.1 •::x- <! fil ^ <t.^- HIGH COURT OF CHHATTI8GARH AT BODRI. BILASPUR , Criiniaal Aitneal Ho.597/a008 , APPBLLANT Mohaa Murari S/o Shn Laktiaa (la Judiedal Prasad Dubey, ^ed atK^^ custody) yeacs, R/o viUage Belsa&;P.S. : Kuaida, District KawanI^-{C(^ t f VER8XI8 RBBPOMDBHT State pf Chhattis^A,,s;'EhFba^!is-'=n R}lk« Station pmirel^^ Bflaspur(CG) z CMMINAL APPBALU/8374^1 OFTHBCMMB WCMMUIAI,, , .^',SRO^mBl^:'.^.l'::'l:l'":'!'''::':ll'~ ^ipwucaace:, , ;: ., ^ :' : • ' ^,,.- ShriSuresh Pandey, counsel fiw ttie appcllant. ? ^" Shri O.K. Gwalre, Govemment Adybcate fia fhe State. i,s Dtviston Bea<slu-: ; ^ • - : ' -: ;1:1'-;,'1' : 1- .' •w^^.—w 's Hon'bteShrlT.P.Shartti^Nk:^-! ' w':{'^ ' \- • ' .. Hoa'UteSlu-lR.I^lMUHrtu'^JiJ:: ^ : ORAI..TODCUBBHT (28^{>2011) 5 ; Per T.P.Sharma, J. ? y;° ' ChaUeiige in fhis sqtpeal is to the juagmeut^>f'^coayietiBa aad order of sentehce dated 30.4.2008, passcd by the Additionri Sessions Judge (FTC) Pendra Road, Datrict BBaspur (CG) iri S.T.No.79/2904, whereby and whereunder fhe lcamed Addltipiial Sessious Judgc.afljcr holdtog fhe appcBaat guffl^ for^<^ of culpable tiomicidc aniounting to murder of lus wife nanaety- Pushpalata, coDvicted thc appeUaut uadcrSection 302offte IPC ¥ and sentenced for life imprisonment and Sxic of Rs.SOpO/-, in default ofpayment offine to ftirther uadeigo R.I. for 1 nioath. . 1 2. The conwiction te impugaed on fhe g^ound fhatwithout Aere being aay iota ofevidence Sufficientfor convictioa of tiie appeHant, •-Y.^ .. -^ ~' t, "•X %^\ , l:lii '^ %. £!?*•• u\e Wi fhe leamed Additional Sessioiis Judge has convicted and sentenccd fhe appellaat as aforeinentioncd and fhereby comnutted UlegaUly. ~ : 3. As per case of prosecution, appcUant Le. huabaad.of PushpaJata (since dece^sed) was residmg wifh Pushpalata. Oa 25.3.2002, fhis appeUant along with his wife- Pushpalata and 1 % year agcd child left fheu- house and thereafter, fhe appeUantconic back to his house on 26.3.2002 at about 1.00 pai aloag wtth Aite 1% year aged chUd. On being ^ked fiioia his xaofher, Ite told that on account of iiight he has left his wife in his iu-laws house at Bagharra, Second day, father offhe appeBant Iridian Dubey sent his nephcw Virendra Kumar (DW-3) for bringmg the deceased, but shedid not foiind fhere. Missing reportwas lodged by the fether of tlie appcllaat namety LaKhan Dubey (DW-4), who was ateo a co- accused.viie Ex. D/4 and wriflfci rcpprtwas also lodged vide Ex. P/2. Matter was iavest^ated. Duriag fhe cotuse of investigatiDn. appeUant was iaterrogated and he made disctosure stateiBBeat of place of incident aud wooden plank vide Ex. P/10. It was recovcred at the iastaace of fhe appeUant fi'oai the place of incident, Place 6f fhc incident was tliscowered vidc Bx. P/ll. Plain soil and blood stained soil, clothes and ardclcs were seized fioxa fhe spot vide Ex. P/ 12. FIR was lodged vide Ex. P/1. Dehati Nalishi was recorded vidc Ex. P/14. Mei^ intunation was lodged vide Ex. P/16. luquest of fhe aforesaid circuDastaaccs was prepared wule Ex. P/3. Panchanama was prepared vide Ex. P/4 aud Ex, P/5. Sei^d articles were sent for identification by fhe wltnesses Sunita Shamia (PW-5) and Smt. Shafl Kumari (FW-6) vide Ex, P/9. Scized ardcles were seat for examination to the Medical Officer, Pendra vide Ex. P/18. Bones were csami&ed by fhe Director of Medicinal Institute vide Ex.P/21, but nodefiiiite opmion was givcn. Ctothes and sari of fhe deceased were sent for chemical exanuriation aad Chemical examination report received vide Ex. P/25. Stateiaents ''v .. —' ~' .h of Ifae witoesses were recordcd under Section 161 ofthcCodeof Cruniaal Procedure, 1973(inshorttheCode). . 4. Afber completion of iavestigation, chai^e shcetwa&filed before the Judicial Magistrate First CTass, PeBdraRoad, wha ia tura, coininitted fhe case to thc Court ofSessK>ns,.BilaspiB'fiiont Where the learaed Additioiial Sessions Judgc rcceived fhc case oa trausfer for trial. 5. Ia order t6 prove thc giult of fhe accused/appellant, prosecution examiaed as ateay as 13 witoesses. AppcBaat along wifh ofher co-accused persons were exaaaiaed under Sectfoa 313 ofthe Code, in whlch, (hey denicd tfae circumslaaces aBpeaife^ again.st theni, innocence and fatec unplieatiDa ia cmne in questitm was clauaed. Dunng the cptu'se of tdal 2 accused died. AppeBaat and other co-aceused -petsaW exaiaiaed defence witnesses Ramdayat (DW-1), Lav Sin^i (DW-2), yirendra Kumar (DW-3) and Lakhaa Dubey (DW-4). Ramdayal (DW-1) Uas deposed (hat father of fhe deceased was interested to flce the appeUant fi'oia his house along wifh. hfc daughter and wife i.e. fhe deceased; soine quanel took place between the parties. Lav Singh (DW-2) deposcd ttiat oa accountofmissmgtheBus, appeUant along wifh hMwife and chfld visited to hus house aad at his instance fheir artteles werc kept ia fhe house of Dewangaa at Mungeli. As per cvidencc of Viicndra *~. ' .:•'•.'.• ..••••• •,. .. •••... . • ^ Kumar (DW-3) he went to the house of Saatosh Kumar father of the deceased,where father of fhe deccased was present and fhe deceased refused to come back to thc house of fhe sppeUaafe Defence has also examiaed Lafahau Dubey (DW-4) fafher of t&e appeUaat, also a co-accused; hcdcposcd thatwife offhe appeUant was missmg siace 27.3.2002 fhen he lodged fhe inissing report videEx. D/4. •a.'^i^^ «'""•- !l'^'NiSB». ^ •:...// f'..^ ^. }.:"•" 4 6. After affording opportuiiity of hcarmg to the parties, whUe acqultting ofher co-accused persons, the leamed Additioaal Sessions Judgc has convicted aud sentenced (tie appeUant i.e. huabaxid offhedece^aed^ aforesaidinentioaed.^ > 7. We have heard Shri Suresh Paadey, lcaracd couasd fer fh® appeBaat aud Shri D.K. Gwalre, leamed Govcmaient AdvocatB fOr fhe State, perused fhe judgment impugned and xBeord of ffae trial Court. 8, Leamed couusel for the appeBaat vehemeatty argued that conviction ofthe appellaut u based on ciroumstaatial evidcnce. In case ofconvictioubasedon cncuinstantial evidence, prosecution is required to prove the followingl^ngredients: i. fhe circzunstan.ces &om wliich thc conclusion of guflt is to be drawu shouM be fulfy established. The circumstances concemed 'niusf or 'shoxrid' and not 'inay be' cstabUshed; ii. , fhe facts so estabBshed shouM be cpasistent oaty with the hypothcsis of fhe guilt of the accused, ,fhat is to say. fhey should not be explajnable on any ofher hypothcsis except fhat the accused is guilly; 1 . iiL fhe circiuastances shoiild be of a conclusive aature aad tendehcy; iv. they should exclude evcry possible hypofcesis except the one to be pioved;and v, fhere mnst be a chain of evideacc so complete as not to leave aay reasoiiabte ground for fhe conclusion consfatent wifh fhc innocence offfae accused and must show fhat m. att hiuaan. probability fhe act must have beea done by fhe accused. In fhe present case, prosecution has aot adduccd any evidence to coiinect fhe appeUaut in criinc in question. Even prosecutioa bas utterty failed to provc Ifae fact thatwife ofthe deceased has dfed of ue homicidal death. Therefiire, connction and seiitenGe af^'Qa&^w appeUant is iiot sustainabte under fhe law. ~ He axgued iUtatiMss prosecution has deliberatety failed to cxaiaine fhe starwitacss,-a who is the wltocss of l^tseen. He placed leUanec oa Mtana ;. Beiguin Vs. State of MJP. 2005 (1) MPHT.T?, in wluch, tlu H^te "& Court has held that quarrcl took placc on a tnviat iacideiiit^ fhe ; appellant v?as convicted fbr fhe offence ztndcr Sectk»n304 Part tl'Of" " the IPC. He also placed reliance on Indenrii^; and utliew V«. q State ofSOOS (1} MPHT 198, m wluch fhe High Court has beld j, fhat fhe iacident^pok place ia the way whfle fhe accused aad ^ deccased were gpjng togefher. In abscnce of intentk)n of eausing ^ nuudcr, conviction would be uiider Sectioa 304-11/149 aad p 326/1490ffhelPc. 9. On thc ofher hand, leamed counscl for IIie State yehen^ntty "t opposcd fhesc at^uments attd subxnitted •Biat as pcr case of . prosecution aod evidcncc of defetice witnesses, preseat appcllaat » along with his wife and 1 yzycar aged chfld lefthis housc for goiag to Raipur and fhereafter, fhe oiity appcllaat coiae back to his house along wifh lus 1 V2 year aged chfld; on beiag asked fix»nahis fafher and inothcr Iie offered explaaatipa that on accouat of in^it he has left his wife Pushpalata in his to-laws house. On second day, Virendra Kumar (DW-3) went to tSac house of Saatosh Kumar , i,e. father of the deceased for bringiag thc deceased but, she did not find fhcre. Evidence ofthese •witnesses is suflBcient for drawiag a defialte conclusioa fhat present appeUant has taken his wife from bis tiouse aad thereaftcr, she did not come back to fhe house of fh.e appeBant aad fhe appeUant camc oiily with his l Vi year aged child. Appellant was requn-ed to ofFer an cxplaaation that when he parted fhe coinpaoy of his wife or who has comiiilttcd aiurder ofhiswife or fhe circumstaaces la whioh he caiae back to .hisjiouse leaving his wife. These circuiastances are sufficicnt for .^"^ ^•'-••'^ "'^ .)'' if /"<?"'•. ^ 1 8 drawiag aa inference fhat thc appellant has coiiimitted cu4>abte homlcide am.ountmg to laurderof the dcceased. After appreciating fhe evidence available on record, the leamcd Additioiial Sessioa® Judge has righfty convicted aad sentenced the appeBant as aforesaM iiientioned. 10. In order to appreciate fhe ai^umcnts advaaced on behalfof fhe parties, we have cxanalaed fhe cndence adduccdon behalfof fhe prosecutioa. 11. In the present cl|ge, although fhe appellant has not adnatted the fact that his wife has beea kiBed or shc. has dled, but the evidence adduced on behalf of thje prosecution, espeeialty, fhe evidence ofSiyaram. Srivas(PW-2), Santosh Kumar Tiwari (PW-4)- fafher of thc deceased, Sunita Sharma (PW-5) aad Smt. Shail Kuman (PW-6)- luotfaer of the deceased, Ramdayal (DW-1), Lav Singh (DW-2), Virendra Kumar (0W-3) aad Lakhan IhriSey (DW-4)- father of the appeUa&t and co-accused shows that fhe dece^sed wcntwith the appeUaat along wifh her 1 Vz year agcd child and fhereafter, she did not coaie back atong with fhe appellant As per ewklence of Laklian Dubey (DW-4) appeUaat has offered explanation fhat on account of it^ht, he h^.left his wife in the house of his fa.ttler ia law aad he todged mMsiag report vide Ex. D/4, in whicfa, it has been specifically written that he has seat Virendra Kuxnar (DW-3) to the house of Santosh Kumar for brmpng Pushpalata to his house, but she did not flnd these. Duriagfhe coiirse ofmvestigationaccusedwastakenmtocustody. As per Ex. P/10, he made dteclosiire slateutent of fhe ptece of incident fiTom. where articlcs were recovered at his iastance vidc Ex. P/ll. Panchaaaina was preparedvide Ex. P/ll audfhearticles seized vide Ex. P/10 werc not wifhln fhe knowledgc of ofhcr persons. Blood stamcd soil was recovered flx»nithe spot, oa wla.ch, •presence of blood was confircaed vide Ex. P/25. Dcad body has >c^ "•"^ ;" "{ ;4 ^f not been. recovered fix>m. fhe foiest The appellaat has not.offered aay explaxiation that wheie he lefit his wife, Ths afiacesaid cireumstances are sufficient for drawitig aa mference fhat wtfe of fhe appeUantwas not ative and sfae lias djed iu thc Gustody:aofheE^ husbaad ie, the appeUattt. The appeUaat was uadcr obl^atM>& teBi offer explaaation that how she died and who has coxnmltteft he!F- homicidal death. Howevcr, the appellant has not offered aay explanation iateralia hc tried to prove by fhe evidcncc of DW-3- Virendra Kumar that Mkwife was alwe, which is conteaiy to Esi. D/4, injssin^ neport lodged by fhe father offhje accused/appeUant LaKhEm. Dubey (DW-4), also a co-accused. These cn'cutustaAces are sufBcient for drawiag aa inference that fhe deceased has died ia fhe custody of the appeUant a&d m absence of any cxplanation oxity presiunption would bc possibte that onty the appeBaat Uas caused homicidal deafh ofhiswife Pusbpalata. 12. As regards motive is cqacenied, xnotiwe enity aMs ia crimtnalily, in case of ducct cvideace it losses its nnportaaee. Motive can be tnferred on fhc basva ofweapon used, part'ofthie body eflfected, naturc ofiajury aad othcr sunilar circutustances. 13. As is held in the cases of Sttara B^nm and Indeirrta^i (supra), in case ofoffcnce committed on suddcn quarrel or wiffaout iatBntiQn, fhe oflfence fatts under Sectiou 304 Part II of thc IPG. In the present case, prosecution has proved the complete chaia df circuinstance and appeUant has not adduced any other evidencc, fh.erefore, it M not possible to infer fhat on sudden provocation or ia ofher circumstaaces, fhe appellant has caused hoinicidal deatii of his wife. After appreciating fhe evidence, available on record, leamed Additional Scssions Judge has rightty convicted and sentenced fhe appeUaat as aforesaid inentioned. .__ (.-..i: 14. On close scrutiny of fhe evidcuce, we are of the view tiiat conviction ofthe appellaat is based on cucuxnstential evideaee aad prosecutiou has proved conaplete chaia of- ciTCumstances, fherefore, conviction and scntence offhe appeBaat is sustaiaabte uader fhe law. For fhe foregoii^ reasons, fhc appcal being dewnd ofmerits is Uable to be dismMscd aod itis hereby dismtesed.; ; . urata ' Sd/- \^ T.P.Sltanma Judge ^ Sd/- R.L. Jhariwar Judge