^ HIGH COURT OF CHHATTISGARH AT BILASPIIR &iaalnal Appeal No.144/1992 APPELLANT VERSUS Shyamsimder S/o Ghasiyaram Majhwar, aged 25 years, R/o Salhepali, P.S. Ghai^hoda, District Ra^arh RE8PONDENT State of Madhya Pradesh (Now Chhattisgarh) Through P.S. Ghar^hoda CRIMINAL APPEAL UNDER SECTION 374 ( 2 |OP THE CODE OF CRIMINAL PROCEDURE Appearance: Shri Abhay Tiwan, counsel for the appellant. Shri Rakesh Kumar Jha, Dy. Govenunent Advocate for the State. Divlsion Bench:- Hoa'ble SIui T.P. Sharma & Hoa'ble Shri R.L.Jhanwar,JJ Per T.P.Sharma, J. ORAL JUDGMEWT (16.02.2010) I. Challenge in. fhis appeal is to the judgment of conviction aad order of sentence dated 26.10.1990, passed by the Sessions Judge, Raigarh ia Sessions Trial No. 65/1990, wiiereby and whereuiider fhe leamed Sessions Judge after holding the appeUadt guUty for coinnussion of culpable hoiaicide amountuij to murder of his wife Bai'atobai, couvicted the appeUaut under Section 302 of the IPC aad sentenced to undergo ioiprisoiuneut for life. ..33'^- ^'"'•..s^ 2. The judginent impugiied is cbaUenged on the ground fhat without aay evidence^ except the presence of fhe appeUaat near the injured- Baratobai, the Court below has convicted aad sentenced ftie appeUaut as aforementioned aad thereby comiuitted iUegaiity. 3. Prosecution case in brief is that on the fateful day of 2.4.1990, at about 5.00 p.ni., body of Baratobai was found in. fhe forest ia badly itijured condition. The appeUaat was staudiag near the body of Barafobai, who was his wife. Wtule Anaiidram (PW-1) was coining fToni fhe forest after cutting fhe wood, he saw the appeUaut near fhe body of his wife. The appeUant told to infona the parents of fhe deceased aad he m.ade extra judicial confession before Tiim ftiat he lias assaulted fhe deceased- Barafobai. Anaudram (PW-1) lodged P.I.R. vide Ex. P/l. Merj iatimation was also recorded vide Ex. P/22. Afiier sununioniag the witnesses, iaquest over .the dead body of Baratobai was preparcd vide Ex.P/2. One arti&cial necklace, one sari and one blouse was recovered froin ttie spot vide ex. P/3. One gmnchha, platu soil aud btood stained soil was recovered from the spot vide Ex.P/4. The dead body was sent for autopsy to Priiiiary Healfh Centre, Ghai^hoda vide Ex. P/17. Autopsy was conducted by the teain of Doctors vide Ex. P/12 and found 50 injuries aU over fhe body of fhe deceased aad.death was homicidal in nature. The accused/appellaat was taken in.to custody. He made disclosiLre statement of clothes and wooden. plaak vide Ex. P/5. Wooden plaiik was recovered at fbie instauce of the appeUant vide Ex. P/6 an.d ^i/ofher wooden plaak was recovered froia fhe appeUaat vide Ex. P/7. Blood staiaed-shirt was seized froin fhe appellant vide Ex. P/8. Sealed clofh.es offhe deceased were recovered vide Ex. P/18. Patwari prepared the spot map vide Ex. P/15. Seized articles were sent for chemical examination to FSL vide Ex. P/20. rf"iy.fe ^-^i; ta. %^:¥s^y "tt; :;;,»ei^'' Slateinents of fhe wituesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (ia short "fhe Code"). 4. After coiapletion of iavestigation, chat^e sheet was filed before fhe Judicial Magistrate First Class, Raigarh, who iu. tam, comitiitted the case to fhe Court of Sessions, Raigarh, who conducted ftie trial, 5. ln order to prove fhe guilt of fhe accused/appeUaat, prosecution has examiued as niaay as 11 witaesses. Accused was examined under Section 313 of ttie Code, where he denied fhe circuiastauces appearuig agam.st hira, pleaded innoceuce and false impUcation. 6. After affordiag opportunity of heariug to fhe parties, leamed Sessions Judge has convicted aad sentenced the appeUant as aforeiaentioned. 7. We have heard Shri Abhay Tiwari, leamed couasel for the appellant aad Shri Rakesh. Kumiar Jha, leamed Dy. Govenuaent Advocate for fhe State, perused thc judgment aad record of the trial Court, :li. '. ii' ! 8. Leamed counsel for the appellant vehemently argued that prosecution has not proved ite case beyond reasonable doubts, pnly the presence offhe aceused/appeUaiit near fhe dead body of fhe deceased is not suf&cient for diawiag aa iaference fhat the appeUantMas coiamitted miuder ofthe deceased. Ir . 9. On fhe other hand^earaed counsel for fhe State opposed these arguiaents and subiaitted that fhe evidence of Auaadraia (PW-1) and Kasluram. (PW-7) is suflicient for drawiug an inference 1 ..^' »y .:^:s';- ^- •;3^'iia8 that the appeUaat has caused honucidal deafh of the deceased amouiituig to niurder. 10. In order to appreciate the arguinents advanced on behatfof the parties, we have examined the evidence adduced on behalf of fhe prosecution. 11. In the present case, homicidal death as a result of 50 iiijuries over fhe body of the deceased has not been substaatiaUy disputed by the accused/appeUaat. The deceased was exaauiied by Dr. Maaoharlal Thawait (PW-8) vide Ex. P/12 and found 50 iajuries over her body. The iujuries were aate inortein and death was honiicidal in nature. 12. As regards fh.e coinpUcily ofthe accused/appeUant ia criine in question is concemed, fhe conviction ofthe appcllaat is based on stroag ctrcuinstaatial evidence of Anaiidram (PW-1) aad Kashiram (PW-7), who have deposed in. fheir evideuce that at the tune of iucident, when. they were comiag after cutting the wood from fhe forest, dead body of Baratobai was lyiag near the Jfala aad appeUaat was standiag aear fhe dcad body. The appeUaat told to Kashiram (PW-7) fhat 'see your daughter-in-law'. On wbich, he went and saw that fhe body of Baratobai was lying fhere aad blood was ooziug out firom. fhe earlobe of fhe deceased. Ov. beiag asked fixim the appeUaiit, he has not offered auy explariation, 13. Alfrfough, prosecution has declared these witnesses hostile, but the fact fhat fh.e dead-body of the deceased was fying near Nala in fhe forest aud fhe accused/appeUaat was staadiug near fhe dead body is uiichaUenged ia fheir evidence. The dead body of the deceased was fouiid in ttie forest near fhe Nala aad the J '-t- appeUaat was present there. 50 injuries were found over the dead body of the deceased and fhe appeUant has uot offercd any explanation fhat who has caused fhe uyiuy to the deceased, how she received the uyury.'These are the adverse circiimstaaces agaiast fhe appeUaat and in absence of any explanation, only hypothesis would be possible thafr the appeUaat was fhe person who has caused the injuries to Baratobai, who was her keep and has caused her death aad except the appeflaat nobody has caused the deafh of fhe deceased. 14. Afier appreciatmg the evidence available on record, fhe leamed Sessions Judge has convicted aad sentenced the appeUaat as aforeiaentioned for conunission of the offeuce of niurder. 15. In fhe piesent case, the evidence adduced against fhe appeUan.t is sufficient for drawiag an uiference that ftie appeUaut has coiiunitted inurder of the deceased-Baratobai, who was his wife. The conviction of the appeUant is based on legal and clinchiug evidence, sustaiaable under the law. siinita 16. On close scrutiny of the evidence, we do not fiiid aay fllegality or iafiniiily in fhe judgnient impugned. The appeal is devoid of merits aad is liable to be dismissed aad is accordiugly dismissed. The appeUaat is on baU. He shatl surrender hunself liefore the Sessions Judge, Raigarh for serviag fhe reiuaining sentence. Sd/- T.P. Sharma Judge Sd/" R.L. Jhanwar Judge