HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal 259 OF 2004
Shrichand
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! Shri V P Gupta
^ Shri Arun Sao
CORAM: HONBLE MR T P SHARMA ,HONBLE MR R L JHANWAR JJ
Dated: 16/09/2010
: JUDGEMENT
CRIMINAL APPEAL UNDER SECTION 374 2 CR P C
The following judgment of the Court was
passed by T.P. Sharma, J:-
1. Challenge in this appeal is to the judgment of
conviction and order of sentence dated 7/1/2004 passed by
First Additional Sessions Judge, Baloda Bazar C.G. in
Sessions Trial No. 286/2003 whereby and where under after
holding the appellant guilty for the commission of
offence of culpable homicide amounting to murder of his
son Chaitram convicted the appellant under Section 302 of
the Indian Penal Code and sentenced imprisonment for life
and fine of Rs. 1000/- in default of payment of fine
amount additional rigorous imprisonment for 1 year.
2. Conviction is impugned on the ground that without
any iota of evidence sufficient for conviction of the
appellant, Court below has convicted and sentenced the
appellant as aforementioned and thereby committed an
illegality.
3. As per case of the prosecution, on faithful night of
14/6/2003 at about 12.30 (0.30) appellant along with his
son Chaitram and another child were present in his house
at village Kusumi. Present appellant assaulted his son
Chaitram and caused repeated injuries over his body and
caused instantaneously death of Chaitram. Appellant
bolted the room from out side the house where other
children were also present. Appellant went to the Police
Station Palari with blood stained axe, his body and
cloths were stained with blood. Police Officers have
directed one Police Officer to find out the truth who
went to the village thereafter some villagers went to the
house of appellant and saw the dead body of Chaitram
inside the room. They went to Police Station where
appellant was present they called the appellant and
inquired then he made extrajudicial confession that he
has committed the murder of his son Chaitram same was
recorded vide Ex. P-9 thereafter PW3 Madandas lodged
First Information Report vide Ex. P-5. Marg was recorded
vide Ex. P-6. Investigating Officer left for scene of
occurrence and after summoning the witnesses vide Ex. P-
13, inquest over the dead body of deceased Chaitram was
prepared vide Ex. P-14. Blood stained axe and blood
stained towel were seized from the appellant vide Ex. P-
15. Dead body was sent for autopsy to Community Health
Center Palari vide Ex. P-2A. PW2 Dr. F.R. Nirala
conducted autopsy vide Ex. P-2 and found following
injuries:-
(i) One incised wound of 4 + ” x 3 +”
over neck on the ground of repeated
injury. Injury was appearing as
lacerated wound. Tracia and internal
part of neck was found cut.
(ii) Incised wound of 2” x 1” x 1 + `’
over left cheek. Jaw was also found cut.
(iii) Incised wound of 2” x 1” x 1 +”
over chin. Bone was also found cut.
(iv) Incised wound of 2 x 1” x 1 +”
over left ear. Jaw was also found cut.
(v) Incised wound of 2” x 1” x 1 +”
over back of the neck.
(vi) Incised wound of 2” x 1” x 1 +”
over left wrist. Ulna bone was also
found fracture.
(vii) Incised wound of 2” x 1” x 1 +”
over right palm.
(viii) Incised wound of 1 +” x + c.m. x
+ c.m. near left eye.
(ix) One incised wound of 1” x +” x
+” over forehead.
Mode of death was shock and death
was homicidal in nature.
4. Spot map was prepared vide Ex. P-1. Appellant was
sent for medical examination vide Ex. P-3A who was
examined by PW2 Dr. F.R. Nirala vide Ex. P-3 and blood
was found over the body of appellant, blood was taken
out with the help of cotton and was sealed. Axe was also
examined by doctor vide Ex. P-4 same was stained with
blood. Blood stained and plain soil were recovered from
the spot vide Ex. P-7. Blood stained shirt, bed-sheet and
other cloths of deceased and cotton stained with blood
found over the body of appellant were sealed vide Ex. P-
16. Seized articles were sent for chemical examination
Vide Ex. P-18. Presence of blood was confirmed vide Ex. P-
22 on axe, towel and cotton by the Forensic Science
Laboratory Raipur.
5. Statements of the witnesses were recorded under
Section 161 of the Code of Criminal Procedure, 1973 (in
short `the Code’). After completion of the investigation
charge sheet was filed before the Judicial Magistrate
First Class, Baloda Bazar who in turn committed the case
to the Court of Sessions, Raipur from where Learned First
Additional Sessions Judge, Baloda Bazar received the
case on transfer for trial.
6. In order to prove the guilt of the appellant/accused
prosecution examined as many as 10 witnesses. Accused was
examined under Section 313 of the Code where he denied
the circumstances appearing against him, innocency and
false implication is claimed. He has taken specific
defence that in the intervening night of 13-14/6/2007 his
son Chaitram was killed by some person, he went to police
station for lodging report but he was detained by police
and was falsely implicated.
7. After affording an opportunity of hearing to the
parties learned First Additional Sessions Judge, Baloda
Bazar convicted and sentenced the appellant as
aforementioned.
8. Learned counsel for the appellant V.P. Gupta and
learned G.A. for the State/respondent Arun Sao are
heard. Judgment impugned and record of Court below
perused.
9. Learned counsel for the appellant vehemently argued
that conviction of the appellant is substantially based
on the evidence of persons before whom present appellant
made extrajudicial confession vide Ex. P-9 but as per
evidence of PW10 Investigating Officer C.D. Lahre he
was present at the time of recording such extrajudicial
confession Ex. P-9 and same was recorded in the police
station premises therefore, same is hit by under Sections
25 & 26 of the Evidence Act except aforesaid evidence
prosecution has not collected any evidence against the
appellant therefore conviction and sentence of the
appellant is not sustainable under the law.
10. On the other hand, learned Govt. Advocate for the
State/respondent opposed the appeal and submits that in
the present case as per evidence of the prosecution
accused himself had gone to police station for lodging
report. He was having blood stained axe and injured dead
body of his son Chaitram was found in his house.
Witnesses has interrogated him although in Police Station
premises but for away from the Police Officers.
Extrajudicial confession made to police is not admissible
in evidence and is hit by under Sections 25 & 26 of the
Evidence Act but extrajudicial confession made in the
police station premises or any premises of police station
is not hit by under Sections 25 & 26 of the Evidence Act.
11. In the present case appellant was immediately
examined by doctor. His body was stained with blood and
same was taken out with the help of cotton. His towel was
also seized, same was examined by Forensic Science
Laboratory and presence of blood over the body of
appellant and towel which appellant was bearing was
confirmed Ex. P-20. Present appellant has not offered any
explanation to show that how his body was stained with
blood. This alone circumstance is sufficient for
connecting the appellant with crime in question and for
drawing an inference that appellant is a person who
culpable homicide amounting to murder of his son
Chaitram.
12. In order to appreciate the argument advanced on
behalf of the parties, we have examined the evidence
adduced on behalf of the prosecution.
13. In the present case, homicidal death as a result of
multiple fatal injuries found over the body of Chaitram
has not been substantially disputed on behalf of the
appellant on the other hand, otherwise also established
by the evidence of PW2 Dr. F.R. Nirala and autopsy report
Ex. P-2 which reveals that as many as 9 injures found
over the body of deceased including fatal injures over
neck and scalp and death was homicidal in nature.
14. As regard the complicity of appellant in crime in
question, conviction is based on circumstantial evidence.
As per the settled law in order to convict an accused
based on the circumstantial evidence, the Apex Court in
the case of Dhananjoy Chatterjee Vs. State of W.B.1 has
held that :-
“In a case based on circumstantial
evidence, the circumstances from which
the conclusion of guilt is to be drawn
have not only to be fully established
but also that all the circumstances so
established should be of a conclusive
nature and consistent only with the
hypothesis of the guilt of the accused.
Those circumstances should not be
capable of being explained by any other
hypothesis except the guilt of the
accused and the chain of the evidence
must be so complete as not to leave any
reasonable ground for the belief
consistent with the innocence of the
accused. 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.”
15. In case of conviction based on circumstantial
evidence, as held by the Apex Court in the matter of C.
Changa Reddy v. State of A.P.2, the prosecution is
required to adduce evidence and such evidence must
satisfying the following tests: –
i. the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;
ii. those circumstances should of a definite tendency
unerringly pointing towards the guilt of the accused;
iii. the circumstances taken cumulatively should form a
chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and
iv. the circumstantial evidence in order to sustain
conviction must be complete and incapable of explanation
of any other hypothesis than that of the guilt of the
accused and such evidence should not only be consistent
with the guilt of the accused but should be inconsistent
with his innocence.
16. In the present case prosecution has relied the
following circumstances:-
(i) Dead body of deceased Chaitram was found
incised the room of appellant in injured
condition.
(ii) At the time of incident at night present
appellant was present in the house at the
time of commission of such offence.
(iii) Present appellant has not offered any
explanation that how Chaitram died and who
has caused injury to Chaitram.
(iv) Present appellant himself has gone to
police station along with blood stained
axe for lodging report.
(v) Present appellant made extrajudicial
confession to the witnesses.
(vi) Body of present appellant was stained
with blood and same was examined by
doctor.
(vii) Blood stained found over the body of
appellant was taken out with the help of
cotton by the doctor and same was sealed
and sent for chemical examination.
(viii) Blood stained towel which appellant
was bearing was seized from the appellant
by the Investigating Officer.
(ix) Blood stained towel and axe were
examined by Forensic Science Laboratory
and presence of blood over axe and towel
seized from the appellant and blood
stained cotton taken from the body of
appellant were confirmed vide Ex. P-22.
17. As per evidence of PW2 Dr. F.R. Nirala he has
examined appellant Shrichand on 14/6/03 vide Ex. P-3 no
injury was found over his body but his body was stained
with blood specially blood was found over both side of
the chest, finger of left hand, both the legs, both the
toe which was taken out for the help of cotton and was
sealed and handed over to the Constable. He has also
examined axe which was stained with blood Ex. P-4. In his
cross examination he has explained that if the person
caught hold the person who would be in bleeding condition
even blood stained found on the body of the appellant
would not be possible but stained may be occurred if the
person will be present in close distance with the person
whom other persons has caused injury.
18. PW3 Madandas, PW7 Kejuram, PW8 Sukhelal Ratre have
deposed in their evidence that they came to know that son
of appellant Chaitram has been murdered then they went to
the house of appellant thereafter they went to the police
station where appellant was present with axe. They called
the appellant and asked in absence of police then he told
and made extrajudicial confession that he has committed
murder of his son Chaitram which they recorded Ex. P-9.
19. Defence has cross examined these witnesses at length
in which they have specifically deposed that after
calling the appellant in separate place in police station
premises they have interrogated the appellant and
appellant has made extrajudicial confession before them
although PW10 Investigating Officer C.D. Lahre has
deposed in Para-9 of his evidence that at the time of
recording such Panchnama Ex. P-9 he was present.
Definitely, in the present case Investigating Officer
himself has directed the villagers to inquire from
appellant and appellant himself present in the police
station with blood stained axe, appellant has not made
any extrajudicial confession to police but statement of
PW10 Investigating Officer C.D. Lahre reveal that he was
recorded extrajudicial confession made by appellant in
his presence therefore only extrajudicial confession made
by appellant to witnesses would not be safe for drawing
definite conclusion that too relating to complicity of
appellant in crime in question. Evidence of aforesaid
witnesses including presence of PW10 Investigating
Officer C.D. Lahre and defence taken by the appellant
reveal that present appellant himself had gone to police
station he was present at police station and was holding
blood stained axe. As per evidence of doctor blood
stained was found on different part of the body of
appellant which was taken out with the help of cotton.
Chemical examination report reveal that blood was
confirmed on the cotton, axe and cloths which the
appellant was bearing although blood group has not been
detected by the Chemical Examiner.
20. In the present case present appellant has not
offered any explanation that how blood was found over his
body and in his cloths, who was present in the house at
night and who had caused injuries to his son Chaitram as
suggestion given by the defence to PW2 Dr. F.R. Nirala in
Para-9 of his evidence, he has also not offered any
explanation that who has caused injures to his son
Chaitram or who was standing near his son Chaitram at the
time of causing such injury. Appellant was present
incised the house along with his son Chaitram at the time
of commission of such incident who was under obligation
to explain the circumstances in terms of under Section
106 of the Evidence Act but present appellant has not
offered any explanation while along with the question of
offence committed in secrecy and requirement of
explanation.
21. As held by the Apex Court in the case 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.”
22. In absence of any explanation the only inference
would be possible that present appellant is a person who
has committed the offence and is author of the crime and
except appellant no other person has committed the
offence.
23. If aforesaid circumstances are considered together
then only inference would be possible that present
appellant alone has committed the culpable homicide
amounting to murder of his son Chaitram and other than
the appellant nobody has committed the aforesaid offence.
24. After appreciating, the evidence available on record
learned First Additional Sessions Judge, Baloda Bazar
has rightly convicted and sentenced the appellant as
aforementioned. The conviction and sentence of the
appellant is based on legal, clinching and credible
evidence and is sustainable under the law.
25. On close scrutiny of the evidence, we do not find
any illegality or infirmity in the conviction and
sentence of the appellant. The appeal is devoid of
merits. Consequently, criminal appeal is liable to be
dismissed and is hereby dismissed.
JUDGE