Gomti Bai vs State of C.G.

T.P. Sharma, J.�Challenge in this appeal is to the judgment of conviction & order of sentence dated 07.05.2002 passed by the Additional Sessions Judge, Manendragarh, District - Koriya in Sessions Trial No. 109/2001, whereby and whereunder the Court below, after holding the appellant guilty for causing homicidal death, amounting to murder, of Seema, four years aged daughter of second wife of her husband, convicted her under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 200/-, in default of payment of fine, additional R.I. for three months. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed an illegality.

As per case of prosecution, appellant was residing with her husband, Chotelal (PW-1) and deceased - Seema, daughter of Chotelal (PW-1) from other wife. Chotelal (PW-1) was not discharging his matrimonial obligation even being demanded by the appellant. She was suspecting that her husband was having illicit relation with her own daughter deceased - Seema. One day she noticed that her husband has committed intercourse with his own four years daughter deceased - Seema. On that day, she compelled him to commit intercourse with her, thereafter, when her husband went for his livelihood, she inquired from deceased - Seema about the commission of intercourse, thereafter, on the ground that deceased - Seema was between her and her husband and she is responsible for denial of matrimonial obligations by her husband with her, she killed her, locked the door and went to police station, Mahcndragarh alongwith one marriage agreement and key of the house and lodged FIR on 24.09.2000 at 10.30 a.m. vide Ex. P-17. Appellant also made disclosure statement of dead body of the deceased vide Ex.P-6 and produced marriage agreement and key of the house, which were seized vide Ex.P-8. Investigating Officer, Rajendra Kumar Mishra (PW-10), accompanied her upto her house with witnesses. House was locked and it was opened with the help of key seized from the appellant. Panchnama was prepared vide Ex.P-4. Spot map was prepared vide Ex. P-11. Lock was seized vide Ex.P-7. Dead body of deceased - Seema was found inside the room at the place indicated by the appellant. After summoning the witnesses, inquest over the dead body of the deceased was prepared vide Ex.P-5. She further made disclosure statement of bed sheet, Rajai and shawl vide Ex. P-10, same were recovered at the instance of the appellant vide Ex.P-9. Dead body was sent for autopsy to Government Hospital, Manendragarh vide Ex. P-1A. Dr. S.N. Gupta (PW-2) has conducted autopsy vide Ex. P-1 and found following symptoms and injuries:

(i) Tongue protruded between teeth;

(ii) Yellow liquid coming from the nose;

(iii) Excrement came out;

(iv) Sign of knot over the neck;

(v) Abrasion of 3 x 2 c.m. over left cheek.

(vi) Ligature mark over the neck of Y shape.

(vii) Fracture of hyoid bone;

(viii) Abrasion over the neck;

(ix) Vagina normal, hymen intact, internal organ congested.

Cause of death was asphyxia due to strangulation and death was homicidal in nature.

Appellant was examined by Dr. (Smt.) Seema Chainpuria (PW-3) vide Ex. P-3 who did not notice any injury, but noticed white discharge on her private part. Two slides of vaginal smear were taken, sealed and handed over to the constable. Patwari prepared spot map vide Ex. P-12. Clothes of the deceased were seized vide Ex. P-16. Other clothes i.e. sari, blouse and stained petticoat were seized from the appellant vide Ex. P-19. Undergarment of Chotelal (PW-1) was vide Ex. P-20. Slides of sperm and pubic hair of husband of the appellant were seized vide Ex. P-15. Seized articles were sent for chemical examination to Forensic Science Laboratory (FSL) and as per report Ex. P-21 presence of spermatozoa has been confirmed on the petticoat of the appellant and slides of her husband.

Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short ''the Code''). After completion of investigation, charge-sheet was filed before the Court of Judicial Magistrate First Class, Manendragarh, who in turn, committed the case to the Court of Sessions, Sarguja, Ambikapur from where the Additional Sessions Judge received the case on transfer for trial.

In order to prove the guilt of the accused/appellant, the prosecution had examined as many as 10 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code, in which she denied the circumstances appearing against her and pleaded innocence and false implication in the crime in question.

After providing opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellant as aforementioned.

We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court.

Learned counsel for the appellant vehemently argued that conviction is substantially based on alleged FIR lodged by the appellant in which she has not made admission of guilt. In the confessional statement, she has only informed the police that she noticed one person and her husband came inside the house, then she went to police station and intimated the police, but the Court below has convicted and sentenced the appellant aforementioned, thereby committed an illegality.

On the other hand, learned Panel Lawyer for the State opposed the appeal and submitted that evidence of prosecution witnesses, non-confessional part of the FIR, production of key, opening of lock of room with that key, recovery of dead body at the instance of the appellant are sufficient for drawing inference that only appellant is author of crime and none else.

In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution.

In the present case, homicidal death of deceased - Seema has not been substantially disputed on behalf of the appellant. Even otherwise, it is also established by the evidence of Chotelal (PW-1), Dr. S.N. Gupta (PW-2), autopsy report (Ex.P-1), FIR (Ex. P-17), Rajendra Kumar Mishra (PW-10) that death of deceased - Seema was homicidal in nature.

As regards the complicity of appellant in crime in question, conviction is substantially based on FIR (Ex.P-17) lodged by the appellant and seizure of articles without any explanation of the appellant. As per evidence of Rajendra Kumar Mishra (PW-10), on 24.09.2000 the appellant herself has lodged FIR vide Ex. P-17, which reveals confessional and non-confessional parts. The confessional part is that the appellant has killed deceased - Seema, which is not admissible in evidence in terms of Sections 25 and 26 of the Evidence Act. Following part of the FIR (Ex.P-17), lodged by the appellant, is non-confessional:

(i) She was suspecting that her husband was having illicit relation with his step daughter Seema, aged about 4 years.

(ii) Dead body of Seema is lying upon the cot.

(iii) At her instance her husband committed intercourse with her and her petticoat was stained with sperm.

(iv) House was locked by lock and she produced key and one agreement to police.

(v) Husband of the appellant was not present in her house.

(vi) Only appellant and deceased i.e. two persons were present in the house.

(vii) Appellant had locked the room where dead body of deceased was lying.

In support of aforesaid non-confessional part of FIR (Ex. P-17), she produced one agreement and key of lock, which has been seized vide Ex. P-8, same has been proved by Rajendra Kumar Mishra (PW-10). Lock of the room was opened after preparation of Panchnama vide Ex. P-4, same has been proved by Rajendra Kumar Mishra (PW-10) and witness Savitri Bai (PW-4). Recovery of dead body inside the house of present appellant is also proved by Savitri Bai (PW-4) and Rajendra Kumar Mishra (PW-10) vide Ex. P-4 and Ex. P-5. Seizure of lock vide Ex. P-7 has also been proved by same witnesses. In support of FIR (Ex. P-17), relating to intercourse with her by her husband, stained cloth which appellant was wearing has been seized vide Ex. P-19. Undergarment of husband of appellant, Chotelal has been seized vide Ex. P-20. Slides of appellant were seized vide Exs. P-14 & P-15, which were sent for chemical examination and as per FSL report (Ex. P-21), sperm and human spermatozoa were present on petticoat of the appellant, underwear of her husband and slides of her husband i.e. presence of sperm on petticoat of appellant and undergarment of her husband prove the fact that she was subjected to intercourse. Aforesaid documents, evidence and non-confessional part of FIR discloses following circumstances:

(i) Appellant was having suspicion upon her husband that he was having illicit relation with his step daughter, deceased - Seema.

(ii) On the date of incident, appellant was sure that her husband has committed intercourse with deceased - Seema, which gave cause for further action.

(iii) She compelled her husband to commit intercourse with her and her husband committed intercourse with on the date of incident and thereafter, her husband left the house.

(iv) After leaving the house of appellant by her husband, only two persons i.e. appellant and 4 years aged deceased - Seema were present in the house.

(v) Dead body of deceased was found lying upon a cot inside the house, which was locked from outside.

(vi) Lock was opened by the key, produced by the appellant before the police, which has been seized vide Ex. P-8 and which shows the exclusive possession of the appellant upon the house where dead body of deceased - Seema was found.

(vii) Death of deceased - Seema was homicidal in nature.

Appellant was having grudge against the deceased and also against her husband. Appellant has not offered any explanation in terms of Section 106 of the Evidence Act that who has committed homicidal death of deceased-Seema. The offence has been committed in secrecy and only two persons were present in the house, out of which, deceased - Seema has died and appellant has not offered any explanation. If aforesaid circumstances are considered together, then only inference would be possible that only appellant is author of crime and none else and even she was having grudge and motive for commission of offence.

After appreciating the evidence available on record, Court below has convicted the appellant under Section 302 IPC and sentenced as aforementioned.

Statement made by the accused to police in form of FIR, statement under Section 27 of the Evidence Act or any other form may consists of confessional and non-confessional part. Confessional part of statement is hit by Section 25 and 26 of the Evidence Act and only disclosure part is admissible in terms of Section 27 of the Evidence Act, but non-confessional part of the statement of the accused is an admission and admissible and evidence and can be proved against the accused. While dealing with the question of admissibility of admission of accused especially relating to non-confessional part, in the matter of Baleshwar Rai and Others Vs. The State of Bihar, , Haji C.H. Mohammad Koya Vs. T.K.S.M.A. Muthukoya, , Faddi Vs. The State of Madhya Pradesh, and Bandlamuddi Atchuta Ramaiah and others Vs. State of Andhra Pradesh, Supreme Court has held that admission part, if separable from the confessional part and relating to other co-accused then non-confessional admission of the accused is admissible in evidence against the accused and same can be proved against the accused. In the present case, the trial Court has considered the non-confessional part of the statement of the accused amounting to admission which is inconsonance with the dictum of the Apex Court, conviction is based on cogent and reliable circumstantial evidence sufficient for drawing inference that only the appellant was only the author of crime and none else and also sufficient to exclude the possibility of her innocence.

On close scrutiny of evidence, we do not find any illegality or infirmity in the judgment impugned. Consequently, the appeal, being devoid of merit, is liable to be dismissed and is hereby dismissed. Appellant is in bail. She shall immediately surrender before the trial Court for serving remaining sentence imposed upon her. Trial Court shall also take immediate appropriate steps for sending her jail to serve remaining sentence.

HEADNOTE

Admission/non-confessional statement of accused in his FIR or disclosure of fact under Section 27 of the Evidence Act may be proved as admission of the accused and child be used against him.