HI DIVISION BENCH: J'U N & HON. MR. R.N. CHANDRAKAR JJ N CRIMINAL APPEAL NO.344 OF 2005 Gangar'am Safnami Versus Sfa‘re of Chhuffisgqr'h r 1 Stu. I DEERENDRA MISrIRA ‘ Judge \ HON'BLE MR. JUSTICE RN. CHANDRAKAR Sd/— R.N. Chandrakar z Judge If), jw ‘XA 1 Sd/— I Dhh‘endra Mishra . a ¥' " Judge azo -16l20b9"¥ W \‘ DGMENT FOR CONSIDERATION W: PosT FOR JUDGMENT ON Q! -10—2009 7 \ GH COURT OF CHHAT‘IISGARH AT BILASPUR \ HON. MR. DHIRENDRA MISHRA \ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON. MR. DHIRENDRA MISHRA, & HON. MR. R.N. CHANDRAKARI JJ CRIMINAL APPEAL NO.344 OF 2005 Appellant/Accused Gangar'am Sa‘rnami (Joshi), aged about (In Jail) 40 years, S/o Lafe Shri Hukumchand Joshi, Residem‘ of Village Kalyanpur, P/S Dongergarh, Dis’rr-icf RaJnandgaon (CG) Vs Respondent fa‘l‘e of Chha‘h‘isgarh. \ hf: ‘ Present: Mr. P.K.C. Tiwar'y, Sr'. Advoca‘re wi‘rh Mr. Shashi Bhusan, Advocafe for appellant Mr. Kishore Bhadur-i, Addifional Advocafe General for The Sfa’re. JUDGMENT (Delivered lon «3 l . 10.2009) Dhirendr‘a Mishra, J: 1. The appellan’r has preferred‘fhis Criminal Appeal under Sec’rion 374 (2) of the Cr.P.C. against the judgment dated 02.03.2005 passed in S.T. No.192/04 whereby the learned 15* Additional Sessions Judge, Rajnandgaon has convicted the appellant under Sections 302 & 201 of the I.P.C. and sentenced him to undergo life imprisohment and fine of Rs.2;OOO/, in default additional R.I. for 6 months and RI. for two years 3 p and fine of Rs.1,000/— in default additional R.I. for 3 months respectively for causing homicidal death of Bhukhin Bai. 2. Case of the prosecution, in brief, is that on 4.7.2003 Jai Kishen Panika gave morgue intimation (Ex.P—10) stating therein that wife of appellant namely Bhukhin Bai died due to burning in the night of 3.7.2003. After registering the morgue intimation, the police proceeded for the scene of occurrence, prepared inquest over the person of deceased vide EXP-12 and thereafter sent the dead body to Primary Health Centre, Dongergarh for autopsy vide EXP-19. Dr. 5. Choudhary (PW—11) conducted postmortem and gave his report of EXP—19A. On 4.7.2003 plastic jerry-cane __containing 100 mili liters of kerosene lying near the dead body of Bhukhin S r\ Bai, bur-111‘ pieces of saree warn by The deceased having smell of kerosene, plain soil near the dead body, two burn‘r s‘ricks of mo‘rch—box and broken log was Taken info possession from The place of incidenf vide EXP-13. A leaf of a copy wrif'ren on bofh sides (Ex‘P~16) from the pocke’r of The shirT of The appellanT was Taken inTo possession vide Ex.P-14 on The same day. Since Dr. 5. Choudhary (PW—11) did noT give any opinion regarding cause of deaTh, query ,of Ex.P-20 was senT To himon 19.7.2003 and he gave his opinion on 25.7.2003 vide Ex.P—20A and opined ThaT cause of deoTh may be due To eiTher ThroTTling or burning, buT finai opinion will come afTer microscopic examinaTion of viscera. ComplainanT SaTyapai Khobragade (PW-1) iodged a compiainT (EXP-1) in The CourT of learned AddiTionol Chief Judicial MagisTraTe, Dongergarh on 29.1.2004 againsT The appellonT and co-accused Suhaga Bai. Learned AddiTional Chief Judicial MagisTraTe forwarded The copy of The complainT (EXP-1) To The SToTion House Officer, Police SToTion Dongergarh and direcTed To TreaT The complainT as FIR, regisTer- The offence and submiT final reporT by The nexT daTe i.e. 5.2.2004, or before. . On The basis of above complainT, offence under SecTions 302, 109 & 201 of The IPC was regisTered vide EXP—22. Copy of decision (EXP—23) Token in The meeTing daTed 21.5.2002 of Village Kalyanpur, wriTTen admission of Mansha Joshi & Gangaram Joshi (Ex.P-4'& P-5) were Taken inTo pDSSession vide Ex.Ps2 on being produced by The complainanT SaTyapal Khobragade. SpoT map was prepared vide Ex.P-6. Nazri Naksha (EXP—18) was goT prepared by Halka PaTwari Munna Lal Bisen (PW—8). ArTicles seized during invesTigoTion, pieces of Trachea, liver 6i hearT of The deceased Bhukhin Bai, salT SoluTion, plasTic jerry-cane conTaining keroSene, semi—burnT cloThes, plain soil seized from The place of incidenT were senT for chemical analysis and reporT of The FSL is Ex.P—21. . AfTer compleTing invesTigoTion, charge sheeT was filed againsT The accused persons in The CourT of learned Judicial MagisTraTe FirsT Class, Rajnandgaon, who in Turn commiTTed The case To The CourT of Sessions Judge, Rajnandgaon and The same was received on Transfer by The learned AddiTional Sessions Judge for Trial. The Trial courT framed charge under r l flfa' . ' Sec’rions 302 & 201 of IPC agains? the appellant and co-accused Suhaga Bai, who abjur'ed Their guilt During ’rr‘ial, fhe prosecu‘rion in order To esfablish ‘rhe charge against the accused persons examined 12 witnesses in all. Thereafter, sia‘remen‘rs of accused persons were recorded under Secfion 313 of The Cr.P.C. in which fhey denied fhe circumstances appearing againsf ihem in 'rhe prosecu‘rion case, pleaded innocence and false implicafion due ’ro animosity with ‘rhe compIainanT Safyapal Khobragade. They also stated that Satyapal has framed them in conspiracy with other witnesses who belong to his camp. Dr. Sanjay Bakshi was examined as defence witness. Learned trial Court after hearing the Iearned counsel for the respective parties, convicted & sentenced the appellant as mentioned above. However, co-accused Suhaga Bai was acquitted with a finding that there is no evidence against her that she resided in the appellant's hOUSe on the date of incident, on the contrary she resided with his brother Vidyadas and accordingly she was acquitted from all the charges by extending benefit of doubt. . Learned trial court in Para—4 of the impugned judgment has set three issues for consideration and while dealing with Issue No.1 'whether deceaSed Bhukhin Bai died homicidal death', the Iearned trial court extensively dealt with the evidence of Dr. S. Choudhary (PW—11), who has proved his postmortem report, opinion given by him on query of Ex.P-20A, and after dealing with the evidence of Dr. Sanjay Bakshi, who has been examined by the accused persons, has concluded that Dr. S. Choudhary has opined that cause of death could be either throttling or due to burning and final opinion could be given only after microscopic examination and Dr. Bakshi has agreed with the opinion of Dr. Choudhary. However, from the report of the FSL, it is established that in trachea, liver and heart of the deceased, carbon particles were found absent. Dr. Choudhary on specific query by the Court has opined that absence of carbon particles leads to inference that she was set on fire after death. From perusal of the site plan prepared by the police and Nazri Naksha of Ex.P- 18 prepared by the Halka Patwari it is evident that the place where dead body of deceased was found was nof an open place and in ’rhese circums’rances, he agrees wifh the opinion of Dr. Choudhary who has s‘ra?ed fha‘r in 1he absence of carbon particles, The cause of death of Bhukhin Bai was throttling and thus, her death is homicidal in nature. has held that the appellant and the deceaSed are husband and wife, they resided together in the house where the incident took place. Rejecting the defence of the appellant that at the time of incident grill gate was locked from inside and he was out of the‘house and his son went inside and opened the gate, a presumption has been drawn that both were inside the hou3e when the incident took place. Further relying upon the circumstance that there is evidence available on record that both husband and wife had illicit relations with others, it cannot be said that relations between them were not tenSe and that container of kerosene was subsequently planted, the trial court has held that the appellant himself committed murder of his wife and thereafter with an intention to cause disappearance of evidence to screen himself he burnt the dead body and convicted 6i Sentenced him as mentioned above. argued that finding of the trial court that the deceased died as a result of throttling is baSed on no evidence. There is no ocular or medical evidence to establish that the deceased died as a result of throttling. Extensively referring to 22“ Edition of Modi's Medical Jurisprudence and Toxicology and evidence of Dr. Choudhary & Dr. Bakshi, it was argued that .lJ finding of the trial court in this regard is erroneous. He further argued that finding of the trial court that at the time of incident the appellant was present inside the house has also been recorded by ignoring the Referring to the evidence of Bhaiyaram (PW-3) and Haridas (PW-4) & Barelal (PW-7) it was argued that the appellant and the deceased were living peaceful marital life. It was further argued that even after observing that Satyapal (PW-1) was inimically dispoSed of towards the appellant and there are contradictions in his deposition before the court evidence available on record adduced by the prosecution, l 7 ‘ ‘ . Learned trial court on the basis of over all evidence available on record . Mr. P.K.C. Tiwary, learned Senior Advocate for the appellant vehemently 5 @ m material points, fhe Trio! Courf has relied upon his evidence and held ThaT 1'he re‘afions between The appellan‘r and ‘rhe deceased were sfr'ained due ’ro Their illici'l' r'elaTionship wiTh o‘rher's. 10. On 'rhe o’rher‘ hand, Mr. Bhadur'i, learned Additional Advoca’re General for fhe State supported ’rhe impugned judgment 11. We have heard learned counsel for The par‘lies. We have also perused lhe record as also The impugned judgment 12.There is no eyewiTness To The incidenT and convicTion is baSed on The circumsTanTial evidence. The circumsTances relied upon by The Trial courT are ThaT: o From The medical evidence iT is esTablished ThaT The deceased did noT die as a resulT of burn injuries buT she died due To sTrangulaTion /ThroTTling and her dead body was burnT subsequenTly. The appellanT had illiciT relaTionship wiTh co-accused Suhaga Bai, wife of his broTher Vidyadas, whereas, his broTher Vidyadas had illiciT relaTionship wiTh The deceased. In a village meeTing boTh The broThers had admiTTed The above allegaTions and They were fined. On accounT of above incidenT, The relaTions beTween The appellanT and The deceased were sTrained. ConTainer of kerosene and maTchbox were noT found by The wiTnessés earlier, however, when They visiTed again The above arTicles were found; o The appellanT and The deceased are husband and wife, They resided TogeTher 'where The incidenT Took place aT 9.00 p.m. and Therefore,. a presumpTion may be drawn ThaT The appellanT musT have been inside The hOUSe when The incidenT occurred. v FirsT CircumsTance:- 13..The firsT quesTion for our consideraTion is wheTher on The basis of evidence of Dr. S. ,Choudhary, who has conducTed posTmorTem and proved The posTmorTem reporT of Ex.P-19A, his opinion of EXP—20A, Dr. Bakshi (DW-l) and FSL reporT of Ex.P-21, iT can be conclusively held ThaT The w E deceased died as a result of ‘rhro’r'rling / sfmngulafion and her' deafh body was burn‘l‘ ’rher‘eaffer‘. 14.Inquesf of EXP—12 has been proved by Bhoiyoram (PW-3) & Horidos (PW- 4) and bo‘th These wi’messes have deposed Tha’r inquest was prepared in fhe presence of wifnesses and if bears fheir signa‘rures. In the inquesf report if is mentioned Thai dead body of Bhukhin Bai was lying fla’r on The ground. The whole body was burm‘ and smell of kerosene was emana’ring from if. The dead body was sent for postmortem to a3certain the cause of death. 15.Dr. Choudhary (PW-11) has deposed that naked dead body with 80°/o superficial burn was sent for postmortem. All four limbs flexion in position with stiffing due to heat. Tongue pressed in between the teeth, hairs charred completely, no vesication & carbon particles were present over the body. On internal examination he found skull healthy, all visaera congested, semi-digested food present in the stomach and small intestine, fecal material present in the intestines, valva region not burnt, uterus was normal in size and burns seems to be postmortem in nature. However, final opinion will be given after microscopic examination of viscera. A cut section of trachea, a piece of lung and whole heart preserved for microscopic examination. Regarding cause of death~he opined that final opinion will be given after microscopic examination of viscera. On query by the police, he further opined that cause of death may be due to either throttling or burning, but final opinion will be given after microscopic examination of viSCera. In the cross-examination by the defence, this witness has stated that if murder is committed by pressing neck, fracture of hyoid bone is necessary. However, hyoid bone was not fractured. He has further admitted that the deceased did not have any injury on her chest and her tongue was also not pressed between the teeth. There is no bleeding from nose & ear, which is possible in murder by throttling. On postmortem, both the chambers of heart were found empty. Vesications are found in antemortem burn injuries. He further deposed that he also \ \Qd not find fluid in the burn injuries which is normally found. He had sent M The lungs for microseopy for ascer’raining The presence of carbon por’ricles. Affer‘ perusal of FSL repor‘r of Ex.P-21 in which carbon por‘l‘icles were noT found inside fhe ’rr'ochea and solufion, he has opined fho‘r ’rhe same leads To an inference fha’r The deceaSed was set in fire offer dea'l‘h. In The cross-examina’rion, he has admif’red Thaf if a person is set in fire in 'rhe open place, in excep’rional cases if is possible Tha’r carbon por’ricles may be no’r found. Finally, he has opined ’rha'l‘ on fhe basis of pos’rmor’rem he can say fha’r fhe deceased died as a reSul’r of fhrof’rling. 16.Defence Wifness-Dr. S. Bakshi has deposed fhaf absence of carbon parficles in frachea in a suicidal deafh is nof a conclusive proof of postmortem burn. In the cases of suicide by self-immolation, it is not necessary that in each case carbon particles should be found in the trachea. It depends upon various circumstances. If a person dies immediately after getting fire due to neurogenic shock in such circumstances carbon particles may not be found. If a person commits suicide in a closed room without any window and remains alive for some time in that position, in such circumstances, carbon particles may be found in trachea. In cross—examination by the prosecution, he has deposed that vesications start reducing after 2-3 hours of death. Agreeing with the opinion of Dr. Chouhdary in the postmortem report, he opined that cause of death could be ascertained by microscopic examination, however, the same is not always applicable. 17.In Modi's Medical Jurisprudence & Toxicology (22“ Edition) at Page No.270 while dealing with differences between "hanging' and ‘strangulation’ it has been observed that in the cases of strangulation face is congested and marked with petechiae. External signs of asphyxia, very well marked (minimal of death due to vasovagal and carotid sinus effect). Bleeding from the nOSe, mouth and ears may be found. Ligature mark- horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. Abrasions and ecchymoses round about the edges of the ligature mark, common. Subcutaneous tissues under the mark- Ecchymosed. Injury \c *o ‘rhe muscles of The neck- common. Car'ofid arteries, infernal coa‘rs ordinariiy ruptured. Fracture of larynx and frachea offen found also hyoid bone. Scratches, abrasions, fingernail marks and bruises on ’rhe face, neck and ofher par‘r of ’rhe body usually presen‘r. Emphysema'rous bullae on The surface of ’rhe Iungs may be present 18.AT Page No.316 The AuThor has underlined fhree main poin’rs fo differen’riafe befween ‘an’ri-morfem' and ‘posfmor’rem’ burns; o line of redness u vesication o reparafive processes. In The cases of burn caused during life, a line of redness involving The whole True skin is formed, around fhe injured parf. If is a permanenf line, persis’ring even affer dea’rh, buf redness or eryfhema, which is found beyond “this line of redness due ,fo dis’rension of The capillaries, is TransienT, disappears under pressure during life and fades afTer deaTh. The line of redness, being a viTal funcTion, separa’res living from dead Tissue, and is ofTen presenT in burns caused during life, Though iT Takes some Time To appear. IT is, however, possible ThaT iT may be absenT (in The case of a person of a very weak consTiTuTion who dies immediaTely from shock due To bUrns.) Under The head ‘vesicaTion’ iT has been observed ‘ThaT vesicaTion caused by burn during life conTains a serous fluid consisTing of albumen, chlorides, and ofTen a few polymorphonuclear whiTe blood cells and has a red, inflamed base wiTh raised papillae. The skin surround iT is of a brighT red or copper colour. This is known as True as compared wiTh false vesicaTion which is produced afTer deaTh. False vesicaTion conTains air only. In reparaTive process signs of inflammaTion, formaTion of granulaTion Tissue pus and sloughs, will indicaTe ThaT The burns were caused during life. Whereas, burns caused afTer deaTh show no viTal reacTion and have a dull whiTe appearance wiTh The openings of The skin , glands coloured grey. The inTernal organs are roasTed, and emiT a peculiar offensive odour. "\, 19. After carefully examining the postmor’rem repor’r and evidence of Dr. S. Choudhar'y, we find Thaf necessary sympfcms, which are normaHy found in the cases of deaTh due To ‘rhrot‘rling, have not been menfioned. Posfmortem report also lacks details which were necessary to differentiate whether burn injuries were antimortem or postmortem in nature. From the report itself it is evident that the doctor performing autopsy was of the tentative view that burn injuries were postmortem in nature, however, he was not in a position to opine exact cause of death. His subsequent opinion in the court that cauSeoof death is throttling is only based on FSL report which mentions absence of carbon particles in the trachea and salt solution. In his cross-examination he has admitted that in exceptional cases when the deceased dies in the open place as a result of burn injuries, carbon particles may not be found. His abOVe opinion is further approved by Dr. S, Bakshi. From the evidence available on record, we are of the opinion that the finding of the trial court in this regard that the deceased died in a closed room is not based on any conclusive evidence and in these circumstances we are of the opinion that the trial court was not justified in concluding that the deceased died as a result of throttling and her dead body was burnt subsequently. Second Circumstance: — 20.Now coming to the next question whether on the basis of evidence x available on record it could be conclusively held that the appellant and the deceasad had strained relationship with each other and that too, to such an extent that the same could be construed as a motivelfor murdering her. 21.Learned trial court extensively dealing with the evidence of Satyapal (PW-1) has observed in Para—18 that physical appearance of the deceaSed given by this witness in his evidence does not correspond with the inquest and postmortem report and his evidence in this regard is doubtful. Further dealing with the omissions in his complaint (EXP—1) lodged before the Additional Chief Judicial Magistrate and also considering that this witness participated in the village meeting and imposed fine of Rs.3,500/— upon The uppeHanT and ‘rhm‘ ’rhe mee’ring was in facf conducted by him who is an advoca‘re, if has been obsarved Tha’r animosi‘ry of This witness wifh the appellant can be inferred. I’r has been fur‘rher‘ lobserved‘iha‘r conviction of the appellant on the testimony of such witness cannot be based. 22.Bhaiyaram (PW-3) in Para-10 of his deposition has deposed that it is true to say that dispute between the appellant and his wife had ended and since then both of them resided together happily. Haridas (PW-4) has also deposed in Para-5 of his deposition that the diSpute in relation to illicit relationship had come to an end and thereafter both the husband and the wife live together happily. Similar is the evidence of Barelal (PW- 7) who has also deposed in Para-17 that the documents of EXP—4 & EXP-5 were written before 14 months of the incident and in this period there was no complaint either from Gangaram or his brother. Gangaram though complained in the neighbourhood but he never complained before him and it is true to say that the appellant and his family members had good relationship with his wife after the meeting. 23.1’n view of above, we are of the opinion that the trial court was not justified inconcluding that the appellant relations with the deceased were strained due to their illicit relationship with others; Third circumstance;- 24.So far as the allegation that the container of kerosene and matchbox were not seen by the witnesses in the first instance when they visited the house of the appellant and only half-an hour thereafter when they again visited the appellant‘s house to see the dead body, the same were planted is concerned, the above fact was not mentioned in the complaint, which was lodged by Satyapal (PW-1) before the learned Additional Chief Judicial Magistrate and the same has been introduced for the first time in the l court by this witness, which is evident from Para—14 of the deposition of Satyapal (PW—1). In thesa circumstances the above circumstance could not be relied upon by the trial court as incriminating circumstance against the appellant. Fourth Circumstance:— @ 25.30 far as This circumsTance is concerned, The Trial courT has also disregarded The unchaHenged evidence of Ramgulam Verma (PW-5) who has deposed in Para—11 of his deposi'rion ’rha’r on ‘rhe da’re of incident ai about 9.00 p.m. The appellanf came ‘ro call him. He was accompanied by Barelal Verma, Haridas, Bhagchand PaTeL He informed fhm‘ his wife is bur'n‘r. He wem‘ ’ro The house of appellan’r, in Their presence son of ’rhe appellan1 wenf inside The house and opened The channel gaTe and ThereafTer‘ ail of Them enTered in The house of The appellanT. AfTer some Time SaTypaI AdvocaTe also came There wiTh Hemlal and They found The deceased Bhukhin Bai in The bur'nT condiTion lying on The floor. There is no evidence available on record To show ThaT aT The Time of incidenT The appellanT was inside his house. In The aforesaid circumsTances, presumpTion drawn by The Trial courT ThaT since The appellanT and The deceased are husband and wife and Therefore, iT can be presumed ThaT They were presenT TogeTher in The house on The daTe 6i Time of incidenT cannoT be jusTified. 26.In The resulT, The appeal succeeds. The impugned judgmenT of convicTion of The appellanT under SecTions 302 & 201 of The IPC and senTences imposed on him, as menTioned in Paragraph 1 of This judgmenT, is hereby seT aside. The appellanT is acquiTTed of all The charges. IT is sTaTed ThaT The appellanT is in jail since 1.10.2004, Therefore, he be seT aT liberTy Roshan/- forThwiTh, if noT required in any oTher case. Sd/- Dhirendra Mishra Sd/— Judge ij RN. Chandrakar Judge