J-AB&LPUR Oivision Bench (Criminaf^ Critninal Appeal Ho, S'^8 /99 APPELLA-i' 1 Metiabir v. RESPOHD3 NT The State of M.S. CBIMINAL PSSL UNDER SECX'ION 374(2) C8

Hon'ble^ShriL^;. Bhadoo & Hon'ble Shri Dhirendra Mish 1-a. JJ. 23-2-2007:- ^iTZlfe*!'WRff if tecrfr (f^RSR ^sTf^R'sn^r Miss Nirupama Bajpai, Mr. Sudhir Bajpai, Depi ^ounsel for the appeltant. )ty Govt. Advocate for the State/respondent. Oral judgment dictated t>n Dafe. Per L.C. Bhadoo. J. This appeal is directed of sentence dated 9 January Judge, Bilaspur, Link Pendra ^igainst the judgment 6f conviction and order 11999 passed bythe 4 Additional Sessions in S.T. No.241/98 whereby learned Road, Additional Sessions Judge a1 commission of offence under |er holding the accused/appellant guilty for ISection 302 ofthe I.P.C., sentenced him to undergo imprisonmentfor life. The case of the prosec incident father of deceased that day, in the evening at to the house of his father-in-1 |;ution is that one day prior to the day of the S^iraswati had gone to village Sindhaura. On altout 6 p.m. accused/appellant Mahabir went aw Ratiram. He stayed there for a night but in the wee hours on 21/5/9< without informing anybody he left for his village Visheshara. On th^ day at about 11 a.m. Kotwar of viilage Visheshara came and info 1-med Laliya Bai (R/V-3), mother of deceased, that if she wants ti| village Visheshara. Therea^ informed Laliya Bai that her| which Laliya Bai along with| see face of her daughter, she should go to ^er, Kotwar of village Sarbehra Ramhai daughter has died in her in-laws house, on her sister Sonkunwar (PW-2) went to the P.T.O. XI-HC-78 3^T '<<l<llc1'll, ®Tf)<-l*ld, fsldltiy *11*^TT ShHlch ^T 200 311^1 4a<»> (iyi^°<<^!ST) sn^refirR-ficb (W3TCTsb>i|cti s^ciTWflfN'sn^r ^Flfeft;T WRcff ff fet^ rfsTRTC ^ari^q'sn^r village Visheshara and saw Sarlaswati ir|aswati on the spot. Sarpanch and Kotwar of the village were sitting. body of Saraswati. They saw region, which raised doubt, the^ Sarp^nch tHat asked them that they can go and see there were injuries on waist and gluteal asked the accused not to burn the body, they went and reported the maj matter which they were informed that] station, by thattime night had a| in village Sarbehra. In the nigM to the police station Pendra Road, on the matter relates to the Marwahi police |ready set in, therefore, they returned back Ratiram had already returned and he was informed about the incident i.ej death of Saraswati. Thereafter, Ratiram s[tation Marwahi and lodged merg intimation and his wife went to the police ^ Ex.-P/1. The station house to the village Visheshara, after giving notice on the body of Saraswati. At tl| o|fficer police station went |to the Panchas, prepared inquest Ex.-P/S ie time of preparation of inquest, panchas (ere of the opinion that Saraswati has been who were present on the spot v| her vaginal part. The body of Saraswati murdered by inserting a Lathi i| where Dr. A.R. Karoriya (PW-10) |the postmortem and prepared postmortem cause of death was hypovolaemic shock was sent for postmortem with Dr. S.P. Shukla conductedl report Ex.-P/10 and opined tha| exantiination due to excessive haemorrhagl receiving postmortem report, registered. j^ from vagina, cervix and uterus. After Information Report Ex.-P/11 wa.s First After completion of the ir) ir^vestigation, charge sheet was filed against the accused in the court of Jud committed the case to the Sesl |icial Magistrate, Pendra Road, who in turn iions Judge, Bilaspur, from where learned Additional Sessions Judge recelived the case on transfer for trial. P.T.O. '?-& XI-HC-78 3^ "i|l'4H'4, ES'Tny'ie, (siiiiyy,< HI+1WI ShHlch ¥R; 200 3<1^!*1 4sl* ('i^S-l'a't.ff) an^rwR-ii* trairsn^rgiiTR; ?T(ITW:Hf?(T3TI^T »hl^Td''fl-lWRfffffe><fl <RIW,K ^arf^iTsn^r The prosecution in o rder to establish the charge against accused examined 13 witnessles. Statement of the accused was recorded under Section 313 of the Cr.lf.C. in which he denied material appearing against him in the prosecu|tion evidence, stated that he has been implicated merely on the suspjcion. On the date ofthe incident he was not at his residence, since last|15 days he was in Deori Khurd at residence of Santu. Sarasw^ti was not well. There was bleeding on account of which she became| weak and there was swelling on her body. There were wounds in the vagjnal part, therefore, she died. Two witnesses namely DW-1 Mangooradhin ^ai and DW-2 Santu Ram were examined in defence. Learned Additional S essions Judge after hearing counsel for the respective parties, perusing fhe record, convicted and sentenced the accused as aforementioned. We have heard judgment and record ofthe tria counsel for the parties and perused the Court. At the outset, learned c ounsel for the accused/appellant submitted that death of deceased Saras(fl/ati was not homicidal. She was suffering from illness and on account of developed in private parts and, bleeding she became weak, even wounds therefore, she died. On the other hand, l^arned counsel for the respondent/State supported the judgment of the l|rial Court. In order to appreciate atguments advanced by learned counset for the appellant, we have perus|sd post mortem report Ex. P-10 as also evidence of Dr. A.R. Karoriya (pW-10) one of the doctors who conducted post mortem on the body of S^raswati. He has stated that on 23.5.1998 P.T.O. 'Xr XI-HC-78 3 T 3(FIT?PT, (SiTfi^'ls, Rlcll+l^ iTW^TTgi^lcb wr 200 ail^l 4d* ('i^Ig'^^) sn^T^iTls-lich aw sii^i *ti ?RITWHf?(T3n^T t+ii-yit-i'fl-i KitidTirfal<? <.Riwi< ^sri^TTsn^r 'n the body of the deceased, there were he conducted post mortem <| miggots in the body. Body w^ the body, body was in swollen s putrefied and smell was emanating from condition, there was swelling on her private parts, there were contusions ii|i both gluteal region three in number which appeared to be ante mortjem in nature. Four contusions in the infrascapular region covering ^he both sides of thorax (posterior aspect). On account of injuries on priv^ite parts and excessive bleeding and shock In cross- Saraswati died. In his opinior) death was homicidal in nature. examination he has stated th^t injuries found on the private parts were therefore, he has |?pined that death was homicidal. He has unnatural, further stated that there was | clotted blood and there were injuries on private parts, such injuries cc]uld not have been caused on account of menstruation cycle. Doctor h^s categorically stated that injuries which were found on the private partsj, gluteal region as also infrascapular region in nature. There is no establish the fact that deatH was homicidal explanation coming forth frorr( the accused that how contusions were present on the body of Saras|wati over gluteal as well as infrascapular region. These injuries could n^. be caused on account of illness. These injuries coupled with the evid^ nce of PW-5 Ramcharan who has stated that accused made extra judic injuries to his wife by inserting ^ Lathi in her private parts establishes that death ofthe deceased was honticidal in nature. ial confession before him that he caused As far as the involvem ^nt of the accused/appellant in crime in question is concerned, in this i|;ase there is no direct or ocular evidence. tn order to base The whole case rests on the bircumstantial evidence. conviction on the circumstantia evidence, the Hon'ble Apex Court in the P.T.O. /.r~' ^-•^ XI-HC-78 7=r "4|^|cf'4, (Sifl^'is, Ridi'My qTqcll sh*1ich WT 200 341^1 y^* (^t^^ff) 311^1 qirR-l (WT^II^Isbll'* ?R(TW:?rf?cT3n^r iWlfefrq-WRtf ff te^'tfeSR ^sTl^irsn^r matter of Dhananjoy Chatteijee Vs. State of W.B. reported in (1994) SCC220heldthat "In a on circumstantial evidence, case base which the conclusion of guilt is to be circumstances from drawn have not only] to be fully established but also that all the cireumstances s<)> established should be of a conclusive nature and consistei|it only with the hypothesis of the guilt the accused. Those circumstances should not be capable of being ex^lained by any other hypothesis except the guilt of the accus]ed and the chain of the evidence must be so complete as n|ot to leave any reasonable ground for with the innocence of the accused.It the belief consistent needs no reminder 1 hat legally established circumstances and not merely indig|nation of the court can form the basis of conviction and th^ more serious the crime, the greater should be the care Itaken to scrutinize the evidence lest suspicion takes the p|lace of proof." The prosecution has tried to e^tablish the charge against the accused on the basis of following circumsta]i nces:- (i) The accused mad^ extra judicial confession before PW-5 Ramcharan and othe r persons; Homicidal injuries we^-e found on the body ofthe deceased. Learned counsel for the accused/appellant argued that at the time of death of the deceased accu established by the evidence of ' sed was not present in his house which is iefence witnesses. Even though, DW-2 Sarjtu Ram has stated that since last 15 days the accused was working at t(is residence but his evidence cannot be believed in the face of evidenc^ of Ramcharan PW-5 who has stated that when they went to the house | Saraswati, wife of the accused, rf the accused after hearing the death of ^he accused was present in the house. On P.T.O. '£-'^ XI-HC-78 3^cT "i|l<l<lcl'i|, »xn<d'16, Rlcliyy (nNcri s»i*n^i ^ 200 311^!jl| Md* (li,<:l(^G"«,gr) sn^TqiiR^itti craT3lK<!!lstit||cb ?TciTW;?rf?(r3n^?r +l^?f<'i|1-< ^IKdT^'fScil'<(al<^K ^a.rf^Tsn^T inquiry the accused in the fir^ t instance said that he has not committed any crime. However, thereaf ter, when they took Mahavir aside and inquired from him, then he sa|i id that he has committed the murder of his wife by inserting a Lathi in hei) the confession was voluntary 41 vagina. Now the question remains whether nd true? Learned counsel for th^ appellant further submitted that at the time of making extra judicial conf^ssion judicial confession made by th^ police was present, therefore, extra accused cannot be said to be voluntary. But the evidence of O police came in the house initi and denied the crime. Thereal initial VV-5 Ramcharan shows that even though lly the accused did not disclose anything ter, he was taken aside where the accused came out with a confession he has committed the murder of his wife by inserting a Lathi in her vagi taken aside, there he disclosei be held that the said extra judii police. As far as truthfulness support from the medical evh there were injuries on gluteal were also in vaginal part. The be self inflicted. Therefore, in judicial confession that he cau private part of the deceased evidence, therefore, extra jud voluntary and true. PW-5 Ra |nal part. Therefore, when the accused was (I this fact to the villagers, as such it cannot ^ial confession was made in presence of the |of the confession is concerned, that finds ience in which the doctor has stated that ^s well as infrascapular region and injuries said injuries were unnatural which cannot |the first instance, the accused made extra ^ed those injuries by inserting a Lathi in the (which stands corroborated by the medical i|cial confession made by the accused was ilncharan has stated that the accused was present in the house, therefor ^, defence of the accused that he was not P.T.O. ,(="''^ XI-HC-78 'Svl "l<|<l|d<), »T(1+I'IS, (slOI'My +11*<MI sh+llth ^ 200 311^1 Mach ('i?lt'l':tS.i£T) sn^rwR-ficb gwan^rsbMich ?T(ITCRBf?tT3;n^T »bl^lf<-f41-f ^l4dTiftecil'<[«l<s:K ^arf^R'an^T present in the house at the tir|ne of commission of crime is belied by the evidence of PW-5. As far as second cii(i siifcumstance is concerned, as has been discussed in earlier part ofthe] has stated that homicidal injurif and vaginal part were found, this also supports the fact that judgment about the evidence of doctor who i^s on gluteal as well asinfrascapular region #\ose injuries cannot be self inflicted, as such (he injuries were inflicted by the accused. |the accused/appellant |the matter of Ashish Batham Vs. State of relied upon the Leamed counsel judgment of the Apex Court in M.P. reported in 2003 (1 l MPlHT 1 (SC). We have perused the mere suspicion, however, str< substitute for the legal proo commission of a crime and standard of proof required. staid judgment wherein it has been held that >ng or probable it may be is no effective required to substantiate the charge of ^rave the charge is greater should be the In the present case, a^ made extra judicial confession| PW-5 is an independent witne|ss. the accused so as to implicate| has been discussed earlier, the accused Ibefore PW-5 Ramcharan and the villagers. i|ss. He has no animosity or grudge against Ihim in serious crime like murder that too of his own wife. Moreover, homi|! i|cidal injuries were found on the body, the plea of the accused that he commission of the crime, Iwas not at the residence at the time of not established. In these circumstances, based on extra judicial confes|sion deceased and the fact that i, homicidal injuries on the body of the drime was committed in the house of the accused, irresistible conclusiorl can be drawn that accused was the author P.T.O. XI-HC-78 3 r ^i^iid'4, ^Tfl'M'ie, 15|tni'M^< WTFTT^TTT^ "r'"1""""""t" r-f~.^.No.'S'<&/3-3 . ^FT 200 311^1 4ach (>ic<(3s«<]iT) sn^TiRrf^TN? iraT3ll^lEtlH ?raRR^f?tT^T^T tii''<rci<fl-f *ii*«nT^''teIfl'<Ri<^i< ^isif^Hsn^T • the crime in question as there was none else to cause death of Saraswati. In the result, we do not 1 of the trial Court. The appe^l being devoid of merit -diaroissed. It is accordingly disjnissed. Ind any illegality or infirmity in the judgment is liable to be Sd/- L.C.BHADOO Judge ~————^