Judgment:
A.K. Mathur, C.J.
1. This is an appeal against judgment dated 28.2.1992 in Sessions Trial No. 285 of 1989 passed by the learned Additional Sessions Judge, Baloda Bazar, District Raipur convicting and sentencing the appellant under Section 302, Indian Penal Code to life imprisonment.
2. Brief facts giving rise to this appeal are that in August, 1989, accused Rameshwar Kaushik was posted in Kshatriya Gramin Bank, Katangi as a Branch Manager. Accused was living with the deceased Smt. Nirmala Bai alongwith his two children. The residential house of accused and the Bank office were adjoining each other. In front room of the house, Bank was situated and in the rear part of the house accused was living. Office room and bed-room were connected to each other. There was a kitchen connected to bed-room and there was a door opening in the Aangan. In the intervening night of 1st and 2nd August 1989, the accused was at his home and deceased Smt. Nirmala Bai was also there alongwith her two children. At about 10 in the night, accused went to the house of Bhurelal Jaiswal and brought Dr. Vipin Rai (PW 17) alongwith him to his house on the ground that his wife was sick. PW 17 Dr. Rai went to the house of the accused and examined the deceased Smt. Nirmala Bai. At that time, she was sitting in the room. Deceased Smt. Nirmala did not complain anything to the doctor. At about 11.30 - 12.00 in the night, accused was shouting in the Aangan to his wife and was insisting for opening the door. In the morning at 5.00 a.m., PW 4 Sadhuram passed through the house of the accused and he asked the accused as to way he was awaken so early. The accused told PW 4 Sadhuram that he could not sleep as his wife had closed the door and she was not opening the door. Thereafter, it is alleged that accused went in the Bank office and slept there.
In the morning at 6.00 a.m., Dr. A.B. Mathews (PW 7) saw that the accused was sleeping in the Bank room. He woke him up and told him that his wife was lying dead (burnt) and he was sleeping in the Bank room. The accused immediately got up hearing that his wife was lying dead in burnt condition in the kitchen. The accused came to the scene of occurrence and saw that her dead body was lying burnt wrapped with a sheet of cloth. PW 16 Sub-Inspector of Police S.K. Yadav reached at the place of incident and seized the dead body and prepared necessary panchnama Ex. P3. Dead body of deceased was smelling of kerosene.
3. The case of the prosecution is that the accused planned maticulously and committed murder of the deceased Smt. Nirmala Bai. The relations between husband and wife were not cordial. The accused started drinking on that fateful night at 10-11 p.m. He called PW 17 Dr. Rai to his house on the plea that his wife was suffering from vomiting and loose motions. Doctor came to the house of the accused. Wife of the accused did not complain him anything. The accused was seen coming and going from his Bank premises in very suspicious circumstances and he was found drunk. It is alleged that the accused throttled his wife with the help of a bomboo stick and thereafter in the kitchen, he poured kerosene on her body and set her to fire. Thereafter, the accused quietly retired to his Bank office and slept there. But the smoke coming out from the kitchen attracted neighbours and they opened the door and found that the deceased was lying dead and her dead body was burning. Dr. Mathews went to the Bank office and woke up the accused who was sleeping there. PW 1 Ramkrishna Dwivedi immediately filed an FIR in the Police Station and then the investigation was taken up. The dead body was sent for post-mortem. PW 9 Dr. C.S. Patel, who examined the dead body of the deceased, found three injuries on the body of deceased and the condition of the deceased was that her tongue was protruding and clenched between the teeth and some liquid was coming out from nose. There was raddishness in the eyes. The lids were heavy. Faeces were also coming out. Deceased had one injury namely abrasion on the left upper parietal front head above upper eye-brow obliquely upward, another abrasion was found on the right cheek below right eye and one swelling in the neck. According to the doctor, the death was due to throttling. Injuries were found to have been caused between 16 and 20 hours duration. The dead body had 60% burns and was smelling kerosene.
4. On 2nd August, 1989 in the morning at about 11.00 a.m., the accused was also examined by Dr. Vipin Rai, vide report Ex. P23A. Dr. Rai has deposed that the accused was smelling of liquor and he was not in a position to speak properly. He also had injuries on his body on the left side of stomach near tenth rib and there was one abrasion measuring 2.5 cm. x 1 cm. He had also a small sharp cut on the left hand finger. There was a semi-circular abrasion on the twelfth rib. The Investigation Officer prepared a site-plan and seized articles which were lying in the kitchen including stove and a tin of kerosene, pieces of burnt clothes of the deceased, broken bangles from bed-room. He also seized steel plate having blood spots, a steel glass which had left-over liquor, a steel lota having blood marks, some left-over of cigarette butts, a liquor bottle label, tape-recorder and some cassettes. The accused also gave information on 4th August, 1989 which was recorded at Ex. P8 and at his instance, a bamboo stick was recovered from his bed-room under the mattresses and was seized vide Ex. P9. After investigation, Police filed a challan against the accused under Section 302, Indian Penal Code.
5. Prosecution examined as many as 19 witnesses to substantiate the allegation against the accused and got number of documents exhibited. PW 3 Chhabiram is a Peon of the Bank. He has deposed that the accused was the Branch Manager of the Bank and he was serving as a Peon. The accused was living with his wife and children. He has deposed that on the relevant date, the accused gave him Rs. 50/- for bringing a bottle of liquor and he brought the same in the evening and gave him. He has deposed that he alongwith Shyamlal, Sahukar, Naik and accused consumed liquor and, thereafter, he went home. In the morning, when he saw some fire, he rushed to the place. He has also deposed that two months prior to the incident, the accused and the deceased had a fight between themselves. He has deposed that the accused had four children and two of them were living with the parents of the accused.
6. PW 4 Sadhuram has also deposed that he has a kirana shop in the village and he lives in the neighbourhood after three houses from the Bank. He has deposed that on the fateful day at about 9 p.m., he saw that the accused and one Maniram were standing in front of the Bank and the accused informed him that his wife was not well. Thereafter they went to the house of Jaiswal where Dr. Vipin Rai was present. Dr. Rai was brought by the accused in his motorcycle Hero Honda. He has deposed that Dr. Rai attended the wife of the deceased and one sister was sent to give injection. In the morning at 5 a.m., he went to the house of Naidu but there was a lock and therefore he came back and saw that door of the Bank was open and one Rupesh was sitting there. He asked from Rupesh how the Bank was open. Thereafter he called out the accused and then he saw that in the Aangan, accused was there and therefore he asked as to why door of the Bank was open and why he did not sleep. Then the accused informed this witness that his wife closed the doors from all sides, therefore he could not sleep. He has deposed that he asked the accused to accompany him for bathing to which he declined. He has deposed that when he came back from bath, one Khikhwa shouted and told him that the accused was still having a hang-over. He has deposed that he went to the house of Naidu wherefrom they went to the house of the accused. Naidu went to the house of the accused and he kept standing outside. Naidu went in the Aangan and found that something was burning inside and smoke was coming out. He has deposed that he, Jaiswal and Naidu went to the doctor and by the time they came back, the door was already opened and they found that covered dead body was lying in the Aangan. At that time, the accused was drunk.
7. PW 5 Khikhwaram has deposed that in the morning at 4.30 - 5.00 a.m., the accused was abusing his wife and beating at the door. PW 6 Shiv Kumar has also deposed that in the morning of the fateful date, he found that smoke was coming out of the house of the accused. PW 7 Dr. A.B. Mathews is a private practitioner. He has deposed that he knows the accused. He has deposed that in the morning at 5.00 - 6.00 one Naidu came running to his house and informed that there is a fire in the Bank and he should come. Thereupon he immediately rushed to the place and saw that crowd of people had collected there and his son Bunty was also present there. He has deposed that his son told him that the door was closed from inside and then he shouted for the deceased and hit at the door and then the door was got opened and they entered into the house where they found that the dead body of the deceased was lying in the kitchen and was already burnt. The accused was not available at that time. He has deposed that thereafter it was found that the accused was sleeping in the Bank room. He was woken up and was informed that his wife had died out of burns. On this, the accused did not speak and kept quiet. He has deposed that at that time, the accused was drunk. He has deposed that some members of the crowd were uttering that the accused had killed his wife. However, some witnesses have turned hostile.
8. PW 9 Dr. C.S. Patel had examined the deceased and had found three injuries on the body of the deceased. According to him, the cause of death was throttling and the body had 60% burns.
PW 14 Rupesh Kumar who was living behind the Bank premises alongwith his family, has also turned hostile. PW 15 is a witness who got the door opened and informed that the dead body of the deceased was lying burnt in the kitchen. However, this witness has also been declared hostile, though he has deposed that his father came to the house of deceased and took small children to another room. He has not supported the prosecution story. PW 16 S.K. Yadav, Sub-Inspector of Police is the Investigating Officer, who has deposed about the filing of the FIR. He has deposed that he seized the dead body of the deceased as well as other articles which were lying there at the scene of occurrence. However, recovery of stick at the instance of the accused from under the mattresses of the bed-room has not been proved by him. He has proved the recovery memos.
PW 17 Dr. Vipin Rai has deposed about attending the deceased on the fateful night at the request of the accused that she had diarrhoea and for that he gave necessary treatment and sent a nurse for injection. He has also deposed that he examined the accused at the requisition given by the Police on 2nd August, 1989 and he found about five injuries on the body of the accused and specifically found the same circular abrasions on the back which according to the doctor could be caused by nails.
PW 18 Naidu has also been declared hostile. He has supported the prosecution story to the extent that Sadhuram came to him and informed about the incident. He also admitted that he went to the Bank premises and found that the dead body of deceased was lying there.
PW 19 Masih Prakash has deposed that on the fateful early morning at about 4 a.m., he alongwith his son and daughter were going to a well for fetching water. There he heard certain noise in the Bank premises and at that time, he also met Sadhuram and they exchanged Namaskar. When he was coming back carrying water with him, he passed through the Bank. Till that time, sounds in the premises were going on. At 5.00 a.m., he heard that the wife of accused had died on account of burning. Then he rushed to the house of the accused and found that the dead body of the deceased was lying there. He has deposed that the dead body of the deceased had burns and it was smelling of kerosene and some smoke was also coming out. The accused was also taken on one side and some people tried to calm him down but he was drunk at that time. This is the total evidence led by the prosecution.
9. Survey of this evidence shows that some of the circumstances are that at the relevant time, the accused and the deceased were in the house, relations between husband and wife were not cordial, in the early morning there was some sound of some struggle and thereafter it was found that some smoke was coming out from the kitchen of the house and dead body of the deceased was lying burnt. Doctor has found that the death of deceased was not on account of burning but it was on account of asphyxia due to throttling. Doctor also examined the accused and the accused also had injuries on his body specially on the back of his body. There were circular abrasions which, according to the doctor, could be caused only by nails. It has also come in evidence that according to the prosecution evidence, the accused was drunk at 10.00 in the night and also in the morning when the death of his wife was known to him, he was in a drunken condition. From this circumstantial evidence, it was only the accused who was there in the house and the cause of death is asphyxia and there were physical injuries on the body of the accused and specially the abrasions caused by nails which show that there was struggle between the accused and the deceased first and thereafter the accused succeeded in throttling her. Thereafter, in order to remove the evidence, he put fire on her body. These circumstances lead only to the guilt of the accused and rule out any other presumption in regard to the innocence of the accused. In the circumstances, we are of the opinion that the view taken by the learned Sessions Judge appears to be well founded and there is no reason to interfere in this appeal. The appeal is bereft of merits and deserves dismissal.
10. Consequently, we dismiss the appeal and uphold the judgment of conviction and sentence passed by the learned Sessions Judge. The appellant is already in jail.