:;»..\ 1 HIGH COURT OF CHHATTISGARH AJ'Blj-ASPUR (Division Bench) Coram:Hon'ble Shri T.P. Sharma & Hon'ble Shri R.N.Chandrakar. JJ Criminal Appeal No. 686 of 2005 Appellant (in j'ail) Vs. Respondent Kala Ram, aged about 52 years, son of Shri Ganga Ram Yadav, resident of Non Birra, Police Station Pali, District Korba (CG). State of Chhattisgarh through the Police Station Pali, District Korba (CG). (Criminal Appeal under Section 374 (2) ofthe Cr.P.C.) Present: Mr. Akhilesh Mishra with Shri Avinash K. Mishra, counsel for the appellant. Mr. Akhil Mishra, Govt. Advocate for ths State. JUDGMENT (Deliveredon 6-9-2011) Per T.P^Sharma^J^ ^. 'v- 'v ^ss Challenge in this appeal is to the judgment of conviction and order of sentence dated 2-7-2005 passed by Sessions Judge, Korba in Sessions Trial No.11/2004, whereby and whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife Tijiya Bai and concealing the evidence of criminal case, convicted the appellant under Sections 302 & 201 of the IPC and sentenced him ^ to undergo life imprisonment and to pay fine of Rs.1000/-, in default of payment of fine to further undergo Rl for months and Rl for 3 years and fine of Rs.500/-, in default of payment of fine to further undergo Rl for month respectively. Both the sentences are directed to run concurrently. Conviction ofthe appellant is impugned on tlie ground that without any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of prosecution, appellant and unfortunate deceased Tijiya Bai being husband and wife were residing in the same house. The relations between them were strained. On account of strained relationship on 31-1-2004 appellant assaulted his wife Tijiya Bai by stick and caused her instantaneous death. After her death, appellant informed the villagers that the deceased died as a result of ill-ness and dead body of his wife was buried in hurry. On the basis of suspicion, Raghuvansh Ram (PW/1) lodged a report in Police Station vide Ex.P/6 and after obtaining permission vide Ex.P/12 dead body ofthe deceased was exhumed. Inquest over the dead body of the deceased was prepared vide Ex.P/1, blood stained soil and plain soil were recovered from inside the house of the appellant and deceased vide Ex.P/3, spot maps were prepared vide Ex.P/4 and P/5. Dead body of the deceased was sent for autopsy to Block Medical Officer, Community Health Centre, Pali, where Doctor S.S. Paikra ^>1 ^9 -:.:.s^ew^^ .n' (PW/12) conducted autopsy vide Ex.P/9 and found the following symptoms and injuries. i) ii) i) ii) iii) Dead body was at the stage of de- composition. Swelling over the body and abdomen, eyes were closed and congested, pupil hazy, tongue protruded ant and bitten between the teeth, blood mixed froth CQming out from the mouth, hand pressor applied over the chest. Rigor mortis passed off, faul smelling coming from the body, skin pealed off.from face, left arm, abdomen, back of neck, chest and medial side of the thigh, bulles eruption present on all extremities and abdomen which contain fluid, skin of palm and sale are still infant. Hair of the head easily pluckable and pubic hair saved. Iniuries: Lacerated wound - of 2"x %" x1/4" over the chest near medial end of clavical, some clotted blood still present. Bruise 3"x %" over left side of the chest, black in colour, an dissection of face, neck, back of the head. There are haematoma preserit. In internal examination: Fracture oi right clavical bone and 3 , 4 & 5 ribs and internal organs were congested and opined that mode of death was shock and death was homicidal in nature. 5. Dehati mergintimation was recorded vide Ex.P/11 and Dehati Nalsi was recorded vide P/1 5. Merg was finally recorded vide Ex.P/16 and first information report was lodged vide Ex.P/17. During the course of investigation, appellant was taken into custody and he made a discloser statement of stick vide Ex.P/2 7. 8. and the same was recovered at the instance of the appellant vide Ex.P.3. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). After completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Khatgora, who in turn committed the case to the Court of Sessions Judge, Bilaspur from where the case was made over to learned 4 Additional Sessions Judge, Bilaspur for trial. During pendency of the case after framing the charge at the stage of evidence, new Sessions Division, Korba was created and since the case falls within the jurisdiction of Sessions Division Korba, it was transferred to court of Sessions Judge, Korba, who finally decided the case and convicted the appellant under Sections 302 and201 ofthelPC. In order to prove the guiltof the appellant, prosecution examined as many as 13 witnesses. Statement of the accused was recorded under Section 313 ofthe "Code" of Criminal Procedure, in which he denied the circumstances appearing against him and innocence and false implication is claimed. By examining his son Satyanarayan (DW/1) appellant has taken defence that his wife Tijiya Bai died as natural death as a result of injury sustained by her as she fell down over a big stone (Chhakki). Learned Sessions Judge after affording opportunity of hearing to the parties, convicted and sentenced the accused/appellant as aforesaid mentioned. 6^ 9. We have heard learned counsel for the parties and perused the judgment impugned as also record ofthe trial Court. 10. Learned counsel appearing for the appellant vehemently argued that conviction is based on circumstantial evidence. While dealing with the question of conviction based on circumstantial evidence, the Supreme Court in the matter of Kusuma Ankama Rao v. State of A.P. has held that in case of conviction based on circumstantial evidence, prosecution is required to satisfy the following circumstances, i. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; ii. the facts so established should be consistent only with the hypothesis ofthe guilt ofthe accused,that is to say, they should not be explainableon any other hypothesis except that the accused is guilty; iii. the circumstances should be of a conclusive nature and tendency; iv. they should exclude every possible hypothesis except the one to be proved;and v. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 11. Learned counsel further submits that in the present case prosecution has utterly failed to prove the complete chain of circumstances to maintain the conviction of the appellant as has '^0 <9 '2008 AIR SCW 4669 '^-i- been awarded by the court below. Mere suspicion however strong, it may be, cannot take place of legal evidence. 12. On the other hand, Mr. Akhil Mishra, learned Govt. Advocate for the State opposed the appeal and submits that prosecution has proved the complete chain of circumstances and the same is sufficient to prove guilt of the appellant. .After appreciating the evidence available on record, learned Sessions Judge, Korba has rightly convicted and sentenced the appellant as aforementioned. 13. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. 14. In the present case, homicidal death of deceased asa result of fatal injuries foundover the body of Tijiya Bai, has not been substantially disputed on behalf of the appellant. On the other hand it is also established by the evidence of Dr. S.S. Paikra (PW/'12) and autopsy report (Ex.P/9), that the death of Tijiya Bai was homicidal in nature. 15. As regardscomplicity of the appellant in the crime in question is concerned, prosecution has tried to prove the following circumstances; i) ii) iii) J Appellant and deceased were residing together in the same house; Relation between the appellant and deceased was not cordial and Deceased died as a result of fatal injuries found over the chest but the appellant, who was under the obligation to inform the Police, has not informed the Police and by suppressing the factum of homicidal death he has succeeded in burying the dead body in hurry. ^T (^ 16. 17. Appellant has examined his son Satyanarayan (DW/1) and tried to take false defence that his wife died as a result of injury sustained by her as she fell down over a big stone (Chhakki) which is an additional circumstance against the appellant. As per evidence of PW/1 Raghuvansh Ram (PW/1), on account of suspicion he lodged Rojnamcha and thereafter Police has enquired into the matter. As per evidence of PW/2 Ramesh- Kumar and PW/6 Laxman, present appellant informed them that his wife - Tijiya Bai died and he demanded money. Onbeingasked,appellantrepliedthathis wife was having pain in her chest for the last 3-4 days and thereafter she died. As per evidence of PW/8 Narayan Prasad Shrivas, he attended the funeral of the wife of appellant where he was informed by the appellant that his wife died due to pain in her chest. By examining hisson Satyanarayan (DW/1), present appellant has taken defence that his wife Tijiya Bai fell down on the stone and received some injuries and became unconscious and after some time she died. He called some persons and buried the dead body. In his cross examination he has admitted the fact that there was injury over the chest of the deceased. The defence taken by the appellant by examining DW/1-Satyanarayan, son of appellant, is contrary to the evidence of PW/2 Ramesh, PW/6 Laxman and PW/8 Narayan Prasad Shrivas. Defence has not cross- examined these witnesses relating to the aforesaid explanation given by the appellant. Infer alia, autopsy report and evidence of Dr. S.S. Paikra (PW/12) reveal that the deceased died as a result of grievous injuries found over vital parts of the body i.e., chest and fracture of Clavical bone and the death was homicidal in nature. The evidence of these witnesses clearly establishes the fact that the deceased was ....-.-.-... ...-^--..__, ^w. residing with appellant in the same house. Deceased had not died naturally but died as a result of injuries found over her chest. Deceased has not received any injury as a result of falling down on the big stone (Chhakki). If all these circumstances are considered together, the only hypothesis of guilt of appellant would be possible that the appellant was the person who had committed the murder of deceased Tijiya Bai and also excludes the possibility of innocence of the appellant. 18. As regards the question of concealing the evidence ofcriminal case is concerned, dead body of the deceased was buried in the burial ground by appellant including other persons and at the time of last rituals no one objected it. The appellant has not hidden the dead body or concealed the evidence of criminal case. 19. Consequently, conviction and sentence ofthe appellant under Section 201 of the IPC is not sustainable under the law but the conviction and sentence of the appellant underSection 302 of the IPC is sustainable under the law. 20. For the foregoing reasons, the appeal is partly allowed. Conviction and sentence of the appellant under Section 201 of the IPC is hereby set aside. Conviction and sentence of the appellant under Section 302 of the IPC is hereby maintained. Sd/- T.P. Sharma Judge Sd/- R.N. CHANDRAKAR. Judge *ri\ Raju