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2018 DIGILAW 581 (CHH)

Bitul Korva S/o Fagnu Korva v. State of Chhattisgarh

2018-09-15

MANINDRA MOHAN SHRIVASTAVA, RAJENDRA CHANDRA SINGH SAMANT

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JUDGMENT : Manindra Mohan Shrivastava, J. 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 3.7.2013 passed by the Learned Sessions Judge, Surguja in Sessions Trial No. 75 of 2012 whereby and where under, the appellant has been held guilty of commission of offence under Section 302 of the Indian Penal Code and sentenced to life imprisonment with fine of Rs.1,000/- (in default of payment of fine, additional S.I. of six months). 2. Prosecution story as unfolded from the records of the case, is that an FIR in Ex.P/1 was lodged by Dashrath (PW-1) in Police Station Dhaurpur on 12.1.2012 at about 10.00 am wherein, it was stated that the appellant came to the informant and confessed that he has murdered his wife by assaulting with the help of firewood and Geeta Bai is lying dead in the house. Upon receipt of information, the police having recorded a merg intimation in Ex.P/2, proceeded to the scene of occurrence and after giving notices to panch witnesses, an inquest report Ex. P/10 was prepared. The dead-body was sent for postmortem. Spot map was prepared, a memorandum statement of the appellant was also recorded and seizures were made. The Investigating Officer conducted investigation and upon completion of investigation, charge-sheet was filed alleging commission of offence of murder mainly based on the postmortem report Ex. P/14A and that the deceased sustained multiple injuries including burn injuries and in the opinion of the doctor, it was homicidal in nature. On the basis of the material contained in the charge-sheet, learned trial Court framed charge of commission of offence of murder under Section 302 of the IPC against the appellant. The appellant having abjured guilt, was tried. In order to prove its case, the prosecution examined as many as nine witnesses. Thereafter, the appellant was examined under Section 313 of the Cr.P.C. in respect of incriminating evidence and circumstances appearing against him in the evidence led by the prosecution. The appellant stated that he is innocent and he was out of his house from 8 am till 8 pm. No defence witness was examined. 3. Thereafter, the appellant was examined under Section 313 of the Cr.P.C. in respect of incriminating evidence and circumstances appearing against him in the evidence led by the prosecution. The appellant stated that he is innocent and he was out of his house from 8 am till 8 pm. No defence witness was examined. 3. Relying upon the evidence led by the prosecution, particularly on the postmortem report, the evidence of the doctor that it was a case of homicidal death of multiple injuries and that the appellant and the deceased resided together, but the appellant failed to explain how his wife sustained such serious injuries resulting into her death, the trial Court held that the appellant was the murderer and convicted him under Section 302 of the IPC and sentenced to life imprisonment. 4. Assailing the correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant vehemently argued that even though from the evidence on record and established circumstances it is proved that the appellant was not present in his house at around the time of death of his wife, he has been convicted. Learned counsel for the appellant further argued that Fagnu (PW-2), father of the appellant, Bhinsu Bai (PW-3), sister-in-law of the appellant and Ratiya (PW-4), brother of the appellant, all have stated that on the date of incident, the appellant was not present in the house and had gone to another village. This according to him, fully established plea of alibi. Neither there is any eyewitness to the incident nor any other incriminating article has been recovered from his possession, therefore, plea of alibi has been established, the appellant ought to have given benefit of doubt and acquitted, more so when it is not the case of the prosecution that the appellant have any strong motive to kill his own wife. 5. On the other hand, learned State counsel supports the judgment of conviction and order of sentence and submits that the prosecution having proved that the dead-body of appellant's wife Geeta was found inside the house, she sustained multiple injuries including burn injuries and the postmortem report and the evidence of the doctor proving homicidal death, the appellant who was residing with the deceased was required to explain as to how his wife sustained multiple injuries and died homicidal death. The appellant was giving false explanation to others that the deceased died due to heavy consumption of liquor whereas, the cause of death was multiple injuries. It is further submitted that on a close scrutiny of the evidence on record, including the appellant's own statement under Section 313 of the Cr.P.C. it demolishes the appellant's plea of alibi as the witnesses said that the appellant had come back at 8 pm in the evening. There is no clinching evidence led by the appellant to establish the plea of alibi that in the night or for a longer period, he was not in the house but elsewhere. According to the State counsel, the postmortem report prepared at 4 pm reveals that the death occurred within 24 hours. The appellant in order to make out a case of plea of alibi was required to lead clinching and reliable evidence that during this 24 hours he was not at home. 6. We have heard learned counsel for the parties, perused the judgment impugned and records of the Court below. 7. Homicidal death of Geeta is proved from the evidence of Dr. Santosh Singh (PW-9) and postmortem report. Postmortem report Ex. P/14A has been proved by Dr. 6. We have heard learned counsel for the parties, perused the judgment impugned and records of the Court below. 7. Homicidal death of Geeta is proved from the evidence of Dr. Santosh Singh (PW-9) and postmortem report. Postmortem report Ex. P/14A has been proved by Dr. Santosh Singh (PW-9) in his evidence and while proving the postmortem report, the doctor has deposed regarding the multiple injuries found on the body of the deceased as below: e`rdk dk 'ko fpRr voLFkk esa FkkA e`frdk eYVhdyj Cykmt] lkM+h rFkk uhys jax dk isVhdksV igus gq, FkhA vka[ksa can FkhA eqag can FkkA iwjs 'kjhj ij vdM+u ekStwn FkhA vfEcdy Ldkj Lvhp lfgr ekStwn FkkA ey }kj ij ey ugha FkkA vUn#uh tuusfUnz;ka ;Fkkor FkhaA fuEufyf[kr e`R;q iwoZ pksVsa 'kjhj ij ik;h x;ha Fkh %& ¼1½ nkfgus xky ds Åijh Hkkx ij ,d dVk&QVk ?kko] ftldk vkdkj yxHkx 4 xq.kk 4 Xkq.kk 0-5 lseh FkkA ¼2½ ukd ds Åij fgLls ij tyus dk fpUg ftldk vkdkj 1 Xkq.kk 0-1 lseh FkkA ¼3½ nkfgus xky ds uhps dh vksj ,d [kjkasp dh pksV ftldk vkdkj yxHkx 10 Xkq.kk 8 Xkq.kk 2 lseh FkkA ¼4½ ck,a duiVh ds Åij tyus dh pksV ftldk vkdkj 7 Xkq.kk 4 lseh FkkA ¼5½ fupys gksaB ls FkqM~Bh rd tyus dk fu'kku ekStwn FkkA ¼6½ xys ds lkeus e/; Hkkx esa [kjksp dh pksV] ftldk vkdkj 3 Xkq.kk 2 lseh FkkA ¼7½ nkfguh Nkrh esa [kjksap dh pksV] ftldk vkdkj 3 Xkq.kk 1 lseh FkkA ¼8½ ck,a Nkrh ds fupys fgLls esa [kjkasp dh pksV] ftldk vkdkj 5 Xkq.kk 4 lseh FkkA ¼9½ nkfgus furEc ij [kjksap dh pksV] tks 5 Xkq.kk 5 lseh Fkh rFkk ck,a furEc ij Fkk] ftldk vkdkj 5 Xkq.kk 6 lseh FkkA ¼10½ nkfgus g~;wejl gM~Mh esa vfLFkHkaxA ¼11½ nkfgus gkFk dh dykbZ dh tksM+ ds ikl jsfM;ks vyuk gM~Mh esa vfLFkHkaxA The opinion given by the doctor in paragraph 4 of his deposition is as below: e`frdk dh e`R;q dk dkj.k flj ij vkus okyh pksV ls mRiUu vk?kkr ds dkj.k gksuk ikbZ x;h FkhA e`R;q dh Ád`fr ekuo&o/k QyLo#i dh FkhA e`R;q dk le; ijh{k.k le; ls 12 ls 24 ?kaVs ds Hkhrj dk FkkA esjk Áfrosnu ÁŒihŒ&14 gS] ftlds v ls v Hkkx ij esjs gLrk{kj gSaA In the cross-examination of the witness, what has been elicited is that while falling on the heap of wood, injuries on the face could be caused but the doctor has empathetically denied suggestion that the other injuries may be caused due to fall on the firewood. The evidence of the doctor and the postmortem report clearly establish as beyond all doubt that the deceased died homicidal death due to multiple injuries including injuries on head and that she also sustained burn injuries all over the body. 8. The prosecution evidence with regard to the place where the dead-body was found is also proved from the overall evidence on record led by the prosecution and proof of inquest report Ex. P/10 by Ratna Ram (PW-6). Dashrath (PW-1) has stated that the police had prepared panchanama on which he had affixed his thumb impression and the dead-body was found at the place stated in the panchanama. Fagnu (PW-2), father of the appellant has also stated in paragraph 3 of the evidence that he went to the house of Bitul (the appellant) where he found Geeta was lying. Similar is the evidence of Bhinsu (PW-3), Ratiya (PW-4) and Bhola Gupta (PW-5). The Nazari Naksha duly proved in Ex. P/6 by Ratiya (PW-4) shows that the dead-body of Geeta was found in the inner room of the house of the appellant. Therefore, there is no doubt that the deceased was found dead in her own house. 9. The father, sister-in-law and brother of the appellant have been examined and from their evidence it is clear that the appellant and his wife were residing together in their house. Therefore, once the wife of the appellant is found dead in the house and the evidence proves that she died homicidal death having received multiple injuries, the appellant was required to explain as to how his wife sustained fatal injuries. 10. The appellant has, however, come out with the plea of alibi stating that he was not present in the house at and around the time of death of his wife. Dashrath (PW-1) has stated in paragraph 2 of his evidence that when he was going to forest, the appellant – Bitul met him in front of his house and informed that his wife has died. This shows that in the morning, the appellant was in his house only. In his cross-examination, he has admitted that Bitul and his wife resided together. This shows that in the morning, the appellant was in his house only. In his cross-examination, he has admitted that Bitul and his wife resided together. Though, a suggestion has been given to Fagnu (PW-2), father of the appellant that after having gone for work at 8 am in the morning he had stayed overnight with some other persons, from the evidence of this witness in paragraph 7, it is clear that this is not from his personal knowledge and it was stated to him by the appellant. Bhinsu Bai (PW-3), sister-in-law of the appellant has stated in paragraph 2 of her evidence that in the morning at about 8 the appellant had gone for grazing cattle but at 5 pm in the evening, he had come back. In paragraph 10 of her cross-examination, she having been suggested that the appellant had not come back in the night, she emphatically stated that the appellant came back to house around 10-11 pm and at the same time, she also stated that by 8 pm, she had gone to sleep. Thus, her evidence in paragraph 2 that at 5 pm, the appellant had come back to his house, is reliable. Ratiya (PW-4), who is the elder brother of the appellant, has stated in paragraph 3 of his evidence that a day before of death of Geeta, the appellant had gone to work in village Nagum and did not return to his house in the night. This version has not been supported by any independent witness of village Nagum or by any other friends with whom he is said to have stayed overnight to celebrate 'Chherta' Festival. 11. Over and above all, the appellant who has been examined under Section 313 of the Cr.P.C. has clearly stated that he had gone out at 8 am in the morning and come back at 8 pm in the evening. Thus, from the entire evidence with regard to the appellant's presence, it is appellant's own case and also supported and corroborated from the evidence of Bhinsu (PW-3) that the appellant was in the house and had come back to his house in the evening. Thus, from the entire evidence with regard to the appellant's presence, it is appellant's own case and also supported and corroborated from the evidence of Bhinsu (PW-3) that the appellant was in the house and had come back to his house in the evening. Thereafter, the appellant remained absent from his house, was his burden, required to be discharged by leading clinching and reliable evidence by the appellant but he has failed to establish and on the contrary, he himself has stated that he had come back to his house at 8 pm in the evening. 12. There is one more strong incriminating circumstance involving in the alleged commission of offence and that is the false explanation offered by the appellant to Dashrath (PW-1). In paragraph 15 of his cross-examination, he has deposed that Bitul (the appellant) informed him that his wife while cooking food in drunken stage, died due to burning. This false explanation of death due to burn, whereas, according to the postmortem report and evidence of doctor, the deceased died due to multiple injuries, is also one of the incriminating circumstance against the appellant which points towards his guilt. Therefore, the aforesaid circumstantial evidence, proved by the prosecution leaves no manner of doubt that it was the appellant who should be held guilty of murder of his wife. 13. Though, learned counsel for the appellant feebly submitted, in the absence of any proved circumstance, we do not consider the present case to be a case of culpable homicide not amounting to murder but a case of murder. Accordingly, conviction of the appellant for commission of offence under Section 302 of the IPC is not liable to be interfered with. Therefore, the appeal fails and is hereby dismissed.