Ss' ;s;" M Mf^. m" HIGHCOURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA. & HON'BLE SHRI R.N. CHANDRAKAR. JJ Appellant Criminal Appeal No. 467 of 2001 Gendaram, S/o Jagnunath, aged about 55 years, Occupation Agriculture, R/o Champajhar, P.S. Patna, Tahsil Baikunthpur, Distt. Koria (CG) Versus Respondent State of Chhattisgarh, Through Police Station Patna, Distt. Koria(CG) Present: Mr. Ramakant Pandey, learned counsel forthe appellant. Mr. Kishore Bhaduri, learned Addl. AG forthe State. ORALJUDGMENT (Delivered on 17th September, 2009) PerDhirendra Mishra. J 01. The appellant has preferredthis criminal appeal under Section 374(2) of the Code of Criminal Procedure as he has been convicted under Section 302 ofthe IPC and sentenced to undergo life imprisonment for causing homicidal death of his wife Adhinbai. 02. Case of the prosecution, in brief, is that on 30.7.2000 at about 1 pm the appellant assaulted deceased Adhinbai with c/ancfa (club) under intoxicated condition, and took her inside his house. There was some commotion in the appellant's house at 10 pm. On 31.7.2000 Adhinbai was found dead. Shivmangal (PW 3) todged a report against the appeltant vide Ex.P/4 narrating the above fact. He also gave merg intimation of Ex.P/5. During investigation, inquest (Ex.P/1) over the person of the deceased was prepared in the presence of witnesses. The dead body was sent for autopsy to Govt. Hospital, Baikunthpur vide Ex,P/7 where Dr.DK Chikanjuri (PW 7) conducted postmortem and gave his report of Ex.P/14. Site plan of Ex.P/9 Was prepared by the investigating officer. Weapon of offence-club was taken into possession on being produced by the appellant vide Ex.P/2, Nazri Naksha (Ex.P/6) was got prepared by the Halka Patwari. 03. After completing investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Baikunthpur, who, in turn, committed the case to the Court of Sessions Judge, Ambikapur and the same was received on transfer for trial by the learned Additional Sessions Judge. :I^ '!; i^". igl;-1 %^:; R8^ SIS^ ^gi'" K&',' B^!^ •w' BI' K ES'' ii' Kl v^ ii'f: IIt Kl^ li.lllN' M\ IIJ: 04. Learned trial Court framed charge under Section 302 of the IPC against the appellant, who abjured his guilt. The prosecution in order to establish charge against the appellant examined seven witnesses in all. Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C., in which he denied the circumstances appearing against him in the prosecution case, and pleaded innocence and false implication due to enmity. He also stated that on the date of incident he had gone toVillage Khadagaon to see his mother and returned on the next day, whereupon he learnt about the death of his wife. He also examined Pardeshi in his defence as DW-1. 05. Learned trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as described in para-1 of thisjudgment. 06. Homicidal death of Adhinbai is not in dispute. Even otherwise, from the evidence PW-3 Shivmangal, who claims to have witnessed the incident, and from the evidence of Dr. DK Chikanjuri (PW-7), who conducted postmortem over the person of the deceased and proved his report of Ex.P/14, in which he has found following injuries, and opined that the injuries sustained by the deceased were ante-mortem in nature, she died due to shock as a result of rupture of liver caused by injuries on back of chest and death was homicidal in nature, the homicidal death ofAdhinbai is established. Injuries sustained bv the deceased (i) abrasional marks ranging from Vz' x 14" to 2 ^" x %" blackish, (ii) huge swelling over posterior aspect of chest causing fracture of last three ribs at right side; (iii) abrasion of size 5 x Vz' x 1/2" posterior and middle obliquely placed 07. Learned counset for the appellant submits that conviction of the appellant is based on the evidence of PW-3 Shivmangal, who claims to be an eyewitness of the incident. Evidence of the above witness does not inspire confidence as he claims to have witnessed the incident at 2 pm and thereafter, he goes on to claim that he also witnessed the appellant assaulting the deceased at 10 pm, which is highly improbabte. There is evidence availabte on record to show that Shivmangal had inimical relationship with the ^^sS&^ Slli:;. SISIt"i' Si^' K:?.Eii: appellant and he did not visit the house of the appellant for the last 2-3 years. The trial Court has not considered the defence of the appellant that on the date of incident, he was not present in his house as he had gone to Village Khadagaon to see his mother and returned only on the next day when the offence was already committed. 08. On the other hand, learned counsel for the State supporting the impugned judgment would argue that version of eyewitness Shivmangal is also corroborated from the First Information Report lodged by him, wherein he has mentioned the appellant as perpetrator of offence. It's a house murder. There is evidence available on record to show that the appellant and the deceased were present in the house on the date of incident, and the appellant gave falseexplanation regarding cause of death of the deceased. 09. We have heard learned counset for the parties and perused the material available on record, including the impugned judgment. 10. PW 3 Shivmangal has lodged the report of Ex.P/4 and merg intimation of Ex.P/5 and proved the same. In his deposition before the Court he has stated that the appellant started assaulting his wife after consuming liquor at about 2 pm and thereafter, took her inside the house and made her sleep and stated that she is dead. The information of death came only on the next day. He went to the spot along with other villagers, inspected the dead body and found numerous injuries on her back, face and leg. Thereafter, he lodged the report. He has further stated that the club was seized from the appellant vide Ex.P/2. In the cross--examination, he admitted that he had dispute with the appellant. Omission regarding beating from 10 to 2 in his FIR of Ex.P/4 and merg of Ex.P/5 has been pointed out in the cross-examination. 11. After close scrutiny of the evidence of this witness, we find that he has tried to improve upon his evidence before the Court that after hearing commotion when he wentto the house of the appeltant, he also witnessed the appellant assaulting his wife, though in the FIR and merg intimation, he has only stated that he heard the commotion emanating from the house of the appellant and by the time he reached there, the commotion had stopped. %,y Iffil^:,."1-.:-^. 7V:.:^. ^ •^s-.'.s- ?^^?:.' ;.'i III 9 12. There is unrebutted evidence ofAhibaran (PW-1), Mansai (PW-2) and Pawan Sai (PW-4) that on the date of incident the appellant was present in his house, where the deceased died. PW-2 Mansai and PW-4 Pawan Sai have also stated that on enquiry, the appellant told that his wife died as a result of sickness due to vomiting anddiarrhea. 13. The appellant has tried to take a defence of alibi by examining the defence witness Pardeshi, nephew of the appellant, who has stated that on Sunday the appellantcame to his house and stayed in his house in the night and on the next day, the appellant went to his Village-Champajhar. He (Pardeshi) learnt about the death of Adhinbai on Tuesday. 14. The defence of alibi of the appeltant is apparently an afterthought as would be evident from the evidence of PW-1 Ahibaran, PW-2 Mansai and PW-4 Pawan Sai, who have categorically stated that on the date of incident, the appellant was present in his house, and the above version has not been challenged by the appellant inthe cross-examination. 15. Thus, in view of the fact that the appellant and the deceased are husband and wife and they alone resided together in the house, where the deceased died; the appellant gave false explanation regarding cause of death of his wife and did not offer any explanation as to under what circumstances his wife sustained those injuries, which were found by the doctor performing autopsy, and also keeping in view the evidence of PW-3 Shivmangal, who promptly lodged the FIR against the appellant, we are of the opinion that the triat Court has rightly held the appellant guiltyof the offence under Section 302 of the IPC for committing murder of his wife Adhinbai. 16. In the result, the appeal being without substance deserves to be dismissed and is, accordingly, dismissed. 1 Sd/- Sd/- R.N. Chandrakar Dhirendra Mishra i Judge Judge I ^t