HIGH COURT OF CHHATTiSGARH : BILASPUR DfVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR, JJ. CriminalaDpeal No. 244 of 2007 APPELLANT (in custodv) RESPONDENT Michha Ayatu, Spo Michha Hunga, caste IViuriya, aged 25 years, village Pindumpa!, Sarpanchpara, Police Station Jangla, Dist. South Bastar, Dantewada (C.g.) VERSUS State 6f Chhattisgarh through Poiice State Jangla, Dist. South Bastar, Dantewadar (C.G.) CRIMENAL APPEAL UNDER SECTION 374 12} OF THE CRIMINAL PROCEDURE CODE L Appearance: Shri Vimlesh Bajpai, counsei for the appellant. Smt. IVIadhu Nisha Singh, P.L. for the State. JUDGMENT (Passedon 17.03,2011) Challerige in this appeal is to the judgment of convietion and order of sentence dated 26ih February 2007 passed in S.T.No.101/2004 by the Sessions Judge, South Bastar, Dantewada whereby and whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife, the Court below convicted the appellant under Section 302 of the I.P.C. and sentenced to imprisonment for life vvith fine of Rs.100/- and in default to further undergo R.l. for one month. 2. The conviction is impugned on the ground that without iota of evidence on record, the Court below convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of the prosecution, in the inten/ening night of 13.03.2cx)4 and 14.03.2004 between 8.00 p.m. to 7.00 a.m. morning the present appellant was present in his house aiong with his wife Mangli Bai. He caused fatal injuries to his wife by axe resulting into her death. On "<»,. \ JJ '> 'tes^y '^»3y '•StgE-S second morning, incident was noticed by P.W.2 Michha Kowaram whom the appellant has also made extra judicial confession. Thereafter, P.W.2 Michha Kowaram went to police station and lodged F.1.R. vide Ex.P.12 and merg was recorded vide Ex.P.13. Investigating OfRcer left for scene of occurrence and after summoning the witnesses vide Ex.P.3 and P.4, inquest over the dead body was prepared vide Ex.P.5. Spot map was prepared vide Ex.P.14. Dead body was sent for autopsy to Primary Health Center, Bairamgarh and P.W.1 Dr. •Gajendra Singh Dhruv conducted autopsy and found following injuries: 1. Two lacerated wounds of 3" x1" x1 " over left shoulders. 2. One incised wound of 1" x1" x 1" over left side of neck. 3. Two lacerated wounds of 1" x1" x 1" over chin. IVIode of death was coma and death was homicidal in naturs. Bloodstained and plaint soil were recovered from the sport vide Ex.P.7. Axe was seized from the appellant vide Ex.p.8. Patwari prepared spot map vide Ex.P.9. Sealed cloths of the deceased were seized vide Ex.P.15. Seized articles were sent for chemical examination vide Ex.P.17. 4. StatementsofwitnessesunderSection161oftheCodeofCrimina! Procedure, 1973 (for short 'the Code') were recorded. After compietion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Dantewada, who in turn committed the case to the Court of Sessions, Dantewada. 5. In order to prove the guilt of the appellant, prosecution has examined as many as 6 witnesses. The appellant was examined under Section 313 of the Code in which he denied the cireumstances appearing against him and pleaded his innocence and false impiication in crime in question. 6. After providing opportunity of hearing to the parties, the learned Sessions Judge, Dantewada convicted and sentenced the appellant as aforementioned. 7. Shri Vimlesh Bajpai, learned counsel for the appellantand Smt. Madhu Nisha Singh, learned counsel for the State heard. Perused the impugned judgmentand record ofthe Court betow. Sh 1 "9i b 8. Leamed counsel for the appellant submitted that on the date of incident, the appetlant was badly tired and he was sleeping in the house. He was informed by Kudiyam Banje that his wife is dead. He has not committed any offence and has not committed murder of his wife. He has been falsely implicated in crimein question. *^ 9. On the other hand, learned counsel for the State opposed the appeal submitted that appellant and the wife of the-appeltant Mangli were present in the house. The deceased Mangli Bai died as a result of fatal injuries. The offence committed in secrecy and the appellant was under obligation to offer explanation that how his wife has died and who has caused injury to her but he has not offered any such expianation in terms of Section 106 of the Evidence Act. The aforesaid circumstances are sufficient for drawing inference that the appeliant has committed homicidal death amounting to murder of his wife. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of fatal injuries found over the dead body of Mangli Bai has not been substantiatly disputed on behalf of the appellant, on the other hand also established by the evidence of Dr.Gajendra Singh Dhruv P.W. 1 and autopsy report Ex.P.1 and death ofMangli Ba! was homicidal in nature. 11. As regards complicity of the appellant in crime in questionr conviction of the appellant is substantially based on circumstantial evidence. While dealing with the question of conviction based on circumstantial evidence, the Supreme Court in the matter of Kusuma Ankama Rao v. State ofA.P. 2008 AIR SCW 4669 has held that in case of conviction based on circumstantial evidence, prosecution is required to satisfy the following cireumstances, (i) the circumstences from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (ii) the facts so established should be consistent only with the hypothesis of the guilt 6f the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the oneto be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done bythe accused. 12. In the present case, the prosecution has also proved the following case/circumstances: 1) The appellant and deceased Mangli Bai were present in one house at the time of incident. 2) No other person was present in the aforesaid house. 3) Deceased Mangli Bai found dead, as a result of fatal injuries. 4) Appellant was under obligation to offer explanation but he has not offered any explanation in terms of Section 106 ofthe Evidence Act. 13. In the present case, as per evidence of P.W.2 Michha Kowaram, he was informed by Kudiyam Banje relating to incident. He went to house of the appellant and found injured dead body lying in the house of the appellant. He noticed three injuries over the dead body of Mangli Bai. The appellant was also present in his house. The defence has suggested this witness that on being asked, the appellant has offered explanation that he has not caused any injury to his wife and he did not know who has caused injury to his wife. Evidence of other witnesses also reveals that injured dead body was found in the house of the appellant and the appellant was also present in the house. The appellant himself has taken defence that he was present in the house. Appellant has not lodged any report. Except appellant and deceased, nobody was present in the house: of the appellant at the time of commission of incident. ^ ^ 14. If the aforesaid circumstances are taken into consideration together, then the only inference would be possible that only the appellant has caused homicidal death amounting to murder of his wife Mangli Bai. 15. After appreciating the evidence available on record, the learned Sessions Judge has convicted and sentenced the appellant as aforementioned. 16. On close scrutiny of the evidence, we do not find^ny illegality in the conviction and sentence of the appellant. 17. Consequently, the appeal being devoid of merit is liable to be and is herebydismissed. ;—, 'Y SdA , | T"^^"' sd/" ^RSharma ^~ \ ^A..JHANWAR Judge F , 3udge ^ ^