^t^^ APPELLANT f^s r'T1?.1- i S. ,,\i> Poyaini Baisu s/o Nulu Muria, aged about 25 vears resident of vfflage Ketan Pal, P.S. Kutaru, District Daatewara, (C.G.) State of ChhattisgEU'li, through P.S. Kutani, District Daiitewara C.G,' '.r (^/^^ii-n 01=1 ? 'i'/^t-r1 +l-><~> 'o'r^fttsi Im^i'f- i^JJ-UJ. ^~i±A±±±CS-l.J.U.^V. ^t^ U.JLJLi^^j. ^LJA' i-U.1^ Ci.U ^'i.-^J.CLU.l-. Slm. Sudbir Bajpai, Additional Public Prosecutor for fhs State. Hsa'Me Shri Justte's Suail Ktiaiar Sinlis, J, J. Tlie follbwiag iudgiaent of ffae Court was passed bv ^ [1) This appeal is dii^cted agaiiist fhe judgiuent of cotivictios. and order of seatence dated 07th Septeinber, 200t passed by Special Judge uilder S.C. & S.T. Act, Jagdalpur (Bastar) in Sessions TrialNo. 164/2001 whereby and whereuader tbe leanied Special Judge after holding accused appeUant guilly for commission offhe oflence u/ss 302 8s 201 ofthe I.P.C., seatenced him to undergo R.I. for life imprisoiuuent aad to pay a fine ,of Rs.500/- ia default ofpa^iaent offine, to further undergo R.I.-.for 1 year; Ss R.I, for 3 years imprisonineiit and to pay a fijie of Rs.SOQ/ - , m default thereof, to further uadergo R.I. for six months. ; i |2) The case of fhe prosecution in bricf is fhat the accused appellaa.t . Poyaini Baisu and liis . wife Poyaini Sunni (sinee °'• deceased} were residiag togefher. On 01.1.2001 tlie accused ,» appeliaat^ gave Xerg iutimation Ex. P.6 iii fhe police station Kiiteu^ to fhe efiefet-.fhat ia fhe evening of 31st December,-2000, his wife' Suniii went to fhe house of his sister Lafcmi. Iii the night, Iie catied her, she did not prepare the food nor she tied the cows aad oxen suid ater altercation wifh the accused, she consuined poison rueant for kiBing fish. He gave her water mixed wifh Taaiariiid solution but she could not siuvive aad died. Receiving this repoi't, tiie Investigating OfBcer teft for fhe sceue of occurrence and after giviiig noti.cc Ex. P.8 to ftie Paneh prepaTed uiquest Ex.P.9 on Uie body of deceased. The body of deceased was sent for postruorteiri examiiiation to Pi±m.ar5r Healfh Center, Bbajraxngarh uader Ex.P- 5(A) where Dr.A.S. Sendraru, Assistaat Surgeon, conducted fhe postinorteiu. He opiued fbat the niode of destli was aspli}rxia due to straiigulation, as a resiilt of iajun- No.2, which was aateiaortein and the deafh was hoiaicidal ia nature. He prepared fhe postmorteiu report Ex.P.5. Under Ex.P.l, fhe ilivestigatnig of&cer seized oae bottle from. the place of occuiTence. After receivuig postmortera report, he registered ftie F.I.R., Ex.P.7 for coiniuission of the offenceu/s 302/201 of the I.P.C, The 1.0. prepared site plan Ex. P.10 of the place of occurrence. Th'e seized bottle a4d viscera which was preserved were sent for cheEaical examination under Ex.P.12 to tlie Forensic Science Laboratoiy, Sagar, iEroia where report Ex. P.13 was received aiid as per fhe F.S.L. Report (Ex. P.13) no poisoawas found. (3) After conipletion of the investigation, charge sheet was filed ia fhe Court ofJudicial Magistrate, First Class, Dautewada, who in tum comiTiitted fhe case to ftie Sessions Judge, -Jagdalpur froui where the leamed Special Judge received fhe case on traiisfer Sor trial. (4) The Prosecution in order to estabUsh fhe chai~ge against fhe acciised exaruined 6 witaesses. The stateiuent of accused was recorded u/s 313 Cr.P.C., ia which he denied fhe raaterial appeai-ing agaiast liim. However in reply to question 110.4, it is stated that fhe body of his wife was in his house but in furfher e^plaaatiou, he stated that his wife was siiffei-iag froiu unsoiuidness of miad, she used to run in fhe forest, fhe bQdy of Sunny was found in ftie forest after two days, he is iiinocent and he has been lalsely iinplicated in fhe criine. j 1-^.—^^^ -^-.. -.- |5) The leai'ned Special. iJudge, after neailng counsel for the respective parties, convicted and sentenced the accused as aforesaid. (6) We have heard Mr.Anil Pandey, counsel for the appeUant azid Sliri Sudhir Bajpai, Addl. Public Prosecutor, for fhe State. [?) Mr.Paiidey bas not disputed fhe hoiaicidal deatti of Poyami Sunzu. More-over, P.W.4 Dr.A.S. Sendram has stated that on 02.1.2001 he conducted the postmortein on the body of Sun.ni aiid npticed the fonowing extemal injuiies : (i) A coutusion on fhe right side offtie face in size of2" x 2". (ii) A contusion in the front ofneck in size of3" x 3" (iii) A contusion 011 the chest over stemuia boue in sizeof2"x2" (iv) A contusion on ffae left side of arm ia size of 1 V2" X 1" (v) A contusiou on the left sidp of fhe face in slze of r'xi". He further stated fhat on dissection of tlie body, the hyoid bone below fhe uijun,? No.2 was fouiid fractuTed. Injuries No.3, 4 & 5 caa be caused by fist aad leg. Injury no.2 caa be caused by pressiag neck. AU fhe uijuries were aiiteinorteia in nature aad fhe deafh was hoiuicidal. His report is Ex.P.5. He Iias denied the suggestioii in cross examination fliat fhe said iajuries caa be caused by fatl and he Iias stated that iajury no.2 was caused by haad. The hyoid boiie was fractured biit there was no heinorrhage ru the tissues. In view of fhe above inedical evidence , it is established tliat the deafh of Poyaini Suiuii was hoiaicidal in nafrure. gS) As far asthe ravolveinent of the accused in cltme in question is concenied, there is 110 direct or ocular evidence iii this case. The whote case rests on fhe circuinstaiitial evidence i.e., (i) fhat fhe accused inade extra judicial confession before P.W. 1 .Sukhram; Ml liq (ii) that the accused aad the deceased were seen in the house just before flic death of Poyaini Siuiiu arid her dead body was fouud there aiid recovered froni the house ofaccused. (iii) fhat flie accused gave false inibnnation in tlie police station Ex^P.6 to fhe effect fhatSuniu died on account of consunitiig ot poison. As per tiie settled law, ii'i oixler to rest conviction of au accused based on fhe circuinstantial evidence, tbe proseciitioa is required to establish the foUowiag points in view of the decision of the Apex Court rendered ia fhe niatter Bhananisil Chatteriee -Vs- State of W.B. reported in {1994) 2 SCC 222, which is quoted below: "la a case based on circuiiistantial evidence, flie circuiastances fi-oin which the conclusion of guilt is to be drawn have not only to be fuUy estabUsIied but also that all the circum.stauces so estabUstied shoidd be of a conclusive nature and consistent only wifh fhe hypotliesis of fhe guiit of the accused. Those circunistances shoiild, not be capable of beiag explailied by any oflier hypothesis except "the guilt of the accused aud Uie cliam of the evidence laust be so coniplete as not to leave aiiy reasonable grouiid for tbe belief consistent wifh fh.e ianocence of fhe accused. It needs no reaunder fhat legally estabUshed eircuinstaiices aud not xnerely indignation of fhe court can fonn the basis of couviction aad tiie iciore serious the crime, the sreater should be the care taken to scrutinize the evidence lest suspicion takes fh.e place ofproof' In order to rest ttie coaviction toased on fhe circunistaiitial evidence, as has been held by fhe Apex Court. (10) As far as the first circuiastaiice regarding extra judicial | confession is concemed, P.W.l SuMirara has turaed hostile. On j cross examiaation by the Addl. Public Prosecutor, he stated ttiat | fhe accused niade extra judicial confession befoi-e hira that he committed inurder of Suuni by pressing her neck aad after.Iier deafli, he tried to give her the medicine nieant for kiUiag the fish, but the same could not be given to her. Agaiii oa tlie cross examiaation by counsel fer ttie accused, this witaess has stated fhat it is coi-rect fhat fhe accused iuformed tlie poUce fliat Suimi died on accouiit of consuinption of poson. In pai-a 7, Iie Bias statai fhat ftiere was no mark of iryuiy on her body aadlthe accused did not disclose fhat how Sunni died. Fui-ther he has stated that tlie accused said that he had not pressed ttie Qeck of Sunni. The leamed trial Court has obseived that even ifa witaess has tumed hostile, his or Iier whole evidence caanot be brushed aside. Tlie adinissible portion can stiU be used aad on fhat basis,, the trial Coui-t has held that this ^vitness has stated tJhat the acciised laade extea judicial confession before him aad fherefore, the trial Court has relied on tfaat portion, but fhis fuidirig of tlie trial Court is not con'ect Ibr ttie reason that evea though on cross examination by flie Addl. PubUc Prosecutor, the witaiess Sukhram said fhat the accused inade extra judicial confession before him regardiug pressuig the neck of deceased by him, but on cross examiaation by coiuisel for the accused, this witness has agam stated Uiat it is iacorrect to sav fhat the accused inade confession before him regarditig pressing ofneck by Ttim. Therefore, in view of evidence given by tfais witaess on cross examiaation by counsel for £he defeuce, fhe earlier evidence of tliis ~ifness reganiiug extra judicial confession niade by flie accused before him stands vaaished. More over, it is setUed law fhat extra jiidicial confession can be niade adinissible only if ftie same is voliuitaiy aad frue. Tfais witaess Iias given the waveriiig evidence aad he has chaiiged his version at 2-3 places, fherefoi'e it cannot be termed as voluntary and true stateinent. There ia no ofher inateiial oa record to corroboi-ate the evidence, without wliich it is unsafe to rely on sucti a waveiing evidence, fherefore, the prosecution has not Ueen able to estabUsh tlie fact tliat the accused inade voluntary and tine extra judicial conlession before fliis witaess. As fai' as the second circuiastauce is concemed, P.W.l Sukhram in Pai'a 3 ofhis evidence has stated that deceased Suuni used to reside witfi accused Baisu. In para 2 Iie has stated that fhe body of Sunai was seen by him in fhe house of fhe accused. P.W.2 Laklunu has stated in para 1 of liis evidence fhat;the accused and deceased were residing togefher aad ao ofher person was residing wifh tliein. As per flie iaquest Ex.P.9, flie body of 'Suiuii was found iu fhe house of fhe accused. The site plan Ex.P.10 prepared by the 1.0., also establishes that the bodylof Suruii %as found in fhe house of fhe accused. P.W.5 !the r- -^l investigatuig officer Kasinafh has stated that on 02.1.2001, he weiit to tlie house of accused aiid prepared fhe site plaii of fhe place of occurren.ee which bears his signatures. Even the accused iu his stateineat u/s 313 Cr.P.C., in reply to questions No.2 & 4 has categoricaUy stated fhat bis w7ife was residiag wifh him. When she died, lier body was ia lus house. Though in fhe explaiiatioa, ia reply to question, No.39, lie has stated tliat his wite became mad, fherefore, she used to run ia the forest and her body was found ia fhe forest two days after but ia fact, the body was fouiid ia tiie house of fhe accused aad fhe site plaii was prepared by P.W.5 Investigating Officer. Kasuiatb, wlio stated faat even ftie postoiorteni on tfie body of the deceased was condiicted on fhe spot on 02.1.2001. This witaess has not been'cross examined to suggest fhat in fact, fhe dead body of deceased Suaiu was fouiid in fhe forest aad fi-om fhere fhe body was brought to tlie house. Eveii a pei-usal of fhe nierg iiiumation Ex. P.6 given by tbe accused iself does not iadicate fhaf fhe body was brought frora fhe forest and no xuaterial is avaiiable on record which is suggestivc of fhe fact that ia fact Suniu had died iii tlie forest and froja foi-est fhe body was brought to the house, therefore, this explaiiation of the accused fhaf the body was brought after ftvo days froiu fhe forest is false. On tbe contrary, in fhe merg intuaatioa given by the acciised, it has been xueationed fhat he called his wife froin tbe house ofhis sister and thereafter, ffaere was aii altercation betaveen tiie tivo as she did npt cook fhe rueal aad tie fhe cattle and after aitercation, she .consuiued flie poison, tlierefore, this inerg iatimation itself demoUshes the explauation of the accused given in fhe stateiaent u/s 313 Cr.P.C. Tlierefore, liis explaaation iii fhe statemeiit u/s 313 Cr.P.C. is lalse. (12) As far as fhe 3rd circumstance is concemed, from perusal of evidence of P.W.4 Dr.A.S. Sendraai it shows tliat lie has categoricatly stated fhat he noticed as inany as 5 injuries on the body of Sunni aad iujury No.2 was on tlie neck, as a result of which even her hyoid bone below this injuiy was found fractured and that was on accoiuit of strangulation, tlierefore, fhe report Ex.P.6 lodged by fhe accused that Siuaai died on account of consuming of fhe poison was found to be false aiid fhe accused s '"t\ has not given any explanation that how Simni received aate- morteiu itijiuies becaiise he was fhe best person to explaia fhe circuiustances in wttich Sunni received fhe aD.teniortein iaj'Lu-ies. [13] As per the provisions of section 106 of the Evidence Act, diere is burden on tlie accused fhat he should explaia tlie cu-ciiiustaaces uiider which a deceased sustaiaed lioinicidal itljuries. Section 106 offhe Evidence Act sa}-s that when aay fact is especially wifhin fhe laiowledge of any person, fhe burden of proviag fhat fact is upon him aiid as per the raaterial available on record, the accused aad ffae deceased used to reside ia tlie house emd the deceased sustaiiied the homicidal uijuri.es fhen it was withui the special knowledge of fhe accused fhat how Sunni received tlie hoinicidal uijuiies. Therefore, the burden was oa hiin to explaia that how Sunni received flie hoiaicidal iiijuries, which he has failed to explain. On th.e contrary, he gave false inlbmiation iinder Ex. P.6 to the Police and fherefore, ffaat is aii additional cifcuinstance agaiast flie accused. We are fdrtified in ourview.by the decisions of the Apex Coui-t ia tlie matters of Prasad Tcmtrakaf -vs- State of Bih.ar 2007 Scale-. in 2007 AIS SCW 29S, Stftte of Stg'cisthan -vs- Kashi Ram, of vunsais -vs- 2007 AIR SCW 599S in the m.atter (14) For ttie foregouig discussions, ttie chaui of cu-cuiastaaces ia this case is coiuplete, as the accused and deceased were residing ia Uie house togefber where th.e dead body was foiuid. No ofher person was residing wifh fhem.. Sunui died on account of hoinicidal injuries sustamed. The accused gave false explaiiation before tlie Pollce under Ex.P.6 nierg iiitiniation that Suiini died on account of consuiniag of poison whereas she has met \viih hoiuicidal death and ultimately the accused failed to dischai^e fhe burden which was on him as per the provisions ofsection 1Q6 of the Evidence Act to explain the circuinstaaces, uiider which Sluini received hoiaicidal rujiiries. Tberefere, iu. view of the above estaWished circunistances aud circunistaiitial evidence, only !J >le conclusion which caa be drawn is fhat the accused was fhe aufhor of crmie ia question and tliere is no possibilifr of his innocence or uivolveiaent of aay oflier per son in fhe ciime ia question. (15) In the result, the appeal beiug devoid ofinerit fails, same is liable to be disraissed aad it is herebv disinissed. Sd/- SunilKumarSinha Judge Sd/- L.C.BHADOO Judge u^