r:l<y t; ?.•: Kf ii:a. r ^ M, s^v- -t^l^" CFoo6ob%1 ^J.P.I. ^z^ 5oooo.a- .i No._ f?0 APPr*L l?RI^ _ Name ]^t^rt>Aa _^{curr> h^- •^mws Beiyd fCftBimi Father's name _^t^0ukj^-&^£SB-.LLs-9 Q- Residence__.^,^^- _ _ ^.._. Age 4.0 y^^ Sentenced to Lj./js_&^A^ci&a^»^ °"' ^'•.%.94-___Z •a-e>. Under section'^.a^^^ y/^_^ ^ _^.£L1A£j^_&i f<"eL>-+t>A*-i(r" M. W- m-Mr-. itis explained tothe prisoner that if he states be wishes to be'represented be alegal practitioner the Appelate Court willnot proceed with the base for seven days unless': the legai practitioner appears either. If the legal practitioner does not appear with in seven days he may not be heard at all If the prisoaer states.that he does nof wish to be represented by legal practitioner the court may proceed at once wish the case and wil aot be obiiged to give a hearing to any legal practitioner whd'should appear. Date of Application for copy ofJudgement ——/^tt.tj- Date bf which copy received _ , .<T. c?. 9 i_ ; ©aleon which Appeal sent . ^' 9. ?2—. 4 Whethsr the prisoner wishes to be represented or not yrfs/No. No. _i3^ •^ Name • ^^dtAfOCtL uaa'a- CoatiDued in f^i_^(,-r-Q Jail_ No- f^ ~7 ^- <_ dated -s^& 19%, "brwarded tQ the Deputy Commissioner:'.. <S.7 H'l . /'(^QJ^^^ to gather wjiicfa a copy of judgement ot order passed in thfe'case for favc trensemissioD to the proper Appellate Court, ffl-P'J'-tt^, •C&w^ <d \ZlAa^' Sufie. Date of receipt-in Deputy Commissioner's Office Date of receipt pf record to accompany ^ Memo ofAppeal oftheAppeliate Court. \ '5-^ y^- No. @y .£''^M__^OA4^Wated ^ - 9 >!-: EflmarAed-te-the ^^xrQl_-l9-Q_ .teL_^£5^^r^.j5; < Date of receipt in Appeliate Court •RssQ^^f^il. I <n /">. »"I HIGH COURT OF CHHATTISGARH AT BIIASPUR Ct. Apoeal No. 1033/1992 Budhan Ran» Vs. State of Madhya Pradesh (now Chhattlsgarh) JUDGMENT FOR CONSIDERATION Sd/- DilipRaosahebDeshmukh Judge .._ -^ -.oN-u-^n^ Hon'ble Sh»<Palduruddln. Actine Chief Justlce lu Sd/- Fakhruddin Judge Postfor ^ -10-W05 Sd/- ^d-ueigB 9^-10-2005 •^a'^i.laaKtofcaasatitsaiab HIGH COURT OF CHHATTISGARH AT BILASPUR Ct. Appeal No.1033/1992 Budhan Ram Vs. State of Madhya Pradesh (now Chliattisgarh) CORAM: - HON'BLE SHRI FAKHRUDDIN, ACTING CHIEF JUSTICB & HON'BLE SHRI DILIP RAOSAHBB DESHMUKH, J. PRESENT; - Shri Jaiml Akhtar Lohani and Smt. Indira Tripathi, Counsel for fhe accused-appeUant froTn fcgal aid. Shri A1chi1 Mishra, Panel Lawyer for fhe State. JUDGMBNT {DeUvered on z8 -10-2005) Per DiUp ^osaheb Deshmujkh, J. 1. This appeal is directed agamst the judgmeut dated 05-09-1992 delivered by Shri D.R.Rahul, First Addltional Sessions Judge, Raigarh in Sessions Case No. 44/1992 whcreby thc appellaat was convicted under Section-302 of the I.P.C, for comnuttiag m.iuder of his wife Tarsila Bai and was sentenced to undergo iniprisonment for Ufe and fine of Rs.100/- in default of which the appellant was dirccted to undei^o additional rigorous iuiprisoiuaent for one nionth. 2. It is not disputed that the deceased TarsUa Bai was wife of fhe appeUaat. 3. Bricfly stated the prosecution story is that on 17-11-1991 at about 7 P.M., fhe appellaat and his wife Tarsila Bai had consuiaed Uquor. A quarrel ensued thereafter during which the appeUaat started beating Tarsila Bai with kicks aad fists. Phulo Bai PW-2 who saw the occurrence, asked the appeUaat to desist fix>ni beating Tarsfla Bai but the appeUant pushed her away aad continued beating Tarsila bai. TarsUa bai succuinbed to the iujiiries. On 18-11-1991, the appeUant went to Phula Bai PW-2 aad DUe Ram PW-3 and inade aa extra judicial confession of having kiBed his wife Tacsila Bai. Subran Ram PW-1 brotber of fhe appellaat lodged the F.I.R. Ex.P-2. Sub Inspector Idla Mouiya PW-ll reached the spot aad prepared inquest vide Ex.P-7 and sent the dead body for postniorteni. Dr. Y.K.Toppo FW-12 who conducted the autopsy found fhe foUowing injziries on the person of Tarsila Bai :- A. Two Abrasions over bofh sides of the face bluish black iu colour, between Eye (both) and Ear (both), 2" oval super&cial to skia. B. Lacerated wound over upper lip centrally ianer aspect 1x1 cm. iu size. C. Lacerated wound over cliin. of the face, it is also stauied with blood, 1x1 cua ia size. D. Abrasion over both right aad left shoulder 2" oval superflcial to skin, reddish black in colour. E. Abiasion over both right and left haad, luultiple iu number 2x1 cm. in size. Ll ' " ^ <h1lL s F. Abrasion over both right aad left leg, niultiple in number 2x2 cia, reddish black ia colour. G. Abrasion over body, inultiple in number chcst to Abdoinen. 2x2 cin, reddish black ia colour. H. reddish black discoloration over both right and left lUiac Fossa of abdomen 3x2 inches in lengfh & breadfh. I. Abrasion over both gluteal region. reddish black 2x2 uiches in size. J. Miiltiple Abrasions over back and one promiaeat abrasion over sacral area. It is 4" oval in size. reddish black in colour. Diuiag iatemal examination he fouad bofh fhe lUiac Possa were eccfaymosed and opined that death of TarsUa Bai was due to Nuerogenic shock resiilting fioni extemal injuiy No.8 mentioned above aad was homicidal ia nature. After coinpletion of iavcstigation the appeUaat was prosecuted under Section-302 ofthe I.P.C. The accused-appeUaat abjured the guilt, pleaded innocence ia dcfence and pleaded ttiat Tarsila Bal had sustamed nyuries due to faU on the gnnduig stone. The trial Judge reUed upon the evidence of Phulo Bai PW-2, DUe Ram PW-3 & also the evidence of Dr. Toppo PW-12 aad convicted fhe appeUant under Section-302 of the I.P.C, and sentenced him as aforesaid. Leanied counsel for the appeBaat has contended fhat the defence of the appellant that Tarsila Bai had sustained injuries due to fall on griadiag stone was plausible ia view of the testimony of Phulo Bai PW-2 in cross-examiaation at para-3 aad Dr. Toppo FIW-12 in cross-examiaation at para-6. In the altemative, he contended fhat even if prosecution evidence was to be relied on ia its entirety, the ofGsnce comnutted by fhe appellaat could not travel beyond Section-304 Part-II of the I.P.C. The injmy sustained by Tarsila Bai clearly ruled out the possibflity that the appeUaat who was ia intoxicated state iatended to cause her death. The appeUant was in jail since 19-11-1991 and had thus undei^one iucarceration for ahnost 14 years. He, fherefore, prayed that the imposition of sentence already undei^one by ftie appeUant would, ia the facts and circumstaiices of fhe case be siifficient to meet ffae ends of justice. On the other hand, leamed Panel Lawyer for the State strgaed in support of ftie impugned judginent. 6. We have heard rival contentions and gone througb fhe record, Phulo Bai PW-2 has stated fhat both the appeUaut and Tarsila Bai had conszuned Uquor and werc quarrellmg. The accused-appeUaat was beating Tarsila Bai. She tried to iatervene but fhe appellant pushed her away and persisted in beating Tarsila Bai. Although iu cross exanunation she has stated that Tarsila Bai had sustained iujuiy due to faU on the grmdiag stone in the courtyard, yet fhe trial Judge has rightty refused to place reliaace on this statenient ia view of the several injuries sustaiaed by Tarslla bai. There is nothiag else in the cross examiuation of Phulo Bai PW-2 which would discredit her testunony or render her unworthy of crcdit. Her testimony finds the fuUest corroboration from. Dr. Toppo PW-12 who has proved the several iajuries sustamed by Tarsila Bai aad opined that death ofTarsila Bai was due to Nuerogeiuc shock as a result of injuiy No.8 i.e. reddish blue discoloration over both right and left lUiac Fossa and abdoinent 3x2 iaches ia length and breadth, The iajuTies sustaiaed by TarsUa Bai leave no inaiuier of doubt that she was severely beaten by the appeUant by kicks and fists. The testunony of Phulo Bai PW-2, Dfle Ram PW-3 that on the next day moming, fhe appeUaiit inade an extra judicial coiifession to them., of haviug kiUed his wife Tarsila Bai is whoBy Tuu-ebutted. There is nofhing in cross exaaiiaation which would eveu suggest fhat fhe extra judicial confessiou was aot voluntarily or was made uuder aay kind of fhreat or promise. Haviag considered fhe testnnony of Phulo Bai PW-2 and Dr. Toppo FW-12, wc ase of fhe considered opinion that the trial Judge has rightfy concluded that the appellant had caused fhe death ofTarsfla Bai. 7. The only point wluch requires our consideration is as to what ofiFence was conunitted by the appeUaitt There is nottung on record to show fhat the appeUaat had inotive to commit iauid.er of Tarsila Bai. The testimony of Phuk) Bai PW-2 shows fhat fhe appeUant and Taraila Bai were heavily druak at the time of occurrence and were quarreUiag. The iajuries sustauied by TarsUa Bai shows that fhe death was as a result ofNeurogenic shock due to mjuiy No.8 on fhe lUiac Fossa as inentioned above. In the case of Suntl Kwmar JTachufc Vs, State of SSadlvw. Pradesh INow Chhatttasidrh/ reported in 2004(2) M.P.H.T.-47 {CG), the accused had assaulted his wife wifh a wooden mallet. In postmortem examiaation 14 contusions were found on her body. Two ribs of each side fractured. Right lung was ruptured. Death of deceased was due to shock and haenion-hage as a resiilt of injury to thorax region. It was held that the ofiFence did not tiavel beyond Section-304 Part-II of the I.P.C. and sentence of ri^orous imprisoiunent for 6 years was awaided. In the case of jrhanfcetchan Vs. Steste of KeraStt reported in 2005 A.I.R.-S.C.W.-4S77, the accused iu a drunken condition was quarreUing with his wife. The son iatervened. The accused picked up a chopper and inflicted cut injuiy on thc leg of the son who died due to excessive bleeding. It was held fhat the accused could not have iatended to cause the death and fhe coaviction was altered to Section-304 Part-II of fhe I.P.C. aad sentence ofrigorous impnsonnient for 10 years was awarded. Applyiug fhe above priaciples and also in the facts aud circuinstaaces ofthe present case we find that at the tune of occurrence both fhe appellaat and his wife were in a dnuiken state and were quarreUing. The appellaat beat his wife with kicks and fists as a result ofwhich she died due to Nuerogcnic shock, mainly because of injuiy to both right aad left lUiac Fossa of abdomen. We have, fherefore, no hesitation in. comiug to ttie conclusion that Satish "^ 7 in. the facts aad circuxastances of the case, the reqiusite intention for causing the death of Tarsila Bai couM be attnbuted to the appeBan.t. However, fhe nianner ui which fhe appeUant beat his wife Tarsila Bai it can bc safely inferred tbat the accused had the knowledge that the uyuries sustained by Tarsila Bai were Ukety to cause her death. Therefore, in. our considered opiuion fhe offence coiiunitted by the appeUant does not travel beyond Section-304 Part-II ofthe I.P.C. 9, In the result, fhe appeal is pardy aUowed. The conviction of the appellant under Section-302 of the I.P.C. and flie sentence awarded thereiuider are set aside. Instead the appeUaut is convicted under Section-304 Part-II of the I.P.C. The appellaat is ia jail siace 19-11-1991 i.e. for ahnost 14 years. In oiir considered opuuon, rigorous iinprisoiunent of 10 years would be sufficient to ineet the ends ofjustice. We ordcr accordiagly. Siuce, the appellaat bas alrcady iindex^one the sentence awarded he shaU be set at liberty forthwifh., if not rcquired ia any other case. Sd/- Fakhruddin ice Judge Sd/- Dilip Raosaheb Deshmukh Judge •w--<e»i^i./<J' 3