HIGH COURT OF CHHATTISGARH; BILASPUR CORAM z Hon’ble Shri Rajeev Gupta, C.J. an Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1037 of 2002 Atmar‘am Rathia Vs. - State 0f Chhattisgarh JUDGMENT For consideration 1* Sd/— SUNIL KUMAR SINHA Chief Justice Post for Judgment :20/04/ 2009 ' Sdl- Sunil Kumar Sinha, Judge Q i7 /o'4/’200’9 " " Judge HON’BLE SHRI JUSTICE RAJEEV GUPTA ' N, k Sdl- ,g‘w.m%\ a HIGH COURT OF CHHATTISGARH BILASPUR CORAM : Hon’ble Shri Rajeev Gupta, C.J. 8r. ”Hon’ble Shri Sunil Kumar Sinha, J. y \ Criminal Amieal No. 1037/2002 Atmaram Rathia s/o Nanhiram Rafhia, aged about 31 years, R/o village Kataipali P.S. a f Dharamj aigarh, District Rajgarh (C.G) J APPELLANT Versus RESPONDENT State of Chhattisgarh, through Police Station, Dharamjaigarh, Distt. Raigarh (C.G.) (Apgeal under Section 374 12] of The Code of Criminal Procedugl Appearance: Mr. Devesh Chandra Verma, Counsel for the appellant. Mr. V.V.S. Murthy, Deputy Advocate General for the State . JUDGMENT (20.04.2009) /: Following judgment of the Court was delivered by Sunil Kumar Sinha, J, Jl) Appellant Atmaram Rathia stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/—, in default of payment of fine to further undergo R.I. for six months by the IVth Additional Sessions Judge (F.T.C.) Raigarh (C.G.) in Sessions Trial No. 140/2001 on 30.7.2002. W: i r /\ 2 Criminal Appeal No. 103 7/2002 I (2) The allegations are that on 03.7.2001 at about 2.30 p.m., the appellant committed murder of his wife, Laxmi Bai, by throttling. P.W.2 Ram'Das Panika is the Village Kotwar. He lodged the First Information Report, EX.P.1, in Police Statio Dha‘ramjaigarh on 04.7.2001 at about 16.30 hours that on 03.07.2001 the appellant committed murder of his wife by throttling. When he received‘rthis information, he went to the house of appellant Where other villagers were also present. He saw the d‘ead,body of the deceased in side his house. The appellant told them that he has killed his wife by throttling. Lw. us . (3) a On such information, Merg intimation was lodged under EX.P.2; the Investigating Officer went to the scene of occurrence; gave notice to the Panchas and prepared inquest (Ex.P.7) on the body of the deceased. The dead body of the deceased was sent for its postmortem to Government Hospital, Dharamjaigarh under Ex.P.3O where the postmortem examination was conducted by Dr. Anil Kumar Kushwaha (P.W.6) who prepared his report EX.P.11. The autopsy surgeon found as many as 5 external injuries on the neck of the deceased. He noticed fracture of Hyde bone. Lungs were congested. Throat was congested. Pericardium was also congested. Left chamber of heart was empty and right chamber was filled" with blood. He opined that the injuries were antemortem and the cause of death was asphyxia, as a result of throttling and it was homicidal in nature. a . \ n 3 Criminal Appeal No. 103 7/2002 (4) After completion of usual investigation, the charge sheet was filed in the Court of Judicial Magistrate, First Class, Dharamjaigarh, who in turn committed the matter to the Court of Sessions Judge, Raigarh, from where‘it was received on transfer by IVth Additional Sessions Judge (F.T.C), Raigarh, who after conducting trial, convicted and sentenced the appellant, as aforementioned. (5) i l‘I‘he learned Sessions Judge held that the appellant and the deceased were the only inmates of the house at the relevant time. $ The dead body of,the deceased was found inside the house of the appellant and the appellant could not offer any explanation as to how the deceased was put to homicidal death. (6) Learned counsel for the appellant argued that almost all the prosecution witnesses have turned hostile and there is no direct evidence in this case, therefore, the Sessions Court erred in law in convicting the appellant. (7) On the other hand, learned counsel for the State opposed these arguments and supported the judgment passed by the learned Sessions Judge. (8) We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. (9) Admittedly, the deceased was wife of the appellant and both a were residing in the same house. On the fateful day, the L 4 Criminal Appeal No. 1037/2002 24f deceased and the appellant were present in the house and the dead—body of the deceased was found inside the house of the appellant. On postmortem examination, many antemortem injuries were found on the neck of the deceased and the appellant did not offer any explanation as to how the deceased sustained those injuries. ‘ (10) In the matter of Trimukh Maroti Kirkan" -vs‘- State of Mahdrashtra, 2006 AIR SCW 5300, the Apex Court held as follows: £ ........ if an offence takes place inside the privacy of a house and in Such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Court. 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. 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 ris required in other cases of circumstantial evidence. The burden would be of comparatively lighter character. In view of 8.106 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 a n t _ L ! Criminal Appeal No. 1037/2002 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. In case of no explanation or false explanation it would because an additional link in chain of circumstances.” r (11) «In the matter of State of Rajasthan Vs. Kashi Ram 2006 AIR SCW 5768 the Apex Court further held-«as under: £ i “Whether an inference ought to be drawn under Section 106 is a question which must be determined ‘r by reference to facts proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. The respondent, accused having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by S.106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt. The Court further held that: “ .......The Principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which r appears to the Court to be probable and 6 Criminal Appeal No. 103 7/2002 satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of ‘proof’in a criminal trial, which: is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially Within his knowledge and which could not support any theory or hypothesis compatible With his innOcence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd’s case reported in AIR 1960 Madras 218. (12) In the case on hand, the appellant/accused has not thrown any light as to how the deceased was strangulated, how she received injuries and in what circumstances the incident took place. On the contrary, the defence has tried to give a wrong explanation that some food choked the neck of the deceased wh1ch resulted 1n her death In View of the contents of the post- mortem report, the said attempt was nothing but to mislead the Police and to show that the death of the deceased was normal death and certainly this was with an intention to screen the i Vioffence committed by the appellant. 7 Criminal Apgeal No. 103 7/2002 @ (13) In View of the foregoing discussion, we are of the considered opinion that the prosecution has been able to establish the involvement of the appellant in crime in question beyond all reasonable doubts and the circumstances, referred to above, were fully established by the prosecution and the trial Court has rightly held the appellant guilty of the offence punishable u/s 302 IPC. r M (14$ “The appeal is devoid of merits; the same is liable to be and is k accordingly dis‘missed. ‘ (A ' Sdl- a ° ' l Sunil Kumar Sinha Judge -v-..— Sdl— Chief :Ipstice /Rao/