1 2025:CGHC:12858 NAFR HIGH COURT OF CHHA TTISGARH, BILASPUR Criminal Appeal No.1296 of 2024 Kamlesh Singh Goad @ Mahipal @ Baba S/o Samhar Singh, Aged About 57 Years R/o Village Khatigahan Navatola, P.S. Karojiya, District Dindori (M.P.) Current Address- Ward No. 21, Rapakherva, P.S. Manendragarh, District MCB (C.G.). ... Appellant versus State of Chhattisgarh Through SHO PS Manendragarh, District MCB (C.G.). ---- Respondent ___________________________________________________________ For Appellant : Ms. Anuja Sharma, Advocate For State/Respondent : Mr. Pranjal Shukla, Panel Lawyer ___________________________________________________________ Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 18/03/2025 1. With the consent of learned counsel for the parties, the matter is heard finally. VASANT KUMAR Digitally signed by VASANT KUMAR 2 2. The appellant has been filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973 questioning the judgment of conviction and order of sentence dated 10.04.2024 (Annexure A/1) passed by the First Additional Sessions Judge, Manendragarh, District Koriya (C.G.) in Special Trial No.38/2023, whereby the appellant has been convicted and sentenced punishable under Section 304 Part-II of IPC, rigorous imprisonment for 10 years and fine amount of Rs.500/-, in default of payment of fine amount, additional rigorous imprisonment for one year. 3. Brief facts of this case is that on 08.03.2023, the appellant assaulted his wife with ‘kamani patta’ due to which she sustained injuries on her face, head and shoulder. On the basis of complaint, FIR was registered against the appellant for the offence punishable under Section 302 of IPC. After completion of investigation, police submitted final report before the jurisdictional Court. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. On completion of investigation, charge-sheet was filed against the appellant. 5. In order to bring home the offence, the prosecution examined as many as 18 witnesses. However, no defence witness was examined by the appellants. Statement of the appellant under Section 313 of the Cr.P.C. 3 was recorded, wherein he pleaded innocence and false implication. 6. On completion of the trial, the trial Court convicted and sentenced the appellants as mentioned in paragraph two of this judgment. Hence, this appeal. 7. Learned counsel appearing for the appellant contended that the trial Court has wrongly been convicted and sentenced the appellant without there being any sufficient evidence available on record. She further contended that learned Court below had acquitted the Appellant for the commission of offence under Section 302 of IPC on the ground that the prosecution has failed to establish the guilt beyond reasonable doubt however, without any sufficient evidence had convicted the Appellant for the offence under Section 304 Part II IPC. She further contended that the learned Court below has failed to appreciate that the prosecution has miserably failed to bring home the ingredients of the charges under Section 304 Part II of the I.P.C, thus has wrongly presumed and convicted him as mentioned above. It is further argued that the learned Court below has failed to appreciate that the Prosecution has failed to prove their case beyond reasonable doubt and it is trite in criminal law that convictions cannot be done on the basis of preponderance of probabilities. Moreover, there is no eye witness or any chain of circumstances which may lead to conviction of the present Applicant nor he can be implicated on the basis of last 4 seen theory. There is no eye witness nor the prosecution has substantially proved any chain of events in order to show that the present appellant was involved in the commission of the offence. It is submitted that the chance-witnesses whose statements were recorded failed to explain the reason for their presence. It is further submitted that the Ld. Court below while passing the impugned order has failed to appreciate that there is not nexus of the applicant with the commission of the offence or proximity with the last seen theory. Moreover, in the present case there is not even iota of evidence to suggest any motive for the Appellant to commit the offence as alleged. It is further argued that the court below has stretched its imagination for convicting the present appellant to a great extent not permissible under the law. The prosecution has conducted the investigation and trial in a biased manner which is evident from the fact that despite being no evidence of assault by the Appellant, the appellant was charged with the offence under Section 302 of IPC aforesaid only to make the offence look more heinous. It is further contended that prosecution has failed to adduce any cogent and reliable piece of evidence to prove the guilt of appellant. Without there being any sufficient, cogent and clinching evidence/material available on record, conviction of appellant is not sustainable. 5 8. Per contra, learned Counsel appearing for the State supported the impugned judgment and contended that the impugned judgment passed by the trial Court is based on proper appreciation of material and evidence available on record and the same requires no interference. 9. I have heard learned counsel appearing for the respective parties and perused the record of the trial Court and other material available on record with utmost circumspection. 10. Suresh Baiga (PW-3) has stated that he knew accused Kamlesh Singh as he lived on rent in Rapakherwa. Deceased Jugri Bai was Kamlesh Singh's wife who died on the second day of Holi this year. On Holi, they were celebrating by putting up a D.J. near Rapakherwa temple. Accused Kamlesh Singh and his wife Jugri Bai danced and went home at about 5 p.m. and they also went home. On the second day of Holi, Shyam Jaiswal told him about Jugri Bai's death. When he went there, he saw that there was a crowd and Jugri Bai's body was being taken to Kamlesh Singh's house. The body was lying inside the house where accused Kamlesh was also present. The police had prepared body panchanama Ex.P-3 by giving him notice Ex.P-2 for making panchanama of the dead body of the deceased, the map of the place of occurrence Ex.P-4 and 5 were prepared in his presence, the accused was not interrogated and seizure was not done in his presence nor the 6 Patwari map was prepared but his signature is on memorandum statement Ex.P-9, justice letters Ex.P-10 and 11 and Ex.P-6. The accused was arrested in his presence as per Ex.P-12, he has no other knowledge about the incident. 11. On being asked suggestive questions, Jashpal Singh (PW-8) has accepted that the police has seized blood and plain soil from the crime scene in his presence. However, on being questioned by the police in his presence, accused told that he had hidden the spring belt with which he had killed his wife and the blood stained shirt he was wearing at the time of the crime under the cot inside the house and had got it recovered. The accused produced an iron spring belt and a pink coloured half t-shirt and the same were seized by the police in his presence. He stated that he aware about the incident after death of Jugari Bai. 12. Dr. Rishabh Dave (PW-09), who conducted the post mortem of the deceased- Jugari Bai stated that the eyes and mouth of the deceased were both closed, there was swelling around the left eye, there were many blue marks (contusions) on the back, out of which the largest mark was 9x4 cm in size. There were also many blue marks on the right hip, out of which the largest was 6x4 cm in size. There were also many blue marks on the left thigh, the largest of which was 12x6 cm in size. There were many scratch marks on the left leg, the largest of 7 which was 4x3 cm in size. Left rib bones 3 to 7 were broken towards the back. There was a lacerated wound of 3x1x1 size on the right front side of the head. There was a blue mark on the left front side of the face which was 8x4 cm in size. Internal examination : The deceased had a hairline fracture on the brow of the skull, there was a blood clot on the left front side of the skull measuring 6x4x2 cm. There was bleeding in the left lung and blood clot in the posterior part measuring 4x6 cm. There was blood clot in the right chamber of the heart, the left chamber was empty. Half-digested food was found in the stomach, chyle in the small intestine and fecal matter in the large intestine. Rest of the internal organs were normal. Opinion: He opined that the cause of death was excessive bleeding due to injury to the left lung and brain. All the injuries were antemortem and appeared to be homicidal in nature which occurred between 24 to 48 hours of the examination. The post-mortem report is Ex.P-20. 13. With regard to the death of the deceased, the trial Court relied upon the statement of Dr. Rishabh Dave (PW-09) and the post- mortem report of the deceased is (Ex.P/20). This witness has conducted the postmortem of the deceased- Jugari Bai. 8 14. This witness has opined that, the injuries sustained by the deceased were before death. They could have been caused by hard or blunt objects. The duration of the injuries was two to three days and the injuries were life-threatening. In his opinion, the deceased died due to head injury, coma, cardiac and respiratory arrest. The duration of which was 6 to 12 hours. It was written that the nature of the cause would be decided on the basis of circumstantial evidence. The post- mortem report is Exhibit P-29. 15. There is no evidence available of seeing the incident in the case. Both the accused and the deceased lived together and all the people around and even the landlord knew them as husband and wife, which is sufficient to presume that the accused and the deceased Jugribai were husband and wife. It is true that the sons and daughters of the deceased themselves have stated that they did not know the fact of the accused and the deceased living together as husband and wife, but it is also clear from the evidence that the deceased was living with the accused separately from her sons and daughters for many years. Thus, the accused and the deceased living together as husband and wife on rent in the applicant's house is proved by the evidence. 16. It is also clear from the evidence of the witnesses that the incident took place during Holi and on that day the accused and the deceased were consuming alcohol and dancing and singing to the DJ music 9 being played in the locality on the occasion of Holi and after the evening both of them returned to the rented house. It is also evident from the witnesses that the quarrel and dispute between the husband and wife took place at the place where the DJ was being played. 17. This is proved by the statements. Both the husband and wife returned home in the evening and after that no other person was seen coming or going to them. Only the accused Kamlesh and his wife Jugribai lived in the house and in the morning Jugribai was found dead in that room with injuries on many parts of her body, even the bones were broken. After this the accused was trying to escape from there but was caught and made to sit by the landlord Murari Jaiswal, which is clear from the evidence of Murari Jaiswal. 18. Thus, it is clear that at the time when the deceased was alive for the last time, only the accused Kamlesh was with her in a room, which is sufficient to presume that Jugribai was murdered by Kamlesh because apart from him there was no other person there who could have committed the said crime. After this, the burden of refuting it is on the accused, in which the accused has completely failed. It has also been clearly stated by the witnesses that there was a dispute between the deceased and the accused after consuming alcohol, which also could not be refuted. 10 19. Considering that there is no eye witness to this incident. The prosecution story is wholly based on the circumstantial evidence and on perusal of the record, I have found that the last seen theory has been proved by the prosecution and at the time of incident, the deceased and the appellant were resided together in the room of the appellant and after death of the deceased, next morning door was opened by the appellant and his reaction was that his wife/deceased has consumed liquor and crashed into the door and she received injuries. The explanation given by the appellant is not acceptable. 20. Section 8 of the Indian Evidence Act, 1872 provides as under :- “8. Motive, preparation and previous or subsequent conduct : Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. 11 Explanation 1. - The word "conduct" in this section does not include statements; unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2. - When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. 21. The appellant has not given satisfactory explanation regarding injuries sustained by the deceased. Therefore, the circumstances has been proved by the prosecution and it is crystal clear that guilty is drawn against the appellant and the circumstances has been inconclusive in nature and all the facts have been established with consistent with the hypothesis guilt of the accused and inconsistent to the innocence, therefore, prosecution has proved that chain of evidence is so complete as no reasonable conclusive consistent of the trial Court has rightly convicted the accused under Section 304 Part-II of IPC. 22. Looking to the entire evidence adduced by the prosecution, in considered opinion of this Court that the trial Court has rightly convicted the appellant for the aforesaid offence. I do not find any infirmity or illegality in the impugned judgment of the trial Court. 12 Thus, conviction of appellant is hereby affirmed/maintained. 23. So far as the sentence part is concerned, looking to the evidence available on the face of record. The appellant is in jail since 10.03.2023, this Court is of the opinion that sentence imposed by trial Court upon the appellant (RI for 10 years) appears to be on higher side. So keeping in view all the circumstances, mentioned above, ends of justice will be served if the sentence imposed upon appellant is reduced from RI 10 years to RI 05 years. 24. In the result, appeal is allowed in part. However, fine sentence imposed by trial Court is maintained. 25. With the aforesaid observations, the instant appeal is partly allowed to the extent shown above. 26. Records of the Court below be sent back along with copy of this judgment for information and necessary compliance. Sd/- (Arvind Kumar Verma) Judge Vasant