HSGH CGURT OF CHH§T?I$GARH AT EILASPU? DB. HON’BLE $HRI DHIRENERA WSHRA, & HQN’BLE SHRI RN. GHANDRAKAR JJ Criminai Appeal No. 1228 of 2M3 Appellant Laxman, son of Parmanand Chouhan, aged about in Jail 30 years, resident of Jagdishpur, Polite Station ~ Baramkela. Distfict Raigarh (CG) Versus Respondent State of Chhattisgarh, Through District Magistrate, Raigarh, District Raigarh (CG) Present: Mr. Janak Ram Verma‘ aounsei for the appeiiant. Mr. UNS Deo. Govt. Advocate for the State. JU$GMENT {Deliverad an [gm August, 2910) Per Dhirendra Mishra. J The appeiiant has preferred this criminai appeal against the judgment of conviction and order of sentence dated 1.7m October, 2003Apassed in S.T.No.209/O2. whereby the iearned II Additional Sessions Judge, Raigarh, after holding the appellant guilty of committing murder of his wife Savitribai ,and causing disappearance of evidence, has convicted him under Sections 302 & 201 of the IPC and sentenced him to life imprisonment, pay a tine of Rs.500/4 & RJ. for five years and fine of Rs.500/-, respectively with usual default clauses. However, the appellant has been acquitted of the alternative charges under Section 306 and 498A of the IPC. 02. . Case of the prosecution, in brief. is that the appellant lodged a report on 5.7.2002 mentioning therein that his wife Savitribai has committed suicide on 437.2002 around 7 pm in his house at Jagdlshpur. However, in the postmortem report the doctors opined that the deceased died homicidal death. lt also revealed that before her death. the appellant had quarreied with his wife for not preparing meals and he had slapped her also. Thereafter, when she went inside the house, the appellant followed her. At that time, no other person was present in the house. The appellant and his daughter informed his parents that the deceased has hanged herself. However. no one saw the deceased hanging. Scientists of Forensic Science Laboratory inspected the spot and after reconstruction, opined that it was impossible for the deceased to han"g herself. 03. After registration of crime, vide EXP/14 on 5.7.2002, poiice proceeded forthe scene of occurrence, prepared igquest (Ex.PI2) and forwarded the dead body to Primary Health Center, BaramkeEa,>where Dr. S. Toppo (PW-9) and Dr. (Smt.) Jaikumari Choudhary (PW-10) conducted postmortem and gave their report of EXP/4. After nrerg inquiry, crime was registered against the appellant on 10.7.2002 Vide EXP/5. ln-charge Officer, Scene of Crime Unit, Raigarh. visited the spot and gave his report vide EXP/8. Site plan was prepared by the investigating officer vide EXP/16. 04. After completing investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Raigarh, who, in turn, committed the case to the Court of Sessions Judge, Raigarh and the same was received on transfer for trial by iearned Additional Sessions Judge. 05. Learned trial Court framed charges under Sections 302 and 201 of the IPC and in the alternative, charges under Sections 306 and 498A of the lF’C were also framed. The appellant abjured his guilt. The prosecution, in order to establish its case, examined 17 witnesses in all. Thereafter, statement of the accused was recorded under Section 313 of the Cr.P.C., in which he denied the circumstances appearing against him in the prosecution case and pieaded innocence and false implication. However, the appellant, in reply to QUestion No,15, admitted that the deceased was pregnant, and in reply to ‘rQuestions No.22 & 23, also admitted that he went to police station with Mohanlal and Jethuram and lodged the report. He has also stated that the deceased committed suicide by hanging, he is innocent; he had gone to Chhindbadra to work in the house of Biharilal Patel and when he returned, he found his wife hanging in the house. He has been falsely implicated at the behest of his in-laws. He also examined Biharilal and Bankda @ Nanki Dau in his defence. 06. Learned trial Court, after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in para-1 of this judgment. 07. The trial Court, on the basis of evidence of Dr. S. Toppo (PW-9) and Dr. (Smt.) J.K. Choudhary (PW-1 0) and also considering the other attending circumstances, held that the homicidal death of Savitribai is established. 08. ln the merg intimation of EXP/14 lodged by the appellant and which has been proved by PW~17 Chintamani Malakar, it is mentioned that when \ he (appellant) returned from his workmace, he did not find his wife in home and she came later, whereupon he gaye her 2-3 slaps and went away. When he returned at 6 pm, he found his wife hanging, whereupon he brought her down with the hope that she may be alive, however, she was dead. 09. PW-9 Dr. S. Toppo has proved the postmortem report of EXP/4. This witness has deposed that the dead body of Savitribai was in a decomposed condition and was excessively stinking. There was swelling over entire body, neck and face; both the eyes were half open, eyeball was prominent; superficial skin layer was peeling from all over body; hair of head was also peeled; blood mixed froth was coming from mouth and nose; rigor mortis was passed off from both limbs; tickle matter out from anus; cyanosis present on all finger nail of hand; blood clot was present near vagina; tongue was pressed and protruded. At the time of examination, rope was not found around the neck; skull and spleen were healthy, brain and vertebra were liquefied due to decomposition; abrasion over right ankle of size 3 cm x 2 cm; no ligature mark around the neck; and no injury over hyoid bone and thyroid cartilage. He opined that cause of death is asphyxia due to smothering and nature is homicidal. The deceased died between 48 to 72 hours before the postmortem. He also found one dead male fetus of 6-7 months in front of vadina and cord was intact. ln cross-examination, he has admitted that in the cases of hanging also, nails are cyanosed, blood comes out from nose and mouth and tongues are protruded and eyes become prominent. However, the injuries over the ankle could not be caused while brining down the deceased as the injury was antemortem ln nature. He has categorically opined that since there was no ligature mark, there is no possibility of suicide and the symptoms found on her body were not of suicide but the same were of smothering. He has reiterated his opinion that she died as a result of smothering; Smothering is cause‘d by closure of nose and mouth due to obstruction of air passage and in such situation, blood comes out from nose and mouth and the person dies as a result of asphyxia. 10. Dr. (Smt.) J.K. Choudhary (PW-10) has also concurred with Dr. S. Toppo, and deposed that the deceased died due to asphyxia as a result of smothering and her death was homicidal in nature. 11. Shri Verma, learned counsel for the appellant argued that both the doctors have deposed that certairi symptoms found on the dead body are aiso found in the cases of hanging. Further referring to the evidence of PW- 17 Chintamani Maiakar, Who has deposed in para-6 that when he reached the spot, he found an oblique mark on the neck caused by rope used for hanging and bloody froth emanating'from nose and mouth: which had flown on her ieft chick, argued that the deceased committed suicide by hanging. A.K. Agrawal (PW—12) has also opined in para-3 that it appeared that Savitribai died'as a result of hanging. in para-5, he deposed that he saw the mark of rope on her neck, which was extending from right side to left side and he did not nnd any injury. 12. The question for our consideration is —- whether the deceased died as a result of hanging or cause of death was asphyxia as a result of smothering, as opined by the doctors performing autopsy? 13. The postmortem has been conducted on 6.7.2002. At the time of postmortem, the body was found in a decomposed condition. There was peeling of skin from all over the body, hair of the head was also peeled. Both the doctors performing autopsy have deposed that they did not find any ligature mark or injury over hyoid bone or thyroid cartilage. On the basis of absence of ligature mark, the possibility of suicide has been ruled out. Though these witnesses have admitted that in cases of hanging also, the other symptoms found over the dead body, are normally found. However, fPW-12 A.K. Agrawal,'in whose presence inquest of EXP/2 was prepared, has deposed that he found ligature mark on the neck, which was extending from right side to left side of the neck, and they were of the opinion that she died due to hanging. in the inquest report of Ex.PI2 also, presence of ligature mark over neck has been mentioned and in the opinion of the witnesses, the death was as a result of hanging. PW-14 RK Paikra is a scientific officer of Scene of Crime unit, Raigath. This witness has also deposed that tongue of the deceased was bitten between the teeth. He also found obiique ligature mark over the right side of the neck, though it was not very deep and there was no ligature mark on the back side of the neck. Though on reconstruction of the site, he opined that prima facie, the case appeared to be of suicide. However, in his cross- examination, he admitted that he did not measure the height of the dead body, and the place from which he was told that the deceased hanged, was at a height of 6 ft and 8 inches from the ground Thus from the evidence of AK Agrawal the Executlve Magistrate in whose presence Inquest report of Ex P/2 has been prepared and from perusal of the Inquest report It Is clear 14. that the iigature mark was seen immediately after the death at the time of inquest and the same has been duly recoided in the inquest report Probably the ligature mark could not be noticed at the time of postmortem as the postmortem was conducted after 48-72 hours when the body was in a highly decomposed condition and peeling of skin over the entire body had started. ‘The doctors have ruled out the possibility of death of Savitribai due to hanging only on the ground that they did not find ligature mark on her neck. r, The doctors have opined that smothering was caused by closure of nostrils and mouth. However, the evidence of violence in shape of external marks surrounding the mouth and nostrils or on inside the mucosal surface, or on the chest, or the presence of foreign bodies of Tardleu spots that death occurred from suffocation. has been noticed. Thus, looking to the contradictory evidence adduced by the prosecution in the inquest report and the postmortem report, we are of the opinion that the finding of the trial Court that Savitribai died due to asphyxia as a result of smothering based on the evidence of doctors performing autopsy, is erroneous and the same has been arrived at by ignoring the evidence available in the inquest report prepared immediately after the death on 5.7.2002. 15. PW-1 Ramcharan is father and PW-4 Smt. Dutikabai is mother of the deceased. ln their deposition, they have deposed that on being asked from his son-in-law, he replied that he had slapped his wife once. However, in the cross-examination, they have deposed that the appellant used to beat his wife and he used to quarrel with her. 16. PW-2 Mohanlal has also deposed that Laxman told him that his wife has committed suicide by hanging. In cross-examination, he has admitted that the appellant and the deceased lived peacefully and he had never seen any quarrel between them. Similar is the evidence of Jethuram (PW-3), who has also stated that both of them lived peacefully and he never saw them quarreling. 17. PW-5 Smt. Chaturibai is resident of Kalakhunta. She is aunty of Savitribai. She has deposed that whenever Savitri came to her Maika (maternal home), she used to complain that the appellant beats her. Similar is the evidence of PW-6 Bhimsona, who is husband of PW-5. 18. PW-7 Hemkunwar is a 9 year-oid daughter of the appellant and the deceased. She has only deposed that she resides with her parents and one sister Guruwari. Her mother committed suicide by hanging. She died at 4 o’cluck in daytime. At that time, she had gone to schaei. When she returned from school at 4, she found her house locked, her father came at 4 and' enquired about mother and thereafter, they went in aearch of mother Her father did not beat her mother. 19. PW-S Shivcharan is uncte of the deceased. He has atso deposed that before the death, the deceased had complained that the appellant ill treats ’ her. 20. PW-11 Smt. Lata Chouhan is neighbour of the appellant. She has deposed that on the date of incident, she was sitting with Savitribai in her house. At that time, Laxman came there and took Savitri home. In cross- examination by the prosecution, she deposed that when she was sitting with Savitribai, her daughter Hemkunwar came and called her mother. Thereafter, she heard some noise from the house of Laxman as both of them were quarreling for not cooking meals. However, the noise subsided after some time and at 7 pm, she learnt that Savitri has committed suicide by hanging. ln further cross-examination by the accused, she has admitted that Laxman and Savitri lived together peacefully. The trial Court, on the basis of evidence of this witness, has held that this witness saw the appellant and the deceased together when she was alive while they entered in their house and soon thereafter, the deceased died and her death was homicidal in nature and thus, the prosecution has been able to establish involvement of the appellant in crime in question by circumstantial evidence. 21. We have already held in the forgoing paragraphs that finding of the trial Court that the deceased died homicidal death, has been arrived at by ignoring the material evidence adduced by the prosecution and available on record. Since the prosecution has not been able to establish by cogent and ‘ reliable evidence that the deceased died homicidal death, defence of the appellant that she committed suicide by hanging as he had slapped her for not cooking meals when he returned from work, cannot be ruled out in view of the evidence available on record. 22. On the basis of aforesaid discussions, we are of the opinion that the trial Court was not justified in convicting the appellant on the basis of circumstantial evidence, and the appellant is entitled, to be extended benefit of doubt. d other therefore, case. he is directed ta be set at iiberty forthwith, if appeHant not required is In in any ;a:l ‘ . Sd/- . y Dhirendra Mishra t Sdl- > Judge 7 7 , 5 t 1m. Cha$irakar J“ ge r, ‘ ‘” ”x ‘ y t, / “WW1 _/ ‘1