HIGH COURT OF CHHATTIS6ARH AT BILASPUR DIVISION BENCH: ^ CORAM: HON'BLE MR.T.P.SHARMA <& HON'BLE MR. N.K.AGARWAL, JJ. Criminal Appeal No.740 of 2003 Sanwat viz, Jagdish Versus State of Chhattisgarh JUDGMENT FOR CONSIDERATION Sd/- T.P. Sharma Judge ^^t^i^K:^. "ie'^ftiSJISBi Hon'ble Mr.N.K.Agarwal, J. .5 ^^ Sd/- N.K. Agarwal Judge Post for Judgment on : 31/3/2010 Sd/- 31/3/2010 HIGH COURT OF CHHATHS6ARH AT BILASPUR Criminal Appeat No.740 of 2003 OIVISIOIN BENCH: Coram: Hon'ble Mr.T.P.SHARM/l <S Hon'ble Mr.N.K.AGARWAL, JJ. APPELLANT (In Jail) RESPONDENT Sanwat viz, Jagd'ish, S/o Kejuram Sahu, aged about 28 years, R/o Ranbod, P.S.Nawagar-h, district Durg (C.6.) Versus State of Chhattisgarh, Through P.5. Nawagarh Distt.Durg, Chhattisgarh. (CRMIN/^L APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr.Sudhir Verma, counset for the appetlant. Mr.Rajendra Tripathi, Panel lawyer for the State/respondent. JU&6MENT (Delivered on 31st March, 2010) The Judgment of the Court was delivered by T.P.Sharma, J.;- 1. Challenge in this appeal is to the judgment of conviction A order of sentence dated 17.6.2003 passed by the Additional Sessions Judge, Bemetara, in Sessions Case No.312/2002, where.by & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission qf culpable homicide amounting to murder of his father Kejuram 'and mother Budhwarabai @ Sukwarabai (since deceased) convicted under Sections 302 <& 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life <& to pay fine of Rs.500/- and imprisonment for life & to pay fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for three months on each default. 2. Conviction is impugned on the ground that without there being any iota of evidence sufficient for conviction of the appellant, the Court below has h!lSt;5n^:sN'.£^;&^^r ;^^^•^^-^^s^^F^^3"'. convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful night of 24.3.2002, son of deceased Kejuram and Budhwarabai © Sukwarabai was present in his house along with mother, father and his family. On account of property dispute, the appellant assaulted Kejuram and Budhwarabai @ Sukwarabai i.e. father and mother by axe and caused their deaths in his house and fled from the spot. On 25.3.2002 at about 11 a.m. when door of the house of Kejuram was not opened, then villagers came to the house of Kejuram, they entered into the house of Kejuram through back door where dead body of Kerjuram was lying in the cattle house. Dead body of Budhwarabai © Sukwarabai, mother of the appellant was also lying inside the room. Room of the appellant was closed from inside and one lamp was burnin9 inside his room, then Kotwar Dashrath (PW-2) went to police station and lodged merg intimation vide Exs.P/2 and P/3. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses vide Ex.P/7, inquest over the dead bodies of Kejuram and Budhwarabai ©Sukwarabai we.rs prepared vide Exs.P/8 and P/9. Spot map was prepared by investigating officer vide Ex.P/4. Bloodstained & plain soil were recovered from the spot where dead body of Budhwarabai @ Sukwarabai was lying along with broken pieces of bangles vide Ex.P/5. Bloodstained & plain soil were also recovered from the spot where dead body of Kejuram was lying vide Ex.P/6. bead bodies of the deceased we.re. sent for autopsy to Sovernment Hospital, Nawagarh vide Exs.P/16 and P/18. Dr.S.K.Sharma (PW-8) conducted autopsy over dead body of Budhwarabai vide Ex.P/17 and found following injuries, i) Incised wound of 8 cm. x 2 cm. over right occipital region up to brain deep, ii) Incised wound of 8 cm. x 5 cm. over occipital region, underneath structures were found cut includin9 cervical vertebra ''-:-s^SJSSsSvh K': w'e'^/s '3t"y if.^y w Injuries were ante-mor'tem and cause of death was excessive heamorrhage. Death was homicidal in nature. Dr'.S.K.Sharma (PW-8) conducted autopsy over dead body of Kejuram vide Ex.P/19 and found following injuries, iii) Punctur-ed wound in front of neck of 6 cm. x 4 cm. x 5 cm., underneath structures were found cut, iv) Two punctured wounds over the chest of 11 cm. x 1 cm.x 4 cm. and 3 cm. x 1 cm. radish skin deep and lungs were found ruptured. Injuries were ante-mortem and cause of death was as a result of excessive heamorrha9e and death was homicidal in nature. Patwari also prepared spot map vide Ex.P/12. Sealed clothes of the deceased persons were seized vide Ex.P/23. Dehati nalishi was recorded vide Ex.P/25 and on the basis of dehati nalishi, finally F.I.R was lodged vide Ex.P/32. Seized articles were sent for chemical examination vide Ex.P/27 and presence of blood on the clothes of the accused were confirmed vide Ex.P/28. , 4. Statements of the witnesses we.re. recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Bemetara, who in turn committed the case to the Court of Sessions, burg, from where the Additional Sessions Judge, Bemetar'a received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 16 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code where he denied the cir'cumstances appearing against him and claimed innocence and false implication in the crime in question. 6. After affording an opportunity of hearing to the parties, the Additional Sessions Judge, Bemetara has convicted and sentenced the appellant as aforementioned. .<:^:;:^";> •;• •^i^--..i ^ r^y '^ ^ •^^ ^-^®??-^3^^^-1 •iT-i!-i ;•^•'-•'•-s-~^';~'-'^^~»S-.-Ss~s.^. 'SS&'SiSKsWs^ssS i-BliW^pgig^^g; 7. We have heard Mr.Sudhir Verma, counsel for the appellant and Mr.Rajrndra Tripathi, Panel lawyer for the State, perused the judgment impugned and record of the Court below. 8. Learned counsel for the appellant vehemently argued that in the present case, conviction is based on moral ground rather on the legal evidence. It is true that father and mother of the appellant were found dead as a result of injuries in the house of the appellant, but in absence of any credible and clinchin9 evidence, liability of commission of murder cannot be fastened upon the appellant. The appellant has offered cogent explanation that prior to the date of incident he was not present in the house and had gone for his livelihood and after some months when he came back to his village, he was arrested. In absence of credible evidence, conviction of the appellant is not sustainable under the law. 9. On the other hand, learned State counsel supported the judgment impugned and argued that the offence has been committed (n secrecy. On the date of incident or at the time of incident, the appellant was present in his house where his father Kejuram and mother Budhwarabai © Sukwarabai were also present and on the second day morning, dead bodies of his father and mother were found dead in his house and the appellant was not present in his house. The appellant has not offered any explanation that how his father & mother died and who had caused injuries to them. The appellant was under obligation to offer explanation in terms of Section 106 of the Evidence Act, but instead of offering any explanation, the appellant has offered false explanation of alibi which is additional link and circumstances to prove the guilt of the appellant. 10. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of ante-mortem fatal injuries of Kejuram and Budhwarabai @ Sukwarabai, father and mother of the appeltant, have not been substantially dispufed on behalf of the appellant, on the other hand, same is established by the evidence of Dr.S.K.Sharma :9 •^•:^y V ^ '^ ^ ^'SrT—'ff^'^ i^^^-^^R^li^^^! 1 ^' •'• ~"v ~'-:-~~-it'^f~-S^TT^r'^^ (PW-8) and autopsy reports Exs.P/17 & 19 which reveal that ante-mortem fatal injuries were found over the body of Kejuram and Budhwar-abai @ Sukwarabai and deaths were homicidal in nature. 11. As regards the complicity of the appellant in the crime in question, conviction is substantially based on the following circumstantial evidence, i) On the date of incident and at the time of incident, the appellant was present in his house along with his wife Agsiya (PW-4) and deceased Kejuram & Budhwarabai © Sukwarabai; ii) On the second day morning, dead bodies of Kejuram and Budhwarabai ©•Sukwarabai wer-e found in the house of the appellant in injured condition; iii) Deaths of Kejur'am and Budhwarabai @ Sukwarabai are homicidal in nature and as a result of ante-mortem fatal injunes; iv) The appellant was not present in his house on the second day; v) Room of the appellant was closed from inside and one lamp was burning, even at about 11 a.m. on the second day; vi) Room of the appellant was assessable from back side of room; vii) The offence has been committed in secrecy, therefore, the appellant was under obligation to prove/explain the factin accor'dance with Section 106 of the Evidence Act that who has caused injuries to his father and mother i.e. Kejuram and Budhwarabai © Sukwarabai and how they died; viii) The appellant has not offered any explanation relating to injuries and deaths of Kejuram and Budhwarabai © Sukwarabai; ix) The appellant has offered false explanation of alibi; 12. In the present case, homicidal deaths of Kejuram and Budhwarabai © Sukwarabai in their house and house of the appellant are not disputed. As regards the question of presence of the appellant on the date of incident in his house along with Kejuram and Budhwarabai © Sukwarabai, Bishouha Ram ^ ^' (PW-1) has admitted in his evidence that on account of property dispute, the appellant and his father were in inimical terms. Dashrath (PW-2) has deposed in his evidence that the appellant was also residing in the same house. They have seen dead bodies of both persons, Room of the appellant was closed from inside and one lamp was burning inside his room. His room was assessable from back side at the time when they saw dead bodies of father and mother of the appellant and the appellant an'd his family are not present in their room. In his cross-examination, he has admitted that on the date of incident, the appellant was present in his house, but subsequently again he has changed his version that he had not seen the appellant one or two months prior to the incident. Ratanram Sahu (PW-3) has deposed in his evidence that there was some dispute between the appellant and his father. Panchayat was convened one month before the commission of offence. On the second day, when door of Kejuram was not opened, he made query, then he along with other per-sons w/ent to the house of Kejur-am where dead bodies of Kejuram and Budhwarabai @ Sukwarabai we.re. \>/'\ng. In his cross-examination, he has admitted the dispute between the appellant and his father. In para 10 of his cross-examination, he has specifically admitted that the appellant used to go out for his livelihood, but on the date of incident i.e. one day prior when he has seen dead body of Kejuram, the appellant was present in his house at that time and he was residing in his house from since last 5-6 months. The appellant was not having any other house in that village. 13. Oefence has questioned the reliability of this witness substantially on the ground that his evidence is not reliable, even on the basis of his previous statement recorded under Section 161 of the Code as Ex.P/10 which clearly r-eveals that his statement was recorded on 26.3.2002, after two days of the incident and incident took place in intervening night of 24/25.3.2002, but his statement Ex.P/10 reveals that even he has seen quarrel between the appellant and his father one day before recording his statement i.e. 25.3.2002. This fact is false on the basis of his evidence and evidence of other persons that on 25.3.2002, Kejuram was not alive and was found dead. •>:. f- ^ ^;;^^:-^-?^''1''^""'^"-'1^-'"-'" l.'ttteN'ijtHgi!^ ^.^•^^:s|^3^£^ Par-t of the statement of Ex.P/10 'c' to 'c' was confronted to this witness and has explained that he has stated only relating to quarrel. Defence has not asked anything to this witness relating to specific word " kal subah" (first day morning). In absence of any question relating to such statement and considering, the entire evidence of this witness and his previous statement Ex.P/10, it clearly reveals that the word used in Ex.P/10 "W has been used er'roneously and on the basis of this single word, his entire evidence cannot be discarded. Agsiya (PW-4), wife of the appellant, has specifically admitted that she along with her husband were residing in one room and her father-in-law and mother-in-law (since deceased) were residin9 in other room in the same house. After taking their meals, they went for sleep at night and on the second day morning her father-in-law and mother-in-law were found dead. She has also deposed that their last rituals were performed by themselves. She has not supported the case of the prosecution and prosecution declared her hostile. In her cross- examination, she has denied the suggestion that she has seen the incident. In paro 6 of her cross-examination, she has admitted that on the date of incident her husband i.e. the present appellant was not present and had gone for his livelihood 5-6 months prior' to the incident. She has seen the appellant/her husband first time in the Court. Her statement was recorded on 25.3.2003, about 11 months after the commission of incident. 14. According to the case of the prosecution, the appellant was arrested on 22.11.2002 in compliance of warTant of arrest issued by the committal Court. Bharat (PW-5), Sumant Das (PW-6), Jagat (PW-9), Mahesh Ram (PW-10), Aarti (PW-11) and Juthel Ram (PW-12), the alleged witnesses have not supported the case of the prosecution relating to presence of the appellant in his house at the time of incident. While answering the question put to him under Section 313 of the Code, the appellant has answered that at the time of incident he was not present in the village and he had gone for his livelihood, but has not stated where at that time he was residing, which place for his livelihood and when he went for livelihood, why he has not taken his wife with him for livelihood in the absence of any means for her svs-ssSSSISSS SBB":3tii"<> livelihood. The appellant has taken defence of alibi, although the accused is not under obligation to prove his defence like the case of the prosecution. No such standard of proof is required or expected from the accused. Simply he is required to cast doubt on the story of prosecution by adducing some defence or taking defence, but in case of alibi, he is required to show the materiat that when he has left the house/place of incident, where he was residing, what was the purpose of his st&y and when he came back to his house. If these facts are prima facie established by the person, same may justify their stay in normal place of stay, but if the person utterly fails to show prima facie material relating to the aforesaid facts, then same may be inferred that the person has absconded or fled from his natural residence under any compelling circumstances. 15. Agsiya (PW-4), wife of the appellant, has deposed in her cross-exainination that 5-6 months prior to the incident her husband had gone out for livetihood, but she has not stated that whe.re her husband has gor\e, when he has gone, whether she was having his definite address and even if her husband was not present on the date of incident, then where he was present on the date of incident, especially when her husband was not opened the door till 11 a.m. and lamp was burning inside his room closed from outside. It was only opened when the police officials came to the village at about 7 p.m. and when they opened the door, nobody was found inside her room. She has not stated that when the room was closed from inside then how she did not open her room and her house in routine at morning, why she was not found inside her room, where she was present and when her room was ctosed from inside. These all circumstances make her evidence complete suspicious and 'doubtful. She is wife of the appellant and it is natural for her to support her- husband and only in order to support her husband, she has stated in her evidence that her husband was not present on the date of incident. 16. In absence of other evidence, the only evidence of ftatanram Sahu (PW-3) remains for consideration, who has specifically admitted in para 10 of his ^ vyy^ f -^ cross-examination asked by the defence that first day prior to the incident, the appellant was present in his house. This part of evidence inspires confidence and trustworthy and is safe to rely that on the date of incident the appellant was present in his house. 17. In the light of evidence of Ratanram Sahu (PW-3), the appellant was under obligation to explain that how his father and mother died, who has caused fatal injuries to them, why he fled from his house and who has closed the room from inside. The offence has been committed in secrecy in the house of the appellant where his father and mother we.re present and were murdered. The appellant was under obligation to explain the circumstances in terms of Section 106 of the Evidence Act, but he has not offered any explanation, inter alia, he has tried to offer false explanation of alibi. 18. While deating with the question of offence committed in secrecy and requirement of explanation, the Apex Court in the matter of bhananjoy Chatterjee Vs. State of W.B. and Trimukh Maroti Kirkan v. State of Maharashtra has held that if the offence has been committed in secrecy, The appellant was under obligation to offer explanation and in absence of such explanation, the aforesaid circumstances are sufficient for drawing inference that appellant who was having grudged against the deceased was the person who has committed the offence and except the appellant, nobody has committed the offence. 19. In the present case, in absence of any explanation and false explanation of the appettant retating to circumstances in which his father and mother were murdered in his house where he was residing at the time of incident, the only hypothesis would be possible that the appellant was the person who has committed murder of his father and mother and except the appellant, none else has committed the murder. The evidence of Ratanram Sahu (PW-3) and other witnesses are also sufficient for drawing inference that the *(1994) 2 SCC 220 2(2006) 10 SCC 681 it&C ®SB. 1 •^"^' -.sisse^SS S^S^5-5^-^^*'^^ 10 Q appellant was in inimical terms with his father on account of property dispute and was having grudged and motive for the offence. 20. After appreciating the evidence available on record, learned Additional Sessions Judge has convicted the appellant under Sections 302 & 302 of the Indian Penat Code. This is the case of double murder' of husband and wife i.e., father and mother on the greed of property. The Cour't below has awarded minimum sentence prescribed under the law. 21. On close scrutiny of the evidence, we do not find any illegality in the judgment impugned warranting any interference. Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- N.K. Agarwal Judge E,'- -^ws^. gg.S^gllpip;-5'