(^ HIGH COURT OF CHHATTISGARH, BILASPUR DB: Hon'ble L.C.Bhadoo, Acting C.J. & Hoa'ble Slu-i Suail Kamar Siaha, J Crimiaa! Aopeal Ko.189/3000 Maagal Vs. State of Chhattisgarh Appearance: Sbri N.K.Mehta, counsel for the appeUant. Shri U.N.S. Deo, Govt.Advocate, for the State. ORAL JUDGEMENT (03.01.2007) Per L.C. Bhadoo, J, (1) This appeal is directed against the judgment of conviction and order of sentence dated 17.11.1999 passed by the Additional Sessions Judge, Kauker, in Sessions Trial No. 120/1998 whereby fhe leamed Addl. Sessions Judge, after holdiag fhe accused appellaat guUty for coimnission of fhe offence u/s 302 of IPC, sentenced him to undergo iuiprisoniuent for Ufe. (2) The case of the prosecution in bnef is fhat P.W.5 Ankalu lodged a report ia fhe PoUce station Autagarh to the effect that on 3rd October, 1997, fhe deceased Ankali Bai alongwifh accused Maagel cam.e to nieet the m1ing parents of Aakali Bai at Malmatta. and when on 05.10.1997, they were retuming to their village Churegaou, on fhe way accused attacked the deceased with aa Axe which he was carrying fhereby coiiunitted fhe murder ofAnkali Bai fhereafter, fhe accused took away fhe sliver belt (Patta) and Anthi wom bv fhe deceased aad Qed from the scene of occurren.ee. Oa receivmg this report, the Station House Officer, Antagarh, /N registered Crime No.39/1997 u/s 302 of IPC. The iuvestigatin^ officer lefit fcr the scene of occurrence. After giving notice Ex.P-l, to the Panchas, prepared inquest Ex.P-2 on fhe body of fhe deceased. The plain sofl aad fhe blood stained soil were coUected from the place of occurrence uader Ex.P-3. The Axe and omaments of fhe deceased were seized vide Ex. P-4 froio. possession of fhe accused. The body of Ankali Bai was sent for post-inortein exa-miaation to Prtmary Health Center, Antagarh where Dr. K.C. Raikwar aud A.S. Tadobi, conducted the postmortem. on the body of Aakali Bai aad prepared the post inortem. Ex.P-5/A aud opiaed fhat fhe death was due to shock, as a result ofcuttiiig oflarge blood vessels ofneck which is hoiuicidal ia nature. The clofhes ofthe accused were also seized vide Ex. P-5. The Axe was sent to the Assistaat Surgeon, for examuiation vide Ex.P-6, on which, he gave report (Ex.P-6/A). The clofhes of fhe accused and the deceased were also exarnined by the Doctor. He fouud blood stains on fhose clothes aad advised for cberaical examiaatiort. He gave report Ex.P-7/A. The site plaa Ex.P-8 on ths place of occT.urence was prepared. The recovered articles were sent for chemical examiiaation to Forensic Scieace Laboratoiy, Raipur from where fbe report Ex. P-14 was received. (3) After completion of fhe iavestigation, fhe charge sheet was filed ia fhe court ofJ.M.F.C., Narayanpiir, who ia tum comTnitted fhe case to the Sessions Judge, Jagdalpur, froni where the learned Addl. Sessions Judge, Kanker, received the case on transfer for trial. The prosecution, ia order to establish the charge, examined as maay as 12 witaesses. The stateiueut of the accused was recorded u/s 313 of Cr.P.C. in which he denied fhe inaterial appeariug agauist Tiim ia fhe prosecution evidence aud stated fhat fhe witaesses are liars and he is imiocent. (4) The leanied Addl. Sessions Judge, after hearing ftie counsel for the parties aud considering ttie material on record convicted the accused aad sentenced hiTn as aforeiaentioned. (5) We have heard Mr.Neeraj Mehta, counsel for fhe appeUaat and ShriU.N.S. Deo, Addl. Public Prosecutor, forfhe state. (6) Perused the record aad judgment ofthe trial Court. (7) Mr. Mehta, has not disputed fhe homicidal deafh of Aakali Bai, apart froiu fhe niedical evidence of Dr.Krishiia Chaadra Gaikwad who stated ftiat there was a cut injuiy on the back side of fh.e ear which was extended upto flie skuU ia fhe size of 4" x 1 Va " x 4 34". There was au incised wouad on th.e right lateral side of neck from tliyroid cartflage to cervical vertebra iu size of 4 Vz " x 1 Vs " x 4". There was a fracture of cervical vertebra aad the same was separated from fhe base of fhe skuU. Ou iatemal exainiaation, fhe cervical vertebra was found fractared aad was also cut froni the base. The braia mater was liquified. The above iujuries were caused by hard and sharp object. The cause of death was shock as a result of cutting of fhe large blood vessels, deatti was hoiiiicidal. His report is Ex-P.5. In view of fhe above evidence of fhe Doctor, it is established that fhe death of Aakali Bai was homicidal ia nature. As far as fhe uivolvenient of fhe accused ui criine ia question is conceraed, theie is no ocular and direct evidence ia this case. The conviction rests upon cu-cumstaatial evidence and as per the settled law, ia order to convict an accused based on fhe circuDistantial evidence, fhe Apex court ia a decision rendered ia Dhanantw Cheitteriee -7s- Stttte ofW.B {1994) 2 SCC 220., that ini a case based on circuinstaatial evidence, the circiuiistances froia which the conclusion of giult is to be drawn have not only to be fuUy established but also that all the ciTCUtastaaces so estabUshed should be of a conclusive nature and consistent onlv with fhe hypofhesis of fhe guUt of the accused. TIiose circuinstaaces should not be capable of beiug explaiued by any ofher hypothesis except the guilt of the accused aad fhe chain of the evidence aiust be so coiuplete as not to leave aay reasonable ground for fhe belief consistent with fhe innocence ofttie accused. It needs no remiader fhat legatly established cn-cumstasices aad not nierely indignation offhe court can forra fhe basis ofconviction and fhe inore serious fhe crixue, fhe greater should be the care taken to scrutmize fhe evidence lest suspicion takes the place of proof. (9) The prosecution has ta-ied to establish fhe criine agamst the accused on fhe foUowiag circunistaaces: i) that fhe deceased was last seen alive together with fhe accused just before her death; ii) that fhe accused inade extra judicial confession before fhe brofher, inother aud fafher of the deceased as also the viUagers of Malmata. w ni) That fhe sUver belt (patta) and Anthi whicli she were wearing at the tnne of the death were recovered at fhe iastance of fhe accused frovi his house; iv) The weapon of the offence i.e., Axe was recovered at the instauce ofthe accused v) The clofhes of the accused were found stamed wifh blood; aad vi) That fhe conduct of fhe accused after coiiunission of crime fhat he has not explained as to in what circuiastances the death ofAiLkali Baiwas occurred. (10) As far as first circiuiistaace is concerued, P.W.3 Sunder Siagh, the fafher of deceased Ankali Bai has stated fhat the accused is his sou-in-law, his daughter Ankali Bai was inarried to fhe accused, fhey used to reside in viUage Churegaon. The accused aad his daughter canie to their vfllage on fhe fateful day and near about the sun-set, they left for their vfllage Churegaon. The distaace between his viUage Mahnatta aad viBage of tiie accused Churegaon is about two nules. On fhe next day inomiTig, fhe vUlagers of Mahuipat came and informed about the deafh of his daughter. He went to fhe scene of occurrence aad saw the injuty on the neck of his daughter. He has further stated fhat when the accused aad his daugbter left his house, fhe accused was cam'ia^ aa Axe, his daughter was wearing silver belt (patta) and Anthi. The accused went to his village froiu where he was brought. Similar is the evidence ofP.W.4 Baisakhin Bai, the mother ofthe deceased and fhe mother-iu-law of the accused who has also supported fhe ^) evidence ofP.W.3 Sunder Siugh aad evidence ofP.W.3 Aukalu who lodged First Information Report. He is fhe brofher of fhe deceased aad brother-in-law of the accused. In the cross-exaiainatioii of these witaesses, fhe defence has not been able to discredit the evidence of these witaesses to fhe extent that fhe accused aad deceased caaie to house of Sunder Siagh. In fhe evening of the incident, fhe accused aud deceased left their house. As per tlie decision of fhe Apex Court ia fhe inatter of BoShrai (Si BoShei und ssthers -Vs- Stcite ofJamm.u and Kashndr, refforted in (2002] 8 SCC 45, the theory oflast seen coines itito play where fhe tune gap between fhe point oftime when fhe accused aud fhe deceased were seen last alive and when fhe deceased is found dead is so sinaU ftiat possibility of any person ofher fhan the accused being the author bf fhe crune becoiaes impossible. It woiild be hazardous to come to a conclusion of guUt m. cases where there is ao ofher posi^ive evidence to conclude that the accused and deceased were last seen togettier. In the matter of Su&hdsh Chand -Vs- State of Ralasthttn. reported in 12002] 1 SCC 702. the Apex Court fhat to constitute evidence of last seen togefher, the evidence must definitely permit au iaference beiag drawn fhat the victun aud the accused were seen together at a poiat of tuiie ia close proxtmih" with the time aad date of cominission ofcrune. In Ught of the above decisions, if we scrutuuze the evidence of above 3 witaesses, aU fhe fhree have stated that iu the evenin; of fhe date of incident, the accused and deceased left togefher, accused was carryiag aa Axe in his hand. The deceased was .fc wearmg silver patta aad Anthi. In the moming, NlaSAp&t fhe body ofAnkaU Bai was found, But the accused had iiot ex-Dlained as to when he departed fhe coinpaay of Ankali Bai aad how Anlcali Bai died ? He reniam.ed silent. He explamed only when the viUagers of viUage Malmatta came aad took him. to fhe viUage Mahnatta where he niade extra judicial confession that he comjnitted inurder of his wife. Therefore, it is established that the deceased was seen alive iu the com.pany of fhe accused just before her death and the accused has not explaiued as to iu betiveen aay fbird person caine, who comiiiitted the criine. (11) As far as the second circuinstauce is concemed, as per the setUed law, for resting conviction on extra judicial coufession, it has to be established that the extra judicial confession inade by tbe accused is prom.pt, voluiitar}7 aad truth. P.W.2 Sanirat of vfflage Mahurpat has stated that the neck of fhe deceased was cut. The fafher of fhe deceased has informed fheia that ia the eveimi.s of fhe date of incident, the accused and deceased left for their vfflage. He along wifh fhe viilagers went to cali fhe accused iu vfflage Churegaon where on euqiuiy fhe accused iaformed theni fliat he has comiaitted niurder of his wife at their vfflage. He had further confessed that he coimiiitted the niurder wifh aa Axe, thereafter fhey took the accused to their village Mahiirpat. In the cross examia.ation, this witness has stated that the accused was taken to their village. P.W.3 Sunder Siagh, father of the deceased has also stated fhat fhe viUagers of Mahurpat brought his soa-ui- law to tbeir viUage aiid there the accused confessed that he has coinmitted the muider of his wife. He has also taken fhe Anthi, .he denied tbe suggestion of defence counsel that fhe accused inade ^ extra judicial confession on threateniag given by the Police. P.W.6 Bajju ofvfllage Mahurpat has also corroborated fhe above evidence and stated that he alongwith the viUagers weut to fhe vfflage of accused to bruig him, when they reached to fhie vflla^e of accused namely Churegarh, he coafessed that he has committed fhe inurder of his wtfe with aa Axe, ttiereafter, they took fhe accused to fhe place of occurreuce where the dead body was lying. He also confessed fhat he coTnmitted fhe murder wifh au Axe which is ke-ot ia his house. P.W.7 Sukhlal bas also con-oborated the evidence regardiag ffae extra judicial confession inade by the accused before fh.em.. Therefore, froiu. the evidence of fhese witaesses apart frorn the inofher and fafher of fhe deceased, before fhe uidependeut witaesses who went to the viUage of fhe accused to bruig nim, the accused inade extra judicial confession. Even iu fhe cross examiiiation of fhis witness ou the aspect of extra judicial confession taade by fhe accused before these witnesses, fhere is nothing to discredit the evidence offhese witnesses regardhig extrs. judicial confession inade before them.. Therefore, the evideuce of fhese witnesses inspires confidence of fhe Court that the accused inade extra judicial confessiou before these wituesses which was voluntary aad true that he conimitted fhe murder of his wife with an Axe. (18) As far as fhe 3rd aad 4th circumstaaces are concemed, P.W.12 U.R. Diwaa, investuig ofiicer, has stated fhat ttie accused produced the Axe, the silver patta and Anthi which were seized vide Ex. P-4. Duruig fhe cross examination ofthis witaess, fhe defence has not been. able to chaUenge the above evideace ofU.R. Diwaa. Even in fhe cross-examinatiou, this witness has stated fhat the Axe was seized froni the accused. There is no further cross examination by fhe defence. This witness lias stated that the Axe, the weapon of the ofifence was taken iu to possession froni the accused. (13) As far as 5th circumstaace is concemed, P.W.12 U.R. Diwan, Investigafmg Officer, has stated fhat on 6.10.1997 on betn^ produced by fhe accused the clothes ofthe accused i.e., Lungi aad BaaiaiL stauied with blood were seized uader Ex.P-5, on fhis aspect, this witness has not been cross examiaed. These clothes were shown to P.W.8 Dr.Krishiia Chandra Gaikwad, on 10.10.1997 on the request offhe S.H.O., PoUce station Antagarh, he examined fhe Luagi aad Baaiaa on which the stains Hke blood were present he advised for cheinical examiaation and as per fhe report of the cheinical exaininer P.W.14, fhe blood was found on Lungi and Ranian of fhe accused, therefore, it is established that fhe clofhes of fhe accused stained wifh blood were taken into possession. (14) As far as the circuinstance fhat the silver oraameats i.e., Patta and An1.bi which the deceased were wearuig at fhe tune of coinmission of fhe offence were seized froin fhe possession of accused, is conceraed; P.W.12 U.R. Diwan has stated fhat the silver patta and Anfhi were seized vide Ex.P.4 on being produced by the accused and P.W.3 Suiider Siagh, P.W.4 Baisakhm Bai have categoricaUy stated fhat the deceased was wearing a sUver patta and Anthi. P.W.5 Aalcalu, fhe brother of fhe deceased has stated ia para 2 fhat when he saw the dead body, fhe silver patta aad Anthi were not on fhe body of his sister, these omaments were ^9 (XV seized by fhe iavestigating officer from. the possession of fhe accused vide Ex.P-4. In Ronny @ Ron-ald Jcim.es Alwaris etc., V. Sta&e of3Saharetshtr€i. AJR 1998 S.C.. 1251 vide para 31 of me judgment the Apex court held fhat recovery of articles belongiag to the deceased fanuly frosi fhe possession of the accused soon after the incident, ftie possession reinaiaed unexplauied by fhe accused, so the presiunption under aiustratioa (a) of section 114 of fhe Evidence Act wiB be attracted. It needs no discussion to conclude fhat fhe ta.urder aad robbeiy of articles were found to be part of the sam.e tran.sacti.on. The irresistible conclusion would, taerefore, be fhat fhe accused and no one else had coiiunitted the i&urder aad fhe robbery. Smularly, in the inatter of NcttoabucWn (S). Ntiwab Vs. State of Delhi reoorted in AIR 2001 S.C. 979. the Apex Court furfher held fhat fhe accused persons from whoin fhe recoveries were m.ade consequent upon fheir disclosure statement, did not offer any explan.ation regarding fheir possession of fh.e stolen. properties. Thus by drawiug a presiunption under section 114 of the Evideuce Act, it cau safely be held fhat fhe accused persons were afleast guflty of fhe offence of robbeiy. (15) In view of fhe above law, the evidence on record fbat fhe deceased was wearfag Anthi and silver patta at tbe tiiae of com-mission of fhe cruae and as per fhe evidence of P.W.5 Aakalu when he saw the dead body of the deceased, fhese omanient^were raissing, sam.e were seized froin fhe possession of accused under Ex. P.4, establishes fhe iavolveuieat of the accused in the crime fhat after committing fhe crime, he took away fhese omaments. 11 ^; As far as la&fc circuinstaace is concemed, as discussed ia the earlier part of fhe judgnient that the accused aad fhe deceased leitt togefher in fhe evening the house of fhe ta-laws fhat is parents house of fhe deceased situated in. viUage Malmeta for goiag to fheir house in viUage Churegaon, on the way fhe dead-body of AiLkaU Bai was found ia the next day inonuiig. The accused was in his house aud he neither reported the iiussiug of his w7ife nor made any explanation regardiag absence of his wife, when he departed the conipany of his wife and what happened fhereafter. On fhe contraiy, when viBagers offhe viUage Mahnatta came to fhe house of fhe accused in vUl^e Churegaon, he niade extra. judicial confession before fhein fhat he coiamitted inurder of his wife Ankali Bai. Therefore, fhe conduct of fhe accused not explaining about fhe death of his wife establishes the iavolvement of the accused ia fhe crmae in question. Section 106 of fhe Evidence Act envisages tbat when aay fact is especiaUy wifhia the knowledge of aay person, fhe burden of proviag fhat fact is upon him. When ftie accused aad the deceased were coTmng together back to fheir vfllage Churegaon ia fhe fateful lu^Iit, it was wifhm. the special knowledge of this accused fhat when his wife departed his compaay aad how the crmie was coininitted. He ought to have explamed those circumstaaces. On the contraiy, he was sittin^ silent ta his house without teUuig anybody regarding abseuce of his wife, therefore, ttiis circumstance also establishes the iavolveirient ofthe accused ia the crmie in question. (16) For the reasons stated herein above, aU these circum.stauces cumulatively coxnplete fhe chaui of cBrcumstaiices for arriving at 12 an itTesistible conclusion that the accused was autfaor of the crime in question. There is no possibUity of conung aay third person in between in committiag the crime. (17) In fhe result, we do not find aay iUegaUly and iufirmily in the judgaient of the trial Coiirt convictiag the accused for fhe coituuission oftiiurder ofhis wtfe. (18) The appeal being devoid of inerit liable to be disinissed aad it -i&Aerebv disnussed. ^^-—^-^; Sd/- '-•C.BHADOO Judge Sd/- Sunil Kumar Sinha !e Rao