HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH Coram: HON’BLE MR.T.P.SHARMA & HON’BLE MR.R.N. CHANDRAKAR, JJ. Criminal Agpeal No. 203 of 2007 Appellant Dhannuram S/o Rajwaram Satnami, (In Jail) aged about 25 years, R/o Newarikala, P.S.—Balod, Distt.—Durg (C.G.) Versus Respondent State of Chhattisgarh Through : P.S. Balod, District Durg (C.G.) (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr. S.C. Verma, counsel for the appellant. Ms. Madhunisha Singh, Panel Lawyer for the State. JUDGMENT (Delivered on 30t November, 201 1) Per T.P.Sharma, J. :- 1. Challenge in this appeal is to the judgment of conviction & order‘o‘f' ’7 sentence dated 14.02.2007 passed by the Additional Sessions Judge, Balod, District Durg, in Sessions Trial“? No.162/2006, whereby & whereunder learned Additional Sessions Judge while acquitting other co- accused persons i.e. father, mother and brother of the appellant, has convicted the appellant for commission of culpable homicide amounting to murder of his wife Sumrit Bai (since deceased) and concealing the evidence of criminal case, under Sections 302 & 201 of the IPC and sentenced him to undergo life imprisonment and to pay fine of Rs.1 ,OOOI- & R.l. for one year and to pay tine of Rs.1000/—, in default of payment of fine, to funher undergo RI for one year and R.l. for six months respectively. Both sentences are directed to run concurrently. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of prosecution, on 03.02.2006 Brijlal (PW/4) tried to outrage modesty of deceased Sumrit Bai, wife of appellant, then appellant assaulted Brijlal (PW/4) and his wife Sumrit Bai (since deceased). On 04.02.2006 at about 12.00 noon, appellant caused homicidal death of his wife Sumrit Bai by strangulation and concealed the evidence of criminal case propagating that Sumrit Bai has committed suicide. He along with Kotwari Atmaram (PW/5) went to police station and lodged merg vide EXP/20. lnvestigating officer left for scene of occurrence, after summoning the witnesses vide Ex.P/11-A, inquest over dead body of deceased was prepared vide Ex.P/12. Dead body of deceased was sent for autopsy to Community Health Center, Balod vide Ex.P/21 where Dr. G.D. Baghel (PW/1) conducted autopsy vide Ex.P/1 and found the following injuries: (i) Postmortem abrasion over right side of upper eyelid of 1.5 cm x (ii) Postmortem abrasion over lower eyelid on right eye of 1.5 cm. (iii) Postmortem abrasion over lip and nose of 6 cm x 1 cm. ~\/ 1 cm. (iv) Lacerated wound with abrasion over left temporai region of 5 cm x 1 cm. (v) Contusion over neck. (vi) Abrasion over right ear. (viii) Ligature mark over neck of 27 cm x 0.5 cm. which was not completed and ligature mark was missing on the back part of the neck. (ix) Abrasion over right knee of 5 cm. x 3 cm. Mode of death was asphyxia and death was homicidal in nature as a result of strangulation. (vii) Abrasion of 3 cm x 1 .5 cm over neck. : 4. Clothes of deceased were seized vide Ex.P/5. One rope was seized from the room of deceased vide Ex.P/8. Bloodstained and plain soil, broken pieces of bangle of deceased were recovered from the spot vide Ex.P/7. Patwari prepared spot map vide EX.P/13. During course of investigation, appellant was taken into custody. He made disclosure i" statement of rope vide EX.P14 and same was recovered at his instance vide Ex.P/15. Finally FIR was lodged vide EXP/22. Investigating officer also prepared spot map vide EXP/23. . 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 tiled before the Court of Judicial Magistrate 15t Class, Balod, who in turn committed the case to the Court of Sessions, Durg, learned Additional Sessions Judge received the case on transfer for trial. . In order to prove the guilt of the accused/appellant, prosecution has examined as many as 18 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied thee. circumstances appearing against him and innocence and false implication is claimed. x . After providing opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellant as aforementioned. . We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Learned counsel for the appellant vehemently argued that although this is a case of house murder and as per evidence of doctor death was not suicidal but homicidal and cause of death was strangulation, therefore, burden was upon the persons, who were present in the house at the time of incident. As per case of prosecution, appellant along with three other co-accused persons were present in the house at the time of incident. While acquitting three accused persons, court below has convicted the present appellant. Other co—accused persons had also not offered any explanation in terms of Section 106 of the Evidence Act, but Court below has acquitted them. Thus, present appellant is also entitled for similar ‘0 term and deserves for acquittal. He further submits that even as per evidence of prosecution, present appellant had seen his wife deceased Sumrit Bai with Brijlal (PW/4) in objectionable position and when appellant advised her not to repeat the same but she was not agreed this and on sudden provocation appellant has caused homicidal death. In absence of such circumstance there was no occasion for causing such homicidal death, therefore, if the evidence adduced on behalf of a d.K\_. / prosecution is considered in its face value, then the act attributed to the appellant does not travel beyond the scope of Section 304 Part-II of the x IPC. 10. On the other hand, learned Panel Lawyer for the State opposed the petition and submits that appellant has strangulated the neck of ,. deceased by using rope on the basis of previous incident took much v , l before present incident. There was no instant cause for provocation at the time of strangulating neck of the deceased by pressing rope and appellant‘was having definite knowledge that by his act his wife deceased Sumrit Bai will ot survive and definitely die. Prosecut has adduced suffiient evience against the appellant and Cour below has rightl convicted and sentenced the appellant aforementioned. 11. ln order t appreciate t arguments advanced on behalf of the parties, we have examined the evidence available on record. 12. ln the present case, homicidal death of decsed Sumrit Bai as a result of strangulation has not been substantially disputed on behalf of the appellant, even othen/vise same is also established by the evidence of Dr. G.D. Bagh (PW/1) and autopsy repo Ex.P/1, whch clearly revea el rt i l that death was homicida as result of strangulation and was not suicidal. 13.As regards the complicity of appellant in crime in question is concerned, appellant was residing with his wife deceased Sumrit Bai in same premises where she died as a result of strangulation. Conviction of the appellant is based on circumstantial evidence and prosecution has tried to prove the following circumstances; A” ii. i. Deceased Deceased died was residing as a result with of the strangulation. appellant in same premises." iii. Appellant was under obligation to offer an explanation that how committed suicide. iv. Just before the incident appellant has also assaulted deceased. 14.As per evidence of Atmaram (PW/5), just after the incident appellant came to him and requested this witness to accompany thEappellant upto _, . r; 1 I ‘ his house where he saw the dead body of deceased lying in house. Mother of the appellant told that deceased Sumrit Bai had committed suicide, which he did not find the case of suicidal then he locked the ‘ V“. ‘ V I V,‘ . H m ‘$ (“n-«W V weed. 7v n ion c d t y o he ea l a . I room where dead body of deceased was lying and took the appellant to police station for Iodging report where appellant lodged merg vide EXP/20. Prosecution has also examined Smt. Panch Bai (PW/9) next to neighbour of deceased and appeiiant, who has deposed that at the time of incident appellant assaulted his wife Sumrit Bai. His father also assaulted Brijlal (PW/4); thereafter she came to know that Sumrit Bai has died. As per evidence of Brijlal (PW/4), at the time of incident he had gone to the house of appellant to repay Rs.30/—, which he paid to the father of appellant. After paying the money, he went near the door of deceased where she was sitting for some time then the mother of the appellant came and quarreled with him. In para 4 and 5 of his cross- examination he has admitted that mother of the appellant abused him. He has also admitted that appellant has not assaulted him but he denied the suggestion that appellant has assaulted him blaming that he was having illicit relationship with his wife. Appellant himself has lodged merg wherein he has mentioned the aforesaid fact that Brijlal (PW/4) has tried to outrage modesty of his wife, therefore, he has assaulted his wife. The aforesaid fact of merg EXP/20 is non-confessional part and can be used in evidence even against the appellant. lf the aforesaid evidences are considered together then only inference wo‘uld be possible that present appellant has caused homicidal death of deceased Sumrit Bai on the ground that she was having illicit relationship with Brijlal (PW/4), thereafter, he has tried to show that this s a case of~suicide and i concealed the evidence of criminal case. 15.As regard the question of motive is concerned, as per the evidence of prosecution and aforesaid circumstances, appellant was living with his xVq fa U§\ 7 A‘ ‘ii/ wife deceased Sumrit Bai otherwise there was no reason for causing her death. When he saw the deceased with Brijlal (PW/4) then he assaulted Brijlai and also his wife and thereafter he caused homicidal death of his wife, which shows that he has committed homicidal death of his wife in provocation when he was provoked by the act of deceased. These circumstances clearly reveal that at the time of causing strangulation , appellant was having definite knowledge that by his act deceased may \\ die but he has not caused homicidal death of his wife with intent to cause her death. Thus, the act attributed to the appellant squarely falls within the ambit of Section 304 Part-I of the IPC. 16.While convicting and sentencing the appellant under Section 302 of the IPC, court below has not considered the aforesaid circumstances and thereby committed illegality. 17.For the foregoing reasons, the appeal deserves to be allowed and is hereby allowed in part. Conviction and sentence of appellant under Sections 201 of the lndian Penal Code are hereby maintained. Conviction of the appellant under Section 302 of the IPC is altered into’ ~ Section 304 Part l of the IPC and he is sentenced to undergo R.l. for eight years and to pay fine of Rs.1,000/—, in default of payment to further gxundggg R.l. for one year. r ix Sdl; A d/_ l Ritcnuuuhakar ' T.P Shanna l Judge Vijay Judge l