HIG\N H COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH *COEAELi WW HON'BLE MR. R.N. CHANDM, JJ. CRIMINAL APPEAL No. asglzooh Mahavir Alias Pandru‘, S/o Gidru, Age about 28 years, R/o village Maheshpur, RS. Darima, Tahsil Ambikapur, District Sarguja (Chhattisgarh) State of Chhattisgarh, Through: D.M. Sarguja (C.G.) ~ C APPELLANT (IN JAIL) VERSUS RESPONDENT RimNAL APPEAL UNDER sEc'rION 3mm OF any}. Present:— Mr. Abhay Tiwari, Advocate for the appellant. Ms. Madhu Nisha Singh, P.L. for the State/respondent. ORALJUDGEMENT a (Passed on 16/06/201 1) The following judgent of the (Boga was gassed by T.P. Shanna, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 31/8/2004 passed by 4th Additional Sessions Judge (F.T.C.) Ambikapur, Sarguja (C.G.) in Sessions Trial No. Munni @ Malti and concealing the evidence of criminal ‘\\ case, convicted the appellant’un’der Sections 302 & 201 \ of the Indian Penal Code and sentenced imprisonment for life with tine of Rs. 500/—, in default of payment of fme amount additional rigorous imprisonment for 6 months & rigorous imprisonment for 7 years with fine of Rs. 500/—, in default of payment of fine amount additional rigorous imprisonment for 6 months. Conviction is impugned on the ground that without any iota of evidence sumcient for conviction of appellant Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the prosecution, present appellant‘was residing with his wife Munni @ Malti in his house and on fateful intervening night of 22—23] 10/2003 at about 3:00 A.M. appellant assaulted his wife resulting into her death and on second day morning, he informed the villagers that his wife has died and lodged marg intimation vide Ex. ’ P—ll. On the basis of marg intimation, First Information Report was lodged vide J Ex. P-12. Investigating Odicer left for scene of occurrence and after summoning the wimesses vide Ex. P—9. Inquest over the dead body of deceased Mlmni @ Malti was prepared vide Ex. P—8. Spot map was prepared vide Ex. P—l. Patwari also prepared spot map vide EX. P-2. Viscera and cloths of deceased Munni @ Malti was seized vide Ex. P—l5. Dead body of Munni @ Malti Was sent for autopsy to Government Hospital vide Ex. P~ 13; PW13 Dr. Surya Kishore Sinha conducted autopsy vide Ex. P— 17 and found following injuries:- (i) Multiple bruise with abrasion over the chest. (ii) Multiple bruise with abrasion over back and hips. (iii) Depressed fracture on fronto—parietal ‘4 region of 4 c.m. in length. Mode of death was coma and death was homicidal in nature. 4. Statements of the witnesses were recorded under Section 16 1 of the Code of Cm‘minal Procedure, 1973 (in ‘ short”‘t.he Code’). After completion of theinvestigation charge sheet was filed before the Judicial Mag'strate First Class, Ambikapur who in tum committed the case to the Court of Sessions, Ambikapur from where learned 4th Additional Sessions Judge (F.T.C.) Ambikapur, Sarguja (C.G.) received the case on transfer for trial. In order to prove the guilt of the appellant/accused I prosecution examined as many as 13 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication in crime in question is claimed. ty of hearmg to the parties, (F.T.C.) C G) conv1cted and sentenced the Ambikapur, Sarguja t as aforementioned. . 1' appellant Mr Abhay Tiwari le 6. After affordmg an opport 4‘31 Addmonal Sessxons Judge leamed the State] respondent Ms Madhu N1sha Smgh P L for are heard Judgment impugned and record of below perused. Learned counsel for the appellant vehemen case of the prosecution and statement of the and deceased Munni @‘ Maltiwere wife of appellant i.e. result of terms of Sectron 106 these cu‘cumstances m that as per witnesses, appellant residing in same room and injury. In of the Evrdence Act appellant was under ob gation to not offered explanation appellant has presumed that app t 1n the present case, eomrmtted aforesald offence b prosecution has not collected any evidence (offer explanation, therefore it may be ellant has material and to show that in which circumstances aforesaid mJury has been caused to the deceased and what mg such lnJury Except n has been used for can weapo one injury over the are simple 1n head, other injuries fo d over the body of nature therefore, inJury deceased Munnl \ @ Mam shows that ugurles have been f ‘ caused on sudden provocation and fatal or dangerous weapon has not been used. In these cimumstances, if the evidence of prosecution is admitted in its face value then even the act of appellant does not travel beyond the scope of under Section 304 Part-I of the Indian x. Penal Code. On the other hand, learned counsel for the respondent/State opposed the appeal and argued that present appellant has caused fatal injuries resulting into death of deceased Munni @ Malti ire. wife of appellant. . Appellant was under obligation to t offer explanation relat'ng to cause of death of Munnl @ Malti but instead of offering explanation, appellant has offered false explanation, this is an additional circumstance to proving the guilt of the appellant. Learned counsel for the State/respondent further argued that after appreciating the evidence learned 4‘11 Additional Sessions Judge (F.T.C.) Ambikapur, Sarguja (C.G.) has rightly convicted and sentenced the J appellant as aforementioned. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death as a result of fatal injury found over the vital“ part of deceased Munni @ Malti on head has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW13 Dr. Surya Kishore Sinha and autopsy report Ex. P- 17 and dealth was homicidal in natule. 13. As regard the complicity of appellant in crime in question is concerned, conviction of the appellant is based on circumstantial evidence. In the present case, prosecution has tried to establish the following facts:- r‘ (i) Appellant and deceased were residing together under same roof and same mom as husband and Wife. (ii) Ori’ ‘the date of incident,_ appellant and deceased only two persons were present in the house. (iii) Deceased found dead in the aforesaid intervening night that too as a result of fatal injury. (iv) Her death was homicidal in nature. (v) Appellant was under obligation to oEer explanation in terms of Section 106 of the Evidence Act but appellant has not od‘ered any evidence relating to injury and death of his Wife. (vi) Appellant has on‘ered false explanation that her Wife has died as a natural death. J Evidence of PWI Godhu Ram, PW2 Bhoka @ Heeralal, PW3 Moharlal, PW4 Jaiprakash, PW5 Devnath, PW6 Ashok, PW7 Indal & PWS Smt. Muniya Bai are sufficient for drawing an inference that at the time of w incident, appellant and'deceased only two persons were present in the house and no other person was present in the house of appellant. As per evidence of PW13 Surya Kishore Sinha and autopsy report Ex. P—17, death of deceased Munni @ Malti was homicidal in nature. As per evidence of aforesaid Witnesses, appellant has informed them that his wife has died as a result of natural death and on account of illness i.e. appellant has odered false explanation. In terms of Section 106 of the Evidence Act appellant was under a obligation to on‘er explanation that who pas caused injury and death of his wife. 15. In the present case, in absence of any explanation in terms of Section 106 of the Evidence Act and under aforesaid circumstances including multiple injuries over the body of deceased only inference would be possible that present appellant was present and he has committed culpable homicide amounting to murder of his Wife Munni @ Malti. As regard concealing the evidence of criminal case is concerned, prosecution has not adduced any evidence to show that appellant has concealed the evidence of criminal case interalia the evidence and specially marg intimation Ex. P—11 reveals that appellant has offered false explanation relating to“ death which is an V- additional ground for proving the commission of culpable homicide amounting to murder but not sufticient for drawing any inference that present appellant has concealed the evidence of criminal case. 17. While convicting and sentencing the appellant under Section 201 of the Indian Penal Code learned 4th Additional Sessions Judge (F.T.C.) Ambikapur, Sarguja (C.G.) has not considered the aforesaid aspects and non—availability of evidence relating to offence punishable under Section 201 of the Indian Penal Code v and thereby committed an illegality. 18. For the foregoing reasons, criminal appeal is partly allowed. Conviction and sentence of the appellant under Section 201 of the Indian Penal Code is hereby set—aside and conviction and sentence of the appeilant under Section 302 of the Indian Penal Code is hereby Sdl~ ~Ty.snARMA i RN. CHANBRAKARA l Judge r/k (w \ l 953 ‘