HIGH COURTOF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.241 of 2005 Bholaram Lohar - Versus - State of Chhattisgarh JUDGMEN.T FOR CONSIDERATION HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- T.P. Sharma Sd/- R.L. Jhaiswar 14-1-2011 th Post for Dronouncement of iudgment on 14"' Januarv,2011 Sd/- T.P.Sfaarma Judge HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BL&MR. T.P. SHARMA AND HON'BLE MR.R.L. JHANWAR, JJ. Criminal Appeal No.241 pl2005 ^holaram Lohar, son of Shri Bindu Lohar, aged about38 years, resident of Paragaon, P.S. Arang, Distt. Raipur. Ver<Sus .(. State of Chhattisgarh, through the Station House Officer, Police Station Arang, Distt. Raipur. APPELLANT: (In Jail) RESPONDENT: {Appeal under Section 374 oftheCode ofCriminal Procedure, 1973} Present: Mr. B.P. Sharma, counsel forthe appellant. Mr. S.R.J. Jaiswal, Panel Lawyerforthe State/respondent. JUDGMENT (14th January, 2011) The followina iudament ofthe Court was delivered bv T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 28-2-2005 passed by the 8 Additional Sessions Judge, Raipur, in Sessions Trial No.401/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his first wife Nandini Bai, convicted the appellant underSections 302 & 201 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.500/-, in defaultof payment of fine to further undergo Rl for one month and to undergo Rl for seven years & pay fine of Rs.500/-, in default of payment of fine to further undergo Rl for one month, respectively. Iftl Ifr 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court hasconvicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, Nandini Bai (since deceased) - first wife ofthe appellant was residing in one room ofthe house ofthe appellant at Village Paragaon, Police StationArang, Distt. Raipur. On 22-8-2004 at about 3.30a.m. the appellant killed his first wife in his house andwith a view to conceal the evidence of criminal case, burnt her dead body. The .'^ ! ! appetlant himselfwent to the police station at about 8.35 a.m. and lodged merg vide Ex.P-7 in whichthe appellant has informed that at about 3.30 a.m. deceased NandiniBai burnt herself and cameto his roomin burning position and also tried to caught hold of him, his beds have been burnt. The Investigating Officer left for the scene of occurrence and after summonihg the witnesses vide Ex.P-2 prepared inquest over fhe dead body of the deceased vide Ex. P-4. Dead body was sent for autopsy to Primary Health Centre, Arang vide Ex.P-6. Dr. G.P. Chandrakar (PW- 12) conducted autopsyvide Ex.P-17 and found following symptoms/ injuries: - > Complete body was burnt. > Kerosene smell was coming out from the body. > Both the eyes were closed, upper part of eyeswere burnt. > Tongue protruded and blackish in colour. > Skin and muscles were burnt. > Bones were visible from different parts of the body. > Head and hairwere badly burnt. > Chest and abdomen were burnt. > Bones of headwere visible. > Haematoma was found in brain. > Haemorrhage was found in trachea. Carbon particles were not found in trachea. Cause of death was cardio respiratory arrest due tosuffocation of respiratorysystem. D'eath was homicidal in nature. Querywas made vide Ex.P-11 to the doctor, same was answered by the doctor that carbon particles were notfound in trachea and haemorrhage found in trachea shows that death was due to suffocation and postmortem burns. The appellant was also examined by Dr. G.P. Chandrakar (PW-12)vide <( ' Ex.P-15 who found blisters upon left index finger, middle finger and ring finger of the appellant. Viscera of the deceased was preserved and same was seizecfvide Ex.P-16. Patwari prepared spot map vide Ex.P- 10. Seized articles were sent for chemical analysis vide Ex.P-12. 4. Statements of the witnesses were recorded under Section161 of the CrPC. FIR was lodgedvide Ex.P-9. The Investigating Officer arrived at finding that the appellant has lodged false report, he himself has killed hiswife and thereafter, he has burnt her dead body with a view to save himselffrom criminal prosecution and to conceal the evidence ofcriminal case. 5. Aftercompletion of investigation, charge sheet was filed before Judicial Magistrate First Class, Raipur against appellant Bholaram and his second wife Basanta B.ai who committed the case to the Court of Sessions Judge, Raipur, from where learned Additional Sessions Judge, Raipur, received the case on transfer for trial. 6. In order to prove the guilt of the accused, the prosecution has examined as many as twelye witnesses. The accused were examined under Section 313 of the Cr.P.C. in which theydenied the circumstances appearing against them, pleaded. innocence and false implication in the crime in question. The appellant has taken specific defence that his first "•<>> y.f t«BB»., wife Nandini Bai herself has committed suicide and he has been falsely implicated in thecrimein question, he has offeredexplanation as tohow she died, bylodging merg vide Ex.P-7. \' ' . ! ' 7. After affording opportunity of hearing to the parties, learnedAdditional Sessions Judge while acquitting co-accused Basanta Bai, convicted & sentenced the appellant in the aforesaidmanner. 8. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe triarj'Court. 9. Learned counsel for the appellant vehemently argued thatas per the initial case of the prosedution, the appellant has killed hisfirst wife Nandini Bai and thereafterwith intent to conceal the evidence ofcriminal case, he has burnt the dead body of deceased Nandini Bai, but the trial Court has not framed the charge of aforesaid offence, the trial Court has specifically framed charge that the appellant has committed culpable homicide amounting to murder ofhis firstwife by setting her ablaze and also that he has concealedthe evidence of criminal case by setting the dead body of Nandini Bai ablaze, both are contradictory charges and the prosecution has not proved the aforesaid charges againstthe appellant. By convicting and sentencing the appellant, the trial Court has made out a newcase without altering the charge and without providing opportunity of hearing to the parties. Therefore, conviction of the appellant is not sustainable on the aforesaid grotind alone. in order to prove the fact that the appellant has firstly killed his wife and thereafter he has burnt the dead body, the prosecution was under obligation to prove the fact that the appellant has firstly killed his wife and thereafter he has burnt the dead body of his wife and that the injuries found over the body for caysing homicidal death were ante mortem and burn injuries were post mortem in nature. But the prosecution has utterly failed to prove the aforesaid facts. In these circumstances, in absence of any legal proof, conviction and sentences imposed upon the appellant are not sustainable underthe law.\ lO.Learned counsel for the appellant placed reliance in the matter of Padam Singh v. State of U.P. in which theSupreme Court has held that "it is '•.'•: ' . ' ' •' the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said '<? ^ ^' ^/"-:-^ "^ -- ^^^"^ "'- '1- evidence can be relied upon or hot and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubton thesaid evidence". Learnedcounsel further placed reliance in the matter of Sahaj Ram and others v. The State of U.P. in which theSupremeCourt has held that the couri: cannot reconstruct the 1 : ' ! - - story against accused. Learned counsel also placed reliance in the matter of NarendraSingh and anotherv. State of IVI.P. in which the Supreme Court has held that suspicion, however grave may be, held, cannot take the place of proof, there is a long distance between "may be" and "must be". Learned counsel relied upon the matter of Subramaniam v. Stateof Tamil Nadu and another in which the Supreme Court has held that in case of death due to asphyxia, opinion of doctor must conform to tests laid down in authoritative texts on medical jurisprudence. False explanation/statement or false alibi is an additional circumstance againstthe appellant/accused, but before such additional circumstance Fs taken into consideration, prosecution must prove all other circumstances against the accused. 1 (2000) 1 SCC 621 2(1973)1 SCC490 3~(2004)~10SCC699 4.(2009)14SCC415 i-iiasll 11.0n the other hand, learned State counsel vehemently opposed the appeal and submitted that definitely, the trial Court has not framed correct charge and has erroneously framed charge against the appellant, but the appellant was giv6n complete opportunity of defending hiscase, he was having full knowledge of the case against him and no prejudice has been caused to him. Learned State counsel further submitted that effect of omission to frame, or absence of, or error in, charge isno ground for reversing conviction & sentences imposed upon the accused <L ^ . ' in termsof Section464 of the C.nPC, unless a failure ofjustice has in fact been occasioned thereby. Learned State counsel also submittedthat the offence took place in the room of the appellant and firstly body of the deceased was charred, therefore, superficial injuries for causing suffocation or throttling were not possible to be noticed. Medical evidenceclearly reveals that the injuries were post-mortem in nature. As per Ex.P-7 - merg intimation and case of defence, the deceased came to the room of the appeltant in burning position which shows that she was burnt and walked for sufficient time. In these circumstances, presence of carbon particles were necessary in trachea, mouth and nostril, but no such carbon particles were found in trachea and nostril of the deceased which shows that the appellant has lodged false merg intimation/FIR to confuse the Investigating Officer and to save himself from prosecution. In the aforesaid circumstances, the deceased died in the room of the appellant at night in secrecy, the appellant was under obligation to explain how she died, who has caused injuries and how she sustained burn injuries or that the burn injuries were only ante mortem in nature. But the explanation offered on behalf of the appellant is patently false, which is an additional link of circumstances against the appellant for proving charges levelledagainst him. •V. SSBP:" 7 12.1norderto appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 13.1n the present case, abnormal death ofdeceased Nandini Baiat the time \ of incident has not been substantially disputed on behalf of anyof the parties. As per defence of the appellant, she herself has committed suicide by burning and as per caseof the prosecution, firstly the appellant haskilled her and thereafter, he has burn her dead body. In these circumstances, cause ofdeath of Nandini Bai is a crucial question <f.}. ' ' • . . • ' . . • ' ,-f, 1 : for determination ofall ancillary questions in this case. Virtually, death of the deceased was as a resultofotherinjuries excluding burn injuries or deathwas as a result ofburn injuries. 14.Autopsy has been convicted by Dr. G.P. Chandrakar (PW-12). As per evidence of Dr. G.P. Chandrakar (PW-12) and autopsy report Ex.P-17, complete body was burnt, kerosene smell was coming from the body, eyes were closed, burnt tongue protruded and caught between upper & lower teeth, tongue was blackish, skin & muscles were burnt, bones were visible, skin & muscles of neck were burnt, hairs & skin of scalp were burnt, haemorrhage was found ihside mucosa and trachea, no carbon particles were found in trachea, other internalparts were congested and bones of different parts of body were visible. Querywas made to thedoctor and by answering the query vide Ex.P-11, Dr. G.P. Chandrakar (PW-12) has answered that there was no haemorrhage in trachea, but there was haemorrhage in mucosa & trachea and that may be by pressing of neck or by suffocation. As perhis opinion, the body was burnt after death, because no carbon particles were found in trachea. He has further opinedthat injury was not noticed on account of Complete burning of body. The prosecution has not produced yiscera m ht.w' report, viseera was preserved, though trachea has not been preserved by the doctor. 15.1n the present case, as pervautopsy report and evidence of Dr, G.P. Chandrakar (PW-12), the body was burnt.bones of different parts of the body werevisible and bone of scalp was also visible. This shows the degreeof burn i.e. body was badly burnt/charred and bonesof different parts of the body were visible. As per autopsy report, hemorrhagewas << found inside mucosa and trachea',' but no carbon particle was found in trachea and internal partsofthe bodywere congested. 16.To determine the nature of burns, whether burn injuries were ante mortem or post mortem, fhree main points are material viz., (a) line of redness; (b) vesication; (c) reparatjveprocesses. Presence of carbon particles in trachea, larynx, nostrils, mouth and bronchitis is also material to determine the nature of burns. (a) Evidence of vital reaetions means line of redness. In the case of a burn caused during life, a lineof redness involving the whole true skin is formed around the injured part which separates the uninjured part from the injured part. (b) Vesication caused by a burn during life contains a serous fluid consisting ofalbumen,chlorides, and often a few polymorphonuclear white blood cells and hasa red, inflamed base with raised papillae. The skin surrounding it is of a bright red or copper colour. This is known as true as cornpared with false vesication which is produced after death. False vesication contains air only but may contain a very small quantity of serum comprising traces of albumen and chloride. % 8' Bft . (c) Reparative process, such as signs of inflammation, formation of granulation tissue pus and sloughs, will indicate that the burns were caused during life, in other words, these are positive signs of ante mortem burns. But incase of burn injury after death, no such vital reaction would be possible. 17.As a result of burn injury, injured may immediately die due to shock without inhaling gases and oxygen, in such case presence of carbon particles in larynx, trachea, breinchitis, nostrils & mouth would not be ,^i, possible, but if injured dies after some time after inhaling gases and oxygen, sooty and carbon particles would be found in larynx, frachea, main bronchitis, nostrils & mouth. 1 . ' '. •••'.• 18. In the present case, as per autopsy report, Dr. G.P. Chandrakar (PW-12) has not given report relating toevidence ofvital reactions, vesication and reparative processes, but has opined that no carbon particles were found in trachea. The appellant himself has lodged merg intimation inwhich he has not given any incriminating statement to the police officer. As per Ex.P-7 - merg intimation, the appellant was residing with his second wife in his house andthe deceased - first wife of theappellant, was residing separatelyin oneroom in the same premises since last four years, at the time of incident theappellant was sleeping with his children, at about 3.30 a.m. (at night) deceased Nandini Bai came to his room in burning position, she was shouting and she lie over him, then he pushed her, immediately he ousted his children from the room and the deceased burned in his room, his bedand other articles were completely burnt and Nandini Bai died as aresult ofsuch burn injuries. i • . • •• . . •. . . ' - " 19.The prosecution has filed spot maps as Exs. P-3 & P-10, both are "identical. Ex.P-3is prepared by the Patwari and Ex.P-10 is prepared by itl!ili •ll:iti'lii 'is''"i @! ia!BP 10 . the Investigating Officer. Both these documents have been duly proved by the prosecution. These documents showthat room of deceased Nandini Bai is adjoining to public road and opening of room is towards public road, not towards &ther rooms or room of the appellant. Behind room ofthe deceased second room and thereafter third room i.e. room of the appellant situate. Themapsshow that any person may come from room of the deceased firstly from public road, then through verandah he/ she may go to room Of theappellant. Dead body of the deceased was .<( found inside room of the appellant. Unused kerosene oiland map box were found in verandah near room of the appellant. 20.Spot maps Exs.P-3 & P-10, inquest report Ex.P-4 and seizure Ex.P-5 reveal that kerosene oil has not been poured upon the deceased in her room, but has been poured in verandah adjoining to room of the appellant. As per Ex.P-7, the deceased came inside the roomof the appellant in burning condition, she was shouting and shelieover the appellant when he was sleeping on his bed. This clearly shows that the deceased has not immediately died as a result of shock on account of bUrning, but after receiving burn injuries she was alive for some time, even she came in burning condition inside theroom of theappellant. This shows that she was having sufficient time for inhaling gases and breathing. Charred body of the deceased shows that she has been badly burned, but no carbonparticle was found inside tracheawhich is uncommon. 21.1n case ofburn injuries up to the stage ofcomplete burnstothe extentof visibility of bones and sufficient time for inhaling oxygen andother gases, presence of sooty and carbon particles was very much common. In ease of ante mortem burns, if the deceased was not unconscious, she was either walking or running orshouting, carbon particleswould be found r -' EIi' ^l 11 inside trachea, however, no such carbon particles were found inside trachea. Definitely, in case of badly burnt body noticing of superficial injuries would not be possible, but haemorrhage and mucosa were found in trachea which is stiggestiveof the fact that the deceased died as a result ofsuffocation. Although in case of burns injured also die as a result of suffocation, butin case of suffocation injured person inhales carbon particles and other gases, and carbon partides would be commonly found in trachea, larynx, bronchitis, nostrils and mouth. << Atthough the doctorwho ha^ conducted autopsy has not opined positive circumstance of burning after death, but the two circumstances i.e. absence of carbon particles inside trachea and presence of haemorrhage in mucosa & trachea coupled with the facts mentioned in merg Ex.P-7, the deceased burned for sufRcient time and waswalking, running & shouting, the body was completely burned. This showsthat true facts have not been mentioned by the appellant in merg and body pf the deceased was burntafter her death. No other cause of death has been shown either by the prosecution or by the defence. Therefore, only inference that death of the deceased has been caused as a result of suffocation, but not by suffocation as a result of burns, would be possible. Under these circumstances, death of the deceased was homicidat in nature. 22.As regards complicity of the appellantin the crime in question, as per Ex.P-7 merg, evidence ofVishnu Prasad Pal (PW-1), Nandu (PW-3) & Lakhanlal Kumbhkar (PW-6), the deceased was residing separately in one room ofthe house ofthe appellant, dead body ofthe deceased was found inside the room of the appellant at 3.30 a.m. inthe nightand death of the deceased was homicidal in nature. The appellant was under '^. '•..'.•'" • .' . • ' .' ' obligation to offer explanation that how the deceased died. He has 12 offered explanation that the deceased came to his room in burning condition, she lie upon him and lastly she died in his room. The doctor has also examinedthe appellantvide Ex.P-15 andfound blisters on left index, middle and ring fingers. 23.As per the aforesaid findings, burn injuries found on the body of the deceased were post mortem in nature and not ante mortem, but the J» appellant hasoffered explanationthat the injuries were ante mortem in naturewhich does not find support from medical evidence. Even in case << ! . ^ ,•'.. ofburning by pouring kerosene'oil overthe dead body, complete burning of body and visibility of bones of different parts including bone of head would not be possible. This shows that the body has been badly burnt by using excessive burning material to rule out the adverse circumstances. Considering the complete burn injuries over the body of the deceased, if the deceased would have lied upon the appellant, the appellant would also have sustained injuries over hischestor backor on any substantive part of the body, but except three blisters upon three fingers of left hand, no other burn injuries were found over the body of the appellant which also falsifies the explanation offered on behalf of the .appellantand shows that burn injuries were post-mortem in nature and that the appellant has offerpd completely false explanation. 24.1n the present case, theoffence has been committed insecrecy and the appellantwas underobligation to offer explanation in terms of Section 106 of thelndian Evidence Act, non-offering ofexplanation is adverse circumstance against the appellant. 25.While dealing with the case ofoffence committed in secrecy, the Supreme Court in the matterof TrimukhMaroti Kirkan v. State of "-1E :.ll- i- :-'y l«!»te!( 13 Maharashtra has held that if the offence was committed in the dwelling house, where the husband also resided and if the accused husband did notoffer any explanation as to the injuries received by his wife or if the explanation is false, then there is strong circumstance which indicates that he committed the crime. Paragraphs 14 and 15 ofthe saidjudgment are relevant which read as follows: "14. Ifan offence takes placeinside the privaGy of a house and in such circumstances where the appellants have all the opportunjty to plan and commit the offence ?'•• .,.< at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt ofthe accused ifthe strict principleofcircumstantialevidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merelytosee that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both arepublic duties. (See Stirlandv. Directorof public Prosecutions (1944 AC315 — quoted with approval by Arijit Pasayat, J. in State of Pun/ajbv. Karnail Singh {(2003) 11 SCC 271}. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be ledor any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of thecase. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burdenof provingthat fact is upon him.. lllustration (6) appended to thissection throws some light on the content and scope of this provision and it reads: "(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him." (2006) 10SCC 681 14 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature andamount of evidence to be led by it to establish the charge cannot be ofthe same degree as is requiredin othercases of circumstantial evidence. The burden wouldbe a comparatively lighter character. In vjew of Section 1fl6 of the Evidence Act therewill be a corresponding burden on the inmates of the house to give acogent explanation as to how the crime was committed. The inma^es of the house cannot get away by simply keeping quietand offering noexplanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." 26. This is a special circumstance and it must be within the knowledge of the accused, therefore, in accordance with Section