/(^ / i8 IN THE HIGH£QURT^FJUDICATURE AT BILASPURfC.G.) CRIMINM, APPEAL N0. ^^ OF 2006 APPELLANf\^ INJAIL /^'•\'\^ ..•«" vfr' C.W w .-•"' RESPONDENT Sunder Sai, S/o Mangam Uraon aged about 45 years, R/o Village Jhagarpur, P.S. Lailunga, Tahsil Gharghoda, District Raigarh, (C.G.) VERSUS State ofChhattisgarh: through District Magistrate Raigarh, Distt. - Raigarh (CG). MEMORANDUM OF CRIMINAL APPEAL V/S. 374 OF Cr.P.C. 1974 HIGH COURT OF CHHATTIS6ARH AT BILASPUR Cr. Aooeaf No. 235/2006 Single Bench: Hon'ble Shri Dilip Raosaheb Deshmukh. J. Sunder Sai Versus State of Chhatl'isgor'h Smt. Indira Tripa'thi, Counsel for the appellant. Shri Neeraj AAehta, Panel Lawyer for the State. JUD6MENT (Delivered on this ofc41ciay of May 2006) This appeal is directed against the judgment dated 14.3.2006 delivered by Shri A.K. Shrivastava, Sessions Judge, Raigarh in Sessions Case No.118/2005 whereby the appellant was convicted under Section 304 part'-II of the I.P.C. and was sentenced to rigorous imprisonment for five years and fine of Rs.1000/- and in default to undergo additional R.I. for one month. 2. The foctual matrix in brief is that deceased Jognibai was the wife of the appellant, Jagnibai had returned from vilioge (Ccimarga with Behrobai P.W.7 on 14.9.2005. There was a quorrel between the ap|%ltant and Jagnibai. The appellant pushed her on the ground. Behrobai P.W.7 who came there to fetch her saree saw the incident ond advised the appellant to tive peacefully and not to quarrel with Jagnibai. It is alleged that in the — ^- ,J l^ -z- intervenin9 night of 14 & 15 September 2005 the appeilant beat Jagnibai by kicks and throttled her to death. 3. On 15.9.2005 at 8.30 P.M. Jdgatram P.W.5 went with his brother GhuFau to Potics Station Laiiunga and todged merg intimation Ex.P.7 that his sister Jagnibai had expired, jwinting the needle of suspicion towards the appellant, who was his son- in-law. Inquest on the dead body of Jagnibai was conducted on 16.9.2005 vide Ex.P.6 and ths dead body was sent for post- mortem examination. Dr. Sunil Nigdm P.W.10 conducted the post-mort'em examination and found brui^ 6 x 5 cm over right side of neck. On disssction, he found effusion of blood which resisted woshing over the sterno-mcstoid muscle and over the tissues with blood clot over the ri9ht side of the neck. Another bruise 5 x 4 cm over the left side of neck was seen. On dissection, effusion of biood over the muscles and tissues which resisted washing was found. Bruise 20 x 15 cm situated over the upper and lower abdomen wos found. On dissection, the abdominal cavity was futl of blood and the blood clots wereseen over mesentery of lorge intestine at multiple places. On dissection of scalp, blood clots were seen over both parieta! portion of scalp along with effusion of blood over the tissue which resisted washing. It was opined that death of Jagnibai wcis homicidal 4. During investigation, case dimy statement of Ku. ^Aalti P.W.l dnd Ku. ICarmi P.W.2, both doughters of the appellant,was recorded in which the factum of extra-judicial confession by the appellant for beating Jagnibai wos stated. Statement under Section 161 Cr.P.C. of Mahsshram P.W.3,son of the appeltant, -3- \fi also revealed that the appellont had made an extra-judicial confession of having caused the death of Jcgnibaiby throttling and by assaulting her on the chest by kicks. After completion of investigation, the qspellant wcis prosecuted under Seetion I.P.G. for committing murder of Jagnibai. 5. The prosecution examined as many as 10 witnesses. Chotrge under Section 302 wos framed against the appeilant who afajured ths guilt, pleaded innocence and led no evidence in defence. Retying upon the statements of Smt. Behrobai P.W.7, Jagatram P.W.5, the post-mortem report of Dr. Sunil Nigam P.W.10 and the admission made by the appellant in his excmination under Section 313 Cr.P.C. that in the intervening night of 14 - 15 September 2005, he was present with Jagnibai at his house,the learned trial Judge held with obsolute judicial certainty in para 23 that the appellont hqd caused the death of Jagnibai by throttting. It is surpriaing to note that after having recorded such a finding, the learned Sessions Judge instead of convicting the appellant under Section 302 I.P.C. held that the appellant did not intend to caiuse the death of Jagnibai, and therefore, convicted the appellant under Section 304 part-II of the I.P.C. and sentenced him only to rigorous imprisonment for five years and fine as aforesaid in paragroph-1. 6. Smt. Indira Tripathi, leamed counsel for the appellant has dssailed tte conviction of the appeliant on the ground that Ku. Malti P.W.l and Ku. Karmi P.W.2, both daughters of the deceased and Maheshram P.W.3, son of the deceased did not support the prosecution story and stated that Jagnibai had consumed excessive quantity of alcohol in the night and woSjVomiting and -LI- \ not feeling well. The appetlant had offered to take Jagnibai to the hospitad but she refused. Ku. Kanni P.W.2 had stated that death of Jagnibai wos caused due to consumption of excessive atcohot. It was further cirgued that Smt. Peelmati P.W.4 also did not support- the prosecution story. The spot map prepared by Patwari Jawahar Singh P.W.6 ciearty showed that dead body of Jagnibai wos lying in the purchee of the house of the dppellant. This fact was atso bome out from the inquest memo Ex.P.6. Therefore, merely on the basis of the admission by the appellant that he ond Jagnibai were together in the house on the intervening night of 14 - 15 of September 2005 no inference could be drawn against the appeltant that he alone was responsible for the death of Jagnibai. Lastiy, it was contended that the prosecution did not establish that the appetlant had any motive for comniitting murder of Jognibai. On these pr'emises, learned counsei for the appeltant submitted that the conviction and sentence awarded by the learned trial Judge is liable to be set aside. Reliance was placed on Raikumar vs. Sfate of M.P. 2004(4) Crimes 14 (SC). 7. On the other hand, Shri Neenij Mehta, leamedPanel Lawyer for the State vehementty argued that the evidence led by the prosecution clearty established the guilt of the appetlant for causing death of Jagnibai since the fotlowing circumstances were fully established: A) The appetlant admitted in question No.17 of his examination under Section 313 Cr.P.C. that he wais present in the house with Jagnibai in the intervening night of 14th - 15th September 2(X)5. r-——- -5- B) The unrebutted testimony of Smt. Behrobai P.W.7 established beyond doubt that a quarrel had ensued between the appellant and Jagnibai in which the appellont had pushed Jagnibai on the ground ond at that time no one e!se was present in the house of the appellant. C) The autopsy report- Ex.P.16 and the testimony of Dr. Sunit Nigam P.W.10 established beyond doubt that death of Jagnibai was homicidal ond was caused os a result of Asphyxia due to throttting. On these prsmises, Shri Neeraj Mehta, learned Panel Lawyer also contended that the leorned Sessions Judge ought to have convicted the appeilant under Section 302 I.P.C. ond not under Section 304 part-II of the I.P.C. 8. Having heard the rival submissions, I have perused the record of Sessions Case No.118/2005. It is true that Ku. AAalti P.W.l, aged 15 years, Ku. Karmi P.W.2, aged 14 years and Maheshrom P.W.3 did not support the pro^cution story and stated that Jagnibai used to consume excessive queintity of alcohol. Ku. (Cormi P.W.2 has stated that death of Jagnibai wa-s caused due to excessive consumption of alcohot. However, it can be seen that these witnesses are the children of the appellant and are not speaking the truth to protect the appellant. The testimony of Dr. Sunit Nigom P.W.IO and the autopsy report Ex.P.16 do not show that on dissection alcohol was found in the stomach of the deceased. It is also pertinent to note thatSint. Behrobai P.W.7, who had returned to vitlage Jhagarpur with Jagnibai, has categorically denied that Jagnibai had consumed 6- ^•> alcohol on the date of occurrence. Thus, the testimony of Ku. aiti P.W.l and Ku. Karmi P.W.2 and also AAaheshram P.W. 3 is nothing but a bundle of lies and not worfh placing credence. 9. Smt. Behrobai P.W.7 has stated that she had returned with Jcgnibai to Village Jhagarpur and on visiting the house of Jagnibd for taking her saree had found that the appellant had pushed JagniboLS on the ground. On seeing the quarrel, she advised the appellant to live peacefully ancl not to quarrel and thereafter returned home. She has categorically stated that whsn she went to the house of the appellant, the appelfant and Jagnibai were present inside the house w\d there weis no other person in the house. This circumstance was put to the appelldnt in question No.17 in the examination under Section 313 Cr.P.C. The appelldnt admitted thart- he wais present in his house with Jagnibai in the intervening night of 14 <& 15 of September 2005. The testimony of Smt. Behrobai was wholly unrebutted in cross-examination. Nothing has emerged in her testimony to show that she bsars any grudge cgainst the appellcuit or had any motive to fatsety impticate him. Her husband Anandram P.W.8 has atso corroborated her testimony by stocting that after returning from the house of the appellant she had told him that the appetlant wos beating his wife. It is thus estaiblished beyond the shadow of oiny doubt that a qucrre! had snsued between the appellont and Jagniboi on the evening of 14 September 2005 in which the appellant had beaten Jagnibai and had pushed her on the ground. It is also established that the appellant and Jagnibai were to9ether in the intervening night of 14 & 15 September 2005 at the house of the appellant. __- y -y- 10. Dr. Sunil Nigom P.W.10 has prowd the report of outopsy Ex.P.16 conducted on the dead body of Jagnibai. It hos been deatt in parcigraph 3 (ajipra). It teaves no room for any doubt that death of Jagnibai was homicidal. She wos beaten in the chest os also on the skutt andwcis throttled to death. There is a positiw asserl-ion by Sunil Nigam thcrt death of Jagnibai was as a result of Asphyxia due to throttling. In cross-exo.mination, it has atso emerged thof the injuries sustained by Jagnibai were onte-mortem injuries. 11. The case of Raikumcu' vs. Stcrl-e of M.P. 2004(4) Critnes 14 (SC) relied upon by the appellont is distinguishable as in tha* case there was no evidence to show that the appellant waslo.st seen with the deceosed wife soon before the occurTence. The testimony of the brother of the deceased wias misread to suggest that the deceased had in her dying declciration refepred to the appellont as killer. Or> these premises, it was held that the circumstantial evidence did not exclude the-hypothesis of innocence of the accused. In the present cose, the facts are cieariy distinguishabie. 12. 1-taving thus considered the evidence led by the prosacutionin its entirety, I ani of the considered opinion that the prosecution has estabtished that the appellant and Jagnibai were together at the house of the appellccnt on the intervening night of 14th & 15th September 2005. It is aiso established that a quorrel had ensued in the eveningdf 14 September 2005 in which the appellant had assaulted Ja9nibai. The medical evidence clearly proves that death of Jagnibai wos homicidal and was caused as a resutt of Asphyxia due to throttling. The above R. arGumstances are wholly consistent with the guiit of the appellant ond exclude the hypothesis of his innocence completely. They tead to the irresistible conclusion that the appettant had intentiomlly caused the death of Jagnibai by throttling her, ofter assaulting her on the chest, stomach and the head. It is shocking to see tho* the leomed Sessions Judge, tSdgorh after pecording a clear finding t^crt the appettant had caused the death of Jagnibai by tlirotl'ling, convicted the appetlant under Section 304 part-II^ of tte I.P£.on the whoity inconceivable groynd thot the appellont did not intend to eause the death of Jagnibd. The. very fact thort- the ap^eltorri- throttled Jagnibai to dedth cleaply proves fhe intention of the appellant to ause her dectth; beyond imy doubt. However, sinee the State has regrettably not preferred any appeal for- enhancement of sentence, I woutd refrain from saying any further on the labove aspect. Suffice it to say tha* tN'[ conviction of the appellant under Section 304 part-II of th^ I.P.G. and the sentenceQ.wardedthereynderbytheieon'iedtrial Judge, Raigarh,do not coilt for any interference in this aRpeaI preferred by the appelldnt. 13. In the resuH' this qipedl being devoid of merrt is dismissed. Dilip Raosaheb Deshmukh