@ sentenced them to undergo life imprisonment and to pay fine oi Rs.1000/-, R.I. for three years and to pay fine of Rs.500/—, in defauit of payment of fine to further undergo Ri for six months and three months, respectively. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants _ as aforementioned and thereby committed illegality. As per ease of prosecution, unfortunate deceased Chintamani,_wife of » appellant No.1 was residing with him and his brother Ram Gopal in, same premises at'villagexPasta, Kapa Navapara, police station Bango. District Korba (C.G.). On 30.07.2004 between 1.00 pm to 2.00 pm, appellant _- assaulted Chintamani and caused her death thereafter, they hired vehicle of Sameer (PW/8) and took the dead body towards viiiagef Shrinagar i.e. paternal village of deceased, Before reaching the village they removed the bady from jeep and after sending the jeep driver they took the dead body to dam at village Pasta and threw the body thereby concealed the evidence of criminal case and aher that day deceased was not seen by any person. Relatives of deceased Chintamani were searching and her dead body was seen in dam thereafter, Rampratap (PW/1), father of deceased went to police station out post and iodged merg vide Ex.Pl3. investigating officer left for scene of occurrence, after summoning the witnesses vide EXP/4, inquest over the dead body of deceased after taking out the body from dam was prepared vide EXP/5. Dead body of deceased was sent for autopsy to Community Health" Center, Ramanuj Nagar vide EXP/6. Dr. Rajshri Singh (PW/12) conducted autopsy vide EXP/9 and found following injuries: \t .4 a «a \ \ \\ J i f ét . (i) Body swalled up, meguts were weeping (meguts secend generation started). Smelling was coming out’from the body. (ii) Upper & lower limb also semiflexed. Multiple injuries on forearm two parallel contusions about 10 to 12 centimeters in ‘ length on left arm just above the elbow. (ii) Contusion of 5 x 7 cm over right arm. (iii) Contusion of 5 x 7 cm over left arm. (iv) Contusion of 5 x 7 cm found over left thigh. ‘ . (v) Patches were found over posterior aspect of bbth knee of 3 x 5, , cm. (vi) aContusion of 3 x 5 cm over frontal bone. (vii) Fracture of hyoid bone of neck. . Mode of death was asphyxia as a result of throttling and death was ‘4; ‘Q. homicidal in nature. Saree and blouse were seized from theaspotvvide 2i ' EXP/7.: Spot map was prepared vide EXP/8. Finally, FlRrandrmerg « a e were recorded vide EXP/12 and EXP/13. Spot map was also prepared vide EXP/16. Appellants were taken into custody. Appellant Ram Subhag made disclosure statement of axe and stick vide Ex.Pf1; same - w were recovered at his instance vide EXP/2. Seized articleSVWere sent ferti': ~r chemical examination vide EXP/17 and Ex.P117-A. Presence of blood over axe seized from the appellant was confirmed vide Ex.PI19. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short the ‘Code'). After completion ’ of investigation, charge sheet was tiled before the Court of Judicial M Magistrate 1" Class, Katghora, who in turn committed the) case to the Court of sessions Judge, Korba, which he received the case on transfer for trial. . In order to prove the guilt of the accused/appellants, prosecution has examined as many las 16 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code where . . ‘5 (gV 4 they denied the circumstances appearing against them and innocence and false impiication is claimed. 7. After providing opportunity of hearing to the parties, Learned Sessions Judge, convicted & sentenced the appeilants as aforementioned. 8. We have heard iearned counsei for the parties, perused the judgment impugned and record of the trial Court. 9. Learned counsel for the appellants vehemently argued that conVIctIon is {‘1' based on circumstantial evidence. While dealing with the question of . conviction based‘on circumstantial evidence, the Supreme Court inthe matter of Kusuma‘Ankama Rao Vs. State of A.P.‘ has held tha’tin case of conviction based on circumstantial evldence, prosecution is required to satisfy the following circumstances: i. the circumstances from which the conclusion of guilt is to'be’ drawn should be fully established The circumstances concerned r must‘ or should' and not may be established ii. ‘ the facts so established should be conSistent only With the i hypotheSis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the , accused is gunty ' iii. the circumstances should be of a concluswe nature and ’ tendency; s I iv. _ they should exclude every possible hypothesis except the, one to ‘ a be proved; and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the v innocence of the accused and must show that in all human probability the act must have been done by the accused. _ - 10.Learned counsel further submits that in the present case prosecution has not collected any evidence against appellant Ram Gopal and evidence collected against Ram Shubhag is not sufficient for his conviction. Thus, in absence of cogent and credible evidence conviction of the appellants is not sustainable under the law. 11. On the other hand, learned Panel Lawyer for the State opposed the appea! and submits that conviction of the appellants is based on clinching and credible evidence. Present appellants have caused injuries to deceased and caused homicidal death of deceased. They took deceased from their house towards her paternal village; thereafter they threw the body in the dam. These circumstances are sufficient for conviction of the appellants. 12.ln grder tc appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. s a 13in the present case, homicidal death as a result of throttling of deceased Chintamani has not been substantially disputed on behalf of the v appellants, even Otherwise same is also established by the evidence Dr. Raj Shri Singh (PW/12) and autopsy report EXP/9 that deathJa‘o’f" deceased Chintamani was homicidal in nature. 14.As regards the complicity of the appellants in crime in question is concerned, conviction is substantially based on following circumstances; i. On 30.07.2004, both the appellants with whom deceased Chintamani was residing had assaulted her; she made dying declaration before Mohd. Ishaq (PW/5) ii. On same day she became unconscious thenwappellant Ram Subhag took her to his house. iii. Both the appellants called Sameer (PW/8) along with his vehicle thereafter, appellants, took the body of deceased covered by Kambal and they proceeded in jeep towards paternal house of the deceased but instead of going to paternal house they stopped the vehicle in way and they got down the body of deceased and sent Sameer back. x Murdered dead body of deceased was found in dam. 15.As per evidence of Modh. lshaq (PW/5, on the date of incident at about ) r 1O to 11 am, deceased Chintaman came to him and ade ateent i m stm that both the appeliants were assaulting her, she ad also shown injuries _, h and equested him to inform her parent then he advised er to go to r h police station. Thereafter, at about 3-4 pm she agai came nd was n a sitting beside the road and waiting or bus the she became nconscious. Appellant Ram Sdbhag took her towards his. house and themt her maternal village. o A (14;:h 16.Sameer (PW/8)., owner & driver of Jeep and Mohd. nas PW/)elperzw _ of the Jeep havedeposed that they were called by appellants and hired Jeep saying that his (Ram Shubhag’s) wife Chintamani is in critical position and they have to take her to her maternal village. Both the appellants took the covered body of deceased in the Jeep then theyy; ' proceeded towards in-laws house of appellant Ram Subhag by jeep but before reaching his father-in-laws’ house he stopped the jeep, removed the body of his wife and said that he will take his wife to his father-in- laws’ house and sent them back. Defence has cross-examined these witnesses at length but has not been able to elicit anything in their cross- examination to discredit their testimony specially relating to the fact-that appellants have not assaulted deceased Chintamani, appetlant Ram Subhag along with Jeep owner and jeep driver had not proceeded with the covered body of deceased from his house for the house of father of deceased. Durlabh Chand Vishwas (PW/7) has deposed that between 4:30 to 5:00 pm, on the request of appellant Ram Gopal, he had visited his house and examined wife of Ram Shubhag, whose position was not V l good ‘ and he advised them to shift her immediately to Podi or Katghora f n u I l {5g 7 for treatment. As per evidence of Mohd. Ishaq (PW/5), Sameer (PW/8), Mohd. Anas (PW/14), appeliant Ram Subhag was sitting in the jeep upto the p!ace where he removed the body of deceased from the jeep. Further, as per evidence of Mohd. lshaq (PW/5), Sameer (PWI8), Durlabh Chand Vishwas (PW/7) and Mohd. Anas (PW/14), appellant Ram Gopal was in association with appellant Ram Subhag during the initial part of the incident and as' per evidence of Mohd. lshaq (PW/5), appellant Ram Gopal has also assaulted her but at that time she was alive and was in a position to walk and he has not noticed fatal injuries. As perievidence bf Durlabh Chand Vishwas (PW/7), her position was not good i.e. she was serious but she was still alive. As per autopsy report and evidence of Dr; Raj Shri Singh (PWI12), cause of death was strangulation throttling. In case of throttling the person dies instantaneously. These facts show that at the time of meeting with Mohd. lshaq (PW/5) and her examination by Durlabh Chand Vishwas (PW/7), she was not throttled or strangulated. instead of taking her to her father’s house the present appellant Ram Subhag removed her in way from jeep and had not brought her to her father’s house, inter alia her dead body was found in the dam. Deceased was in custody of appellant Ram Subhag and he was under obligation to explain how she received injuries over the neck, how she died, who has caused injuries and who has thrown the body in the dam but appellant Ram Subhag has not offered any explanation. 17.As per autopsy report, some injuries were found over the body of j. i deceased including injury on the neck. There were also injuries over the v \r \\ remaining parts of the body in addition to injuries found over the neck. Other injuries were not fatal to life but injury found over the neck (throttling) was sumcient for causing death. In these circumstances, evidence coilected on behaif of prosecution is not sufficient to prove the fact that appeiiant Ram Gopai has caused homicidal death of deceased or has caused homicidal death of deceased in sharing common intention and has conceaied the evidence of criminal case. Prosecution has proved the following circumstances against the appellant Ram Subhag: t)“ Deceased was resrding wrth him 2) On the date of Incident she was unconscious 3) Appellant took her In jeep and proceeded towards her fathers house but instead of taking her to his in laws house he stopped the jeep in way and removed his wife from the jeep. 4) He did not take his wife to her maternal house. 5) Murdered dead body of Chintamani was found in the dam «6) Appellant has not offered any explanation that who assaulted herw and who has caused homimdal death when unconscious body of deceased was excluswely in his possesSion. If aforesaid circumstances are considered together then only inference would be possible that appellant Ram Subhag has caused homicidal - 2 death of his wife amounting to murder and has concealed the evidence of criminal case but evidence produced by the prosecution against , appellant Ram Gopal is not sufficient for drawing inference that appellant Ram Gopal has committed homicidal death of deceased or has, concealed the evidence of criminal case. x 18.While convicting and sentencing the appellant Ram Subhag under Sections 302 and 201 of the IPC, court below has not committed any \\ ‘\ \ illegality but while convicting and sentencing appellant Ram Gopal under \ \ @ Sections 302/34 and 201, court below has not considered the aforesaid insufficiency of evidence and thereby committed iilegality. 19.Consequentiy, the appeal is partly allowed. Conviction and sentences of V the appellant Ram Gopal under Sections 302/34 and 201 of the IPC are hereby set aside. He be set at liberty. He be released forthwith, if! not required in any other case. Conyiction and sentences of appellant Ram Subhag under Sections 302 and 201 of the IPC are hereby maintained. . 'i , , i l '\ is ‘2; } SdF ' 3 >R.N. Chandrakar sw— T.P. SHARMA l a 4‘ l ’ Judge . 9mm