^ HON'BLEMR. T.P. SHARMA & HQN'ELE MR. RANQNATH CHAKDRAKAR. JJ. CRIMINAL APPEAL N0. 663/2006 (In Jajl) Bodhiraca S/o BucUu-am, Aged about 61 yeai's, Caste Sahu, R/'o Diyabati, Police Station Gurur, Dist. Durg (C.G.). State of Chhattisgarh Through District Magistrate, Diirg, Dist. Durg (C.G.). CRIMINAL APPBAL UNDER SBCTION 374)2? OF THB CODB OF Present:- Mr. A.N. Bhakta, Advocate for fhe appeUaat. Ms. Madhu Nisha Siagh, P.L. for fhe State/respondent. JUBGEMBNT (Passed on 04/11/2011) The followtns iudgment of the Coyrt.was.passed.by T.P. SharmaiJ^- 1. Challenge m this appeal is to fhe judgment of conviction and order of sentence dated 13/7/2006 passed by Additional Sessions Judge, Balod District. Durg (C.G.) in Sessions Trial No. 71/06 whereby and where under after holding the appellant guilty for commission of offence of culpable homicide amountins to murder of his aUeged illicit erandson Panchui-am, convicted fhe appellant under Section 302 of the Indian Penal Code and sentenced iniprisonment for life anol \^'u—-fL";.^:^':^- . "^: ^l-.";:,.''^!fc' '- ^o fine of Rs. 1,000/- in default of payment of fine amount additional rigorous imprisoniaent for 1 year. Conviction is unpugaed on the ground fhat without any iota of evidence sufScient for convicdon of appeUant Court below has convicted and sentenced the appeBant as aforementioned and therebv committed an illegality. As per case of the prosecution, Panchuram (stnce deceasedl alleeed iUicit erandson of appellant was residing wifh appellant in his house at village Diyabati Police Station Gurur, between intervenms nisht of 14/10/2005 & 15/10/2005 appeUant caused homicidal death of Panchuram bv carpenter axe (Brasufia). On second day raoming dead body of Panchurain was seen in (he tnner Varanda of fhe house of appeUant. PW1 Sukhdev Gond along with other persons went to (he Police Station and lodged Fu'st Information Report vide Ex. P-2 and Marg intmiation vlde Ex. P-1. Investigatmg OfBcer left for scene of occurrence and after sumnioning the witnesses vide Ex. P-3. inauest of the dead body of Panchuram was / prepared vide Ex. P-4. Spot map was prepared vide Ex. P-5. 3 broken teefh 8s hairs of deceased Panchuram, Kathari stained with blood and blood stained & plain soil were recovered from (he spot vide Ex. P-6. Dead body of Panchuram was sent for autopsy to Commuruty ^-1 I u-^ / 4. Healfh Center, Gurur vide Ex. P-15A. PW9 Dr. R.S. Bharadwaj conducted autopsy vide Ex. P-15 and found foUowmg injuries:- (i) 3 teeth were missing from Jaw. Sign of fresh removal ofteeth was found. (ii) Abrasion over leflt shoulder of 4.2 x 0.3 C.M. (iii) Incised wound of 2.6 x 3 x 0.1 C.M. over right eyebrow. (iv) Incised wound over right temporal reason of 5.4 x 0.4x 0.3 C.M. (v) Incised woiind over right temporal reason of 4.6 x 0.4 x 0.3 C.M. (vi) Incised wound over right temporal reason of 0.3 x 0.2 x 0.6 C.M. Cause of death was head injuiy and death was homicidal in nature. Diiring course of investtgation, appellant was taken into custodv, he made discloser statement of carpenter axe vide Ex. P-7, same was recovered at his instance vide Ex. P-8. Blood stained clothes of appellant was seized vide Ex. P-9. Sealed cloths of deceased Panchurain was seized vide Ex. P-10. Patwari prepared spot map vide Ex. P-11. One agreement Ex. P-13A was seized vide Ex. P-13. Sealed articles were sent fbr chemical examination vide Ex. P-21. Presence of blood over carpenter axe & cloths of appellant were confirmed vide Ex. P-24. '-/ ^ 'r^y, LP ./ 5. Statements of the witnesses were recorded under Section 161 of the Code of Crimmal Procedure, 1973 (in short the Code'). After coiapletion of fhe mvestigation charge sheet was filed before fhe Judicial Magistrate Ftrst Class, Balod who in tum committed tfae case to the Coi.ut of Sessions, Dui^ froin where leamed Additionat Sessions Judge, Balod District Durg (C.G.) has received ttie case on transfer for trial. 6. In order to prove the guUt of the appeUant prosecution examined as many as 11 witnesses. Accused/appeHant was exaiained luider Section 313 offhe Code where he denied the ctrcumstances appearing against him and pleaded innocence and false implicatioa ui the crime tn question. 7. After affording an opportunity of hearing to fhe parties, leamed Additional Sessions Judge, Balod Distnct Dm-g (C.G.) has convicted and sentenced fhe appellant as aforementioned. 8. Mr. A.N. Bhakta, learned counsel for the appenant and Ms. Madhu Nisha Singh, P.L. for the State/respondent are heard, Judgment impugaed and record of the Court below perused. 9. Leamed counsel for the appellant vehemently argued that conviction of the appellant is substantially based on extrajudicial confession made by appellant before / L witnesses but same is not admissible in evidence on fhe ground fhat as per evidence of prosecution tvitnesses, appellant has made extrajudicial confession before them tn presence of Police which is hit by Sections 25, 26 & 27 of the Evidence Act, except aforesaid evidence prosecution has not coUected any other evidence therefore, conviction and sentence of the appellant is not sustainable under the law. 10. On fhe other hand, learned Panel Lawyer for the respondent/State opposed the cruninal appeal and argued that conviction of the appellant is substantially based on circumstantial evidence. Dead body of Panchuram was found inner Varanda of appellant where Panchuram and appellant only two persons were present and deafh of Panchuram was homicidal in natiire. In these ctrcumstances, appellant was under obligation to offer an explanation that who has caused homicidal death of Panchuram but appellant has not offered any explanation. These ctrcumstances alone are sufiicient for conviction of the appellant. 11. In order to appreciate the ai^uments advanced on behalf of the parties, we have examined the e\ddence adduced on behalf of fhe prosecution. 12. In the present case, homicidal death as a result of fatal injur^' found over the head of Panchuram has not been ^ ^t ! 17 l ; substantially disputed on behatf of fhe appellant on the other hand, otherwise also established by the evidence of PW9 Dr. R.S. Bharadwa] & autopsy report Ex. P-15 and deafh of Panchuram was homicidal m nature. 13. As regard the complicily of appeUant in aime in question is concemed, evidence of prosecution witnesses reveal fhat present appellant has made extrajudicial confession to them before PoUce which is expressly hit by Sections 25 & 26 of fhe Evidence Act. In the present case, trial Court has considered foUowin^ circiimstances asatnst fhe appellant:- (i) Dead body of Panchuram was found inner Varanda of appellant. (u) Appellant was present at fhe tune of tncident. (ui) AppeUant was under obligation to offer an explanation that who has caused homicidal death of Panchuram and how Panchurain died. (iv) Appellant has not offered an}7 explanation in accordance with Section 106 of the &'idence Act. 14. As per evidence ofPWl Sukhdev Gond, PW2 Halalkhor Sahu, PW3 Gokuh-am Sahu & PW5 Santram Sahu, imured dead body of Panchuram was found inside the house of appellant upon cot in the inner Vai-anda. Panchuram was illicit grandson of appeUant and was residing wifh appellant m same house. Appellant was found present in fhe moming when death was detected. u .^T3^. .^y'".^s^\ '^>.. ;f/f" "l ''^, y ^ Y a "---"-^ '%5, ^-y^ '^•,. LC These circuinstances clearly reveal fhat at the ttme of incident i.e. during intervenine nis.ht of14/10/2005 & 15/10/2005 appeUant and Panchurani were present ui the house of appeUant where Panchurain was found dead as a result of fatal injury. In these drcumstances, appellant was under obligation to ofi'er an explanation In terms of Section 106 of fhe Evidence Act but appeUant has not offered any explanation that who has caused injury to Panchuram and how Panchuram died. 15. While dealtng with the question of explanation under Section 106 of the E>/idence Act, Supreme Court has held in the case of Dhananjoy Chatterjee Vs. State of W.B.1 relating to conviction on the basis of circum.stantial evidence ;- "In a case based on circuinstantial evidence, fhe circum.staiices froiu which fhe conclusion of guUt is to be drawn have not only to be faUy established but also fhat aU tlie circumstances so estabUshed should be of a conclusiye nature aad consistent only with the hypofhesis of the iuilt of the accused, Those crrcuinstances should not be capable of being explained by aay ofher hypothesis except the guilt of fhe accused and fhe chain of the evidence inust be so coinplete as not to leave aay reasonable ground for fhe belief consistent with fhe innocence of the accused. It ' (1994) 2 SCC 220 '^ needs no reininder that legaUy estabUshed circuinstances and not inerely indignation of the coiirt caa fonn fhe basis of conviction aad the inore serious the crune, the greater should be the care taken to scrutinize flie evidence lest suspicion takes fhe place ofproof." 16. As held by fhe Suprem.e Coiirt in the case ofTriinukh Maroti Kirkan v. State of Maharashtra2 tn case murder cominitted in secrecy mside a house, the initial burden to establish the case woiild undoubtedlv be upon the prosecution, but the nature and amount of evidence to be led by it to estabUsh fhe charge cannot be of the sam.e degree as is required ui other cases of circumstantial evidence. Para 15 of fhe said judgment reads as under:- '"15. Where aa offence like niurder is coruiuitted iu secrecy inside a house, the initial burden to establish the case wouM undoubtedly be upon the prosecution, but fhe nature and amount of evidence to be led bv it to establish fhe charge cauiiot be of the saine degree as is requrred in other cases of circurttstaatial evidence. The burden would of a coinparatively Ughter character. In view of Section 106 of the Evidence Act fhere wfll be a corresponduii burden on the inmates of fhe house to give a cogent explanation as to how fhe criine was coiainitted. The inniates ofthe house 2 (2006) 10 SCC 681 y ^: 17. 18. 19. cannot get away by simply keepiag quiet and offering no explanation on the supposed preniise that the burden to estabUsh its case Ues entirely upon flie prosecution aad there is no duty at aU on an accused to offer aay explanation," In the present case evidence adduced on behalf of the prosecution is siitficient to prove fhe fact that appeUant and deceased were present in the house of fhe appeUant at night where homicidal death of deceased Panchuram was caused. The offence committed tn secrecy and only appeUant was in position to explain that who has caused such homicidal death. AppeUant has not offered any explanation. In absence of any explanation on behalf of the appellant as held ui cases of Dhananjoy Chatterjee and Trimukh Maroti Kirkan (Supra) only urference would be possible that appellant has committed homicidal death amount to murder of Panchuram. After appreciating the evidence available on record, leamed Additional Sessions Judge, Balod District Dur^ (C.G.) has rightly convicted and sentenced the appellant as aforementioned. On close scrutiny of the evidence, we do not flnd any iUegallty or mllrmity in the judgment of conviction and order of sentence. Consequently, criminal appeal is /" 10 ^ <levoid of merits, same is liable to be dismissed and is herebv dismissed. Sd/- ^^. Ige Sd/- R.N. CHANDRAKAR. Judge