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2022 DIGILAW 59 (CHH)

Mahesh Bharti v. State of Chhattisgarh

2022-01-28

ARVIND SINGH CHANDEL, RAJENDRA CHANDRA SINGH SAMANT

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JUDGMENT : R.C.S. SAMANT, J. Heard. 1. This appeal has been preferred against the judgment of conviction and order of sentence dated 11.4.2014 passed by the Learned Sessions Judge, Rajnandgaon, District Rajnandgaon, Chhattisgarh in Sessions Trial No. 64 of 2013 whereby and where under the Learned Sessions Judge has convicted the appellant under Section 302 of the Indian Penal Code (for short 'IPC') and sentenced him to undergo imprisonment for life and fine of Rs.1,000/-, in default of payment of fine to further undergo RI for 3 months. 2. The case of the prosecution, in brief, is that the appellant, his wife – Sudha Bharti (the deceased) and children are residents of village Farhad. On the date of incii.e. on 14.5.2013, deceased - Sudha Bharti was sleeping inside the house, the appellant was sleeping in the Courtyard and his son Manish Bharti (PW-1) had been to some marriage function. Manish Bharti (PW-1) came back to home at about 1:30 am in the night and saw that the appellant was attempting to commit suicide by hanging himself. The appellant said to Manish Bharti (PW-1) that he has killed his mother and he himself wants to die. The information was given to other persons and village Kotwar – Banshilal (PW-2). Banshilal (PW-2) lodged the FIR (Ex.P/2), in which the offence under Section 302 of the IPC was registered against the appellant. Merg intimation vide Ex.P/8 was separately registered and lodged. Inquest procedure on the dead body of deceased - Sudha Bharti was taken up. Dr. B.L. Kumre (PW-15) conducted the postmortem examination and reported vide Ex.P/10A. He found various incised wounds on the body of the deceased and on the basis of the findings in the internal examination, he has opined that the cause of death had been neurogenic and hypovolemic shock, which has resulted due to cutting of the main blood vessels. Investigating Officer, Yogita Khapde (PW-11) seized a bloodstained axe, two blood-stained lungis, a blood-stained paidan, broken bangles which were blood-stained and the rope that was hanging from the roof vide Ex.P/4. The clothes worn by the appellant were seized by the police vide Ex.P/8. Seized articles were sent for FSL examination. A spot map was prepared by the Investigating Officer and a spot map Ex/P-18A was also got prepared from Patwari, Chandrasen Chouhan (PW-13). The clothes worn by the appellant were seized by the police vide Ex.P/8. Seized articles were sent for FSL examination. A spot map was prepared by the Investigating Officer and a spot map Ex/P-18A was also got prepared from Patwari, Chandrasen Chouhan (PW-13). Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and on completion of investigation, charge-sheet was filed before the Court. 3. After completion of committal proceedings, learned Sessions Judge took cognizance in the case and framed charges under Section 302 of the IPC against the appellant. The appellant pleaded innocence and denied the charges. The prosecution has examined as many as 17 witnesses. On completion of prosecution evidence, the appellant/ accused was examined under Section 313 of the Cr.P.C., in which the appellant denied all the incriminating evidence against him and again he made a statement of innocence and false implication. He made a statement in his defence that he was sleeping in the Courtyard and his wife was sleeping inside the house. He saw a man coming out from the house, who called the appellant and said that he killed his wife and if he raises alarm, he will kill him also. Subsequent to which, out of grief, he attempted to commit suicide. No evidence was led in the defence. After giving an opportunity of hearing to the prosecution and defence, the learned trial Court delivered the impugned judgment by convicting and sentencing the appellant in the manner mentioned herein-above. 4. It is submitted by counsel for the appellant that the conviction of the appellant is totally baseless and without the support of any evidence of the prosecution. Conviction is although based on circumstantial evidence but the whole chain of circumstantial evidence has not been proved. Learned trial Court has erroneously disbelieved the statement of the appellant that some other person had caused death of the deceased. Manish Bharti (PW-1) has not supported the prosecution with respect to the extra-judicial confession made by the appellant for which the witness was declared hostile. Banshilal (PW-2) has also made a statement that he was informed by the appellant that some other person has come and killed the wife of the appellant, therefore, only for the reason that it is a case of house murder; the presumption drawn on the basis of Section 106 of the Evidence Act is incorrect. Banshilal (PW-2) has also made a statement that he was informed by the appellant that some other person has come and killed the wife of the appellant, therefore, only for the reason that it is a case of house murder; the presumption drawn on the basis of Section 106 of the Evidence Act is incorrect. There is no other evidence present in the case on the basis of which, the appellant could have been held guilty. 5. Relying on the judgment of the Supreme Court in the case of Nagendra Sah vs. State of Bihar, reported in (2021) 10 SCC 725 , it is submitted that the chain of circumstances on which the prosecution is based has to be established, in a case where prosecution fails to bring proof in this respect then there shall be no requirement for the accused to give any explanation as required under Section 106 of the IPC. Hence, it is a case in which there is no direct evidence. The FSL report was also not available in the trial, therefore, there was practically no case present against this appellant. Hence, the appellant is entitled for acquittal of the charge. 6. Learned State counsel opposes the submissions made by counsel for the appellant and submits, that it is clearly a case of house murder in which the wife of the appellant was found murdered in her own house and the appellant was present at the time when she was done to death. The prosecution has proved all the circumstances. The explanation that has been given by the appellant in his examination under Section 313 of the Cr.P.C. has not been proved by bringing any evidence. Hence, the conviction of the appellant is proper, which needs no interference. 7. Heard counsel for both the parties and perused the documents present on record. 8. There appears to be no dispute that deceased - Sudha Bharti was murdered, on the basis of the statement of the witnesses and also on the basis of the statement of Dr. B.L. Kumre (PW-15) according to which, several injuries were caused to the deceased by some hard and sharp object because of which, the main blood vessels were cut and resulted in neurogenic and hypovolemic shock which was the cause of death. B.L. Kumre (PW-15) according to which, several injuries were caused to the deceased by some hard and sharp object because of which, the main blood vessels were cut and resulted in neurogenic and hypovolemic shock which was the cause of death. There is no such defence that the death of the deceased could have been accidental or due to any other reason. Hence, deceased –Sudha Bharti was murdered is held proved and there is no error in the finding of the learned trial Court on this point. 9. Now the question is that, who has murdered the deceased regarding which, the dispute has been raised in the trial and also in the appeal for which, the evidence is required to be re-appreciated. Manish Bharti (PW-1) stated that he was away from his house, he came back at about 12:30 and 1:00 am in the night and then, he saw the appellant making an attempt to hang himself. This act was intervened and then, the witness informed about this incident to others. The witness went into the room of his mother which was bolted from outside and ongoing inside the room, he saw his mother Sudha Bharati lying dead in the room. The appellant was sent to the hospital for treatment. This witness omitted to make a statement of extrajudicial confession before the Court for which, he was declared hostile by the prosecutor. He has denied all the suggestions given by the prosecutor. In cross-examination, he has admitted that there had been some dispute present between his father and mother (the deceased), however, they had compromised. He has further made an admission showing that the appellant was present in the house when the deceased was murdered. Further, he has stated in his cross-examination that the appellant had narrated to him that he saw some other person came out from the room of the deceased who told him that he has killed his wife and if he raises alarm, he will also killed him. Banshilal (PW-2) has stated that he was informed by some other persons that the wife of the appellant has been killed and the appellant has attempted to hang himself. He is the lodger of the FIR vide Ex.P/2 and merg intimation Ex.P/2A. Banshilal (PW-2) has stated that he was informed by some other persons that the wife of the appellant has been killed and the appellant has attempted to hang himself. He is the lodger of the FIR vide Ex.P/2 and merg intimation Ex.P/2A. This witness was declared hostile for the omission he made in the matter of extra-judicial confession of the appellant but he has denied the suggestions of the prosecutor. 10. Jeevan Lal (PW-4) has stated that he was informed by Manish Bharti (PW-1) on phone that his mother has been killed by his father and he also heard from others that the appellant had attempted to commit suicide. This witness is brother of the deceased. He has further stated about the dispute present between his sister and the appellant. As the deceased had doubt upon the appellant, regarding relation of the appellant with another woman of the village. He was also informed by the deceased that on one occasion she was beaten by the appellant and regarding which, she has lodged a report in the police station. He has further stated that the appellant had also filed an application for divorce in the Court. Later on, a compromise took place between the appellant and his wife (the deceased) and they again started residing together. In cross-examination, he has denied that Manish Bharti (PW-1) had informed that his mother has been killed by somebody else and denied the other suggestions regarding making false statement. Arjun Bandhe (PW-5) had also stated about the dispute between the appellant and his wife and also regarding the compromise. 11. Ramij Bharti (PW-6) is the son of the appellant and the deceased. He has not stated anything against the appellant for which, he has declared hostile by the prosecutor. Harish Chandra (PW-7) was informed about the incident immediately after its occurrence. He visited the spot and saw the dead-body and also the appellant who was suffering from pain. In the other matters, he is the hostile witness. Hasta Bai (PW-9) has stated an incident that occurred prior to the date 14.5.2013, in which the appellant was making allegation on his wife (the deceased) that he had seen her with somebody else and therefore, he will murder the deceased. The death of the deceased is subsequent incident regarding which, the witness was informed. Hasta Bai (PW-9) has stated an incident that occurred prior to the date 14.5.2013, in which the appellant was making allegation on his wife (the deceased) that he had seen her with somebody else and therefore, he will murder the deceased. The death of the deceased is subsequent incident regarding which, the witness was informed. Hemlata Chandrahas (PW-14) has stated that he was informed about the incident and also stated about the dispute present between the deceased and her husband (the appellant). Mansi Bharti (PW-16) has stated that she was informed about the incident by Manish Bharti (PW-1). Vimal Kumar Bande (PW-17) has stated that Sudha Bharti (the deceased) used to call him on phone and tell that the appellant is torturing her, doubting on her character and about threatening that he will kill her, however, this is an improved statement compared to the statement of Ex.P/4. 12. Inspector – Anita Sagar (PW-8) has stated that Sudha Bharti (the deceased) had given a written complaint on 3.8.2012 against her husband alleging about torture by her husband. The other witnesses have been examined and made statements regarding the investigative procedure. 13. On making careful scrutiny on the evidence present in the case, it is found that the first circumstance is that the appellant was present in the house when the death of deceased – Sudha Bharti was caused by inflicting fatal injuries on her body by making use of hard and sharp object. The second circumstance is that the appellant/accused has although come up with a story that some other person had come and killed his wife, but he himself did not raise any alarm neither made any chase of the said person nor he went to complain about the incident to any person. The Investigating Officer – Inspector, Yogita Khapde (PW-11), who has investigated the case has not made any statement regarding any complaint made by the appellant/ accused himself. On the contrary, she has made a statement in her cross-examination that she interrogated the appellant before filing of the charge-sheet. Further, no question was put to her about the defence story or regarding the possibility that the death of the deceased may have been caused by somebody else other than the appellant himself. Therefore, the defence story does not get any support from her evidence and this story brought by the appellant appears to be an after thought. Further, no question was put to her about the defence story or regarding the possibility that the death of the deceased may have been caused by somebody else other than the appellant himself. Therefore, the defence story does not get any support from her evidence and this story brought by the appellant appears to be an after thought. The third circumstance which is worth consideration is regarding the matrimonial dispute of the appellant with his wife which has not been challenged in defence. These are the circumstances which are very clearly established and proved by the prosecution. The conduct of the appellant/accused is subject to consideration as he never complained to the authorities himself or through any other person that it was somebody else who has committed the murder of his wife (the deceased) Sudha Bharti, therefore, we are of the considered opinion that the learned trial Court has not committed any error in convicting the appellant for the commission of offence under Section 302 of the IPC and sentencing him accordingly. Hence, the appeal filed by the appellant is without any substance, which is dismissed.