,^ HIGH COURT OF CHHATTIS6ARH. BILASPUR ^ APPELLANT: RESPONDENT: Criminal Appeal Nb.241 of 1995 Gulab Ram S/o Shri Kela Ram, aged about 35years resident of Gharghoda Distt. Raigarh (MP) (now CG) Versus State of M.P. (now C.G.), through District Magistrate Raigarh. {Appeal under Section 374 (2) ofthe Code ofCriminal Procedure, 1973} Present: Mr. Rajendra Tripathi, counsel for the appellant. Mr. Sandeep Yadav, Deputy Govt. Advocate for the State/ respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Honrble Mr. R.L. Jhanwar, JJ ORAL3UDGMENT (26-4-2010) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 30-1-95 passed by the 2nd Additionai Sessions 3udge, Raigarh in Sessions Trial No. 156/94, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife Mankunwar Bai, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo jmprisonment for life. 2. Conviction is impugned on the ground that without any credible, clinching and legal evidence the trial Court has convicted & sentenced the appellant and thereby committed illegality. 3. Case of the prosecution, in brief, is that in the intervening night of 24th & 25th February, 1994 at midnight the appellant brutally caused injuries to his wife Mankunwar Bai and caused her death, and told to his sister & other persons about the incident. Butki Bai (PW-1) - sister of the appellant went to the Police Station and todged F.I.R. vide Ex.P-1 on second day. After summoning the witnesses vide Ex.P-8, inquest over the dead body of Mankunwar Bai was prepared vide Ex.P-9. Bloodstained & plain soil, bloodstained clothes and one ry-C^ ^' <.. ^^^ wooden club were seized from the spot vide Ex. P-10. Dead body was sent for autopsy to Civil Hospital, Gharghoda vide Ex.P-SA. Dr. B.R. Banjare (PW-5) conducted autopsy vide Ex.P-5 and found 21 bruises over different parts of body of the deceased, lacerated wound of 3" x 2" over head, lacerated wound of 2" x 0.5" over middle of head, lacerated wound of 2" x 0.5" over left side of head, and lacerated wound of 2" x 0.5" over back of head. Mode of death was shock. Merg was also recorded vide Ex.P-7. The accused made discloser statement of clothes & wooden piece vide Ex.P-11 and the same were seized at the instance of the accused vide Ex.P-12. Shirt of the accused was seized vide Ex.P-13. Sealed clothes of the deceased were seized vide Ex.P-15. Spot map was prepared vide Ex.P-16. Seized articles were sent for chemical examination and presence of blood found over wooden club and shirt seized from the accused was confirmed vide Ex.P-17. Statements of the witnesses were recorded under Section 161 ofthe Cr.P.C. 4. After completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Gharghoda who in turn, committed the case to the Court of Sessions, Raigarh from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the appellant, the prosecution has examined as many as eight witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and has specifically taken the defence that at the time of incident when he came back to his house, his wife was with another person in compromising position, he tried to catch that person, but he fied from the spot, then he asked his wife, but instead of replying to the same, she started quarreling with him on which he lost his temper and has caused injuries to his wife (the deceased) by fist & wood and went to the Police Station. 6-After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsei for the parties, perused the judgment impugned and record ofthe trial Court. /' s '^ '^. r (,. 8. Learned counsel for the appellant submitted that the prosecution has not proved its case beyond all reasonable doubts, but the explanation offered on behalf of the appellant that when he saw his wife with another person in awkward position he lost his temper and has caused injuries to his wife resulting in her death, should be considered in support of the defence of the accused. Learned counsel placed reliance in the matter of State of U.P. v. Lakhmi, (1998) 4 SCC 336, in which the Apex Court has held that statement of accused recorded under Section 313 of the Cr.P.C. inculpatory in nature cannot altogether be ignored merely because they were advanced as a defence strategy, Court has to give weight to the answers given by the accused. The Apex Court further held that accused husband killing wife on seeing something tascivious between her and another person when he returned to his house from the field, the act covered by Exception 1 to Section 300 of the I.P.C., but conviction would be under Section 304 Part-I of the I.P.C. Learned counsel further placed reliance in the matter of Chinnathaman v. State represented by Inspector of Police, (2007) 14 SCC 690, in which the Apex Court has held that causing death without premeditation and pre-plan, the act would fall under Section 304 Part-II ofthe I.P.C. 9. On the other hand, learned State counsel opposed the appeal and submitted that the trial Court has rightly convicted & sentenced the appellant in the aforesaid manner. l0.in order to appreciafe the arguments advanced on behalf of the parties, we have examined the material available on record. ll.In the present case, homicidal death of deceased Mankunwar Bai as a result of ante-mortem fatal injuries has not been substantially disputed on behalf of the appellant, otherwise also it is established by the evidence of Dr. B.R. Banjare (PW-5) & autopsy report Ex.P-5 that the death of Mankunwar Bai was homiddal in nature. l2.As regards complicity of the appellant in the crime in question, Butki Bai (PW-1), Nanhuram (PW-2) & Cherka (PW-3) have deposed that wife of the appellant was found dead in her house as a result of injuries sustained by her, however, they have not supported the case of the prosecution that the accused has caused injuries to his wife. ^<: 1- /'r- t^ ^. In the present case, the accused himself has offered explanation which reads as follows: - ^r Picfiq ^i ^ "^J^T ^r ^T?T "cpi" 10:00 sT^r -ER cft^r ^ 'SR ^ ^t^ ^T ^ TTf^=T 3ft^ ^) y^ ^TT ^ QTTTT 3TTTO ^ ^lflcll^ -cl^ ^t ^ -^r -^ -s^r ^^ ^t ^ic^^-ii ^T^T •cr^ ^^: ^)T TT)T^KT ^oicD^ ^TPT TPTT ^T -^ -ET^TT c^ 6T^ ^ XTf^=T ^ ^i^ai^ f^TT ^Tl' '^5^ ^H ^aT^ft "cF)T ^PT ^t SRTT^ cTf^cp ^ ^ ^T^ cTTft ^N •^ ^T^f ^ ^TTcf^ cTSTT ^TTq- P|^-?|U| ^f ^- ^- f^rf^- ^ ^- ^q^ -q^ ^ ^TST gdx^ ^- TTP?T ^f^ 6FT^r ^ TT^t dch^l ^ ^ft TTRT efk '^' ^ ^TpTTr ^t -ER^TT ^ 6|T^ ^ 6[?nzn- 3f^ ^TRT ^raT TpTT | l3.In the present case, the incident took place at night after 10 p.m., the accused was out of station and he was excepted to present in his house. As per the evidence of Butki Bai (PW-1), police brought the accused under handcuffs to the village after the incident which shows that the accused himself has gone to the Police Station for lodging the report, though he has not todged thereport. Cherka (PW-3) has deposed in his evidence that on that day villagers were watching the video. l4.Evidence adduced on behalf of the prosecution reveals that on that day the accused was present in his village. The explanation offered by the accused clearly reveals that when he came to his house, he saw his wife in awkward position with another man, then he lost his temper and has caused as many as 21 bruises and four lacerated wounds which shows that the accused has lost his temper when he saw his wife with another person and therefore, he has caused 25 injuries repeatedly, thereby he caused the death of his wife. As held by the Apex Court in the matter of State of U.P. (supra), the explanation offered on behalf of the appellant is admissible in evidence and this fact is sufficient to draw inference that the appellant has lost his temper and has caused repeated injuries resulting in death of his wife. IS.Considering the circumstances in which the appellant has caused repeated injuries mainly by fist & one wood, the act of the accused does not travel beyond Section 304 Part-II of the I.P.C. While convicting the appellant, the trial Court has not considered the explanation offered on behalf of the appellant which is substantial evidence jn the present case, and thereby committed illegality. s ":• ^ '^ -c^ SSS!h I "I J Soma IG.Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of the I.P.C. is altered to Section 304 Part-II of the I.P.C. and considering the circumstances, he is sentenced to undergo R.I. for five years. The appellant is on bail, he shall surrender immediately before 2nd Additional Sessions Judge, Raigarh in Sessions Trial No.156/94, for serving remaining sentence imposed upon him. He is entitled for set off of his previous detention period in the present case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge