Vishnu Bhavte vs State Of Chhattisgarh
2022 Latest Caselaw 4204 Chatt

                                                                                Cr.A.No.171/2014

                                            Page 1 of 8

                                                                                                AFR

                  HIGH COURT OF CHHATTISGARH, BILASPUR

                             Criminal Appeal No.171 of 2014

{Arising out of judgment dated 30-11-2013 in Sessions Trial No.212/2012 of
                     the learned Sessions Judge, Durg}

Vishnu Bhavte, S/o Rambhau Bhavte, Aged about 46 years, R/o Jawahar
Nagar, Bombay Awas, Quarter No.340, P.S. Jamul, Distt. Durg (C.G.) Civil &
Revenue Distt. Durg
                                                             (In Custody)
                                                            ---- Appellant

                                              Versus

State of Chhattisgarh, Through P.S. Jamul, Distt. Durg (C.G.)
                                                             ---- Respondent

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For Appellant: Mr. Vikas A. Shrivastava, Advocate. For Respondent/State: Mr. Soumya Rai, Panel Lawyer.

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Agrawal

Judgment On Board (05/07/2022)

Sanjay K. Agrawal, J

1. This criminal appeal preferred under Section 374(2) of the CrPC is

directed against the judgment of conviction recorded and sentence

awarded by the learned Sessions Judge by which the appellant has

been convicted for offences under Sections 302 & 201 of the IPC and

sentenced to undergo imprisonment for life and to pay a fine of ₹

1,000/-, in default, to further undergo simple imprisonment for six

months and to undergo rigorous imprisonment for three years and to

pay a fine of ₹ 500/-, in default, to further undergo simple

imprisonment for one month, respectively.

2. The case of the prosecution, in brief, is that the appellant was staying

along with this wife Devi (kept) at Bombay Awas, Jawahar Nagar, Cr.A.No.171/2014

Quarter No.S-340, Police Station Jamul, Durg, Distt. Durg and on 24-

5-2012, he assaulted her by hands & fists and thereby strangulated

her by the sari which she was wearing at that time and thereafter, in

order to screen himself from the offence, he lodged report that she

died on account of high fever, and thereby committed the offence. It is

the further case of the prosecution that since the wife of the appellant

had absconded leaving him, the appellant had kept Devi Telugu as his

wife for last six months and they were living together at Quarter No.S-

340, Bombay Awas, Jawahar Nagar, Durg, and on 24-5-2012, at

11.10 p.m., he reported the matter to the police station that morning

he had gone for earning his livelihood by rickshaw pulling and when

he reached home at 4.30 p.m., his wife was found to be suffering from

high fever, thereafter, he took her to the hospital where she was

declared dead, as such, his wife died on account of high fever. On the

basis of the information given by the appellant, the police registered

morgue intimation No.37/2012 vide Ex.P-18 pursuant to which FIR

was registered at Police Station Jamul for the offence punishable

under Section 302 of the IPC vide Exs.P-16 & P-17. Thereafter, dead

body was sent for inquest. Several injuries / abrasions were found on

the body of the deceased and there was swelling near eyes and on

neck. The body was sent for postmortem examination which was

conducted by Dr. Badri Narayan Dewangan (PW-6) vide Ex.P-10.

Cause of death was asphyxia due to airway obstruction caused by

antemortem strangulation.

3. Statements of the witnesses were recorded under Section 161 of the

CrPC. The accused / appellant was arrested and thereafter, his

memorandum statement was recorded vide Ex.P-7 and on that basis, Cr.A.No.171/2014

the sari used in the commission of offence was recovered at his

instance vide Ex.P-8. A query was also made to the doctor who

opined that strangulation can be caused by the sari which has been

seized.

4. After completion of investigation, the accused / appellant was charge-

sheeted for offences under Sections 302 & 201 of the IPC and charge-

sheet was filed before the jurisdictional criminal court. The accused /

appellant abjured the guilt and entered into witness. The prosecution

examined as many as eleven witnesses and exhibited 18 documents.

The defence has examined none and no document has been

exhibited.

5. The trial Court after appreciating oral and documentary evidence on

record, convicted the appellant under Sections 302 & 201 of the IPC

and sentenced him for the period aforesaid against which this appeal

under Section 374(2) of the CrPC has been preferred.

6. Mr. Vikas A. Shrivastava, learned counsel appearing for the appellant,

would submit that only on the basis of memorandum statement of the

accused and seizure of sari pursuant to the said memorandum, the

appellant has been convicted, motive of the offence has not been

established and even there is no evidence connecting the appellant

herein to the offence in question and therefore the impugned

conviction recorded and sentences awarded must be set aside.

7. Mr. Soumya Rai, learned Panel Lawyer appearing for the State /

respondent, would support the impugned judgment and would submit

that it is a house murder where the appellant has to explain how his

wife died and who caused the death of the deceased which he has not

explained. Even the sari used as the weapon of offence by which Cr.A.No.171/2014

strangulation has been made, has been seized pursuant to

memorandum statement of the appellant and the injuries have been

established through the memorandum witnesses and therefore the

appeal deserves to be dismissed.

8. We have heard learned counsel for the parties and considered their

rival submissions and also went through the original records of the trial

Court with utmost circumspection and carefully as well.

9. The trial Court upon consideration of postmortem report in which

cause of death has been held to be asphyxia due to airway

obstruction caused by antemortem strangulation and nature of death

is homicidal and further taking into consideration, the statement of

doctor who has conducted autopsy i.e. Dr. Badri Narayan Dewangan

(PW-6), has clearly come to the conclusion that the death of the

deceased is homicidal in nature. As per the statement of Dr. Badri

Narayan Dewangan (PW-6), (injury No.6) ligature mark has been

found on down side of neck in the size of 12 c.m. x 1.5 cms. and just

below the mark, blood was also deposited apart from other injuries.

On that basis, the trial Court has held the nature of death to be

homicidal. The said finding recorded by the trial Court holding the

death of the deceased to be homicidal in nature considering the

nature of injuries suffered by the deceased, is a finding of fact based

on the evidence available on record, it is neither perverse nor contrary

to the record and we hereby affirm the said finding.

10. Now, the question is, who is the author of the crime in question?

11. In a case based on circumstantial evidence, the prosecution has to

prove all the circumstances and then has to link the circumstances to

form a chain which leads to only one conclusion that is the guilt of the Cr.A.No.171/2014

accused. If there is any chance of the accused having not committed

the offence or there be any chance of any other person committing

such an offence then the accused has to be given benefit of doubt.

12. In the instant case, it is not in dispute and fully established from the

evidence on record that in Quarter No.S-340, Bombay Awas, Jawahar

Nagar, Durg, the appellant was staying with his wife (kept but not

married) and earning his livelihood by rickshaw pulling. It is also not

in dispute that the appellant's legally wedded wife had already left him

and on that count, he had kept deceased Devi along with him in his

Quarter No.S-340, Bombay Awas, Jawahar Nagar, Durg. This fact is

duly established from the statement of Smt. Sharada Gedam (PW-2).

In paragraph 2, she has clearly stated before the Court that the

appellant used to stay along with his wife (deceased), who has died,

in Bombay Awas after 2-3 rooms of her quarter and this statement has

not been controverted on behalf of the accused.

13. Smt. Parvati (PW-4) is the elder sister of the deceased. She has

stated before the Court that one or two days prior to the date of

incident, she has gone to the house of the accused and the deceased

where she found that they both were quarrelling with each other and

this statement of Smt. Parvati (PW-4) has also not been controverted

on behalf of the accused / appellant. Thus, it is quite established that

on the date of incident, both the appellant and the deceased were

living together in the said house.

14. Apart from this, pursuant to the memorandum statement of the

appellant recorded vide Ex.P-7, sari used in strangulation has also

bee seized from the possession of the appellant vide Ex.P-8 which

has been proved by D. Krishna (PW-5) and which has not been Cr.A.No.171/2014

contradicted on behalf of the appellant.

15. The place of incident is the house of the appellant. It is established

that on 24-5-2012, the deceased suffered injuries on her neck and

ligature marks and other injuries were also found on her body, and her

death was homicidal in nature as held herein-above. The appellant

was her husband though not married but both were living together.

The appellant was required to explain how his wife Devi sustained

injuries and died as a result of asphyxia due to airway obstruction

caused by antemortem strangulation as stated above, as he was the

only person in the house on the date of incident, which he has not

explained.

16. In the matter of Harijan Bhala Teja v. State of Gujarat 1, the Supreme

Court has held that where the postmortem report establishes

homicidal nature of death and since the accused only was staying with

his wife at time of her death, it is for the accused to show has to in

what manner she died and relying upon Section 106 of the Indian

Evidence Act in paragraph 19 of the report it was held as under: -

"19. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it is proved on the record that it was only the appellant who was staying with his wife at the time of her death, it is for him to show as to in what manner she died, particularly, when the prosecution has successfully proved that she died homicidal death."

17. Likewise, in the matter of Gajanan Dashrath Kharate v. State of

Maharashtra2, where the accused (Gajanan Dashrath Kharate)

alleged to have killed his father and accused has not offered any

explanation for homicidal death of his father, conviction was affirmed 1 AIR 2016 SC 2065 2 AIR 2016 SC 1255 Cr.A.No.171/2014

by the Supreme Court by holding as under in paragraph 14: -

"14. Upon appreciation of oral evidence and the circumstance of the recovery of blood stained clothes of the accused and the conduct of the accused in not offering any explanation for the homicidal death of his father, by concurrent findings, the trial court and the High Court rightly convicted the appellant-accused under Section 302 IPC and we do not find any reason to interfere with the impugned judgment."

18. Similarly, in the matter of State of Andhra Pradesh v. Patchimala

Vigneswarudu alias Vigganna alias Ganapathi 3, the Supreme Court

having found that there is an evidence of last seen and where the

motive and homicidal death are proved by medical evidence, restored

the conviction.

19. Reverting to the facts of the case, in our considered opinion, the

prosecution has proved the homicidal nature of death of the deceased

and has also successfully proved by circumstantial evidence that the

deceased was the wife / kept of the appellant and they both were

staying together on 24-5-2012 in Quarter No.S-340, Bombay Awas,

Jawahar Nagar, Durg, and the deceased was found dead in the said

house and the appellant has falsely made report to the police vide

Ex.P-18 that the deceased was suffering from high fever and thereby

she died. Nature of death of the deceased was homicidal and cause

of death was asphyxia due to strangulation. It is the case of house

murder and the appellant has failed to explain as to how his wife died.

In our opinion, the above chain of circumstances is complete and

leads only to one conclusion that it was the accused / appellant who

caused the death of the deceased and he alone committed the murder

of deceased Devi. The view taken by the learned Court of Sessions

3 (2016) 4 SCC 611 Cr.A.No.171/2014

that the chain of circumstances is complete is correct and he has

properly analyzed medical evidence and circumstantial evidence to

come to the conclusion that death of deceased Devi was homicidal in

nature.

20. For the foregoing reasons, we are of the view that the appeal

deserves to be dismissed. Therefore, the appeal is dismissed.

                 Sd/-                                           Sd/-
          (Sanjay K. Agrawal)                            (Sanjay Agrawal)
                Judge                                          Judge

Soma