^l HiQH COURT OF CHHATTiSGARH AT BiLASPUR [Accusedl RESPONDENT ii-E.SHRiT.P.St A5 Kaiicharan S/o Aadna Gond, Aged about 50 years, resident of village SJkakolam, presentiy Ghuddeva, P.S. Bankimongra, Tehsil Katghora, District Korba (CG) State of Chhattisgarh, Iftrough P.S. Banktmongra, Tehsi! Katghora, District Korba (CG) Smt. Meera Jaiswai, counsei for the appellant. Shri Rakesh Jha, Dy. Government Advocate for the Stats. JUDGMENT i?$r03.2008) T.P. SHARMA. J This appsa! is directed against the judgment of conviction and order of sentence datsd 20.2.2002 passed by Additiona! Sessions Judge, BiSaspur In S.T. No. 21 7/2001 whereby isarned Additional Sessions Judge, after holding the accused/appsliant guiity for committing the murder of his wife Aasin Bai and causing disappearance of evidence of criminai case convicted him under Section 302 and 201 of the IPC and sentenced to undergo imprisonmsnt for lif®and pay fine of Rs. 1000/- under section 302 of the IPC and to undergo Rl for three years and pay fine of Rs. 100/- undsr section 201 of the IPC. In default of payment of fine to undergo further rigorous imprisonment for 1 month. 2. The case of the prosscution in brief is that the appellant and ths deceased being husband and wife used to reside in the sams house at -Z-- viliage Sikakolam. When Aasin Bai was not seen by the viiiage people residing in the neighbourtiood of the accused/appeilant for about 8 days prior to 10.2.2001, they inquired the accused/appeliant about her whereabouts on which he toid them ftat she had gone to her matsrnal home at Biiaspur, and then tried to run towards the river but he was caught hoid by the villagers. On 10.2.2001 some foul smell wss aiso emanating from the houss of the accused/appeliant, matter v/as reported in Police Station, Bankimongra vide Rbjnamcha Ex. P-8. Police reached the spot.The door of the room where the dead body was lying, was packed by erecting a brick waii. Aftsr interrogaiion, the wail was demoiished and dead body of Aasin Bai was found inside the room. lyierg intimation Ex. P-11 and Dehati NaiSisi Ex. P-12 were registered. After summoning the witnesses vide memo Ex. P-1 inquest was conducted over the dead body of Aasin Bai vide Ex. P-2. Spot map Ex. P-3 was prepared. Dead body of Aasin Bai was sent Tor autopsy under Ex. P-10. Autopsy was conducted by Dr. R.S. Kanwar PW-1C vide report Ex. P-S. The dead body was highly decomposed. Fracture of occipital bone was found. Cause of death was opined shock due to head injury. F1R Ex. P-7 was registered and spot map Ex. P-4 was prepared by the Patwari. Statements of the witnesses were recorded and after completion ofthe investigation, charge sheet was filed in the Court of Judicia! Magistrate First Class, Katghora, who in turn committed the case to the court of ssssions, Biiaspur from where learned Additiona! Sessions Judge, Biiaspur, received the same on transferfor trial. 3. Aftsr hearing the parties charges were framed against the accused/appellant for the offences punishabie under sections 302 and 201 of the !PC. in order to prove guiit of the accused/appellant the prosecution has examineti 12 w'rtnesses. Statement of the accused/appeltant was -?- ^^A^^' recorded under section 313 of the Code of criminal Procedurs, 1973 in which he denied the materiai appearing against him in the and pleaded his innocence and false impiication in She crime. After hearing the parties the ;' triai Court has convlcted and sentenced ttie accused/appeliant as mentioned above. 4. Counsel for the oarties haard. evidence availabie on record as wei! as the judgmenf offhe trial Court perused. 5. Homlcidal death of Aasin Bai is not disputed by the accused/appeilant and othenwise aiso sstablished from the postmortem report Ex.P-8 and statement of Dr. R.S. Kawar (PW-10), who hasdeposed that on 11.2.2001 he conducted the post mortem 6ver the body of Aasin Bai which was at the stage of decomposition, noticed sweliing on the occipital region having dimension 2 'ff x 2 %" and fracture on occipital bone. injury was ante mortem and the cause of death was shock due to the interna! injury. 6. in order to estabiished the complicity of the accused in the crime in qaestion the prosecution has relied upon the circumstantiai evldence appearing against the accused/appeilant such as (i) accused/appeilant and the deceased used to reside in the same house as husband and wife, and (ii) dead body of Aasin Bai was recovered from inside the room of the appellant and door was packed by erecting a brickwalS. 7. Shivdas FW-2 has deposed that in the viSlage meeting some viiiagers came and informed that wife of the accused/appeliant was not seen by the viliagers from some day. Kofrwar was also calied in the meeting. When inquiry was made to the accusedteppeilant in this regard, he told that she had gone to her matemal home at Biiaspur. One of the rooms of the 1 — /'f^~\ ,f 'ftlfc: 1 house of the accused/appellant was closed, foui smell was coming out from the room. On inquiry by the villagers, the accused/appeltant tried to run away but he was caught hold by them and the matter was reported to the poiice. Statement ofthis witness is supported by Ghundul (PW-3), Moienu,. (PW-5), Putu alias Ranglal (PW-7), Bhanwar Singh (R/V-8) and Chirawan,' Singh (PW-9). investigating Officer K.N. Sharma (PW-12) who has deposed in his evidence that Rojnamcha No. 310 (Ex. P-8) was recorded on the basis of the informatlon given by Shiv Das (RW-2) regarding emanation of some fou! smeil from the house of the accused/appeliant and FIR (Ex P-7) was registered. Thereafter, he proceeded for the place of incident where one room of the house of the accused/appellant was found ciosed by erecting a brick wali. Brick wall was demolished on his direction and dead body of Aasin Bai vras found inside the room. After registering the Dehati NaiSlsi Ex. P-9 and merg Ex. P-11, the dead body was sent for autopsy under Ex. P-10. Ghundui (PW-3) has deposed in his evidence that on the directions of poiice the brick wall was demolished by him and dead body of Aasin Bai was recovered from the room. 8. No expianation was offered on behaif of the appeliant that (i)- how the dead body of his wife was found inside the room and by whom the door of the said room was closed by erectino a brick wall; (») how Aasin Bai sustained injuries over her head; (iii) how she died; (iv) why did he not make any search of his wife when she was not present in his house for about 10 davs. These ars the auestions which are reauired to be answered by the appellant because the dead body of his wife was found inside the room which was in occupation of the appellant and the door of the said room was ciosed by erecting a brick wall. This special fact must be within the knowtedge of the appeiiant and he is required to explain the same ,?:s"5^s S'^.l?i-»i— ^. [j 'SSSSg^ B -s- satisfactorily in accordance with the provisions of seetion 106 of the Evidence Act. 9. Whiie dsaiing with matter of offence committed in complete sscrecy,, j in the matter of Trimukh Maroti Kirkan Vs. State of SWaharashtra , reported in 20S6 AIR SCW 530S Hon'bie the Apex court has hetd that in the cases where the crimes are committed in complete secrecy inside the house, inmates residing in the said house are required to expiain the cireumstances. The retevant portion is reproduced as under: 'Tfte demand for dow/y or money from ihe parenis of the bricte has shcwn a phermmenai incfease in last few years. Cases are frequenVy coming befoie the Courts, where the husband orin- laws have gone to ff?e extent of kslling ttve bride if fte demand is not met The crimes are genetally committed in complete secrecy snsicte fte house and it becomes very difficult for ffie pmsecuSon to lead evisSsnce. No member of the famiiy, even ifheisa witness af ff3®crime, wouk! come foiwaid te depose ageunst anc^her family member. The neyhlsours, whose evktence may be ofsome assistance, are generaSty reluctant to ctepose in Court as ffiiey want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inwlpate the real accused except isgafding the demand of money or dowry and harassmeni caiisad to the bride. But, it does not mean that a crime committed 'm secrecy or msicfe ttw house should go unpunished. Ifan affence takes place mskSe Hw privacy ofa tmuse and in such circumstances where ttw assaiiants have ali the opportunity to plan and commit ffise oftence at STB ffroe and in circumstances of ffiser choics, jt wll be extremety difflcutt for the prosecutton to !ead evictence to establish ffve guiSt of the accused if ie strict principie of circumstantsal evktence, as noffced above, is insisted upon by fte Couris. A Judge does not preside ovar a !'x -/? i5 criminaS trial meiely to see that no innocent man is punished. A Judge a!so preskles to see ihat a guitty ma does not escape. Boff? are public duffes. (See SSrtand V. Diwctor of Publw Pmsecution 1944 AC 315- quoted -Mih approval by Arijit Pasayat, J in Siate ofPunjab V. Kamail Singh (2003) 11 SCC 271). The law does not enjan a dirty on ie pmsecuSon to lead evkSence of such character which is almost impossSble to fce fed or s? any rate extremely diWcult to be fed. The duty on the prosecuffon is to lead such evklence which it is capable afleacSng, having regard to ttw facte and circumstances of the case. Here it is necessary te keep in mind Secffon 106ofSw Evidence Act which says that when any faci is especiaiSy within fte knawledge of any person, the burden of provsng fat tect is upon him. lllustraffon (b) appended to ffiiis section thrcsw some light on fhe content and scope of Ws provision and it reacte; (b) A is charged wth traveling on a railway without ticket, The ibureten ofproving that he had a Scket is on him. " Where an offence like murefer is committed in secrecy insicte a house, ffiie iniSal bufden to establish (fte case wou/d uncioubtecBy be upon the prosecuSon, but tto nature and amount af evidenceto beledby it to establish the charge cannot te of the same degiee as is requified in oVher cases of drcumstantiai evidence. The burden would be of a comparaVvely Kghter character. In wew of Secfion 106 of the Evidence Act there will be a corresponding bufden on the inmates of the house te give a cogent explanation as to how e crfme was committed. The Snmates of the house cannot get away by simply keeping quiet and offering no explanaSon on the supposed piwnise Vnat ttie bureten fo establish its case lies entireiy upon the proseGutson and fee?B is no duty at all on an acciised to ofter any explanation." !t is aiso held that the accused is required to explain the cireumstances appearing against him and if no exptanation is offered or untrue explanation is offered then the same becomes an additional link strong circumstance against him. !''aiF:l!TP:] "-iifc.l .- ..,/'' .,'~ :;") '.'. ->- 10. In the present case the cireumstances appearing against the accused/appellant was to be answered by him only but he has not offered any expianation either in his statement recorded under section 313 of the Code of Crimina! Procedure or by adducing any svidence in ' defence. Siience ofthe inmate i.e. accused/appeliant is an additional link in the chain of circumstances. 11. In the matter of State of U.P. Vs. Ashok Kumar Shrivastava reported in 1992 Cri.L.J. 1104 (SC) it has been held by the Apex Court that the circumstances relied upon must be found to have been fuity established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt. But that does not mean that the prosecution must meet any and every hypothesis put forward by the accused, however, fat-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the siightest doubt because the law permits rejection only tf the doubt is reasonabie and not otherwise. 12. According to the evidence adduced on behalf of the prosecution it is crystal clear that the appeliant and the deceased used to reside in the same house. His wife died as a result of the head injury. Her dead body was found inside the room of the appellant and the door of the said room was closed by erecting a brick wall. Appeliant is a mason. Foul smeil was emanating out of the room of the-appellant and on inquiry being made he offered a false explanation that his wife had gone to her materna! home. These circumstances exclude all possibilities and hypothesis that the accused is not the author of the crime or somebody e]se is ths author of the crime. ^ -8 - 13. Thus it is established that theappeilantis the person who caused homicidal death of his wife Aasin Bai and caused disappearance of the evidence of criminal case. 14. It is argued on behalf of the appellant that there was no motive o,n the part of the appeilant to cause homicidal death of his wife and therefore; the act of the appellant does not travei beyond exception 4 of section 300 of the IPC and at the most appellant can be convicted under section 304-11 of the !PC. 15. In the present case, there is no explanation from the appellant nor any evidence has been adduced in defence to show that prior to causing homicidal death there was some quarrel or some exceptional circumstances which compelled the accused to commit the crime in question. Moreover, motive is an aid in criminality and the homicidal death has been proved otherwise also. The motive may be inferred from the other circumstances. In this case other circumstances are sufficient to infer that the accused- appellant has intentionaliy caused homicidal death of his wife. 16. In view of the aforesaid discussion we are of the considered view that the tria! Court has not committed any iliegality or irregularity in convicting and sentencing the accused/appellant as mentioned above for committing murder of hls wife Aasin Bai and causing disappearance of evidence of criminal case. The impugned judgment does not require any interference from this Court. 17. Consequently, the appeal being devoid of merit liable to be dismissed is hereby dismissed. Sd/- Sunil Kumar Sinha Judge Sd/- T.P. Sharma Judge M