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2015 DIGILAW 310 (CHH)

Mohit Ram v. State of C. G.

2015-11-23

INDER SINGH UBOWEJA, PRITINKER DIWAKER

body2015
JUDGMENT : Inder Singh Uboweja, J. 1. Challenge in this appeal is to the judgment of conviction and order of dated 30th August, 2011 passed by Additional Sessions Judge, Sarangarh, District Raigarh (C.G.) in ST. No. 22 of 2010 whereby the trial Court after holding guilty for commission of murder of Saraswati Bai and for concealing the evidence of her dead body, convicted the accused/appellants under Section 302 and 201 read with Section 34 of the IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs. 1000/- each and RI for three years and to pay fine of Rs. 200/- each, in default of fine amount to further undergo RI for three months each. Both the sentences were directed to run concurrently. Conviction is impugned on the ground that without there being an iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 2. The case of the prosecution, in brief, is that appellant No. 2 Bhanmati is the first wife of appellant No. 1 Mohitram and out of their wedlock one female child was born. Thereafter, the marriage between appellant No. 1 Mohitram and deceased Saraswati Bai was solemnized according to their rituals prior to six years of the incident and out of their wedlock one male child was born. On 20-4-2010 at about 5.00 a.m., deceased Saraswati Bai was found dead by strangulation in her matrimonial home by appellant Mohitram along with his wife accused Bhanmati. 3. Chheduram (PW/1) went to Police Station, Kosir and lodged merg intimation vide Ex. P/1 on the basis of which first information report lodged by PW/19 Ramkumar Rana vide Ex. 13. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P-4, inquest over the dead body of the deceased was prepared vide Ex. P-3. Spot map was prepared vide Ex. P-2. Dead body of the deceased was sent for autopsy to Community Health Centre, Sarangarh vide Ex. P-10(A) where Dr. M.K. Manhar (PW-12) conducted autopsy on the dead body of the deceased vide Ex. P-4, inquest over the dead body of the deceased was prepared vide Ex. P-3. Spot map was prepared vide Ex. P-2. Dead body of the deceased was sent for autopsy to Community Health Centre, Sarangarh vide Ex. P-10(A) where Dr. M.K. Manhar (PW-12) conducted autopsy on the dead body of the deceased vide Ex. P-10 and found following injuries and symptoms: "(i) Blood was oozing out from mouth and nose, eyes were opened and there was a blood clot in the eyes, veins of neck swollen, tongue protruded and nails became in blue colour; (ii) A small size lacerated wound was found in the size of 1/2 X 1/2 cm on the forehead. (iii) Multiple abrasions were present in front of the neck; (iv) Abrasion of 1/2 x 1/2 cm over both shoulders; (v) There was more than one abrasion over knees; (vi) Rigour mortis was found over hands and legs." Doctor opined that cause of death was asphyxia due to strangulation (manual throttling). 4. Trial Court charged both the accused/appellants under Sections 302 read with Section 34 and 201 read with Section 34 of IPC. They denied the charges and pleaded innocence and false implication in the criminal case. 5. After providing opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the accused/appellants as aforementioned. 6. During the course of investigation, appellants were taken into custody, sealed clothes of deceased were seized vide Ex. P/5, map was prepared vide Ex. P/2, Patwari prepared spot map vide Ex. P/9, stomach material and pieces of both intestines, pieces of lungs kept in sealed jar, liver, kidney, sample of liquor mixed with salt water were seized by Police vide Ex. P/6. 7. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short, 'the Code'). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Sarangarh who in turn committed the case to the Court of Additional Sessions, Judge Sarangarh. 8. In order to bring home the charges of the accused/appellants, the prosecution examined as many as eighteen witnesses. Accused were examined under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false implication in crime in question. 9. 8. In order to bring home the charges of the accused/appellants, the prosecution examined as many as eighteen witnesses. Accused were examined under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false implication in crime in question. 9. After providing opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the accused/appellants as aforementioned. 10. We have heard learned counsel for both the parties and perused the judgment impugned including the record of court below. 11. Learned counsel for the appellants has submitted that the appellants have been falsely implicated in the case and they have not committed any offence. Even the prosecution witnesses have not supported the case of prosecution and most of the witnesses have turned hostile. She is not disputing that dead body of the deceased was found in the matrimonial house of the deceased. She further submitted that conviction is based on circumstantial evidence, prosecution has failed to prove the fact that appellants caused homicidal death of the deceased. Prosecution also failed to prove that appellants had caused death of deceased by throttling. She further submits that there was no direct evidence to connect the appellants with the crime in question and deceased died as she fell from the stairs and sustained grievous injuries. The prosecution has failed to prove the guilt of the accused by incriminating circumstances, therefore, the conviction of the appellants cannot be sustainable. 12. On the other hand, learned State counsel opposing the appeal submits that dead body of the deceased was found in the house of the appellants and they were under obligation to offer an explanation as to how the dead body of the deceased was found house of the appellants. After considering all the relevant aspects of the matter the trial Court has rightly convicted and sentenced the appellants. 13. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 14. Chheduram (PW-1) deposed in his cross examination that he knew deceased Saraswati Bai. Appellant No. 1 Mohitram got married Saraswati Bai as he was not having male child out of wedlock of his first wife Bhanumati. He further deposed one male child was born out of the wedlock of appellant No. 1 and deceased Saraswati Bai. 14. Chheduram (PW-1) deposed in his cross examination that he knew deceased Saraswati Bai. Appellant No. 1 Mohitram got married Saraswati Bai as he was not having male child out of wedlock of his first wife Bhanumati. He further deposed one male child was born out of the wedlock of appellant No. 1 and deceased Saraswati Bai. On the date of incident he went to the house of appellant No. 1 Mohitram where he saw the dead body deceased Saraswati Bai lying on the stairs in injured condition. Thereafter, he went to Police Station and lodged merg intimation on the same day. 15. Dhaniram (PW-3) father of the deceased Saraswati Bai deposed that the marriage of Saraswati Bai was solemnized with appellant No. 1 Mohitram according to their rituals prior to six years of the incident and out of their wedlock one male child was born. He further deposed that his daughter was not allowed to go to her paternal house and there were some disputes between his daughter and her-in-laws on some petty matters. He came to know about the death of his daughter through some of his acquaintances in the village by telephone. He went along with four other persons to Malda where he saw the dead body of his daughter. He further deposed that there were some scars in front of neck and joint knees of the deceased. 16. Ramanlal Sadhu (PW-4) has deposed that he knew deceased Saraswati Bai as well as accused/appellants. There were some disputes between the deceased and the accused/appellants. On the date of incident, he came to know about the incident and thereafter, he went to the spot and saw the dead body of the deceased and noticed reddish scars on her neck and also signs of scars on her forehead and knees. He further deposed that the appellants committed murder of deceased Saraswati Bai by throttling and thereafter, threw her dead body from the stairs due to quarrel took place between them. 17. Dr. M.K. Manhar (PW-12) has deposed that on 20.04.2010, dead body of deceased Sarbati @ Saraswati was brought to the hospital by constable Dhaneshwar Uraon. He conducted the postmortem of the deceased and noticed the injuries as aforementioned and opined that cause of death of the deceased was asphyxia due to strangulation (manual throttling). 18. 17. Dr. M.K. Manhar (PW-12) has deposed that on 20.04.2010, dead body of deceased Sarbati @ Saraswati was brought to the hospital by constable Dhaneshwar Uraon. He conducted the postmortem of the deceased and noticed the injuries as aforementioned and opined that cause of death of the deceased was asphyxia due to strangulation (manual throttling). 18. Gayaram (PW-2), Dharamlal (PW-5), Smt. Uttam Bai (PW-8) and Parmanand Sahu (PW-9) are the witnesses of inquest, they have supported the prosecution document by their version. Sahasram (PW-16) and Dil Kumar Sahu (PW-7) are the hostile witnesses, they have not supported the prosecution story. Ramashankar Sahu (PW-10) and Sitaram (PW-15) are the witnesses of quarrel, they stated that prior to death of deceased Saraswati, she was beaten by accused many times and also she was kicked out from the house. Anand Ram (PW-17) is a patwari, who has prepared the spot map (Ex. P-9). 19. Chheduram (PW-18) is a neighbour of accused. He deposed that accused Mohitram called him and told that Saraswati had fallen down from the stairs, he went there and saw that froth was coming out from mouth of the deceased. 20. Ramkumar Singh Rana (PW-19) is the Investigating Officer, who has proved by his evidence that he has written merg intimation (Ex. P-1), FIR (Ex. P-13) and prepared spot map (Ex. P-2) and also seized the wearing articles of deceased vide Ex. P-5. 21. Accused/appellants have taken defence in their statements under Section 313 of the Code that on the date of incident, they were in morning walk, when they reached their house they saw that deceased was in unconscious condition after falling down from stairs. They immediately called Chheduram (PW-18), but Chheduram has not opined that deceased fell down from stairs. In his cross-examination, he suspected that Saraswati Bai was killed by accused, but he did not state this fact in his police statement. 22. As regards complicity of the appellants in crime in question, conviction is substantially based on the circumstantial evidence. As held in the case of Kusuma Ankama Rao v. State of A.P., 2008 AIR SCW 4669, the 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. As held in the case of Kusuma Ankama Rao v. State of A.P., 2008 AIR SCW 4669, the 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 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 done by the accused." 23. On close scrutiny of the prosecution witnesses, it appears that in the present case, the prosecution has proved the complete chain of circumstances, which are as under:- "(i) the appellants and the deceased were present in the same house on the incident day; (ii) deceased found dead in the house of the appellants; (iii) death of deceased was homicidal in nature; and (iv) appellants were under obligation to offer explanation in terms of Section 106 of the Evidence Act that who has caused homicidal death of deceased. Although appellants have offered explanation that deceased died due to falling down from stairs, but that is patently false." 24. As per evidence of Chheduram (PW-18), in the intervening night deceased and the appellants were present in the same house of appellant Mohitram and at morning, appellant Mohitram came to him and informed that his wife fell down from stairs, but as per evidence of Dr. M.K. Manhar (PW-12) and autopsy report (Ex. P-10) death of deceased Saraswati Bai was homicidal in nature. The act was committed in secrecy, therefore, the appellants were under obligation to offer an explanation as to who has caused homicidal death of deceased, but the appellants have offered false explanation. 25. If the above circumstances are considered together, then only inference would be possible that the appellants were authors of the crime and none else and also exclude the possibility of their innocence. On the basis of aforesaid evidence and circumstances, the trial Court has rightly convicted and sentenced appellants as aforementioned. 26. 25. If the above circumstances are considered together, then only inference would be possible that the appellants were authors of the crime and none else and also exclude the possibility of their innocence. On the basis of aforesaid evidence and circumstances, the trial Court has rightly convicted and sentenced appellants as aforementioned. 26. On close scrutiny of the evidence and circumstances, we do not find any illegality and infirmity in the judgment of conviction and order of sentence passed by the trial Court. Consequently, the appeal being devoid of merit is liable to be and is hereby dismissed.