Pokhan Lal Sahu vs State Of Chhattisgarh

Prashant Kumar Mishra, J

The appellant would challenge his conviction under Sections 302 and 201 of the IPC and sentence of RI for life & fine of Rs.5,000/-and RI for 2 years & fine of Rs.1,000/-, with usual default stipulations, respectively for committing murder of his wife Hiteshwari Bai at about 8.30 am on 28.5.2012.

The appellant and Hiteshwari Bai had an affair followed by marriage on 15.5.2009 and were residing together at village Mokhla, Tehsil and District Rajnandgaon. At about 8.30 am on 28.5.2012, Lokesh (PW-6), Yuvraj (PW-4), Meena (PW-16), Jiteshwari (PW-10) and some other persons witnessed smoke coming out of tiled roof of the appellant's house. When these witnesses shouted and rushed to the appellant's house, the appellant came out of the bathroom, which is located on one side of the kitchen garden (Badi). The appellant and other persons present over there including Lokesh (PW-6) and Yuvraj (PW-4) entered the house of the appellant and saw that Hiteshwari was lying on the floor having sustained burn injuries and was still burning. The entire room was smelling of kerosene oil. They dragged the deceased out of the room and doused the fire, however, Hiteshwari had already died at that time. The deceased' parents reside in the same village to whom the incident was informed by Jiteshwari (PW-10). The parents of the deceased Kamal Das (PW-1) and Amin Bai (PW-2) and Narayan Prasad (PW-11) together with other relatives of the deceased and the villagers reached the spot.

The incident was informed to the police by Narayan Prasad (PW- 11) on which the police reached the place of occurrence and initiated investigation. In the Dehati Merg (Ex.-P/1), Kamal Das, (PW-1), father of the deceased informed the police that the appellant used to suspect the character of the deceased. The dead body inquest (Ex.-P/2) & site map (Ex.-P/3) was prepared and some articles were seized from the place of occurrence vide Ex.-P/4. The postmortem was conducted by Dr. B.L. Kumre (PW-15), who submitted his report vide Ex.-P/15. The doctor did not find blisters over the body. Tongue was protruded and trachea had fractures. No carbon particles were found in the trachea and the same was fractured. The mode of death was asphyxia. It may be due to strangulation. The autopsy surgeon further opined that no definite opinion for cause of death can be given but seems like postmortem burns. Hence viscera was preserved for determining presence of carbon mono oxide in the blood and trachea preserved for carbon soot. With naked eyes, the carbon soots are not seen in postmortem of trachea but burns present. Time since death is within 24 hours. Based on the statements of the witnesses recorded under Section 161 CrPC and the postmortem report, charge sheet was filed against the appellant for offence under Sections 302 and 201 of the IPC.

The prosecution examined Kamal Das (PW-1), Amin Bai (PW-2), Malti Bai (PW-3), Yuvraj (PW-4), Nilesh Kumar (PW-5), Lokesh (PW-6), Kumari Arti (PW-7), Umesh Sahu (PW-8), Narendra Kumar Jha (PW-9), Jiteshwari (PW-10), Narayan Prasad (PW-11), Leela Bai (PW-12), Awadh Ram (PW-13), G.C. Pati (PW-14), Dr. B.L. Khumre (PW-15), Meena Sahu (PW-16), R.P. Tiwari (PW-17) and C.L. Jangde (PW-18) in course of trial. The appellant abjured the guilt and filed his written submissions as accused statement and examined 3 defence witnesses namely, Manesh Kumar (DW-1), Jhaleshwar (DW-2) and Tuka Ram (DW-3).

Learned counsel for the appellant has argued that the prosecution has failed to establish the guilt of the appellant by producing cogent and reliable evidence. The autopsy surgeon has not given any definite opinion about death. There being no report to confirm the presence of carbon mono oxide, the death does not seem to be on account of strangulation. Learned counsel would refer to the judgments in the matters of Subramaniam Vs. State of Tamil Nadu & Another {2009 (3) CGLJ 290 (SC)}, Mohd. Zahid Vs. State of T.N. {(1999) 6 SCC 120}, State of Rajasthan Vs. Parmanand {(2017) 5 SCC 695}, Digambar Gope and others Vs. State of West Bengal {1997 CRLJ 2072}, Punjab Singh Vs. State of Haryana {1984 (Supp) SCC 233 and the Division Bench judgment of this Court in the matter of Gangaram Satnami (Joshi) Vs. State of CG, {Cr.A. NO.344/2005, decided on 21.10.2009}.

Learned State Counsel has argued that at the time of incident only two persons were in the house i.e. the appellant and his wife (deceased) and there being motive to commit crime because the appellant was suspecting the character of his wife, it is a case of murder committed by the appellant by strangulation and thereafter putting her on fire. He would submit that lack of material about motive in the inquest would not assist the accused because the inquest has no evidentiary value.

Kamal Das (PW-1), father of the deceased, would speak about the lack of love or cordiality between the appellant and the deceased with further statement that the appellant was suspecting her character. This witness was not present at the place of occurrence and reached there subsequently, therefore, his evidence is only for establishing motive. The appellant's brother Jhaleshwar was also residing in the same house but on the date of the incident Jhaleshwar and his wife were not present in the house because about one and half months prior to the date of incident Jhaleshwar's wife Purnima had given birth to a baby. Amin Bai (PW-2), mother of the deceased, has also spoken about the fact that the appellant was suspecting her daughter's character by saying at the time of her pregnancy that the deceased is not carrying his child. However, in cross-examination, she admits that the latter part of her statement was not informed to the police.

Malti (PW-3), Sarpanch, is a formal witness. Yuvraj (PW-4)had seen smoke coming out of the appellant's house. When he reached the appellant's house, the appellant came out of the bathroom. This witness went to start motor pump and by that time Lokesh (PW-6) and other villagers had reached the appellant's house and he saw that the appellant and Lokesh had caught hold of the legs of the deceased and were dragging her out of the room. At that time the fire on her clothes had doused but hair was burning. This witness also helped them in taking out the deceased from the room. This witness states that the appellant has a grocery shop in the same building. He opens the shop at about 7-8 am but on the date of the incident, the shop was not opened. According to this witness, the house and the bathroom at the one end of kitchen garden is at a distance of 50 meters from the appellant's house.

Lokesh (PW-6) had also reached the house of the appellant at the same time when PW-4 reached there. This witness would state that he does not recollect as to whether at the time when they were taking out the dead body of the deceased from the room in a burning condition, she was dead or alive. He would also state that when the deceased was burning, her hands were over head upwardly bending and her knees were also in bending condition. However, they dragged the deceased through her legs as her head was still burning.

Ku. Arti (PW-7), aged about 13 years, is the appellant's neighbour. She used to visit the appellant's house to play and take care of his child. She had gone to the appellant's house at about 7.30 am on the date of occurrence. She says that at that time, only the appellant and the deceased were in house. In her case diary statement, she has said that when she had gone to the appellant's house at about 7.30 am, the appellant was probably in the bathroom. Umesh Sahu (PW-8) is the brother of the deceased. He supports the evidence of PW-1 and PW-2 on motive. Narendra Kumar Jha (PW-9) had video-graphed the place of occurrence. Jiteshwari (PW-10) is the resident of the same locality. She had also seen smoke coming out of the house of the appellant and further that the appellant was in the house at that time. This witness had gone to inform the parents of the deceased on the request of the appellant. However, she had not heard any alarm being raised by the deceased before the incident.

Narayan Prasad (PW-11) is a witness to the inquest (Ex.-P/2). Leela Bai (PW-12) resides opposite the house of the appellant. However, she has not made any statement about the incident. Awadh Ram (PW-13) is a witness to the site map (Ex.-P/5). G.C. Pati (PW-14) is the I.O. being SHO of the concerned Police Station on the date of occurrence. He has recorded the statements of witnesses and made seizures, arrest etc. He has proved the FSL report Ex.-P/11, P/12 & P/13.

Dr. B.L. Kumre (PW-15) is the autopsy surgeon, who has proved the postmortem report (Ex.-P/15). He has found the following features and opinion in the postmortem report:-

"The dead body of adult female average buit both upper and lower limbs on semiflexed, upper limb flexed. Both hands are clenched. Whole body highly burnt (cherry block with 100% burn. Kerosene smell coming from the whole body. Eyes are closed. Pupil dilated. Nose red colour. From both nostrils & mouth were opened. Tongue was protruded. Some dark lines are seen on face and neck. No line of redness seen and the whole skin of the body. No vesicles are seen in all over burnt area. Rigor mortis seen all over body. Pugilistic appearance are seen on body. Some clotting pieces are present striped onperineum and the lumber region. Burnt area whole scape, face, neck, chest, abdomen, upper limbs, perineum thigh scatler, whole burnt body. Both lower limbs were burnt. Area 100%.

Diaphram and ribs were healthy. Pleura was congested. No carbon soot was present in larynx & trachea. Right lung was congested. Left lung was congested. Pericardium was congested. Left chamber of the heart was empty. Diaphram was healthy. Membrane of intestine was normal. Liver, Spleen and Kidney were found congested. Urinary bladder was empty.

Mode of death due to asphyxia. It may be due to strangulation. No definite opinion on cause of death. The death seems like postmortem burn. Hence viscera are preserved for (carbon mono oxide present in blood) and trachea preserved for carbon soot. With naked eyes soot are not seen in PM of the trachea but burn present. 100% kerosene oil. Time since death within 24 hours."

The medical expert's opinion would clearly suggest that the burn injuries on the person of the deceased were postmortem and tracheal cartilage which is placed near the larynx part of trachea was fractured. He had found both the palms clenched. He has also stated that the dead body having suffered burn injuries on all sides including both the soles, therefore, she did not sustain burn injuries during standing position.

Meena Sahu (PW-16) is also resident of the same locality. She has been declared hostile. She was washing utensils in the public bore well. She would state that just before the occurrence, Hiteshwari was in the courtyard and the appellant had gone towards the bathroom and after some time she saw smoke coming out of the appellant's house. However, despite shouting by this witness and other villagers, nobody opened the door. A little later, the appellant came out of the bathroom and entered his house after seeing the smoke. He said that the deceased has burnt herself.

Laxmi Narayan Tiwari (PW-17) is the Naib Tehsildar, who has conducted inquest, spot inspection and supervised the videography. BL Jangde (PW-18) is the ASI, who has also seized the burnt pieces of Sari of the deceased, match box, kerosene oil container having 5 liter capacity.

Manesh Kumar (DW-1) is the driver of the appellant's Metador 407. His statement is not of much significance as he is not throwing any light on the incident. Jhaleshwar (DW-2) is the younger brother of the appellant. According to him, the deceased was depressed because her second child was aborted few months prior to the date of the incident. This witness was also not present at the time of incident. He admits that the police had sealed only one room of the house where the deceased sustained burn injuries and that the purported suicide note Article B-1 does not bear the signatures of the deceased. A reading of his statement would indicate that the suicide note was not found in the beginning but was presented later on by this witness. Tuka Ram (DW-3) would also speak about the deceased's depressed mental state because of abortion of her second pregnancy. In cross-examination, he admits that he was not personally aware of this aspect of Hiteshwari's behaviour, but the same was informed to him by the appellant. This witness is therefore hearsay witness.

The evidence available on record, as discussed above, would clearly establish that the distance between residential part of the appellant's house and the bathroom is only 50 meters. At the time of incident, the appellant and the deceased were alone in the house. Just besides the appellant's house, there is a public bore-well and several persons had gone to fetch water or wash utensils through public bore-well but nobody heard any scream or alarm raised by the deceased. It is only when smoke started coming out of the roof tiles of the house that PW-4 and PW-6 rushed to the house of the appellant. It is strange, rather suspicious behaviour of the appellant that a fire broke out in his own house but he could not see, hear or smell the fire even though there is evidence that by the time, the appellant and PW-4 Yuvraj reached the place, bed, bed-sheet, sofa-set were already burnt and the legs of the plastic chair had already melted. There is absolutely no evidence about the appellant's immediate reaction or behaviour after seeing his wife suffered extensive burn injuries. No witness would say that the appellant was aghast or highly perturbed or disturbed after seeing his wife suffered severe burn injuries. Ordinarily, reaction of a husband, who claims that his relation with his wife was absolutely normal, would be of shock or sadness after seeing this kind of incident if he was not present in the room at the time of incident and had seen the burning body for the first time, but there was no such reaction of the appellant. The postmortem report would suggest that there was no carbon particles in the trachea and there was fracture of cricoid cartilege, which is located near trachea. The body of the deceased had clearly suffered postmortem burn injuries. Despite the death having occurred due to asphyxia, the same was not the result of inhaling of smoke but on the contrary no carbon particles/soot were found in the respiratory track and trachea. There was no line of redness seen over whole section or body neither any vesicles are seen all over the burnt area.

The evidence brought forth by the prosecution would categorically establish that that death occurred on account of strangulation and thereafter the dead body was set on fire to conceal the evidence of commission of murder by strangulation. When the appellant was put question No.64 during his examination under Section 313 of the CrPC as to what is his explanation about the medical evidence wherein no carbon particles were found in the trachea of the deceased, the appellant feigned ignorance by saying that he is not aware. If the appellant's written submissions filed as part of statement under Section 313 CrPC is closely perused, it is his own case that at the time when he went to the bathroom, he had seen his wife standing in the Verandah (courtyard). He first went to attend the nature's call in the toilet and thereafter entered the bathroom which was adjoining to the toilet having common wall. As soon as he removed his clothes, he heard the neighbours shouting their names (i.e. the appellant and the deceased). Narration of this sequence would indicate that hardly 5-7 minutes would have gone past when Hiteshwari was standing and the appellant went to toilet. It is not possible that the deceased would have entered her room, made preparations to commit suicide and set herself on fire and had suffered 100% burn injuries coupled with burning of sofa, chairs, bed sheets etc. within short span of 5-7 minutes. The fact that suicide note has been introduced later on by handing over the same to the IO also provides missing link in the chain of circumstantial evidence because bare perusal of the opening part of the note book Article A-1 and the purported suicide note Article B-1 would establish that the same are written by two different persons. A comparison with bare eyes would make the same apparent that the handwritings are different. If the accused produces false evidence to prove his innocence, it definitely provides missing link in the chain of events.

Even otherwise, the appellant and his wife being alone in the house at the time of incident, burden lies on the appellant to explain the circumstances under which abnormal death of his wife has taken place and moreso, when medical evidence clearly proves that the death of the deceased was by strangulation and the burn injuries were subsequent to death.

The judgments relied by the counsel for the appellant are distinguishable on facts in view of the postmortem report and the presence of only the husband and wife in the house at the time of incident.

In the matter of Harivadan Babubhai Patel Vs. State of Gujarat (2013) 7 Supreme Court Cases 45, the Supreme Court has held as under:-

"28. Another facet is required to be addressed to. Though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 CrPC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. (See State of Maharashtra v. Suresh, (2000) 1 SCC 471) In the case at hand, though a number of circumstances were put to the accused, yet he has made a bald denial and did not offer any explanation whatsoever. Thus, it is also a circumstance that goes against him." {also see Pudhu Raja and another Vs. State represented by Inspector of Police, (2012) 11 SCC 196; Sunil Clifford Daniel Vs. State of Punjab, (2012) 11 SCC 205; Jagroop Singh Vs. State of Punjab, (2012) 11 SCC 768; Munish Mubar Vs. State of Haryana, (2012) 10 SCC 464}."

Considering the evidence on record, we are fully satisfied and convinced that the trial Court has rightly convicted the appellant for commission of offence under Sections 302 and 201 of the IPC. There is absolutely no scope of interference with the impugned judgment.

The Appeal being bereft of any substance deserves to be and is hereby dismissed.