CRIMINAL APPEAL N0. [^ ^ J 2008 v. State of Chhattisgarh, Police Station - Gaurela, District

Intimation (Ex.P-9). First Information Report (Ex.P-8) was also recorded. Investigating Officer reached the place of bccurrence, gave notice {o Panchas and prepared inquest (Ex.P/1) on the dead body of the deceased. The dead body of the deceased was sent to Community Health Centre, Gourela for postmortem examination. Dr. Kamal Kumar Soni (PW-2) conducted the postmortem on the dead body of the deceased and gave his report (Ex.P-5) finding the following injuries. -A (i) contusion, over right and left cheek, 2cmx1cmx0.5cm and contusion, 2cmx1cmx0.5cm respectively with blister. (ii) contusion, 2cmx1cmxepidermise and 5cmx1cmx epidermis over forearm near elbow joint. (iii) abrasion,2cmx1cmx0.5 cm on left side of neck. (iv) contusion, 1cmx1cmx epidermis over right shoulder. (v) contusion, 2cmx 1cmx epidermis over right scapula. (vi) contusion, 2cmx 1cmx0.5cm over right chest. r .^. ^^.. (vii) contusion, 2cmx 1cm over left side chest and fracture on the left sideofthe8thrib. (viii) contusion, 2cmx 1cmx0.5cm on the right side of the lower abdomen. He opined that cause of death was shock due to multiple injuries, rupture of internal organ spleen and fracture on 8th rib and the death was homicidal in nature. In further investigation, Assistant Sub Inspector S.L. Soni (PW-8) prepared spot map (Ex.-P/2). Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act,vide Ex.P-3. At the instance of the appellant, danda was seized from the house of the appellant vide Ex. P-4. The seized danda was sent to Community Health Centre, Gourela for examination and report (Ex. P-6) was received from there. The appellant was arrested vide Ex.P.-12. Statements of Lachchhu Singh (PW-3), Heera Singh (PW- 4) and Dongru (PW-5) were recorded vide Ex.P/7,P/10 & P/1 1. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate, First Class, Pendra Road, who, in turn, committed the case to the Court of Session Bilaspur from where it was re<T;:ved on transfer by the Additional Sessions Judge, Pendra Road, District Bilaspur, who conducted the trial and convicted and sentenced the appellant as mentioned above. In support of its case, the prosecution examined Pawan Singh Baiga (PW-1)

3. i) r ^ ii) iii) iv) v) vi) Dr. Kamal Kumar Soni (PW-2) Lachchhu Singh (PW-3) Heera Singh Baiga (PW-4) Dongru Baiga (PW-5) Budhram Baiga (PW-6) vii) Constable Ashok Kumar Yadav (PW-7) viii) Assistant Sub Inspector S.L. Soni (PW-8). The appellant did not examine any witnesses in his defence,

4. Shri Vimlesh Bajpai, learned counsel for the appellant argued the finding of guilt recorded on the basis of circumstantial evidence is not reliable. hle further argued that the appellant was not present in the house at the time of incid-:-/;t. He is not responsible for death of the deceased. He further argued that circumstantial evidence is not of conclusive nature and tendency. It is well settled law that strong suspicion is no substitute for a proof, therefore, the finding recorded by the learned Additional Sessions Judge is not sustainable and the appellant deserves to be acquitted. ...^

5. On the other hand, Shri Arvind Dubey, learned Panel Lawyer the State/ respondent opposed the above argument and supported the judgment passed by the Sessions Court.

6. We have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No. 13/2008.

7. Admittedly, there is no eye-witness to the incident and the case of the prosecution is based on circumstantial evidence. The j- '^ main circumstances, which the learned Additional Sessions Judge appears to have taken note of, are thus:- (i) It was a house-murder, where the deceased and the ap- pellant were residing together. (ii) extra judicial confession of the appellant regarding com- mission of murder ofthe deceased, (iii) Memorandum statement of the appellant and at his in- stance recovery of the danda.

8. In Jagroop Singh v. State of Punjab, AIR 2012 SC 2600, the Hon'bleSupreme Court observed thus:- "13. In Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, a three-Judge Bench has laid down five golden principles which constitute the "panchsheel" in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra AIR 1973 SC 2622 : (1973) 2 SCC 793, it was opined that it is a primary principle that the acci,,3ed must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must is long and divides vague conjectures from sure be' conclusions. Thereafter, down that the facts the Bench proceeded to lay so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except thr1: the accused is guilty; the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be proved; and that there must be a chain of evidence socomplete as not to leave any reasonable ground for 6 the conclusion consistent with the innocence of the accused and must show that in all humart probability the act must have been done by the accused.

14. In Padala Veera Reddy v. State of Andhra Pradesh and others 1989 Supp (2) scc 706, this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: (SCC pp. 710-11, para 10) "(1) circumstances from which inference of guilt cogently and firmly established; is sought to be drawn, must be (2) those circumstances should be of a definite tendency unerringly pointing towards guiltof the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within atl human probability the crime was comrnitted by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction rhust be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." The similar view has reiterated Ramreddy Rajesh Khanna Reddy ahd anotherv. State ofA.P. (2006)108cc 172 15. In Balwinder Singh v. State of Punjab AIR 1996 SC 607, it has been laid down that the circumstances from which the conclusion of guilt should be fully proved and those circumstances must be conclusive in nature to connect the accused with is to be drawn the crime. All the links in the chain of events must be ^ established beyond reasonable established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the placeof legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof. 16. In Harishchandra Ladaku Thange v. State of Maharashtra AIR 2007 SC 2957, while deaiing with the validity of inferences to be drawn from circumstahtial evidence, it has been emphasised that where a case squarely circumstantial evidence, inference of guilt can be justified cnly when all incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and further the circumstances from whichan inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal circumstances. fact sought to be inferred from those

17. In State of U.P. v. Ashok Kumar Srivastava AIR 1992 SCW 640, emphasis has been laid that it is the duty of the Court to take care while evaluating circumstantial evidence. If the evidence adduced by prosecution reasonably capable of inferences, the one in favourofthe accused must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the established factsmust lead to a singular hypothesis that the accused is guilty.

18. In Ram Singh v. Sonia and Ors. AIR 2007 SC 1218, while referring to the settled proof pertaining to reiterated the circumstantial evidence, this Court principles about Court. the caution to be kept in mind by It has been stated therein that in a case depending largely uponcircumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood ofthe innocence ofthe accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and in any manner, the other circumstances cannot establish the guilt of reasonable doubts. In Ujagar Singh v. State of Punjab the accused beyond referring to the aforesaid (2007) 13 SCC 90, after principles pertaining to the evaluation of circumstantial evidence, this pourt stated that it must nonetheless be emphasized that whether a chain is complete or not would depend on the facts of ead; case emanating from the evidence and no universal yardstick should ever be attempted."

9. In Sharad Birdhichand 8arda(1984) 4 SCC 116, it was held that the following conditions must be fulfilled before a case against the accused can be said to be fully established on circumstantial evi- dence:- i. The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established; ly^li ^s^\, '~-<t i \^^y ^ ii. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is gyilty; iii. The circumstances should be of a conclusive natureand : tendency; iv. They Should exclude every possible hypothesis except the one to be proved; and v. There must be chain of evidence so complete as to not to leave any reaspnable ground for the conclusion con- sistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

10. Investigating Officer S.L Soni (F;W-8) deposed that he reached the place of occurrence and prepared inquest (Ex.P-1) on the dead body of the deceased and the dead body of the deceased was sent to Community Health Centre, Gourela for postmortem. Dr. Kamal Kumar Soni (PW-2) deposed that he conducted the postmortem on the dead body of the deceased and gave his report (Ex. P-5), in which he found the above injuries and he opined that the cause of death was shock due to multiple injuries, rupture of internal organ spleen and fracture on 8th rib and the death was homicidal nature.

11. Pawan Singh Baiga (PW-1) deposed that he went to the house of the appellant and saw that the dead body of the deceased ^ ^. .-^.s^ 1 t' ,:""1( 1 10 was lying in the courtyard and that had she sustained injuries on her abdomen, waist and chest. Heera Singh Baiga (PW-4) deposed that the appellant came to him and told him that his wife had died. Dongru Baiga(PW-5) deposed that the appellant came to his house at about 10.00 PM and told him that his wife had died. Budhram Baiga (PW-6) deposed that Heera Singh Bs'ga (PW-4) came to him and told that the appellant killed his wife.

12. LQoking to the above evidence and the inquest established that the death of the deceased was homicidal in nature and the dead body of the deceased was found inside the house of the appellant. It is also established that the appellant and deceased were residing together in the s:.«me house. The duration incident was in the night of 18.12. 2007. It appears that incident took place in the night inside the house of the appellant. It is also established that at the time of incident the appellant and the deceased were residing together.

13. The prosecution adducsd the evidence of extra-judicial confession against the appellant and the prosecution examined Pawan Singh Baiga (PW-1) for proving the same.

14. It is settled position of law that extrajudicial confession, if true and voluntary, it can be relied upon by the court to convict accused for the commission of the crime alleged. Despite inherent weakness of extrajudicial confession as an item of evidence, cannot be ignored when shown that such confession was made ••-^^^f \^ 11 before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support thestatement. The extra-judicial confession is considered to be a weak piece of evidence by the courts, this Court finds th^ there is neither any rule of law nor of prudence that the evidence furnishing extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The evidence relating to extra-judicial confession can be acted upon if the evidence about extra-judicial confession comes from the mouth of a witness who appears to be unbiased (See Aftab Ahmad Anasari vs. State o> Uttaranchal, (2010) 2 SCC 583 and Gura Singh vs. State of Rajasthan, (2001) 2 SCC 205).

15. Pawan Singh Baiga (PW-1) deposed that in winter session, during the time of harvesting of paddy crop?. at about 8.00 AM he was in his house. The appellant came to his house and told him that he had asked the deceased for cooking food, but, she did not cook the food, therefore, he assaulted her with a danda. He further deposed that he went to the house of the appellant alongwith the appellant and saw that the deceased was lying dead and she had sustained injuries on her face, abdomen, waist and chest. He further deposed that the appellant himself disclosed the incident before the villagers.

16. Pawan Singh Baiga (PW-1) was cross-examined by the appellant, but, nothing could be brought out of his evidence to show that his terms were inirpical with the deceased and he had a motive 12 to falsely implieate the appellant. Pawan Singh Baiga (PW-1) had no motive to falsely implicate the appellant. Therefore, his evidence regarding the extra-judicial confession is reliable and can be based for conviction.

17. Assistant Sub Inspector S.L. Soni (PW-8) deposed that he recorded the memorandum statement (Ex. P-3) of the appellant and at the instance of the appellant.a danda w^s seized from the house of the appellant vide Ex. P-4, Budhram Baiga (PW-6) is the witness of memorandum and seizure. He turned hostile, but, admitted his signatures on Ex.P-3 and Ex.P-4. Assistant Sub Inspector S.L. Soni (PW-8) specifically deposed that at the instance of the appellant, he seized the danda from the house of the appellant.

18. Pawan Singh Baiga (PW-1), Lachchhu Singh (PW-3) and Dongru Baiga (PW-5) deposed that the dead body of the deceased was lying inside the house of the appellant. Assistant Sub-lnspector S.L. Soni (PW-8) deposed that he prepared inquest (Ex.P/1) on the dead body of the deceased. Looking to the evidence of prosecution witnesses, inquest (Ex.P-1) and spot map (Ex.P-2), it is established that the place of occurrence was the house of appellant and the dead body of the deceased was lying inside the house of the appellant.

19. The incriminating circumstances which posnt towards the guitt of the appellant were put to the appellant under Section 313 of the Cr.P.C. He simply answered that he hc>s oeen falsely implicated. 13 The appellant has not furnished any explanation with respect to what could have happened to the deceased while they were residing in the house. If he is not responsible for the death of the deceased. an explanation should have been furnished by him as regards the death of the deceased. The prosecution witnesses clearly deposed that the deceased was lying dead in the house cf the appellant. Learned Additional Sessions Judge has rightly believed theevidence of the prosecutjon witnesses. On a studied scrutiny of the evidence on recorc^we are convinced that the circumstances which have been proved are thus: (i) (ii) (iii) (iv) The occurrence took place in the night. The deceased was found lying deaci -'n the house: The accused /appellant lived with the deceased in his house and he was present in the house at the time of incident. The accused made a statement under Section 27 of Evidence Act and led the police to recover the danda, weapon of assault. (v) The appellant did not offer any expis^nation with regard to the "•^, death of the deceased and nothing has been stated in his cross examination under Section 313 Cr.P.C.. (vi) Pawan Singh Baiga (PW-1) did not have any animosity with the appellant. Pawan Singh Baiga (PW-1) specifically deposed that the appellant made extra-judicial confession before him and he assaulted the deceased witii 'ie danda. 14 ^\

20. The aforesaid circumstances clearly establish that prosecution has proved the guilt of the accused/appellant and the circumstances are conclusive in nature excluding every hypothesis. The chain of circumstances is absolutely complete. Thus, we have no hesitation in affirming the judgment of conviction passed by the learned Additional Sessions Judge.

21. Learned counsel for the appellant argued that the injuries sustained by the deceased were on the cheeks, elbow, neck and scapular region and not on any vital part. The injuries caused to the deceased were not intended. Therefore, the offence under Section 302 IPC is not made out and the act of the appellant would be punishable under some other section providing lesser punishment preferably under Part-11 ofSection 304 IPC. He placed reliance on (i) Byvarapu Raju v. State ofAndhra Pradesh & Anr. AIR SCW 3414 (ii) Prakash Chand v. State of Himanchal Pradesh (2004) AIR SCW 4650 (iii)Ruli Ram & Anr. v. State of Haryana (2002) AIR SCW 3913 (iv)Rajwant Singh v. State of Kerala AIR 1966 SC 1874 (v) Virsa Singh v. State of Punjab AIR 1958 465.

22. Now, we shall examine the matter in light of the provisons of Section 302 vis-a-vis Section 304 IPC.

23. Section 304 of the Indian Penal Code provides punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to ^?^ ^•£it^«..» ^ -^cQ, j k^^^/ ^ 15 ^' murder, but for its having fallen within one of the Exceptions in Section 300 6f the Indian Penal Code, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 of the Indian Penal Code applies where there is intention, whereas the second pa?t applies where there is knowtedge but the important thing is that before holding the accused guilty under any part of Section 304 of the Indian Penal Code, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300 of the Indian Penal Code, which include death caused while deprived of power of self-controi u nder grave and sudden provocation, while exercising in good faith the right of private defence of person or properi:y, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304 ofthe Indian Penal Code, an element intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. ,,^-i" ;&<..,..., % .. % ^. v^,^,-,- • "•^:: - .^' '"'•^•^..^^^ ^ .^ .^; ^' 16 ^

24. In Gurumukh Singh v. State of Haryana (2009)15 SCC 635, the Hon'ble Supreme Court discussed some following factors which are required to be taken into CQnsideration before awarding appropriate sentence to the accused in such a case with a caution these factors are only illustrative in character and not exhaustive:- (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (1) Motive or previous enmity; Whether the incident had taken place on a spur of the moment; The intention/ knowledge of the accused while inflicting the blow or injury. Whether the death ensued ins^antaneously or the victim died after several days; The gravity, dimension and nature of injury. Theage and general health condition ofthe accused; Whether the injury was caused without pre-meditation in a sudden fight; The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; The criminal background an'-' adverse history of the accused. Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; Number of other criminal cases pending against accused. Incidentoccurred within the family members or close relations; and (m) The conduct and behavior of the accused after the incident, '^ 17

25. In Byvarapu Raju v. State of Andhra Pradesh & Anr. (supra), the Hon'ble Supreme Court held thus:- " The help of Exception 4 to S. 300 can be invoked if death is in a sudden fight without the caused without premeditation, offender having taken undue advantage of acted in a cruel or unusual manner; and the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any genera; rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, there was a is not sufficient to show that sudden quarrel arid there was no premeditation. It must further be shown that the offender has not taken undue advantage of acted in cruel or unusual manner. The expression 'undue 'unfair advantage' pijjvision means advantage'."

26. In Satish Narayan Sawant Vs. State of Goa, (2009)17 SCC 724, the Hon'ble Supreme Court held thus:- "40. That being the well-settled legal position, when we test the factual background of the present case on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident. The place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. Initially the appellant-accused also did not have any weapon with him but during the course of the incident he went inride and got a knife with the help of 18 which he stabbed the deceased. PW-7 in his cross examination has categorically stated that death due to stab injury was in consequence of injury 1 and all other injuries were superficial in nature. So, it was only injury 1 which was fatal in nature. Factually therefore, there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and therefore, it cannot be said that there was any intention lo kill or to inflict an injury of a particular degree of seriousness." c'-/i 27 In Panchaiah and others v. State of Karnataka, 1994 Supp (2) SCC 235, six injuries on various parts of the body of deceased were caused by cycle chain and club. The first injury was lacerated wound on the middle ofthe head measuring 2cms x 1cm and bone deep. The second injury was a bruise (exhymosis), black in colour, on the antero-laternal aspect of the right arm extending from the right shoulderjoint aspect measuring 23cms x 9cms. The third injury was again a bruise (exhymosis), black in colour on the interior aspect of the left upper arm upto the left elbow joint measuring 10cms x 9cms. The fourth injury was an abrasion, black in colour, on the left patella measuring 3cms x 2 cms. Tiie fifth injury was also an abrasion black in colour, just middle to the injury no.4. The last injury was again only an abrasion on the left side of the abdomen at the level of the umbelious, 6cms. The doctor opined that there was extravasation of blood just below the head injury no.1. He opined that the death was as a result of shock and hemorrhage. He further opined that injury to the brain and the vesoels was due to external injury no.1. Injuries 1, 4 & 5 would be caused by a hit with a cycle chain. The Hon'ble Supreme Court held that the medical evidence 19 ^ shows that there was only one injury on the head, which was serious and the other injuries were only bruise, abrasions and if really the intention of the appellants was to cause death, they would have inflicted more serious injuries. The Hon'bie Supreme Court found that only one injury on the head which unfortunately resulted into extravasation of the blood caused injury to brain and under these circumstances it cannot be said that the accused persons had common intention to cause the deathofthe deceased. However, the injuries inflicted would show that they had only knowledge and in that case they are punishable u/s 304 Part II read with section 34 IPC.

28. In the instant case, it appears that the appellant asked the deceased to cook food but she did not cook the food and)therefore, the appellant picked up the danda and assaulted the deceased by giving danda blows on the abdomen and scapular region and due to the assaults given by the appellant the deceased sustained multiple injuries, rupture of internal organspleen and fracture of 8th rib and she died due to aboveinjuries.

29. We have examined the instant case in light of the above facts and also in light of the provisions of Section 302 vis-a-vis Section 304 IPC. We are of the view that in the above facts and circumstances of the case, where the intention of the appellant was lacking, the act of the appellant would not be punishable under Section 302 IPC and the appellant would be liable for punishment under Part II of Section 304 IPC. Therefore, we are of the view that ^•..;: e'^'.".. \r 20 <^y in the above facts and circumstances ofthe case, the intention of the appellant cannot be inferred but knowledg^ can well be inferred that his such act was likely to cause death of his wife (deceased).

30. We are of firm view that in the above facts and circumstances of the case, where intention of the appellant was lacking, the act ofthe appellant would be punishable under Part II of Section 304 IPC.

31. For the foregoihg reasons, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set-aside; instead thereof, he is convicted under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for 7 years. He is in jail since 29.12.2007. h'e shall be entitled to set-off for the period already yndergone by him. Sd/- Chief Justice santosh Sd/- R.S. Sharma Judge