Research › Search › Judgment

Chhattisgarh High Court · body

2016 DIGILAW 370 (CHH)

Gangadhar Sahu v. State of C. G.

2016-09-27

CHANDRA BHUSHAN BAJPAI, PRITINKER DIWAKER

body2016
JUDGMENT : SHRI PRITINKER DIWAKER, J. 1. This appeal arises out of the judgment of conviction and order of sentence dated 6.9.2006 passed by First Additional Sessions Judge, Surajpur, in ST No. 113/2005 convicting the appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life and pay a line of Rs.100/-with default stipulation. 2. As per the prosecution case, on 17.8.2004 at about 4-5 am dead body of deceased Chainbai, wife of the accused/appellant, was found inside her house. It is alleged that the appellant committed murder of his wife by causing injury on her head by a grinding stone. Unnumbered merg Ex.P/1 was recorded on 17.8.2004 at the instance of PW-1 Teras Kumar, niece of the appellant and the deceased. Unnumbered FIR (Ex.P/2) was recorded against the appellant and thereafter, numbered merg Ex.P/1 was recorded and ultimately on the basis of unnumbered FIR, a numbered FIR (Ex.P/10) was recorded on 17.8.2004 under Section 302 of IPC against the appellant. Inquest over the dead body was prepared vide Ex.P/6 and thereafter, the dead body was sent for postmortem, which was conducted by PW-10 Dr. Jitendra Kunjam vide Ex. P/13 and lie noticed two lacerated wounds as well as compound fracture in right temporal bone. In his opinion, the cause of death was shock due to excessive hemorrhage on account of head injury and death was looking like homicidal in nature. After completing investigation, charge sheet was filed against the appellant under Section 302 of IPC and charge was accordingly framed by the trial Court. 3. So as to hold the accused/appellant guilty, the prosecution examined 10 witnesses in all. Statement of the accused was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellant as mentioned above. 5. Counsel for the appellant submits as under: (i) that the appellant has been convicted solely on the basis of circumstantial evidence but its nature is not as such which can be made basis for his conviction. (ii) that PW-1 Teras Kumari, star witness of the prosecution, has not supported the prosecution case, and turned hostile. 5. Counsel for the appellant submits as under: (i) that the appellant has been convicted solely on the basis of circumstantial evidence but its nature is not as such which can be made basis for his conviction. (ii) that PW-1 Teras Kumari, star witness of the prosecution, has not supported the prosecution case, and turned hostile. (iii) that as per prosecution case immediately after coming to know about the incident through PW-1 Teras Kumari, PW-5 Pitamber Lal and PW-6 Smt. Indra Devi went along with her to lodge the report, but PW-5 & PW-6 have not supported the prosecution case, and turned hostile. (iv) that the prosecution has utterly failed to prove that the appellant was in the house along with the deceased at the time of incident and unless this fact is proved, burden will not shift upon the accused/appellant to rebut the presumption against him. (v) that in his statement under Section 313 of Cr.P.C. no question was put to the appellant as to whether he was in the house on the date of incident when his wife was murdered and therefore, the appellant could not get proper opportunity to offer any explanation in his defence. 6. On the other hand, State counsel supporting the impugned judgment has submitted that the judgment impugned is strictly in accordance with law and there is no scope for any interference by this Court. He submits that body of the deceased has been found inside the house of the appellant and he has failed to offer any explanation in this respect. He, however, admits that none of the prosecution witnesses has stated that on the date of incident the appellant was in the house along with the deceased. He also does not dispute the fact that in the statement under Section 313 of Cr.P.C. no such question was put to the appellant regarding his presence in the house at the time of incident. 7. Heard counsel for the respective parties and perused the material on record. 8. PW-1 Teras Kumari, lodger of merg intimation and FIR, has not supported the prosecution case and has been declared hostile. When this witness was cross-examined by the prosecution, of her own she has stated that on the date of incident the appellant was not there in the house. 8. PW-1 Teras Kumari, lodger of merg intimation and FIR, has not supported the prosecution case and has been declared hostile. When this witness was cross-examined by the prosecution, of her own she has stated that on the date of incident the appellant was not there in the house. Likewise, she has stated that the appellant had not slept with the deceased on the date of incident. PW-2 Krishna Dev Singh, witness of inquest Ex.P/6 and seizure Ex.P/5 has also turned hostile. PW-3 America and PW-4 Rajkumar are witnesses of inquest. PW-5 Pitambar Lal and PW-6 Smt. Indra Devi, to whom the incident was immediately narrated by PW-1, have not supported the prosecution and been declared hostile. PW-7 Tejprasad Yadav, Patwari, prepared the spot map Ex.P/9. PW-8 Basant Gupta recorded FIR Ex.P/10. PW-9 K.S. Tiwari, investigating officer, has supported the prosecution case. PW-10 Dr. Jitendra Kunjam conducted postmortem on the body of the deceased on 17.8.2004 vide Ex.P/13 and noticed following injuries: (i) one lacerated wound on right temporal region horizontal in direction which is 2. cm x 2 cm x 1.2 cm in measurement, clotted blood present. (ii) one lacerated wound on right cheek, extending from right ear to cheek, which is oblique in direction 2.5 x .2 x 1.5 cm in measurement, clotted blood present. Internal injury right temporal bone compound fractured. In his opinion, cause of death was shock due to excessive hemorrhage on account of head injury and death was looking like homicidal in nature. 9. Admittedly, there is no direct evidence against the appellant to connect him with the crime in question, all the important witnesses of the prosecution have turned hostile and his conviction is based on circumstantial evidence. The main incriminating circumstance against him is that dead body of the deceased was found inside the house where the appellant and the deceased used to live together. 10. When 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 is extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon. In such cases, 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 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 can not 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 the accused to offer any explanation. 11. In the present case, there is no unimpeachable evidence to show that at the crucial time when the deceased was murdered the appellant was present in the house. On the contrary, the witnesses have stated that the appellant was not in the said house at the relevant time. This apart, no question with regard to presence of the accused/appellant in the house at the relevant time was put to the appellant in his statement under Section 313 of Cr.P.C. It is well settled that in order to secure conviction upon circumstantial evidence, the prosecution is required to establish a complete chain of circumstances leading to an irresistible conclusion that it is the accused who committed the offence and none else. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused. Further, it needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof. 12. Thus considering the overall evidence on record in light of the aforesaid principles of law relating to circumstantial evidence, we are of the view that there is no legally admissible evidence on record which could justify conviction of the appellant. Therefore, we do not find it possible to hold that the prosecution has established the guilt of the appellant beyond all reasonable doubt. In these circumstances, the benefit of doubt must go to the appellant. 13. Therefore, we do not find it possible to hold that the prosecution has established the guilt of the appellant beyond all reasonable doubt. In these circumstances, the benefit of doubt must go to the appellant. 13. In the result, the appeal is allowed. The impugned judgment is hereby set aside and the appellant is acquitted of charge under Section 302 of IPC. He is reported to be on bail, therefore, his bail bonds stand discharged and he need not surrender.