Jairam Telanga vs State Of Chhattisgarh
2021 Latest Caselaw 2806 Chatt

                                    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

(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

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

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

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

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

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

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

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

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

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

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,

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/­