HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH : HON’BLE MR. T.P. SHARMA 8n CORAM HON’BLE MR. RANGNA’I‘H CHANDRAKAR, JJ.» Criminal Ambeai No. 894/2005 Banshi @ Sampat @ Bhaim S/o Late Kamal Singh, agev 38 years, Caste—Dora, Occupation— Agriculturist, R/o Village Chandela, Taraipara, Police Station Mardoom, District Bastar (C.G.). State of Chhattisgarh Through Pohce Station Mardoom, District Bastar. CRIMINAL APPEAL UNDER SECTION 374(2) OF CODE OF RIMINAL PROCEDURE, 1973. Present:— Mr. Abhay Tiwari, Advocate for the appellant. Mr. Neeraj Mehta, P.L. for the State/respondent. VERSUS ' RESPONDENT JUDGEMENT A~ (Passed on 09/09/20 1 1) The following judgment of the Court was passed by $.P. Sharma, Jza 1‘ Challenge in this appeal is to the judgment of conviction and order of sentence dated 22/11/2005 passed by Sessions Judge, Bastar at Jagdalpur (C.G.) in Sessions Trial No. 318/2005 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of his wife Bhanobai, convicted the appellant C Q” M @ under Section 302 of the Indian Penal Code and sentenced imprisonment for life. 2. Conviction is impugned on the ground that without any iota of evidenee sufficient for conviction of appellant Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the prosecution, Bhanobai (since deceased), wife of appellant was residing with appellant in his house situated at village Chandela, Police Station Mardoom, District Bastar. On fateful day of 15/7/2005 at about 8:00 PM. Bhanobai went to her house for ease, she came after some time then appellant condemned her that you are having illicit relation with some other person) appellant slapped her thricely then appellant took out axe and caused two injuries over the head and caused instantaneous death of Bhanobai. PWI Mohan, nephew of appellant was present in appellant’s house, he threatened and fled from the house of appellant by crossing river by boat, he went to his village Karla Gutkudi where he narrated the incident to his mother i.e. sister of Bhanobai and his i , maternal uncle i.e. brother of Bhanobai then he went to Lu ’ the Police Station, Mardoos and lodged First Information Report vide EX. P—2. Marg intimation was recorded vide EX. P—l. Investigating Officer left for scene a ‘ of occurrence and after summoning the witnesses vide u). EX. P—4, inquest over the dead body of Bhanobai was prepared vide EX. P—3. Dead body of Bhanobai waé sen for autopsy to Community Health Center, Lohashriguda Vide EX. P—14 where PW4 Dr. RK. Nag conducted autopsy Vide EX —7 and found following injuriesr (i) One lacerated wound‘of 1" x 1/2” x 1/2” over just above the forehead along with swelling. V (ii One incised wound of 2 1/2” x 1 1/2” X 1" over just back of left ear. (iii) Fracture of ‘Y’ shape on frontal bone. (iv) Injuries were ante—mortem in nature and sufficit for causing death. Mode of death was sho and dth was homicidal in nature. 4. During course of investigation, appellant was taken int custody, he made iscloser statement of axe vide o d Ex. P-5, same was recovered at his instance vide Ex. Pi 6. Spot map was prepared vide EX. P—13. Blood stained and plain soil were recovered from the spot vide EX. P— 15. Sealed cloths of deceased Bhanobai was seized and articles were sent for chemical examination vide EX. P— 16. 5. Statements 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 t . P ) en ck ea First Class, Jagdalpur who in tum committed the case to the Court of Sessions, Bastar at Jagdalpur. In order to prove the guilt of the appellant prosecution examined as many as 7 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. After affording an opportunity of hearing to the parties, learned Sessions Judge, Bastar at Jagdalpur (C.G.) has convicted and sentenced the appellant as aforementioned. Mr. Abhay Tiwari, learned counsel for the appellant and Mr. Neeraj Mehta, PL. for the State/respondent are heard. Judgment impugned and record of the Court below perused. Learned counsel for the appellant vehemently argued that conviction of appellant is substantially based on the evidence of PWI Mohan, nephew of appellant who has witnessed partiof incident. As per his evidence, appellant has slapped 85 kicked Bhanobai, he was trying to press her neck and was going for bringing axe then he 'rUShed from the house of appellant which shows that he has not seen the incident especially any assault made by appellant by axe sufficient for causing death of Bhanobai therefore, evidence of prosecution i“v t r (A) witnesses are not sufficient to prove that appellant has caused homicidal death with intent to cause death of Bhanobai even otherwise as per evidence of prosecution, initially Bhanobai was went for ease from her house and she did not return within reasonable time, when she returned to her house then delay in returning was questioned by appellant and on sudden ‘provocation appellant has slapped 81, kicked her thereafter he has caused injury that too by blunt part of the axe therefore, if the evidence of prosecution is considered in its face value then even the act attributed to appellant does not traveled beyond the scope of under Section 304 Part—H of the Indian Penal Code. On the other hand, learned Panel Lawyer for the respondent/State opposed the criminal appeal and argued that conviction of appellant is based on the evidence of PWI Mohan, nephew of appellant. Evidence of PWI Mohan inspire confidence, trustworthy and is sufficient for conviction of the appellant. After appreciating the evidence available on record, learned Sessions Judge, Bastar at Jagdalpur (C.G.) has rightly convicted and sentenced the appellant as aforementioned. ll. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. g_ 1M331 t (A 12. In the present case, homicidal death as a result of fatal injuries found over the head of deceased Bhanobai has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW4 Dr. RK. Nag 8a autopsy report EX. P—7 and death of Bhanobai was homicidal in «1 nature. 13‘ As regards the complicity of appellant in crime in question, conviction of the appellant is substantially based on the evidence of PWI Mohan, nephew of appellant. As per his evidence, on the date of incident, he was present in appellant’s house after taking meal he was sleeping, at about 8:00 P.M., Bhanobai went from her house for ease but she did not return within reasonable time, when she came back then appellant asked why she had come late and slapped 85 kicked her then he tried to press her neck and went for bringing axe then he fled from the house of appellant and went to his village Karla Gutkudi where he informed his mother i.e. sister of Bhanobai 8t his maternal uncle i.e. brother of Bhanobai thereafter his mother & maternal uncle came on second day to the house of appellant where they saw dead body of Bhanobai and on third day they went to the Police Station and lodged First Information Report virtually, this witness has not supported the complete incident which he has narrated to the Police in First Information Report Ex. P—2 8L Marg intimation EX. P—l. Defence has cross~examined this witness at length but fact remain that he has proved the first part of the incident that incident took place at night. Appellant, his Wife Bhanobai and PWI Mohan only three persons were present in the house of appellant, at the time of incident, appellant has slapped & kicked his wife thereafter he went for bringing axe then PWI Mohan fled from the house of appellant. After leaving the house of appellant by Mohan) only two persons i.e. appellant 8L his wife Bhanobai were present in the house of appellant and on second day, injured dead body of Bhanobai was found in the house of appellant. Appellant has not lodged any report till 3 days i.e. before lodging report by PWI Mohan. Admittedly, offence committed in secrecy where only 'a; two persons were present, out of two, one Bhanobai died then appellant was under obligation to offer any explanation in terms of Section 106 of the Evidence Act but present appellant has not offered any explanation. ()s Evidence of PWI Mohan; nephew of appellant, PW2 Prabhu; father of Mohan 8r, PW3, Malikram; maternal uncle of Mohan are sufficient to establish that appellant has caused initial injury and appellant $5 Bhanobai were only two persons were present in the house of appellant at the time of incident. )k 14. While dealing with the question of need of explanation in terms of Section 106 of the Evidence Act, in case of Trimukh Maroti Kirkan v. State of Maharashtra1 in which Supreme Court has held that non~explanation of appellant in Section 106 of the Evidence Act is strong adverse inference that only appellant/accused has committed offence in secrecy. Supreme Court has observed in Para— 15 which reads as underz‘ / “l3 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 lighter character, ln 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” (2006) .10 SCC 681 \ circumstance sufficient for drawing an In absence of any explanation and commission of initial part of the incident, only inference would be possible that only appellant has committed culpable homicide amounting to murder of his wife Bhanobai. As per evidence of PWI Mohan 8c First Information Report EX. P—2, appellant slapped 85 kicked his Wife then she fell g down then appellant brought axe and caused injury to his wife Bhanobai shows that he has caused homicidal death with intent to cause death of Bhanobai. After appreciating the evidence available on record, learned Sessions Judge, Bastar at Jagdalpur (C.G.) has rightly convicted and sentenced the appellant as aforementioned. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment of conviction and order of sentence. Consequently, criminal appeal is ah devoid of merits, same is liable to be dismissed and is hereby dismissed. M \ Sd/— ‘RIN. Chandrakar , ‘x" _ i Judge ”in, mmv W l