^••S's-i.iEi^c^E HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAIVI: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Criminal ADpeaF No.226 of 2006 Ram Vichar Kerketta and another -Versys- State ofChhattisgarh. JUDGIVIENT FOR CONSIDERAT10N Sd/- T.P. Sharma Judge HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- R.L. Jhanwar Judge th Post for pronouncement of judament on11"' Mav, 2011 Sd/- 11-5-2011 HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANTS/: (Accused) (In Jail) Criminal Appeal No.226 of 2006 1. Ram Vichar Kerketta S/o Shri Mangaru Ram, aged about 28 years 2. Balkumari Bai W/o Ram Vichar Kerketta, aged about 22 years (Both are R/o Village Ghutarapara, P.S. Batauli, Distt. Surguja(C.G.) Versus State of Chhattisgarh, Through P.S. Batauli, Distt. Surguja (C.G.) RESPONDENT: {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. Abhay Tiwari, counsel for the appellants. Mr. J.A. Lohani, Panel Lawyerforthe State/respondent. JUDGMENT (11th May, 2011) The followina iudament of the Court was delivered bv T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 2-2-2006 passed by the 3 Additional Sessions Judge (FTC), Ambikapur, in Sessions Trial No.124/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of first wife of appellant Ramvichar Kerketta namely Tirango Bai in sharing common intention with the co-accused, convicted the appellants under Section 302 read with Section 34 of the IPC and sentenced each of them to undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further undergo Rl for one month. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 3. As per case of the prosecution Tirango Bai (since deceased) - first wife of appellant Ramvichar Kerketta was residing with the appellants and her one daughter & one son at Village Ghutarapara.in the same house, in the intervening night of 1-2-2005 and 2-2-2005 deceased Tirango Bai was present in the house of the appellants along with the appellants, on second day morning i.e. on 2-2-2005 she was found dead in the house of the appellants on account of the injuries sustained by her, brother of appellant Ramvichar Kerketta i.e. Baldeo (PW-1) was informed by appellant Ramvichar Keketta and at his instance, Baldeo (PW-1) went to the police station and lodged merg vide Ex.P-16. On the basis ofenquiry ofmerg, finally FIR was registered vide Ex.P-5. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-9, prepared inquest over the dead body of the deceased vide Ex.P- 8. Spot maps were prepared by the Investigating Officer vide Exs.P-6 & P-7. Dead body was sent for autopsy to Community Health Centre, Batauli vide Ex.P-10. Dr. Anupam Minj (PW-6) conducted autopsy vide Ex. P-3 and found following injuries: - (1) Blood in the mouth spread up to right cheek and temporal region. (2) Redness in rightjaw and right cheek. (3) Two scratches in right cheek of 1 c.m. size. (4) Abrasion of 2 c.m. x 1 c.m. on right side of neck. (5) Abrasion over index finger of left hand. ^, On internal examination, fracture of greater cornea of hyoid bone and piece of bone inserted inside the neck were noticed. Mode of death was .1. .^ .. ':.t' asphyxia as a result of throttling and death was homicidal in nature. Sealed clothes of the deceased were seized vide Ex.P-11. Patwari prepared spot map vide Ex. P-4. Clothes were sent for chemical examination and presence of blood was confirmed on sari and bed sheet vide Ex.P-17. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Ambikapur who committed the case to the Court of Sessions, Ambikapur, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt ofthe accused/appellants, the prosecution has examined as many as nine witnesses. The accused persons were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellants in the aforesaid manner. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants vehemently argued that as per initial case of the prosecution, deceased Tirango Bai - first wife of appellant Ramvichar Kerketta was residing with the appellants along with her two children in the same house, on the date of incident, Tirango Bai was found dead as a result of injuries and her death was homicidal in nature. In these circumstances, persons residing in same premises were under obligation to explain the injuries and cause of death of deceased Tirango Bai in terms of Section 106 of the Evidence Act. The appellants have offered explanation at the initial stage through brother of appellant Ramvichar Kerketta vide merg Ex.P-16. Explanation from son & daughter of deceased Tirango Bai was also required. The prosecution has examined son ofTirango Bai namely Kartik Kerketta, aged about 15 years, as PW-2 but for the reasons best known to the prosecution, the prosecution has not examined daughter of Tirango Bai namely Amita who was also present in the same house. Appellant Ramvichar Kerketta was sleeping with his second wife namely appellant Balkumari Bai in one room and Tirango Bai (since deceased) was sleeping with her son & daughter in another room. Therefore, virtually, heavy duty to explain the circumstances was on son and daughter of the deceased, but they have not offered any explanation and the prosecution has not made son & daughter of the deceased as accused, probably, the prosecution itself has decided to prove culpability of the appellants by excluding the culpability of son & daughter of the deceased which is not permissible under the law. Learned counsel further argued that in absence of any explanation on behalf of son & daughter of the deceased, the appellants are not liable for commission of offence. Conviction of the appellants under Section 302 of the IPC is not sustainable under the law. 9. On the other hand, learned State counsel opposed the appeal and submitted that the appellants were having grudge against deceased Tirango Bai - first wife of appellant No.1 Ramvichar after his second marriage with appellant No.2 Balkumari, both the appellants were having motive for finishing deceased Tirango Bai and they are responsible for death of Tirango Bai. Circumstances proved by the prosecution are sufficient for drawing definite conclusion that only the appellants have /• committed the offence with intent to cause the murder of deceased Tirango Bai. After appreciating the circumstantial evidence adduced on behalf of the prosecution, the trial Court has rightly convicted and sentenced the appellants as aforementioned. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution in the light of defence taken by the appellarits. 11.1n the present case, homicidal death ofdeceased Tirango Bai as a result of throttling by use of criminal force has not been substantially disputed on behalf of the appellants, even otherwise, it is established by evidence of Dr. Anupam Minj (PW-6) and autopsy report Ex. P-3 that death of deceased Tirango Bai was homicidal in nature. 12.As regards complicity of the appellants in the crime in question, Baldeo (PW-1) - brother ofappellant Ramvichar, Kartik Kerketta (PW-2) - son of appellant Ramvichar & deceased Tirango Bai, who was residing with the appellants, have not supported case of the prosecution and the prosecution has declared them hostile. 13.As per evidence of Baldeo (PW-1), who has lodged merg vide Ex.P-16 in which it has been specifically mentioned that dead body was lying in the room of house of the appellants, he has deposed that he was informed by Prem & Rasukhlal that dead body of Tirango Bai was lying under mango tree, then he went near mango tree along with 10-12 persons where he found dead body of Tirango Bai and then they took the dead body in their house. He has denied the contents of Ex.P-16 and the statement given by him under Section 161 ofthe CrPC. 14.Kartik Kerketta (PW-2) has also deposed same thing. The prosecution has declared both the witnesses namely Baldeo (PW-1) & Kartik Kerketta (PW-2) as hostile. Kartik Kerketta (PW-2) has also deviated from his statement recorded under Section 161 of the CrPC as Ex.P-2, but in his cross-examination (para 7) he has specificallyadmitted that at the time ofdeath ofthe deceased, he along with both the appellants, the deceased and his sister were residing in one room in his house. 15.As per evidence of Bhonda (PW-3) & Smt. Dholi (PW-4), father & mother of the deceased, respectively, dead body of the deceased was found in the room of the appellants. Nothing has been suggested to these witnesses relating to the fact that dead body was lying under mango tree. Lal Bahadur (PW-5) - brother of the deceased has also corroborated the evidence of Bhonda (PW-3). 16.As per evidence of Investigating Officer B.L. Singh (PW-8) and Dhaneshwar Baeg (PW-9) - Head Constable, merg Ex.P-16 was recorded as per the information given by Baldeo and they have investigated the offence as per rules. 17.Evidence of these witnesses reveal that dead body of Tirango Bai was found in the room of the appellants and her death was homicidal in nature, as a result of throttling. These evidence are sufficient to discard the partof testimony of Baldeo (PW-1) & Kartik Kerketta (PW-2) relating to the fact that dead body was lying under the mango tree. These evidence are afso sufficient for drawing inference that homicidal death of Tirango Bai has been caused inside the room of the appellants. 18.0n the date of incident, the appellants, son & daughter of appellant Ramvichar & deceased Tirango Bai along with deceased Tirango Bai were present in the same house and same room where Tirango Bai died. In these circumstances, the offence was committed in secrecy within the knowledge of the appellants, son & daughter of appellant No.1 & , deceased Tirango Bai namely Kartik Kerketta (PW-2) & Kum. Amita. 7 The prosecution has not examined Kum. Amita. Persons residing in the room/house at the time of incident were under obligation to offer explanation in terms of Section 106 of the Evidence Act and in absence of such explanation, as held by the Supreme Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681, the only inference that the offence has been committed by the persons who were present at the time of its commission, would be possible. 19.Definitely, in the present case, all the persons residing in the room have not offered any explanation. Kartik Kerketta (PW-2) and his sister Kum. Amita are son & daughter of appellant No.1 Ramvichar who were residing with appellant Ramvichar under his umbrella, but it does not exclude them from offering explanation. The appellants have not offered any explanation that they have not committed the offence and Kartik Kerketta (PW-2) & his sister Kum. Anita have committed the offence or have caused homicidal death of their mother. In these circumstances, only inference sustainable under the law would be possible that the appellants herein have committed homicidal death of Tirango Bai, may be in sharing common intention with other persons namely Kartik Kerketta (PW-2) and Kum. Amita or may not be in sharing common intention with aforesaid son & daughter of the deceased. Only by not impleading son & daughter of appellant No.1 Ramvichar Kerketta & deceased Tirango Bai namely Kartik Kerketta (PW-2) and Kum. Amita, liability ofthe appellants herein cannot be absolved. 20.After appreciating the evidence available on record, especially, the circumstances established by the prosecution, the trial Court has convicted & sentenced the appellants as aforementioned. Conviction & sentences of the appellants on the basis of circumstances are sustainable under the law. While convicting & sentencing the appellants the trial Court has not committed any illegality requiring any interference. 21.Consequently, the appeal is devoid of merit, same is liable to be dismissed and it is hereby dismis? / Sd/- T.P. Sharma Judge Sd/- <-l-^hanw/ar Judge Soma