Oivision Bench (Criminaf^ IH1BE HIS-I COUBa- OP JODICATUKE AT J-AB&LPUR Critninal Appeal Ho, S'^8 /99 APPELLA-i' 1 Metiabir Son of Khursal .panika aged aboa-fc26 years CultivatOE,residen'fc of Bisesara.police Station Harwahi Distt.Bilaspur. VERSUS RESPOHD3NT The State of M.S. CBIMINAL PSSL UNDER SECX'ION 374(2) C8IMZNAL PROCEOOBE Dr. A..S.Kar6si.~a~rT3sr-^rr-—^_ —2 ^ g^ '2?"" 8- XI-HC-78 1||*1<»11 shMI* 3^T •^l-illcl^, ®T(1<d'ls,fs|diyi^< ^-^ ..f;<..^...^A.'^^lS0 * * ^_i-* ••*** *'»l* * * ^* J*^* ^sw- 3il^l ^ach (>i<:<f^cf^liT) sn^rcfirf^TN; gsirsn^Tgiqiq, STctTWBfgcI'ST^T ^iTZlfe*!'WRffif tecrfr (f^RSR ^sTf^R'sn^r Division Bench: - Hon'ble^ShriL^;. Bhadoo & Hon'ble Shri Dhirendra Mish1-a. JJ. 23-2-2007:- Miss Nirupama Bajpai, Mr. Sudhir Bajpai, Depi Oral judgment dictated Per L.C. Bhadoo. J. This appeal is directed of sentence dated 9 January Judge, Bilaspur, Link Pendra Additional Sessions Judge a1 commission of offence under undergo imprisonmentfor life. ^ounsel for the appeltant. )ty Govt. Advocate for the State/respondent. t>n Dafe. ^igainst the judgment 6f conviction and order 11999 passed bythe 4 Additional Sessions Road, in S.T. No.241/98 whereby learned |er holding the accused/appellant guilty for ISection 302 ofthe I.P.C., sentenced him to The case of the prosec incident father of deceased that day,in the evening at to the house of his father-in-1 in the wee hours on 21/5/9< village Visheshara. On th^ Visheshara came and info deceased, that if she wants ti| village Visheshara. Therea^ informed Laliya Bai that her| which Laliya Bai along with| |;ution is that one day prior to the day of the S^iraswati had gone to village Sindhaura. On altout 6 p.m. accused/appellant Mahabir went aw Ratiram. He stayed there for a night but without informing anybody he left for his day at about 11 a.m. Kotwar of viilage 1-med Laliya Bai (R/V-3), mother of the see face of her daughter, she should go to ^er, Kotwar of village Sarbehra Ramhai daughter has died in her in-laws house, on her sister Sonkunwar (PW-2) went to the P.T.O. XI-HC-78 3^T '<<l<llc1'll, ®Tf)<-l*ld,fsldltiy *11*^TT ShHlch ^T 200 311^1 4a<»> (iyi^°<<^!ST) sn^refirR-ficb (W3TCTsb>i|cti s^ciTWflfN'sn^r ^Flfeft;T WRcff ff fet^ rfsTRTC ^ari^q'sn^r Sarp^nch tHat matter village Visheshara and saw of the village were sitting. body of Saraswati. They saw region, which raised doubt, the^ they went and reported the maj which they were informed that] station, by thattime night had a| in village Sarbehra. In the nigM informed about the incident i.ej and his wife went to the police ^ Ex.-P/1. The station house Visheshara, after giving notice on the body of Saraswati. At tl| who were present on the spot v| murdered by inserting a Lathi i| was sent for postmortem with Dr. S.P. Shukla conductedl report Ex.-P/10 and opined tha| due to excessive haemorrhagl receiving postmortem report, registered. Sarlaswati ir|aswati on the spot. Sarpanch and Kotwar asked them that they can go and see there were injuries on waist and gluteal asked the accused not to burn the body, to the police station Pendra Road, on the matter relates to the Marwahi police |ready set in, therefore, they returned back Ratiram had already returned and he was death of Saraswati. Thereafter, Ratiram s[tation Marwahi and lodged merg intimation o|fficer police station went to the village |to the Panchas, prepared inquest Ex.-P/S ie time of preparation of inquest, panchas (ere of the opinion that Saraswati has been her vaginal part. The body of Saraswati where Dr. A.R. Karoriya (PW-10) |the postmortem and prepared postmortem cause of death was hypovolaemic shock j^ from vagina, cervix and uterus. After First Information Report Ex.-P/11 wa.s exantiination After completion of the ir) the accused in the court of Jud committed the case to the Sesl Additional Sessions Judge ir^vestigation, charge sheet was filed against |icial Magistrate, Pendra Road, who in turn iions Judge, Bilaspur, from where learned the case on transfer for trial. recelived P.T.O. '?-& XI-HC-78 3^ "i|l'4H'4, ES'Tny'ie, (siiiiyy,< HI+1WI ShHlch ¥R; 200 3<1^!*1 4sl* ('i^S-l'a't.ff) an^rwR-ii* trairsn^rgiiTR; ?T(ITW:Hf?(T3TI^T »hl^Td''fl-lWRfffffe><fl <RIW,K ^arf^iTsn^r The prosecution in o rder to establish the charge against the accused examined 13 witnessles. Statement of the accused was recorded under Section 313 of the Cr.lf.C. in which he denied material appearing against him in the prosecu|tion evidence, stated that he has been implicated merely on the suspjcion. On the date ofthe incident he was not at his residence, since last|15 days he was in Deori Khurd at the residence of Santu. Sarasw^ti was not well. There was bleeding on account of which she became| weak and there was swelling on her body. There were wounds in the vagjnal part, therefore, she died. Two witnesses namely DW-1 Mangooradhin ^ai and DW-2 Santu Ram were examined in defence. Learned Additional Sessions Judge after hearing counsel for the respective parties, perusing fhe record, convicted and sentenced the accused as aforementioned. We have heard judgment and record ofthe tria At the outset, learned c from illness and on account of developed in private parts and, counsel for the parties and perused the Court. ounsel for the accused/appellant submitted that death of deceased Saras(fl/ati was not homicidal. She was suffering bleeding she became weak, even wounds therefore, she died. On the other hand, l^arned counsel for the respondent/State supported the judgment of the l|rial Court. In order to appreciate atguments advanced by learned counset for the appellant, we have perus|sd post mortem report Ex. P-10 as also evidence of Dr. A.R. Karoriya (pW-10) one of the doctors who conducted post mortem on the body of S^raswati. He has stated that on 23.5.1998 P.T.O. 'Xr XI-HC-78 3 T 3(FIT?PT, (SiTfi^'ls, Rlcll+l^ iTW^TTgi^lcb wr 200 ail^l 4d* ('i^Ig'^^) sn^T^iTls-lich aw sii^i *ti ?RITWHf?(T3n^T t+ii-yit-i'fl-i KitidTirfal<? <.Riwi< ^sri^TTsn^r he conducted post mortem <| miggots in the body. Body w^ the body, body was in swollen 'n the body of the deceased, there were s putrefied and smell was emanating from condition, there was swelling on her private parts, there were contusions ii|i both gluteal region three in number which appeared to be ante mortjem in nature. Four contusions in the infrascapular region covering ^he both sides of thorax (posterior aspect). On account of injuries on priv^ite parts and excessive bleeding and shock Saraswati died. In his opinior) death was homicidal in nature. In cross- examination he has stated th^t injuries found on the private parts were unnatural, therefore, he has |?pined that death was homicidal. He has further stated that there was | clotted blood and there were injuries on private parts, such injuries cc]uld not have been caused on account of menstruation cycle. Doctor h^s categorically stated that injuries which were found on the private partsj, gluteal region as also infrascapular region establish the fact that deatH was homicidal in nature. There is no explanation coming forth frorr( the accused that how contusions were present on the body of Saras|wati over gluteal as well as infrascapular region. These injuries could n^. be caused on account of illness. These injuries coupled with the evid^ that accused made extra judic nce of PW-5 Ramcharan who has stated ial confession before him that he caused injuries to his wife by inserting ^ Lathi in her private parts establishes that death ofthe deceased was honticidal in nature. As far as the involvem^nt of the accused/appellant in crime in question is concerned, in this i|;ase there is no direct or ocular evidence. The whole case rests on the bircumstantial evidence. tn order to base conviction on the circumstantia evidence, the Hon'ble Apex Court in the P.T.O. /.r~' ^-•^ XI-HC-78 7=r "4|^|cf'4, (Sifl^'is, Ridi'My qTqcll sh*1ich WT 200 341^1 y^* (^t^^ff) 311^1qirR-l (WT^II^Isbll'* ?R(TW:?rf?cT3n^r iWlfefrq-WRtfffte^'tfeSR ^sTl^irsn^r matter of Dhananjoy Chatteijee Vs. State of W.B. reported in (1994) SCC220heldthat "In a case base circumstances from on circumstantial evidence, the which the conclusion of guilt is to be drawn have not only] to be fully established but also that all the cireumstances s<)> established should be of a conclusive nature and consistei|it only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being ex^lained by any other hypothesis except the guilt of the accus]ed and the chain of the evidence must be so complete as n|ot to leave any reasonable ground for the belief consistent needs no reminder 1 with the innocence of the accused.It hat legally established circumstances and not merely indig|nation of the court can form the basis of conviction and th^ more serious the crime, the greater should be the care Itaken to scrutinize the evidence lest suspicion takes the p|lace of proof." The prosecution has tried to e^tablish the charge against the accused on the basis of following circumsta]i (i) The accused mad^ Ramcharan and othe nces:- extra judicial confession before PW-5 r persons; Homicidal injuries we^-e found on the body ofthe deceased. Learned counsel for the of death of the deceased accu established by the evidence of ' accused/appellant argued that at the time sed was not present in his house which is iefence witnesses. Even though, DW-2 Sarjtu Ram has stated that since last 15 days the accused was working at t(is residence but his evidence cannot be believed in the face of evidenc^ of Ramcharan PW-5 who has stated that when they went to the house | Saraswati, wife of the accused, rf the accused after hearing the death of ^he accused was present in the house. On P.T.O. '£-'^ XI-HC-78 3^cT "i|l<l<lcl'i|, »xn<d'16, Rlcliyy (nNcri s»i*n^i ^ 200 311^!jl| Md* (li,<:l(^G"«,gr) sn^TqiiR^itti craT3lK<!!lstit||cb ?TciTW;?rf?(r3n^?r +l^?f<'i|1-< ^IKdT^'fScil'<(al<^K ^a.rf^Tsn^T inquiry the accused in the fir^ any crime. However, thereaf inquired from him, then he sa|i wife by inserting a Lathi in hei) the confession was voluntary 41 t instance said that he has not committed ter, when they took Mahavir aside and id that he has committed the murder of his vagina. Now the question remains whether nd true? Learned counsel for th^ of making extra judicial conf^ssion judicial confession made by th^ appellant further submitted that at the time police was present, therefore, extra accused cannot be said to be voluntary. initial thlat But the evidence of O police came in the house initi and denied the crime. Thereal came out with a confession by inserting a Lathi in her vagi taken aside, there he disclosei be held that the said extra judii police. As far as truthfulness support from the medical evh there were injuries on gluteal were also in vaginal part. The be self inflicted. Therefore, in judicial confession that he cau private part of the deceased evidence, therefore, extra jud voluntary and true. PW-5 Ra present in the house, therefor VV-5 Ramcharan shows that even though lly the accused did not disclose anything ter, he was taken aside where the accused he has committed the murder of his wife |nal part. Therefore, when the accused was (I this fact to the villagers, as such it cannot ^ial confession was made in presence of the |of the confession is concerned, that finds ience in which the doctor has stated that ^s well as infrascapular region and injuries said injuries were unnatural which cannot |the first instance, the accused made extra ^ed those injuries by inserting a Lathi in the (which stands corroborated by the medical i|cial confession made by the accused was ilncharan has stated that the accused was ^, defence of the accused that he was not P.T.O. ,(="' '^ XI-HC-78 'Svl "l<|<l|d<), »T(1+I'IS, (slOI'My +11*<MI sh+llth ^ 200 311^1 Mach ('i?lt'l':tS.i£T) sn^rwR-ficb gwan^rsbMich ?T(ITCRBf?tT3;n^T »bl^lf<-f41-f^l4dTiftecil'<[«l<s:K ^arf^R'an^T present in the house at the tir|ne of commission of crime is belied by the evidence of PW-5. As far as second cii(i discussed in earlier part ofthe] has stated that homicidal injurif and vaginal part were found, this also supports the fact that siifcumstance is concerned, as has been judgment about the evidence of doctor who i^s on gluteal as well asinfrascapular region #\ose injuries cannot be self inflicted, as such (he injuries were inflicted by the accused. Leamed counsel for judgment of the Apex Court in M.P. reported in 2003 (1 l |the accused/appellant relied upon the |the matter of Ashish Batham Vs. State of MPlHT 1 (SC). We have perused the mere suspicion, however, str< substitute for the legal proo commission of a crime and standard of proof required. staid judgment wherein it has been held that >ng or probable it may be is no effective required to substantiate the charge of ^rave the charge is greater should be the In the present case, a^ made extra judicial confession| PW-5 is an independent witne|ss. the accused so as to implicate| his own wife. Moreover, homi|! plea of the accused that he commission of the crime, is based on extra judicial confes|sion deceased and the fact that accused, irresistible conclusiorl has been discussed earlier, the accused Ibefore PW-5 Ramcharan and the villagers. i|ss. He has no animosity or grudge against Ihim in serious crime like murder that too of i|cidal injuries were found on the body, the Iwas not at the residence at the time of not established. In these circumstances, i, homicidal injuries on the body of the drime was committed in the house of the can be drawn that accused was the author P.T.O. XI-HC-78 3 r ^i^iid'4, ^Tfl'M'ie, 15|tni'M^< . r-f~.^.No.'S'<&/3-3 WTFTT^TTT^ "r'"1""""""t" ^FT 200 311^1 4ach (>ic<(3s«<]iT) sn^TiRrf^TN? iraT3ll^lEtlH ?raRR^f?tT^T^T tii''<rci<fl-f *ii*«nT^''teIfl'<Ri<^i< ^isif^Hsn^T • of the crime in question as Saraswati. In the result, we do not 1 there was none else to cause death of Ind any illegality or infirmity in the judgment of the trial Court. The appe^l being devoid of merit is liable to be -diaroissed. It is accordingly disjnissed. Sd/- L.C.BHADOO Judge ~————