Bittu Tandon vs State Of Chhattisgarh
2023 Latest Caselaw 181 Chatt

                                     1



          HIGH COURT OF CHHATTISGARH, BILASPUR

                                Order Sheet

                            CRA No. 156 of 2022

Bittu Tandon S/o Shri Ramesh Tandon Aged About 28 Years R/o
Village Tikari, P. S. Masturi, District Bilaspur Chhattisgarh.

                                                        ---- Appellant

                                 Versus

State Of Chhattisgarh Through Police Of P.S. Masturi, District
Bilaspur Chhattisgarh

                                                      ---- Respondent

DB Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Rakesh Mohan Pandey

10.01.2023 Mr. Akhil Kumar Samantray, counsel for the appellant.

Mr. Ashish Tiwari, G.A. for the State.

Heard on I.A. No. 1 of 2022, application for suspension of sentence and grant of bail to the appellant.

The appellant has been convicted and sentenced by the judgment of conviction and order of sentence dated 13.01.2022, in Sessions Trial No.112 of 2019, passed by the learned Fifth Additional Sessions Judge, Bilaspur, District- Bilaspur (C.G.) in the following manner:-

Conviction Sentence U/s. 302 of Indian Penal RI for life and fine amount Code. of Rs.100/-, in default of payment of fine, additional R.I. for 10 days (fine amount has already been deposited before the trial Court).

The prosecution story, in short, is that on 29.4.2019 at about 12:15 hours, complainant - Kranti Kumar Kosle (PW-7) alongwith Village Kotwar - Umend Ram (PW-3) and Rakesh Bhargav (PW-8) gave oral intimation to the police to the effect that on 28.4.2019 at about 19:45 hours some quarrel took place between the appellant and his wife, namely, Smt. Vimla Tandon and thereafter, the appellant assaulted his wife by hands and fists and strangulated her neck. Consequently, FIR was registered for the offence punishable under Section 302 of the Indian Penal Code.

Learned counsel for the appellant would submit that there is no direct evidence against the present appellant and the prosecution has utterly failed to prove the case beyond reasonable doubt, therefore, presumption contained under Section 106 of the Evidence Act cannot be applied against the appellant. He would further submit that at the time of incident he was not present and therefore, his application for suspension of sentence and grant of bail may be allowed.

On the other hand, learned State counsel would submit that Dr. N.R. Kanwar (PW-11) has proved that the cause of death was asphyxia on account of throttling vide his report Ex.P/17. The appellant has made extra- judicial confession before Sudhir Kujur (PW-5) and Rajveer Mahilange (PW-14). He would further submit that at the time of incident only appellant and the deceased were present in the house and the appellant has not explained any other plausible explanation with regard to death or injury sustained by the deceased. He would also submit that the application moved by the appellant is liable to be rejected.

We have heard learned counsel for the parties and perused the record.

From the record, it appears that on the date of incident i.e. on 28.4.2019 at about 19:45 hours only appellant and deceased were present in the house. Soon thereafter, dead-body of the deceased was found. According to postmortem report, cause of death is asphyxia on account of strangulation. Further considering the extra-judicial confession made by the appellant before Sudhir Kujur (PW-5) and Rajveer Mahilange (PW-14) and also considering the fact that no plausible explanation has been given with regard to death or injury sustained by the deceased, which attracts the provisions of Section 106 of the Evidence Act.

Considering the above aspect of the matter, we are not inclined to allow this application.

Accordingly, I.A. No. 1 of 2022, application for suspension of sentence and grant of bail to the appellant is rejected.

        (Sanjay K. Agrawal)          (Rakesh Mohan Pandey)
             Judge                            Judge




Nimmi