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2013 DIGILAW 233 (CHH)

Chhandu Uranv v. State of C. G.

2013-08-12

RADHE SHYAM SHARMA, SATISH K.AGNIHOTRI

body2013
JUDGMENT As per Hon'ble Shri Radhe Shyam Sharma, J. 1. This appeal is directed against the judgment dated 30.11.2006 passed in Sessions Trial No.90/2006 by the Fourth Additional Sessions Judge, (FTC) Raigarh. By the impugned/judgment, accused/appellant Chhandu Uranv has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for one month. 2. Case of the prosecution, in brief, is as under: Deceased Kunto Bai was wife of appellant Chhandu. On 12.6.2006, at about 4 o'clock in the morning, Bhojram Tigga (PW-1), who was the Panch of the village, having heard the shout of Lohra (PW-2), came out of his house and went to the house of Chhandu (appellant), where he saw the dead body of Kunto Bai in a pool of blood. Injury was visible on the head of the dead body. At that time, the appellant, who was sitting on the roof of the house, was shouting for water. On being asked, he accepted that he killed his wife with an axe. Thereafter, Bhojram Tigga (PW-1) lodged Merg Intimation (Ex-P/-19) and First Information Report (Ex-P/1) in Police Station, Kapu. An offence punishable under Section 302 IPC was registered against the appellant. The Investigating Officer reached the place of occurrence, gave notice (Ex-P/5) to Panchas and prepared inquest (Ex-P/6) on the dead body of the deceased. The dead body of the deceased was sent to Primary Health Centre, Dharamjaigarh for postmortem examination vide Ex-P/18. The postmortem examination was conducted by Dr. A.S. Thakur (PW-24). He gave report (Ex-P/22), in which he found (i) incised wound of 5 cm x 1 cm on the upper left lateral neck muscle (ii) incised wound of 8cm x 6 cm x bone deep on the left occipital region (iii) abrasion of 5 cm x 3 cm x skin deep on the back of the neck root & abrasion of 5 cm x 2 cm x skin deep on the back of the neck (iv) incised wound of 5 cm x 1 cm x bone deep on the upper jaw. He opined that the cause of death was coma due to head injury and the death was homicidal in nature. In further investigation, spot map (Ex-P/17) was prepared by Patwari CR Sidar Vide Ex-P/3. He opined that the cause of death was coma due to head injury and the death was homicidal in nature. In further investigation, spot map (Ex-P/17) was prepared by Patwari CR Sidar Vide Ex-P/3. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act and at his instance, one iron tanga was seized vide Ex-P/7, lungi of the appellant was seized vide Ex-P/8 and plain soil and blood stained soil from the place of occurrence were seized vide Ex-P/9. Another spot map was prepared by the investigating Officer vide Ex-P/2. The seized articles were sent to Forensic Science Laboratory, Raipur for chemical examination and a report was received from there vide Ex-P/24. The appellant was arrested vide Ex-P/11. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate, First Class, Dharamjaigarh, who in turn committed the case to the Court of Session, Raigarh, from where it was received on transfer by Fourth Additional Sessions Judge, (FTC), Raigarh, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Smt. Hamida Siddique, learned counsel appearing for the appellant argues that the finding of guilt recorded on the basis of extra judicial confession and circumstantial evidence is not reliable. Extra judicial confession made by the appellant is not reliable. She further argues that it is well settled that strong suspicion is not a substitute for a proof. Therefore, the finding recorded by the Additional Sessions Judge is not sustainable and the appellant deserves to be acquitted. 4. Mr. Sandeep Yadav, Dy. Govt. Advocate for the State/respondent supporting the impugned judgment, submits that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have also perused the record of the Sessions Trial No.90/2006. Admittedly, there is no eye witness to the incident and the case of the prosecution is based on the circumstantial evidence. The main circumstances, which the learned Additional Sessions Judge appear to have taken note of, are thus: (i) This is a house-murder where the deceased and the appellant were residing together, (ii) the deceased and the appellant were last seen together, and (iii) extrajudicial confession of the appellant regarding commission of murder of the deceased. 6. The main circumstances, which the learned Additional Sessions Judge appear to have taken note of, are thus: (i) This is a house-murder where the deceased and the appellant were residing together, (ii) the deceased and the appellant were last seen together, and (iii) extrajudicial confession of the appellant regarding commission of murder of the deceased. 6. It is well settled that with a view to base a conviction on circumstantial evidence the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances from which the conclusion of guilt is to be drawn should be fully established. It is also well settled that suspicion, howsoever grave it may be, cannot be a substitute for a proof and the Court should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. 7. In State of Uttar Pradesh Vs. Ram Balak and another (2008) 15 SCC 551 , the Hon'ble Supreme Court has held thus: "11. "9. it has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99 , Eradu v. State of Hyderabad, AIR 1956 SC 316 , Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330 , State of U.P. v. Sukhbasi, 1985 Supp SCC 79, Balwinder Singh v. State of Punjab, (1987) 1 SCC 1 , and Ashok Kumar Chatterjee v. State of M.P., 1989 Supp (1) SCC 560). The circumstances from which an 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 fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 62, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 10. In Bhagat Ram v. State of Punjab, AIR 1954 SC 62, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 10. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193 , wherein it has been observed thus: (SCC pp. 206-07, para 21) '21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 8. In Padala Veera Reddy Vs. State of Andhra Pradesh and Others AIR 1990 SC 79 , the Hon'ble Supreme Court has held thus: "10. ........ This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (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 form 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 evidence 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. ............" 9. In Ramreddy Rajesh Khanna Reddy and another Vs. State of A.P. (2006) 10 SCC 172 , the Hon'ble Supreme Court has held thus: "27. ............" 9. In Ramreddy Rajesh Khanna Reddy and another Vs. State of A.P. (2006) 10 SCC 172 , the Hon'ble Supreme Court has held thus: "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration." (See also Inspector of Police, Tamil Nadu Vs. John David (2011) 5 SCC 509 and State of U.P. Vs. Satish (2005) 3 SCC 114 ). 10. Now, we shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the offence against the appellant and to see whether the prosecution has been able to prove the offence against the appellant in conformity with the above principles. 11. So far as the question regarding circumstances that this a house murder and that too where there appellant and the deceased were residing together is concerned, it is not disputed that the appellant and his wife Kunto Bai (deceased) were residing together in the house of the appellant. It is not disputed that the death of the deceased was homicidal in nature. 12. Bhojram Tigga (PW-1) deposed that on 12th June 2006, he was sleeping in his house. At about 4 am, having heard the shout of Lohra (PW-2), he came out of his house and went to the house of the appellant, where he saw the dead body of deceased Kunto Bai. The deceased had sustained injuries on her head and blood was oozing out from it. 13. Lohra (PW-2) deposed that on the date of incident, at about 4 am, he came out of his house for urination, at that time, he heard the sound of falling of wood pieces from the house of the appellant. He went to the house of the appellant. At that time, the appellant was throwing pieces of wood down from the roof of his house and wife of the appellant Kunto Bai was lying dead in the room and blood was oozing out from her head. He further deposed that when he asked the appellant about the incident, the appellant confessed that he killed his wife with an axe. He further deposed that when he asked the appellant about the incident, the appellant confessed that he killed his wife with an axe. At that time, the appellant was asking for water. 14. Mohan Ram (PW-3) deposed that when he went to the house of the appellant, the appellant was throwing pieces of wood down from the roof of his house and his wife Kunto Bai was lying dead and blood was oozing from her head. He further deposed that when he asked the appellant about the incident, the appellant simply replied that he did not know anything. Manvel Tigga (PW-4), Shobhan (PW-7), Jashman Ekka (PW-8) deposed that they went to the house of the appellant where the deceased was lying dead and the blood was oozing out from her head. At that time, the appellant was sitting in his courtyard. 15. First Information Report (Ex-P/1) was lodged in Police Station, Kapu by Bhojram Tigga (PW-1). Asst. Sub Inspector Chintamani (PW-22) deposed that he went to the place of occurrence, gave notice (Ex-P/5) to the Panchas and prepared inquest (Ex-P/6) on the dead body of the deceased. He further deposed that the dead body of the deceased was sent to Primary Health Centre, Dharamjaigarh for postmortem examination. Dr. AS Thakur (PW-24) deposed that he conducted postmortem examination on the dead body of the deceased and gave report (Ex-P/22), in which, he found the above injuries. He further deposed that cause of the death of the deceased was coma due to head injuries and the death was homicidal in nature. Patwari Chamara Ram Sidar (PW-21) deposed that he prepared spot map (Ex-P/17). 16. In spot map (Ex-P/17) and inquest (Ex-P/6), place of occurrence is mentioned as the house of the appellant. From their perusal, it appears that the dead body of the deceased was lying inside the room of the house of appellant. In inquest (Ex-P/6) also, finding of dead body of the deceased is shown as inside the house of the appellant. 17. From the above evidence, it is evident that the appellant and the deceased were living together in the house of the appellant on the fateful day. It is evident that the dead body of the deceased was found in the house of the appellant and at that time, the appellant was present in the house. 18. 17. From the above evidence, it is evident that the appellant and the deceased were living together in the house of the appellant on the fateful day. It is evident that the dead body of the deceased was found in the house of the appellant and at that time, the appellant was present in the house. 18. The date and time of the incident was 12.6.2006 at about 4 am. The deceased was living with the appellant in the house of the appellant and the dead body of the deceased was found in the house of the appellant in the morning. Therefore, it is evident that the deceased was last seen alive in the company of the appellant and the deceased had sustained near about five injuries on her person. Only two person, i.e. the appellant and the deceased were present in the house. The deceased died as a result of fatal injuries. 19. In Gura Singh Vs. State of Rajasthan, (2001) 2 SCC 205 , the Hon'ble Supreme Court observed as follows: "6. It is settled position of law that extrajudicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extrajudicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 , this Court again in Maghar Singh v. State of Punjab, (1975) 4 SCC 234 , held that the evidence in the form of extrajudicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P., (1985) 4 SCC 26 , this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extrajudicial confession is always a weak type of evidence. In Narayan Singh v. State of M.P., (1985) 4 SCC 26 , this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extrajudicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extrajudicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H.P., (1991) 1 SCC 286 , this Court held that an unambiguous extrajudicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the• person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised. To the same effect is the judgment in Baldev Raj v. State of Haryana, 1991 Supp (1) SCC 14. After referring to the judgment in Piara Singh v. State of Punjab, (1977) 4 SCC 452 , this Court in Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 , held that the extrajudicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration." 20. In Aftab Ahmad Anasari Vs. State of Uttaranchal, (2010) 2 SCC 583 , the Hon'ble Supreme Court observed as follows: "52. In Aftab Ahmad Anasari Vs. State of Uttaranchal, (2010) 2 SCC 583 , the Hon'ble Supreme Court observed as follows: "52. Though extra-judicial confession is considered to be a weak piece of evidence by the courts, this Court finds that 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 and in respect of whom even remotely nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused. 53. In State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 , this Court, while explaining the law relating to extra-judicial confession, ruled that if the words spoken by the witness are clear, unambiguous and unmistakable, one showing that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction. According to this Court, in such a situation, to go in search of corroboration itself tends to cause a shadow of doubt over the evidence and if the evidence of extra-judicial confession is reliable, trustworthy and beyond reproaching, the same can be relied upon and a conviction can be founded thereon." 21. About the extra judicial confession, Lohra (PW-2) deposed that on being asked by him, the appellant told that he killed the deceased with an axe. In FIR (Ex-P/1) also, name of the appellant is mentioned as assailant. Bhojram Tigga (PW-1), Lohra (PW-2), Mohan Ram (PW-3), Manvel Tigga (PW-4) and Shobhan (PW-7) deposed that they went to the house of the appellant where the deceased was lying dead in the room and the appellant was sitting on the roof. 22. In the light of the above enunciation of law, we are of the view that on 12.6.2006, the appellant had made confessional statement before Lohra (PW-2). Lohra (PW-2) had no motive to falsely implicate the appellant. 22. In the light of the above enunciation of law, we are of the view that on 12.6.2006, the appellant had made confessional statement before Lohra (PW-2). Lohra (PW-2) had no motive to falsely implicate the appellant. Therefore, the evidence adduced by the prosecution regarding extra judicial confession is reliable and can be based for conviction. 23. Asst. Sub Inspector Chintamani (PW-22) deposed that on 12.6.2006, he recorded the memorandum statement of the appellant vide Ex-P/12 and at the instance of the appellant, the axe was recovered vide Ex-P/7. The axe was sent to FSL, Raipur for chemical examination and report (Ex-P/24) was received therefrom. In Ex-P/24, it is found that the seized axe was smeared with blood. 24. In Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 , the Hon'ble Supreme Court observed thus: "14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions 1-quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh2.) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him ........" 15. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him ........" 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 it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be 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. 25. In State of Rajasthan Vs. Kashiram, (2006) 12 SCC 254 , the Hon'ble Supreme Court observed thus: "19. ............ whether an inference ought to be drawn under Section 106 Evidence Act is a question which must be determined by reference to proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. 23. ............ The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his epical knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his epical knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. ........ .." These principles have been further reiterated in the matter of State of Rajasthan Vs. Parthu, AIR 2008 SC 10 . 26. In the instant case, the incriminating circumstances which point towards guilt of the appellant were put to the appellant under Section 313 Cr.P.C. The appellant stated that he is innocent and has been falsely implicated. 27. Dr. AS Thakur (PW-24), who conducted the autopsy of the deceased, deposed that the cause of death of the deceased was head injury leading to coma and the death was homicidal in nature. 28. The appellant failed to offer any reasonable explanation in discharge of the burden placed on him and he did not throw any light upon the facts which were in his knowledge. He has not thrown any light as to how the deceased was killed and how did she receive the injuries and in what circumstances the incident took place in which, the deceased died a homicidal death. 29. In the light of the above discussion, we do not find any infirmity in the finding recorded by the learned Additional Sessions Judge that it was the appellant who caused the injuries on the body of the deceased with the axe and the deceased died on account of the injuries caused by the appellant. 30. 29. In the light of the above discussion, we do not find any infirmity in the finding recorded by the learned Additional Sessions Judge that it was the appellant who caused the injuries on the body of the deceased with the axe and the deceased died on account of the injuries caused by the appellant. 30. The appeal is devoid of any merit, it deserves to be and is hereby dismissed. Appeal Dismissed.