1 '^.^^'. '-»WIS" (^p HIGH COURT OF CHHATTISGARH, BILASPUR CQRABL: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri SunU Kuinar Sinha, J. Criminal'Appeal No. 487 of 2003 Aanjori @ ^anjorilal @ Juthel Vs: State of Chhattisgarh JUDGMENT For consideration ; Sd/- Sunil Kumar Sinha Judse HON'BLE SHRI JUSTICE RAJEEV GUPTA 5 ^ '^ Sd/- ChiefJustice Chief Justice ^Y /04/2009 Post for Judgment :2-&/04/2009 Sd/- SuniS Kumar Slnha HIGH COURT OF CHHAmSGARH. BILASPUR CORAM : Hon'ble Shri Raieev Gupta, C.J. SE Hon'ble Shri Sunil Kumar Sinha,^J. APPELLANT Criminal'Apoeal No. 487/2003 . Aanjori @ Aanjorilal @ Juthel S/o Matvar Kalar, Aged 33 years, R/o Village Bijrakapa, P.S. Lalpur, District Bilaspur (C.G.) RESPONDENT ,'Versus ••s. State of Chhattisgarh, Through Police Station, Lalpur, District Bilaspur (C.G.) (Aooeal uuder Section 374 (2) ofThe Code ofCriminal Procedure) Apuearance: Mr. Suryakant Mishra, Counsel for the appellant. Mr. V.V.S. Murthy, Deputy Advocate General for the State. JUDGMENT (20.04.2009) Following judgment of fhe Court was delivered by Suail Kunaar Sinha, J, (1) Appellant Aanjori @ Aanjorilal @ Juthel stands convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/-, in default of payment of fine to further undergo R.I. for one year by the Second Additional Sessions Judge (FTC), Mungeli, Dista-ict Bilaspur (C.G.) in S.T. No.449/2001 on 24.2.2003. (2) Deceased Meera Bai was fhe wife of the appellant. Matwar (PW-2) and Durjan (PW-4) are the father-in-law and brother-in-law of the deceased. The deeeased and the appellant were residing separately in village Birjikampa. The case ofthe prosecudon is'that on 10.07.2001 at ,^ ^^^. ^' / 1 YW^ '^s«-£. Criminal Appeal No. 487/2003 about 7:00 a.m., the appellant was working in the Badi. Some quarrel took place between the appellant and the deceased. The allegations are \, that on said quarrel, the appellant gave a blow by the crowbar on the head of the deceased, due to which, she died. The matter was reported by Matwar (PW-2), at about 10:15 a.m., on which, merg intiination (Ex.P/2) and First Information Report (Ex.P/3) were recorded. The Investigation Officer reached to the scene of occurrence, gave notices (Ex.P/4) to the Panchas aiid pfrepared inquest (Ex.P/5) on the body of ••s. the deceased. The dead body of the deceased was sent for its postmortem to the Primary Health Centre, Lormi under Ex.P/12, where the postmortem examination was conducted by a team of Doctors namely Dr. G.S. Dau (PW-7) and Dr. (Smt.) Pramila Dau. They prepared their report Ex.P/13. According to the postmortem report, there was an incised wound over posterior part of parietal bone. There was a fracture of 8 cm x 05 cm on parietal bone and there was another fracture in continuation of the first one, placed at the centre of the parietal bone. The brain material and clotted blood have come out. They opined that the cause of death was coma as well as shock due to injury to the vital part, brain and excessive haemorrhage and the death was homicidal in nature. (3) In further investigation, site plan was prepared under Ex.P/11 and a memorandum stateraent of the appellant was recorded under Ex.P/10. The crowbar was seized at the instance of the appellant under Ex.P/9. Plain soil and blood stained soil were seized under Ex.P/7. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Bilaspur under Ex.P/17, from where a report ,(Ex.P/18) was received. According to the F.S.L.report, the blood stains .,^^:'"~:-;.^.. .4''^asfe ^,.. ,^'^"^ t ^ & ' ^a •iS' ^S'!'X^--r~.^. S 8 ^Sfift, 1 Criminal Apoeal No. 487/2003 were not found on the plain soil as also on the crowbar, but they were found on other articles. \, (4) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Mungeli, who in turn committed the matter to the Sessions Court, Bilaspur, from where it was received on transfer by the Second Additional Sessions Judge, (FTC), Mungeli, who conducted'the trial and convicted and sentenced the accused/appellant as aforemerttipned. (5) The Sessions Court found following circumstances proved against the appellant: (i) The relations between the appellant and the deceased were strained; (ii) The appellant and the deceased were all alone present in the house at the time of the incident and the appellant was also present in the house just after the incident; (iii) On the basis of inemorandum statement given by the appellant, the crowbar was seized at the instance of the appellant from the place indicated by him. Apart from the above circumstantial evidence, held proved by the leamed Sessions Judge, we find that the appellant did not offer any explanation as to how the deceased died a homicidal death. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of comparatively lighfer character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house "~TI .^gi^'^";.-.-,. -ef""..^-'"";: ^ ^ % "^. V' & ''!. j %%%&> 1 % 'Ss&aB^"*^ ''•y'"'.^ •s'ieasss'*'' Criminal Appeal No. 487/2003 to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and \, offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In case of no explanation or false explanation it would become an additional link in chain of circumstances {Plecise see Trinw.kh Maroti Kirkan -vs- State of Maharashtrci. 2006 AIR SCW'5300). (7) In the present case, the appellant and the deceased were the only inmates of the house. The appellant was also seen present in the house by his father Matwar (PW-2). The appellant did not offer any explanation as to how the incident took place. Therefore, in view of the provisions of Section 106 of the Evidence Act, it was a strong circumstance against the appellant and the learned Sessions Judge coinmitted no error of law in holding that the appellant was involved in commission of crime in question. (8) Mr. Suryakant Mishra, leamed counsel for the appellant has mainly argued that in the facts and circumstances of the case, an offence under Section 302 IPC would not be made out and the offence committed by the appellant would not ta-avel beyond Section 304 Part-II IPC. He took us to the contents of the FIR (Ex.P/3) and argued that its a case in which the quarrel took place between the husband and wife and the husband; who was working in the Badi with a crowbar in his hand, without preparation or premeditation, gave single blow on the head of his wife causing her instantaneous death. (9) Undisputedly, the case of the prosecution, according to the First Inibrmation Report, was that when the appellant was working in his J ff^^ela^. '^ ••». •^ lfft ^k «». ^y S Criminal Appeal No. 487/2003 Badi with a crowbar in his hand, some quarrel took place between the husband and wife, on which, the appellant gave a crowbar blow on the head ofhis wife, due to which, she died. The facts and circumstances of the case would show that the blow given by the appellant was not premeditated. Even there is no evidence to show that the appellant had made any preparation to coinrait murder of the deceased. It appears from the contents of the FIR as also the evidence of father and brother •'i- of the appellant that on sbme'quarrel between the husband and wife, the husband, who was working irt the Badi having a crowbar in his hand, got provoked and all of a sudden, without preparation and premeditation, gave a crowbar blow on the head of his wife in heat of passion. In such circumstances, intention of the appellant cannot be attributed in this case. However, his knowledge can well be attributed that while causing such injury to the deceased, it may cause her death or it may likely to cause her death. Therefore, in our considered view, the offence committed by the appellant would not travel beyond Section 304 Part-II IPC and we hold it accordingly. (10) In the result, the appeal is partly allowed. The convicdon and sentences awarded to the appellant under Section 302 IPC are set aside. Instead thereof, the appellant is convicted under Section 304 Part-II IPC and he is sentenced to undergo R.I. for 10 years. It is stated that the appellant is in jail since 11.7.2001. He shall be entitled to set off the period already undergone by him. Sd/- ChiefJustice CHIEF JUSTICE Sd/- Suni! Kumar Sinha Judge shyna J