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2010 DIGILAW 77 (CHH)

NAVADHAR PRASAD RATHOD v. STATE OF C. G.

2010-03-08

R.L.JHANWAR, T.P.SHARMA

body2010
JUDGMENT 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 31/1/2001 passed by the Sixth Additional Session Judge, Bilaspur in Sessions Trial No. 335/2000, whereby & where under learned Sixth Additional Session Judge after holding the appellant guilty for commission of culpable homicidal death of deceased Laxmin Bai amounting to murder convicted under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 2000/-, in default of payment of fine to further undergo simple imprisonment for one year. 2. Conviction is impugned on the ground that without any iota of clinching and credible evidence, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that deceased Laxmin Bai, wife of the appellant, was residing with the appellant at Deepika Colony, District Korba. Relation between wife and husband was not cordial, even in the year 1996-97 the deceased had lodged the report against the appellant relating to his misbehaviour and assault vide Ex. P/24, P/25, P/26 and P/27. On the fateful day of 14/6/2000 at about 9 p.m. appellant was present in his house situated at Deepika colon) Deepika, District Korba, deceased Laxmin Bai come into bed room of the appellant and quarreled with him, then the appellant assaulted his wife Laxmin Bai by hammer on her forehead, nose and temporal region, he pushed his wife on the bed and also strangulated her, his wife died, then he covered dead body of his wife by bed sheet, he also hanged his bloodstained shirt in his bed room and hidden bloodstained hammer on the gallery. Second day morning i.e. on 15/6/2000, the appellant proceeded to police station for lodging the report. Witnesses Dhannendra Rathod, Sahsram Patel and Santoshram Patel met in the way whom he made extra judicial confession and he went to the police station Kusmunda along with Dhannendra Rathod, Sahsram Patel and Santoshram Patel and lodged F.I.R. vide Ex.P/28. At the time of causing injury to his wife the appellant has also received injury over his phalanx of middle finger of right hand. Investigating Officer proceeded for the scene of occurrence and after summoning witnesses vide Ex. P/1, inquest over the dead body of the deceased was prepared vide Ex.P/2. Panchnama of the spot was prepared vide Ex.P/3. At the time of causing injury to his wife the appellant has also received injury over his phalanx of middle finger of right hand. Investigating Officer proceeded for the scene of occurrence and after summoning witnesses vide Ex. P/1, inquest over the dead body of the deceased was prepared vide Ex.P/2. Panchnama of the spot was prepared vide Ex.P/3. The appellant who himself was present in the police station was sent for medical examination vide Ex.P/13A. He was examined by Dr. A.N. Kunwar (PW -7) vide Ex.P/13 and found one lacerated wound of 1 cm. x ½ cm. on middle finger of right hand. Dead body of deceased Laxmin Bai was sent for autopsy vide Ex.P/29 to Bistara Hospital, Korba. Dr. A.D. Puraina (PW16) conducted autopsy vide Ex.P/35 and found following injuries over the body of deceased Laxmin Bai, (i) Lacerated wound of 2 cms. x 2 cms. over upper side of left eyebrow (ii) Lacerated wound of 4 cms. x ½ cm. over nose (iii) Lacerated wound of 6 cms. x 3 cms. over left temporal region. Fracture bone was visible from the injury (iv) Swelling of the right face and fracture of multiple fractures of maxillary bone (v) Swelling on the abdomen of 10 cms. x 10 cms. (vi) Press injury over neck stained with blood (vii) Fracture of frontal bone, left parietal bone, nasal bone and maxilla bone. Fracture of 5th and 6th ribs were also found. Liver was ruptured. Mode of death was shock as a result of ante-mortem fatal injuries and death was homicidal in nature. 4. Clothes from the spot were recovered vide Ex.P/4, Bloodstained & plain soil were seized from the spot vide Ex.P/5. Five letters written by the deceased were seized vide Ex.P/6. Letters Exs.P/8, P/9, P/10 and Pill and another letter Ex.P/12 were seized vide Ex.P/7. The accused was taken into custody after lodging the report by him on 15.6.2000. He made disclosure statement of hammer and bloodstained shirt vide Ex.P/15. The police took him to his house from where the appellant took out bloodstained hammer from the gallery and bloodstained shirt from his house and produced before the police which were seized vide Ex.P/16. On personal search, a pair of earring, broken mangalsutra with locket were seized vide Ex.P/17. The accused was arrested vide Ex.P/18. Spot map was prepared by investigating officer vide Ex.P/20. On personal search, a pair of earring, broken mangalsutra with locket were seized vide Ex.P/17. The accused was arrested vide Ex.P/18. Spot map was prepared by investigating officer vide Ex.P/20. Letters written by the deceased were seized vide Exs.P/22 and P/23. Photographs of the deceased were taken. Sealed clothes of the deceased after autopsy were seized vide Ex.P/34. Hammer was sent for examination to Dr. A.D Puraina (PW -16) and he has examined hammer vide Ex.P/36. Seized articles were sent for chemical examination vide Ex-P/31 and presence of blood over hammer recovered from the accused was confirmed vide Ex.P/32. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code') and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Ketghora, who in turn committed the case to the Court of Sessions, Bilaspur, from where the Sixth Additional Sessions Judge, Bilaspur received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 18 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code where he denied the circumstances appearing against him and claimed innocence and false implication in the crime in question. 7. After providing opportunity of hearing to the parties, the Sixth Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 8. We have heard Mr. B.N. Nande, counsel for the appellant and Mr. Ashish Shukla, Government Advocate for the State, perused the judgment impugned and record of the Court below. 9. Learned counsel for the appellant vehemently argued that in the present case, the prosecution has not adduced any evidence to connect the appellant in the crime in question. Only on the basis that the appel1ant is husband of the deceased has been convicted and sentenced for the commission of murder of his wife. Letters written by the parties show that relation between the parties are not cordial, but letters are not sufficient for conviction of the appellant. 10. On the other hand, learned State counsel supported the judgment impugned and argued that the present case is based on circumstantial evidence in which the appellant himself has lodged the report of the incident. Letters written by the parties show that relation between the parties are not cordial, but letters are not sufficient for conviction of the appellant. 10. On the other hand, learned State counsel supported the judgment impugned and argued that the present case is based on circumstantial evidence in which the appellant himself has lodged the report of the incident. The evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant was the person who has caused fatal injuries to his wife. 11. 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 ante-mortem fatal injuries of deceased Laxmin Bai, wife of the deceased, has not been substantially disputed by the appellant, on the other hand, also established by the evidence of Dr. A.D. Pura in a (PW -16) and autopsy report Ex.P/35 which reveals that seven fatal injuries were found over the body of deceased Laxmin Bai including fracture of frontal, parietal and nasal bone and ruptured of liver. Death was homicidal in nature. 12. As regards the complicity of the accused/appellant in the crime in question, the conviction is based on following circun1stantial evidence, (i) The appellant was not having cordial relation with his wife, (ii) He was suspecting to his wife relating to her character, (iii) On the date of incident, the appellant was present in his house along with the deceased, (iv) The deceased was found dead as a result of ante-mortem fatal injuries, (v) The appellant had himself lodged the report of the incident, (vii) The appellant has not offered any explanation that how his wife died and who has caused fatal injuries to her, (viii) The appellant has made extra judicial statement under Section 27 of the Evidence Act relating to bloodstained shirt and bloodstained hammer, (ix) Bloodstained hammer was hidden in the gallery of the appellant and same was recovered at his instance, (x) Blood was found over his shirt and hammer seized from the accused/appellant. 13. 13. As regards the extrajudicial confession of the appellant is concerned, R.P. Parashar (PW -1) and Ramkumar (PW -2) have deposed in their evidence that the appellant made extrajudicial confession that he has killed his wife, but they have not specifically admitted that at the time of extra judicial confession, the police was present, therefore, same was hit by Sections 24,26 and 27 of the Evidence Act and is not admissible in evidence. Dharmendra Rethod (PW -9), Sahasram Patel (PW -10) and Santoshram (PW -11) have also not supported the case of the prosecution relating to extrajudicial confession made by the appellant and prosecution declared them hostile. They have not admitted/stated anything in their cross-examinations in support of extrajudicial confession. The prosecution has examined Suraj (PW -14), 6 years aged child witness son of the appellant and the deceased who has deposed in his evidence that the appellant has assaulted his mother by hammer and at the time of incident his father i.e. appellant Navadhar, his grandmother, his mother, himself, his brother Deepak and sister Divya were present. Defence has cross-examined this witness at length. In para 4 of his cross-examination, he has stated that he has narrated the incident to the police that he has seen the incident and his mother was agonizing, but this statement does not find place in his statement recorded under Section 161 of the Code Ex.D/3. Ex.D/3 reveals that he has not seen the incident. Only he has heard quarrel of his mother and father and he was sleeping in the room adjoining to the room of his mother father with his grandmother and brother and sister. According to his evidence, he is witnessed the incident, but his statement recorded under Section 161 of the Code reveals that he has heard quarrel between his father and mother while he present in the room of his father, then he left their room and went for sleep to the room of his grandmother. It reveals that he has seen first part of quarrel. It reveals that he has seen first part of quarrel. The evidence of this witness is not reliable up to the extent that the appellant has assaulted his mother by hammer, but the evidence of this witness is reliable only to the extent that some quarrel took place between husband and wife i.e. appellant and his wife at night and the appellant and the deceased were present in their room at the time of incident and on the second day morning, dead body of the deceased i.e. his mother in injured condition was found. 14. Investigating officer S.S. Rajput (PW -15) has deposed in his evidence that the appellant himself came to the police station and lodged the F.I.R. vide Ex.P/28, in which he has made disclosure statement of hammer and shirt vide Ex.P/15, then he came along with the appellant and the witnesses to his house from where the appellant produced hammer and shirt which he seized vide Ex.P/16. He has also deposed in para 5 of his evidence that he made search of the appellant and found a pair ear ring, broken piece of mangalsutra with locket which he seized vide Ex.P/17. In his cross-examination, defence has not asked anything relating to the disclosure statement made by the appellant or lodging of the report by the appellant. Ex – P/28 and Ex.P/15 are relating to confession statement made by the appellant. The appellant himself has lodged the F.I.R. vide Ex.P/28 which reveals that he and his wife were present in the room at night and his wife died as a result of ante-mortem fatal injuries. Except the admission of guilt; rests part of the F.I.R. is admissible in evidence. S.S .Rajput (PW -15) has categorically deposed that the appellant himself has produced hammer after taking the same from gallery and shirt. Same were sent for chemical examination and presence of blood over hammer and shirt seized from the accused has been confirmed by FSL report vide Ex.P/32. 15. The evidence of S.S. Rajput (PW -15), F.I.R. Ex.P/28 lodged by the appellant and evidence of Suraj (PW -14), son of the deceased and the appellant are sufficient for drawing inference that on the date of incident between intervening night of 14/15.6.200, the appellant was present in his room along with the deceased and the deceased was found dead as a result of fatal injuries. Hammer was hidden in the gallery and was recovered at the instance of the appellant. The appellant has not offered any explanation that who has caused injuries to the deceased and how she died. 16. In the present case, the offence has been committed in secrecy where the appellant was present. The appellant was under obligation to offer explanation under Section 106 of the Evidence Act that who has caused injuries to the deceased and how she died. Non offering of explanation is adverse circumstances against the appellant. 17. In the matter of Padala Reddy Vs. State of A.P. & Ors-1 it was laid down by the Apex Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: 1. AIR 1990 SC 79 (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial in order to sustain conviction must 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. 18. By adducing the aforesaid evidence, the prosecution has established the following circumstances, (i) The appellant and the deceased were found present in one room at the time of incident when the deceased died as a result of fatal injuries. (ii) The appellant has not offered any explanation that as to how the deceased received injuries and how she died. If the aforesaid circumstances are considered together, then only the aforesaid hypothesis of the guilt of the appellant would be possible. Except hypothesis of the guilt of the appellant, no other hypothesis of the appellant would be possible. 19. After appreciating the evidence available on record, learned Sixth Additional Sessions Judge has convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2000/-in default of payment of fine to further undergo simple imprisonment for one year. 20. 19. After appreciating the evidence available on record, learned Sixth Additional Sessions Judge has convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2000/-in default of payment of fine to further undergo simple imprisonment for one year. 20. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned. The appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Appeal Dismissed.