Chattisgarh High Court
Ishwarlal vs State Of M.P Now Cg on 15 February, 2010
Author: T.P.Sharma
Bench: T.P.Sharma
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No.376 of 1989
1. Ishwarlal
2. Bhagwati Bai
...Petitioners
Versus
State of M.P Now CG
...Respondents
(CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL
PROCEDURE, 1973)
! Mr.Arun Kochar, counsel for the appellants
^ Mr.Rakesh Kumar Jha, Additional Public Prosecutor for the State
HONBLE MR.T.P.SHARMA, HONBLE MR.R.L.JHANWAR, JJ
Dated:15/02/2010 : Judgment JUDGMENT) (Delivered on 15th February, 2010) The judgment of the Court was delivered by T.P.Sharma, J.:-
1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 31.3.1989 passed by the Forth Additional Sessions Judge, Bilaspur, in Sessions Trial No.176/1989, whereby and whereunder learned Forth Additional Sessions Judge after holding the appellants guilty for commission of culpable homicidal death amounting to murder of Nirmala in sharing common intention, convicted under Section 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for two years, respectively.
2. Judgment is impugned on the ground that without there being any iota of evidence of commission of murder, the Forth Additional Sessions Judge has convicted and sentenced the appellants as aforementioned and thereby committed illegality.
3. Case of the prosecution, in brief, is that on the fateful day of 4.2.89 at about 4 p.m. at Dabripara Nagoi, Police Station Sarkanda, District Bilaspur, Nirmala, wife of appellant Ishwar was present in the house of the appellants, she was pregnant. Appellant No.2 used to quarrel with the deceased. Dead body of the deceased was found in the house of the appellants. The appellants intimated the persons including maternal relatives of the deceased that the deceased has committed suicide in their house by hanging.
Cheddilal intimated merg to the police vide Ex.P/14. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses vide Ex.P/1, inquest over the body of deceased Nirmala lying in the floor was prepared vide Ex.P/2. One rope was seized from appellant Ishwar vide Ex.P/3. Dead body of the deceased was sent for autopsy to District Hospital, Bilaspur. Autopsy was conducted by Dr.Jawaharlal Shrivastava (PW-12) vide Ex.P/9 and found following symptoms and injuries,
i) Blood mixed white froth was seen over both nostrils and mouth. The eyes were partially open. The conjunctiva was congested. The tongue was bitten between the teeth and was cyanosed at its tip.
ii) A semi circular ligature mark of the size, 1 + cms. x 16 cms., red in colour, below the level of thyroid cartilage was seen. Echymosis and abrasions were on edges of the ligature mark.
On internal examination:
iii) Subcutaneous tissues were read, echymosed laceration of the surrounding underneath muscles, the hyoid bone was fractured (left corn of hyoid) and thyroid cartilages were fractured.
iv) Brain and membrances were congested. Trachea was congested. Contained red-white froth, (fine) fracture of thyroid cartilages and hyoid bone was found. Both the lungs were congested. Right chamber of the heart was full of dark blood, and left chamber was empty. Stomach and intestines were congested, and contains semi solid and liquid fluids.
Spleen liver, kidneys were congested.
Cause of death was asphyxia as a result of strangulation. The ligature mark ante-mortem.
4. Short postmortem was also given by the doctor vide Ex.P/9A which reveals that case of death was asphyxia due to strangulation. Bangles were seized from appellant Bhagwati vide Ex.P/4. Broken pieces of bangles found in the spot were seized vide Ex.P/5. Clothes, ornaments and rope were seized after autopsy vide Ex.P/6. Appellant Bhagwati was also sent for medical examination where 3 liner abrasions were found over wrist by Dr.Sanjay Gupta (PW-11) vide Ex.P/8. Rope was examined by Dr.Jawaharlal Shrivastava vide Ex.P/10 and opined that ligature mark may be caused by the rope sent for examination. F.I.R. was registered vide Ex.P/15. Viscera were sent for chemical examination vide Ex.P/16. Poison was not found in the viscera vide Ex.P/16. Slide of vaginal smear was also sent for examination and blood was found on the slide, but human spurn was not found in the slide vide Ex.P/18.
5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code'). After completion of investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Bilaspur, who in turn committed the case to the Court of the Sessions, Bilaspur from where the Forth Additional Sessions Judge, Bilaspur received the case on transfer for trial.
6. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 17 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question.
7. After affording opportunity of hearing to the parties, the Forth Additional Sessions Judge has convicted and sentenced the appellants as aforementioned.
8. We have heard Mr.Arun Kochar, counsel for the appellants and Mr.Rakesh Kumar Jha, Additional Public Prosecutor for the State, perused the judgment impugned and record of the Court below.
9. Learned counsel for the appellants vehemently argued that appellant No.1 has released on 2.5.2000 after completion of sentence and his release was on probation. Learned counsel further argued that this is the case of suicide committed by the deceased Nirmala in the house of the appellants. The appellants immediately intimated the incident to maternal relatives of the deceased, they have not concealed death of the deceased and they have not offered any false explanation. Only on account of death occurred in the house of the appellants, they are not liable for any offence. The opinion of the doctor is not conclusive.
10. Learned counsel placed reliance in the matter of Padala Veera Reddy v. State of Andhra Pradesh and others1 in which the Apex Court has held that in the absence of direct evidence or failure of prosecution to prove guilt of accused decisively, strong suspicion against accused cannot take place of legal proof. Learned counsel further placed reliance in the matter of Chhittar v. State of Rajasthan2 in which the Apex Court has held that in case of conflict between ocular and medical evidence, the conviction of accused solely on basis of retracted extra judicial confession would not be proper.
11. On the other hand, learned State counsel supported the judgment impugned and argued that the deceased was found dead in the house of the appellants. Autopsy report also reveals that the deceased has died as a result of strangulation and not as a result of hanging. The deceased was died in the custody of the appellants, therefore, the appellants were under obligation to offer explanation that how she died in their custody, but instead of offering explanation they have given false explanation. Even the appellants were under obligation to prove the fact which was within their knowledge in accordance with Section 106 of the Evidence Act. The prosecution has proved its case beyond all shadow of doubt. Learned counsel further argued that the present case is based on extra judicial confession made by the appellants to the witnesses.
12. In order to appreciate the arguments advanced on behalf of the prosecution, we have examined the evidence available on record. In the present case, the appellants have not admitted homicidal death of the deceased. They have only admitted abnormal death of the deceased as a result of asphyxia. The prosecution has not adduced any direct evidence to show that the appellants have strangulated Nirmala (since deceased). Nature of death solely depends upon the evidence of Dr.Jawaharlal Shrivastava (PW-12) who has conducted autopsy and his autopsy report Ex.P/9. Dr.Jawaharlal Shrivastava (PW-12) has deposed in his evidence that on 6.2.88 he has conducted autopsy. He has categorically stated in paras 2, 3, 4 and 5 of his evidence what he had found at the time of autopsy. According to paras 2 to 5 of his evidence it reveals that blood mixed white froth was seen over both nostrils and mouth. The eyes were partially open. The conjunctiva was congested. The tongue was bitten between the teeth and was cyanosed at its tip, a semi circular ligature mark of the size, 1 + cms. x 16 cms., red in colour, below the level of thyroid cartilage was seen. Echymosis and abrasions were on edges of the ligature mark. On internal examination, he also found that subcutaneous tissues were read, echymosed laceration of the surrounding underneath muscles, the hyoid bone was fractured (left corn of hyoid) and thyroid cartilages were fractured and brain and membrances were congested. Trachea was congested containing red-white froth, fracture of thyroid cartilages and hyoid bone. Both the lungs were congested. Right chamber of the heart was full of dark blood, and left chamber was empty. Stomach and intestines were congested, and contains semi solid and liquid fluids. Spleen liver, kidneys were congested.
13. He has stated that just after completion of autopsy he has given short autopsy report vide Ex.P/9A containing cause of death. In para 14 of his cross-examination he has admitted that he did not mention the fact that death was homicidal in his short report Ex.P/9A. He has also admitted in para 15 of his cross-examination that even he has mentioned the fact that death was homicidal in his autopsy report Ex.P/9 and he has denied the suggestion that because he was not sure about nature of death whether it was homicidal or suicidal, therefore, he has not mentioned the fact that death was homicidal in nature in his report. In para 16 of his cross-examination, he has specifically stated that he did not find any symptom on the body of deceased Nirmala indicating the death by suicide. In para 16 (repeat para), he has stated that it is impossible that the aforesaid fractures would be caused while a person tries to untie the rope on the neck. In para 18 of his cross-examination, he has specifically stated that injuries found on the thyroid cartilage, hyoid bone and laceration of muscles cannot be found on the cases of suicide. Defence has cross-examined this witness in detail. This witness has categorically deposed that this was the case of only strangulation and not of hanging or death by suicide. This witness has stated symptom of strangulation and symptom of hanging in detail. Symptom found over the body of the deceased clearly shows that the deceased Nirmala has not died as a result of hanging i.e. suicide, but has died as a result of strangulation and in case of strangulation, death was homicidal in nature.
14. As regards the complicity of the accused/appellants in the crime in question is concerned, the present case is based on the circumstantial evidence. The prosecution has adduced evidence relating to following circumstances,
i) Extra judicial confession made by the appellants to Pushau (PW-3) and Cheddilal (PW-8),
ii) Death of the deceased was in the custody of the appellants in their house,
iii) Death was homicidal in nature,
iv) The appellants have not offered any explanation as required under Section 106 of the Evidence Act,
15. As regards the evidence of extra-judicial confession is concerned, Pushau (PW-3) has deposed in his evidence that he was informed that Nirmala has died, then he along with Bedilal and Cheddilal went to the house of the appellants, the appellants took him and Cheddilal in barn and made extra judicial confession that they have killed Nirmala by throttling. In para 7 of his cross-examination, he has deposed that he was present till 11 p.m., but he has did not tell the factum of extra judicial confession to any of the persons in the house of the appellants. He has also deposed that even he has not told this fact at the time of inquest. Cheddilal (PW-8) has also deposed that the appellants have made extra judicial confession to him in barn that they have killed the deceased by throttling. The defence has cross- examined this witness at length. In para 8 of his cross- examination, he has stated that he did not tell the factum of extra judicial confession to the police even at the time of inquest. This factum of extra judicial confession reveals in his police statement Ex.D/3. There are some omissions in his police statement recorded under Section 161 of the Code.
16. The evidence of the prosecution reveals that the deceased was present in the house of the appellants along with the appellants and died in their house in abnormal circumstances. The appellants have admitted in their examination that the deceased was died in their house and they were present in the house. According to their defence, the appellants have untied the rope of the deceased shows their presence when the deceased died. The appellants have not offered any explanation that how the deceased receiving injuries, inter alia, they have cross-examined the doctor that death was suicidal and the deceased has committed suicide by hanging which was negated by the doctor, even otherwise symptom found over the body of the deceased clearly shows that death was not as a result of the case of suicide, but death was homicidal as a result of strangulation. The offence was committed in secrecy within the knowledge of the appellants, therefore, they were under obligation to explain that how she died and who has strangulated her.
17. As held by the Apex Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra3, in case murder committed in secrecy inside a house, 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. Para 15 of the said judgment reads as under:-
"15. Where an offence like murder is committed in secrecy inside a house, 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 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 cannot 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 an accused to offer any explanation."
18. In the present case, Pushau (PW-3) and Cheddilal (PW-8) have deposed that they have not disclosed the factum of extra judicial confession to the police at the first instance, but subsequently they have stated to the police. Statement of Cheddilal (PW-8) was recorded by the police on 9.2.88. It appears that after confirmation by the autopsy surgeon, they have disclosed the fact after taking the support from the medical evidence, but except the fact that they have not disclosed the true for some days, defence has not brought anything in their cross-examination to discredit their testimony.
19. The circumstances adduced on behalf of the prosecution clearly shows that the deceased was died inside the house in presence of the appellants. Death was not normal or suicidal, but was homicidal. The appellants have not offered any explanation that as to how the deceased died. The appellants have made extra judicial confession to Pushau (PW-3) and Cheddilal (PW-8. The evidences of Pushau (PW-3) and Cheddilal (PW-8 and other witnesses reveal that relation between the deceased and the appellants were not cordial and even as admitted by appellant Ishwar that just two days before the incident he brought the deceased from village Tekar. It shows that there was motive for the commission of offence on the ground of inimical relation. If circumstances proved on behalf of the prosecution are considered together, then only inference would be possible that the appellants are the persons who have committed the offence and have caused homicidal death of deceased Nirmala.
20. As held by the Apex Court in the matter of Padala (supra), in the absence of direct evidence or failure of prosecution to prove guilt of accused decisively, strong suspicion against accused cannot take place of legal proof. In the present case, the prosecution has proved its case by adducing the evidence and the Court below has not convicted the appellants only on the basis of strong suspicion. The case of Padala (supra) is distinguishable on the ground of fact.
21. As held by the Apex Court in the matter of Chhittar (supra), the conviction of accused solely on basis of retracted extra judicial confession is not proper. In the present case, the conviction is not solely based on extra judicial confession, but based on other substantive circumstances. The case Chhittar (supra) is distinguishable on the ground of fact.
22. After appreciating the evidence available on record, learned Forth Additional Sessions Judge has convicted the appellants under Section 302/34 of the Indian Penal Code and awarded minimum punishment prescribed under the law.
23. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned. The appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Appellant No.1 has released on probation by the State Government. Appellant No.2 Bhagwati Bai, who is on bail, is directed to surrender herself immediately before the Forth Additional Sessions Judge, Bilaspur for serving the remaining sentence.
JUDGE JUDGE