^ ^. ^- HIGH COURT OF CHHATTISGARH. BILASPUR DIVISIONBENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. Criminal Appeal No.450 of 2003 Ganpat Verma and another - Versus - State of Chhattisgarh JUDGMENT FORCONSIDERATIQN Sd/- T.P. Sharma Judge HON'BLE MR. JUSTICE R.N. CHANDRAKAR <3) Sd/- R.N. Chandrakar Judge Post for Dronouncement of iudament on 6th September, 2011 Sd/- T.P. Sharma Judge \. '^ ^!^^^s^ HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.450 of 2003 DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N.CHANDRAKAR, JJ. APPELLANTS (In Jail) RESPQNDENT 1. Ganpat Verma aged about 23 years S/o Baldau Verma 2. Baldau Verma Aged about 40 years S/0 Baliram Verma Both resident of village Mohlaine, Police Station Nandghat, Distt.Durg Versus State of Chhattisgarh (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) t- MsSangeeta Mishra, counsel for the appellants. Mr.D.K.Gwalre, Govt.Advocate for the State/respondent. JUDGMENTl (Delivered on 6th September, 2011) The judgment of the Court was delivered by Mr.T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 10.2.2003 passed by the Additional Sessions Judge, Bemetara, in Sessions Trial No.214/2002, whereby & whereunder learned Additional Sessions Judge while acquitting to accused namely Smt.Prembai and Shivkumar Verma and after holding appellants Ganpat Verma and Baldau Verma guilty for commissi'on of culpable homicide amounting to murder of Shailkumari, convicted them under Section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to V \#::fsa'BS^S-^. •/^••^ ^ >Jy .".;'' ^. ^ i^-gfii&.. i' \^^'^^^ ^ ,€ \: pay fine of Rs.500/-, in default of payment of fine to further undergo R.l. for four months each. 2. Conviction is impugned on the ground that without there being any iota of evidence, the Additional Sessions Judge hasconvicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. As per case of the prosecution, deceased Shailkumari was pregnant through the appellant Ganpat Verma. Panchayat meeting was convened and after panchayat meeting, she married with the appellant Ganpat by chudi system on 12.4.2002 and on 23.4.2002 she died in the house of the appellants. Her dead body was badly burnt (chard). Appellant No.2 Baldau lodged merg vide Ex.P/7. Ex.P/8 was also recorded.lnvestigating officer proceeded for scene of occurrence and after summoning the witnesses vide Ex.P/1 prepared inquest over the body of deceased Shailkumari vide Ex.P/2. Spot map was prepared by investigating officer vide Ex.P/3. Jerry can of kerosene oil, match box and burn piece of cloth were seized from the spot vide Ex.P/4. Dead body of the deceased was sent for autopsy to Block Medical Officer, Primary Health .Centre, Nawagarh vide Ex.P/11 where Dr.S.K.Sharma (PW-15) conducted autopsy vide Ex.P/19 and found that body was 100% burnt, some part of the body was badly chard and also found ligature mark on the neck. Cause of death was asphyxia, as a result of strangulation and burn injuries were post-mortem in nature and death was homicidal innature. After reportof postmortem. F.1.R was registered vide Exs.P/9 and P/20. Property was sent for chemical examination and presence of kerosene was confirmed on cloth and jerry can vide Ex.P/16. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') and after completion of investigation, charge sheet was r ^ @ filed in the Court ofAdditional Chief Judicial Magistrate, Bemetara, who in turn committed the case to the Court of the Sessions, Durg, from where the Additional Sessions Judge, Bemetara received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 18 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. 6. After affording an opportunity of hearing to the parties, the Additional Sessions Judge while acquitting two accused Smt.Prembai and Shivkumar Verma has convicted and sentenced theappellants as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appellants vehemently argued that the present case is based on circumstantial evidence, especially - evidence of the doctor which does not find support from independent sources. Appellant Baldau himself has lodged merg vide Ex.P/7, in which he has categorically stated that they were not present at the time of incident and the deceased herself has committed suicide. 9. Learned counsel placed reliance in the matter of Nesar Ahmed and another v. State of Bihar1 in which the Supreme Court has held that link to complete chain of circumstantial evidence doubtful in absence of proof of presence of accused at crucial time at place of occurrence, conviction of accused set aside by giving them benefit of doubt. Learned counsel further placed reliance in the 1AIR2001 SC 2416 'ssr'^ -.^€/ '^^"•-^^w" matterof Baburam v. State of Madhya Pradesh2, in which the Supreme Court has held that if the evidence of the doctor not supported by other evidence of prosecution showing that even though there were neighbours in the proximity.then conviction is not safe only on the basis of the doctor. Learned counsel also placed reliance in the matterof Mayur Panabhai Shah v. State Gujrat in which the Supreme Court has held that evidence of the doctor is required to be appreciated like evidence of other witnesses and no prosecution can be drawn that the doctor is always a witness of truth. Learned counsel relied upon the matter of Vadugu Chanti Babu v. State of A.P.4 in which the Supreme Court has held that if the doctor deposed that he has not found any external injury on the body of the deceased and further deposed that it is true that generally in all cases of throttling marks of violence and injuries cannot be found and same may be only opinion of the doctor. Learned counsel also retied upon the matter of Raiwati Bai alias Budhi v. State of C.G. in which this Court has held that judgment cannot be based only on presumption. Learned counsel placed reliance in the matter of Hardeep v. State of Haryana5 in which the Supreme Court has held that evidence not to . be considered in mechanical way. 10.0n the other hand, learned Government Advocate for the State/respondent supported the judgment impugned and argued that evidence adduced on behalf of the prosecution is sufficient for proving the offence. Merg Ex.P/7 lodged by appellant Baldau clearly reveals that marriage tookplace on 12.4.2002 and Shailkumari died on 23.4.2002 within eleven days of her marriage in his house by itself is strong adverse circumstances. Learned counsel further submits that reason best known to the appellants they have denied 2AIR 2002 SC 758 3AIR1983SC66 4(2002) 6 SCC 547 5AIR2002SC3018 ,^s%s2i-s%?^, '/^% ^ a. ...-.-;..- ••... ^ I 1 ^9. ^ the aforesaid factum of marriage while answering question No.2 in their cross-examination under Section 313 oftheCode. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 12.1n the present case, as per evidence of Dr.S.K.Sharma (PW-15), he has conducted autopsy. Body was 100% burnt and found shallow grove marked found over the neck prominent anteriorly in the middle of neck and hyoid prominence of 16 cm. in length and 3 cm. brood. Below such injury heamatoma was found. As per his evidence and autopsy report Ex.P/19, some part of body was chard, right breast was also chard. Body was badly burnt. As per autopsy report Ex.P/19, he has also noticed fracture of hyoid bone on the neck. Burn injuries were post-mortem in nature. Defence has cross-examined this witness at length. In para 10 of his cross- examination, he has admitted that he has noticed some symptoms of asphyxia and symptoms of burn. He has specifically deposed in para 12 that he has noticed heamatoma inside the neck. His evidence supported by autopsy report clearly reveals that burn injuries were post-mortem in nature and cause of death was asphyxia and death was homicidal in nature as a result of strangulation. l3.As per evidence of Bhukhin Bai (PW-2), mother of deceased Shailkumri and neighbour of the appellants, she heard sound for help "^t sit i^TsrT' of Shailkumari, then she along with Shriram reached to the spot where they saw from outside that the appellants along with two accused persons came out from the room, kerosene smell was coming out from the room and spoke were coming out from the room. They also shouted, then the appellants came out from the room. She has deposed that Shailkumari was pregnant through appellant Ganpat and that was the cause of incident. Radheshyam (PW-3) and Shriram Verma (PW-4), brother of the deceased have substantially corroborated the evidence of Bhukhin Bai (PW-2) to the extent of her relation with Shailkumari with appellant Ganpat. l4.VirtuaIIy the prosecution has collected the following evidence:- (i) Shailkumari was married to appellant Ganpat on 12.4.2002, eleven days before the incident. (ii) Her dead body was found in burncondition in the house of the appellants. (iii) Under compelling circumstances, appellant Ganpat married with Shailkumari, although the appellant Baldau himself has lodged merg, in which he has admitted marriage of Chudi system which is not confessional statement and is admissible in evidence, but reason best known to the appellants while admitting the factum of incident in their house they have denied the factum of such marriage. 15.As per evidence of Bhukhin Bai (PW-2), she has seen both the appellants coming out from the room where body of Shailkumari was burnt and burn dead body was found. As per medical evidence, , cayse of death was asphyxia as a result of strangulation and not burn. 16. As held by the Supreme Court in the matter of Nesar Ahmed and another (supra), the prosecution is required to prove presence of the appellant at the place of occurrence, which the prosecution has proved by the evidence of Bhukhin Bai (PW-2). l7.As held by the SupremeCourt in the matter of Baburam (supra), evidence of the doctor finds corroboration from the evidence of Bhukhin Bai (PW-2). l8.As held by the Supreme Court in the matter of Mayur Panabhai Shah (supra), evidence of the doctor has to be appreciated like 6D thatof any other witness.In the present case,on appreciation of evidence of the doctor it is established that death of the decreased was not as a result of burn injury but as a result of asphyxia. l9.As held by the Supreme Court in the matter of Vadugu Chanti Babu (supra), it is true that generally in all cases ofthrottling marks of violence and injuries cannot be found, but in the present case, conviction is not only based on the opinion of the doctor but on the basis of other witnesses. 20.As hetd by this Court in the matter of Raiwati Bai alias Budhi (supra), the Court below has not convicted the appellant on the basis of presumption, but in the present case, the Court below has convicted the appellants on the basis of evidence of the witnesses. 2l.As held by the Supreme Court in the matter of Hardeep (supra), evidence not to be considered in mechanical way, but in the present case, the trial Court has convicted the appellants after considering the evidence available on record. 22.Evidence adduced on behalf of the prosecution, especially merg lodged by appellant Baldau, evidence of the doctor, evidence of Bhukhin Bai (PW-2) and other witnesses clearly establish the fact that appellant Ganpat was having illicit relation with Shailkumari on the pretext of her pregnancy, although she was not pregnant. Ganpat was compelled to marry with Shailkumari, he married with Shailkumari on 12.4.2002 and she died on 23.4.2002, within eleven days of the alleged marriage, that too in the house of the appellants and she was interested in marriage with appellant Ganpat. There was no occasion for committing suicide. It is not possible to throttle her neck by herself without any object like rope or other thing. After death of Shailkumari by throttling/asphyxia, it was not possible for her to pour kerosene oil with her and set ablaze by herself. This evidence ctearly establishes that Shailkumari died as a result of throttling i.e. by using force upon the neck and after her death her @ body has been burnt up to 100% degree. Front part of body was badly burnt, back part was not badly burnt. Admittedly she was wearing cloth and when kerosene oil was poured, then degree of burn and kerosene of burn on the part of body would be depend upon the quantity of kerosene thrown over the part of the body. If body lying in the floor, then much quantity of kerosene has been thrown on upper part of the body, but after setting the body ablaze, her rest part of body was also burnt on the basis of kerosene and separated other part with the help of cloth which was wearing. 23.Evidence of Bhukhin Bai (PW-2) is sufficient to establish the fact that both the appellants were present at the time of incident in the room, they were underobligation to explain that howshe died but they have not offered any explanation. In absence of any explanation, the only inference would be possible that the present appellants have caused homicidal death of the deceased with intent to cause her death. 24.After appreciating the evidence available on record, learned trial Court while acquitting two accused has convicted and sentenced the appellants as aforementioned. 25.0n closescrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned warranting interference. 26.Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge B/-