HIGH COURT (3F CHHA’ITI8GARH AT 31LA3PUR Criminal Aypeai No.83 1] 2005 APPELLANT Kanwai Siagh Gond sjo Mahangu (In jail) Gond aged about 43 years, R/o Lohaxdih Amajhbla RS. 6r, Distxict Mahasamund (CG) VERSUS ‘ RESPONDENT State of Chhattisgarh Through ‘ u 1‘ P. S. Mahasamund, District Mahasamund (CG) CRIMINAL APPEAL UIS 374 OF THE CODE OF CRIMINAL A PROCUDERE \ Appearance: Shri V.K. Doshmukh, counsel for the appellant. Shri SRJJaiswal, Panel Lawyer for the State. Division Bench:- Hon’ble shri T.P. Shanna as Hon’ble Shri R;L'.Jhanwar,JJ ORAL JUDGMENT (13.12.2010) Fer T.P.Sharma, J. Chailenge in this appeal is to the judgment of conviction and order of sentence dated 26.4.2003, passed by the Second Additional Sessions Judge, Mahasamund (CG) in S.T.No. 13/ 2003, whereby and whereunder the learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife —Hemin Bai, convicted the appellant under Section 302 of the IPC and sentenced for life imprisonment and nne of Rs. 1000/ —, in default of payment of fine to further undergo R.l. for 3 months. EV ..... ‘2. Th6 conviction islimpugned on thE ground that Without there iming any iota 0f evidence suiflcisnt for conviction of the appeilarxt, the learned Adiiitional Sessions Judge has convicted ami semenced me appeilant as aforementioned and thereby committed illegality. .v’ 3. As per case of prosecutioil, in the intervening night of 27th and 28th October, 2002, appeiiant and the his wife- Hemin Bai (singefdeceased), were present in the house, At about 2.00 am in the night; appeilant went to the house of Niranjan (PW—2) an told him that Hemin Bai is ill, then Niranjan went along with the appellant and other persons of the village to his house, Where they saw that dead body of Hemin Bai was lying on the cot. Nn‘anjan went to Police Station and lodged merg intimation vide Ex. P/3 and FIR vide Ex. W4. The appellant made extra judicial confession before Niranjan that he has slapped/caused single inj ury to Hemin Bait The Investigating ofiicer left for the scene of occurrence and after summoning witnesses vide EX. P] 1, inquest over the dead body of the deceased was prepared vide EX. 13/2. Articles reiating to the deceaseti were seized along with broken pieces ofbangles from the spot. vide Ex P/8. Dead body was sent for autopsy to Government Hospiml, Mahasamund vide EX. P/ 13, Where Dr. O.P. Dubey (PW-8) conducted autopsy vide EX P] 12 and found following injuries : / n_ i. Swelling over right wrist may be as a result of twisting n Pressing marks offingers on the neck Mode of death was opined to be asphyxia as a result of throttling and death was homicidal in nature. During the course of investigation, accused/appellant was taken into custody. He ”made disclosure statement of stick vide Ex. P/6; same was recovered at his instance vide EX.P[7. Investigating officer prepared spot map vide EX. P/ l4. Patwari prepared map vide Ex. d P/9. Statements of tbs wimcsses wars recorded under Section 161 of the Code of Cn'minél Procedure, 1973 (in short the Code). 4. After completion of investigation, oharge sheet was filed before the Chief Judicial Magistrate Mahasamund, who in tum, committed the case to the Court of Sessions, Raipur from Where, the lealned Additional Sessions Judge received the case 0o transfer for trial. ‘ 5. "vl‘n order to prove the guilt of the accused/appellant, prosecution examined as many as 9 witnesses. Accused was examined under Section 313 of the Code, where he denied the circumstances appearing against him, innocence and faise implication in crime in question was claimed. He has taken defence of alibi that in the intervening night of 27th and 28¢ October, 2002, he had gone to village ’I‘umgaon, where he consumed liquor and he came to his house at 12.60 in the night and saw that door of the house was opened; dead body of his wife Hemin Bai was lying on the cot then he immediately went to the house of villagers and communicated the same to them; and he has not committed murder of his wife. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted and sentenced the appellant as aforementioned. 7. We have heard Shri V.K. Deshmukh, learned counsel for the appellant and Shri S.R.J. Jaiswal, learned Panel Lawyer for the State, judgment impugned and record of the Court below perused. 8. Learned counsel for the appellant vehemently argued that conviction is substantially based on the evidence of extra judicial confession made by the appellant, which does not inspire r coxmdence and tru$tworthy. Even otherwisa, if tha extra judicial confession is considaed to be true then also it would reveal that on account of sudden guarrel, appellant has assaulted his wife; he has not acted in a cruel or unusual manner and he has not caused any injury to his vuie with pre-meditation. He placed reiiance on the decision of the Apex Court rendered in the matter of Pappu Vs. State of MJ’. {2Q06i 7 SCC 391, in which, the Apex Court held that single blow of stick after quarrel, conviction of the ,appellant is not sustainable under Section 302 but it is sustainable und_er Section 304 Part II of the. IPC. He submits that act of the appellant does not travel beyond the scope of section 304 Pa§t 11 of the ipc. t 9. On the other hand, learned. counsel for the State opposed these arguments and submitted that this is a case of house murder; the incident took place in the intervening night of 27th and 28¢ October, 2002. The odence has been committed in secrecy and the appellant was under obligation to otter explanation in terms of Section 106 of the Evidence Act that how his wife died in the house and who caused injuries to her. This is not a case of sudden attack by anyone, but this is a case of throttling. This shows mat with intent to kill his Wife the appellant has caused injuries to her by pressing neck. 10. In order to appreciate the arguments advanced on behalf of the parties, We have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death as a result of throttling has not been substantially disputed on behalf of the appellant, on the other hand, it is established by the evidence of Dr. O.P. Duhey (PW—8) and autopsy report EXP] 12 and death was homicidal in nature. \\ ’@ 12. As regards complicity of ths accuseéi/ appeHant in cm'me in qusstion is concemsd, conviction is substantialiy based on the gvidencs of Nira31ja11 (PW-2) before whom the alapenant had mack extra judicial confession and other circumstances. Virtually, evidence adduced 0:1 beha3f of the ‘prosecution revealed that the incident took place in the intetvening night of 27th and 28th October, 2002. Appellant and his Wife Hemin Bai only 2 persons were pnesent in the house and Hemin Bai was found dead in the house as resuit ofhomicidai death. The appellant has not otfered any explanation that how she died or who has caused fatal injury to her. Appellant has made extra Juct1c1al confessmn about making assault. This shows that the'convlction is substantially based on the Circumstantial evidence. 13. ln case of conviction based on circumstantial evidence, as held by the Apex Court in the matter of e. ehagga away V. State ofA.P.. AIR 199§ SC 3390, the prosecuiion is required to adduce evidence and such evidence must satisfy the foiiowing tests:— l. the circ umstances from which an inference of guilt is sought to 'be drawn, must be cogently and firmly established; 2. those circumstance should of a definite tendency unen'ingly pointing towards the guilt of the accused; the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human pro‘babiiity 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 9: f) explauation of a11y other hypothesis than that of the guilt Gf the accused and such evidence should not only be consiStent with the guilt of the accused but should be inconsietent with his innocence. w; 14. As per evidence of Niranjajl (PW—2) auc‘; Latel {PW-5}, at about 2.00 am (in the nightl, appellaltt came to them and toid about ill health of his wife then they visited the house of the a? Reliant along with him, where they saw that dead body of Hemin Bai was lying on the cot. This evidence shows that on the clate of incident, in the intervening night of 27¢ and 28th October, 200E appellah-t and the deceased only 2 persons were present in the house of the. appellant. Medical evidence shows that‘l-Iemjn Bai died as a homicidal death by throttling. As per evidence of Niranjan (PW—2) appeilant has stated before him that on account. of demand of paddy, he has slapped his wife, but no such injury of slapping has been noticed by the Doctor. In case ofslapping, visible injury would not be possible. in the present case, Hemin Bai has died as a result of throttling and appellant has not stated anything regarding throttling to his wife by anybody. In examination under Section 3 13 of the Code, he has taken defence that he returned from village ’I‘umgaon at 12.00 in the night, at - that time, door ofhis house was opened and dead body of Hemin Bai was lying on the cot; he has not suggested this defence to any of the prosecution witnesses neither he has adduced any defence evidence; and even he has not examined himself as a defence witness in support of his contention. Therefore, in absence of any ptima facie evidence in support of the defence takenhy the accused and his statement under Section 313 of the Code, we are unable to accept the defence of alibi. As per evidence of Niranjan (PW—2) and Latel (PW-5), appellant was present in his house along with his Wife Hemin Bai, who died as a result of homicidal ‘ nu death. The offence has been committed in secrecy as is held in The matter of Trimukh Mama Kirgn V. Stgmfyanarasntra 120061 10 SCQ§8L in case murder committed in secrecy inside a house, tile initial 'bniden to estab1ish 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 degz ;e as is required in other cases of circumstantial evidence. Para 15. of the said judgment reads as under : u f 15, Where an offence like murder is committed in secrecy inside a hcuse the initial burden ta eMiish the case wouid un&aubte¢iiy be upon the prosecution, but the nature and amount of evidence to be ted by it to estabiish the charge cannot be of the same degree as is required in other cases of circumstantiai eeitience. The burden wouid of a cowaratiueiy lighter character. m view of Section 106 of the Evidence Act there wiii be a corresponding burden on the inmates of the house to give a cogent expianation as to now tne crime was committed. The inmates of the house cannot get away by simpiy keeying quiet and offering no expianation on the supyosed premise that the burden to establish its case lies entirely ugzon the prosecution and there is no duty at alt on an accused to offer any explanation”. The appeilant was. nutter obligation to offei‘ an explanation that how his Wife. died and who caused injuiy to her, but he has not offered any explanation in this regard. Therefore, in absence of any explanation by the appellant, only inference would be possible that except the appellant, nobody has committed murder of Hemin Bai and it also excludes possibility of innocence of the appellant. The aforesaid evidence is suiiicient. to satisfy the test as required and is held in case of Q Chawa Ready V. $tate of A.P. Am 1996 SC 3390(supra), , \ 1n WAgrb» 15. In case of Pappu Vs. State of MJ’. {2006) 7 $CC 391 (supra) appdlant has cauéed single blow of stick after quaxrsl. 1n tha present case, there is no evidence of quanel and it is a clear case of throttlmg and it cannot be committed all of a sudden, therefore, the facts of the aforesaid case (Pappu Vs. State of MEP. (2006) 7' SCC 391) are distinguishable from the facts of the present case. After appreciating the evidence available on record, the learned Additional Sessions Judge has convicted and sentenced the appellant as aforesaid mentioned. "e f 16. On close scrutiny of the evidence, we do not find any illegality or infinnity in the conviction and sentence of the appellant passed ‘by the trial Court. Consequently, the appeal being devoid of merits is liable to be dismissed and it is hereby dismissed. Sdl- Sdl- ’1 T.P.Sharma ‘R.L.Jha“War Judge Judge