Chattisgarh High Court
Jairam Telanga vs State Of Chhattisgarh on 21 October, 2021
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.861 of 2016
Jairam Telanga S/o Sitaram Telanga, Aged about 51
years, R/o S.D.O. Camp Chitalanka, ThanaDantewada,
Distt.Dantewada (CG)
Appellant
(In Jail)
Versus
State of Chhattisgarh Through Police StationDantewada,
Distt.Dantewada (CG)
Respondent
For Appellant: Mr.Deepak Jain, Advocate
For Respondent/State: Mr.Ravish Verma, Govt.Advocate
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Arvind Singh Chandel
Judgment on Board
(21.10.2021)
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of the CrPC is directed against the judgment of conviction recorded for offence under Section 302 of the IPC and sentence awarded i.e. imprisonment for life by the Additional Sessions Judge (F.T.C.), Dakshin Bastar, Dantewada by the impugned judgment dated 19.5.2016 in Sessions Trial No.73/2010.
2. The appellant herein was charged for offences under Sections 376 read with Section 302 of the IPC stating that on 2.11.2009 at 7.50 p.m. at village Chintalanka near SPO Camp, Police Station Dantewada, he committed sexual intercourse with the deceased / prosecutrix against her wishes and thereafter, strangulated 2 (throttled) her and subsequently, the prosecutrix / victim died on the same day at 11.30 p.m. in District Hospital, Dantewada. It is further case of the prosecution that the deceased was residing near SPO Camp, Chintalanka all alone and at the time of incident, she was ill having suffered from vomitting and loosemotion. Chandramani (PW1), first informant / complainant, was looking her after. On 02.11.2009 at 7.50 p.m. when Chandramani (PW1) heard noise near the house of the deceased, she went inside the house of the deceased along with Shyambati (PW2), Gagri (PW3) and Fulo (PW4), then they noticed that the accused was committing intercourse with the deceased and when the accused noticed the presence of Chandramani (PW1), Shyambati (PW2), Gagri (PW3) and Fulo (PW4), he strangulated (throttled) the deceased, which Chandramani (PW1) immediately reported to the Police Station Dantewada on 02.11.2009 at 9.30 p.m. and FIR (Ex.P1) was registered for offences under Sections 376 and 307 of the IPC. She was admitted to District Hospital, Dantewada where she died during the course of treatment and immediately thereafter in place of Section 307 of the IPC, Section 302 of the IPC was substituted and the matter was investigated by the jurisdictional police. During the course of investigation, inquest was conducted vide Ex.P7 in presence of two witnesses and thereafter at the request of District Hospital vide Ex.P8, Dr.Smt.Madhuri 3 Shandilya (PW5) conducted postmortem on 03.11.2009 and submitted her postmortem report vide Ex.P4. On query, report was given by Dr.Smt.Madhuri Shandilya (PW5) vide Ex.P3. On completion of investigation, the investigating officer having found material against the present accused, chargesheet under Sections 302 and 376 of the IPC was filed against him. Later on, learned Magistrate committed the case to the Court of Sessions for trial by order of committal dated 23.2.2010. The accused abjured the guilt and entered into defence.
3. In order to prove the prosecution case, the prosecution examined as many as 9 witnesses and exhibited 17 documents Exs.P1 to P17. Statement of the accused/appellant under Section 313 of the CrPC was recorded in which he denied guilt. However, he examined none in his defence.
4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 19.5.2016, acquitted the appellant for offence under Section 376 of the IPC by holding that offence under Section 376 of the IPC has not been proved beyond reasonable doubt by the prosecution, however, convicted him for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life, against which, this criminal appeal has been preferred.
5. Mr.Deepak Jain, learned counsel for the 4 appellant/accused, would submit as under:
(i) That, the learned trial Court is absolutely unjustified in relying upon testimonies of Chandramani (PW1), Shyambati (PW2), Gagri (PW3) and Fulo (PW4) qua for offence under Section 302 of the IPC as their statements qua offence under Section 376 of the IPC has already been disbelieved by learned trial Court holding them to be untrustworthy, therefore, only on the basis of statement of Chandramani (PW1), learned trial Court has convicted the appellant for offence under Section 302 of the IPC, which is totally unjustified and unsustainable in law.
(ii) That, Dr.Smt.Madhuri Shandilya (PW5) / medical witness has not supported the case of the prosecution as in para5 she has clearly stated that there is no external injury on the body of the deceased. In paras8 to 11, she has also stated that there is no injury on neck of the deceased and in para12, suggestion has been accepted stating that on account of some other reason, blood can be found in trachea, which can be cause of death, as such, the prosecution has failed to prove that death of the deceased was homicidal in nature and therefore, the accused is entitled to be acquitted by extending the benefit of doubt.
(iii) That, the entire prosecution case as projected by the prosecution qua murder of the prosecutrix / victim and found established by learned trial Court is wholly improbable apart from being suspicious.
6. On the other hand, Mr.Ravish Verma, learned Government Advocate for the respondent/State, would support the impugned judgment and submit that the prosecution has 5 proved the commission of offence by the appellant beyond the reasonable doubt and learned trial Court has rightly convicted the accused / appellant for offence under Section 302 of the IPC as statement of Chandramani (PW1) is fully corroborated by medical evidence of Dr.Smt.Madhuri Shandilya (PW5) and therefore, the appeal filed by the appellant herein deserves to be dismissed.
7. We have heard learned appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.
8. The appellant herein was tried for offence under Section 376 read with Section 302 of the IPC and after fullfledged trial, the trial Court disbelieved the story of the prosecution that the appellant has committed sexual intercourse with the prosecutrix on the basis of oral and documentary evidence led by the prosecution and proceeded to acquit him under Section 376 of the IPC, which has not been questioned by the State / respondent herein in preferring appeal against the judgment of acquittal and that part of the judgment has become final in absence of challenge.
9. The question for consideration would be whether the trial Court is justified in convicting the appellant for offence under Section 302 of the IPC by holding that death of the deceased / prosecutrix was homicidal 6 in nature and it was caused by the appellant / accused herein.
10. In order to bring home the offence, the prosecution has examined four eyewitnesses i.e.Chandramani (PW1), Shyambati (PW2), Gagri (PW3) and Fulo (PW4). It is the case of the prosecution that the deceased was living all alone and was unwell on account of vomitting and loosemotion on the date of offence and she was being looked after by Chandramani (PW1). It is further case of the prosecution that on the date of offence, Chandramani (PW1), standing nearby, heard some noise from the house of the deceased / prosecutrix, then she along with Shyambati (PW2), Gagri (PW3) and Fulo (PW4) entered into her house and they saw / noticed that the appellant was having sexual intercourse with the prosecutrix, then they assaulted / committed marpit with the accused / appellant and called SPO Munna Thana and other persons residing therein and in the meanwhile, the appellant strangulated (throttled) the deceased / prosecutrix, which was reported vide Ex.P1. Though it is the case of the prosecution that all four witnesses i.e. Chandramani (PW1), Shyambati (PW2), Gagri (PW3) and Fulo (PW4) saw the accused committing sexual intercourse and strangulating the deceased, but only Chandramani (PW1) has supported the case of the prosecution that the appellant / accused has strangulated the deceased and other witnesses Shyambati (PW2), Gagri (PW3) and Fulo (PW4) have not supported 7 the fact of strangulation by the appellant to the deceased and they have not been declared hostile. Though Fulo (PW4) has stated that she has seen mark of injury on neck of the deceased / prosecutrix and blood was coming out from her neck. Similar statement has been made by Shyambati (PW2) in para10. However, statement of Chandramani (PW1) about the fact of strangulation by the appellant further supported by Shyambati (PW2) in para10 and Fulo (PW4) in para2 has not supported by Dr.Smt.Madhuri Shandilya (PW5) who has conducted the postmortem of the deceased / prosecutrix. In para3, Dr.Smt.Madhuri Shandilya (PW5) has clearly stated that the deceased / prosecutrix was not having any external injury on neck and only in trachea, some congestion and froth was found. In para 7, she has opined that the deceased died on account of asphyxia and death was homicidal in nature, but in para8, she has clearly stated that there was no injury on her neck and in trachea, frothy blood was found. In para10, she has stated that there was no injury found in any part of body including on her neck and in para 11, she has stated that on account of difficulty in breathing, she has died, which was occurred on account of frothy blood present in trachea and blood can occur on account of congestion / chocking in trachea, as such, ocular evidence of Chandramani (PW1), Shyambati (PW2) and Fulo (PW4) are not supported by medical evidence. Dr.Smt.Madhuri Shandilya (PW5) was emphatic 8 on the point that there was no external injury of any kind on her neck and the deceased has died only on account of frothy blood present in trachea, which could occur on account of obstruction in congestion, as such, ocular evidence is not at all supported by medical evidence, but yet Dr.Smt.Madhuri Shandilya (PW5) has opined the death to be homicidal in nature.
11. The question is whether the death can be said to be homicidal in nature though it is the case of strangulation / throttling, but it is not supported by medical evidence.
12. Strangulation has been defined by Modi in his celebrated textbook namely a Textbook of Medical Jurisprudence and Toxicology, 24th Edition 2011, page
451. According to author, strangulation is compression of the neck by a force other than hanging. Weight of the body has nothing to do with strangulation. It has further been defined that when constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling. According to learned author, postmortem appearances are external and internal and the external appearances are those due to the constricting force applied to the neck, and those due to asphyxia and if fingers are used (throttling), marks of pressure by the thumb and the fingertips are usually found on either side of the windpipe. According to learned author, the larynx and 9 trachea are congested, and contains frothy mucus. The cartilages of the larynx or the rings of the trachea may be fractured, when considerable force is used. Learned author while making out the differences between hanging and strangulation has laid down 15 symptoms of strangulation which are as under: Strangulation
1. Mostly homicidal.
2. FaceCongested, livid and marked with petechiae.
3. SalivaNo such dribbling.
4. NeckNot so.
5. External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotid sinus effect).
6. Ligature markHorizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish.
7. Abrasions and ecchymoses round about the edges of the ligature mark, common.
8. Subcutaneous tissues under the mark Ecchymosed.
9. Injury to the muscles of the neckCommon.
10. Carotid arteries, internal coats ordinarily ruptured.
11. Fracture of the larynx trachea and hyoid bone.
12. Fracturedislocation of the cervical vertebraeRare.
13. Scratches, abrasions fingernail marks and bruises on the face, neck and other parts of the bodyUsually present.
14. Sometimes evidence of sexual assault.
15. Emphysematous bullae on the surface of the lungsMay be present.
13. Coming to the medical report and evidence of Dr.Smt.Madhuri Shandilya (PW5), it appears that no symptoms of strangulation as mentioned by learned 10 author (1 to 15) in internal or external are found on the body of the deceased except frothy blood in trachea, which is not any of the symptoms of throttling as indicated by learned author in his celebrated textbook, which goes to show that it is not the case of death of strangulation / throttling at the instance of the present appellant and as such, the prosecution has failed to prove that the death of the deceased / prosecutrix was homicidal in nature. Homicidal means belonging to homicide and homicide means in general the killing of one human being by another and in forensic, medicine, colloquially murder.
14. There is one more reason for not upholding the judgment of conviction as it is argued by learned counsel for the appellant that the prosecution case as projected is not found established by the trial Court as unbelievable and not acceptable and consequently, the appellant was acquitted for charges under Section 376 of the IPC. It is the case of the prosecution that on 2.11.2009 at 7.50 p.m. the accused was sexually assaulting the deceased and at that time, Chandramani (PW1) along with Shyambati (PW2), Gagri (PW3) and Fulo (PW4) reached to the house of the deceased and when they noticed the act of sexual intercourse by the accused to the prosecutrix, they immediately assaulted the accused and called Special Police Officer (SPO) Munna Thana and others and thereafter the accused strangulated the deceased, which appears to be 11 unnatural, if the prosecution story is accepted, the accused was indulged in the act of sexual intercourse with the deceased and when Chandramani (PW1), Shyambati (PW2), Gagri (PW3) and Fulo (PW4) came to the spot, the natural behaviour of the accused would be to run away from the spot and to escape from any kind of assault or with fear of police arresting him for the offence, if any, but in presence of Chandramani (PW1), Shyambati (PW2), Gagri (PW3) and Fulo (PW4), the accused after having noticed by four witnesses would not further indulge in the act of strangulation / throttling the deceased particularly when the above stated four witnesses started assaulting the accused / appellant and he was all alone on the spot and it was further unnatural that Chandramani PW1), Shyambati (PW2), Gagri (PW3) and Fulo (PW4) would not prevent the accused from throttling the deceased / prosecutrix and remained mute spectacular of further offence under Section 302 of the IPC, which is totally unnatural and improbable, which we are not inclined to agree with the submissions made learned counsel for the State.
15. Apart from this, there is another reason for not upholding the judgment of conviction that though Chandramani (PW1), Shyambati (PW2), Gagri (PW3) and Fulo (PW4) have seen the accused throttled the deceased, but in the statement before the Court, only Chandramani (PW1) has supported the act of throttling. Shyambati (PW2) in her statement has clearly stated 12 that the accused did nothing except sexual intercourse. Likewise, Fulo (PW4) did not support the act of throttling except the fact of sexual intercourse and the fact of sexual intercourse / commission of offence under Section 376 of the IPC has not been found proved by learned trial Court. Even the fact of sexual intercourse, which they have supported, which the trial Court did not find favour and said verdict of acquittal has been accepted by the State by not filing appeal, if any, against the judgment of acquittal, as such, the entire prosecution case is suspicious and doubtful and it would be unsafe to base conviction on the sole ocular testimony of Chandramani (PW1) particularly when it is not supported by medical evidence.
16. In view of the aforesaid legal analysis, we are of the considered opinion that the prosecution has failed to prove that death of the deceased / prosecutrix was homicidal in nature and it was caused by the present appellant by placing admissible evidence of clinching nature and thereby we are unable to uphold the judgment of conviction recorded and sentence awarded by learned trial Court. Consequently, we hereby setaside the judgment of conviction recorded and sentence awarded by the Additional Sessions Judge (F.T.C.), Dakshin Bastar, Dantewada in Sessions Trial No.73/2010 on 19.5.2016. The appellant / accused is hereby acquitted of the charge under Section 302 of the IPC. The appellant / accused Jairam Telanga S/o Sitaram Telanga is in jail, 13 he be released forthwith, if not required in any other case.
17. The appeal is allowed to the extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Arvind Singh Chandel)
Judge Judge
B/