z' HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT RESPONDENT CRIMINAL APPEAL No. 873/1994 Sunderlal S/o Mohan, aged 27 years, Occupation - Agriculturist, R/o Hatma, Thana - Keskal, District - Bastar, Madhya Pradesh. Versus State of Madhya Pradesh through Police Station Keskal, District - Bastar. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PRQCEDURE, 1973. Present:- Shri R.K. Jain, Advocate for the appellant. Shri Rakesh Kumar Jha, Dy. Government Adv. for tl'e State/respondent. ORAL-JUDGEMENT (Passedon 19/03/2010) The following iudgn-ient of the Court was passed by •<»-. T.P. Sharma, J:- 1:. Challenge in this appeal is to the judgment of conviction and order of sentence dated 3/2/94 passed by Additional Sessions Judge, Kanker, District Bastar in Sessions Trial No. 195/93 whereby and where under after holding the appellant guilty for the commission of culpable homicide amounting to murder of his wife deceased Sukmotin convicted the appellant under a»&-.,_ ^'~^ ~^i Section 302 of the Indian Penal Code and sentenced imprisonment for life. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. Case of the prosecution, in brief, that deceased Sukmotin wife of the appellant was residing with him at village Hatnia Badepara, Police Station Keskal, on fateful night of 27/12/92 on account of some dispute deceased Sukmotin abused appellant then appellant pushed hira and strangulated her neck and caused her death. Appellant riarrated the incident to other persons including PW1 Raraesh, Sarpanch of the village, who lodged the First Information Report vide Ex. P-1 and marg intiAation vide Ex. P-11 out post Vishrampuri. On the basis of Ex. P-1 registered First Information Report was lodged vide Ex. P-1A and marg intimation was registered vide Ex. P-11A. Investigating Officer left for scene of occurrence, after summoning the witnesses vide Ex. P-2, inquest over the dead body of the deceased Sukmotin was prepared vide Ex. P-3. Blood stained and plain soil were recovered frora the spot vide » Ex. P-4. One wooden piece used for closing the door (Bedi) stained with blood was seized vide Ex. P-5. Dead ^Iji?^^^^^?-^^^ 'w^ body was sent for autopsy to Priraary Health Center, Vishrampuri vide Ex. P-8A. PW7 Dr. G.P. Dhanelia conducted the autopsy and found following injuries:-(i) Bruise over right cheek of 1 */2" x 3" with swelling. (ii) Bruise over posterior part of right ear of I" x 2". (iii) 2 scratches over right side of the neck with swelling, blood raix froth making out from mouth and nostril. Cause of death was asphyxia due to throttling and death was horaicidal in nature. 4. Sealed cloths of deceased Sukniotin were seized after autopsy vide Ex. P-7. Seized articles were sent for cheraical examination vide Ex. P-13. Presence of blood over the cloths of deceased Sukraotin was confirmed vide Ex. P-14. 5. Stateraents of the witnesses were recorded under . Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Kanker who in turn committed the case to the Court of Sessions, Kanker. Learned Additional Sessions Judge, Kanker received the case on transfer for trial. 6. In order to prove the guilt of the appellant/accused prosecution examined as many as 8 witnesses. Accused was examined under Section 313 of the Code where he '\. denied the circumstances appearing against him, innocency and false iraplication is clairaed. 7. After affording an opportunity of hearing to the parties learned Additional Sessions Judge, Kanker has convicted and sentenced the appellant as aforementioned. 8. Learned counsel for the appellant Shri R.K. Jain and learned counsel for the State/respondent Shri Rakesh Kumar Jha, Dy. G.A. are heard. Judgment impugned and record of Court below perused. 9. Learned counsel for the appellant vehemently argued that conviction is based on circumstantial evidence of extra judicial confession made by the appellant before the witnesses and the fact, that dead body of the deceased Sukmotin was found in the house of appellant and appellant has not offered any explanation that how injury was found over the body of the deceased Sukmotin, who has strangulated her but witnesses have not proved the factum of extra judicial confession made by the appellant before them. The only circumstance of non-offering of explanation relating to the cause of death of the deceased who was present in the house of the appellant is not sufficient for drawing an inference of commission of offence against the appellant. In case other circunistances relating to -^il comraission of raurder would have been proved against the appellant then only appellant was required to offer explanation that how she died and who has caused injury to the deceased Sukmotin but in absence of any other circurnstance, non-explaining the cause of death of the deceased is not a complete adverse circumstance or complete circurastance for hypothesis that appellant was the person who has committed the crime. 10. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that the offence comn'iitted in secrecy as held in case of Dhananioii Chatteriee alias Dhana v. State of W.B.1 and Trimukh Maroti Kirkan v, State of Maharashtra2, appellant was under obligation to offer explanation in terms of under Section 106 of the Evidence Act that how the deceased died who had caused the injury to the deceased and if these circumstances is not explained by the appellant same would be complete chain of circumstances and are sufficient for drawing an inference that except the appellant nobody has coniraitted the offence of murder of Sukraotin, wife of the appellctnt. 1 (1994) 2 SCC 220 2 (2006)105cc681 ^S^^f^S: "--•^ 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case homicidal death of the deceased Sukmotin as a result of ante-raortem fatal injury has not been substantially disputed by the appellant, on the other hand, also established by the evidence of PW7 Dr. G.P. Dhanelia and autopsy report vide Ex. P-8 who reveals that fatal injury was found over the neck. Cause of death was throttling and death was homicidal in nature. 12. As regard the complicity of the appellant in crime in question is concerned, the conviction is based on following circumstantial evidence:- (i) Appellant has made extra judicial confession before the witnesses. (ii) Deceased Sukmotin was residing with the appellant as his wife and on the date of incident appellant and deceased, only both the persons were present in the house of appellant. (iii) Deceased Sukmotin found dead as a result of throttling. (iv) The offence CQmmitted in secrecy. 1 13. 14. (v) Appellant was under obligation to proof/offer explanation relating to death of his wife in terras of Section 106 ofthe Evidence Act. (vi) Appellant has not offered any explanation that why deceased died. (vii) Appellant Sunderlal, husband of deceased Sukmotin had even not lodged any First Information Report relating to abnormal death of his wife. As regard the extra judicial confession is concerned PW1 Ramesh, PW2 Sahatram, PW3 Ramuram 85 PW4 Renu have deposed that appellant has made extra judicial confession before thera that he has killed his wife but in their cross examination they have not supported their version. They have tried to rest their version on the statement of each other or the fact that appellant has admitted the guilt before the Police. The evidence of aforesaid witnesses relating to the extra judicial confession made by the appellant before them does not inspire confidence and of credence therefore, the circumstances relating to the extra judicial confession is not ofworth credence for reliance. As regard to another circumstance Ex.P-1 85 Ex.P-11, First Information Report SE Marg intimation reveals that appellant who was present in his house but village has i^i^fe&i^^^P^'S ' s not lodged report of homicidal death of his wife to Police. Evidence of PW1 Ramesh, PW2 Sahatram, PW3 Ramurani, PW4 Renu & PW5 Sukkuram clearly establishes the fact that on the date of incident and at the time of incident at night the appellant and his wife deceased Sukmotin were present in the house of appellant. Appellant has not offered any explanation or has not adduced any evidence to show that on the date of incident any third person was present in his house or has not stated anything that on the date of incident he was not present in his house. He has also not offered any explanation that any other person has caused injury to his wife. Admittedly, the offence has been committed in secrecy in the house of appellant where only two persons husband and wife were present at night their presence was not unnatural, in case of offence committed in secrecy the appellant was under obligation to offer explanation in terras of Section 106 of the Evidence Act that how deceased Sukmotin died and who had caused injury. In the present case, prosecution has proved the other facts that appellant and deceased were only present in the house at the tinie of comniission of offence. Deceased was died as a result of throttling. Appellant has not lodged report. In these circumstances the non-explanation of cause of ff yMS^ !| B^f': cfT' 15. 16. death by appellant is substantive adverse circurastance against the appellant and is sufficient to prove the substantive chain of circumstances against the appellant that only appellant was author of crime and except the appellant nobody has committed the crime. While dealing with the question of offence committed in secrecy and requirement of explanation in case of Dhananio-u Chatten'ee alias Dhana v. State of W.B. (Supra) in which Apex Court has held that in case of plea of alibi the plea must be proved by cogent and satisfactory evidence completely excluding the possibility of accused's presence at the scene of occurrence at the relevant time. In the aforesaid case, one Guard entered into the room. of victim and committed rape and murder inside the room and fled away, witness has deposed against the appellant that appellant had entered into the room of the victim and thereafter her raped dead body was found, in absence of any cogent explanation the convietion of the appellant for the offence of rape, murder, theft and sentenced of capital penalty was upheld. While dealing with the offence committed in secrecy and requirement of explanation in case of Trimukh Maroti Kirkan v. State of Maharashtra, tSupra) in which Apex Court has held that in ease murder 10 committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the sarae degree as is required in other cases of circumstantial evidence. Para 15 of the said judgment reads as under:- "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 and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would of a comparatively Ughter character. In viewof Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation 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." 17. In the present case, prosecution has proved aforesaid circurastances against the appellant which are sufficient for hypothesis of the guilt and sufficient for hypothesis of innocence of the appellant and other persons in crime in question. 18. After appreciating, the evidence available on record learned Additional Sessions Judge, Kanker has convicted and sentenced the appellant as aforementioned. The conviction and sentence of the i^^^^^Sil^^^ 11 appellant is based on circumstantial evidence sufficient for conviction of the appellant. Conviction is sustainable under the law. 19. On close scrutiny of the evidence, we do not find any illegality or infirinity in the conviction and sentence of the appellant. The appeal is devoid of merits. Consequently, this. criniinal appeal is liable to be dismissed and is hereby dismissed. Appellant is in bail, he shall surrender himself immediately before the Additional Sessions Judge, Kanker for serving the sentence. . : Sd/- T.P. Sharma Judge I Sd/- R.L. Jhanwar Judge