y<<^ HIGH COURT OP CHHATTISGARH. BXfcASPUR Qrlm|aaLApiiea!No.382/2QQ5 APPBLLANT (In JaU) VERSUS RESPONDENT Subhash s/o Stui Aauj Ram Panaria, ^ed about 22 yeaia,fR/o viUage Kodwa Godau, P.S. Kukdur, Distiict KabBrihaia (Kawardha), Cliliattisgarh" State of Chliattisgarh ThK>ugfa| Station House OfBcer, Pplice! Station Kukdur Districtl Kabirdham (Kawardha) Chhattisgarh CiaMINAL APPEAL V/S 374 (2t OF THE CODE.Of_aWtSmMf PROCODERE Appearaace: Shri R.S.MaThas, coiuisel for theappeUant. Shri S.K. Agrawal, PaaslLaavyer for the State; Division Bench:- Hon'ble Slu'l T.P.SIiarma & Hoa'Me Stiri R.L.JliaawariJJ Per T.P.Sharma, J. ORAL^TODfflMENT (10.2.2011) ChaUenge in. fhis appeal is to fhe judgineat of convietion aad order of sentence dated 23.3.2005, passed by the Sessioas Judge Kabirdham (KawaixUia)(CG)mS.T,No. 10/2004, whereby aud whereunder the leamed Sessions Judge, after holdiag fhfc appeUant guilty for conuiussion ofciilpable homicide amountin^ to niurder of tus wife- Karuna and concealing fhe evidence of criminal case, convicted the appeMant under Sections 302 aad 201 ofthe IPC and sentenced for life im.prisonnient and fiae of Rs.500/-, ia defaultofpaymentoffine to further undergo R.I. fi?r ! 1 inonth; aad R.I. for 3 years aad fine ofRs.500/-, ia default of paymeut offine to further undei^o R.I. for l mouth respectively. 2. The conviction is impugned on fhe ground fhat wifhout there beidg any iota of evidencc sufficient for conviction of fhe appeUant, the leamed Sessions Judge h&s convicted and 4 senteiiced the appeUant as aforesaid inentioaed aad thereby coimmitted illegality. 3. As per casc of prosecution, on fateful day of 25.8.2004 iu between 9.30 to 10.30 am, fhe appeUant was present aloiig with his wife Karuiia (since deceased) and his 9 laonfhs child Sharad. On some dispute, fhe appeUant assaulted the deceased and fhereafter throttled her neck aad thereby eauscd her deafh; and with a view to conceat the evidence ofcruniaal ease, set the body of the deceased ablaze. He went to PoUce Station along with soine viUagers and Kotwar and lodged merg vide Ex. P/7. The Investigatuig Officer leflt ft>r fhe sceae of occiu-rcuce and afler surnTnomng witnesses vide Ex. P/l, inquest over the dead body of the deceased was prepared vide Ex. P/2. Spot Map was prepared vide Ex. P/3. OM. sUppers were seized froin the spot vide Ex, P/4. Burut piece ofclofh contamiag kerosenc oU smeU and plain sofl was seized vide Ex. P/5. One plastic jerican coutaming kerosene oil, niatch box and one plastic Ud of the jericaa was recovered firora the spot vide Ex. P/6. Dead body of fhe deceased was sent for autopsy to C.H.G. Paadariya, where Dr. V.P. Jaiswal (PW-7) conducted autopsy wde Ex. P/8 and found foUowiag iajuries : i. Tongue was between fhe teefh. ii. Body was burut upto 95%; bumt portion ofbody was palc white. iii. One abrasion of0.5 x0.5 cm overleft side ofnose iv. Mouth was echym.osed. f v. 2 coatusions of 1 x lcm. over right side of the neck just above clavicle bone. vi. 2 coatusions of 30 x 3 cru over right scapular region. vii. One contusion of 10 x 3 cia over left luiaber region. viii. Contusion of5x3 cin over right buttock. ix. Contusion of7.5 x 3 cin. over both auxfliaiy x. Trachca was not h^Uy congested but no carbon particle seen inside trachea Mode of death was asphyxia as a result of throttUag. FIR was registered vide Ex; P/ll. Viscera and ofh.er ardeles were seized vide Ex. P/15. Statements offh.e witnesses were reGorded under Section 161 of fhe Code of Crimiual Procedure, 1973 (in short fhe Code). 4. ABter coinpletion of investigation, chaige sheet was ffled before the .Judicial Magistrate First Class, Kabudham, who ia tura, eoiiunitted the case to fhe Court of Sessions, KabirdhaiU, who conducted fhe trial. 5, In order to prove the guilt of the accused/appeUant, prosecution exanuned as maay as 8 witaesses. Accused was examiaed under Section 313 of tfae Code, iu which, he dciued fhe circumstaacGS appeanng agaiast hiin, mnocence and false im.plicatlon. in crune ia question was claimed. 6. After affordit^ opportiinity of heariug to fhe parties, ftie leamed Sessions Judge convicted and sentenced the appeUaat as aforesaid raentioned. / {' 7. We have heard Shri R.S. Marhas, leamed couasel for the appeUant aad Shri S.K. Agrawal, leamed Panel Lawyet for fhe State, perused fhe judgment impugned and record of the trial Court. 8. Leamed counsel for the appellant velieiaenfly argued tUat alfhough wife of fhe appellaat died iu flie house of th.e appeBant, K "^t S;'.",'5S * ^S^'""i but only on the basis of circunistaiice that wife has been died iti the bouse, not sufficient for drawing an adverse inferenGe ^aiast fh.e appeUaat or make fhe appeUaat Uabte to offer explanation ia ternis ofSection 106 ofthe Evidence Act Prosecution is required to prove its case beyond aU shadow of doubts and weakness on. fhe part of the appeUaat would be of no use to fhe prosecution. He further subinitted that in the preseut case, appeUant hiniself has lodged merg aad m.tim.ated the uicident to other viUagers as per ruap Ex. P/3. There was eveiy chance of 3rd person to cominit the offence. In- fhe present case, prosecution has not proved its case beyond aU shadow of doubts; fherefore, fhe appellant is entitled for acquittal on the basis ofbenefit ofdoubt. 9. On tbe other hand, leanied coi.insel for the State vehemenfly opposed fhese aiyiinents and submitted fhat at fhe time of iacident, appeUant was present ia fhe house aad body of the deceased has been badly bumt up to 95 %. Biira injttries were post inorteia in nature and have been caused by bumiag through kerosene oil. AppeUaittwas presentwithiu close distaace ia fhe rooin; dead body found bumt was wifbiu visible lunit of the appeUant aad he has not offered any explanation that Iiow any 3rd person has caused the uiddent. The circumstaaces adduced on behatf of fhe prosecution are sitEEcient for drawing deflnite conclusiou that only fhe appeUant has conunitted the offence aad except the appeUant, no ofher person. has coaunitted the aforesaid offence. 10. In order to appreciate the ai^uments advanced on behalfof the parties, we have examiaed the e'vldenee adduced on behalfof fhe prosecution. 11. In the present case, hoinicidal death as a resiilt of fatal iajuiy found over the body of fhe deceased Karuna has not been substaatialty disputed orf behatf of the appeUaat, on fhe ofhfir i^.Kf"^ 3 hand, ifis established by fhe evidence of Dr. V.P. Jaiswal (PW-7), syinptoins/iajuiy found over the body of the deceased clearly revealed that deafh. was honiicidal on account of throttlmg aad not on account ofbura injuiy; buru injuries were post inortein in nature. d 12. As reganls com.plici1y of the accused/appeUant in Griine in question is concemed, conviction ofthe appellantis substantia1.ly based on circumstaiitial evidence. WIule dealing with ftic question of conviction based on eircuiiistaiitial evidence, fhe Supreme Court m the matter ofKusuma Aakaua Rao V. State of A.P., 2008 AIR SCW 4669, has held fhat in case of eonvletion based on circuinstaatial evidence, prosecution.is reqiured to satisfy the foUowuig circuinstauces: i. the circuiiistances fi-om which the conclusion of guflt is to be drawa should be fully establislifid. Tlte circunistances concemed 'inust or should' and not 'niay be' established; ii. the facts so estabUshed should be consisteitt oiily with the hypothesis of tfae guilt of fhe aceused, tliat is to say, they shouM not be explamable os. say oftier hypothesis except fhat the accused^is gmlty; ' ui. ttie circumstances shoiild be of a conclusiye nature aad tendency; iv. tfaey should exclude every possible hypofhesis except the one to be proved; aad v. there inust be a chain ofevidence so coinplete,a^ not to leave aay reasonable ground for fhe conc&ision consistent with fhe iiuioceace of the aceused and m.ust show fhat in aB huinan probabilily the act inust have been done by the accused. 6 ^A. r M"^' 'fe 'i;^!"-" "y^ g 1. :' ... 1> ^' '•''>, -i.SS' J> 13;' In the present case, as per case of prosecution, appeUaat has lodged in.ei^ vide Ex. P/7, which revealed tUat at the time of iacident appeUant was present in thc house. Just before fhe uicident, appellant had assaulted the deceased by haads and flsts. Bumt dead body was found in one rooin ofhouseoffhe appeUant. As per autopsy report, cause ofdeafh was fhrottliag aad not by hnming. As per Ex. P/7 inerg and stateiaent ofother witnesses, appeUaat, hiswife Kaniaa aad9 inonths chUd Sharad only 3 persons were present ia fhe house, where his wife died as a result of throttlmg. 9 monfhs child Sharad was not ia a position to offer any explaaation. Only tfae appcUaatwas uiider obUgation to offer explaaation that how his wife dicd fhat too IB: his house. He has not oflfered any explanation relatiag to such deafh. These circumstances, if considered togefher, fhea only inference would be possible that the appeUant has caused hoinicidal deafh of his wife Karuaa aad no other person lias committed ftie aforesaid ofiFence, iateraUa, the same are suffiGieitt to exclude the possibiUty of innocence of the appeUaat Bura iajuries were post inortera in nature. It also shows that afiter causuig deafh by fhrottliiig present appeUaat has biirat the dead body of his wife wifh a vlew to conceal the evidence of r"rimina1 case. Ater appreciating the evidence, avaUable on reeord, leamed Sessions Judge has couvicted aad sentenced the appellaut as afbresaid inentkHied. 14. Oa close scrutmy of the evidence, we do not find any iUegality or infiniuly in. thc conviction and sentence jm^oscd up on the appcUant. Consequently, fhe appeal beuig -'deyoid of uierits is liable to be disnusscd aad it is hereby disnussed. A sunita ,sd/- ^sha^ Judge Sd/- R.L. Jhanwar Judge