HIGH COURT OF CHHATTISGARH BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.281 of 2005 Ramayan - Versus State of Chhattisgarh JUDGMENT FOR COSIDERATION N HON’BLE MR. JUSTICE R.L. JHANWAR Sd/- R.L.Jhanwar Judge , ,7"..- Post for pronouncement of iudqment on 23'“ April, 2010 ~ ’ ’ " W I H IGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.281 of 2005 APPELLANT: Ramayan, S/o Phool Chand Satnami, aged (In Jail) about 20 years, R/o Village Itwa, Thana Masturi, Distt. Bilaspur (C.G.) Versus RESPONDENT: State of Chhattisgarh, Through P.S. Masturi, Distt. Bilaspur (C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Hemant Kesharwani, counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate for the State/respondent. JUDGMENT (23“? April, 201 0) The following iudqment of the 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 1“ Additional Sessions Judge, Bilaspur, in Sessions Trial No.294/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Satibai & Kumari Reeta, alleged keep/wife & daughter of the appellant, respectively, convicted the appellant under Sections 302 & 302 of the l.P.C. and sentenced him to undergo imprisonment for life for each offence. 2. Conviction is impugned on the ground that without any credible and clinching evidence sufficient for conviction of the appellant, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. C ase of the prosecution, in brief, is that Satibai (since deceased) — disabled by both legs has conceived, villagers convened meeting and decided that Satibai has conceived through the appeiiant. They directed the appeiiant to keep Satibai with him. Satibai was residing with the appeliant in his house and the appeiiant was maintaining her. After six months Satibai gave birth to a femaie chiid Reeta (since deceased). Satibai was in habit of quarrelling with the appeliant. On 28-5-2004 at about 10 a.m. Satibai’quarreiled with the appeiiant on which the appeilant got annoyed and assaulted Satibai with axe over her neck as a resuit she died on the spot. The appeiiant also assauited Kumari Reeta and killed her. After keeping the axe in the room and keeping the lungi which the appellant was wearing at the time of commission of offence in the house, the appellant went to Police Station Masturi and lodged F.l.R. vide EXP-13. Merg was recorded vide Exs.P—14 & P—15. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Exs.-1 & P-2, prepared inquest over the dead body of Reeta, aged about 8 months, vide Ex.P—3. Again after summoning the witnesses vide EXP-17, the Investigating Officer prepared inquest over the dead body of Satibai vide Ex.P—18. Dead bodies were sent for autopsy to Community Health Centre, Masturi vide Exs.P—19 & P-20. Dr. P.C. Banerjee (PW-5) conducted autopsy on the dead body of Satibai vide Ex.P-10 and found following injuries: - (1) incised wound of 6" x 3” on right side of neck. Hyoid bone, carotid artery and jugular vein were found cut. (2) Incised wound of 2" x 1/2” on right side of chin. Injuries found on the body of Satibai were ante-mortem, mode of death was haemorrhagic shock as a result of injury on neck and death was homicidal in nature. Dr. P.C. Banerjee (PW—5) also conducted autopsy V V:5 éy %“ “”‘xv “m on the dead body of Kumari Reeta vide Ex.P-11 and found following injuries: - (1) incised wound of 6" X 2" on neck. (2) Blood vessels, trachea, esophagus, cervical vertebra & spinal cord were found cut. (3)Virtually the neck was completely chopped and head was attached with trunk of the skin of neck. Mode of death of Kumari Reeta was haemorrhagic shock and death was homicidal in nature. 4. The appellant produced lungi and axe from his house and the same were seized vide Ex.P-4. The appellant also produced clothes which he was wearing at the time of offence and the same were seized vide Ex.P—5. Blood stained and plain soil were seized from the spot vide Ex.P-6. The appellant was arrested on the same day of incident vide EXP-7. Seized axe & lungi were examined by Dr. P.C. Banerjee (PW-5) vide EXP-12. Patwari prepared spot map vide EXP-16. The‘lnvestigating Officer prepared spot map vide EXP—22. Sealed clothes of the deceased were seized vide EXP-23. Seized articles were sent for chemical examination and presence of blood on iungi of the accused & axe recovered from the accused was confirmed vide chemical examination report EXP-27. 5. tatements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Bilaspur who in turn, committed the case to the Court of Sessions, Biiaspur, from where the 1S’ Additional Sessions Judge, Bilaspur, received the case on transfer for trial. 6. in order to prove the guilt of the appellant, the prosecution has examined as many as ten witnesses. The accused was examined under Section i 313 of the Cr.P.C. in which he denied the circumstances appearing S against him, pleaded innocence and false implication. The appeHant has examined one defence witness Rajendra Kumar (DW—1) who has deposed that at the time of commission of offence he was present in the house ofthe appellant, he was purchasing the tiles and was counting the tiles, the appellant was present there and at that time they heard the sound coming from the house of the appellant on which he along with the appellant went inside the house of the appellant where they found one woman & girl child dead and axe was also lying near the place of incident. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant in the aforesaid manner. 8. We have heard learned counsel for the parties, perused the judgment impuned and record ofthe trial Court. g 9. Learned counsel for the appellant vehemently argued that as per the case of the prosecution, the accused has lodged F.l.R. vide EXP-13, but except the confessional. part relating to discovery of facts, incriminating part is not admissible in evidence. The prosecutionhas not adduced any other evidence to show that the accused has committed the offence and committed the murder of two persons namely Satibai & Kum. Reeta. Therefore, only on the ground that Satibal & Reeta were murdered in the house of the appellant liability could not be fastened upon the appellant. Learned counsel placed reliance in the matter of Aghnoo Nagesia v. State of Bihar‘ in which the Apex Court has held that in case of F.l.R. lodged by the accused non-confessional part of F.l.R. is admissible against the accused as admission under Section 21 of the Evidence Act and is relevant, but confessional part of the report made to the police 1AIR19663c119 a nnot be used against him in view of Section 25 of the Evidehce Act. Learned counsel further placed reliance in the matter of Khilawan Kumar v. State of C.G.2 in which this Court has held that confessional part of the F.l.R. made by the accused cannot be used against him and recovery of dead body, sickle and clothes lying in the house of the deceased in unhidden condition is not recovery atthe instance-of the accused. Learned counsel also placed reliance in the matter 'of Dhaniram v. State of M.P. (now C.G.)3 in which this Court has held that extra judicial confession after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility if he passes the test, the evidence of extra judicial confession can be accepted and can be the basis of conviction. Learned counsel relied upon the matter of Kansa Behera v. State of Orissa4 in Which the Apex Court has held that evidence of blood group is only conclusive to connect bloodstains with accused. 10.0n the other hand, learned State counsel vehemently opposed the appeal and submitted that the evidence adduced on behalf of the prosecution is sufficient for conviction of the appellant. The appellant himself has lodged the report and his non—confessional part of the F.l.R. is admissible in evidence. 11».ln order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. 12. ln thepresent case, homicidal death of Satibai & Kum. Reeta as a result of fatal injuries has not been substantially disputed on behalf of the appellant, otherwise also it is virtually admitted by the appellant by adducing defence witness Rajendra Kumar (DW—1). Even otherwise, it is 2 2009 (3) c.G.L.J. 14 (DB) 3 2009 (1) c.G.L.J. 472 (DB) 4 AIR 1987 sc 1507 ”‘established by the evidence of Dr. P.C. Banerjee (PW'—5) and autopsy reports Exs.P-1O &'P-11 that fatal injuries were found over necks _of both the deceased, virtually neck of Kum. Reeta was chopped and deaths of the deceased were homicidai in nature. 13.As regards complicity of the appellant in the crime in question, in the I present case, it is not disputed that dead bodies of Satibai & Kum. Reeta ' with fatal injuries were found in the house of the appellant and it is also _ not disputed that the deceased were residing in the house of the appellant. The appellant himself has lodged report EXP-13 and merg Exs.P—14 & P-15. F.l.R. EXP—13 includes confessional & non- confessional part. Confessional part relating to assault made by the accused to deceased Satibai & Kum. Reeta with axe and causing their deaths is not admissible in evidence and is hit by Section 25 of the Evidence Act. As held by this Court in the matter of Khilawan (supra), confessional part of F.l.R. is not admissible in evidence, but as held in the matter of Aghnoo (supra), non—confessional part of F.l.R. is admissible against the accused as admission under Section 21 of the Evidence Act. Para 1O of the judgment of the Apex Court in the matter of Aghnoo (supra) reads thus, “Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under 8.1 57 of the Evidence Act or to contradict him under S. 145 of the Act, if the informant is called as witness. If the first information is given by the accused himself, the fact of his giving the information is admissibleagainst him as evidence of his conduct under S. 8 of the Evidence Act. rlf the information is a non- confessional statement, it is. admissible against the accused as an admission under S. 21 of the y ’ 3 7 Evidence Act and is relevant, see Faddi v. State of Madhya Pradesh, Cri. Appeal No.210 of 1963, dated 24-1-1964: (AIR 1964 SC 1850), explaining Nisar Ali v. State of U.P., (S) AIR 1957 SC 366 and Dal Singh v. King Emperor, 44 ind App 187: (AIR 1917 PC 25). But a confessional first information report to a police Officer cannot be used against the accused in View of S. 25 of the Evidence Act.” 14.if we closely examine EXP-1 3, the first information report, it is in two parts. First part relates to the fact that deceased Satibai 8t Kum. Reeta were residing with the appellant; on the date of incident and at the time of incident the appellant was present in the house along with deceased Satibai & Kum. Reeta; Satibai used to quarrel with the appellant and even on the fateful day also she quarrelled with him. Second part relates to assault and killing of Satibai & Kum. Reeta. Definitely secondpart of the F.l.R. relating to killing of Satibal & Kum. Reeta with axe. by the appellant is not admissible in evidence, but the fact that Satibai & Kum. Reeta were residing with the appellant in his house at the time of commission of offence; the appellant was also present there and the quarrel took place when deceased Satibai abused the appellant, is not confessional statement and as held by the Apex Court in the matter of 7 Aghnoo (supra), this part is admissible in evidence as admission under Section 21 of the Evidence Act. 15.The appellant has examined Rajendra Kumar (DW-1) who has deposed that at the time of commission of offence the appellant was selling tiles, he (this witness) was counting the tiles and the appellant was not inside the house, he was outside the house and after hearing the sound, they . ~' went inside the house of the appellant. ln para 2 of his cross- examination, he has admitted that the appellant was having tiles kiln (khapra bhatti) 150 ft. away from his house. ln the light of non— l confessional part of F.l.R. Ex.P~13 lodged by the appellant, the evidence of Rajendra Kumar (DW—1) after Iapse of eight months of admission of the appellant does not inspire confidence and patently the evidence of Rajendra Kumar (DW—1) is false. 16.As per the F.l.R. Ex.P-13, evidence of Jaiial (PW-1); Nirmal Kumar (PW- 2), N.L. Dhritiahre (PW-10) and spot map EXP-22, the axe was lying in the same premises where it was kept and was visible, it was not hidden and the lungi was also hanging in the room. This‘shows that nothing has been recovered on the basis of discloser statement made by the accused. Therefore, as held by this Court in the matter of Khilawan (supra), any discovery relating to lungi and axe is not admissible in evidence. 17.8ubstantially, non-confessional part of F.l.R. remains for consideration which reveals that at the time of incident Satibai (since deceased) who was disabled from both legs abused the appellant’she along with her eight months’ aged daughter Kum. Reeta (since deceased) & the appellant i.e. three persons were present in the house at the time of commission of such incident. ln the light of admission of the appellant, the explanation offered by the appellant by adducing defence witness Rajendra Kumar (DW—1) is patently false. The appellant has not offered any explanation as to who came inside the house and who has committed the murder of Satibai & Kum. Reeta, that too in presence of the appellant, and how they died. Definitely, this is an offence committed in secrecy and as per admission of the appellant, the appellant was present at the time of commission of offence, he has not offered any explanation that how Satibai & Kum. Reeta died and who caused fatal injuries to them. The appellant was under obligation to offer explanation/ prove the offence committed in secrecy in terms of Section 106 of the vidence Act and non-offering of explanation is adverse circumstance against the appeliant. 18.While dealing with the case of offence committed in secrecy, the Apex CoUrt in the matter of Trimukh Maroti Kirkan v. State of Maharashtra5 has held that if the offence was committed in the dwelling house, where the husband also resided and if the accused husband did not offer 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 of the said judgment are reievant which read as follows: “14. If an offence takes place inside the privacy of a house and in such circumstances where the appellants have ail the opportunity to pian and commit the offence at the time and in circumstances of their choice, it will be extremeiy difficuit for the prosecution to Iead evidence to estabiish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above‘ is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See. Stir/and v. Director of pub/I'c Prosecutions (1944 AC 375 --- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Sing/7 {(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 led or any rate extremely difficult to be led. The j duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. 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 burden of proving that fact is upon him. 5 (2006) 1o scc 681 10 4U Illustration (b) appended to this section 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.” 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 be a comparatively lighter character. In view of 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.” 19.This is a special circumstance and it must be within the knowledge of the accused, therefore, in accordance with Section 106 of the Evidence Act, the appellant was underobligation to prove the fact that how his wife received injury and how she died. 20.While dealing with same question, the Apex Court in the matter of Dhananjoy Chatterjee alias Dhana v. State of W.B.6 has held that in case of offence committed in secrecy, the person who was present in such places is under obligation to offer explanation. 21.ln the present case, the appellant has not offered explanation, virtually the appellant has admitted the guilt, but in the light of Sections 25, 26 & 27 of the Evidence Act, confession made before the police officer is not 6 (1994) 2 scc 220 . ‘ agw fl ¥ Gr'g‘g H 2 ‘ ”admissible in evidence. Therefore, the exp|anation/confession of the appellant is not admissible in evidence. However, in the light of his admission reiating to non-confessionai part and non-offering of explanation in terms of Section 106 of the Evidence Act, the only hypothesis that only the appellant has committed the murder of Satibai & Kum. Reeta and that except the appellant nobody has committed their murder, would be possible. 22. in the matter of Kansa (supra), conviction of the accused was based on presence of blood. in case of conviction based solely on presence of blood, the prosecution is required to prove blood group of the deceased and the group of blood found on incriminating articles recovered at the instance of the accused. But in the present case, conviction is not solely based on blood found‘on incriminating articles recovered at the instance of the appellant. ln the light of aforesaid circumstances, non-proving of blood group is of no use. Consequently, the case of Kansa (supra) is distinguishable on facts to that of the present case. 23.After appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellant as aforementioned. Substantially conviction of the appellant is sustainable on the evidence of non-confessional part of F.l.R. as such conviction & sentence of the appellant are sustainable under the law. 24.For the foregoing reasons, we do not and any merit in the appeal, same is liable to be dismissed and it is hereby dismissed. ,\K /§5/- R.L. Jhanwar Judge " I: ”mp. sHARMAL. sw. ,1 l / Ikdge 'Soma