(^^ w!svs HIGH COURT OF CHHATnSGARH AT SILASPVR Crimmal Auoeal No.270 of 2005 APPELLANT; (In Jail) RESPONDENT: \ Ramdas Kodaku, S/o Lalji Kodaku, aged 32 years, Occupation Agriculture, Labour, R/o ViUage Manpur, P.S. Cha^aU, District Surguja, (CG) Versus ^ State of Chhattisgarh, Through ';'• P.S. Cha^ali, District Siirguja, (C.G.) Present: Ms. Nirupama Bajpai, counsel for the appeUaat. Shri Sandeep Yadav. Deputy Govt, Advocate for the State, :^i<:s^;{|S :^i^E-G!f^ Division Bench: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandtakar. JJ. ORALJ UDGMENT (6& October, 2009) The foUowiug judgiuent of the Court was deUvered by Dhirendra Btishra. J. 1. The appellaut has preferred ftus appeal under Section 374 (2) ofthe Cr.P.C. against fhe judgment of conviction aad order of senteuce dated 31-1-2005 passed ia S.T. No.392/2003 whereby leamed Additional Sessions Judge (FTC), Ramanujganj, Sarguja has convicted the appeUant und^r Section 302 of the IPC for causing homicidal deafh of his wife namely, Rajpatia and sentenced him to undei^o imprisoiunent for life aad to pay a fine of Rs.5,000/-, in default of payinent of fine to further undergo additional R.I. for one year. •"""!•. ,t€!S SS1 !;^!;ii?. 2. The case of the prosecution, in brief, is fhat Baspad, inother of fhe deceased, gave Dehati NaUshi (Ex.-P/S) at 10 am aad Dehati Merg \ lutimation of Ex.-P/4 to Harvmder Singh fPW-4) on 19-12-2002 at about 10.15 am at the tfcmp ofhis patroUing dufy about murder ofher daughter Rajpatia stating fherein that she resides with her son-ia- law Ramdas aad her daughter in fheir house. On 17-12-2002, when she retumed at about 4 a.m. after completmg her work, she saw her <if son-ia-law sittiag in the honie aad her daughter lying on (he ftoor. The appeUant iaformed her fhat when the deceascd refiised to come back to home, he assaulted her wifh. a stone on her head, as a result she died. On the basis of information of Baspati, inei^ iutimation (Ex.-P/3) was also recorded. First iafonnation report of Ex.-P/6 was recorded on fhe basis of Dehati Nalishi. Site plan of Ex.-P/7 was prepared. luquest over dead body of fhe deceased was prepared vide Ex.-P/15 ia the presence ofwituesses. 3. The body of the deceased was sent for postaiortein examination to Community Health Centre, Wadrafhagar vide Ex.-P/13 where Dr. Hiralal Singh (PW-3) conducted postmorteia and gave his report of Ex.-P/2. On memoranduni (Ex.-P/S) ofappeUant, stoue bywhich the deceased was assaulted was taken uito possession vide Ex.-P/ll. Blood stauied soU and plain soU froin the place ofincident was taken into possession vide EX.-P/9. Blood stauied Gamcha aad uaderwear were seized from the appellaat vide Ex.-P/10. 4. After completing fhe iuvestiaation, charge^lieet was filed in fhe Court of Judicial Magistrate, 1st Class, Raruauuigaai, who, iu turn, coiniiutted the case to the Sessions Judge, Ambikapur, and the same w al'Ei§s!isaia |p:i>i:K;;isss!:[^ was received on transfer for trial by leamed Additional Sessions Judge. \ 5. Learaed trial Court frained fhe chai^e under Section 302 of fhe IPC agaiast the apueUaat who abiured his euUt. •». 6. The prosecution examiaed 12 witaesses in aU to establish its case, Thereafter, statement of the accused was recorded iu which he «' denied the circumstaaces 'a^pearuig agaiast hirn in the prosecution case and pleaded innocence and false implication. The appeUant took a defence " fhat Rajpatia had gone to participate ia Karma festival, there she consumed liquor. When he asked her to returu home, she started runrung towards fhe forest aad ia tiie process, she feU over stone and died. 7. The trial Court after hearing leamed counsel for fhe resuective pardes, convicted aud senteiiced the appeUant as inentioacd iu paragraph-1 of the judgment. 8. The appeUant has taken a defence that fhe deceased died due to iajunes sustauied by her which she sustaiaed as a result of faU on stone. However, Dr, Hiralal Sirigh (PW-3), who has conducted postmortein & proved his report of Ex.-P/2 & who has found foUowiag injuries on her person, has categoricaUy opined that cause of death was hoiaicidal in n&ture. The deceased died as a result of haemorrhagic shock due to head iajury. In cross-examination by the defence, he has categoricatly opiaed 'that except the injuries present over the head of the deceased, other injuries could be caused by fall on the ground. Therefore, ia our considered opinion, hoiaicidal death ofthe deceased is estabUsbed. 4 '1:. :'te..,^^ l:!i:S'lt!lSlta .f*^l^^; ^&^. • Stab wound on vertex length 2 cni, * Stab woiind on left temporal bone above left ear (5cm). • A large size (lOxSo^u) subcutaneous haeinatoma on left side of skull. • Stab wound on left eyebrow. * Contusion on left foreann of size 5x2 cin •». 9. Leamed counsel for the appellants submitted fhat conviction is based on circuinstantial evidence. There is no eyewitness to the incident <; The trial Court relyiag upotl the evidence of Baspati Bai (PW-5), Komal (PW-6), Alam Chaad (PW-10) and Ghoghar (PW-11), has convicted the appeUaut on the circuinstances that fhe deceased and the appeUant were retumiag together from the house of PW-8 Sodar aad unniediately after the iacident, the appellaat aad fhe deceased alone were present in the house. Referring to the evidence of above witnesses, it was aiyied that fhey have not supported the case of fhe prosecution aad they have admitted that the appeUaat did not inake aay extra judicial confession before thein. It was further argued fhat there is no niotive for conumssion ofcrime. The incident occurred on the spur of laoinent when the deceased refused to accoiapany thc appeUant whUe retuming home aad duc to sudden provocation, the appeUant fhrew a stone over her which unfortunately fell on her head. as a result she died. 10.0n fhe other haad, leamed counsel for the State has supported fhe V; iaipugned judgiuent. 1 l.We have heard leamed counsel for the parties. We have perused the record ofthe trial Court as also fhe impugaed judgment ''». <;, .?i;^Ss-, S •,.2:^jj .. 'i^^ 'Sa:tesi!^r ^9- 12. PW-5 Baspati Bai is ttie inother of fh.e deceased, who resided wifbi the appeUaut aad the deceased in their house. In examiaation-iu-chief, she has stated fhat when she returaed from her work at 4 am on the date of the iacident, she found her daughter with iajuries over her head & blood ooziug Iroin her head lyiag on fhe Qoor whereas, fhe appellaat was sitttag besides ber. She has also stated fhat her son- iu-law has inurdered her daughter. She was struck by a stone. Her «' daughter aad son-ia-law-'llad quarreled with each other. However, she did not see quarrel aud she does not know anythiag about ciuarrel. After siie reached hoiue, Ramdas Qed fi-om there. In cross- examination. she has adiaitted that her son-ia-law did not teU her anvfhiag as to how her dauehter died and son-in-]aw had gone to infomi fhe viUagers about the death of his wife. She does not kaow whether fhe appeUaut has inurdered her daughter or not. PW-6 Koinal has also not supported fhe case of tiie prosecution. 13.PW-10 Alam Chaad in his examiaation-ia-chief has stated that on the date of fhe incident he learut fhat fhe appeUaat has kiUed his wife. He went to the house of appellaat aad saw the deceased lying dead. She had iajuries over her forehead and the appeUaat had run away froru fhe place of incident In cross-examination, he has admitted fhat Ramdas did not inform as to who kUled Raipatia or how she died aud Ranidas had not fled fi-om the village, Siaular is the evidence ofGhoghar (PW-11). 14.PW-4 Harviader Siugh, 1.0., has proved Dehati. Nalishi, merg intunation, recoveiy of stone on the basis of meinorandum of the appeUant aad other documeiits prepared during iavestigation. The trial Court, relying upon fh.e circuinstaaces that the appeUaat aad •f'^'S'W the deceased retumed together froia the House of PW-8 Sodar after pardcipating ia Kanna festival aad immediately thereafter she was found dead, has held that fhe appeUaat was seen last time in the company of the deceased while she was alive by ttie witnesses aad fhereafter her dead body was fouad and the appeUaat was present at fhat tiine also. Further considering ftie circumstaaces fhat after the iacident the appeUant fled froin the place ofiacident, it has been held «' ftiat fhe prosecution Iias estariUshed its case against the appeUant by circum.staatial evidence. IS.From the evidence avaUable on record, it is established that ia fhe nigbt of tncident, fhe appeUaut and fhe deceased had gone to the house of PW-8 Sodar .to participate in the Karma festival and they retiumed togefh.er for gomg to ttieir home in the same night. In the raommg at 4 am when PW-5 Baspati Bai retunaed honie, she found her daughter lying on the Qoor with blood oozuig froni her head. At that tiine, the appellant was also sitting besides her body. The appeUant has taken a defence ftiat after Karma festival, his vrife refused to retum honie and started ninning towards the forest, as a result she feU on fhe stone aad sustained injuries over head. The doctor has categorically opined that the iajuries sustamed by the deceased over head could not be caused by fall on ground and fhe death is honiicidal in nature. Thus, the appellant has given false explanation regardiug injuries over head of the deceased. On the basis of aforesaid circumstaaces, we. are of fhe opituon fhat the trial Court has righfly held fhe appeUaat responsible for fhe death of his wife. :!iHglBfc ^4 16.Next question for our consideration is whether the trial Court was justified ia convicting the appeUant uader Sectiou. 302 bfthe IPC for causiug inurder oflus'Wife. 17.Froin. fhe evidence avaHable on record, we find that the iacident occiirrcd without auy. pre-ineditation, as a result of sudden provocation whea the deceased refused to retura home even after being persuaded by the app^Uaat. From the medical report, it also ,^,' appears that fhe cause of death is single injury that was caused to ftie deceased over her bead by a stone. IS.Taking overatl view of fhe evidence available on record, we are of the opiaion fhat the offence committed by the appeUaat does not travel beyond Section 304 Part-II of fhe IPC aad the trial Court was not justified ia convictmg the appeUaat under Section 302 of the IPC. 19.In fhe result, the appeal preferred bv the appellant is partly allowed. Conviction of tbe appellant under Section 302 aad sentence imposed thereunder are set aside aad iastead fhereof, he is convicted under Section 304 Part-II of the IPC aad sentenced to undergo R.I. for 7 years and to pay a fine ofRs.100/-, in defaiilt ofpayment offine to farther undergo additional R.I. for 15 days. SdA -~~ IMurendraMsshra Judge Sd/- R.N. Chandrakar Judge Barve