ipas^fl- .'^li&g^-:^{'f HIGH^QU^* PFCHHATTISGARH AT BILASPUR •\ " • •.'.•''•".'.. ' • . • '•.•'."'".•.'-.• DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA 85 HON'BLEMR.R.L. JHANWAR, JJ, Arp]ELLANT (In JailCustody) RESPONDENT Crimmal Appeal Np, 259/2004 Shrichand alias Shrirain S/o yjakul Yaday, aged about 56 years, R/o village Kusumi, P.S. Palari, Distt; Raipur (C.G.). VERSUS State of Chhattisgarh Through P.S. Palari, Distt. Raipur (C.G.). ; CRIMINALAPPEALUNDERSECTION 374 (2) CR.P.C. Present:- ShriV.P. Giipta, Advocate for the appellant. Shri Arun., Sao, G.A. for the State/respondent. ORAL-JUDGEMENT (Passed on 16/09/2010) The following judgment of the Court was passed bv T.P.^Sha.rma.jr:- 1. ChaLlenge in this appeal is to the judgment pf cdnviction and order of sentence dated 7/172004 passed by First Additlonal .Sessions Judge, Baloda Bazar C.G. in Sessions Trial No. 286/2003 whereby and where under afte.r holding the appellant guilty for the commission of offence of culpable homieide araounting to murder of his son Chaitram convicted the appellant uhder Section 302 ofthe Indian Penal Code ; and sentenced imprisonment for life and fme.of'Rs. ';.lJ. .(1 .•"^^','.:•"•' ' : !l- ^; ^^?-^;;^^^^^^^;<:^^^^:'^'- ^•^^c^^:^^^^^^.'^-' w^^^^^^a^^^ »i*it'=:.ei> .2. 3. lOOO/- in default ofpaymeht pffine araount additional rigorous imprisdnmenf for 1 year. . Conviction is Mnpugn«don the ground that without any iota of evidence suffieient for convietion of th'e appellant, Courtbelow has convicted and senteneed the appellant as aforementiojtied and thereby comniitted an 'illegality. .,/.?... / . • : As per case 6f the proseeution, on faithful night pf 14/6/2003 at aboyt 12.30 (0.30) appellant along with his son Chaitram and another child were present iri his house at village Kusumi. Present appellant assaulted his son Chaitram and caused repeated injuries over his bpdy and caused instantaneously death of Ghaitrairi. AppeUant bolted the room from out side the house where other children were also present. Appellant went to the Police Station Palari with blood stained axe, Kis body and cloths were stained with blood. Police Officers have directed one Police Officer to find out the truth wlio went to the village thereafter some villagers went to the house of appellant and saw the dead body of Chaifram inside the room. They went fo Police Sfation where appellant was present they caUed the appellant arid inquired then he made extrajudicial confession that he has committed the murder ofhis son Chaitram saaie was recorded vide Ex. P-9 thereafter PW3 .•l'-~-'^'" ."-^ ..f'."'^;"^,'.."•*. ^ \ i.''f-'-^''^'^'E'..'.^; -f1-:'^"'.^-''''-'';':' ^sif'e'Ssf' s Madandas lodged First Inforination Repprt vlde Ex. P-5. Marg was recprded vide Ex. P-6. Investigating Officer left for scene pf oecutrence and after summoning the witnesses vide Ex. P-'13, inquest a.ver the dead body qf deceased ehaitraln was prepared vide Ex. P-14. Blood stained axe and blood s.faihed towel were seized from ,•/. : . ' ',. '• • the appellant vide Ex.P-15,.Dead body was sent for ay.topsy to Community Health Center Palari vide Ex, P- 2A. PW2 Dr. F.R. Nirala conducted autopsy vide Ex. P-2 and fbund followmginjuries:- (i) Orie incisedwound of 4 1/2 "x 3 y2" over neck on the ground ofrepeated injury. Injury was appearing as lacerated wound. Tracia and intemal partofneckwas found cut. . (u) Incised wound of2"x i"X 1 ^ " over left cheek, Jawwas also found cut. (iii) Incised wound of 2"x I" x 1 %" over chin. Bone was also found cut. (iv) Incised wound of 2 x I" x 1 l/z" Qver left ear. Jawwas also fouhd cut. (v) Incised wound of 2"x 1" x 1 %" over . back of the neck. (vi) Iricised wound of,2" x 1" x 1 W over left wrist. Ulna bone was also found fracture. (vii) Incised wound of 2" x I" x 1 l6" over . rightpalm. ; (viii) In.cised wound of 1 W x % c.m. x % c.m. near left eye. \ "'llJ/. .-.'1-"'/"'.. •:'"•*• '";.^.'< .'l1-'-'' •.r"',.'••"'''•• .,.;..,-.;.".:• '; ^'> "^: '• f w •.?' :q^-'y: •^^ isffS^t^k^ " (bc) Qne incised wound of l" x %" x 'A" byer forehead. : ' Mode ofdeath was shock and death was homicidal in nature. : 4. Spot map was prepared vide Ex. P-1. AppeUant was serit for medieal examinatiDn vide Ex. P-3A who was examined by PW2 D^; F.R. Nirala vide Ex. P-3 and tr '. •• • • • ; '..:' • •'••;.•• ."' ' .. '•'~. blood was fourid over the body ofappellant, blood was ; taken out With fhe help of cotton and was sealed. Axe was also examined by doctor vide Ex. P-4 same was • stained wifh blood. Blood stained and plain soil were recovered frbin the spot vide 'Eai. P-7. Blood stained shirt, bed-sheet and other cloths of deceased and cQtton stained with blood found over the body of appellant were sealed vide Ex. P-16. Seized articles were sent for chemical examihation Vide Ex. P-18. Presence of blood was confirm.ed vide Ex. P-22 on axe, • tcnyel and cotton by the Eorensic Science .Laboi'atory -Raipur. ^";'/-\ ! ! '; 1' - :;: ! 11. ;i''\ ' 5. Statements of the witnesses were recorded under Section 161 ofthe Code of Crirainal Procedure, 1973 (in short 'the CQde'). After completioh of the inyesfigatioll ., charge sheet was filed before the Judicial Magisfrgte : Firsf Class, Balcida Bazar who in turn committed th'e 1 case to ttie Court of Sessions, Raipur from where •:'-.^.' ..f'-':'-^" ,'•:"'•'• \\ \- '•'.••''', :'l;'' • ".;.^ ..'•'• ;. "'. •'.' ' qons gyipjooa.i jo smp 31.0 4^ ^uassjd SBAY sq sJi.feq "a"3 -IS3Q:JO SURB§RS3AU:I OIMd jo souapiAS jsd s^ ^nq 6-3 'X3 9PTA UOISS9JUOO iBioipnfeflxs apBul iireipddB :U3S3jd aioqM ajojaq suosjsd JQ souspiAa sip uo pasBq ^iifepurB^sqns si ^irenaddB aq^ jo UopoiAUOo ^q^ panS.re ^pHsiusqaA ivcB^sdde sip joj lasunoo payjBsq •6 Mopq ^jnoQ jo pjooaj pire psuSnduii iuaaigpnp •pj'Baq aje pBg uruy juspuodssj/s^B^g sq^ .zoj •yo p9UJBa)[ •ptre ^dnQ '^'j\ ^vce^addv si^ joj psunoo pa£UB3i •s •pauoi^usuis-iojB SB fwe^adde arp psoua^uss pue ps^OTAUoo .rezeg •BpotBg 'sSpnp Suoisssg ^uoiiippv isii^ pau-re^ S9T^IBd 9VQ. O^ SUUB3T.I JO A>IUTC>.[Odd6 LTB SuipjojjB ja^jv '^ ' •pa^oilduii 4'{3S{BjSBAV pire soiiod A'q psure^ap S^A ax.l 4nq 4-todaj SuiSpoi JQJ uopB^s soiiod o; ^uaAii aq 'uosjad suios Aq. panpt SBA^CTre.t^reqo uos siq AOOS/9/frT-£t jo ^qgiu guiuaAjs^ui sq^ ui t'Btp sousjap oyiosds ua'sfBf s^q SH 'paairep si ijopBoiidun asfej pire AbuaoQum 'njtq 'i" ; . •- ' '' -' 1 ' ' •' ,' .,1 . - ^sureg^ gmjBsddB saoLFB^smno.ip 3ip psiusp sq aj3i.[A apo3 aq? jo £T£uoposg .isptm. psuiurexa S^A pssnoov •S3SS31QIM OT -SB Areru SB psumrexa uopnossojd p3Sn3ois/''ft3S^3ddT3 gqt jo ^finS &ip aAbjd o^ jap.io ui •9 •IBU? joj jsjsirej^ uo as'eo ai^ psAisos.i ' ^. .'•. • - • .'••.. ••• "'••'•• jszBQ-epofSQ 'sSpnp suoisssg IBUOT»IPPV ^S.JTJ pwiievi -^^^|Kh;^^l1 fsSfsWlSs^:^ IUMII,.1,»,,! ,.-^,.-^ s^ !>>. Jf ^E^y ^) K^^ airi.j , extra.judicial confession Ex. P-9 and same was recorded *k.,.' " . '• " ' • • • . ' •• '..'• . ' "• '. :: ^' in the poliee station premises therefore, same is hit by under Sections 25 85 26 of the Evidence Act except aforesaid evidence prosecution has not colleeted any evidence against the appellant therefore conviction snd sentence ofthe appellaqt is not sustainable under the •;." law. 1!1 '.. \. . : '•. :. 1 : -,1 . "/'/. 10, On the other hand, leamed Govt. Adyocate for the State/respondent opposed the appeal and submits tbat in the present case as per evidenGe of the prosecution accused himself had gone to police station for lodging repprt. He was having blood stairied axe and injured dead body pfhis son Chaitramwas found in his house. Witnesses has interrogated him although in Rolioe Station premises but for away frbin the Police Officers. , Extrajudicial confessionmade to police is not admissible in evidenGe and is hit by under Sections 25 & 26 of the Evidence Act but extrajudicial confession made in the police station premises or any preniises of police station is npt hit by under Sections 25 8s 26 of 1 the Eviderice Act. . lt. In the present case appellant was iimnediately exaniined by docfor. His body was stairied with blood and sarne was taken out with the help of cottori. His towel was also seized, same was examined by Forensic ^.'L'. .f'."'.r";'.. •""•'. ^.'L'. ;..'.'. f'-'.' .1"".: ••"•'• :'-'-?--: •*.'T-"i*'&<-^%SS [3;^"g:!3S]i!Bi5i!Tia ?Scierice Laboratory and presence of blood over the body , ofappeUant arid towel whi^^ confu-med Ex: P-2Q; F^-esent appellant has riot ofiered any explanatidn f6 show that how his body was staihed with blood. This alohe Gircuinstance is sufficient for Gonnecting the appellant with crime in question and for drawing an inference that appellant is a person whp culpable homicide amoiinfing to murder of his ;son CHaitram. ' , • . : 12. Iri order tp appreciate the argument advanced on behalf of the parties, we have examined the evidenfce addyced Qn behalf pfthe prosecufion. 13. In the present case, homicidal death as a resulf of multiple fatal injuries found overthe body ofChaitram has not been substantially disputed on behalf of fhe appeUant on the other hand, otherwise also established by the evidenee. of PW2 Dr. F.R. Nirala and .autopsy ° : repbrt Ebc. P-2 whieh reveals that as many as,9 injures found over the body of deceased inchiding fatal injyres over neck and sc^lp and death was homictdal; in /''•natiire. .^11". • , ' , :\' -• . :: '•/ 1^ . 14. As regard the complicity of appellant in criine in ^ question, convietion is based on circumstantial evidence. As per the settled law in order to eonvict an ^ • ' ....' .^..' ""•.'•' ^^? • • , . . : • •- . . aceused based on the cireumstantial evidence, the Apex ^ .,'i^^- "-.s^ ./'.:'.f-:".' '"•' ..,.;,...:'.=^s? 15.. :'';;^;3i? Court in fhe ease ofDhananjoyChatterjeeVs. State ofW.B. v-' •. ..'•• . ..•' ••••; . .'.',•.'..•. ••••... '..:•• Kas held that :- "In a case based on circuinstaritial evidence, the • circunistances froin which the conclusion of guilt is tb be drawn have not only to be fully established but also that all the circumstances so esfablished should be of a conclusive nature and consistenf ohly ;'<yith fhe hypothesis of. the .' guik of the accysed. Those circymstances should nbt be capable ofbeing explained by any other hypothesis except the guilt of ftie accused and the chain of the evidence must be so complete as not: to lea.ve any reasonable ground for the belief cohsistent with the innocence of. the aceused. It needs no reminder that legally . . established circuinstances and not merely • indignation of the court can form the basis bf conviction and the more serious the crime, the : . . greater should be the care taken to scrufinize ; , the evidence lest suspicion takes the place 6f 11 .'.proof." '.".••, . ;' , '. /, ; : .'; ' 1 ' '•.1 •1 In case of eonviction based on circumstantial evidence, as held by the Apex Court in the matter of C. Changq Reddy v. State of A.P. , the prosecution is required to adduce evidence and such evidence must satisfying the fotlowingtests: - . - • i. the circumstances from which an itlference of guilt is sought to be drawn, must be cogently and firmly established; ' (1994) 2 SICC 220 v 2AIR 1996 SC 3390 : (1996) 10SCC 193 •i'-'.':r-\:'^iL' •-S.'- .•f' •'.' .t-'-'.. •'•'"''• ; 'L'. .,fi."\l':-\.'.;"'". ]^S'.W '^ '-.'L'. 16. ii. those circumstances should of a definite tendency uherringly pointing towards the . : . guilt of the accused; iii. the circumstances taken cumulatively , should form a chain so complete thaf : there is no escape from the conclusiQn that within all huroan probability the crime was cammitted by the acGused and . noneelse; arul .'? iv. fhe circulnstantial evidence in order to susfain conviction musf be complete and incapable of explanation of any other , hypothesis than that ofthe guilt of the accused and such evidence should not only be consistent wifh the guilt of the accused buf should be inconsistent with hisinnocenee. - Ih the presentcase prosecution has relied the foUowing circumstances:- : (i) Dead body of deceased Chaitrain was found incised the rQom ofappellant in injyred CQnditibn. (ii) At the time of ihcident at night present appellant wa.s present in fhe house at the : tiriie of commission of such offence. (iii) Present appellant has not offered any explanafion that how Ghaitram died and who has caysed injurytbChaitrain. ^ : ; (iv) Present appellanf h-imself has gone.to pQlicestadon along with blood stained axe for lodging report. (v) Present appellant made extrajudicial Gpnfession to the witnesses. • (yi) Body of present appellant was stained with blood and same was examined-by doctor. "•.s^, •!'•''.'''".' 1:'"'"' •<' '. '•r'- jt.'. : lt-. , ^- :'L'< ; •f' "' •r'":~ •"''••' • ' ^yy ; " (vii) Bkiod stained found over f(l& body pf appellant was taken out with the help of cotton by the doetor and same: was sealed and sent for chemiCal exaRiinatiofa.." ' (viii) Blood staiHed towel which appellant was bearing was seized from the appellant by the Inyestigating Officer..-1:.. ' ';. •11 : /- .,. . : '.. .,.:1'".;~ ; [vi] Blood stained to%el and axe were examined by Forensic ScieAce Laboratory and presence of blood over axe and fowel seized from the appellant and blood stained cofton taken from the body of appellantwere confirmed vide Ex. P-22. 17. As per evidence ofPW2Dr.F.R.Nirala he has examined appeUant Shrichand on 14/6/03 vide Ex. P-3 no injuiy . was fbund pver his body byt his body wasstained with ; blood specially blood was fbund over both side bf the ehest, finger of left hand, both the legs, both tiie toe which was taken out for the help of cotton and was sealed and handed over to the Constable. He has also examined axe which was stained with blood Ex. P-4. In his cross examination he has explained that if th'e . person caught hold the person who would be iri ^ bleeding condition even blood stained found on the body ofthe appeUant would not be possible but stained raay be occurred if the person will be present in close distance wrth tfae person whom other persohs has , . eaused injury- ''•- ll..', .t-'"'.. •'•"'' 'l.'t.1 •l'-"' :t"".: ••"•':• .'.''.'. FW3 Madai^as, VW7 Kejw^, ^^/^ • • have deposed iri their evidence that they came tp knpw that son of appeUant Chaitram ^has been murdered ^then they went to the hoyse of appellant thereafter they went to the police station where appeUant was present - with axe. Tfaey called the, appellant and , asked in ,'<! ' 1; ' ' •• '. . ' '-'.• . : abSence of poltee then he told and made extrajudicial eoafession fhat he has committed murder of his son Cfaaitram which they recorded Ex. P-9. 19. Defence has cross examined these witnesses at length in which fhey have specifically deposed that after calling the appellant in separate place in police station premises they ha.ve interrogated the appellant and " appellant has made extrajudicial confessiQn before : fhem although PW10 Investigating Officer C.D. Lahre has deposed in Para-9 pf his evidence that af the tixne pf recording such Panchnama Ex. P-9 he was present. Definitely, in the present ease Investigating Officer hitnself has directed the villagers to inquire frpm appellant and appellant himself present in the police - statibn with blood stained axe, appellant has not ma.de ^^^^^ a^ to police but statement of PW10 Investigating Officer C.D. Lahre reveal that he was recorded extrajudicial cohfession .made ;by appellant in his presence therefore only extrajudicial :v.'^L . (' .':'.t1'"..•"•". -< '.;.'"..^' .1' .•",,''•• ^:"--.. ;!L'. (' •"'•f-': ••'"•"•• i;///; ^p^^^s^^^^^^^^^^^^ iEs's.iasyRaa^.^s •fysss^^ss^^^t •^'^^^^^^^^ is?^^^^5^t^3?g •;t, B 1-^':': -'v 20. 12 confession ina.de by appeUant to witnesses would npt tie safe for drawing definite conclusion that top.Telating t;a complicity pf appellant in a-ime in questibn. Evidence of aforesaid witnesses including presence of PWIO Investigating Officer ,G.D. Lahre and defence taken by the appellant reveal that present appellant himself had gone to police station he was present at police station and was holding blood stained axe. As per evidence of doctor blood stained was found on different part of the body of appellant whieh was faken out with the help of cotton. Cheniical examinafion report reveal that blood was confirmed on the cottbn, axe and clofhs which the appellant was bearing although blood group has hot been detected by?the Cheraical Ebcaminer. In the present case present appellant has not offered any explanation that how blood was found over his body and in his cloths, who was present in the hoyse at night and who had caused injuries to his son Chaitram as suggestion given by' the defence to PW2 Dr. F.R. Nirala in Para-9 of his evidence, he has also not offered any explanation that who has caused injures to his son Chaitram or who was sfanciing near hi? son Chaitram at the time of causing such injury. Appellant was present incised the house along wlth his K ..!.'/. .•l ' .:'..r":'''.'•.'"'" ':s.', . l'-'":^": •'•'"•'• l-3 ^®%^^^^3s%@%^^%%i^ffi^^^ ®^;^:^,;:.^^^•:-,^:.-'.: \.^ ^tf^ ..s(.s,-«!i son Chaitraini at the time of commission of such incident who was under obligation to explain , the i • ' cifcT-unstances in terms of" ynder Section 106 of the E^ Act blrt present appeUant has not offered ^any ! , lexplanation while along with the questiorf of (iiffence ' eoinmitted in secrecy and requireinent of explana.tiori. '<?.....'• .'•. - ' • • ..;• .'.. :'. '. • • •.. . . ,\:1. _ ,;:_ ' , 1.' _, , ' '.\'-.: .: , 21, As held by the Apex Court^m the case ofTrimukh MaFoti Kirkan v. State of Moharashtra, in case murder ;comtnitted in secrecy inside a house,the initial burden fo establish the ease would undoubtedly be upon the prosecution, byt the nature and amount of evidenee to be led by it to establish ttie charge cannot be of the same degree as is required in other cases of circumstaritial evidenee. Para 15 of the said judgment reads as under:- "15. Where an offence like murder is cominifted in secrecy inside a house, the initial burden to establish the case would yndoubtedly be upon the prosecution, but the nature and amount ofevidence to be. led by it tb establish the charge cannot be of the same degree as is required in other cases of circumstantial ^ eytdence. The burden would of a comparatively lighter character. In view of Section 106 of the Eyidenee Act there will be a corresponding burden on the inmates ofthe house to give a cogent explanation as to how the crime was committed, The inmates of the house eannot get away by siinply keeping quiet and offering ^' '>:''-^ •<' •"'^'•'.•."•:"'' '\!'< ./' ":.(-'•'..'•;"•'' . <' .' ^"'..'•'"•'' -3(2006) 10 SCC 681 i^3B®5ifiR3@Fa@BS?^^'. 14 no explanation on the supposed premise that the burden.tp estab'lish its case lies entirely upon fhe prosecution and there is no duty at all on an accused 'tQoffer anyexplanation." . 22, Ih absence of any explanation the.only inference would be possible that present appellant is a person who has coinmitted the offence and is author of the crime and except appellant no other person has committed fhe offenee. ^'•.' !':.. " ::11';1' ; :'1'"'". 23; If aforesaid eircuinstances are considered together theii only inference would be possible fhat present appellant alone has Gommitted the culpable homicide amoynting tQ murder of his son Chaitram'.and other than the appellant nobody has committed the aforesaid offence. 24. Mter appreciatfe the evidence available on record learned Pirst Additional Sessions Judge, Baloda Bazar has rightly convicted eind sentenced the appellant as aforementioned. The convictibn and sentence of the appellant is based on legal, clinching and credible evidence and is sustainable iinder the law. 25. On close scrutiny of the evidence, we do not find any illegality orinfu-mity in the conviction and senfence of the appellant. The appeal is devoid of merits. , Consequently, criminal appeal is liable to be dismissed and is herebydisruissed. Sd/- T.P. Sharma Sd/- R.L. Jhanwar Judge \ > '•• .s. •l'-'":!''".."•'"•' ^..^ .(1 ."• .f''-,'.:•"•' ,f-