HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.146. of 2005 Samdar h - VerSS - State of Chhattisgarh JMENT UDG FOR CONSIDERATION v ”139-201 O Hon’ble Mr. J ustice R.. L Jhanwar Sd/- R.L. Jhanwar Judge If 5-9-2o1o\ I Post for ronouncement of 'ud ment on 15‘“ Se tember U 1 3; Case of the prosecution In brief Is that on the fateful night of 14 9 2003 the appellant his Wife Fandi Bai (Since deceased) & his son Ramii (PW— . , , § HIGH COURT OF VCHHATTISGARH BILASPUR DIVISION BENCH CORAM: HON'BLE MR.>T.VP. SHARMA AND _ V HON’BLE MR. R.L. JHANWAR,‘J_J. > Criminal Aggeal No 146 of 2005 V I APPELLANT; I Samdhar S/o I Ramshlng, aged about 40 (In Jail)‘ ‘ . ’ years Village Aavaspara ‘ . Sulehgee PS ' Koyellbeda Dlstt Kanker(C G) j " ”'K _ ’1 . , , > ‘ Versus I " V X L € RESPONDENT: ' State of Chhattisgarh ' > . {‘CriminaIaVppeaI under Section. 374 (2) of thé Code of CriminalProceduré 1973f Present Miss Meenu Banerjee counsel for the appellant Mr Ashlsh Shukla Govt Advocate forthe State/respondent JUDGMENT ‘- ‘ > V. ‘ ‘ " (Denvered on 15‘53eptember ‘ ' ' 2010) . _ TP Sharma, J ‘ 1 Challenge In thls appeal Is to the Judgment of conVIctIon & order of sentence dated 25-2-2004 passed by the 3rd Additional Sessxons Judge (F T C) Kanker In Sessrons Tnal No 519/2003 whereby & whereunder I I learned Addltlonal Sessrons Judge after holdmg the appellant gwlty for V’Q I l 1 commissmn of culpable homICIde amountmg to murder of his Wife Fandi ,; / VIBair conVIcted the appellant under Section 302 of the IPC and I sentenced him to undergo Imprisonment for llfe 2. ’Convikc’tion- is impugned on the ground thatwithout any iota of evidence -V . + the trial Court has conVIcted & sentenced the appellant and thereby . committed Illegality _2,.~ s > 1) aged about 1 1 years were present m the house teeth of Fandl Bal were broken and she died In the house of the appellant at about 12 mld mght The appellant told about the InCIdent to vrllagers on which Villagers came to his house and saw the dead body of Fandl Bal Broken teeth ’ were found lying In the house of the appellant Swelling was found on v neck of Fandl Bal The appellant assaulted Fandl Bal he pressed her I V neck and caused her death by throttling Merg was recorded and after ' summoning the Witnesses vlde Ex P-2 Inquest over the dead body of .Fandl Bal was prepared Vlde Ex P—3 Teeth found In the house of the accused were seized Vlde Ex P 4 Dead body of Fandl Bal was sent for autopsy to Community Health Centre Koyllbeda Vtde Ex P 9 Autopsy . was conducted by Dr VL Anant (PW 9) Vlde EXP 10 and followmg ’ 7 ('1) Face pale eye closed pupil dilated , (2) Mouth & nostril frlled w1th bloody froth bloody froth escapes from left angle of mouth ' (3) Hands are clenched (4) Little mud present on foot (5) There Is discharge of faeces Followmg Injuries were also found on the body of deceased Fandl Bat - (1) One left lower central Inelsor tooth were broken (2) One nail mark abraSIon was present just 1/2” below of medial to (3) One nght nall TM Jomt mark abraSIon was present just 1/2” below‘of‘medial r a. toleft _/ TM JOInt which Is thln & linear ‘ I V I ’ (4) 1 — 1 1/2 c m brulses are present Just below 3rd Injury. (5) Fracture of larynx and trachea Cause of death was asphyxua caused by Injury In the Internal organ of neck and death was homICIdal In nature Broken teeth were examined t -’ ,by Dr VL Anant (PW-9) Vlde Ex P—I1 who found that same are corresponding teeth of the mlssmg teeth of gums and socket of ' I, . ‘ill _,I N in ’ symptoms were found - . f3? deceased Fand' Ba' F'R-Was ‘Odged vide EXP-12.1 Spot ma‘p‘ waé’ prepared Vlde Ex P 13 4. Statements of the wutnesses were tecorded under Section 161 of the CrP C and after completion of Investigation, charge sheet was filed before the Court of Judrcral Magrstrate Frrst Class Bhanupratappur wh0/ " ‘ committed the case to the Court of Sessrons Jagdalpur from where ' learned Addrtronal Sessrons Judge received the case on transfer for. that. ’ 5.. In order‘to prove the gullt of the appellant the prosecutron has examined ‘ as many as nme Witnesses The accused was examined under Sectron 313 of the CrPC rn whrch he denred the crrcumstances appearing ‘ against him and pleaded innocence.& false rmplrcatron. j 'r!‘ .6. After affording opportunlty of hearing to the parties, learned Additional I ,‘Sessrons Judge convrcted and sentenced the appellant 'as 1 " aforementioned. ‘ 77. Wehave heard'learned counsel for‘the parties, perused the-judgment . and record Of the trial Court. ' 8. Learned counsel for the appellant vehemently argued that in the present 'case the prosecution has utterly failed to prove the case against the appellant mere susprcron Is not suffcrent for convrctlon of the accused V there rs much difference between may prove and must prove the - prosecution is required to prove the case against the appellant beyond ' tall reasonable doubts ln the present case the prosecution has not ’ adduced. any evrdence that the appellant has caused fatal injuries to the . deceased the deceased 'died as a result of throttling and that the ' appellant was present In the house when the deceased sustained I _ injuries. Teeth found in thehouse of the appellant were corresponding teeth 'of‘the deceaSed. Virtually, the prosecution has not proved any chain of Circumstances and complete chain of circumstances suffmlent for hypotheSIs that only the appeuant has committed the offence and except the appellant nobody has committed the offence ln absence of ., aforesaid proof and ewdence conVIctIon & sentence of the appellant It only on the baSIS of conjectures surmises and susptcnon are not legally sustarnable under the law Learned counsel placed reliance In the matter of Suresh Kumar & others v State of C G m whlch this Court has held that opmron of doctor that cause of death was asphyxra due to' strangulation and death was homICIdal Is not supported by Modls ¥ L :Medlcal Jurisprudence and the symptoms normally present In case of ' ‘strangulatlon the appellant rs entitled for beneft of doubt Learned V' counsel further placed reliance In the matter of Dharam & Ors v State ' ‘7 of Haryana In which the Supreme Court of lndra has held that In case the lnlury found rs sufficrent m ordinary course of nature to cause death _ consrdermg the use of lethal weapons and assault made by both the partles convrctlon would be under Section 304 Part~ll of the l P C and not under Section 302 of the IPC Learned counsel also placed > relrance In the matter of Raghav Prapanna Trlpathl and others v State I I of Uttar Pradesh3 In which the Supreme Court of lndra has held that > crrcumstances Insuffrcrent to draw sole conclusron that accused has ' commrtted murders convrctron Is not sustarnable Learned counsel ’ ,relred upon the matter of Bedu v State of M P 4 In whrch the High Court of Madhya Pradesh has held that evrdence of last seen together -—- wrtness related to deceased — contradrcted by another Witness - not relrable Learned counsel further relred upon the matter of Jhamman v 12010(1)CGLJ 115(DB) ‘ AIR2007 sc 397 . v I \ AIR1963$C74 1998 (I) MPWN (94) . . U ' l )y_ ir‘ . t» Il'. \ State of U P In whlch the Supreme Court of lndw has held that conflict @between one part of medical eVIdence and ocular ewdence of the V ’wnness who has not seen other part Is not a confhct Learned counsel y .Valso relled upon Modrs Textbook of Medical Jurisprudence and V Toxucotogy (Twentieth Edition) (page 151) relating to case of throtttmg by fngers In whrch It has been opined that In case of throttling by use of v . finger trps and thumb usually marks are found on either side of the I ’wmdptpe and thumb mark Is ordmanty higher Modl has opined the symptoms of throttlIng by use of thumb and fnger tips which read thus “2. If the fingers are used (throtthng) marks of ‘ w pressure by the thumb and finger tips are usually found - > on either Side of the Wlndplpe The thumb mark Is " ‘ ordinarily higher and Wider on one side of the front of I . the neck and the finger marks are Situated on Its other I \ Side obliquely downwards and outwards and one below - i the other but are sometimes found clustered together I 1 ‘ so that they cannot be distinguished separately These I ' ’ f marks look like soft red brUIses If examined soon after M death but they look brown dry and parchment-llke . sometimes after death The posrtlon of these marksi ~ a: I I may defmtely Indicate whether the left or right hand was ‘ ' used as also the size of the hand also whether the ‘ person was standmg In front or behrnd the Victim Thin I linear or crescentlc marks produced by the finger nails ’ ’ . are occaSIonally present If the fnger tips are pressed; deeply Into the soft tissues of the neck When both " . I I hands are used to grasp and compress the throat the ' -. thumb mark of one hand and the fnger marks of the ‘ other hand are usually found on either Side of the throat .' ‘ ‘ ' Sometimes both thumb marks are found on one Slde.j ‘ I ’ ‘. and several fnger marks on the opposite side lf the a throat Is compressed between two hands one bemg F- applied to the front and the other to the back brUIses ’ 5AIR 1975‘sc 1083 pg— and abraSIons may be found on the front of the neck as well as on its back " . On the other hand learned State counsel vehemently opposed the appeal and submitted that In the present case the prosecuuon has proved rts case beyond all reasonable doubts The appellant & the deceased were present In one room the deceased died as a result of t ,..,. ii‘ , throttling, larynx & trachea were found fractured and there Is no mconsrstency or conflict between medical & ocular evrdence The appellant has tried to offer false explanation and although he was ' required to offer explanation relating to the offence committed in secrecy, . but he has not offered any explanation which itself is strong and adverse circumstance against the appellant suffcient for drawing inference that the appellant has committed the offence and except the appellant ‘ nobody has committed the offence. Learned State counsel placed relianCe in the matter of State of Rajasthan v. Parthu in which the ' , Supreme Court of India has held that in case of homicidal death‘of Wife, . accused husband absconded, 'same can be treated as additional ' adverse circumstance against the accused husband. Learned State counsel further placed reliance in the matter of Narendra‘v. State Of Karna‘taka7 in which the Supreme Court of India has held that Opinion of doctor that death was due to throttling, false plea of alibi was an ‘ " additional link Learned State counsel also placed reliance In the matter of Raghavendra Sharma v.‘ State of M.P. In which the Supreme Court of India has held that “Accused-husband alleged to have killed his wife'e ’ ’ Accused doubted fdelity of deceased and was unsatisfied with articles ‘ received at time of marriage — Accused and deceased were alone in room when deceased died — Medical evrdence clearly showrng that Q 6 AIR 2008 SC 1o s 7AIR 2009 sc 1881 8 AIR 2009 sc 584 . ‘1‘ ~7V~ , death was homicidal and not accidental — Accused liable to be convicted”. 13 ln the present case. as per the‘autopsy report Ex P—10‘ and evidence of = 3 Dr V L Anant (PW-9) face of the deceased was pale bloody froth was . \ coming from nose & mouth hands were clenched faeces discharged i il 10.ln- order to appreciate the arguments advanced on behalf of the parties, we have examined the evidenCe adduced on behalf of the prosecution. 1 1. In'the present case, abnOrmal’death of deceased Fandi Bai in the house v of the appellant has‘not been substantially disputed. As per the defenCe of the appellant causerof death mode of death and the person who has , ' ’ :') caused death have not been established by the prosecution As per the ’ E 7 i W; evrdence of Dr V L Anant (PW-9) on examination of the dead body of - / Fandl Bai aforesaid symptoms as recorded In para 3of this Judgment. ‘i were found Cause of death was asphyxra as a result of internal injury on neck and death was homICIdal in nature 12.As per the experience of Modi described in para 8 of this judgment, thumb marks and finger tips marksare usually found on either side of the windpipe sometimes they found clustered together so thattheycannot 5" , be distinguished separately and these marks look like soft red bruises and sometimes thin linear or crescentic marks were also found There may be abrasmns and bruises on other parts of the body The larynx ‘ and trachea are congested and contain frothy mucus The cartilages of the larynx or the rings of the trachea may be fractured when '_ ' . L conSIderable force is used. The tongue is often swollen, cyan03is may ’D be found over face the hands are usually clenched the genital organs ‘ it ., "1 may be congested and there may be discharges of urine faeces and seminal fluid. _g>» ‘kuK ék L, ' from anus, crescentic abrasion was found on neck, nail injuries‘were also found on neck, and larynx & trachea were found fractured. AII these symptoms are suggestive of the fact that the deceased was throttled. 1ft 14.As held by this Court in the matter of Suresh Kumar (supra), in case‘ofw' v death by throttling there must be substantially similarity in the symptoms found by the doctor and the symptoms shown in Modi’s experience (jurisprudence), but it is not necessary that other symptoms or conditions may be one and the same. ‘ 15.As held by the Supreme Court of India in the matter of Jhamman (supra), in the present case there is no difference between ocular and medical evidence. Therefore. the case of Jhamman (supra)‘is""" “1' distinguishable on facts to that of the present case. 16.Defence has cross-examined Dr. V.L. Anant (PW-9) at length. Dr. V.L. Anant (PW—9) has also examined the broken teeth and found that the broken teeth were the teeth broken from the mouth i.e. jaw of the i deceased. ln her cross—examination, she has denied the suggestion that the teeth sent for examination were not belonging to the deceased. In l her detailed cross-examination, she has not substantially stated anything" ’ contrary to her medical examination report. Evidence of this witness and autopsy report clearly reveal that the deceased died as a result of ) injuries over neck by pressing of neck i.e. throttling and that the death was homicidal in nature. ii‘ r 17.As regards complicity of the appellant in the crime in question, conviction of the appellant is based on the circumstances that (1) the deceased was residing in the house of the appellant with him; (2) on the fateful night the" appellant & the deceased were present in one house; (3) at about 12 mid \ night the deceased was found dead in the house of the appellant;~and (4) k \ by qA > the appellant has not offered any explanation as required under Section ‘106 of the lndlan EvidenceAct that how she died and as to‘whohas caused injuries. . 18 As per the evrdence of Ramjr (PW—1) — son of the appellant whom the prosecution has declared hostile on the fateful night this wrtness along wrth his mother &"father\was present In the house his mother was > complaining of grddrness then he went for sleep and when he wbke up K In the morning, he saw the dead body of his mother After declaring this wrtness hostile the prosecution has cross-examined him on the basrs of his preVious statement recorded under Section 161 of the Cr P C and thereafter, he was cross-examined by the defence counsel 1n which he has admitted that on the complaint made by his mother about giddihess, he along with his father went to Sube Singh & Bhagat for calling them, at. that time, his mother was present in the ho‘use, buthe has not stated as“- " “- 'to when they came back to their house and what happenedvwhen they \ -ca,me[back to their house. On the contrary, Gannu Ram (PW-2)rhas deposed in his evidence that on the fateful night at about 12’0’ clock the ' appellant-came to his house and told that his wife is'ill‘ he'called him and he along wrth Bauu went to the house of the appellant where they saw the dead body of the wrfe of the accused/appellant 19 Sube Singh (PW 3) has also deposed In para 3 of his evrdence that on ‘ ' . the fateful night at about 12 O’ clock Gannuram & Bajjuram came to his house, they Informed about the death of wrfe of the appellant on which h'e‘went to the house of the appellant where the dead body of wife of the , appellant'was lying and on being asked, the appellant answered that his wife was sleeping,'but he did not know how she died. The‘prosecution has eclared this witness also hostile. d \Q \5"( .ri“ 1Q ‘ \/ o r [1% 20.Admittedly,,the appellant was present in his house on the date of incident at night. As per para 1 of the evidence 9f Ramji (PW-1) —-son'of the 4‘ Vr, . appellant on the fateful night his mother was complaining of giddiness then he went for steep and in the morning when he woke up, he saw the dead body of his mother in his cross-examination para 4 he has admitted to the extent that he along With his father went to the house of ' v Sube Singh & Bhagat for calling them but he has not stated as to when > they came back to their house Gannu Ram (PW—2) & Sube Singh (PW- 3) have not stated that the appellant and his son both came to their house for callmg them Only Gannu Ram (PW-2) has stated that the >_ . 7 appellant came to his house for calling him and when he & Sube.‘Singh i w went to the house of the appellant, the appellant told him that his wife \\\ has died. - ' .The appellant was under obligation to eXplain that as to when he‘went for calling the persons whether‘he has gone for calling the persons along wrth his son or his son was present In the house when he went to call the persons when his Wife sustained injuries and how she died Defnitely, ’ Iniurles were found over neck & mouth (teeth) of the deceased The a fappellant was also under obligation to explain as to why he has not lodged the report when he has gone for calling Gannu Ram to say that his wrfe Is III and thereafter when Gannu Ram & Sube Singh reached the house of the appellant why the appellant told them that his wrfe has died. These eVIdence and Circumstances are sufFCIent for comingto a dennite'conclusion that on the fateful nig‘ht'vthe appellant was present in"‘3".‘i "”‘ ' ' his house along with his wife his wife sustained injuries in the house of ' the appellant and thereafter she died The offence was committed in the house of the appellant where 11 years aged son of the appellant namely " Ramji (PW-1) & the appellant were present 11 years aged son of the ‘ V r I V] r.“ 4. " ,Hé ‘ appellarit was sléeping‘ énd the appellant informed othk=hpers6ns abo‘ut 1 ’ the death of his Wife but he has not offered any explanatlon that how " ‘_ I she died 22 As held by the Supreme Coun of India m the matter of Raghav Prapanna (supra) In absence of proof of Circumstances convrctlon Is, r: .not proper In the present case the Circumstances alone are that the , Vf’ V appellant was present In the house when the offence was committed that V ‘ e too m secrecy and he was under obligation to explam the Circumstances V' " Q In terms of Section 106 of the Indian Evtdence Act but he has not ' V ’ offered any explanatton - r ' I. . . 7/ 23 Whlle deallng With the question of explanation In terms of Section 106 of ‘l , 5W the Indian Ewdence Act the Supreme Court of Indra tn the matter ofv I Z ‘ Trlmukh Marotr Klrkan v State of Maharashtra has held that In case Vof murder committed In secrecy InSIde a house Inltlal burden to establish ' the case would undoubtedly be upon the prosecution but the nature and amount of eVIdence to be led by It to establlsh the charge cannot be of. I V § 7 the same degree as Is reqwred In other cases of Circumstantial eVIdence . . , Para 15 of the said Judgment reads as under — . ) : . “15. Where an offence like murder is Committed'vi‘n‘ . » I m. secrecy InSIde a house the Inltlal burden to establlsh' I L’Q ' the case would undoubtedly be upon the prosecution ' V a _ a \/ I f. but the nature and amount of eVIdence to be led by It to " I ‘ _ ’ ° p ‘ establish the charge cannot be of the same degree as Is g required In other cases of Circumstantial eVIdence The ' 1 burden would of a comparatlvely Ilghter character ln I ’ View of Section 106 of the EVIdence Act there wrll be a r + _ . corresponding burden on the Inmates of the housegto * V give a cogent explanation as to how’the- cr'imewas I n h committed 'The inmates of the hbuse cannot get away; I 7 “I i ‘ by Simply keeping quiet and offering no explanation 0n I . 9 (2006) 1o scc 681 @ the supposed premise that the b'urden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." ‘_ (2r 24.This is not the case of last seen together. Therefore, the case of Bedu (supra) is also distinguishable on facts to that of the present case. 25.ln the matter of Raghavendra Sharma (supra), the Supreme Court of India has held that in case of homicidal death of wife in the room of the appellant where accused—husband & wife,alone were present, then‘in absence of any explanation, the accused is liable for conviction. 26.As held by the Supreme Court of India in the matter of Narendra (supra), the appellant has virtually not offered any explanation or false explanation. 27.ln the present case, in absence of any explanation of the appellant relating to the offence committed in secrecy, the only inference that the appellant is the person (author of the crime) who has committed thet" v offence and has committed culpable homicide amounting to murder of his wife, would be possible