<p HIGH COURT OF CHHAmSGARH AT BILASPUR (DFVISION BENCHt Criminal Appeal No.2639 of 2000 Ashok alias Amarnath, Versus TheStateofM.P. ';ii!la. ''% Judament For Consideratioa Sd/- V.K.Shrivastava Judge "sa, Hon'ble Shri Fakhruddia, J. ;_ Fakhruddin Judge ^n.z^ POST FOR ^/OT/2005 - .-Sd/-_^ JUDGE ^/07/2005 HIGH COURT OF CHHAmSGARH AT BILASPUR (Division Beacli) CORAM : HON'BLE SHRI FAKHRUDDIN, J & HON'BLE SHRI VIJAY KUMAR SHRIVASTAVA, J. CRIMINAL APPEAL N0. 2639 OF 2000 AppeUaat Accused (In Jail) Ashok alias Atnaraath, son of SIiri Hiralal Patari (Pradhaa Gond), resident ofVfflage Salaka Jtilanbandha, PoUce Station - Baikunthpur, District Sarguja (M.P.) Versus Respoadent TheStateofM.P. through the PoUce Station Baikumthpiu-, Distnct Sarguja (M.P.) g:®%8ft^ PRESENT SIiri D.R.Sharma, Senior Advocate wi^h Shri B.D.Badgaiyan, counsel for tbeappellaat. Shri Akhil Mishra, Panel Lawyer for the respondent/State. JUDGMENT fDeUvered on 26/07/ 2005) Per Vijay Kumar Shrivastava, J. This appeal is dirccted against the judgment of conviction aad order of sentence dated 19/07/1997 passed by Additional^ Sessioas Judge, Maaendragarh in Sessions Trial No.263/96 whereby appeUant Ashok alias Amamath has been held guflly for coiiunittuig fhe offence puuishable under Section 302.af the Indiau Penal Code and has been sentenced to uadergo 2 . imprisoiunent for Ufe aud pay a fiiie of Rs.2,000/- aud iu default of payinent offine to undei^o additional R.I. for 6 monfhs. 2. Deceased Parvati is fhe wife ofaccused/appeUant, who along with her husband were liviag iu a rooiu taken froni Babulal aad Foolbai. The room.was ia tfae back portion of the house of Babulal aad Foolbai. The accused/appeUant was suspectmg the fideUty of his vrife Parvati on the assuiaption fhat she had illicit relation wifh her neigbbour Ramsingh. Therefore, veiy often, they used to quarrel over this issue. On the date of incident i.e. 12-5- 1996 around 12.30 P.M., they were quarreUuig. Parvati raised voice. Foolbai hearing her voice rushed iuto the room. of fhe appeUaat, where she saw deceased Parvati lyiag ia the'rooin aad the appeUant was standing fhereby armed witii ao. axe. Seeing Foolbai there, the appeUant atteinpted to assault her, fherefore, Foolbai / rusbed fi-oin there, came to her house, and iuformed her husband Babiilal that the appeUaat has killed his wife Parvati wifh an axe. Babulal caUed Dhamieadra and Bholasiagh aad apprised fhe fact to ttiein aad aU the fhree thereafiter went to the appellant's room.. They found the rooin bolted froin outside. They opened the door aad saw the dead body ofParvati lying iaside the room. 3. Foolbai reported fhe matter to PoUce. PoUce recordfceri; Mei^ iatunation, fhereafter, Paachaaama of dead body was prepared aad fhe dead body was sent to Coiainuruty Healfh Centre, Maaendragarh for autopsy. Froin spot, simple earfh and blood stamed earfh were seized. Dehati Nalisi was recorded. Accused was takea in.to custody. His blood staiued clothes were seized. On fhe ineiaoraadura offhe appeUant/accused, the weapon axe iavolved in -•-,,.L:^ .^i-?<:J^^^,=^U--. 3 the ofifence was recovered aad seized at fhe instaace of the accused aiid stateiaents of witnesses were recorded. Ou autopsy, Dr.S.K.Chanpuriya and Dr.S.K.Gupta found inultiple ittjuries on the body of Parvati, and expressed their opiiuon that, the mode of deafh is syncope due to ,shock resulting from excessive heniorrhage due to niultiple iajuries and the deafh was hoinicidal ia nature. They also coUected blood stauied clothes fi'oin the dead body and prepared two sUdes of vagiual sjnear for chemical exanunation. " f- Blood stained earth, plam earth aad clothes of deceased and ofher ardcles, clothes of fhe appeUaat/accused and axe were sent to Forensic Science Laboratoiy, Sagar. On cheiiiical exatnination, blood was found preseat ia blood staiued earth, over pieces of baagles, baugles, deceased's clotlies, pant ofthe appeUaat/accused aad over axe. After due investigation, Station House Of&cer, Manendragarh ffled chaUan ia the Court ofAdditional ChiefJudicial ^ Magistrate, Manendragarh, wbo coauiutted the case to Court of Session for trial. 4. The Additional Sessions Judge, Manendradgarh, fi'amed charge for offence puaishable uader Section 302 of the Jndiaii Penal Code and read over aad explaiaed it to the accused/appeUant, who abjuied his guilt aad claimed to be tried. His defence was that he has been. falsely itaplicated in fhe case. LCamed trial Court after appreciation of the evidence, held fhe appeUaat/accused guilty for offeuce piuiishable under Section 302 of the I.P.C. for comnuttiiig inurder of his wife Parvati and fhereby convicted aud sentenced fhe appeUant in the maaner as above nientioned. 5. Dr.S.K.Gupta aad Dr.S.K.Chanpuriya conducted post laortem aad subinitted fh.eir report i.e. Ex.P-8. Dr.S.K.Gupta, P.W.- 7, ia his statement deposed that on examiaation they fouad foUowing injuries on the body ofParvati ; - (i) aa incised woupd 5x1x5 cius. red ia colour over the chin towards right side directed upwards and posteriorly. On exploration of ttie wound, fhere was cuttiag of the miaadible bone along with muscle. ^one was cut iu size 3x1x2 cms. (ii) an iacised wound of 4x2x4 ciiis. red in colour directed upward aud posteriorly over fhe right teinple region, clotted blood present over the wouxid. Underlyiag niaxilaiy bone was cut, size 3x2x1 cm.s. (iii) an iucised wouad 5x2 cins. exteadiag to the braui dirccted DiediaUy upwards over r^ht teinporal region underlyitig temporal right bone of skuU cut size 3x1x1 cnis. / red iu colour clotted blood present over the wound. Braia was exposed through the wound. (iv) Fracture of right radius and ulaa bone at mid-shaft region. (v) aa iacised wouiid 4x2x3 cnis. directed iiiedially and downwards over fhe left side of neck, 5 cias. below the right mastnd process, icd in colour, niuscles and vessels were cut. 6. Dr.S.K.Gupta, P.W.-7 further deposed that mjuty No.4 was caused by hard and bluat object, whereas other mjuries were caused by hard aad sharp object. AU fhe iajuries were anti uiortein in nature and in fheir opinion, fhe inode of death is s^ticope due to shock resulting firoia excessive heinorrbage due to inultiple aati (&) 5 inortein iajunes aad deafh is hoinicidal in nature. Nothing substaatial has brought in his cross examiaation to discredit his evidence. ., .up^ENSBi^Ea'1- 7. Foolbai, P.W.-l ia her evidence deposed fhat at about 12 P.M., she heard the cry of Parvati, therefore, she went tp her room.. She saw accused/appeUant who had aa axe ia his hand and Parvati was lying there. Accused/appellaut also atteiapted to assault her with axe, ttierefore, she raa away froiu there aad informed her husbaad Babulal fhat accused - appeUaat Ashok has kffled his wife Parvati wittt axe. Her husbaud Babiilal apprised the matter to Dhannendra, fhereafter she accompanied with Babulal, went to fhe rooiu of the appellaat. The room was bolted from outside. Dharmendra opened the door. They saw Parvati lying inside fhe rooin and blood was ooziag from. her neck. She also saw ^ accused/appeUaat ruTining froni fhere. Parvati was dead. She lodged report i.e. Ex. P-1. In her cross-exaaiination, she disclosed fhat Parvati cried that she has been cut by axe. She also disclosed fhat accused/appeUant was standing near his wife Parvati. 8. Babulal, P.W.-2 deposed fhat around 12 P.M., he was sleepin.g. Her wife Foolbai came, awaked him and informed him fhat accused/appeUaut was chasing her. Accused/appeUaat has kffled his wife. He gave information to Bhagwan Singh aad Dhannendra. They aU went to fhe house of the accused/appellaEit. They saw the rooin closed aad door was bolted fi'oin outside. They opened fhe door aad found inside the rooni that fhe body of Parvati was lyiag. Her face, neck and soMiers were injured. 6 9. P.W.-3, Dharmendra and P.W.-4, Bholasingh deposed fhat the house of accused/appeUant was bolted fi-oni outside. After opeiiiag the door, fhey saw fhe dead body of Parvati. lymg inside the rooin. Dhannendra, P.W.-3 also deposed that he came to know fix>iii Babulal about fhe inuider of Parvati by accused/appeUant. w 10. The evidence of Foolbai, P.W.-l, Babulal, P.W.-2, Dharmendra, P.W.-3 and Bholasiagh, P.W.-4 does not siiffer fiiom aay infirmity so as to disbelieve fheir version. Therefore, froin their version, it is established that deceased Parvati and accused/appeUaut were inside the rooia at the relevant titue when Parvati was injzired. Foolbai saw accused/appeUaat standiug near deceased Parvati anned wifh aa axe, who seeiag Foolbai, atteiapted to assault her also. Thereafter, Foolbai also saw accused/appeUaut mnning away from. there. Inside fhe rooni, dead body of Parvati c was lyuig iu injured condition. 11. Meinoranduiii stateinent of accused/ appeUaat is Ex. P-2 aud recoveiy of axe on fhe ineinoraiidum is Ex.P-3. S.R.Dhriflahare, P.W.-13 has recorded the luemoianduin aad the axe on discoveiy inade by fhe accused has been. recovered and seized. In his evidence, he has supported fhe said fact, Dhannendra, P.W.-3 aad Sukaluram, P.W.-9, in. fheir statement, deposed that accused - appeUaat took Police aud others to the place where fhe axe was found hidden in a pit which was covered by leaves, and at fhe iastance of accused/appeBaat, fhe axe has been recovered and seized. Nofhiug substautial has been brought to discredit the above eyidence. Froin the aforesaid evidence, it is 7 proved that, aa axe has been recovered on the information given by fhe accused/appeUant. 12. Vide Ex. P-5, appeUaat's clothes have been seized. The seizure has been duly proved by the evulence of Dhannendra, P.W.- 3 and S.R.Dhritlaharc, P.W.-13. S.R.Dhritlahare, P.W.-13 also proved fhat all ftie seized articles were sent to Forensic Science Laboratory, Sagar for examiaation. Ex.P-17 is fhe report of Assistant Cheinical Examin.er, F.S.L., S^ar, wherefixiin it is clear fhat blood was found present over the paat of accused/appellant and axe recovered at the iastaace offlie accused. 13. No one had wituessed accused/appeUaut iuflicting mjuries to deceased Parvati. The case coinpletely rests on circuiustaatial evidence. Hon'ble fhe Apex Court rendering judgment ia the matter of Vilas Pandurang Patil vs. State of Maliarashtra, reported in (2004) 6 SCC 158 m paras 10 to 17 has observed as below : - 10. "It has been consistenUy laid down by this Court that where a case rests squarely on circziiiistantial evidence, fhe inference of guilt caa be justified only wheu aU fhe incrunuiatuig facts aud circuinstances are found to be iacompatible wifh the iuuocence of the accused or the guilt of any other person. (See Hukam. Singh vs. State of Rcgasthan, Eradu v. State of Hyderabad, Earabhadrappa v. State of Kamatctka, State of U.P. v. Sukhbasi, Balwinder Singh v. State ofPunjab andAshok Kumar Chatterjee v. State of M.P.] The circumstaaces froia which an inference as to fhe guilt of the accused is drawu have to be proved beyond reasonable doubt aud have to be shown to be closely connected wifh the pnacipal fact sought to be iaferred froiu those circum.stances. In Bhagat Ramv. State ofPurgab it was laid down that where the case depends upon the conclusion drawn froiii circumstances the cumiilative effect offhe circumstances inust be such as to negative the iniiocence of fhe accused aad bring hoiue the offences beyond auy reasonable doubt. 11. We inay also uiake a reference to a decision of fhis Court in C. Chenga Reddy v. Siate of A.P. whereia it has been observed fhus : (SCC pp. 206-07, para 21) "21. In a case based on. circuinstantial evidence, the settled law is fhat fhe circumstaaces iroin which ftie conclusion of giult is drawn should be fuUy proved aad such circuinstances must be conclusive iti nature. Moreover, atl fhe circumstances shouM be coinplete aud there should be no gap left in. the chata of evidence. Furfher, the -,proved circum.staaces m.ust be consistent onty with fhe hypothesis of fhe guilt of the accused aad totaUy inconsistent wifh his ituiocence." 12. In Padala Veera Reddy v. State ofA.P. itwas laid down that when a case rests upou circuiastantial evidence, such eviden.ee niust satisly fhe foUowiag tests : (SCC pp. 710-ll,para 10) "10. fi) the cucuiastaaces fix>ia "which au infereuce of giult is sought to bc drawn, inust be cogentiy aud firmly estabUshed; (2) fhose circuins^auces should be of a definite tendency uaerrmgly poiatmg towards guUt of the accused; (3) fhe circuiustances, taken cumLulatively, should form a chaia so coinplete that-there is no escape fix>in fhe conclusion that wifhin all huinan probability fhe criine was conunitted by fhe accused aad none else; and (•'!) fhe ciTcum.stRTitial evidence in order to sustain conviction must be complete aad incapable of explauation of auy other hypothesis thaa fhat of the guilt of the accused and such evidence should not only be consistent wifh. the guilt of the accused but should be uiconsistent with his innocence." 13. In Sta.ie of U.P. v. Ashok Kumar Srivasiava it was pointed out that great care inust be taken in evaluating circumstatitial evidence and if the evidence reUed on is reasonably capable of two mferences, the one in, favour of the accused niust be accepted. It was also poiiited- out fhat the circumstaaces reUed upoii ruust be found to have been fuUy estabUshed and fhe cuinulative efFect of aU the facts so established inust be oonsistent only wifh. fhe hypothesis of guilt. T 14. Sir AI&ed Wills in his admirable book WiHs' Circwnstantial Bvidenoe (Chapter VI) lays down fhe foUowing rules speciatly to be observed ia fhe case of circuiastantial -evidence : (1) the facts aUeged as fhe basis of a&y legal inference niust be clearly proved aad beyond reasoaable doubt connected with the factuia piobaadum; (2) the burden of proof is always on fhe party who asserts fhe existence of aay fact, which iufers legal accountability; (3) in all cases, whether of direct or circurastaatial evidence, fhe best evidence inust be adduced which the nature of the case admits; f4J in order to justtfy fhe iuference of giult, flie iaculpatory facts must be iucompatible wifh fhe iunocence of ftie accused and iacapable of explaaation, upon any other reasonable hypothesis fhaa that of his guilt; and (S) if there be any reasonable doubt of fhe guilt of the accused, he is entifled as of right to be acquitted. 15. There is ao doubt that conviction cau be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circum.stantial evidence laid down by fhis Court as far back as in 1952. 16. In Hamtmant Govind Nwgwidkw v. State ofM.P. it was observed fhus : (AJR pp. 345-46, para 10) ^ "It is well to remeiaber fhat ia cases where the evidence ^ of a circuiastantial natuie, fhe circuiasta.nces Irom which fhe conclusion of giult is to be drawn should iu the first inslance be ftiUy established, aad all fhe facts so 'establtehed should be consfetent oiily with fhe hypothesis of tlie guilt of the accused. Again, fhe circiuastaaces should be of a conclusive nature aad tendency and they should be such as to cxclude every hypothesis but the one proposed to be proved. In ofher words, there inust be a chaui of evMence so far coniplete as not to leave any reasonable ground for a conclusion consistent wifh fhe iuuocence of the accused aud it raust be such as to show that withiu aU human probabiUly fhe act must have been done by fhe accused." 17. A reference inay be made to a later decision iu Shccrad Birdhichand Sarda. v. State of Maharashtra. Thereia, while dealmg with circum.staiitial evidence, it has been held that the onus was on the prosecution to prove that the cham. is complete and the infirmity of ]acuna in the prosecution caruiot be cured by a false defence or plea, The conditions precedent ia fhe words of this Court, before conviction could be based on circumstaatial c^ 10 evidence, niust be fuUy established. They are ; (SCC p. 185, para 153) (1) the circumstances fixiia wluch the conclusion of guflt is to be drawn should be fuUy estabUshed. The circuinstaaces concemed inust or should and not niay be estabUshed; (2) the facts so estabUshed should. be consistent only wifh fhe hypotliesis of fhe guilt of the ac'fcused, that is to say, fhey should not be explaioable on any ollier hypofhesis except that the accused is guilty; (3) the ,, circuinstances should be of a conclusive'nature and tendency; (4) fhey should exclude eveiy possible hypothesis except the one to be proved; and (5) fhere inust be a chain of evidence so coniplete as not to leave aay reasonable ground for fhe conclusion consisteut with the ianocence of fhe accused aud inust show that ia all huinau probabiUty thc act must have beeri done by the accused."' 14. It is setUed that conviction can be recorded on the basis 1;^-::':'~ ^:'-!.^''- --^^^^^^'L^l"^^ ' •ffis-^^s^^t. of proved circuinstantial evidence, however, to convict a person on circuinstan.tial evidence, it is necessary to exauiiae ineticulously whefh.er fhe circuiustaaces arc consistent only with hypothesis of fiie giult of the accused and not be explaiaable on aay other hypothesis except that fhe accused is guilty. It is not necessai^' fhat a nuinber of circunistauces should exist, if there is only one circumstance which fuIBIs fhe above condition ttiat itself wffl be sufScient to hold the accused gmlty and if a nuinber of circuingtances are there, then fhey niust fonn a chain ofevidence so coiuplete as not to leave any reasonable grouud leadiag towards innocence of the accused and niust show that the offence ui all human probabiUties has been coinnutted by the accused and none else. 11 15. FoUowiag are the circum.stauces relied on aad proved by the prosecution ; - •g»> (i) appeUant/accused aud his wife Parvati at fhe time of iacident were inside the room.. (iij heariag fhe outeiy of Parvati, Foolbai caine there, who saw Paryati lyiug inside fhe rooin aud accused/appeUant witii an axe was standing by her side, who attempted to assaulted Foolbai. (iii) Foolbai gave infonnation to her husband, who niforined ofhers and when Babulal aud others went to the house of accused/appeUaut, they saw the room. bolted firoia outside. They opeued fhe door and entered inside, where they saw deceased Parvati lying there having various injuries on her vitalpart. / (iv) Accused/appeUaut was also seen by Foolbai ruTinmg froin her house. (v) On the memoraadum statement of accused/appeUaat, the blood stamed axe has been recovered aad seized, to which no explaaation has been given by fhe accused/appeUaat. (vi) The clofhes wom by the accused/appellaat at the relevant tmie was also found witti blood stettus and no explaaation has been offered by the accused/appellant. 16. AU fhe above circuinstanLces taken cuinulatively form. a chaui so coiuplete fhat there is 'no escape fixiin fhe conclusion fhat withia all huinaa probabilily the crune was conuxutted by the accused/appellaut and none else. 17. Leamed counsel for the accused/appeUarit contended that the death of Parvati was a result of grave aad sudden provocation, fherefore, at flie most, the ofFence agauist fhe appeUaut/accused can fall under Section 304 Part I of fhe I.P.C. They also placed reliauce .on a judgment rendered by High Court of Madhya Pradesh ia Gangaram vs. State of BS.P., reported ia M.P.W.N. 2000(1) S.N. 49. On fact, the case is distinguishable. The case relied on has fact and luaterial to show that the death was caused due to grave aad sudden provocation, but iu the nistaut case, no evidence is on iccord to show fhat, at fh.e relevant tun.e, fhe accused/appeUaat assaulted his wife, as a result of aay grave aad sudden provocation.. wsssssa^- 18. Leamed trial Court after duly evaluating fhe coiaplete / evidence veiy correctly held fhat accused/appeUant is guilty for coTnmittuig ruuider of hls own wife Parvati aad righfly convicted and sentenced fhe appeUaat uiider Section 302 ofQleI.P.C. The unpugued judgnient of conviction aad sentence does not sufFer finin. any infimuty which niay catl for aay iaterference by this Court. 19. In the result, the appeal fails aad fe dismissed. Sd/- Fakhruddin —-Judge Sd/- V.K.Shrivastava Judge S.Singb