Kb?) 1. HIGH COU; OF CmATTISGARH AT BILASPUR g: .Jnal Appeal No. 956 of 2093 CORAM: HON’BLE MR.T.P.SHARMA & HON’BLE MR N K. Agamal JJ -APPELLAN’I‘ Dhkhwa Ram Satnmm son 0f (In Ja11) Mohau‘a aged 49 years, residsnt of village Saloniknla, Police Station ‘Bilaigarh, District Raipur (CG) Versus RESPONDENT State of Ghhattlsgarh, through P S Ellalgarh D1stt Rmpur (CRMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF .4“ . CRIMINAL PROCEDURE 1973) ' Present:- Shm Rakesh Pandey, Advocate, ior the appellant. I £ Shn Smdeep Yadav, Dy Govt. Advomte for the State JUDGMENT (Passed on 25th Februaxy, $0 IO) The judgment of the Court was delivered by T.P.SMrma, J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 7-5—2003 passed by the 2nd Additional Sessions Judge, Baloda Bazar, Distt. Raipur in Sessions Trial No. 7/ 2003 whereby and whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife Chandra Bai and daughter Rajni Bai, convicted the‘ appellant under Section 302 of I.P.C. and sentenced to undergo imprisonment for life with fine of Rs. 5001—, in default of payment of fine, to further undergo RI. for 6 ~ months. 2. Judgment of conviction is impugned on theug'ound that Without there being an iota of evidence, the court below has v convicted and, sentenced the appellant as aforementioned 1' » and therebycommitted illegality. \ 3. Brief facts of the prosecution case are that decewed Chanda .Bai and deceased Rajni Bai aged about 4 months were residing with the appellant along with other sons RW. Q ‘Shankar‘ aged about 9 years and P.W. 10 Ravikumar aged labout 6 years in appellant’s house at village Salannikala. On ‘the fateful day of 19-10-2002 at about 10:00 pm, the appellant was present in his house along with his wife and children. He was suspecting about her character and on a account of suspicion, he assaulted his wife Chanda Bai by ‘ axe and caused her death, he also killed his daughter RaJm ‘ ‘Bai and fled h‘om the spot. P.W. 2 Shankar and P.W. ‘10 ?Ravikumar, sons of the appellant narrated the incident to E their relatives and dnally P W 1 Moharsai lodged F I R Vide Ex P—l Merg was also recorded The Invesiigatlng Officer bk for the scene of occurrence After summoning the witnesses vide Ex P—8 inquest over the dead body of Chanda Ba1 was prepared v1de Ex P-9 Again aflserv summoning the w1tnesses Vide Ex P— 10 inquest over the dead body of Rajm Ba1 was prepared Vide Ex. P-ll. Dead N body of Chanda Bai was sent for autopsy to Primary Health Centre, Bilaigarh vide Ex. P— 14. Autopsy was conducted by Dr. Narayan Singh vide Ex. P—l4(A), who found following injuries: — One incised wound over neck of 7cm x 3cm x 2cm; n One incised wound over left shoulder through neck of 3cm x 1/2c1n x skin deep; m One incised wound of 4cm x 1/2cm x skin deep; iv. One incised would of 8cm X 1/20111 x Ecrxr over parietal region from leftvto right, bone was cut; One incised wound of 5cm x lcm x 2 adjoining’the above injury One incised wound of 3cm x l/z cm x skin deep over parietal and occipital joint; vii. One incised wound of 5cm X Vz'cm x 1 cm over right ‘ @3 viii. One incised wound of 3cm x 1/2 cm x skin deep over right parietal region. Death was homicidal. Dead body of Rajni Bai was also sent for autopsy vide Ex. Pr15 and Dr. Narayan Singh conducted autopsy vide Ex P- 15(A) and found following injuries:- i. § One incised wound of 4cm x 2 cm x 2 cm in dent of neck. f 11 ’I‘rachea was found fractured in piece. m One 1nc1sed wound of 1cm x V2 cm x skm deep over chm The death was as a result of asphyx1a and homlmdal m i nature. 4. Bldod stained axe, blood stained and plain. soil wer recovered vide EX. P-S. One blood stained shirt was " recovered vide Ex. P—6. The accused was arrested vide Ex. P— 7. The clothes of the deceased Chanda. Bai were seized vide Ex. P—12. Spot map was prepared vide Ex. P— 18. Seized articles were sent for chemical examination Vide Ex. P-21. Presence of blood over the shirt of the appellant was confrmed v1de Ex C~l . Statement of accused was recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as r ‘the Code’). After completion of investigation, charge sheet was filed in the COurt of Judicial 'Mag'strate First Class; Bilaigarh who in turn committed the case to the Court of Sessions, Raipur nom where the Additional Sessions Judge i received the case on transfer for trial. l6. In order to prove the guilt of appellant, 'prosec‘ution examined as manyas 1 1witnesses. Statement Of the accused was also recorded under Section 313 of the Code where he denied the circumstances appearing against him and claimed innocence and false implication. At the time of framing of charge, the accused took avspeciflc defence that his wife deceased C da Bai was having illicit relations with Bhupendra, Karu, Rethu, Gangaram andRameshwar e and at the tima of incident, he went outside the house and, r when he came back, he saw the aforesaid me persons m his courtyard and his Wife and daughter was found dead. Then at about 4.00 a.m. hewent to lodge report to police station. The aforesaid fxve'persons have falsely implicated him. He has taken a specific defence of alibi. ‘ 7. After affording opportunity of hearing to the parties, learned additional Sessions Judge has convicted and sadtenced‘the appellant as aforementioned s. We have heard Shn Rakesh Pandey, learned counsel far the appellant and Shn Sandeep Yadav, learned Dy Govt (Advocate, for the L State/respondent - and perused the v . Judgment impugned and the record of the Court beiow v I i 9. Learned counsel for the appellant vehemently agued that the case is based on Circumstantial emdence In case of Circumstantial emdence the prosecution 1s required to» complete chain of circumstanCes incapable of explanation of any other hypothesis than that of the guilt of the accused. The prosecution has not proved any chain of circumstances sufficient for drawing inference against the appellant only on the ground that his Wife and 4 months aged. daughter were J murdered and fastening the liability of the same upon the appellant. T 10. Shri Ravindra Agrawal learned Panel ‘Lawyer i appearing for the State opposed the appeal and aigu& that - the case 1s based on Circumstantial ev1dence In the present case, the appellant was res1ding With the deceased Wife” - deceased daughter and other sons in the house. On the date, of m§dent the appellant assaulted both the deceased persons, as a result of which they sustained injuries The i appellant was present in his house and has not offered any explanation how the deceased Chanda Bai and Rajni Bat died and who has caused injuries to them. The on‘ence has been committed iii secrecy. The appellant has not odered. any explanation in terms of Section 106 of the Indian Evidence Act and in absence of such explanation, the @ 5 aforesaid circumstances are sumdent for drawing inference that the appellant is the person who hascommitted 0&nce of murder of his wife and daughter. ‘ ll. In order to appreciate the arguments advanced on ‘~ behalf of the parties, we have examined the evidence available on record andv the defence taken by the ‘ accused/appellant. ~ 12. In the present case, homicidal death as a result of fatal § injuries on the neck of Chanda Bai and Rajni Bai is not ‘ substantially disputed by the appellant, otherwise it is established by the evidence .of P;W. 8 Dr. Narayan Singh,’ aatopsy report Ex. P—14(A) and P—156A) which reveal that fatal injury over neck of the deceased persons-was found and death was homicidal in nature. a 13. As regards complicity of the appellant in the crime in ‘ question, conviction is based on following circumstantial evidence: - i. The appellant was present in the house along with, . deceased persons namely wife Chanda Baa' and daughter Meera Bai. 11 Chanda Bai and Rajni Bai were found dead in the house of appellant as a result of fatal injuries. m Offence is committed in secrecy. x iv. The appellant has not offered any explanation as to how Chanda Bai and Rajni Bai died, who caused injuries to them. i14. P.W. 1 Moharsai in his statement has deposed that on the date of incident, the dead bodies of Chanda ‘Bai and Rajni Bai were found in the house of the appellant. His two sons Ravi Kumar and Shankar were weeping. They told him that the appellant has killed their mother and sister. ~Then he told aboutthe incident to some persons and finally he ~ ' lodged the report. Ln, . . 6 s . In the present case, P.W., 2 child witness Shankar,‘ aged about 9 years and P.W. 10 Ravikumar aged about-r 6 years have not supported the prosecution, case. The prosecution has 'declaxed them hosu'lex’ In pala 2 of his cross-examination, 'P.W. 10 Ravikumar has deposed that on the date of incident, his mother provided meal to 1mm Then she asked the ”appellant for meal, which shows that the appellant was present in the house on the date of incident. ‘ The appellant has taken a specific defence at met instance at ' the time of haming of charge that five persons Bhupendra, Karu, Rethu, Gangaram and Rameshwar were having illicit relation With his Wife and on the date of incident, they were present in his house and dead body of his wife and daughter- was found in the house. The defence taken by the appellant! - ; reads thus:- '%Wmmm€anham$téiw.mm WHWWM$mmiimm‘ma Wwwmmm'aimearnmaimwaw Wanémmimdmémaiwwftwm' wgmdwwwlmmwdmwm mmmmwmaganmmwmmfw igsisgarmwslmwmir' The appellant has not oifered any explanation in his, statement under Section 313 of the Code. The appellant has 1 not examined any Witness in his defence nor atamined i himself to conirovert the prosecution story. x 16. ln~absenoe of such explanation, by the evidence of P.W. [ » 2 Shankar and RW. 10 Ravikuman it is established that at ‘ the time of oh‘ence, the appellant was present in the house where two persons were found dead. The appellant has not offered any explanation as to how they died and who has caused injuries to them. Non-explanation ofthe above facts is substantive adverse circumstance again st appelhnt. 17. As per the settled law in order to convict an accused based on the circumstantial evidence, the Apex Court in the i 1 15 I - * 1 case of Dhananjoy Chatterjee Vs. State of W.B.1 has hdd that : “In a case based on circumstantial evidence, the circumstances mm which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of aconclusive nature and consistent only with the hypothesis of the guilt of the accused.‘ Those circumstances should not be capable of being = = 7 explained by any other hypothesis except the guilt of ' ‘ the accused and the chain of the evidence must be , so complete as not to leave any reasonable gmund ‘ for the belief consistent with the innocence of the accused. It needs, no reminder that legany ~ established circumstances and net merely indigiation of the court can form the basis of v conviction and the more serious the crime, the greater should be the care taken to scrutinim the evidence lest suspicion takes the place of proof.” 3 18. In absence of any explanation on behalf of the appellant, the aforesaid circumstances mentioned in para 13 established against the appellant ifconsidered together, then except the hypothesis of guilt of the appellant, no other hypothesis including innocence of the appellant or commission of the on‘ence by other persons would be possible. 19. v‘After appreciating the evidence, learned Additional Sessions judge has convicted and sentenced the appellant under Section 302 of I.P.C. On a close scrutiny of the evidence, we are of the View that the Court below hasnot committedrany illegality in convicting and sentencing th ‘ appellant for killing his Wife and daughter. l20. The appeal being devoid of substance, deserves to be and is hereby dismissed. 7i, ,,sd/- N.K. Agawal Judge y 5di- lT. P. Sharma :j Judge l 1 1 l l ‘(994)2scc220 e