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2015 Supreme(Chh) 203
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Pritinker Diwaker, Inder Singh Uboweja, JJ.
Samaru Ram Nirmalkar - Appellants
Vs.
State of C.G. - Respondent
Criminal Appeal No. 581 of 2011
Decided On : 26-06-2015
For the Appellant :Indira Tripathi, Advocate
For the Respondents: Roshan Dubey, Panel Lawyer
Headnote:
Indian Penal Code - Section 302 – Criminal Procedure Code - Section 313 - Judgment of conviction – Offence of Murder – Injury - In defiance, he has stated that the police have made him to sign certain paper after committing with him, his relations with his father-in-law were tense and therefore, his father-in-law has deposed against him. Further, he has stated that on the date of incident he had gone to market for selling pulse, he is innocent and has been falsely implicated = statement of aged about 10 years, is not reliable because her Court statement does not tally with her diary statement. While improving in the Court she has stated that when she reached near her mother she informed her that it is the accused/appellant who caused her injuries whereas no such statement was made by her before the police. Likewise, before the Court she has deposed that in the previous night of the date of incident the accused/appellant had threatened her mother for life whereas no such statement was made by her before the police – Held, There is no substance in the arguments of the appellant that in the memorandum, the accused/appellant has stated that as the deceased had refused to have sex with him, out of anger he killed the deceased. Even if a wife refuses to have sex with her husband, it does not give right to any husband to kill his wife. There is no evidence on record that on the date of incident any theft had taken place in the house of the accused/appellant, on the basis of which it can be presumed that some third person had entered the house and committed murder of the deceased - Another circumstance which goes against the accused/appellant is that on 12.11.2009 he himself surrendered before Police Station and at his instance was seized from his house. Both the witnesses of memorandum and seizure have duly supported the prosecution case. Though FSL report is not available, but the other circumstances indicate that it is the accused/appellant who killed the deceased. Thus, taking into consideration the totality of the case and the evidence adduced by the prosecution, we are of the view that the trial Court was fully justified in holding the appellant guilty under Section 302 of IPC for committing murder of his wife. In the result, the appeal fails and is hereby dismissed - In the present case, no such explanation has been offered by the accused/appellant except making bald statement that on the date of incident he had gone to market for selling pulse, which has not been supported by any other evidence. This circumstance also goes against the accused/appellant – Appeal dismissed
Pritinker Diwaker, J.
1. This appeal arises out of the judgment of conviction and order of sentence dated 21.7.2011 passed by the Sessions Judge, Raipur in S.T. No. 10/2010 convicting the accused/appellant under Section 302of IPC and sentencing him to undergo life imprisonment, to pay a fine of Rs. 1000/- and in default thereof to suffer additional RI for two months. In the present case, name of the deceased is Koushalyabai wife of the accused/appellant. As per the prosecution case, on 10.11.2009 the accused/appellant and the deceased slept together, they had some quarrel as the deceased had refused to have sex with the accused/appellant. On 11.11.2009 when PW-4 Ku. Barkha, minor daughter of the appellant and the deceased, returned from school, she found her house bolted from inside and when she peeped through the hole she saw her mother in injured condition near the veranda. She immediately rushed to her neighbour PW-1 Fanendra Dewangan and narrated the fact to him. Then Fanendra (PW-1) immediately went to the house of the accused/appellant and after jumping the wall entered the house of the accused/appellant, opened the door and saw Koushalyabai in injured condition. He has stated that Koushalyabai was drenched in blood and he noticed crushed injuries on her body. When she was being shifted to hospital, on the way she expired. Dehati Nalishi Ex. P/4 was recorded at the instance of PW-4 Ku. Barkha and thereafter, merge intimation Ex. P/3 was recorded and then FIR Ex. P/4 was registered on 11.11.2009. Postmortem on the body of the deceased was conducted on 12.11.2009 vide Ex. P/9 by PW-9 Dr. B. Kathoutiya who noticed eight lacerated wounds on the body of the deceased and opined that the cause of death was injury to vital organ head leading to hemorrhage and shock. On 12.11.2009 the appellant surrendered himself before Police Station-Ganj, Distt. Raipur, his memorandum was recorded and after investigation, challan was filed under Section 302 of IPC against him and charge was framed accordingly.
2. So as to hold the accused/appellant guilty, the prosecution examined as many as 14 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In defence, he has stated that the police have made him to sign certain paper after committing marpeet with him, his relations with his father-in-law were tense and therefore, his father-in-law has deposed against him. Further, he has stated that on the date of incident he had gone to market for selling pulse, he is innocent and has been falsely implicated.
3. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment.
4. Learned counsel for the appellant submits as under:-
"(i) that there is no evidence on record to show as to who had killed the deceased.
(ii) statement of Ku. Barkha (PW-4), aged about 10 years, is not reliable because her Court statement does not tally with her diary statement. While improving in the Court she has stated that when she reached near her mother she informed her that it is the accused/appellant who caused her injuries whereas no such statement was made by her before the police. Likewise, before the Court she has deposed that in the previous night of the date of incident the accused/appellant had threatened her mother for life whereas no such statement was made by her before the police.
(iii) PW-2 Rajkumar, son of the accused/appellant and the deceased, has also improved while deposing in the Court where he has stated that when he (PW-2) came in the afternoon to take lunch, his father was sleeping in the house whereas no such statement was made by him before the police.
(iv) while deposing in the Court, PW-2 Rajkumar and PW-4 Ku. Barkha have fals
