@ HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.754/2003 APPELLANT RESPOBDENT Raghunandaa Singh s/o Late Dharam Singh Thakur age 29 vears, R/o Khairagarh, Ward No. 5 District Rajnaadgaon ,'/ State of Chhattisgarh, fhrough Police Station, Mohaa Nagar, District Durs APPEALOZS 374 (2LOFTHE CODE_Of CRIMINAL PROCEDURE Appearance: Shri U.K.S.Chandel, counsel for the appeBaiit. Shri Sandeep Yadav, Dy. GovemTnent Advocate for fhe State. Divisiou Bencli:- Hoa'ble Shri T.P. Sharma 8s Hon'ble Shri R.L.Jhanwar.JJ Per T.P.Sharma, J. ORALJUDGMENT (29.9.2010) 1. ChaUenge ia fhis appeal is to titie judgment of conviction aad order of sentence dated 8.4.2003, passed by the 6th Additional Sessions Judge, Durg (CG) iu Sessions Trial No. 205/2002, whereby aad whereunder, the learaed Additional Sessions Judge .after holdiag fhe appeUaiit guUty for commission of culpable hoiuicide amounting to niurder of Meera Tbakur, convicted the appeUant undet Section 302 of fiie IPC and sentenced hixu to life imprisonment wifh fiae of Rs. 1000/- aad iu default to further undergo 6 inonfUs R.I. \';' .ai.K.Bia 'S'i r^ ""•"''i^stSS^ 2. The conviction is^impugned on the grouad fhatwifliout any iota of evidence, the learaed AdditLonal Sessious Judge convicted and sentenced tlie appeUaat as aforeiuentioned and fhereby coiiiinitted illegaUly. ••» 3. As per case of prosecution present appeUaut entered into agreeiaent for luarriage wifh fhe deceased Meera Thakur, resident of viBage Gopfldtola, P.S. Salhepara, District :/. Rajnandgaon. In fhe iatervepiag night of 21.3.2002 aad 22.3.2002, appeUant came to Hotel Samrat along with fhe deceased aad after depositmg rent for 1 day, stayed wifh fhe deceased ia room No. 132. At about 6.00 am on 22.3.2002, appeUant went out froui fh.e Hotel after informiug Waiter Suiul ui presence of Atmaiam (PW-1), Maaager that he wffl coine back after 10 miautes, but he did not come back. Atmarain and Sunil knocked fhe door of Room No. 132 and finally fhey pushed the door ofthe rooiu where they saw dead body ofthe deceased lyius on the bed in pool of blood. Then they infonned the PoUce. Dehati Nalishi Ex. P/15 was recorded. Unkaown ruerg tatitaation was recorded vide Ex. P/l. Investigating Of&cer left for fhe scene of occurrence and after suuimoEdng the witaesses vide Ex. P/5, iaquest over ftie dead body was prepared vide Ex. P/6. Dead body was sent for autopsy to Govt. Hospital, Durg vide P/17 aad a teatu ofDoctors, consisting ofDr. N. Shiade (PW-7), Dr. Bhs^at and Dr. Paadey conducted autopsy on the dead body vide Ex. P/22 and fouiid foUowing injuries ; i. One lacerated wouiid of 2 x Vz cin up to skin deep over right side of the nose. ii. Bruise wifh sweBiiig of atl over fhe right side of face iii. Bluish discoloration starting from fhe neck gouig aaterior up to left side ofneck of6x29 cia. long. iv. Abrasion of '/z x % ciii over chiu ,^-.^ES3^^ fc ^. v. Lacerated wsiuiid over r^ht side of neck of 1 cm x */2 cia over lateral aspect. vi. Penetrating wound of 1 x '/2 ciu aaterior to wound No.5. Multiple scratches on the niidlLae aaterior and right side of neck. Laceratcd wound below left ear about 2x1 cm. vii. Penetrating wounds were present on fhe area nuddle chest of8 x 6cni on fhe left side on neck iu ftie upper half vtii. Abrasion of l.x l";cia was present over right side supra clavicular area. \ ix. Abrasion of 2 x 2 cin over antero left surface right elbow. x. Toofh bite aiark (huniaa) was found over right forearai lower l/3rd in 3 x 4cni area (aatero inedial part). xi. Incised wouad of 2 x ^2 cm. x skin deep aad 3 x Yz cin up to skta deep was found ta postero niedial parts lower 1/3 rd on fore ann. xii. Incised wouad of 2 Vz x 1 cm up to bone deep lower antero lateral aspect ofright tadex finger. xiii. 5th, 6th and 7th left ribs were found fractured. xiv. Plenral cavity was fuU ofblood. Mode of death was shock and haeinorrh^e due to visceral uijuiy (heart). Clothes, under garaaents, sUppers and other ardcles, enipty bottle of Uquor were seized froia room. No. 132 vide Ex. P/4. One blood staiaed knife in paper, ia which, name of fhe deceased was written was seized from fhe room vide Ex. P/16. Blood stamed bed sheet and oftier clothes, one ganuent contaiuuig photograph offhe appeUant aud deceased was seized vide Ex. P/23. Register of Notaiy was seized vide Ex. P/24. Sealed clofhes of the deceased were seized vide'Ex. P/7. Accused was taken in.to custody. He niade disclosure stateiiient of Baaiyau aad kmfe vide Ex. P/8. Clothes of fhe accused vvere seized vide Ex. P/9. Bauiyan was seized at fhe uistauce offhe accused vide Ex. P11. •"—it. ••^sy's gs :'l;.. ^as^.^ l-']!KI«i'siiS Nails of the accused •yere cut aad seized vide Ex. P/10, Patwan prepared spot map vide Ex. P/14. Statements of the witnesses were recorded iinder Section 161 of the Code of Criminnl Procedure, 1973 (in short the Code). Identification Parade was conducted by District.Judge, Durg vide Ex. P/12, in which, accused/appeUant was identified by Atinaram (PW-1). Seized articles were serit for cheinical exainiaation vide Ex. P/20. Presence ofblood on ttie clecthes, nails aad Sando Baniyau ofthe ,'•'• appeUaiitwas confirmed vide E<x. P/25. 4. After coinpletion of iuvestigation, chai^e sheet was ffled before the J.M.F.C. Durg, who ia tum, coiBjaitted fhe case to the Court of Sessions, Durg, froui where, the leamed Additional Sessions Judee received the case on transfer for trial. 5. In order to prove fhe gtult of ttie accused/appeUant, prosecution has exainiaed as inauy as 8 wituesses. Accused/appeUaatwas examiued under Section 313 offtie Code, where he denied fhe circuiastances appearing agaiast Iiim, innocence aad false implication ia crlme ia question was claimed. 6. After afFordiag opportunity of hearuig to the parties, leamed Additional Sessions Judge convicted aad sentenced fhe appeUaat as aforeiaentioned. 7. We have heard Shri U.K.S.Chandel, leamed counsel for the appeUaat aad Shri Sandeep Yadav, leanied Dy. Groveniment Advocate for fhe State, judgment impugned aad record of the Court below perused. 8. Learaed counsel for fhe appeUaat vehenienQy argued that conviction of fhe appeUant is based on the circurastantial evidence. In order to convict the appeBant on the basis of cu-cuiiistautial evidence, prosecution is required to prove aU 1 ...^.^' ^^ chaia of circiuastarices suf&cient to prove fhe guUt of fhe appeUaut and his uraocence aad to rule out fh.e possibility of culpability of ofher p^rsons. However, in fhe present case prosecution has not proved aU fhe chaia of circunistances. Waiter Sunil was the best witaess, but the reasons best known to fhe proseciition; fb.ey have not examined Waiter Suiul; they have not proved entry register of fhe Hotel. The accused/appeBant was taken into custody on,;second day, but he was subjected for identification after a lapse 'cf l Vi inonth. Evidence of Investigating Officer, P.S. Khaja (PW-5) is full of contradictions aad oinissions. It was a bliad inurder. Knife, botfle of liquor and other ardcles were found ia the rooni of Hotel, but they were not examiaed by fhe Expert relating to fuigerprints of the persoa present tu fhe rooin to exclude fhe possibUity of presence of other persons. He furfher argued that ia absence of complete chain of circiiaistances, fhe'appeUaat is entitted for acquittal, who is in custody for last 7 years. 9. On fhe ofher hand, leamed counsel for fhe State veheinently opposed the petition aiid subiaits fhat conviction is tiased ou circuinstantial evidence. Prosecution has proved the foUowiag circuiastances : i. The appeUaat and deceased- Meera Thakur had eatered iato agreeuient for laarriage ii. AppeUant came with deceased Meera Thakur iu Samrat Hotelon 21.3.2002 iii. Appellant stayed with Meera Thakur ia rooni No. 132 after payment of charges iv. On 22.3,2002, at abput 6.00 am, fhe appellant came before Atmaram (PW-1) aad Waiter Suiul, who were present at the Counter and told fheia that he wfll coiae back after 10 iniuutes, but he did not coine back. rt v. Blood staincd slofhes of fhe deceased have been recovered at the iustaace of the appellaat, nails of the appellaut were cut and seized, which were examiaed by fhe Expert aad presence ofblood was confinned on fhe nails. If these circumstances are considered togefher fhen only hypothesis would be possible fhat the appeUaat alone has cominitted the aforesaid offence and except the appeUant nobody has coinuutted the ofFence |tnd appellaat is not innocent. •^. 10. In order to appisciate ai^uuients advanced on behatf of the parties, we have examiued fhe evidence adduced on behalfofftie prosecutoon. 11. In fhe present case, hoinicidal death as a resiilt of fatal injury foijnd over fhe body of fhe deceased Meera Thakur especiaUy, ou the heart, Uyer, hiugs, chest aud neck has not been substaatiaUy disputed on behalf of the appellant, on fhe ofher hand, it is established by the evidence of Dr. N. Shiude (PW-7) and autopsy report Ex. P/22 and death was hoinicidal ia nature. 12. As regards coniplicity ofthe appellaat ia criiae ia question. is conceraed, the convictioa is based on the circuiustautial evidence. In case of conviction based on circumstantial evidence, as held by the Apex Court in ftie inatter of C. Chaasa Reddv v. State of A.P.. AIR 1996 SC 3390 : (19961 10 SCC 193, the prosecution is required to prove fhe followiag ingredients : i. the circuiustauces from which an iaference of guilt is sought to be drawn, must be cogently and finiily estabUshed; ii. fhose circuaistaaces should of a deiflaite tendency unerringly poiating towards the guUt ofthe accused; iii. fhe circum.staaces takeii cuiaulatively should fona a chaia so coniplete that fhere is no escape froin fhe r .^^h.. •ii" rf-iSfe ^ ! 1 °"il,,_ '"1y,^y "i'^':.TS^i?V^/i" conclusioii fhat withiu aU huniaa probabilily the criine was coirmutted by the accused aad none else; aad iv. the circumstaatial evidence iu order to sustain convictibn inust be complete and iacapable of explaaation of aay ofher hypothesis thaa fhat of fhe guilt of fhe accused aad such evidence should not only be-con'jSistent with fhe guilt of fhe accused but sUould be incoBsistent wifh bis iniiocence. 13. As per evidence ofAtainaram (PW-1), Manager ofthe Hotel Samrat, on 21.3.2002 he was present at the counter when appeUant canie wifh a womaa for staying ia fhe Hotel. AppeUaut told his name as Raghunaadaa Siugh Thakur and the name of woiaan as Meera Thakur as his wtfe; at fhat tmie owner of fhe Hotel namely- Aiarik Siagh was also present. They allotted Rooin No. 132 to the appeUaat after receiviug Rs.120/- as rent for one day aad at about 9.00 pin, Waiter Suiul provided nieal in the room. for thein. On 22.3.2002, at about 6.30 am. when fhis witaess was present at fhe counter, fhe appellaut came at fhe counter aad told Waiter Sunil that he wUl come back after 10 uunutes aad he went away, but fhereafter he did not come back. He also directed to provide tea in his rooin. Waiter Sunil went to Rooaa No. 132, he knocked the door, but he did not receive any response fhen he told fhe iucident to this witaess; he along wifh. fhis witness agaui went to Room No. 132. The room was bolted froiii outside fhea they pushed the door and on openiag fhe door, fhey saw that body of fhat woinan, who came along with fhe appellant, was lyiag ou fhe bed covered with Saree. Then he telephoned the owner and on fhe du-ections of fh.e owner of the Hotel, they telephoned to Police; Police came aud iriquired fhe inatter. As per fhe report, he lodged ruerg intuaation vide Ex. P/1. Articles relating to flie wom.au aad bottle of Uquor along wifh 1 -^:;^i^N^. .s ;y .•.? .^ '^^et-f1' 2 glasses were seize4 from. the Hotel vide Ex. P/2. Knife was seized froia fhe back side of the bafhrooni. One docuiaent aad photograph of fhe woniaa aud the accused was also seized vide Ex. P/3. Blood staiaed clothes were seized vide Ex. P/4. Inquest was prepared vide Ex. P/5. He has not supported fhe factuai of niem.oraiiduiu, in which, Sando bardyaa was recovered vide Ex. P/11. He has speci&caUy deposed fhat he identified fhe appellaat in Jafl before fhe Tehsildar 'nde Ex. P/12. •^. 14. Defence has cross examiued fhis witaess at lengffa aud has vutuaUy suggested fliat the appeUaat was fhe person who came along wifh a woiaan to stay aad on second day he went away from fhe Hotel, but did not coine back. In para 8 of cross exaintaation, he has speci&cally deposed fhat because the appeUaiit stayed ia fhe Hotel, whom he has seen, he has identified the appeUaut at fhe tirne of identification. Dev Sin.gh (PW-2) has deposed fhe factam. of suspicious death of Meera Thakur. Shri S.R.Mandavi (PW-3) Executive Magistrate, who has conducted fhe test identification parade has deposed that iaside the Jail he has conducted the test identification parade and Attuaraai has identified the appeUant. In fhe present case, T.I.P. was conducted on 3.5.2002 while accused was arrested on 23.3.2002 theicby prosecution has conducted fhe T.I.P. after a lapse of 1 Yz months. PW-1 Atmarani, Mauager ofHotel Samrat has categoricaUy deposed fhat appeUaat was the person, who caiae on 21.3.2002 along with fhe deceased; he stayed ia rooiu No. 132 along wifh the deceased. On second day, i.e. 22.3.2002, be went out froni the Hotel after teBiug fhat he will com.e back after 10 minutes, but he did iiot coine back. Photographs of fhe accused along witti the wom.au aad one docuinent Ex. P/23 were seized from rooin No. 132. He has identified the appeUaiit ia jail on the ground that he has se.en him earUer in his hotel where fhe i -:-:^"^.. had stayed. These facts are uiicontroversial. If those are consideied together tben ordy the iaference would be possible fhat ia fhe intervenmg night of 21.3.2002 and 22.3.2002, appeUaiit aad deceased were present ia rooia No. 132 of hotel Samrat. Os. second day momiag, appeUant went out side fhe rooin of tiie Hotel -and dead body of the deceased was found in the rooni. <1:: .'.'. 15. Defiiiitely, offence has been coiiunitted in secrecy aad appeUant was under obligation to offer aa explaaation that how fhe deceased received injury aud died, but fhe appellant has not offered aay explauation. In fhe present case, T.I.P. has tieen conducted after a lapse of 1 '/2 months but, as per evidence of Atmaraia (PW-1) he has identified fhe appeUant on the ground fhat he has stayed in his Hotel aad he was having sufi&cieat opportunily to see him., fherefore, delay in. T.I.P. is not fatal for the prosecution. 16, In case of ofifence cominitted in. seciecy aad explaaation offered by fhe person present at the place where offence has been coiauutted, wlule dealiag with the same question. iii fhe niatter of Trimukh Marotl Kirkan v. State of Maharashtra1 wherem. fhe Suprenie Court has Iield that ifthe offence was coiiunitted ia the dweltmg house, where fhe husbaad also resided and if fhe accused husbaad did not offer any explanation. as to fhe uijuries received by his wife or if the explanation is false, thea fherc is strong circiuiistance which tndicates ttiat he coimnitted fhe criine. Paragraphs 14 axid 15 are relevaut and read as foUows: 14. If aa otEence takes place iaside the pnvacy of a bouse aud ia such circuinstances wherc fhe appeUauts have aU the opportunity to plaa and commit fhe offence at fhe time aiid ia cucutnstaaces of ' (2006) 10 SCC 681.. ^^^&''^"1^'\^ :'w,- ''».. ""'S.vseef 10 •^ their choicte, it wiU. be extreinely dif&cult for fhe prosecution to lead evidence to estabUsh the guilt of the accused tf fhe sta-ict principle of ctrcumstantial evidence, as noticed above, is iasisted upon by the courts. A judge does not preside over a cruauial trial inerely to see fhat no iruiocent nian is punished. A Judge also presides to see that a guflty nian does not escape. Bofh are public duties. (See Stirland v. Director-of public Prosecutions (1944 AC 315 — quoted wifh approval by Arijit Pasayat, J. ia State ofPuryah v. Kama.il Singh {(2003) 11 SCC 271}. The law does not enjoia a duty oa fhe prosecution to lead evidence of such character which jis altnost impossible to be led or aay rate extreinely dtfficult to be led. The du1y on fhe prosecution is to lead such evidence which it is capable of leading, having regard to the facts aad circiuiistaaces of the case. Here it is necessaiy to keep in Tnind Section 106 of the Evidence Act which says that when any fact is especiaUy withia the kaowledge of aay persou, the burden of proviag that fact is upoa Tiim. lUustration [b] appended to this section throws soine l^ht on the content aad scope of Ihis provision and it reads: "(b) A is charged with traveltuig on a railway without ticket. The burden of proviag fhat he had a ticket is on him." 15. Where an ofFence like inurder is coinmitted iu secrecy inside a house, the initial burden to establish the case would iiadoubtedly be upon fhe prosecution, but the nature aud araouat of evidence to be led by it to establish fhe charge cannot be of fhe same degree as is requiied ia other cases of circuoistaiitial evidence. The burdeu would be a coinparatively lighter character. Inview of Section 106 ofthe Evideuce Act there wfll be a corresponding burdeu on fhe iaiaates of the house to give a cogent explaaation as to how ftie crime was coinmitted. The mxaates of th^ house caanot get away by simply keeping quiet aud offering no explaaation on fhe supposed preinise that the burden to estabUsh its case lies entirely upon fhe prosecution and there is n.0 duty at all on aa accused to offer aay explatiation. ^ 17. While dealiag w^th the same question in the matter of Dhananjoy Chatterjee alias Dhana v. State of W.B.3, the Supreme Court has held (hat ia case of offence coimnitted in. secrecy, the person who was present iu such place is uader obligation to offer explanation that how fhe offence has been committed by hini. . In the present case, ^j-osecution has proved the foUowing ctrcum.stauces : <>,. i. The appeUant and fhe deceased Meera Thakur carae on 21.3.2002 at about 7.00 am at Hotel Samrat. u. The appellaut uitroduced hiiaself as Raghunandaa Thakur and the deceased as Meera Thakur as bis wife and after payiueut of rent, they stayed in rooin No. 132. iii. On second day, appeUant went out from the room after teUmg fhe Waiter Suiul fhat he will coine back after 10 nunutes. iv. Dead body of fhe deceased Meera Thakur was fouiid iuside fhe room. v. Nails aad clothes of fhe appeUant were also found stained wifh blood and the appellaat has not offered aay explaaation fhat wlio has caused iiijuries to the deceased. If fhese circumstances are considered togefher then only inference about culpability of fhe appeUaut excluding his inaoceuce would be possible that only the appeUaat has coiiunitted culpable honiicide amounting to inurder of Meera Thakur aud except the appellant none bas cominitted murder of Meera Thakur. (1994) 2 SCC 220 12 '^^ 18. After appreciatittg the evidence available on record, learaed Additional Sessions Judge has convicted aad sentenced the appeUaat as aforeruentioned. 19. On close scrutiny of fhe evidence, we do not find aay Ulegalily or infiriuity in the conviction aad sentence of fhe appeUaut. — 20. Accordingly, fhe appeal l>ejiig devoid of inerits is.Uable to be disinissed aad it is hereby disiaissed,- Sd/- T.P.Sharma Judge srVV~-•^y- Sd/- R.L. Jhanwar Judge /Li !.\ l.-'~ ^. !181 B»l