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2011 DIGILAW 36 (CHH)

Ghuran Sai v. State of Chhattisgarh

2011-02-01

R.N.CHANDRAKAR, T.P.SHARMA

body2011
JUDGMENT T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 13-4-2005 passed by the IInd Additional Sessions Judge, Surajpur, Dist. Sarguja in Sessions Trial No. 511/2004, whereby and whereunder learned IInd Additional Sessions Judge after holding the Appellant guilty for commission of culpable homicide of Ramo Bai amounting to murder, convicted him under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay fine of Rs. 1000/-, in default of payment of fine to further undergo RI for six months. 2. Conviction of the Appellant is impugned on the ground that without there being any iota of evidence, the Trial Court has convicted and sentenced the Appellant as aforementioned and thereby committed illegality. 3. As per case of the prosecution, on the fateful intervening night of 9-5-2004 and 10-5-2004 at about 12.00 o'clock, present Appellant along with his wife Ramo Bai was present in his house. Present Appellant quarreled with his wife, thereafter he pressed her neck and caused her death. After causing death of his wife, Appellant fled away from the spot. On the next day morning when the mother of the Appellant did not find the wife of Appellant in the place where she was sleeping, she went to the room of the accused/Appellant and saw Ramo Bai lying dead on the ground. On seeing the incident she made a hue and cry, hearing which the brother and son of the Appellant came to the place of occurrence and informed the villagers about the incident. Karmu Ram (P.W. 2), elder brother of the Appellant went to Police Station, Ramanujnagar and lodged morgue vide Exh. P-1. First Information Report was recorded vide Exh. P-6. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Exh. P-3 prepared the inquest vide Exh. P-5. Spot map was prepared vide Exh. P-2. Dead body of deceased Ramo Bai was sent for autopsy to Community Health Centre, Ramanujnagar where Doctor Dinesh Kumar Viswakarma (P.W. 4) conducted autopsy vide Exh. P-5 and found following injuries: (i) Three abrasions over left side of the neck. (ii) Four abrasions over right side of the neck. (iii) One contusion in the size of 4 cm x 3 cm over right shoulder. (iv) Nails were cyanosed. P-5 and found following injuries: (i) Three abrasions over left side of the neck. (ii) Four abrasions over right side of the neck. (iii) One contusion in the size of 4 cm x 3 cm over right shoulder. (iv) Nails were cyanosed. (v) One contusion in the size of 8 cm x 5 cm over chest. Injuries were ante-mortem in nature. Cause of death was asphyxia due to throttling and death was homicidal in nature. 4. Statements of the witnesses were recorded under Section 161 of the Cr.PC and after completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate First Class, Surajpur, who in turn committed the case to the Court of Sessions, Ambikapur, from where learned Additional Sessions Judge, received the case on transfer for trial. 5. In order to prove the guilt of the accused/Appellant, the prosecution has examined as many as 11 witnesses. Statement of the accused/Appellant was also recorded under Section 313 of the Cr.PC where he denied the circumstances appearing against him and claimed innocence and false implication in the crime in question. He has taken plea of alibi that prior to the date of commission of such incident he was not present in his house. 6. After affording an opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the Appellant as aforementioned. 7. We have heard Ms. Sangeeta Mishra, learned Counsel for the Appellant and Mr. Sandeep Yadav, Deputy Govt. Advocate for the State, perused the judgment impugned and record of the Trial Court. 8. Learned Counsel for the Appellant vehemently argued that in the present case, conviction of the Appellant is based on surmises and conjectures. Prosecution was under obligation to prove the circumstances against the Appellant beyond the reasonable doubt and evidence adduced on behalf of the prosecution is not sufficient for drawing any inference against Appellant Ghuran Sai that he has committed the offence of culpable homicide of Ramo Bai, amounting to murder. Learned Counsel further submits that evidence of P.W. 1, mother of the Appellant, P.W. 2, elder brother of the Appellant and P.W. 3, son of the Appellant that the Appellant was in habit to leave the house frequently without pre-intimation to the family members and at the time of incident he was sleeping in the court-yard and not in the room where dead body of the deceased was found. Only on the ground of non-explanation as required under Section 106 of the Evidence Act, conviction of the Appellant under Section 302 of the IPC is not sustainable under law. 9. On the other hand, learned State Counsel supported the judgment impugned and argued that conviction of the Appellant is based on circumstantial evidence and prosecution has proved complete chain of circumstances which is sufficient for drawing definite conclusion against the Appellant excluding the innocence of the Appellant and the Trial Court has rightly convicted and sentenced the Appellant as aforementioned. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death as a result of throttling of deceased Ramo Bai has not been substantially disputed on behalf of the Appellant as also from the evidence of Dr. Dinesh Kumar Viswakarma (P.W. 4) and autopsy report (Exh. P-5), it is established that the death of the deceased was homicidal in nature. 12. As regards the complicity of the Appellant in crime in question, conviction 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 of A. P. AIR 2008 SCW 4669, has held that in case of conviction based on circumstantial evidence, prosecution is required to satisfy the following circumstances,-- (i) the circumstances 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 of 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 one to 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 by the accused. 13. 13. In the present case, prosecution has proved the following circumstances: (i) Appellant and deceased Ramo Bai were present in one room in the night; (ii) Ramo Bai died in the same night at about 12 o'clock; (iii) Prior to the date of incident Ramo Bai quarreled with Appellant; (iv) Appellant fled away from his house without intimation to other relatives; (v) Dead body of Ramo Bai was lying on the ground in the room. 14. Appellant was under obligation to offer explanation in terms of Section 106 of the Evidence Act, but the Appellant has not offered any explanation. As per evidence of P.W. 1, mother of the Appellant, Karmu Ram (P.W. 2), elder brother of the Appellant and Ram Sai (P.W. 3), son of the Appellant, accused/ Appellant was present in his house along with aforesaid witnesses during the intervening night when the incident took place. Dead body of Ramo Bai, wife of the Appellant was found inside the room. As per their evidence, some quarrel took place between the Appellant and his wife although they have not supported the aforesaid version in their cross-examination. As per evidence of P.W. 1, mother of the Appellant and Karmu Ram (P.W. 2), elder brother of the Appellant, when they woke up in the morning, at that time Appellant was not present in his house although he was present at the time of sleeping at night and was sleeping in court-yard. Ram Sai (P.W. 3), son of the Appellant has deposed that the Appellant was sleeping inside the room and not at courtyard. Dead body of his mother was found inside the room of their house. In their detailed cross-examination, they have supported their version to the extent that the Appellant was present in their house, he was sleeping inside the room and thereafter he was sleeping in court-yard. Wife of the Appellant Ramo Bai was sleeping inside the room and her dead body was found inside the room. Appellant was not present in the morning although he was in habit of leaving the house frequently without intimation to others. Appellant has not offered any explanation while answering the question No. 29 under Section 313 of the Code that he was not present prior to the date of incident and thereby he has taken defence of alibi. Appellant was not present in the morning although he was in habit of leaving the house frequently without intimation to others. Appellant has not offered any explanation while answering the question No. 29 under Section 313 of the Code that he was not present prior to the date of incident and thereby he has taken defence of alibi. Thus, defence has not been supported by P.W. 1, mother of the Appellant, Karmu Ram (P.W. 2), elder brother of the Appellant and Ram Sai (P.W. 3), son of the Appellant. The Appellant has not suggested anything to these witnesses to show that he was not present in the house prior to commission of such incident. Thus, the evidence clearly reveals that the present Appellant has offered false explanation and has taken false defence of alibi. The evidence of P.W. 1, P.W. 2 and P.W. 3 are sufficient for drawing inference that the Appellant was present in his room along with his wife and thereafter he was sleeping for some time in court-yard and thereafter he left his house. The dead body of the deceased was found inside the room and death of deceased was homicidal in nature. Definitely, offence was committed in secrecy in a room of house with knowledge of the Appellant who was sleeping along with his wife in his room. He was required to offer explanation in terms of Section 106 of the Evidence Act but he has offered false explanation and has taken defence of alibi which is a ground for showing the chain of circumstances. 15. While dealing with the question of explanation in terms of Section 106 of the Evidence Act, Hon'ble the Supreme Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, has held which read as under: 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The burden would of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. 16. In the present case, the prosecution has proved the following circumstances: (i) Appellant and deceased were sleeping in one room. (ii) after some time Appellant came out from the room and was sleeping in courtyard; (iii) Appellant left his house without intimating to his relatives and fled away from the spot; (iv) homicidal death of deceased was caused inside the room; (v) Appellant who was under obligation to offer explanation in terms of Section 106 of the Evidence Act, has not offered any explanation, inter alia has offered false explanation and has taken false plea of alibi. 17. If the aforesaid circumstances are considered together in the light of dictum of the decisions of Hon'ble Supreme Court in the matters of Kusuma Ankama Rao and Trimukh Maroti Kirkan (supra), only one thing would be possible that none else other than the Appellant has committed homicidal death of the wife of the Appellant and the same is sufficient for excluding innocence of the Appellant. 18. After appreciating the evidence available on record, the Trial Court has convicted and sentenced the Appellant as aforementioned. On a close scrutiny of the entire evidence and considering all aspects of the case, we do not find any substance in this appeal. 19. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed.