^r HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri R.L. Jhanwar, JJ. CriminalADpeal No. 1557 of 1994 Pyariram Sahu Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT lEatss.^ For consideration Sd/- Sunil Kumar Sinha Judge /; HON'BLE SHRI JUSTICE R.L. JHANWAR Sd/- R.L. Judge Post for Judgment : ^^/1 0/2010 Sd/- Sunil Kumar Sinha Judge ^\ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri R.L. Jhanwar. JJ. ^:a<!fe;i» ir Appellant Respgndent Criminal Anpeal No. 1557 of 1994 Pyariram Sahu son of Gandhiram Sahu, Aged about 39 years, Resident of Village Chirpoti, Police Station Pulgaun, Tahsil & District Durg, M.P. (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Appeal under Section 374 (2) of the Code of Criminal Procedure) Appearance: Mr. M.0. Dhote, Advocate for the appellant. Mr. Akhil Mishra, Dy. Govt. Advocate for the State. JUDGMENT (2?.10.2010) Following judgment of the Court was delivered by SunilJ<yjnar Sinha, J. (1) This appeal is directed against the judgment dated 28.9.94 passed in Sessions Trial No. 469/93 by the Fifth Additional Sessions Judge, Durg/ • "•^^- (2) By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo rigorous imprisonment for •\'life. Criminal Aoueal No. 1557 of 1994 ^,^Iite «sli The facts, briefly stated, are as under:- Deceased- Shivbati was the wife of the appellant. She was residing with her father-in-law - Gandhiram (PW-4) in village Chirpoti. The appellant has kept another lady in villaged Otebandh. He was residing in Otebandh, however, he occasionally used to visit village Chirpoti. On 18.5.93, the appellant came to village Chirpoti. He was present in the house of his father along with his wife (deceased). The appellant and the deceased were sleeping in a room. The father of appellaht Gandhiram (PW-4) was sleeping in another room. At about 11.00 p.m. Gandhiram heard the cries like '^73^-^73^ '. It was the cries of the deceased. Gandhiram (PW-4)called the villagers and they tried to open the door of the room in which the appellant and the deceased were sleeping. The appellant opened the door. They found that the deceased was lying dead in the room. A report (Ex.-P/1) was lodged by Ganeshram (PW-1). The Investigating Officer reached to the place of occurrence, gave notice (Ex.-P/2) to the Panchas and prepared inquest (Ex.-P/9) on the body of the deceased. The dead body of the deceased was sent for post-mortem. The post-mortem examination was conducted by Dr. K.K. Mishra (PW-5). The post-mortem report is Ex.-P/5. He noticed the following external injuries on the body of the deceased:- (i) Two deep abrasions 0.7 inch x 0.5 inch and 0.5 inch x 0.3 inch on the right knee; Two deep abrasions 1 inch x 0.5 inch and 0.7 inch x 0.5 inch on the left knee; Six abrasions on the back portion of right elbow size 0.5 inch x 0.5 inch, 0.7 inch x 0.5 inch, 0.5 inch x 0.5 inch, 0.5 inch x 0.3 inch, 0.5 inch x 0.3 inch and 0.2 inch x 0.2 inch; (") (iii) Baal Criminal Appeal No. 1557 of 1994 (iv) Three abrasions on back portion of left elbow size 0.7 inch x 0.5 inch, 0.5 inch x 0.5 inch and 0.2 inch x 0.2 inch; (v) Two deep abrasions 0.7 inch x 0.5 inch and 0.5 inch x 0.5 inch on the right side ofthe cheek; (vi) Eleven deep abrasions on the left side of the face size 0.7 inch x 0.5 inch, 0.5 inch x 0.5 inch, 0.5 inch x 0.5 inch, 0.5 inch x 0.5 inch, 0.5 inch x 0.3 inch, 0.5 inch x 0.3 inch, 0.5 inch x 0.2 inch, 0.5 inch x 0.2 inch, 0.3 inch x 0.2 inch, 0.3 inch x 0.2 inch and 0.2 inch x 0.1 inch; (vii) There was contusion and abrasion on the front portion of the neck at the position of thyroid size 5 inch x 1 1/^ inch. Margins were having blood & (viii) Larynx and wind pipe were congested. Lungs were also~ congested. The Autopsy Surgeon opined that the cause of death was asphyxia due to strangulation and it was homicidal in nature. The learned Sessions Judge recorded the findings that when the door of the room was opened, it was found that the appellant and the deceased, only two persons were inside the room, The appellant did not give any explanation as to how the deceased died / homicidal de&th in the room. Therefore, the appellant alone was '~-»- liable for punishment for the death of the deceased. (5) Mr. M£). Dhote, learned counsel appearing on behalf of the appellant, has rrot disputed the homicidal death of the deceased. He y\ CriminalApDealNo. 1557 of 1994 argued that theabove circumstances were not sufficient to hold the appellant guilty ofthe offence punishable u/s 302 IPC. (6) On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) It is not disputed that the deceased died homicidal death in the intervening night of 18.5.93 & 19.5.93. It is also not in dispute that the dead body of the deceased was found in a room in the house of the father of the appellant Gandhiram (PW-4). Gandhiram (PW-4) deposed that on the fateful night, he was sleeping in another room near the room of his daughter-in-law (deceased- Shivbati). hle heard her cries twice like lWI3ft-^nsit '. Hearing this, he immediately rushed to his neighbour Dinu Thakur. Other villagers were also called. They saw that the doors of the room of her daughter-in-law were closed frpm inside. They got opened the doors. His son f- appellant- Pyariram opened the door. Pyariram added that today he ''-» took the revenge. They saw that the deceased was lying dead inside the room. In the cross-examination, he was confronted with his case 'diary statement (Ex.-D/2) in which the words, spoken by his son like today he took his revenge is not there. Except the above omission in Criminal Appeal No. 1557 of 1994 3^1 iB'»a:as,rj| his 161 statement, nothing material could be brought on record on which either his testimony may be discarded or it may be said that he was making false allegations against his son. No material has been brought on record in any way to discredit the testimony of Gandhiram (PW-4). There is no reason that Gandhiram (PW-4) would depose against his own son, The evidence of Gandhiram (PW-4) is supported by the evidence of Ganeshram (PW-1) who deposed that when he reached to the house of Gandhiram (PW-4), he saw that the appellant was coming out from his house. Ganeshram (PW-1) also deposed that when he had a talked with the appellant, the appellant stated that he had done the said act. This portion of his evidence is an omission in the F.1.R. (Ex.-P/1) and his case diary statement (Ex.-D/1). The Sessions Judge held that they were not the material omission on the face of other evidence available on record. When the deceased and the appellant only two persons were inside the room and when the door of the room was opened, the appellant came out from the house and the deceased was found dead and no explanation was offered by the appellant as to how the deceased died homicidal in his room, therefore, it .was' a grave circumstances against the appellant / making him.liable for punishment. •t^. On due consideration of the entire evidence available on record, we find that the appellant did not offer any explanation as to ~^ bow the deceased died in the night. Even he did not speak a single ^ • .-/ Criminal Aripeal No. 1557 of 1994 word in his 313 Cr.P.C. statement. In Trimukh Maroti Kirkan -Vs- State of Maharashtra. 2006 AIR SCW 5300 interpreting the provisions of section 106 of the Evidence Act, the Supreme Court held that: .^^: "...... if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Court. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of comparatively lighter character. In view of S. 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give. a cogent explanation as to how the crime was committed. The inmates of the ta'ouse cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer anyexplanation. In case of no explanation or false Criminal Appeal No. 1557 of 1994 f^ explanation it would because an additional link in chain ofcircumstances." S:,ta ia.iit s^^is^ (10) In Raiasthan -Vs- Kashi Ram. 2006 AIR SCW 5768, it was further held by the Supreme Court that: ^ "Whether an inferenceought to be drawn under Section 106 is a question which must be determined by reference to facts proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. The respondent, accused having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by S. 106 ofthe Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt." The Court further held that: "...... The Principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus if a person is last seen with the deceased, he musl offer an explanation as to how and when he parted company. He must furnish / an explanation which appears to the Court to be '~-» probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon "f • him by Section 106 of the Evidence Act. In a case ^! ^ Criminal Appeal No. 1557 of 1994 W' l^? resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link inthe chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not thrown any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes thechain. The principle has been succinctly stated in Naina Mohd's case reported in_AIR 1960 Madras 218. (11) In the instant case-, the appellant has not thrown any light as to how the deceased was strangulated, how she received injuries and in what circumstances the incident took place. The Sessions Court has found that the room of the deceased was intact and there was also no evidence of access or indulgence of any other person. Therefore, in absence of any explanation by the appellant, who alone was admittedly present in the room, about the homicidal death of his-wife, the above circumstances w/ere sufficient to hold him guilty ofthe afor^said offence. -3\ <12) In view of the foregoing discussion, we are of the considered view that the prosecution has been able to establish the involvement of the appellant beyond all reasonable doubts and the circymstances referred to above were fully established by the ©rimmattetieaENo.1557 bf 1994 7®$^s's^^^^ ^•:SSfsr^S3SS W^'iBE'iJi prosecution by cogent and reliable evidence and the trial Court has rightly held the appellant guilty of the offence punishable u/s 302 IPC as the circumstances referred to above, lead to irresistible conclusion that the appellant was the author of the crime and there was no possibility of innocence ofthe appellant. (13) There is no substance in the ^ppeal. The appeal is liable to be dismissed and is hereby dismissed. It is stated that the appellant is on bail. His bail bonds are cancelled. The appellant is directed to surrender immediately to undergo remaining sentence imposed /<'<-'^ against him. y"' ——— —-——__ Sd/- Sunil Kumar Sinha Judge Sd/- R.L. Jhanwar Judge vatti