^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.L.JHANWAR, JJ. Criminal Appeal No.574of2005 Raj Kumar and another 1 . '. • • . Versus StateofChhattisgarh JUDGMENT FOR CONSIDERATIQN Hon'bleMr.R.L.Jhanwar,J. Sd/- T.P. Sharma Judge 14/12/20T0 — ^^^ - .' '.'. •' .'••' • I Sd/- R.L. Jhanwar Judge Post for pronouncement of the Judgment bn : 14/12/2010 Sd/- T.P. Sharma Judge ^' ^ HIGH COURT OF CHHATTISGARHAT BILASPUR Criminal ADpealNo. 574 of 2005 DivisionBench: Coram: HON'BLE MR. T.P.SHARMA & HON'BLE MR. R. L. JHANWAR, JJ. APPELLANTS 1. 2. Vs. RESPONDENT Raj Kumar aged about 24 years, S/o. Sunder Lal Satnami Synderlal aged about 50 years S/o. Nandlal Satnami, Cultivators, residents of Village Kestara, Police Station Nandghat, Sub Tahsil-Nandghat, Sub Division Bemetara, District-Durg (C.G.) State of Chhattisgarh (CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE Cr.P.C.) Present:- Mr.Sydhir Verma, counsel for the appellants. Mr.Arun Sao, GovemmentAdvocateforthe State. JUDGMENT (Delivered on 14th December, 2010) 1 • . • . . • '• , ' • .'• ;- . .' ' .:.' • -. "~ The judgment of the Court was delivered by T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of convjction & order of sentence dated 17.6.2005 passed by Additional Sessions Judge, Bemetara, Sessions Division-Durgin Sessions Trial No.237/04 whereby and whereunder learned Additional Sessions Judge after holding appellant Rajkumar guilty for commission of culpable homicide of Ogambaj amounting to murder convicted him under Sections 302 and 201 of the I.P.C. and sentenced to undergo imprisonment for life and to pay fine of Rs.1000/- and R.l. for three years and to pay fine of Rs.1000/-. TrialCourt has also convicted appellant Suriderlal under Section 201 of the I.P.C. and sentenced him to undergo R.l. for three years and to pay fine of Rs.1000/-, in default of payment of fine to further undergo R.l. for three mQnths for each default to each appellants. 1 ) 2 2. Conviction is jmpugned on the ground that without any iota of clinching and credible evidence, trial Gourt has convicted and sentenced the appellants as aforementioned and therebycommitted illegality. 3, As per caseof prosecution, on the fateful day of 14.6.2004 atabout 6 a.m. on accountofsome marital relation dispute appellant Rajkumarwho , was sleeping with his wife Qgambai assaulted her and pressed her nose and mouth by lungi and causedher death, thereafter with a view to conceal evidence of criminal case along with his father CQ-accused Sunderlal poured keroseneoil over her and set her ablaze. Thereafter, appellant Rajkumar went to pond along with his cattle. Co-accused Synderlal shouted for help, thereafterother persons came, at that time injured deceased Ogambai was burning, they were brinjng Ogambai to hospital, although she was not alive, thereafter, during the course of journey, appellant Sunderlal told that she died, hewent to Police Statjon 1 •... ^ •. / ^ ' • . ' ^ . -.. ', .; . :- \ _ "".^ Nandghatalong with dead body in a matadorwhere he lodged merg vide Ex.P/10. On the basis of merg, F.I.R. Ex.P/11 was recorded. After Summoning the witnesses vide Ex.P/3, inquest over dead body of deceased Ogambai was prepared vide Ex.P/4. Dead body was sent for autopsy to Primary Health Centre, Nawagarh. Dr.H.N.Gupta (PW-6) conducted autopsy vide Ex.P/8 and found following symptoms and injuries:- (i) Eyes were closed, blood coming from nose, mputh closed, tongue was inside the mouth, body was black. Line of rednessabsent., (ii) Back part of the deceased was burnt. Heamotoma found below the chest near sternum of 6 cm. x 3cm. dimension. (iii) Injuries were ante-mortem in nature. (iv) All internal organswere congested. (v) Froth mixed blood wascoming outfromnostril and mouth. Mode of death was asphyxia as a result of pressing of mouth and death was homicidal in nature. During the course of investigation, appellarit Rajkumar was waken into custody, he made disclosure statement of lungi vide Ex.P/1, same was recovered at his instance vide Ex.P/2. Spot map wasprepared by investigating officer vide Ex.P/12. Patwari also prepared spot map vide Ex.P/5. Sealed clothes of the deceased was seized vide Ex.P/6. Bum piece ofcloth, match box,match stick andjerry can containing kerosene were seized from the spot vide Ex.P/7. F.I.R. was intimated to Magistrate vide Ex.P/18. Seized articles were sent for chemiGal examination vide Ex.P/17 and presence of kerosene oil was confirmed in burn piece ofcloth and jerry can. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completipn of investigatipn, charge sheet was filed before the Court ofJudicial Magistrate First Class, Bemetara, who in turn committed the case to the Court of Sessipns, Durg, from where learned Additional Sessions Judge, Bemetara received the case on transfer for •trial.; ' •-..,- 1";.,; ..';• ." -....' .' . 1, ' ! -••' ;:111,1.,,;. :•..,";.. 5. In order to prove the guiit of the accused/appellants, prosecution has examined as many as ten witnesses. Statements of the accused/appellants were recorded under Section 313 of the Cr.P.C. where they denied the circumstances appearing against them and claimed innocence and fatse implication in the crime in question. Appellants have examined defence witnesses Laxman (DW-1) and Pherha (DW-2). They have deposed that at the time of incident appellant Rajkumar was not presentin his house and was present in pond along with his cattle, they had opened the door of room where incident took place whichwas bolted from inside. 6. After providing an opportunity of hearing 16 theparties, learned Additional Sessions Judge has convicted and sentenced the appellants as afbrementioned. ~\ .. • • •' .'•• ' • • . 7. We have heard Mr.Sudhir Verma, counsel for the appellants and Mr.Arun Sao, Government Advocate for the State, perused the judgment impugned andrecord of trial Court. 8. Learned counsel for the appellants vehemently argued that in the present case, evidence adduced on behalf of prosecution is not of conclusive character relating to the nature of death, whether jt was homicidal or suicidal. Prbsecution has alsp not collected any evidence to show that appellant Rajkumar has committed culpable homicide amounting to murder ofthe deceased and has concealed theevidence ofcriminal case. Burn injury found over body of the deceased shows that she herself has ^^ :!\ " ••'^^^^^: ?W'A^ ^. ,y /:.-/ 9. committed suicide. Noanyvisible or marginal injury was found over her body. Symptom was found On the body ofthe deceased toprove the fact that mode of death of Ogambai was asphyxia as a result of pressing of mouth and neck and to exclude the possibility that burn injuries were not ante-mortem in nature and post-mortem in nature. Learned counsel further argued that as per evidence of prosecution witnesses when the incident was deducted, then villagers came and along with villagers, appellant Sunderlal took her to hospital at that time she was alive. This shows that she has not died and mode of death was not asphyxia. Ocular and medical evidence are contrary to each other and both sets of evidenceare not independently sufficient for arriving at definite finding. In these circumstances, appellants are entitled for benefit of doubt and entitled for acquittal. Learned counsel placed reliance in the matter of Shivaji @ Dadya Shankar Alhat v. State of Maharashtra1 in which the Supreme Court has held that in case of conviction based on circumstantial evidence conviction is only justified when all incriminating facts and circumstances are proved beyond reaspnable doubt and are found incompatible with innocence of accused or guilt of any other person. Learned counsel further placed reliance in the matter of Ramesh Krishna Madhusudan Nayar v. State of Maharashtra2 in which the Supreme Court has held that quarrel taking place between accused and deceased, accused thereupon giying two blows bywooden log on head ofdeceased,accused is entitled to benefit of Exception 4 to 8.300 and liable to be convicted under 304, Part 2 and not for murder. Learned counsel also placed reliance in the matter of Kusuma AnkamaRao v. State ofA.P.3 inwhich the Supreme Court has held that in case of conviction based on circumstantial evidence, prosecution is required to satisfy the fpllowing circumstances, (1)the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the factsso established should be consistent pnly with the hypothesis of the guilt of the accused, that is to say, they 12008AIRSCW6925 22008AIRSCW370 32008AIRSCW4669 .C-- should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesjs except the one to be proved;and (5) there must be a chain of evidence so complete as notto leave any reasonable ground for the conclusion consistent with the innocence of the accused and must showthat in all human probability the act must have been done by the accused. Learned counsel relied upon the matterof Shamim Rahmani etc., v. State bf U.P4 in which the Supreme Court has held that false information to screen offender must be proved by cogent evidence leaving any chance of bonafide plea of such information. Learned counsel further placed reliance in the matter ofDinesh Borthakur v. State of Assam in which the Supreme Court has held that circumstantial evidence if not found support from medical evjdence and F.I.R. lodged promptly by appellant, then conviction is not sustainable. 10. On the other hand, learned State counsel supported the judgment impugned and argued that both the appellants have with a view to screen offender and concealing evidence of criminal case have burnt dead body ofthedeceasedandbeforesettingherablazeshewaskilled byappellant Rajkumar by pressing mouth and nose. Alleged lungi has been recovered at the instance of appellant Rajkumar. Evidence adduced on behalf of prosecution is sufficient for drawing definite conclusion that appellant Rajkumar has committed murder of his wife and both the appellants have conceaied evidence of criminal case, therefore, trial Coyrt has rightly convicted and sentenced the appellants as aforementioned. 11. In order to appreciate the arguments advanced on behalf of the parties, wehaveexaminedtheevidenceadducedonbehalfoftheparties. 4AIR 1975 SC 1883 52008AIR SCW3301 ^jft'swl!y. i:^?^?%:-; 12. In the present case, abnormal death of deceased Ogambai has not been substantially disputed on behalf of the appellants, but has disputed ^ homicidal death of deceased Qgambai, on the other hand, abnormal death has also been established by the evidence of Dr.H.N.Gupta (PW-6) andautopsyreportEx.P/8. 13. As regards the complicity of the accused/appellants in the crime in question and homicidal death of deceased Ogambai, as per case pf prosecution, deceased Ogambai was wifeof appellant Rajkumar, incident took place at about 6 a.m., appellant Rajkumar and Ogambai was present in their room in the night. Normally appellant Rajkumar was under obligation to offer explanation that how she died, who caused her death and at the time of commission of incident where he was. By adducing defence witnesses Laxman (DW-1) and Pherha (DW-2), he has tried to take defence of a//"ib/" that at the time of such incident he had gone to pond along with his cattle and when he came back to his house, then hesaw the incident. Laxman (DW-1)and Pherha (DW-2) have deposed in their evidence that after hearing commotion, they came to the house of the appellants, at that time both the appellants were not present jn their house, appellant Sunderlal has gone to the house ofkotwarforcallinghim and appellant Rajkumar had gone to pond, after fiye minutes Sunderlal came and he opened the door from patav side at that time deceased was , inside, she was agonizing and was asking for water, then they took her to hpspjtal. Evidence of these witnesses reveal that appellant Sunderlal had gone to the house of kotwar for calling him, at that time his house was buming, room of deceased was closed from inside and shewas present there, but instead of breaking the door and collecting the persons for immediate help he had gone to the house of kptwar for calling him. Conduct of appellant Sunderlal and evidence of defence witnesses Laxman (DW-1) and Pherha (DW-2) appears to be unnatural and it appears that only with a view to support the appellants for plea of a//6/, these witnesses have stated the aforesaid unnatural facts. As per ' evidence of Bhagwani (PW-2), when he came to the house of the appellants he saw injured Ogambai, he along with the appellants took Ogambai to hospital, but she died during the course of joyrney. Gyandas Manikpuri (PW-3) has also deposed the same thing. Bhagwani (PW-2) has stated in para 5 of hiscross-examination that Ogambai died in a way i^ |,:;'.?^'.-,! ^^ ''fi:^py^K' .-^wt<; ^.:; whiie they were taking her to Police Station. Merg was intimated by appellant Sunderlal on the same day vide Ex.P/10 in which ithas been mentioned that deceased died in a way. 14. Prosecution has not declared Bhagwani (PW-2) and Gyandas Manikpuri (PW-3) hostile on the point that she was not alive when they reached to the houseof the appellants, evenas per initial case of prosecution, many persons were present and appellant Sunderlal took the injured to hospital, but as per evidence of Dr.H.N.Gupta (PW-6) and autopsy report Ex.P/8, modeof death was asphyxia and not coma or syncope and in case of death as a result of asphyxia, death causes as a direct result of pressure used upon respiratory track and if pressure isreleased before the death and person alive for sometime, then death would not be possible afterwards as a result ofearlier pressure created for causing asphyxia. If the deceasedwasalive after releasing alleged pressure upon mouth and noseofthe deceased byany means, then death would not be possible by , , asphyxia on the basis of such pressure, may be by other cause. The doctor has not opined specifically that mode ofdeath was asphyxia as a result of burn injuries. No carbon particleWas found inside nostril and mouth, therefore, mode ofdeath was asphyxia on thebasis ofsuffocation would also not possible in the present case. Internal organs were congested. These aresymptpms of asphyxia as well as internal pressure uponthebodyforresistance.Medicalevidenceshowsfhepugilisticstage. Definitely, heamotoma was found over the chest which shows that somebody has assaulted or external pressure has been used upon the chestbut that wasnotcause ofdeath and even same was notsufficient for causing death that too as asphyxia. Dr.H.N.Gupta (PW-6) has admitted in para 14 of his cross-examination that symptoms found over the body ofdeceased also found in caseof burn. It has also admitted that pugilistic stage found in case of burn, although as per Medical Jurisprudenceit also found in case of throttling, strangulation or in other case in which resistance is made by the person at the timeof incident. Line of rednesswas notpresent in the body. 15. As per Medical Jurisprudence, three main differences are found in ante-mortem and post-mortem burn injuries i.e. (1) line of redness (2) , , vesication and (3) reparative processes. In case of ante-mortem burn, a :^9S^^ '^.^-.^'-?. k line of redness involving the whole true skin is formed around the injured part, but same does not find in case of post-mortem bum, but sometime it may be absent in the case of a person of a very weak constitution who dies immediately from shock dueto burns. In case of ante-mortem burn vesiGation found contains serous fluid consisting of albumen, chlorides and pften a few polymorphonuclear white blood cells and has a red, inflamed base with raised papillae.In case of post-mortem burn, false vesication contains air only. Reparative processes, such as signs of inflammation, formation of granulation tissue and sloughs in case of ante-mortem burn, but no vital reaction found in case of post-mortem .burn., ;:1:- " • 1 .' ,• •.:'.:.'. ';'11 . ','.'' .1... '1 ' •'' 11':'11-., '1-.11.1'- ;.'';',1'' 16. Evidence of Dr.H.N.Gupta (PW-6) reveals that only differential line i.e., absence of redness was substantive piece of evidence relating to post-mortem burn. Other symptoms are npt conclusive symptoms relating to post-mortem burn. 17. If the evidence of Bhagwani (PW-2) and Gyandas Manikpuri (PW-3) is considered, then the deceased was alive when incidentwas deducted and she was taken out from the room and was alive for sometime and died during the course ofjourney, she has not died as a resultof pressing of mouth and asphyxia. Medical evidence supports the evidence of Dr.H.N.Gupta (PW-6) and autopsy report Ex.P/8 reveals that line of redness was absent, pugilistic stage was found. Intemal pari:s were congested. Positive symptom was ohly absence of redness around the byrn injury which occasipnatly occurs in case of immediate death as a result of shock, as a result of burn injury. 18. Medical evidence of Dr.H.N.Gupta (PW-6) and autopsy report Ex,P/8 in the present case is not conc(usive to prove the fact that death was notas a result of burn injuries but was as a result of asphyxia and medical evidence alone is not sufficient for drawing definite conclusion. Ocular evidence is contrary to the medical evidence. 19. As held by the Supreme Court in the matters of Shivaji @ Dadya Shankar AIhat (supra), Kusuma Ankama Rao (supra), Shamim Rahmani etc., (supra) and Dinesh Borthakur (supra), in case Qf conviction based on circumstantial evidence, prosecution is required to satisfythefollowingcircumstances, (1) the circumstances from which the conclusipn of guilt is to be , drawn should be fully established. The circumstances concemed 'must' or 'should' and not 'maybe' established; (2) the facts so established should be consistent only wjth the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except thatthe accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion with the innocence of the accused and must show that in al human probabilitythe act must have been done by the accused. 20. In the present case, ocular and medical evidence are cpntrary to each other. Even the alone medical evidence is not conclusive nature to exclude "the possibility of ante-mortem burn injuries and sufficient for drawing definite conclusion that the deceased died only as a resylt of asphyxia and injury found over thechest was not the cause of death. , Evidence of Bhagwani (PW-2) and Gyandas Manikpuri (PW-3) that the deceased was aljve for sometime after taking out from her room is suggestive of the fact that alleged pressure upon nose and mouth for causing death as asphyxia has been released and was not effective for causing death. Prosecution was under obligation tp prove its case by adducing evidence ofconclusjve nature and definite charactertoestablish the fact that the appellantshave caused homicidal death of deceased Ogambai and with a view to screen offender and to conceal evidence of criminal case they have bunt dead body of the deceased, but evidence adduced 6n behalf ofprosecution is contradictory and contraryto medical ' evidence, not of sterling character to inspire confidence. In these circumstances, any definite conclusion on the basjs of aforesaid contradictory evidence is not possible. '^1 ^ /'••. 10 21. While convicting the appellants under Sections 302 and 201 of the l.P.C., trialCourt has not considered the nature of evidence adduced on behalf 6f prosecution, its contrary character and thereby committed illegality, although the deceased died inthe house of the appellants. The natural circumstance appears that both the appellants were present in the house and they have taken false plea of a//;b/, but these circumstances are not sufficient for drawing adverse jnference for convicting the appellants, that may be used as additional ground to prove the guilt, but not for proving theguilty. 22. For the foregoing reasons, the appeal deserves to be allowed and it is hereby allowed. Conviction and sentences of appellant Rajkumar under Sections 302 and 201 of the I.P.C. and conviction and sentence of appellant Sunderlal under Section 201 ofthe I.P.C. are hereby setaside. Appellant Rajkumar is in jail, hebe set at liberty atonce and be released, if not required in any other case. Appellant Np.2 Sunder Lal is on bail, he heed not surrender before the trial Court. — Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge