.Y HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.839 of 2003 APPELLANT: (In Jail) RESPONDENT: Hub Lal @ Khub Lal Patel, aged 22 years, S/o Kamta Prasad, r/o Village Kuruskera P.S. Rajim District Raipur (CG). Versus The State of Chhattisgarh Through the District Magistrate Raipur (CG). {Criminal appeal underSection 374 (2) ofCr.P.C.} Present: Miss Sharmila Singhai, counselfor the appellant. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.N. Chandrakar, JJ JUDGMENT (12-9-2011) T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 1-7-2003 passed by the 1st Additional Sessions Judge, Raipur, in Sessions Trial No.373/2002, whereby &Whereunder learned Additional Sessions Judge after holding the appellant guilty for ' commission of culpable homicide amounting to murder of his wife Pinki @ Jhariyarin Bai and concealing the evidence of criminal case, convicted the appellant under Sections 302 & 201 cf^heIPC andsentenced him to undergo imprisonment for life & pay fins of Rs.2,000/-, in default of payment of fine to further undergo imprisonment for six months and to undergo Rl for three years & pay fine of P.s.500/-, in default of payment of fine to further undergo Rl for three months, respectively. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, unfortunate deceased Pinki @ Jhariyarin Bai - wife of the appellant was residing with the appellant, on account of previous dispute some time before the incident, the appellant left her in her maternal house and relation between both were not cordial. After intervention of members of the community, wife of the appellant Pinki came to the house of the appellant and v/as residing with him. On 29-6- 2002 at about 11 p.m. the appellant compelled his wife Pinki to write that she herself is willfully leaving the house of the appellant and the appellant is not required to search or enquire about her which she wrote as Ex.P-8. Thereafter, the appellant took herto his kitchen garden (badi) where he pressed her neck and caused her death, thereafter, he dug a ditch and buried the dead body of Pinki in the ditch. After commission of offence, the appellant left his house. On 7-7-2002 the appellant himself went to Police Station Rajim and lodged morgue vide Ex.P-18 and FIR vide Ex.P-17. The Investigating Officer left for the scene of occurrence. He also recorded the discloser statement of the appellant relating to spade, dead body and letter vide Ex. P-3. He reached to the badi (kitchen garden) adjoining to the house of the appellant along with the appellant & witnesses where the place the dead body was buried, was shown by the appellant. Dead body was exhumed. Panchnama was prepared vide Ex. P-5. Dead body was identified as that of Pinki i.e. wife of theappellant. Spade was recovered at the instance of the appellant vide Ex. P-4. The alleged letter Ex. P-8 written by the deceased was seized from Kailash Patel at the instance of the appellant, vide Ex. P-7. After summoning the witnesses vide Ex.P-1, inquest over the dead body of the deceased was prepared vide Ex. P-2. Recovery memo of the dead body was also prepared vide Ex. P-6. Spot map was prepared by the Investigating Officer vide Ex.P-9. Treatment papers of the deceased Exs.P-12 & P-13 were seized vide Ex.P-11. Request for autopsy was made to Community Health Centre, Rajim vide Ex. P-23. Dr. Virendra Kumar Hirondiya (PW-13) conducted autopsy vide Ex.P-19 and found injury over neck of the deceased, putrefaction of the body, tongue was protruded and bitten by teeth. Mode of death was asphyxia as a result of throttling. Death was homicidal in nature. Clothes of the deceased were seized after autopsy vide Ex.P-14. Patwari prepared spot map vide Ex. P-20. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Gariaband who committed ,/;;;.^1. "•^&S^^m." 2-^ •^! r^' the case to the Couri: of Sessions, Raipur from where learned Additional Sessions Judge 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 fifteen witnesses. The accused/appellant was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in thecrime in question. He has taken specific defence that there was no relation between him & the deceased for long time and the deceased was residing in her maternal house. On the date of incident, deceased Pinki was present in his house, but when he woke up in the morning Pinki was not found then he sent information to her maternal house through his father and also informed to Kotwar who advised him to wait for 2-4 days, during the aforesaid period he also made search of his wife and lastly informed the police. The police also advised for search, but at the instance of other persons, the police obtained his signature on some papers. He has informed the police about missing of his wife, but the police have not recorded the missing report. He has also examined defence witnesses Vinod Kumar Patel (DW-1), Bhuneshwar Patel (DW- 2), Narendra Rao (DW-3) & Kamta Prasad (DW-4) who have deposed that on 30-6-2002 at about 7.30 a.m. deceased Pinki boarded in Maa Sharda Travels bus at Shyam Nagar Bus Stand, thereafter, the bus left for Deobhog and she got down from the bus at Kopra Bus Stand. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. As per defence of the appellant, on 29-6-2002 deceased Pinki was with him in his house, but on 30-6-2002 in the morning she was not present. On 30-6-2002 at about 7.30 a.m. Vinod Kumar Patel (DW-1) saw her while she was boarding in Maa Sharda Travels bus and on the same day after some time, Bhuneshwar Patel (DW-2) saw her at Kopra bus stand while she was getting down from the bus, on being asked, she told that she will go to Village Dumarpali, at about 8 a.m.. On 5th of July, 2002 the appellant went to Police Station Rajim along with Narendra Rao (DW-3) ^ for lodging missing report, but instead of lodging missing report, the police slapped the appellantand detained him in the police station. 9. This defence evidence shows that on 29-6-2002 the deceased was alive, on 30-6-2002 at least up to 8 a.m. she was alive and she was far away from the place of incident i.e. Village Kuruskera, Police Station Rajim. However, evidence adduced on behalf of the prosecution and the fact that dead body of the deceased was recovered on 7-7-2002 from kitchen garden (badi) adjoining to the house of the appellant, it was buried in the ditch, it can be safely inferred that during this period either the appellant was present in his house or he was searching for his wife. It is not the case of defence that after 30-6-2002 wife of the appellant i.e. deceased Pinki again came back to her house (house of the appellant) and she herself or some other person, has caused her death and thereafter, some body after digging the kitchen garden buried the dead body. This shows that evidence of defence witnesses is unreliable and they have stated lie only to support the appellant. 10.1n the present case, homicidal death of the deceased has not been substantially disputed on behalf of the appellant, on the other hand, same is established by evidence of Dr. Virendra Kumar Hirondiya (PW- 13) and autopsy report Ex.P-19 which clearly show that although the body was under the state of putrefaction, but injury over neck was visible and notable, tongue was also protruded and bitten between the teeth. Therefore, death of the deceased was homicidal in nature and cause of death was asphyxia as a resulting ofthrottling. 11.As regards complicity of the appellant in the crime in question, as per defence ofthe appellant and evidence ofall the witnesses, on 29-6-2002 the deceased was with the appellant in his house, afterwards her dead body was recovered from the kitchen garden of the appellant where it was buried. Evidence relating to her travelling on 30-6-2002 was clearly false andcounterfeit. 12.As per evidence of U.S. Dubey (PW-15), the appellant has made discloser statement of dead body, spade and letter vide Ex.P-3. U.S. Dubey (PW-15) has recovered spade at the instance of the appellant vide Ex. P-4. He recovered dead body of the deceased at the instance of the appellant vide Ex. P-5, prepared recovery memo of the dead body c. vide Ex.P-6 and also seized alleged letter Ex.P-8 vide Ex.P-7. Narsing Nagarchi (PW-3) has substantially corroborated the evidence of Investigating Officer U.S. Dubey (PW-15). 13.These evidences are sufficient for drawing inference that Ex. P-8, the letter written by the deceased, has been recovered at the instance of the appellant and that the appellant was having information about the letter in which the deceased has written following lines, which clearly shows that she has left the house ofthe appellant: - '^ 3FFT TFT "c^ "ER y|^c|7'<! ^TT ^T ^ ^r 3TFT ^TM' ^JHT ^T" 3TTCTcp if^ f^ra?t However, her dead body was found in the kitchen garden of the appellant in buried condition. The appellant was having definite information about the dead body when same is buried in the ditch in his kitchen garden adjoining to his house. 14.Dead body of the deceased was not small piece or small object whose presence/existence can be ignored. It cannot be buried without sufficient disturbance in the kitchen garden and it requires good size of ditch, fresh digging and fresh soil which would be easily visible. If the appellant was residing in his house during that time, it would not be possible for him not to notice the aforesaid ditch and fresh soil and it was also not possible for others to enter into the kitchen garden of the appellant and to notice the same. Definitely, dead body of the deceased was exclusively within the knowledge of the appellant, but the appellant has not offered any explanation that how he came to know about the same. 15.These circumstances establish the fact that the incident took place in secrecy when only two persons were present and out of the two, one has been killed and second is the appellant herein who was under obligation to offer explanation in terms of Section 106 of the Evidence Act, but he has not offered any explanation. These circumstances alone are sufficient for drawing inference that the appellant has caused homicidal death of his wife Pinki @ Jhariyarin Bai with intent to cause her death. 16.After appreciating evidence available on record, learned Additional Sessions Judge convicted & sentenced the appellant in the aforesaid s^ manner. Conviction of the appellant is based on clinching and credible evidence sustainable under the law. On close scrutiny of evidence, we do not find any illegality or irregularity in the judgment of conviction and order of sentence. 17.Consequently, the appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. — - Sd/- Soma T.P.Sharma Judge Sd/- R.N. Chandrakar Judge '^ L'.