^laSi APPELLANT: HI6H COURT OF CHHATnSSARH. BILASPUK CrimjnaLAoDeul No.204 of 2001 ftajaram, S/o ESholwa 6ond, a9ed 55 years, R/o Village Bagrel, P.5. Dabhra, bistt. Janjgir-Chornpa (C.6.) - Versus - RESPON&ENT: State ofChhattisgarh, Through Oistrict Magistrate, Janjgir-Champa. {Appeal under Section 374 (2) of the Criminal Procedure Code} Appearance: Mr. ©ovindRam Miri, counsel for the appellant. Mr. Akhil Mishra, Panel Lawyer for the Stote/respondent. Division Bench: Hon'bte Mr. L.C. Bhadoo and Hon'bte .r. Sunit Kumar Sinha. JJ. JUDGMENT _< (Delivered on o--2. . ^, 2007) The followino iudament of the Court was delivered_by L.C. Bhcdoo. J.: - 1. This appeat is directed against the judgment of conviction and order of sentence dated 24 January, 2001 passed by the Additionul Sessions Jydge, Sakti, in Sessions Trial No.373/2000, whereby iearned Additional Sessions Judge after. hokling the accused/appellant guitty under Section 302 of the I.P.C. -for committin9 the murder of his wife ©auriBai, sentenced him to undergo imprisonment for tife and to pay a fine of Ks.1,000/-, in default of payment of fine to further undergo imprisonment for one month. 2. Case of the prosecution, in brief, is that on 17-6-2000 at about 3.30 p.m. (SauriBQi, wife ofthe accused, aged about 45 yeors, R/o Vitiage: Bao^el was !-S-". ' : i found dead in her house. As per the prosecution case, there was jdispute H-L... between husband &. w\fe, ther-efore, deceased 6auri Bai had gone to her mcrt-erna! house, the accused went to his in-law's house, the matter was compromised on 1-4-1999 and in pursunnce of that, the accused brou9ht back his wife. The accused wos suspecting the fidelity of his wife that hi's wife is having illicit relations with one Dhoomdas Rawat. On the fatefui day, in the morning st about 7 a.m. Mongrabai saw that 6auri Bai was sitting at the gate. of her house. Thereaft'er, ot about 9 a.m. the deceased took buffalo for grozing ond the accused had 9one for work. The accused returned at about 3 p.m. He saw that his wife was cooking vegetable, seeing this, he became angry, pr-essed her neck and inflicted injuries on her chest with a chopper (?%n). After committing the murder of 6auri Bai, the accused went to tube we!l for washing his hands A Ohoti. After retuming to his house, he informed his brother Ratiram through Babulal (PW-17) that his wife died on account of electrocution. In turn, Ratiram gave merg intimation (Ex.P-1) to Potice Station: Janjgir'-Champa. 3. The Investigatin9 Officer took up investigation and came to the house ofthe accused from where he seized chopper, sickle & nail of the accused. After giving notice ExP-3 to the Panchas, inquest Ex.P-4 was prepared on the body of 6auri Bal. Pnnchnama of seorch of the house ExP-5 wos prepared, one sickle stained with blood was seized under Ex.P-6, one chopper stained with blood was seized under Ex.P-7 and one Dhoti ofthe accused »b'asseized under Ex.P-8. Tape recorder, sound box and one wire with switchboard were seized under Ex.P-9. One winnowing basket stained with biood was seized under Ex.P-11, Four matchbox sticks and one plastic jerricon with 200 9ms. of kerosene oil were seized uncfer Ex.P-10. BIood stained soil, plain soil, half burnt blouse and clot}i"es, were seizecl under Ex.P-12 from the place of occurrence. Ikr-amama Ex.P-2 was seized under Ex.P-13. One spectacle of the deceased was seized under ExP-14. Site plan of the ploce of occurrence Ex.P-15 was prepared. The body of Sauri Bai was sent for post-mortem e^ianination to Community Health Centre, Dabhra under Ex.P-2 where Dr. N.P. ishra & br. Anita Shrivastava conducted post-mortem on the body of &auri Bai and opined 4frat cause of death seems to be on account of shock due to 6. 8. 9. & burn during unconscious position, due to pressure over neck and haemorrhage due to injury. The nature of death is honiicidal. Sickle & chopper were sent to the doctor for examination under Ex.P-24 w/ho prepared the report EX.P- 25. behati Nalishi Ex.P-31 was submitted by the Investigating Officer and based on that first information report Ex.P-32 for commission of offence under Sections 302 (& 201 ofthe I.P.C. w/as registered. ; After compietion of investigation, charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Sakti, who in turn committed the case to the Sessions Judge, Bilaspur, from where learned Additional Sessions Judge, Sakti received the case on transfer- for trial. The prosecution in order to establish charge against the accused examined 37 witnesses. Stotement ofthe accused was recorded under Section 313 ofthe Cr.P.C. 'm which he admitted that there was dispute between him and his wife. He nlso admitted that he soiii/ spots of kerosene on the head of his wife. He further admitted that Panchnama was prepared .and his house was searched. He also admitted that there w/ere burn injuries on the body of his wife. Learned Additional Sessions Judge, after hearing the arguments of counsel for respective par-ties, convicted and sentenced the accused under Section 302 of the I.P.C. as aforementioned, however, acquitted the occused of charge under Section 201 of the I.P.C. We have heard Mr. 6ovind Ram Miri, learned counsel for the appellant and Mr. Akhil Mishra, learned Panel Laivyer on behalf of the State/respondent. In this case, there is no ocular or direct evidence in order to connect the accused with the crime in <)uestion. Whole case rests on the circumstantia! evidence. Inocder to connect the occused with the crime in question based on the circumstantial evidence, the prosecution is required to estobtish complete chajn ofthe circumstantial evidence. In catena of judgments law laid down by the Apex Court is that where nicase rests squarely on circumstantial evidence, the inference of guilt can be 6,.S=> Justified onty when all the incr'iminating facts and circunistances ore found to be incompatible with the innocence of the accused or the guilt of any person (Hukam Si«9h vs. State of Rajasthan, AIK 1977 SC 1063; Eradu vs. State of Hyderabnd, AIR 1956 SC 316; Earabhadrappa vs. State of Karnataka, AIK 1983 SC 446; State of U.P. vs. Sukhbasi, AIR 1985 SC 1224; Balwinder Singh vs. State of Punjob, AIR 1987 SC 350 and Ashok Kumnr Chatterjee vs. State ^ of M.P., AIR 1989 SC 1890). The circumstances from M/hich an infererice as to the guitt of the occused is drawn have to be proved beyond reasonabte doubt and have to be shown to be closely connected with the principle fact sought to be inferred from those circuinstances. In Bhagat Ram vs. State of Punjab (AIR 1954 SC 621) it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such ns to negative the innocence of theaccused and bring home the offences beyond any reasonable doubt. 10. We may atso make a reference to a decision of the Apex Court in the matter of C. Chenga Reddy vs. State of A.P. {1996 (l0]l SCC 193} wherein it has been observed thus; "21. In a case based on circumstantial evidence, the settled low is thot the circumstQnces from which the conclusion of guilt is drawn shoutd be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances shoutd be complete and there should be no gap lefl- in the chain of evidence. Further, the proved circumstances must be consistent onjy with the hypothesis of the guitt of the accused and totally inconsistent with his innocence." 11, In Padais Vesra Reddy vs. State of A.P. (A1R 1990 SC 79) it was laid down that when a case rests upon circumstantia! evidence, such evidence must sotisfy the following tests: (1) the circumstances from which on inference of guilt is sought to be dr'awn.must be cogentty and firmly established; (2)those cir'cumstances shouid be of o definite tendency unerr'ingly pointing towards 9uilt of the accused; tS-:,.=S (3)the circumstances, taken cumulativety, should form a chain so complete that there is no escape from the conclusion that within all human probabilitythe crime was committed bythe accused and none else; and (4)the circumstantial evidence jn order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not onlyjbe consistent with guilt ofthe accused but should be inconsistent with I'lis innocence. 12. In State of U.P. vs. Ashok Kumar Srivastwa (1992 Cri U 1104) it was pointed out that great care must be taken in evaluatjng circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon nnust be found to have been fuily established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 13. In Hnnumant ©ovindNargundkar vs. State of M.P. (AIR 1952 SC 343) it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstonces from which the conclusion of 9uilt is to be drawn should be in the first instance be fully estabtished, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such ns to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusibn consistent with 'the innocenee of the accused and it must be such as to show that within all human probability the act-nriust have been done by the accused." 14. A reference may be made to a decision in Sharad Birdhichand Sarda vs. , State of Maharashtra (AIR 1984 SC 1622). Therein, while dealing wi|th circumstantial evidence, it has been held that the onus was on the prosecuti^n - to prove that the chain is complete and the infirmity of lacuna in the .!,-;=> 15. prosecution cannot be cured by a false defence or plea The conditions precedent in the words of this Court, before conviction could be based on circumstantjal evidence, must be fully established. They are: (1) the circumstgnces frorn which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; • i (2)the facts so established should be consistent only with the hypothesi^ of the guilt of the accused, that is to say, they should not be exptainabte on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive noture and tendency; (4)they should exclude every possible hypothesis except the one to be proved;and (5)there must be a choin of evidence so complete os not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probobility the act must have been done by the accused. In Ohananjoy Chatterjee vs. State of W.B. reported in (1994) 2 SCC 220 the ApexCourt held that: "In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully establishecf but also that all the circumstonces so established should be of a conclusive nature and consistent only with the hypothesjs of the guiit of the accused. Those circumstances should' not be capable of being explained by any other hypothesis except the guilt of the accused ond the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legalty established circumstances and not merely | indi'gnation of the court can form the basis of conviction and the more serious the crime, the greater should be the core taken to scrutinize the evidence lest suspicion takes the place of proof." -^.4-« "T^ '<v~ B-S3 16. In the present case, the pr'oseeution has tried to establish the crime against the accused, who is husband of deceased 6auri Bai, based on the following circumstances; - 1. That, relations between the accused and the deceased were strain. 2. That, the accused was doubting the fidelity of his wife (?auri Boi. 3. That, the death of 6auri Bai was homicidal. * 4. That, weapon of offence, blood stained soil, blood stained winnowing. basket and blouse were seized form the place of occurrence by the Investigating Officer. 5. That, (?auri Bai received homicidal injuries in the house. The accused did not offer any explanation as to how Sauri Bai sustained homicidal injuries on her body, on the contrary, he gave false explanntion that his wife died on account of electrocution. First circumstance 17. As far as this circumstance is concerned, Ramlal (PW-2) has stated in his evidence that on account of strained relationship between the accused and his wife, one year back Sauri Bai had gone to her parent's vil!age, she was residing there. Ther-eafter, the matter was compromised and 6auri Bai was brought back to the house of the accused pursuant to a compromise arrived between the two. Rajaram, the accused/appellant, and Scuri Bai entered into an agreement Ex.P-2 that with effect from 1-4-1999 they wiil not keep strain relations and wil! maintain cordiai relatiws, if any one out of the two will flout the agreement, then he witl pay Rs.1,000/- to another. 18. Dhurva Singh Sidar (PW-13) has also stated in his evidence that 6auri Bai & Rajaram used to quarrel, there'fore, 6auri Bai stayed at their residence for 5- 6 months. ThereQft-er,. a meeting of the community was convened and in that, the agreement (Ex.P-2) was written, that was written by him and signed by Rajoram & 6auri Bai. | 19. , Shiv Prasad (PW-14) .& Dabela Singh (PW-18) have also stated that relations 'between the deceased and the occused were stram. Even the accused in his statement under Section 313 of the Cr.P.C. in reply to question No.4 hos ^ •WMUinmniiKUtuiiiiiuAa^ii ,-S3 admitted this fact that relationship between him and his wife were strain, they used to quarrel, therefore, his wife went to her maternal house, compromise was enter-ed on 1-4-1999 and she came to his house. Therefor-e, as per the prosecution evidence and statement of the accused it is established thot relationship between the deceased ond the accused were strain. ) Second^ircymstance 20. Further case of the prosecution is that the accused used to doubt the fidelity of his wife and he was suspecting that 6aun Bai was having illicit relations with Dhoomdas Rawat. Ratiram (PW-1) has stated in hjs evidence th'at &hoomdas was calied by the Police and he was detained in the Poiice Station. Dhoomdas borrowed Rs.6,000/- frorn his brother (accused), out of that, an amount of Rs.3,000/- was poid by Dhoomdas to fiauri Bai, the reinaining amount was due. Dhoomdas used to threaten (3'auri Bai that she should tell her husband that Rs.6,000/- has been repaid, otherwise he wili kii! them. &nu9hter of 6auri Bai nomely, Laxmin Bai informed hirn about this-fact. 21. AAoharial (PW-4) has also stated in his evidence that Dhoomdas was knowri to him, he had heard that there was illicit reiationship between 6auri Bai &. bhoomdas, once 6auri Bai left the house ofthe accused affer quarreling with him and went to her moternal house, thereQfter, she was brought back after compromise. In para 10 of his evidence he has stoted that Police peopiewere talking that ©auriBai was havin9 illicit relationship with Dhoomdas and he heard that. 22. Therefore, frorn the above evidence it is established that there was a rumour in the village that Ohoomdas was having illicit relationship with fiauri Baj, which was not iiked-by the accused,on account ofthat, they used to quarrel and fiauri Bai left for- his maternal place. U!timately, the matter was compromised and she was brought back. Therefore,the accused was doubting the fidelity of his wife. :S=1 23. As far as this circumstance is concerned, Ratiram (PW-1) hasstated in his evidence that the accused is his younger brother and 6auri Bai (since deceased) was his wife, his brother Rojaram informed him that 6ouri Bai died on account of eiectrocution when she was listening radio. Perusai of merg intimation Ex.P-1 g\vef\ by this witness reveals that this witness gave the merg intimation to the effect that his brother informed him thot when he returned to his house from work at about 3 p.m., gate of the house was open, when he entered the house he saw that his wife was lying on the ground, the electric wire was lying near 6nuri Bai and she died on account of electrocution, When this witness went to the house of his brother Rajaram, fiuauri Bai was lying dead. So, based on the information given by his brother Rajaram, he 9ave this merg intimation that 6auri Bai died on account of electrocution. 24. Babulal (PW-17), nephew of the accused & son of Ratiram (PW-1), and Peeluram (PW-8) have also stated that the accused informed that fiauri Bai died on account of electrocution. 25. Dr, N.P. Mishra (PW-32) conducted post-rnortem on the body of (5aur! Bai on 18-6-2000 at about 4.40 p.m. He has stated in his evidence that on external examination of the dead body he noticed fotlowing points: - (1) there was superficiat burn on face, head and front side of neck; (2) there was superficial burn on chest and burn injuries on supra- scapular region; (3) hairs of armpit and both the hands were found burnt; i (4) hairs of head and skin of occipital region were not brunt; (5) eyebrows were burnt, cornea was hazy, conjunctiva was congested; (6) therewas'sub-conjunctiva haemorTha9e on lateral corner of left eye; (7) blood was oozing out of mouth & nose, tongue wos protruding; (8) fingers of both the hands u/ere found in semi flexed condition; (9) nails turned pale; (10) smell of kerosene was emanating form hairs of head; and (ll^- blisters were present on burnt portion of the body. 10 -^ Foilowing injuries were found on the body: - (1) there was abrasion on laterai corner of tongue in.the S!2e of 1 cm. x l x 1 m.m. and there was swelling around the injury; (2) there was abrasion on right side of lower lip in the size of 1 cm. x 1 x 7 cm.; fhere was abrasion on ieft side of !ow/er lip in the size of i- x j-; x y cm. ,' (3) there wns incised wound on lower part of chest and over stomach in vertical line in the size of 7 x 1.? x 1.7" deep up to sternum bone extending up to peritoneum membrane; there was vertical abrasion above stomach on upper part ofmembrane which was from nipple in the vertical line 4,i'" x 1 x 1 cm. in length; (5) there were three parallel abrasions on the above part of stomach near injury Nos.3 <& 4; (6) there was abrasion on the later part of vagina i.n the size ofl x TX i' cm. and clotted blood was present ct the root of the injury. On dissectjon ofthe body and on opening neck it was found that (1) clotted blood was present on the left suprn claviculnr fossa in the size of 1. •i' x 1. i-; (2) clotted blood was present on the right supra clavicular fossa in the size of 1. i- x 1. ?" and right side of neck muscles •fiber were damaged; (3) clotted blood was present on left side of chin in the size of 7" x 1 cm.; (4) clotted biood Was present on right angle of mandibie in the size of 2,1 x l"; (5) clotted blood was present on lower part of neck in the size of 1.? x l"; and (6) clotted blood was present near wjnd pipe on left side of neck in the size of 1 x l". opening scalp and cutting of skin it was found that ^l') clotted blood on right parietal region in the size of 3 x 3"; f2) skull metnbrane was congested; ^T1 11 •y (3) there was petechial haemorrhage on brain; (4) 3 rib at left side at 2" aw/ay from maxillar-y line uras broken; (5) 8th rib (right side) at lateral of chest was broken and clotted blood was present on account of r-upture of nerve; (6) neck <& windpipe were highly congested; (7) beneath the trachea bronchus portion was congested and few carbon particles were found in the trachea; (8) ieft & right carotid artery was full of blood; (9) there wce rupture in the carotid cavity; (10) there was incised rupture beneath injury No.3 of peritoneum membrane (11) stomach was empty and carbon particles were present; (12) intestine was pale; (13) there was incised cut w/ound on right lob of !iver in the size of l.i- x •i x l"; and there was post-mortem burn inside both the thighs below vagina in the size of 3 x 1.?". Above burn injuries were ante-mortem in nature. Injuries on neck were on account of pressure and injuries on chest & stomach were caused by sharp weapon. Burn injuries on the body were on account setting the body on fire aft-er pouring kerosene. Injuries No.4 & 5 were caused by sharp edged pointed weapon. Biouse was burnt. 26. In cross-exomination, &r. N.P. AAishra (PW-32) has stated that cause of death was on account of pressure on neck. He reached to the conclusion that neck of the deceased was pressed after sitting on her chest and that is why, the ribs were fractured. It appears that for sexual intercourse, the deceased was asked to lie straight and in that position her neck was pressed, when she did not die on account ofthat, the person sat on herchest ond attocked,that is'why there was injury on liver and peritoneum, same was found cut. Thereaff-er, injuries were inflicted on vagina. There were burn injuries on -ya^ina and both the thighs. At that time, 6auri Bai was breathing, as there •i. .i:.r. i i 12 1^1 ^ were carbon par'ticles in trachea & stomach. He has further stated that carbon particles w/hich were found in the trachea could not be caused on account of burn by electr-ic current. The death wns caused not only by pressing of neck, but also by setting the deceased on fire, that is why, carbon particles were found. 'T.t 27. Above medical evidence of &r. N.P. AAishra found corroboration from inquest- report Ex.P-4. Perusal of the inquest report which was prepared in the presence of Panchas reveals that all the injuries explained by the doctor w/ere present on the body of the deceased at the time of preparatioii of inquest on the body of fiauri Bai. Even the Panchnama witnesses namely, Moharlal (PW- 4), Chintamani (PW-7), Peeluram (PW-8), Milketan &as (PW-19), Pila &au (PW- 25), ©auribai(PW-26) & Umiilabai (PW-27) have also stated ond provecf the inquest report Ex.P-4. Above injuries and position of the body has not been disputed by the accused. In cross-examination of the doctor, defence has not been able to elicit from the doctor that Sauri ,Bai died on account of electrocution. Post-mortem and evidence of the doctor as well as the inquest report are suggestive of the fact that not only rieck of the deceased was pressed, even injuries were also inflicted by weapon on chest & stomach, as a result of which there was incised wound, on account of that, ribs were fractured and there were burn injuries on thighs and vaginal part. Smell of kerosene was emanating from hairs. Burn injuries were present on the person of &auri Bai, which were due to setting her on fire and those burn injuries were not of electrocution. 28. Therefore, above circumstontial evidence is suggestive of the fact that the death of fiauri Bai was not on account of electrocution, but on account of