HIGH COURT OF CHHATTISGARH BILASPUR “ m Criminal Aggeal No.32 of 2005 axmi Prasad Patel v - - erSUS State of Chhattisgarh JUDGMET FOR CONSIDERATION Sdl- T. P. Sharma Judge 20-1‘5201 / ’ sal— L R . Jhanwa‘ Judge Post for Qronouncement of iudgment on 20th January, 2011 ‘1 1 g L r l ' $i’ iHon’ble Mr. Justice R.L. Jhanwar 4 \u Sd/- ‘ T. P. Shara Judge}! a! ’ L N E 1 W - ‘ 7 HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND I HON’BLE MR. R.L. JHANWAR, JJ. 4 {Criniigai appeal under Section 374 (2) of Cr.P.C.} ‘a . Present: Mrs. Indira Tripathi, counsel for the appeilant. Mr. D.K. Gwaire, Govt. Advocate for the State/respondent. i JUDGMENT (Deiivered on 2d“ January, 20,1 1) T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction & order‘ of. sentence. dated 1-12-2004 passed by the 4t“ Additionai Sessions Judge (FTC), Raigarh in Sessions Trial No.86/2004, whereby & whereunder while acquitting other accused persons i.e. mother, father, brother & Sister—in law of the appellant learned Additional SeSSIons Judge after holding the appellant guilty for commiSSion of culpable homICide amounting to murder of his Wife Janki Bai and for committing cruelty & t0iture upon her conVIcted the appellant under Sections 302 & 498A of the IPC and sentenced him to undergo imprisonment for life & pay fine 'of Rs.500/—, in default of payment of fine to further undergo RI for one Criminal Agpeal No.32 of 2005 APPELLANT: Laxmi Prasad Patel S/o Mohan Lal (In Jail) caste Aghariya aged 25 years occupauon cultivation reSIdent of Vullage § ‘ ‘ Goudhl Thana Tamnar TahSII ‘ Ghafghoda District Raigarh (CG). Versus RESPONDENT: State of Chhattisgarh through the District a, ‘ - Magistrate Raigarh (CG) 2 month and to undergo RI for one year & pay fine of Rs.500/-, in default of payment of fine to further undergo RI for one month, respectively. i 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appeliant and thereby committed illegality. 3. As per case of the prosecution, the appellant herein was married to Janki Bai (since deceased) in the year 2003, he used to commit torture and i: ' , cruelty upon his wife in connection with demand of dowry and has demanded motorcycle. On the fateful day of 15-4—2004 within eleven a *3 months of marriage of Janki Bai, at about 3 a.m. at night, the appellant caused&her death‘by strangulation. On 15-4-2004 at about 8.10 a.m. the appellant went to‘ the police station and lodged merg vide Ex.P-8 in which he has stated that Janki Bai died on account of illness. The investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P—1 prepared inquest over the dead body of the deceased vide Ex.P-1A. Dead body was sent for autopsy to Community Health Centre, Tamnar vide Ex.P-2A. Dr. Satish Kumar i Chandravanshi (PW-2) conducted autopsy vide Ex.P-2 and found one i abrasion below left eye of 1 c.m. x 0.5 c.m. and one abrasion upon clavicle bone of 2 c.m. x 1 c.m. along with pin head injury. Injuries were ante mortem in nature. Fists were in clinching position, stomach was perforated and lower end of trachea was found fractured. Mode of death wasasphyxia as a result of throttling. Patwari prepared spot map vide Ex.P-4. Father of the deceased namely Govindram (PW-11) made n, )written complaint on 15-4-2004 vide Ex.P-7. Spot maps were prepared by the police vide Exs.P-9 & P-1 1. FIR was lodged on the basis of merg, \ vide Ex.P-10. i ‘1 D @.., 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Ciass, Gharghoda, who committed the. case to the Court of Sessions, Raigarh, from where learned Additional Sessions Judge received the case on transfer for trial. 3 5. ln order to prove the guilt of the accused, the prosecution has examined: ‘as many as nfteen witnesses. The accused were examined under Section 313 of the CrPC in which they denied the circumstances r appearing against them and pleaded innocence & false implication in the crime‘irf question. They have examined defence witness Khem Singh (DW—1) who has deposed that the appellant was residing separately from £ his father and brother. 6. After affording opportunity of hearing to the parties, while acquitting other“ accused persons, learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that conviction of g ‘ the appellant is substantially based on the evidence of Dr. Satish Kumar l Chandravanshi (PW-2) who has deposed that cause of death 'of .the deceased is as a result of throttling, but he has not stated the age of injuries. As per his evidence, lower end of trachea was found fractured which was not possible by pressing neck. Evidence of Dr. Satish Kumar Chandravanshi (PW-2) is not fully reliable and is not sUfficient for conviction of the appellant, in absence of other evidence. Learned V counsel submits that symptoms found by Dr. Satish Kumar l, Chandravanshi (PW—2) are not sufficient for drawing inference that cause“ of death of the deceased was only throttling. Learned counsel placed reliance in the matter of BéIak Ram @ Baul v. State of C.G., 2009 (2)’ C.G.L.J. 7 (DB), in which a coordinate Bench of this Court has held that medical evidence is mainly opinion and the Court is required to form its own independent conclusion on the basis of evidence. . On the other hand, learned State counsel vehemently opposed the appeal and submitted that evidence of Dr. Satish Kumar Chandravanshi (PW-2) alone is sufficient for drawing inference that the deceased died as a result of throttling in the room of the appellant where only the" appellant 85 the deceased were present at 3 a.m. in the night and the appellant was under obligation to offer explanation, he has not only £ offered explanation, but he has offered false explanation. These circumstances are sufficient for drawing inference that only the appellant has committed the aforesaid offence. r ;n 10.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties.‘ 11.0n the basis of evidence of defence witness Khem Singh (DW-1), the trial Court has acquitted other accused persons. .. VJ ‘12.lnvthe present case, as per claim of defence, the deceased died as a result of illness, she was suffering from fever and lastly she died at 3 a.m. at night in the room of the appellant. The appellant himself has lodged merg vide EXP-‘8 not containing any admission of guilt. v Therefore, Ex.P-‘8 — merg intimation, can be relied in evidence. As per .,inquest report Ex.P-1A, some mark was noticed between shoulder & . \ neck of the deceased. Autopsy has been conducted by Dr. Satish .r l” Kumar Chandravanshi (PW-2), as per his evidence and autopsy report Ex.P-2, one abrasion was found just below left eye of 1 c.m. x 0.5 c.m. . .. . @ ( 5 and one abrasion was found up'on clavicle bone of 2 c.m. x 1 c.m. with pin head injury, both injuries were ante mortem in nature. Fists of both hands were clinched, stomach was found perforated and lower end‘of trachea was found fractured. As heid by this Court in the matter of Balak Ram (supra), evidence of doctor is only an opinion and the Court is required to form its own independent conciusion, however, in case of divergence, the Court must try to reconcile the two, if that is not possible the Court has to appreciate the evidence like any other evidence. Para s 3 ohe judgmen eas thus, 1 ft t rd ,g omms ct so nt bes suen c g exan r preparing records ad heir pnn may b base n iu‘r cp o f nion nadeqateo inomlete r deective examiat or lac of colete knledg. octor is ness of bo a i l e a ch fct and opinon. Medica vidence acts as eck upon testimony ey itne; it is s indeednt ev s t e, aing m and d e e ‘13. Setie, doors al may o tow fficit are while performin minatio o n t oiio e d o 4 idence in so far a it esablishes facts .g. tttoo arks, nature imensions of injury tc. Mdical edence is alo corrobote f eye witnes testimoy, as muc as i may sow tha the injry might have been csed n th annr alleed. Defence coul se a ce o s t juy not used s e ed y wi tmo r s er a ma ee in oi n hi h ut ts w de c Hw, i o gnce C y to nc e as d ovid he o a k mp owe D a wit th of e wss alo pne vi s raiv o s n in h t h t u au i e me g d u the medicl eviden t how hat the inr could . have been ca a allegd and thereby discrit ee tness estiny. Cout ha to rememb tht edicl videnc is maly pnion evidence o wch te cor could form i on indepennt onclusion. oever n case f divere, the ourt must tr recoile th .two, if tha is pssib th court h e t not ole e as to pprecit vene like ny ter eviden ving aae the eidc a oh ce, ha rgard to reson an data pred by t Dctor nd t cogency or othenNe o eye witness testim. I he is f ony f eye wneses are credible and trustworty, ia‘ its h medcl pinion suggesting alternative pbit ot be o ossiily may n ccepted a conclusive ad riac oul be give to a s n pmy shd n '14.As per autopsy report Ex.P—2 and evidence of Dr. Satish Kumar. , Chandravanshi (PW—2), stomach was found ruptured and there was pungent smell, green & yellow liquids were found inside the small intestine. Except fracture of trachea in its lower end and clinching of ' ”fists, no other sign of throttling was noticed by the doctor. The doctor l has. also not noticed any symptom of asphyxia as a result of suffocation. w k In absence of any definite evidence, it would be difficult to hold that oral evidence [Please see Atami Laxman v. State of Chhaftisgarh, 2007 Cri.L.J. 1036].” 13.Evidence of the doctor and autopsy report are based on funding of facts i.e. what the doctor has noticed on the body of the deceased at the time of examination and what is his opiniOn on the basis of such facts found on the body of the deceased. As per evidence of Dr. Satish Kumar Chandravanshi (PW-2), there were tWO abrasions found over the body of" ' the deceased which were ante mortem in nature, one was just below left eye of 1 c.m. x 0.5 c.m. and another was upon clavicle bone of 2 cm. x 1 c.m.$w:ith pin head injury; Lower end of trachea was found fractured. Trachea begins-from lower part of mouth and ends with its two branches i.e. bronchitis, last end of trachea is covered by pectoral girdle. As noticed by the doctor, lower end of trachea was found fractured, though Dr. Satish'Kumar Chandravanshi (PW-2) has not explained whether“ lower end of trachea was extreme lower end or same was part of trachea below the lower end of neck. In para 3 of his cross-examination he has deposed that he has not mentioned the age of injuries. In para 5 he has admitted that he has not found other symptoms of strangulation like swelling of tongue, bitten state of tongue, fracture of larynx, swelling of face and cyanosis on lips & nails. ;r l l stomach was ruptured as a result of throttling or suffocation. At the time, 6 \ \ \ 7 of inquest, black mark was-found between neck & shoulder, any other injury has not been found on the body of the deceased, but at the time of‘ ' autopsy doctor has noticed two abrasions of suffucient dimensions i.e. 1 c.m. x 0.5 c.m. and 2 c.m. x 1 c.m. which are not trifle in nature and were noticed by the doctorjust beiow Ieft eye and upon clavicie bone i.e. near neck. The doctor has not noticed any black mark upon neck. As per evidence of Dr. ,Satish Kumar Chandravanshi (PW-2), he has conducted autopsy tirstly, relating to throttling. Normally fracture of Iower end of trachea would not be possible in case 'of throttling or strangulationf ~ because no direct pressure would be possibie upon lower end of trachea without effecting the bone of pectoral girdle. & 15.ln the present case, no superficial injury or internal injury has been noticed by the doctor on pectoral girdle. The appellant himself has lodged merg in which he has stated that the deceased died as a result of illness. The deceased was examined by the doctor and has taken medicine. The appellant h‘as lodged merg at 8.10 a.m. on same day and'“ V “" ‘ dead body was kept in his house. He has not tried to dispose of the dead body. He himself has lodged merg. In case of any adverse circumstance, at least the appellant would have not lodged report. If the factum of lodging merg by the appellant without disturbing the dead body is considered along with the facts recorded in inquest report Ex.P-1A, autopsy report Ex.P-2'and evidence of Dr. Satish Kumar Chandravanshi (PW-2), it would be difficult to hold that the evidence Of doctor.is K. l sufficient for drawing inference that death of deceased Janki Bai was as a’result of throttling. > \ 16.The prosecution has examined fifteen witnesses, but except the circumstances noticed by the doctor, other witnesses have not stated anything relating to commission of culpable homicide by the appellant or ‘ <@ by any other persons. The prosecution is required to prove commission of culpabie homicide amounting to murder against the appellant. Evidence of Dr. Satish Kumar Chandravanshi (PW-2) is not of sterling quaiity and is not sufficient for drawing inference that the appellant has“ .. caused culpable homicide of his wife Janki Bai. in absence of such evidence, conviction of the appellant under Section 302 of the IPC is not sustainable under the law. 17.As regards conviction & sentences of the appellant under Section 498A of the IPC, as per evidence of Govind Rao (PW-1) & Govindram (PW—1 1) — fathé’rfof the deceased, the appellant has demanded dowry and has committed torture‘& cruelty upon his wife‘ Janki Bai (since deceased).. ~ ‘- $ The deceased died within eleven months of her marriage. Therefore, in short period of marriage any report, complaint or meeting to reconcile the family dispute would not normally be possible, but on the aforesaid? ground, evidence of the aforesaid witnesses cannot be discarded. 'xu- 18.After appreciating the evidence available on record, the trial Court has convicted & sentenced the appellant under Section 498A of the IPC. Conviction & sentences of the appellant under Section 498A of the IPCw r ‘ are based on legal and credible evidence sustainable under the law. 19.For the foregoing reasons, we are of the considered view that conviction & sentences of the appellant under Section 302 of the IPC are not sustainable under the law, but conviction & sentences of the appellant under Section 498A of the IPC are sustainable under the law. \ 20.Q,onsequently, the appeal is partly allowed. Conviction & sentencesof \ ‘ the appellant under Section 302 of the IPC are hereby set aside and he Is acqUItted of the said charge However convrctlon & sentences of the appellant under Section 498A of the IPC are hereby maintained The // appellant is in custody since 1-12—2004. He has completed the sentence awarded to him under Section 498A of the IPC. He be released / forthwith if not required in any other case. . l _ Sd/- R.L. Jhanwar ‘ Judge Judge 20—1—2011 Sdl- T. P. Sharma 'l m