HIGH COURT OF CHHATTISGARH AT BILASPUR G Criminal Appeal No.560/ 1990 ‘ APPELLANT Ram Plasad son of Chhunilal Kurmi, aged 32 years, cultivator resident of viliage Pawna, Police Station Pamgarh, Tahsil Janjgir, District Bilaspur. VERSUS " RESPONDENT State oi Madhya Pradesh {Now Chhattisgarh) CRIMINAL APPEAL UNDER SECTION 374 1 2 ) OF THE CODE OF CRIMINAL PROCEDURE Appearance: Shli Suresh Vanna, counsel for the appellant. Shn' Rakesh Kumar Jha, Dy. Government Advocate for the State. Division Bench:- Honble Shri T. ’ P. Sharma & Honble shri R. ’ L.Jhanwar,JJ ORAL JUDGMENT (09.02.2010) Per T.P.harma, S J. 1. Challenge in this appeal is to the judgmegt of conviction and orderof sentence dated 16.5.1990, passed by the First Additional Sessions Judge to the Court of Sessions Judge, Bilaspur' in Sessions Trial No. 188/ 1988, whereby and whereunder the learned Additional Sessions Judge while acquitting the 2 other co— accused persons, convicted the appellant under Section 302 of the IPC and senteced t9\undergo imprisonment for life for causing murder of his Wife-Kumudani Bai. n 2. The judgment impugned is challenged on the ground that without any iota of evidence, the learned Coult below has convicted and sentenced the appellant as aforementioned and thereby committed illegality 3.‘ Prosecution case in brief is that on the fateful intervening night of 2.4.1988 and 3.4.1988, the appellant came to his house along with the deceased— Knmudani Bai fmm the village Panchayat, convened to Pesolve the problem of the appellant and the‘deceased. The appellant and the deceased both Were present in the house. On second day morning i.e. 8.4.1988, dead body of the deceased — gumudani Bai was found doating in the well tied with electric wim over her neck. Merg intimation was lodged by the appellant vide EX. P/ 13. After summoning the witnesses vide EXP/6, inquest over the dead body of the deceased was prepaxed vide EXP/7. The dead body was sent for autopsy to P.H.C., Pamgarh vide Ex. P15. Autopsy was conducted by Dr. D.C. Choudhaxy (PW—4) vide Ex. P/4 and found following injun‘es: 1. Ligamre mark around the neck. n internal part of the body including aorta was congested. One plastic Wire was tied around the neck for 8 times having 3 knots. The Doctor opined that the cause of death was throttling. Spot map was prepared vide EX.P/ 1. Viscera of the deceased was seized vide EXP/3. Other aru‘cles were seizedsvide Ex.P/ 10. Appellant was taken into custody. He made disclosure statement of electric wire vide EXP] 11. The same was recovered at the instance of the accused] appellant vide EXP] 12. F.I.R. was lodged vide EXP] 14. Viseera was examined by F.S.L. and no poison was found on the viscera vide EX.P/ 15. Statements of the witnesses were recorded under Secu‘on 161 of the Code of Criminal xProcedme, 1973 (in short “éode’j. @ ‘4. After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Bilaspur, wlio in turn, committed the case to the Court of Sessions, Bilaspur, from where the lealned First Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellant, prosecution has examined as many as 14 witnesses. The accused was examined under Sepu‘on 313 of the Code, in which, he denied the'circumstances appearing against him and pleaded innocence and false implication. 6. ‘ After adording opportunity of hearing to the parties, the learned Court below has convicted and sentenced the appellant as aforementioned. 7. We have heard Shri Suresh Verma, learned counsel for the appellant and Shri Rakesh Kumar Jha, learned Dy. Government Advocate for the State, perused the judgment and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that the case of prosecution is based on the evidence of last seen of Revaram (PW-12), Ramkisun @ Ramkrishna (PW-6) and Rameshwar Prasad (PW-7), but their statements are full of contradictions and omissions and are not safe t9 rely. He argued that on the basis of last seen theory, the conviction of the appellant is not just and proper. The appellant himself has lodged the merg intimation when he came to know about the unnatural death of his wife, therefore, it is bonahde and he has oEered suhicient explanation. 9. On thg other hand, leamcd counsel for the State opposed these arguments and submitted that the present appellhnt was not satisfmd with me‘activm'es of thc deceased i.e. his wife —Kumudani Bai and on the date of incident, he himself has committed I murdered of his wife by throttling and the deceased was lastly seen iu the company of the appellant. He submitted that the evidence of Ramkisun @ Ramklishna (PW-6), Rameshwar Prasad (PW-7) and Revaram (PW- 12) inspiles confldence; it is trustworthy and safe to £6.1y. t 10. 1n oxder to appreciate the arguments advanced on behalf of the partiee, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death of the deceased as a result of throttling has not been substantially disputed by the appellant. On the other hand, it is established by the evidence of Dr. D. C. Choudhary (PW-4) and autopsy report Ex. P/4, which revealed that the electric Wire was tied over the neck of the deceased for 8 times with 3 knots. [t shows that it was not possible for the deceased to commit suicide in the aforesaid manner. Even otherwise the dead body was found inside the well doating in the water, shows the second mode of death. It excludes the possibility of commission of suicide. In detailed cross examination this witness has categorically deposed that the case was of homicidal death and was not of suicidal death. 12. As regards compliciw of the accused/appellant in crime in question is concerned, substandally the conviction of the appellant is based on last seen theory. Ramkisum @ Ramkrishna (PW—6) brother of the‘deceased has deposed in para 7 of his evidence that they resolved the prdbdem of the appellant and the deceased. A Panchayat was convened and at about 12 to 1 O’clock in the night, n wireww / !A 4 ths appellant went with the deceased and 2 other persons to viilage Fauna and the members of Panchayat went to their house. Second day, dead body of‘the deceased was found inside the well. Another witnesses Rameshwar Prasad (PW-7), who was also the member of .the Panchayat has deposed that they resolved the problem of appellant and the deceased and after advising them, they send the deceased with the appellant and 2 other persons and second day, i dead body of the deceased was found in the well. Revamm (PW- 12), another member of the Panchayat has also corroborated the gvidence of Ramkisun @ Ramkrishna (PW-6). Evidence of this Witness revealed that after completion of the Panchayat, the appellant and the deceased went to village Pauna for their house. Merg intimation has been lodged by the appellant vide Ex. PI 13, which also reveals that after the Panchayat, he along with the deceased went to their house where he stayed at night. The deceased was present in the house and the appellant was also present. At about 6.30 in the morning, Kumudam' Bai was missing and at about 10.00 am, he came to know that the dead body of Knmudam' Bai was hoating in the well. This evidence is sumcient for drawing an inference that the deceased was last seen in the company of the appellant and deceased and the appellant were preset in their house in the night, but in the morning, the deceased was not present in her house and her dead body was found floating in the well. 13. Evidence of last seen together is a weak type of evidence and it requires further corroboration hom the independent witness. In the present case, the appellant himself has lodged the merg intimation vide Ex. P/ 13 and has admitted that the deceased was present in his house in the night at about 1.00 O’clock, but she was not present at 6.30 am in the morning and her dead body was found in the well. The autopsy report reveals that the cause of t" G death was not asphyxia as a result of drowning, but was asphyxia as a rssult of throttling. The Doctor has specifically opined that the electrio wire tied on the neck of the deceased was not possible to tie by the deceased herself and the case was not of suicide but Was of homicidal death. l4. Prosecution has examined another set of evidence relating to disclosure of fact on the basis of confessional statement of the appellant. Mohanlal Yadav (PW-11) has deposed that the appellant has'made disclosure statement of tape~recorder vide EX.P/ 11 and t the tape-recorder was seized at the instance of the acclisedfappellant vide EX.P/ 12. S.P. Singh (PW-14), Sub Inspector has ‘deposed that the appellant has made disclosure statement of tape~recorder vide Ex. P/ 11 and the tape-recorder was seized from the appellant vide Ex. P/ 12. The recovery of tape- recorder is virtually of no use and another part of the evidence relating to electric wire used was not admissible in evidence. 15. As regards the question of motive is concerned, prosecution has clearly adduced evidence, speciiically the evidence of Ramkisun @ Ramkn'shna (PW—6), Rameshwar Prasad (PW-7), Nanku (PW-8) and Revaram (PW- 12), which revealed that there was serious dispute between the appellant and the deceased. The appellant was not ready to keep the deceased with him, but on the advice of Panchayat, he anyhow took the deceased to his house and within 3 hours, the dead body of the deceased was found in the well. If the circumstance relating to presence of the appellant and the deceased together is taken to be Hue then how the dead body was found in the well within few hours, tied with electric wire over the neck of the deceased and the death was not as a result of suicide, butwas as a result of throttling and homicidal in nature. If these cimumstances are considered together then only inference can be drawn that the appellant was the only person, who was the author of the crime and has committed the murder of the deceased Le. his wife-Kumudani Bai and no other person has committed the mmder of his wife. The Chain of circumstances proved that the appellant has committed murder of his Wife by throttling and thereafter he threw the dead body in the well. After appreciation of the evidence available on record, the 16. . e ¢ learned Courtbelow has convicted and sentenced the appellant . under Sections 302 of the IPC and sentenced for imprisonment of life. /\ 17. £ On close scrutiny of the evidence, We are of the considered View that the conviction of the appellant under Section 302 of the IPC is based on legal and clinching evidence, sustainable under law. 18. For the foregoing reasons, we do not hnd any illegality or irregularity in the judgment impugned. The appeal is liable to be dismissed and it is hereby dismissed. The appellant is on bail. He shall sunender before the Sessions Judge, Bilaspur for serving the remaining part of the sentence. a: u:‘ G Sd/- Sdl- T. P. Sharma R.L. JhanWar sunita Judge Judge