HSGH COURT OF CHHATTiSGARH AT BILASPUR Criminal teoeai No.245 of 2007 Coram: HON'BLE HON'BLE MR.R.L.JHANWAR, JJ. APPELLANT (!n Jaii) RESPQNDENT Tularam Sahu S/o Motil Lai Sahu, aged about 25 years, R/o Vil!age- Chandarpur, P.S. Surajpur, District Surguja (C.G.) Versus State of Chhattisgarh, through P.S. Surajpur, Distt.Surguja (C.<G.' (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE CR!M!NAL PROCEDURE, 1973} Mr.R.KJaiswai and Mrs.Ranjana Jaiswal, counsei forthe appei Mr.D.K.Gwaire, Govt.Advocate forthe State/respondent. (Passedon6e'Aprii,2011) 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 28.6.2003 passed by the Sixth Additionai Sessions Judge (F.T.C.), Surajpur in Sessions Trial No.10/03, whereby & whereunder iearned Sixth Additional Sessions Judge after hoiding the appeiiant guiity for commission of cutpable homicide amounting to murder of his wte Laxmaniya convicted him under Section 302 of the i.P.C. and sentenced to undergo imprisonment for life. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the ^spetiant as aforementioned and thereby committed illegality. 3. As per case of prosecution, appellant and deceased Laxmaniya wers residing together in the same house at vlllage Chandarpur, Pdics Stetion Syrajpur. On the Tateful night of 16.11.2002 at about 8 p.m. the appellant was present in his house with his wife, he has stranguiated the neck of his '\ ^,f '"'•ii~ Tr?: wife and caused her instantaneousiy death. When neighbours came and asked, then the appeiiant has offered faise explanation that his wife died as a resuit of heart fail. Finalfy merg was recorded vide Ex.P/2. F.I.R. wSs iodged vide Ex.P/6. Snvestigating officer proceeded for scene of occurrsnce and after summoning the witnesses vlde Ex.P/3, inqu^t over dead body of the deceased was prepared vide Ex.P/4. Dead body of Laxmaniya was sent for autopsy to Community Heaith Centre, Surajpur vide Ex.P/5 where Dr.S.LJayaswal (PW-1) ©onducted autopsy vide Ex.P/1 and found foiiowing injuries:- (i) Multipie bruises over the chest with sweiiing. (ii) One bruise over anterior aspect of neck surrounding back part ofthe neck with swelling breath of bruise was 1" (iii) Bruises with redness over both shoulders. (iv) Subcutaneous was found beiow ligature maik. (v) Brain, trachea and left lung were congested. Cause of death was asphyxia as a result of stranguiation. Death was homicidal in nature. Spot map was prepared by investigating officer wde Ex.P/7: 4. Statements of the witnesses wsre recorded under Section 161 of the Code of Criminai Procedure, 1973 (for short 'Code') and after completion of investigation charge sheet was filed before the Addltional Chief Judicial Magistrate, Surajpur, who in turn, committed the case to the Court of Sessions, Ambikapur, from where leamed Sixth Additionai S^sions Judge (F.T.C.), Surajpur received the case on transfer for frial. 5. !n order to prove the guilt of the accusetyappeilant, prosecution has examined as many as nine witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him and ciaimed innocence and falss implication In crime in question. 6. After affording an opportunlty of hearing to the parties, leamed Sixth Additionai Sessions Judge convicted and sentenced the appellant as aforementioned. -X •y\i ::.^ 7. We have heard ieamed counse! for the parties, pemsed the judgmait impugned and record ofthe trta! Court. » 8. Leamed counsel for the appeiiant vehemently argued that hn ths present cass prosecution has not adduced any evldence to connect the appellant in the crime in question, even prosecution has not seized ligature mark. In absence of any evidence to connect the appeilant in the crime In qu^tton conviction of the appellant is not sustainabie under the iaw. 9. On the other hand, leamed State counsel opposed theappeal and argued that the deceased wrife of the appellant died in the house of the appellant as a resuit of stranguiation. The appeilant was present at the time of such incident; no other persons were present in the house. The offence committed in secrecy, therefore, t'ne appeltant was under obiigation to offer explanation in terms of Section 106 of the Evidence Act snd in absence of such expianation and on the basis of aforesaid cireumstances, oniy inference woutd be possibte that the appeiiant has committed murda- of his wife. After appreciating the evidence available on record, the triai Court has convicted and sentenced the appeilant as aforementiqned. 10.in order to appreciate the arguments advanced on behaif of the parties, we have examined the evidence adduced on behaif ofthe parties. 11.1n the present case, homicidai death as a rssuit of stranguiatlon of Laxmaniya has not been substantiaily disputed on behaifofths appellant, even otherwise, it is estabiished by the evidence of S.LJsyaswal (PW-1) and autopsy report Ex.P/1. Death of Laxmaniya was homtotdai in nabjre. ' 12.As regards the complicity oT the accused/appeliant in the crime in question, conviction is substantially based on oircumstantlal evidewe. In order to connect the appeliant in the crime In question, prosscution has tried to prove the foliowing circumstances, i) Appeltant and deceased were husband & wife arni they were residing together in thesame house. i!) On 16.11.2002 at about 8 p.m. only appeilant anddeceased were pr^ent in their house. iii) The deceased was died as a resuit of strangulation and death was homicida! in nature. iv) The appellant was under obllgation to offer exj5!anation ihat how Laxmanyia died and who has caused such Injury. v) The appeltant has offered expianation that Laxmaniya died as a resuit of heart fail which was found false. 13. While deaiing with the question of convictionbased on cfrcumstantiai evidence, the Supreme Court in the matter of Kusuma Anltama Rao v. State of A.P.1 has held that in case of conviction based on circumstantiai evidence, prosecution 1s required tosatisfy the foiiowing circumstances, (i) the circumstances from which the conciusion of guiit is to be drawn should be fuily established. The circumdances concerned 'must' or 'should' and not 'may be' established; (ii) the facts so established shouid be consistent only wtth the hypothesis of the guilt of the accused, that is to say, they should not be expiainabie on any other hypothesis except that the accused is guiity; (iii) the circumstances should be of a conciusive nature and tendency; (iv) they shoutd exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so comptete as not to teave any reasonable ground for the conctuslon consistent with the innocence of the accused and must show that in al! human probabiiity fhs act must have been done by the accused. 14.1n the present case, relationship behween appdiant and d^eased has rx>t been disputed, on the other hand, the appellant has admitted relationship by answering question Nos.13 and 23 under Section 313 ofthe Code. As per evidence of Smt.Babi (PW-2) and Hari Prasad (PW-5), th8 appetiant was present in his house when they went to the house of the appellart and dead body of Laxmaniya was lying in the room. The present appeliant has offered explanation that his wife died as a result of heart faii. As per evidence of Dr.S.L.Jayaswal (PW-1) and autopsy peport Ex.P/1, death of Laxmaniya was homicidal in nature. These evidences are '2008 AiRSOfV 4669 '/' '^ sufficient to establish the fact that at the time of incBJent only the appeliant and the deceased were present in their house. IS.incident commltted in secrecy. The appeltant was under obiigatlon to offer explanation in accordance with Sectioo 106 of the Evidence Act that who has caused injury to his wife and how she died. As hetd by the Supreme Court in the matter of Trimukh Maroti Kirkan v. State of hflaharashtra2, in case murder committed in secrecy inside a house, the initlai burden to estabiish 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 circumstantiai evidence. Para 15 of the said judgment r^idsas urrier:- ''15. Where an offence iike murder is committed jn secfecy inside a house, the initial burden to establish the case woyld undoubtediy be upon the prosecution, but the nature and amount of evidence to be led by it to establish the chsrge cannot be of the same degree as is required In other cases of circumstantial evidence. The burden would of a comparativeiy iighter character. In view of Section 106 of the Evidence Ad thsre wil! 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 expianation on the supposed premise that the burden to establish its case Ues entirety upon the prosecution and thers Is no duty at al! on an accused to offer any explanation." 16.1n absence of any explanation, the only inference would be possible that the appeiiant has caused homicidal death of his wife. 17.After appreciating the evidence avallable CTI record, lesffned Sixth Additional Sessions Judge (F.T.C.), Surajpur has convicted arei sentenced the appeilant as aforementioned. 18.0n ciose scrutiny, we do not flnd any illegality in convtcSion and sentence of the appeilant. 19.Consequent!y, the appeat being devoid of merit is liabte to |3e dismissed and it is hereby dismissed, ——~ g^y ^ I Sd/- R.L.JHANWAR \ T^Stlai"ma \ Judge l Judge : '(2006) 10 SCC 681