Case of death was ssphyxia as a resuit of throaiing. SpoS map was prspared by investigating officer vide Ex.P/7. Patwari aiso prepared spot map vide Ex.P/5. Terricot towe! by which jegs ofthe deceased were tied was seized vide Ex.P/8. Statements of the witnesses were recorded under Section 161 of ths Code of Cr.P.C. and after completion of investigation charge sheet was fiied in the Court of Additionai Chief jiidiciai Magistrate, Bi!aspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from whers ieamed First AdditionaS Sessions Judge, Biiaspur received the case on transferfortriai. in order to prove the guilty of the accused/appeiiant, the prosecutlon has examined as many as nine wltnesses. Accused was examined under ^ction 313 of the r>r (3 ,C., in which he denied t'ne circumstancss appearing against him and cteimed innocence and faise impiicatton in crime in question. After affording opportunity of hearing to the parties, tearned trial Court convicted and sentenced the appellant as aforementioned. We have heard isarned counsei for the parties, perused the judgment impugned and record of the tria!Court. Leamed counsei for the appeliant vehementiy argued fhat in the present case the prosecution has utteriy faiied to prove its case beyond ali shadow of doubt. Conviction is based on clrcumstantiai evidence. IR case of conviction based on circumstantiai evidence, the prosecution Is required to satisfy the following circumstances, n ^•%S^et^i;SS 9. i. the circumstances from which ths conciusion of guiit is to be drawn shouicj be fully established. The circumstances concemed 'must' or 'shouid' and not 'may be' estabilshed; ii. She facts so estabiished shouid be consistent oniy witti the hypothesis of the guiit of the aceused, that is to say, they shouid not be expiainabie on any other hypothasls except that the accused is guilty; iii. the circumstances-shouid be of a conciusive nature and tendency; iv. they shouid exciude every possibie hypothesis except fhe one to be proved; and v. there must be a chain of evidsnce so complste as not to ieave any reasonabie ground for the coRciusion corisistent with the innocence of the accused and musi show that in ail human probabiiity the act must have been done by the accused. in the present case, the prosecution has not satisfied the aforesaid test. Oniy on the ground that the appeiiant was present in the roon^^f the deceased at the time of her sieep is not sufficient for drawing inference that ihe appeiiant has caused homiciriai death of the deceased. Leamed counsel further argued that as per initiai case of the prosecuiion, some hot taik took piace between the appeilant and the deceased shows that on account of sudden provocafion without premeditation homtoidai death has been caused. In these circumstances, the act of the appeilant does not travei beyond fhs scope of Section 304 Part-i of the I.P.<c. On the other hand, iearned counsel for the State opposed the appeai and argued that conviction is based on circumstantial evidence. The prosecutlon has proved the foilowing chain of circumstancss, (i) The appeilant and the deceasej v/ere present snside the room at night, they were husband and wife. (ii) The deceased dted as a result of throttSing. (iii) Both ths iegs of the decessKf were roped and tied with gamcha (towei). (iv) At moming the appel'.ant was not present in his room, he was absconding from his room. 4 (V) !BI!e lgsa"3a i\ (VI) Offence committed in secrecy. The appeiiani was under obiigation to offer expianatlon under Section 106 of the Evidence Act. The appeilant has no{ offered any explanation. Leamed counsei further submsts that if the aforesaid circumsfanees sre considered together, then the oniy inference wouid be possibie that the present appeiiant has committed culpable homicide amounting to murder of his wife. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behaif ofthe prosecution. 11. in the present case, homicidsi death as a resuit of throttling of dsceased Rajkumari has not been substantially disputsd on bshaif of the appeiiaRt, even otherwise, it is estabiished by the evidencs of Dr.Smt.Miadhu Saxens (PW-1) and autopsy report Ex.P/1. Death of the cteceased was homicidai in nature. 12. ln the pressnt case, conviction is substantiaiiy based on circumstantlai evidence. As held by the Supreme Court in the mstter of Kusisma Ankama Rao v. State of A.P. conviction based on ciroumstantiai evsdence, prosecution is required to satisfy the following circumstances, (i) the circumstances from which the concluston of guilt is to be drawn should be fuiiy estabiished. The circumstsnces concemed 'must' or 'shouid' and noi 'may be' estabiished; (ii) the facts so estabilshed shouid be consistent oniy with the hypothesis of She gui!t of the accused, that ss io say, they should not be sxpiainabie on any other hypothesis except that the accused is guilty; (iii) the circumstances shouki be of a conciusive nature and tendency; (iv) they shouid exciuds every possibie hypothesis except the one to be proved; and (v) there must be a chain of evidence so compiete as not to teave any reasonable ground for the conciusion consistent with the innocence of ths accused and must show that in aii i'ne human probability the act must have been accussd. 13. In the present case, as per evidence of Gayatri Bai (PW-3), mother-in- iaw of the appeiiant, the appeiiant and deceased Rajkumari were present in one room, they were husband and wife, prssenee of the appeiiant aiong with his wife in one room was not unnaturai, Rajkumari v/as found dead at morning as a resuit of throttiing, her both the iegs were tied with towel, the appeiiant was not present in his room, he was absconding and hs has not offered any exptanation relating to the offence committed in secrecy where oniy two-persons nameiy the appeiianf and the deceased v/ere presenf. 14. While dealing with the question of necessfr/ of expianation !R terms of Section 106 of the Evidence Act by the person reiating to the act committed in secrecy, the Supreme Court in the mstter of Trimukh Kiaroti Kirkan v. State of Niaharashtra has heid that in case murder committed in secrecy inside a house, the initiai burden to establlsh the case wouid undoubtedly be upon the prosecution, but the nature snd amount of evidence to be ied by it to establish the charge cahnot be of the same degree as is required in other cases of drcumstantial evidence. Para 15 ofthe said judgmsnt reads as under:- "15. Where an offence like murder is committed in ^crecy inside a house, the inittal burden to estabiish the case wcuid undoubtediy be upon the prosecution, out ths nature and amount of evidence to be led by 'rt to estabiish the charge cannot be of the same degree as is required in other cases of circumstantia! evidsnce. The burden would of a comparativeiy lighter character. in viewof Section 106 of the 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 ofthe house cannot get away by simply keeping quiet anci offering no expianation on the supposed premise that the burden to estabiish its case iies entireiy upon the prosecution and thsre is no duty at a!l on an accused to offer any expianation." 15. Aforesaid circumstances proved on behaif of the prosecution satisfies the aforesaid test and same are suffident for drawing definite concsuston that oniy the appeiiant has committed homicidai death amounting to murder of his wife. ®) 16. After appreciating the evKiencs avaiiabie on record, iearnea tria! Court has convicted and sentenced the appeliant as aforementioned. 17. On close scrutiny of the evidence, we do not finci any iiiegailty or jnflrmity in the judgment impugned warranting any interference. 18. Consequentiy, ths appeai beir^ devoid of merit is iiabie to be dismissed and it is hereb^dismlssed. Sd/- i --- . SdA T.P. Sharma R.L. Jhanwar ^ Judge Judge ^&iSisu.