HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Rajeev Gupta. C.J. & Hon'ble Shri SunilKymar^jnhaLJ. Criminal Appeal No. 644 of 1993 •» Smt. AnitaAgrawal Vs. TheStateof Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT -^\ For consideration \ \ Sd/- \ SunU K"n*ar siBha Judge v HON'BLESHRI JUSTICE RAJEEV GUPTA J ^,4^^- »J-&5>. Sd/- C&iefJustice Post for Judgment :<y/11/2010 Sd/- Sunil KumarSinha Judge •:^- ^^s^ •^. '-^ j •'i,h.<<' ''• ^l^::t£^i HIGHCOURT OF CHHATTISGARH, BILASPUR CORABfl: Hon'bleShnRajeeyGupta.C.J. & Hon^ble Shri SynilKumar Sinha, J. APPELLANT RESPONDENT Criminal Appeal No. 64AoL1993 ••Vt Smt. Anita Agrawal, widow of Govind Prasad Salampuria, aged 21 years, R/o Village Ranigete, Korba, P.S. and Tahsil Korba, District Bilaspur, M.P. (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2)of The Code of Criminal Procedyre, 1973) ADpearance: Mr. Shrawan Chandel, Advocate for the appellant. Mr. Akhil Mishra, Dy. Govt. Advocate for the State. JUDGWIENT ( ^.11.2010) Following judgment of the Court was delivered by Synll Kumar Sinha, J. ffi H 9 !';ii.-t (1) This appeal is directed against the judgment dated 6l" of July, 1993passed in Sessions Trial No. 525/91 by the First Additional Sessions Judge, Bilaspur, Link Court Korba. (2) By the impugned judgment, the appellant has been convicted u/ss 302/34 &201/34 IPC and sentencedto undergo imprisonment for (ife & fine 6f Rs.1,000/-, in default to undergo S.l. for3 months siBSS. -i.:a s Criminal Appeal No. 644 of 1993 and R.l. for 7 years & fine of Rs.3,000/-, in default to undergoS.I. for 1 year, with a further direction to run the sentences concurrently. (3) The facts, briefly stated, are as under:- Deceased- Govind Agrawal was recently married to the appellant. They were residing in the house of Nathmal (PW-5 - father of GovFnd Agrawal). Wife of Nathmal was also residing with them. The two brothers of deceased- Govind Agrawal, namely Ramesh. Agrawal (PW-3) and Jagdish Prasad Agrawal (PW-1) were residing separately in the same locality. On 30.8.91, the in-laws of the appellant had gone to Baijnathdham. Therefore, the appellant and her husband- deceased- Govind Agrawal were all alone in their house. The case ofthe prosecution is that the appellant and co-accused Tukaram Tandon were in love prior to the marriage of the appellant with the deceased.In the intervening night of 30 - 31 August 1991, co-accused- Tukaram Tandon, appellant and another person committed murder of the deceased by strangulation and they hanged the dead body from the mayar of the roof with the help of bed-sheet (chadar) with an intention to show that it was a case of suicide. The furthercase of the prosecution is that the other 2 persons including accused- Tukaram ran away from the place of occurrence and the appellant went to the house of RameshAgrawal (PW-3) in the 'night and narrated him that her husband hascommitted suicide by hariging. Ramesh Agrawal and his wife came tothe house bf the appellant and saw that deceased- Govind Agrawal Mvas hanging from the roof of the room. They got him , ' dowri, but by that time the deceased had died. Jagdish Prasad Agrawal (PW-1 - another brother of the deceased) was informed. He reported the matter to the police, on which, a '\ .;- -merg. intimation (Ex.-P/11) was lodged. The Investigating \: <»""< =1 Wr Criminal Appeal No. 644 of 1993 Officer reached to the place of occurrence, gave notice (Ex.- P/1) to the Panchas and prepared inquest (Ex.-P/2) on the body of the deceased. The dead body of the deceased was sent for its post-mortem to Government Hospital Korba. The post-mortem examinatio'n was conducted by Dr. Bhim Prasad Kanwar (PW-4). The poist-mortem report is Ex.-P/10. He found that the deceased was a young man, aged about21 years. The body was livid, tongue was protruded out and was pressed between the teeth. Eyes were closed, tongue was bluish and nails of both the upper limbs were also bluish. He noticed following external injuries on the body of the deceased:- (i) Contusion with abrasion 3cmx 1 cm on the left side of the neck; (ii) Abrasion -2 cm x 1 cm on the front portion of the neckjust below laryngeal prominence& (iii) Multiple abrasions of 1/2 cm x % cm onantro-medial aspect of the right side of the neck. They were occupying the area of 3 1/^ cm x 2 cm and were irregular. 1:JI:11 On internal examinatisn, the brain was found congested; Trachea and lungs were also congested; Blackish blood was present' in the lungs; Right chamber of the hearti&isfull of blood and left chamber was enlpty. Viscera was preserved for -Chemical Analysis and Histo-Pathological examination. The Autopsy Surgeon opined that the injuries found on the neck were anfe-mortem and could be caused by pressure of hand or ligature or by any ottier object which may compress the neck. He further opined that the deceased died of asphyxia but the cause of asphyxia could not be ascertained by the post-mortem examination. He very specifically opinea that ^;' t; Criminal Aooeal No. 644 of 1993 mode of death, whether the homicidal or suicidal, cannot be ascertained on his post-mortem examination. In further investigation 3 letters (Ex.-P/S, 6 & 7) were seized from the possession of father of the deceased Nathmal (PW-5) vided seizure memo Ex.-P/S. According to the prosecution, these letters were the love letters written by the accused persons. On the above investigation, a First Information Report (Ex.-P/13) was registered and the charge- sheet was filed in the Court of Judicial Magistrate First Class, Korba, who.in turn committed the matter to the concerned Sessions Court, from where it was received on transfer by the First Additional Sessions Judge, Bilaspur, Link Court Korba, Who conducted the trial and convicted and sentenced the appellant as aforementioned. However, co-accused- Tukaram Tandon was acquitted. (4) The learnedSessions Judge held that it was a homicidal death; after the death the dead body of the deceased was hanged with the roof ofthe room just to show that itwasa suicidal hanging; three persons including apjjellant were involved in commission of the said offence; however, the prosecution could not establish as to who were the other personsJSince theappellant could not explain a6 to how the homicidal death took place in her house, therefore, the appellaht was liable for punishment under the aforementioned Sfections of IPC. (5) Mr. Shrawan Chandel, learned counsel appearing on behalf of the appellant,. argued that the Sessions Judge fell into error in ^."B. ftQlding that it was a homicidal death. He also argued that there 's~x Itlllh ,/1 Criminal Auoeal No. 644 of 1993 were no incriminating circumstances to hold the appellant guilty of the above offences. (6) On the other hand, Mr. Akhil Misha, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) We have heard.the learned counsel for the parties at length and have also perused the records ofthe sessions case. (8) Admittedly, there is no direct evidence in this case and the case of the prosecution is based on circumstantialevidence. In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have to be fully established and all the circumstances so established should be of conclusive nature and tendency. They must point only towards the guilt of the accused. The circumstances should not be capable of being explained and the chain of the circumstantial evidence must be so complete as not to leave a'ny reasonable ground for the belief consistent with the inho'cence of the accused. This is what the Supreme Gojart said in many cases. Therefore, we ought to be satisfied that the circumsta es on which the prosecution relies leave no option but to hold that the crime imputed to the appellant has been established beyond a reasonable doubt. '''K -•1' 'i ] -y Criminal Anceal No. 644 of 1993 (9) Firstly, we shall look into the finding relating to the homicidal death of the deceased. The evidence of Dr. Bhim Prasad Kanwar (PW-4) would reveal that the death of the deceased was on account of asphyxia. Asphyxia can be caused by many reasons.It may be caused by strangutation a's also by suicidal hanging. Thought he opined that the deceased died of asphyxia but he could not ascertain the cause of asphyxia, that means, according to the medical evidence available on record cause of asphyxial death of the deceased was never established and the mode of death whether homicidal or suicidal was also not ascertained by the Autopsy Surgeon on the basis of post-mortem examination of the deceased. We note that the prosecution has not collected any other evidence including the expert evidence for ascertaining the mode of death of the deceased: The learned Sessions Judge has held that if the death was on account of suicidal hanging, the deceased would have sustained fractures on the bones of neck and vertebral column, which were not found in the present case. We fined that the above reasoning of the learned Sessions Judge goes against the views of medical jurisprudence. In Modi's Medical Jurisprudence and Toxicology, Twerty-third Edition, a table has been provided at page . / 583 showing difference between hanging and strangulation. In the •"'^ S9id table; it has been provided vide column No. 12 that fracture of the larynx and trachea are very rare in hanging, whereas, fracture of the larynx and trachea and often the hyoid bone is found in casesof -.-^trangulatipn. It has further been provided that the fracture and i.i: I.. 7 .Cruninal Apoeal No. 644 of 1993 dislocation of the cervical vertebrae is common in judicial hanging, whereas, the fracture and distocation of the cervical vertebrae is rare in strangulation. Therefore, the finding of the Sessions Judge that it was a case of hdmicidal death and the dead body of the deceased was hanged 'with an intention to show it as suicidal hanging after commission ofthe homicidal death does not appearto be based on sound reasonings. In the facts and circumstances of thecase, we hold that the prosecution could not establish beyond all reasonabledoubts that it was a case of homicidal death,as a possibility of suicidal death has not been fully ruled out by the prosecution. (10) So far as conduct of the appellant is concerned, Ramesh Agrawal (PW-3) deposed that on the fateful night it was heavily raining. They were sleeping in their house. The appellant came to their house and told them that the deceased has committed suicide by hanging. He went to the-house of the deceased and saw the dead body in hanging condition. He untied the knot of ligature and brought down the body, but by that time the deceased had died. This shows that asson as theappellant noticed about the hanging of the deceased, she immediately rushed to the house of her brother-in-law (jeth) and 'Called them in the night itself. This was a natural conduct of the appellant as Ramesh Agrawal (PW-3) was the eldest member of the family available on that date because her Criminal Appeal No. 644 of 1993 father-in-law Nathmal (PW-5) and mother-in-law had gone to Baijnathdham for Darshan. (11) The learned Sessions Judge has recorded a finding that the appellant and the other persons firstly committed murder of the deceased by strangulation, and thereafter the dead body was hanged with the roof of the room. While recording the said finding the Sessions Judge held that it was not proved by the prosecution as to who were theother persons along with the appellant. Out of three persons, the third person, who allegedly participated in crime could not be identified and even could not be put to the trial, and the co-accused i.e. Tukaram Tandon was acquitted of afl the charges framed against him giving benefit of doubt to him. The Sessions Judge has held that though the 3 letters were seized during the course of investigation, but only on account of those letters, Tukaram cannot be eonvicted for the aforesaid offences. We find that no investigation was dor>e to ascertain that those letters were written by the appellant or the co-accused and they were in their hand-writing. (12) Acquitting Ihe co-accused as above, the Sessions Judge held / the appellant guilty on the ground that shecould not explain as to -^- what haRpened in the night^when it was established that she alone was present in the house along with the deceased. We do not find the .finding to be correct because theappellant has-given '•"'< ":1-:;\ "33<s •-y Criminal Apoeal No. 644 of 1993 ^ VaS-^.^ff explanation, as she immediately rushed to the house of Ramesh Agrawal (PW-3) even in heavy rains and narrated the story to them in the mid-night that the deceased has committed suicide by hanging. They came to thfe house of the deceased andsaw the deceased in hanging cortdition and then the dead body of the deceased was brought down by them. (13) The finding recorded by the Sessions Judge in Para-35 of the judgment that firstly the appellant and the other persons would have strangulated the deceased and then they would have hanged his dead body from the roof is without any basis and is hypothetical. The Sessions Judge held that strangulating the deceased in above manner and hanging the dead body from the mayar, which was at a height of 7 feet and 4 inches, would not be possible by a lady alone, therefore, more than one person were involved in this matter. Since no evidenee was available to the effect as to who were those persons, therefore, only the appellant alone was convicted. However her conviction was recorded u/ss 302/34 & 201/34 IPC. We are unable to accept the above finding in the facts and circumstances of the case. 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