HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal ApEaI No.533 of 1992 APELLNNT: Tilmati, W/o Labh Singh Chauhan, (in Jail) I aged 32 years, R/b Village ‘ Kamraga, P.S. Lailunga, District Raigarh (M.P.) (now CG) Versus State of Madhya Pradesh (ow ’ hhattisgarh) through District Magistate, aigarh (MP) (now) (CG) x k Present snrl aj rlhl t V Rendra Tpat counsel forthe appellan ~ S andresh Shastav Panel Lawr fo th State/respondent. hn Ch nva ye r e (25—1 -01 0) 1. Ts criminal appl is directed against the judgment of conviction and odr of sentence dated 12th March, 1.992 assed in s.T No.2/92 r‘e p . erby learned SesSins Judg Raiarh has convicted the appellant whe o e g n tion an s h o lif uder Sec 302 of the IPC d entenced er t undergo e Imris smg of y Si ponment for cau death her husband namel, Labh ngh 2. Te caseof the rosecution, in brif, is hat deceased Labh ngh was h p e t Si tcha of Kamarg. After th eath of his first wife Suwaro Bai, e con d e he t l e9 l wamn a e d k h tracted Chui marriag with t appellant and thereafer he develed illicit” relatinship with Dilmati, younger sister f the op o o appellant, as a result, She gave birth to a female child. As per the i decision of the Panchayat the deceased made Dilmati as his second Viiife Because of the above fact the appellant started quarrelling With i RESPOIN‘DENT n C r R Division Bench: Hon. Shri Dhirendra Mishra & Hon. Shri R.L. Jhanwar, JJ. na JUDGMENT 2 hi ea @ thje deceased. The appellant had undergone family planning operation alter giving birth to a male child. She insisted that her family planning l operation should be undone, as she was not inclined to live with him l and she would marry another person. She had gone to Lailunga hospital with the deceased for the same purpose, however, the operation could not be performed and she was advised that such l operation could be performed at Raipur at the cost of Rs.3,000/-. The l appellant quarreled with the decease even for arranging Rs.3,000/—. LV‘ . 2-;3 days before the date of the incident, she returned from her parental home, She was‘ sleeping with the deceased on’thefateful night in the l varandah whereas, Kanhaiya Lal and Bhuvneshwar were sleeping in the same verandah at a distance. “Both of them Woke up on hearing the shouts of the appellant. Neighbours Shrimukho, Samaru and ltwar also reached there and they found Labh Singh lying dead in the Varandah, as he had sustained injuries over his neck and shoulder. The appellant’s hand was stained with blood though the appellant did not sustain any injury. The appellant told them that someone ran away after assaulting Labh Singh. r S . The report of the incident was lodged by Kanhaiya in Police Station Lailunga vide Ex.-P/1. He expressed his suspicion regarding involvement of the appellant. . After registering the crime, the police proceeded for the scene of _,; occurrence and conducted inquest over the person of the deceased vide Ex.-P/3. The dead body was sent for autopsy to the CHC l l Lailunga where Dr. Shailendra Upadhyay (PW-13) conducted the pbstmortem and gave his report vide Ex.-P/13. offence blood stained axe was recovered from the room where goats aire kept vide Ex.—P/5. Site plan was got prepared by Halka Patwari PIW-11 Laiaram vide Ex.-P/11. Seized article was sent for chemical l examination to FSL, Sagar, however, report is not available on record. . Aftep completing usual investigation, charge sheet was filed in the Court of Judicial Magistrate, 1st Class, Gharghoda, who, in turn, committed the case to the Sessions Judge, Raigarhi Learned SessionsrJudge framed the charge against the appellant under Section 302 of the IPC who abjured her guilt. . The prosecution in order to establish the charge against the appellant examined 17 witnesses, thereafter statement of the accused was recorded under Section 313 of the Cr.P.C. in which she denied the Circumstances appearing against her in the prosecution case and stated that after the incident she lifted the head of her husband with her hands, as a result her hand stained with blood. She also stated that at 6‘ the relevant time, in the night, she had gone outside to ease herself with her sister and in the meanwhile, someone came there and assaulted her husband. On return, she found her husband dead whereupon she shouted. She herself wanted to go to the police station to lodge the report, however, the villagers did not allow. She is innocent and she has beenfalsely implicated. .‘sx \l l . On the basis of memorandum (Ex.-P/8) of the appellant,,weapon of . Cg u? 1o. After hearing learned counsel for the respective parties, the trial Court convicted and sentenced the appellant as mentioned in paragraph-1 of this judgment. V 11. Homicidal death of deceased Labh Singh is not in dispute. Even otherwise, Dr. Shailendra Upadhyay / (PW-13), who conducted postmortem over the person of the deceased; proved his report of Ex.- Pl13 in which he noticed the following injuries and opined cause of defath‘due to syncope and’ due to anemia, as a result of sudden and l ‘c expessive blood loss and the same'is homicidal in nature, homicidal death of Labh Singh is established. l9\ lNJURlES jo Incised wound on front of neck horizontally placed 3" length and 2" breadth 'at middle. Trachea and oesophagus cut. Large vessel cut. ‘o Incised wound at right shoulder of size 2" x 1" broad at middle and narrow at ends. to Incised wound at tip of chin of size 0.5 cm x 0.5 cm. lo Both the chambers were empty. 12. Learned counsel for the appellant vehemently argued that there is no 8‘ eyewitness to the incident. Conviction of the appellant is based on circumstantial evidence. The trial Court relying upon the circumstance that the appellant and the deceased were sleeping together in the Varandah in the night and further relying upon the eVIdence of {)Kanhaiya and Bhuvneshwar son of the deceased held that the prosecution has established its case on the baSIS of Circumstantial eVIdence. The trial Court has also considered the presence of blood ”‘vx x7 i on the hand of the appellant as an additional circumstance whereas, the above circumstance has been duly explained by the appellant in l her statement under Section 313 of the Cr.P.C. and the same is also established from the‘ evidence of PW-3 ltwar, who has deposed that l the body of the deceased was lying in the Varandah and the hand of the appellant was stained with blood. The recovery of weapon of l offence axe stained with blood 0n the memorandum of the appellant is 0 / also ‘of no conseqUence,’as from the evidence of PW—2 Shrimukho, z 3 u who has deposed that after interrogating the appellant, the l.O. I l searched the hquse and found axe., Even othefwi'se, in the absence of l any positive evidence that the axe recovered at the instance of the appellant was stained with blood, that too of the same origin as that of 7 the deceased, recovery of axe cannot be considered to be incriminating circumstance. 13. On the other hand, learned counsel for the State/respondent supported the judgment of the trial Court. c We have heard learned counsel for the parties. We have perused the record of the trial Court as also the impugned judgment. v‘ 15. The trial Court has convicted the appellant on the basis of circumstantial evidence. The circumstances which persuaded the trial Court to convict the appellant are:- ; - The appellant wanted to be free from the deceased as ‘ he had married he‘r‘younger sister Dilmati and thus, on this account, she had a grudge against the deceased. WK o The deceased was seen in the company of the appeHant for the last time when he was alive in suspicious circumstances. o The presence of blood on the hand of the appellant would not in itself be considered as incriminating circumstance, however, in view of the other { circumstances, it forms another link. a The defence of the appellant that some other person ‘ assaulted the deceased and fled away is an ‘i a afterthought. l i 16. Fl’W-1 Kanhaiya Lal, son of the deceased from his first wife; PW-2 l ,t shrirnukho and“ Pw—12 Jahar Sai are witnesses of the fact that after deceased Labh Singh' made Dilmati as second :wife, the appellant 7 q‘uarreled with the deceased. On appellant’s insistence, the deceased had taken her to hospital for undoing the family planning operation. However, it could not be done. PW-2 Shrimukho has also deposed that the appellant wanted to desert the deceased and go elsewhere. \N g V , PW—12 Jahar Sai is also witness of the fact that the appellant started quarrelling with the deceased after his marriage with Dilmati. Labh L Singh had convened a Panchayat in this regard aand on the basis of decision of the Panchayat, Dilmati started residing with Labh Singh. i Though Dilmati (PW-5) has deposed that the deceased married her with the consent of the appellant and there was no quarrel between the appellant and the deceased, however, from the evidence available on record, it can ’betinferred4hat the relationship between the appellant and the deceased was strained and she wanted to leave the company ofthe deceased and to go elsewhere. \7. 17. Kanhaiya Lal (PW-1) has Iodged and proved the first information report iof Ex.-P/1. This witness has deposed that in the night of the incident ihe appeliant'and the deceased were sleeping in the Varandah i rivhereas (PW-5) Diimati was sleeping inside the house. He himself i Was sleeping in the Varandah at a distance from them. In the night, he Woke up on hearing shouts of the appellant. She (Tilmati) was crying l fpr help. Hearing her cries Samaru, ltwar and Shrimukho rushed there. t ljle saw injuries over the neck and shoulder. The injuries were caused ‘ - hy axe. Blood was clotted and the hand of the appellant was also stained with blood, though the appellant had noinjuries. He has also proved Panchnama (Ex.-P/3) and other recoveries. ln cross- examination, he stated that on being asked thei'appellant said that somebody assaulted him and ran away. He further stated that he had himself seen the appellant assaulting the deceased with axe. However, the above version is missing from his report of Ex.-P/1 and diary statement of Ex.-D/1. He has denied the suggestion that any other person assaulted the fled away which he would not see. 18. PW-2 Shrimukho, PW—3 Itwar and PW—4 Dinesh have also deposed in similar lines. PW—2 Shrimukho has further proved the seizure memo of Ex.-P/5 by which axe was recovered from the appellant on her memorandum. 19. PW—5 Dilmati is the real sister of the appellant. ln para-2, she deposed thatshe was sleeping‘inside the house whereas the appellant and the deceased were sleeping in the:Varandah nearby. She woke up‘ on hearing the cries of the appellant, however, she stated that she had gone with the appellant for easing in the night and when they returned, ti l I they noticed blood in the Varandah. The deceased was lying dead in Varandah, as he had sustained injuries over neck. Thereafter, they \/jvoke up boys and then they shouted. The villagers camae there with kerosene lamp. In her cross-examination by the prosecution, she (Penied i her entire version of her diary statement of Ex.—P/7. 20. P‘W—6 Bhuvneshwar is 8 years old son of the deceased from his first i tivife. The trial Court after preliminary examination examined this Witness without administering oath. This witness deposed that Dilmati i u ‘ yvas l sleeping inside the house. The deceased and the appellant were sleeping in the Varandah. He was also sleeping in Varandah. While he was awoke, he heard the sound of beating to his father. He enquired from the appellant who told that it is the dog though he heard the sound as if someone is hitting cot with club (danda). When the appellant shouted, ltwar, Shrimukho reached there with kerosene lamp. ln the light of kerosene lamp he saw his father has died. He sustained injuries over his shoulder. In cross-examination, he stated that the appellant shouted that her house is sunk. This witness has ‘denied that he woke up after he heard the shouts of the appellant. He further stated that on hearing the sound of "Thak;l'hak" he did not see anyone else. The appellant was telling that someone has run away after assaulting. i 21. From close scrutiny of the evidence of the aforesaid witnesses, we ‘observe that there is sufficient evidence available on record that the iappellant and the deceasedwere sleeping in the Varandah when the deceased sustained fatal injuri‘es and died instantaneously. PW—5 ,Dilmati is the real sister of the appellant. Initially, she deposed that she l l wake up after hearing the shouts of her sister, who was sleeping near thé deceased in Varandah, however, thereafter she tried to give a faise stery that both sisters had gone out for easing whena someone as}saulted their husband and on return, they found their husband Iying déad in a pool of blood with injuries over neck. The appellant has also taken this defence in her statement under Section 313 of the C—r.P.C. t gh no any question in this regard was put to the other prosecution witnesses, who were also,sleeping in the Varandah and who deposed tht he appellant and the deceased were sleeping nearby in the Vrandah and the appellant raised alarm and omhearing the shouts of t appellant, they woke up. Thus, false defence of the appellant may alo be considered to be an additional circumstance which links the s apellant wit the crime in question. p h i i . On de appraisal of the evidence available on record, we are of the . u oinion that i the present case, the facts are established and the p n sm ae cnsistent only with, the hypothesis of the guilt of the ae r o aCcused, that is to say, they are not explainable on any other hpothesis except that the accused is guilty. The circumstances are of y O conclusive nature and tendency. The chain of circumstantial a evidence is coplete which leave no reasonable ground for the m conclusion consistent with the innocence of the accused and shows tat in a human probability the act has been done by the accused. h ll e tril Court after considering the entire evidence available on record has rightly held that the circumstantial evidence established by the prosecution unerringly point towards the guilt of the appellant that she she alone was responsible for the crime in question. i h; u i a t é he Th a and gs ,7 10 23. In 'the result, the appeal has no force, the same deserves to be dismissed and it is hereby dismissed. The appellant is on bail. Her bail bonds are cancelled and she is directed to surrender before the l l 36 a / MW 7 ‘ Sd/i_ Sd/- 'DHJRENDRA MISHRA, ,1 R-L° “a“war Judgle 1 ‘ Ju§§g//’