''<•<;.. HIGhLCOURT OF CHHATTISGARH AT BILASPUR BS. HON'BLE SMRt DHIRENDRA MISHRA, & HQN'BI-E SHRI R.N. CHANDRAKAp, J<) Cr!ininaLAppeaiNo.528of2001 ADOellant (In Jail) Dinesh Kumar Versus ResDondont : : The State of Chhattisgarh JUDGMENT FORCONSIDERATION HOM'gyE SHRLR.N.CHANDRAKAR, J Qiijs^^eji-^ u . Sd'- R.N. GhaRdrakar Judge ^ POST FOR JUbGMENT ON ^..„..„-.- 5^ AUGUST,2010 SdA JUDGE <3J-T8.2010 ?>?S. 7: ";^.: HIGIl.CQURLOECHHATTISGARHATBILASPUR D.B. HON'BtE SHRI BHtRENDRA IVIISMRA, & HON'Bl.E SHRt R,N. CHANt;»RAKAF!,JJ Appellant (In Jail) R^spondsnt CEiminaLADceal No. 528of 2001 Dinesh KUmar S/o Basant Ram Rajwad.e, age 20 years, ? R/o Village - Ghughra, PS Sonhat, Distt. Koria(CQ) ^ Versus The State of Chhattisg.arh, Through : PS Sonhat, Distt. Koria (CG) Presenh • ' : : . M'r. Yogeshwar Sharma, counselfor the appellant. Mr.Ashish ShUkla,Govt. Advocateforthe State. ' . ,JUDGJIVIENT (Dellverecion^^yiAugust, 2010) PerDhireMraMishrsi,:J \: - / ,. .' ' " , Tlils criminal appeal Is direetsd against the judgmenfot GQnviGtioHahd'- prder of sentence dated 30' ;Apnt, 2001 psissed in S.T.No.97701, whereby, 'tlie learnsd First Aclclitional.Sessions Judge, Baikunlhpur, Oistt.,Koria, after <tolding the appellarftgyiltydfcpmmittingmurder ofhis wife;:Basaniibai, has ponvicted hirn under Section 302 of the IPC and sentenced to life tmprisonment. , I. . '^ .02. Brieflystated.caseoftheproseGutionisthaton 25.11.2000 Ulanpati accompanied by Sukhngndan; Sanau and appellant went tb poliee statiQn ;and gave merg intimation of Ex.P/1 that his daughter Basanti was rnarried , with the appellant ir) the JastiFalgun.,; She was carrylftg pregnancy ot4-5 rnonths and she was residing lin her mErtrimonial house at Ohughra. Htewa^ it'(fQr[neG|.t)iat Basarjtibai has died due to pain inabdomen. l4bwever,wheh ^. he saw her at Ghughra, he found injyries oh her person After registerin'g "merg, inquest was perfbrmed iover fhe person of fhe deceased vide Ex:PyijO ^and thereEifter, dead body i was sent for postmortem exan-iination tp ; ^Oonnmuntty Health Cgr|ter, Sonhat, Where a team of dpctQrs, naiTiely^r.^: (Smt.) K. Patel, Dr. N.P, iBhargava and Dr. P.S. Kurre, CQnduct&f's; 1 »--M3a»i.«.un.nB..au.>„ inwinmnEahKWt iB.tus.si; '"a^B •I: ^ postmortem and gave their ireport of Ex.P/5. Crime was registered on 12.1.2001 againstthe appellaratunderSectlon 302 ofthe IPC videEx.P/11. 03. Afl.er completing investigatjon, charge sheet was filed in the Court of Chief Judiolal Magistrate, Baikunthpur, who, in turn, committed the Gase tp ttie Court of Sessions Judge, Kdria and the same was recetved Qn.transTeT Iter trial by learned Additlonal Sessiyns Judge. . -.O't. Leamed trial Court frairleacharge urider Section 302 of the IPC \Eigainst the appellant, who abjured his guilt. The prosecu'fion, in qrcter to establish Its case, examjned 11 witnesses in all. Thereafter, statement of the , accused was recorded; underSec1:loh 313 ofthe Cr.P.C., in which he denied fhe circumstances appearilig agalnst him In the ,proseoution ease, and1 pleaded Innocence and false Implication. The appellant tobk a specific -;:clefence ip reply to Qyestion N0.44 Ira his statementlhat 1 did not ftress^her neck, she had gone putto urinate and shewas not p sent in the roQm; ^ftei' ^-sQmetima when she did not retiirh, 1 went out and found fhat she had fallen vnconscious near the door and she was not speaking. 1 brought her inside \ tlie roam and thereafter, woke up my parents, who found that she had no '^pulseand she wasdead. Thg appellant alsoexamined one Balkunwarin his .:'(lefence. 05. Learned trial Court, after convicted and sentsnced the JufJgm^nt. ^ Q6, Learned trial Gourt, on conducted postmortem and deeeased clled due to throttlirtg {orshead and it was homicidalj 07. PVV-7 Dr. P.8. Kurre has brought 011^26.11.2000. He cohducsted hearing oounsel for tHe respective'partjes, appellant as mentioned In para-1 6f this the basis ofevidence ofDr, Kurre (PW-7),whQ proved his repbrt of Ex.P/5, held, thatthe ahct death wasnot as a Fesult of injury over' deposed that Basantibai's dead body was her postmortem with Dr: NP Bhargava hBmorrhage; blqodstainecl '.and Dr. Smt; K. Patel. He found thatthe bodywasmild pale, mild FigormQrtjs' . ipfcesent.fDul smell w^s corning; faee was cyanosed with multiple p^techiat, watery fluid on, bofh .nostrils; petech;ia1 i'^hemorrhage present on both upper & lower lips; tongu&'sWollen & protruiled; both eyesbulging, ecchymosed corijunctivaand congested eye; pupll dilateEi^. , no injuries on ears ahd chest; neck more cyanosed. There were contusions j^l) over lefteyebrowatforetlead Of^size 1" xO.fi"; (ii) one inch below left laufet, eyelid of size 2" x,2"; (lii) overtip.of noseof size 1" x 0.4"; (iv) below left ..•rtastrilof slze 1" x 0.4". No[ extemal; injury was found over neck, exc^pt /; cyanosis, which was g& a resylt of filotting of blood. On Internal examination,. ;; h8 foynd that there-was frothi preselitover larynx, no fraicture of hyoid cir ' cartitage bbne; uterus of 16-22 \weeksof pinkish color; nb any externaljnjury; qt rupture fbund on abdomen^and afetus of 12 to 22 weeks male ch'ildi and ; larynx &itrachea oongested'. i The doctofs have opined cause of death as •asphyxia leading to cardio resplratory failure, may be due tp strahgulation, and homicldal in nature. i ^•8, Learped counsel forthe app^llant has seriously disputed thefiriding of .:: 'the-trial.Court that the deceased died :due to asphyxi? as a resulf of. ;.:strangulation. It was argued'jthat iri the absence of any llgature mark over , the heok of the deceased, finding 6f the. trial Court that the deeeased dj;ed as l^ a result oT gtrangulation due to pressing of neck, iserroneous. ';'t. Retlance is plgced on San/ay Rgf, reported in 2004 A.P. repQrtod in 2004(1) ANJ fhejudgmentsinthemattersofStateofftTPVs. |f2; CCSC916 Eind Kojja Srewu Vs.Stateof (SC)38S 11^^, ,. • -.f' ;-:' !i. ,:' ' ;8. .' ' On the other hand, teamed.counsel fcir the State has suppQrted^the •ItnpugnedJudgmeht. . ; .: ^;1Q. : We.have heard learned counsel for the parties, perussd the recdrd ofy the trial Court as alsotheimpugned judgment. : , s'" 4 L-x? .-•^" 11. In Mod/'s Medical JUrlsprudence ahd Toxfcotogy, 2^' Edltion, StrangulatiQn is defined asthe oompression ofthe neckhy aforce otherthan ;tianging. Weight ofthe body tias nothingto dowith strangulatipn. Wtierelhe ; tvlndpipe: js not completely closed, ;the face becomes cyanosed, bleeding ^oecurs from the mouth, .nostrils'and ears, the hands arei clenched and convulsionB precede delayed d^ath. Csluse of death in the cases of ^ Stfangulatidn is asphyxia. Des lbirjg the pqstmortem appearanfce due •t0 asphyxia, it has been mentlQned.that the face is puffy and cyanosed, and (•narked with petechiae. The eyes are prominent and open. In some cases, they may t:ie closed. The conjunctivae are congested and the pupils are clliated. Petechiae are seen iFithe eyellds and theconjunctivae. The lips arB :,blUe. Bloody foam escapes irorri the moutti and nostrils, &ndsometimes, ^ ptire blpod issuesfrom the mQUth,:nose and ears, especially if great violence ha&.been used. The fengue is pften Swollen, bruised, pl'otruding, and dark is j\SplQUr, shgwing patches of; fextravasatiQn and occasionally bitteri by the teeth. There may be eviclence of bruising at the back of the neck. The . liands are usually clenched. The genital organs tnay be congested and fhere tinay be dlscharge of urine, faeces and seminal fluid. "Appearance on (he Afeck: Appearanpes on the neck vary 'according to themeans ysed, l-igature.Dn the neck ^hould . preterably be photographted befbre cbrnmencenierit of post- • : i ..mdrtem. ''•, ^. l11'-:.' ' !..'.' ..:,"•;' ..••,'':.' ^, j^; (A) ; Ligature Marif: l-igatur&; mark is a welt-defined and : slightly depressed mark COTrespohdlng rougttly tb the breadth of the ligature, tisuallysituated I'ow down in the heck b&lQw the thyroid cartilage, and fincircling the neck. hbnzontally and completely. The marks are multiple If the :; ; llgatyre is twisted severattime&rounel.the neck, also more ,.^.; tMan one firnri knot of fhte ligature is cet-tain of hQmicjde,.The ; . marK may be otjHque as in tianging, if the victjm has beeh : .dragged by a cord after tie has been strangled in a ' . • ^ . recumbent posture, or jf the victim.was sitting arid the .assaljant applfed a ligature on the i-ieck while standirig •: !:^^ (n '"'.^ 'V'«S.9 -.: 'g. ~~11J,'i K\.-'. : •• ^ff.'- :s" l,.l&,^r:^ 'wi'asmu,^'':i-': ^ behlnd hlm, thus using theforcgbackward anct upward. The : baae of the mark, whieh.is known as a groove or furrQw, js : usually pale ^with reddisb and ecchymosed margin. It ', becomes dry, hardand parchment-like, several'hoyrs after death, if the skin has been excqriated. The paftern of the ligature may also be seen. Very often, there are abrasions and ecchymoses in thei skin adjacent to the marks. In some cases, the mark in the neck rriay not;be present at all,;or" ,. may be very allght, if the ligature used is soft and ylelding i like EI stocking or SQarl'jand if itis remdved soori afterdeath. A caFeful search of the nfeck may reveal minute flbrdS and . anyathermateTi^lfromltheligafure." . , Internal Appearancy There is extravasation of blood ihto .th&sub-cutaneoiJstisstiesynder the llgature rti^rk orfinger : marks, as well as in the adjacent muscles of the neck, which are iisually lacerated. Sometirhes, there is laceration of the sheath of the carotld arterles, as also their intemal coats with effuslon of blood intb ti-ieir walls. The cornusi of the hyoid ^ bone may be fraotured ailso the syperior cornua otthyraid /"• 'cartileige but fraoture of the cervical vertebrae is extremely ' .rare. ~ ^ . ; .;!". i - • '.1 -.,; • - . .;, ; ' . '., • , ,.11:-: The larynx ahd trachea are congested, and bontains .frothy mucus. The cartilages ofthejarynx orthe rings ofthe .; ^ ^; trachea may be fractured, wtien considerable force is used. The lungs are markedfy CotTgested, shpwing haemorrhagic patehes and peteehiae and exuding dark fluid blood on sectiDn. The right side:of the heart is full of dark fluid blood, and the leftempty. Bronchial tissues usually contain frothy bloodstained mucus. 1 , - ^ , v - Dealing under the Gaptlon "Medioo-Legal Questions"i addr^ssing to^: the questibn - whether death:was caused by strangulation - It has been cautioned thal no inference sHould be drawn simply from a ligature mal-k, for; It rnay be Indistinct or absent,|jf a .^oft ligaturB-like silk js used, and may be ^ producecl by the application of a ligature to the neck even after death. Tp, .^rrive at a'conclusion that. dgath wa& due to strangulatjon, It is necessary,: therefore? to note the.effects ofyiolence in the underlying tissues in addition to the ligature mark or bruise marks caused by the.fingers or by the fpot, !11^ Rnee and pther appearancesof death from asphyxia. At the same time, the pdssibility of other causes ofsuboxjc or asphyxial death shouldbe eXelyded: 12. Ws have already reprQdUced, the postmortem appeaFanee;;arid . Hhdings i-ecbrded in the postlnortem report after external and interhal ;B)(aminatlbh, from wltjeh it i& evident that the symptoms which are nbtrnally. found in the casqs ot death clue to strangulation, are present in this case ; ^alfeo. The doctors performlng autopsy have categorically ruled oiitihe cause •ofdeath pf the deeeased dueto injury over herforehead. Thetrial CotiFt, Qn: the basis of evidence of Dr. ;Kurre, has held that the deceased died as a FQsult bf strangulatipn clue to pressing of neck. Atter golng thFough the evidence of Dr. Kurre, we arei of the;opinlon that the abbve findiiig; is 'baserf, 6n praper appreciation df the rhedical evidence available on teeorcl. 13. PW-1 Dharamjit is bffither of. the deceased in relation. He has .d0posed that after recelvin^ the informatlon regarding death of.Basanti, he wentwith pther persons of Villgige - Nougoi to Ghughfa arid asked the fathej' of the deceased regarding cause of death, whereupon he informed that she dashed against the door frame, fell and died.Thereafter, her father iQdged ,Uie .report.'^ : ^, ,.| ''! 1:/ ; :': 1 1 • - ...••-1'.'.: '14..:PW~2 LalanpEiti, father df -the deceased, has alsa depoSed tliErt Mahendra and one person came from Qhughra andinformed that Basariti hds died due to abdominal pajri. TherSafter, he went Ghughra with his wife. He asked the father of the appellant.whereupon he replied that She clashed ^againstthe doorframe and dieid. Thereafter, he lodgecl the report. tn para-2,; ^KB has categorically stafed that the deceasecl was present in.the' hQyse of aeGused. The incident occurred at 12 in the nlght and the deceased and the appellant resided in separate |roon"i. Satedlal told him that the appellant has: iliurdered,hsr. In cress-fixatnlnation, he has admitted that the deceased neyercomplainedabdut herhusbandor in-laws. t;"' 1 ',18. PW-3 Kamalpati is mother 6f the cleceased. Stie has also depflsed (hat she was informed by two persons that Basanti died due to abdominal < pejin, whereupon they went^to see her and found injuries over her person. , The persons in the house of acoused informed that when Basanti went'ftom ,'lherroQmfor urinating, she dashed againstthe doorframe and died. Bgsgnti Inust besleeping with her husband. htowever, in cross-examinatibn/she has ^. stated that her daughter was Ijving with the appellant affectionately ancl she ^d^vercoi'ntllainedagainst.theappetlarrt. ' ^ •16. PW-5 Safedlal is a witness ofextrajuclicial confesston. Heis brother- ' In-law ofthe deceased.,He has deposed that a month after the incident, he .metthe appellant in ehhinddand msirfcet and the appellant confessed that he murdered Basantl by pressing her neck with scarf. However, he did not dlsclose any reason. Thereafter, he narrated about the incident tb 1-alEinpati. 11) cross-examinatlon, omission regarding strangulation of neck by scarf.in his ,,e|)arystatementofEx.D/5hasbeenftointeclout. , , . 17. PW-8 Mahendra Kuma|r has deposed that the appellant did not give ^ny informgtion to him when tie met hjm in the market regarding death ot his ' wife. HoWever, in cross-examination by .(he proseci.ition;, 1-ie has deposed f.:^ that when Safedlal .asked the appellant, theh he admitted his mistake aftd etated that he suspected her fidelity and therefore, committed her m.urder, However, ip cross-examination by the defence, he again stated that Safedlal and accuaect were talking with eacti qther, and accused confessed. before <^ Qafedlal, bi.rt he cannot say as|t6what.Dineshand SafeGllal tatked about , 't6. DW-1 Balkunwarhas deposed thatshe came to know that Basantibat ;was going out for urinating wtteti she dashed against the dpQrframe and .sustained injuries. The dead ibody was inspected in:her presence and she "^dticed injurtes on her foTehead, nose, cheek and betowthe eyes'. She dld / ni:)t Rotice any injury on herneck. Thaugh tbere weresorne abrasjons onfier neck. 'ln oross-examination, ishe has expressed her ignoranGe about any 1 ^^^*">-^s-g^s^Ess^." t3: y-e ttispute between the husbaricl and stated that she also does andcauseGl her death. and wife regarding pregnancy ofthe deceased, hot know whether the appellant strangylgted •|3. , InWe matter of San/ay room. Written repori. was lodged when he returned from^outside, pushing tlie door, the lateh fell Wlfe hangihg from the bolt of cut the pjece of oloth by whicl'i dalled ahd She was taken to {rial Courf acquitted the parents GonviGted urtder SectiBn 302 o;f the the husband and it was substantiafe all or any of the rtlotive fpr killing and 'it was Btrangulation, as held by the doGtorand held it notto be CQnfirming the judgment ,0ourt tie)d4hat the clrcumStances Court to hpld the respondent irjedical jurisprudence. However, pedestal fhan opinion of the any evidence to: connect conviction ofthe trial Court the However; ih the instant; -' bEisis of postmortem . ^;; postmQrtem. report after ';:;C)pined that.the deceased difed neckand fh&Jnjury present Raf(supra), wlfe of.the accused; died iri her by the accysed rhentioning therein that i, h6 found his room bolted from inside ahd 6n dpwn and the door opened and he found his almirah. He brought her down as his father shewas hanging. Thereafter,doetors w8re hospital, Where.she was declared dead., The of the accused, however, tiu&band Was the IPC. On appeal, the High Court acquitted that there was noclinching material.tp incriminating ejrcumstanaes. Tliere.was. no held that there was no evidence of ariy- trial Court, and discarded the evidei'lce of the to fasten the guilt onthe accused. : SLifflcient of acquittal of the High Court, theSupreine of strangulation, 'relied upon;by the trial. guilty, were by reterence to sbme text booKpn, r, such opinlon cannot be placed :.on higher. experts.examined in the Court. In absence of respondent with the act of strangulation, hot have been maintained. case, the doctors performing aLltopsy, on the appearanoe and other findings recorded, in :the external and internal examinatiQn, have categorically: as a resultofasphyxia due to strdngulation Qf over forehead was not the CEiuse of her desth. 1.19puiio]. se up!)Bue|dx@ ou si sjaqi •uoiiBinfiuefls 01 anp pajp paseabap 341 • !}Bt|) psuidQ SAEi) PUB pBsqsjcyjaAoAinfuijQ.ilunoooBuo i)ie9p p Aijiiqissod . i eyt paiuap A|tB3uo6a}eo sAey sjopop 94) |sg as|&| sq 0} punc4 uaeq; set) L)OJL|W 'Aiieiuapiooe jsq Aq psuieisns Ajnfui p iinsej e se pajp siis IBI)) si leqjiueseg pssesosp ys ijieap 9L]VJOi eouslsp 941 Aq p9jayo uoiiBue|dxe ^iuo sqtiey^ JBS|O A|isa.Kueuj s! i! 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Lastly, the app^llant Qafedlal (P1/V-5) thathe deceasBd died due to strangylation by pressing ot has ateo made an extrajudicfal confession before. commjtted murder of his wife, . . . - ; 22. ; On overall consideration TaGt that it's a case of house the night of incident, he slept^ that the prosecution has reasbnalale doubt on the llleg.ality pr Infirmity in the ir of the evidence available on record and the murder and admission of the appellant that in with his wife-efeceasedy we are of tha opinion established'its case against the appellant beyphd of circumstantial evjdence. There is no impugnsdjudgmentcommittedbythe:trialGoyrt.. 23. tn.the result, •the appeali'feite and is.aacbrdingly, dismissed. SA'- •N. GhaRdrakar ,+