rT / ^ @ HIGH COURT OF CHHATTISGARH AT BILASFUR CRIMINAL APPE^-N0. 134/2006 Nmiial Singh Versus State of Chhattisgarh Judgpient for consideration Sd/- Hon^ble Mr, Justice Dhirendra Mishra JU^DG^ -4-2007 Sd/- DhirendraMishra Judge Post it tor pronoiincement of iudgraent on^-<4-2007 Sd/- L.C. Bhadoo Judge HiOH COURT OP CHHATTISGARH AT BILASPUR ^\. APPELLANT CmMINAL APPEAL N0. 134/2006 Nirmal Singh, son of Karam Siagh aged about 30 years, R/o. Raikera, P.S. Gharghoda, at prcsent R/o. Kodkel, Runiyakhar, Lailunga, Distt Raigarh (C,G.) Versus RESPONDENT State of Chhattisgarh, fhrough Gharghoda, Distt. Raigarh(C.G.) P.S. D.B. Hon*ble Shri L.C. Bhadoo and Hoa>ble Sfari Dhireadya Mishra^ JJ» Ku. Ninipiaa Bajpai, Advocate for the appellant. Shri U.N,S. Deo, Additional Public Prosecutor for fhe respondent/ State. JUDGMENT Per L.C.Bhadoo, J. : This appeal is directed agairist the judgiaent ofconviction and order of sentence dated 17-1-2000 passed by 3rd Additional Sessions Judge (F.T.C.), Raigarh m S.T. No. 153/2000, whereby the leanied Addl, Sessions Judge after holding accused/appellant guilty for coTnmission of offence under Section 302 of fhe Indian Penal Code, sentenced hiin to undergo imprisoniHent for life, Case of Uie prosecution, ui brief, is fhat husband of Dhaiikunwar (P,W, 5) had expired, tlierefore, accused-appeUaiit Nuinal Singh brought her at his residence and kept her as his wtfe, Out of the wedlock, she gave birth to one male child Bablu and one feinale chUd, On the date ofthe offeuce ie, 4-6-2000 fhey were aged about 4 years aad five nionfhs respectively. The accused-appellaat after quarrel with his wtfe left the house. Eight days before fhe date ofincident i.e. 4-6-2000, he returaed aiid started liviag with his wife aad children. On 4-6-2000, the accused rushed towards his wife to attack her wifh axe, which was iatervened by his niatemal aunt Phulkunwar and ia aager, he left the house along with briefcase, axe aad bag along with his four years' son Bablu aad five months' old daughter Babli. He went towards Gerupani aiid fhere, he attacked Babli with axe on her neck, as a result of which, she died spontaaeously, fhereafter fhe accused 1^11 away after leaving behnid his son Bablu ond Uie itenis which he was carryiag with hun, He N- y f^ ^:. :.^J *\ •;-y\ •'^ went to fhe house of Sarpanch Ghaairaoi aiid Karamsai. The niatter was reported by P.W. 1 Bannurain in PoUce Station Lailunga on which P.W. 6 Assistant Sub Inspector registered the First Infonnation Report Ex. P-13 and Merg IntiiEiation Ex, P-14, left for fhe scene ofoccurrence aiid prepared inquest Ex. P-2 on fhe body of BabU. The Body of BabU was sent for post niorteni exaimnation to fhe Govenuneut Hospital, Lailunga where Dr, R.S. Upadhyay (P.W. 4) conducted post Biorteni on the body of Bablu aad opined that cause ofdeafh was shock aad haeniorrhage as a result ofcuttiiig of wind pipe aad food pipe, The deafti was homicidal in nature, He prepared post m.0rteni report Ex, P-11, The investigating officer took into possession the blood staiaed soU aad plain soil under Ex. P-7. One hand bag aad clothes, which the accused left at fhe place of occun'ence, were seized under Ex. P-6. While in poUce custody, Uie accused gave iiienioraaduiii Ex. P-4 rcgardiag axe, the weapon of offence, ia pui^uaace of fhat^ axe was recovered under Ex. P-5, Afifcer completion of mvestigation, charge sheet was filed agamst the accused ia the Court of Judicial Magistrate First Class, Gharghoda who ia tum comniitted the case to the Sessions Judge from where leamed 3rd Additional Sessions Judge received the case on transfer for tdal. Prosecution examined six witnesses at the trial. Statement of accused was recorded under Section 313 of Cr.P.C. ia wliich he derded fhe material appearmg agamst him ia fhe prosecutioa evidence and stated that he is mnocent, he has been falsely inipUcated ia fhe cnBie. Learaed Additional Sessions Judge after hearing counsel for fhe respective parties, convicted and sentenced fhe accused as aforenientioned. We have heard Ku. Ninipma Ba|pai on behalf of fhe appellaat aad Shri U.N.S. Deo on behalfofthe State. Ku. Bajpai has not disputed hoiaicidal deafh of BabU. Moreover P.W, 4 Dr. R. S. Upadhyay who conducted post mortem on the body of BabU has stated fhat there was iajury on the neck ia size of 9cm x 3cm x 5cni, as a result of which fhe neck was separated however fhe same was attached wifh body with fhe help of skin, Food pipe and wiad pipe werc cut. These iajuries were 6? ^. ?"\ \^ caused in £ront of neck with sharp aad hard object aad were grievous in nature. Cause ofdeath was shock aad haemorrhage on accouut of cutting of the food pipe aad wiad pipe, fhe injuries were sufticient ia ordiaarv course of natoare to cause death, The death was homicidal ia nature. Therefore, ia view of above medical evidence, it is estabUshed that Uie deafh was honiicidal ia natxire. As far as iavolvenient of the accused ui tilie criiae in qiiestion is concenied, Ku, Ninipma Baipai has argued that fhere is no eye- witness in fhe present case aad in the F.I.R, it is not mentioned that fhe accused while leaviag tiie house along withchildren was canyiag axe, therefore fhe prosecution has failed to estabUsh the eriine agamst fhe accused. On the ofher haad, Shri Deo supported the judgment of me trial Court. In this case, fhere is no ocular or direct evidence against fhe accused. The case rests on cu'cunistaatial evidence and as per settled law, ia order to convict an accused based on circuHistaatial evidence, fhe Apex Court in the matter of Dheinanfoy Chatterlee ys. State of West Befwal reported in f199^ 2 SCC 220 held that "In a case based on cuTCUinstaatial evidence, the circumstances from which fhe conclusion of guilt is to be drawn have not only to be fuUy estabUshed but also fhat all the cu'cuiastaaces so estabUshed should be of a conclusive nature aad consistent only with tih.e hypofhesis offhe giult of fhe accused. Those cu'cuiastances should not be capable of being explamed by any ofher hypothesis except the guilt of the accused and the chaia of the evidence must be so complete as not to leave aay reasonable ground for the belief consistent with fhe innocence of the accused. It needs no reminder fhat legaUy established circumstaaces aad not inerely iadignation of the Court caa fonxi fhe basis of conviction and the more serious the cnme, the greater should be the care taken to scrutuaize the evidence lest suspicion takes fhe place of proof^ The prosecution has tned to estabUsh fhe crmie agaiast fhe accused on fhe foUowuig cu'cunistaaces: 3^ o -.J " i. That, the accused just before the iacident left the house along wifh his son Bablu, daughter BabU aad also with aa axe and just thereafter, fhe body of BabH was found ia dead condition with uiiury on neck near Gerupaiii. ii, Axe, ftie weapon of offence was rccovered at fhe iastance of tiie accused, As far as fhese circuiiistaiices are conceraed, P,W. 5 Dhaakunwar, fhe niofher of ftie child and wife of fhe accused has stated fhat on the fateful day, she returaed to her house after douig her labour job, The accused demaaded food, on which she repUed fromi where she provides good food, fhercfore accused started quarrelmg wifh her, fhereafter he left the house, He took bofh the children aloug with hiai. She tried to persuade Tiim not to take the chUdren but even fhen he took the children along witih. him. He was canymg axe with him, At about 10-11 am, his matemal father-m- law Baaurain came, on which she inibmied him about takinig away of fhe children by fhe accused, She requested hun to go to see fhe chUdren, He left and after soiae tmie, Baiiuraja rctumed and uifonned her fhat the accused has ixiurdered BabH, fhereafter Baiiurani went to inform. viUage Sarpaach and Kotwar, on which she along wifh Sarpaiich and Kotwar went to the place of occurrence and saw fhe dead body of BabU. As fhe Bablu was weeping, fherefore, one lady ofGurupaiii took Bablzi at her residence, In order to convict the accused based on last scene fheory, as per settled law, fhere niust be proxiauly between deafh and when the deceased was seen aMve with fhe accused. The tiaie gap between the two should be so smaU tiiat there should not be aiiy possibility of coming any fhird person ia between, In fhe presence case, Dhaakunwar (P.W. 5) has categorically stated tliat after becommg aagiy, the accused left fhe house &long wifh deceased daughter Babli, son Bablu aad one axe, When her raatenial father-in-law Baiiuram caine to her house, she iaformed aad requested him to search the accused aild children, thercafter Baaurani left aad returaed after sonie tmie. He iafomied her fhat Babli has been murdered, Therefore she along witih. vfflage Sarpaach and Kotwar went to fhe place of occurrence and saw dead body of her daughter BabM. Therefore, fhe time gap between when fhe accused left the '^^ •^ house along wifh his daughter Babll and she was found dead wifh iajury on neck was so sinall fhat fhere is no possibility of coming ofher person m between to commit murder of five months' daughter of fhe accused, Moreover, fhe raaiiner ia which fhe accused after getting aagiy wifh his wife left fhe house wifh deceased Babli aged five months aad son Bablu aged 4 years, Tlie conduct of fhe accused was such fhat the accused was fhe person who attacked BabU aad coHuxiitted her niurder, Moreover the accused in his stateinent under Section 313 of Cr,P.C, has not explained fhe circunistaaces under which BabU sustaiaed fatal injuxy because fhe accused is the person who snatched fhe daughter froni his wife aad took her away, therefore, it was withia special kaowledge of the accused how she sustaiaed iajury as BabU was in. his custody, therefore, beiag witihdn his special knowledge, as per Section 106 of Indian Evidence Act, fhe burden was on hmi to explam the circunistances under which BabU sustamed iaiury, Leamed counsel for the appeUao^t argued that m cross- examination of P,W, 1 Baaniiram it has come Uiat the accused disclosed to hioi fhat when he was goiiig along with children, robbers came aad committed murder, but fhis suggestion is without aay basis. There is no explao^ation as to why fhe accused has not reported fhe Biatter to fhe police or viilagers, The tmie was day li^ht, nioreover, he has not stated anythiD.g ia his statenient under Section 313 ofCr.P.C,, therefore, the above argument ofthe leamed counsel for the appellant that fhe murder was committed by some robbers is devoid of merit aad is not based on any evidence on record. P.W. 6 C.L. Paadey, fhe Assistaat Sub Inspector-lnvestigatmg ofiicer has stated fhat while ia police custody, fhe accused gaye meinoranduin Ex, P-4, ui pursuaaee of fhat, an axe was recovered at fhe uistaace of the accused under Ex, P~5, A penisal of nieBioraD^duDi of accused Ex. P-4 shows that the accused gave nieraoraadum regardiag axe, titie weapon. of offence aad the saiiie was recovered at fhe iastaace of the accused under Ex, P-5, Dr. R. S. Upadhyay (P.W, 4) has stated titiat fhe axe in question was sent for his opiuion aad he gave opiaion Ex. P-12, He opined that Uie uiliuy found on fhe ueck of flie deceased Babli could be caused by ./' 6 fhe axe ia question, therefore, recovery offfae axe at the iastance of the accused, the same was seen by P.W, 4 Dhankunwar, wtfe oftlie deceased when he was takiag away the deceased, and the doctor has stated fhat fhe irijury found on fhe neck of the deceased could be caused by fhe axe m question, fherefore, for fhe foregoiiig reasons, based on above circumstaaces, fhe prosecution has been able to estabUsh bevond reasonable doubt fhat fhe chain of fhe circiiaistances is complete and based on the above circimistantial evidence, only irresistible conclusion which caa be drawn is that fhe accused was aufhor of the crinie ia question aD.d there is no possibilily ofaay third person coimnitting criiae. For the foregoiag reasons, we do not find aay merit ia fhis appeal, the saine is liable to be disniissed aad it is hereby disinissed. Sd/- L.C. Bhadoo Judge Sd/- DhirendraMishra Judge