HIGH COURT OF. CHHATTISGARH, BILASPUR ‘ Criminal Appeal No.449 of 2005 {Criminai appeai under Section 374 (2) of the Code of Criminal Procedure} ‘ Present: Mr. Shrawan Kumar Chandei, counsel for the appeliant. W.§Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. - ‘ , , » ,i ._ , .‘ iv“ Division Bench: -’ r Hon’ble Mfr. T.P. Sharma and Hon’ble Mr. R.L. Jhanwar JJ ~ ——_—.—_l_ ORAL JUDGMENT (1—12—201 0) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 4-2-2004 passed ‘by‘the 4m Additional Sessions Judge (F T C) Raigarh In Sesswns Trial No 141/2003 whereby & whereunder V learned Additional SesSions Judge after holding the appellant guilty for I commissmn of culpable homICIde amounting to murder of his Wife Shanti Bai, conVIcted the appellant under Section 302 of ,‘the l.P.C. and sentenced him to undergo imprisonment for life & pay fineof Rs.2.00/—r, in default of payment of fine to further undergo R.l. for one month. . Conviction is impugned on the ground that without any iota of evidence the trial Court has conwcted & sentenced the appellant and thereby l > ‘ ‘ committed illegality - 3. Case of the prosecution, in brief, is that on the fateful day of 20-6-2003at)‘ l. . about 5 p.m. Shanti Bai (since deceased) —- wife of the appellantrwas oming along with her kids, the appellant was also coming towards Nawapara, the appellant chased his wife Shanti Bai and thereafter, assaulted her with hands & fists and pushed her on the floor, thereafter he dragged his wife by catching her hairs and also tried to kick herby his l ‘ H 2 c I .APPELLANT: Masat Ram S/o Tejram Chauhan Aged 35 (In Jail) years Occupauon Labourer R/o Ranput i P S Kapu District Raugarh (C G ) Versus RESPONDENT: State of Chhattisgarh Through Police Station Kapu District Raigarh (C.G.) egs. Shanti Bai died on the spot. Siyaram (PW-2) and Aghnuram (P . 3) have seen the incident and tried to intervene, but by that~time wife of the appellant was found dead. Dharam (PW-1) has lodged dehati nalsi ‘4 vide Ex.P-12. Merg was recorded vide Ex.D-2. The Investigating Officer Ieft for the scene of occurrence and after summoning the witnesses 'vide EXP—8A, prepared inquest oVer the dead body of the deceased vide Ex.P-8.‘ Dead body was sent for autopsy to Community Health Centre, Dharamjaigarh vide EX.Pe6A. Dr. B.L.' Bhagat (PW-8) conducted!“ ~ autopsy vide Ex P—6 and found following injuries: - (1) AbraSIon of 2 c m x 2 c m over forehead (2) Contusron of 2 c m x 2 c in on upper part of right srde of face (3) Fracture of lower part of larynx. . Death was caused duevto asphyxia as a result of throttling and death was homlcrdal In nature Patwarl prepared spot map vrde EXP 3 Sealed clothes of the deceased were seized vrde Ex P-5 Spot map was I prepared by the Investigating Officer vrde Ex P—13 Bloodstained sorl plain soil hairs and towel were seized from the spot vrde EXP 14 Bloodstarned clothes of the accused were seized Vide Ex P 15 Seized articles were sent for chemical examination Vide Ex.P—17 and presence ‘ of blood on clothes of the appellant was confirmed 4 Statements of the Witnesses were recorded under Section 161 of the Cr.P.C.. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Dharamjaigarh who committed the case to the Court of Sessions, Raigarh from where learned Additional Sessions Judge received the case on transfer for trial. y 5 ln order to prove the gUIlt of the appellant the prosecution has examined as many as twelve Witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the Circumstances appearing against him, pleaded innocence and false implication. After affording opportunity of hearing to the parties learned Additional SeSSions Judge conVicted & sentenced the appellant as aforementioned 7 We have heard learned counsel for the parties perused the Judgment impugned and record of the trial Court. 8., Learned counsel for the appellant vehemently argued that as per the case of the prosecution, the appellant & the deceased have consumed“ i ‘ iv‘“ \ liqudr in excess quantity, they were not in a position to walk, they were g ‘ l W— ' J 3 quarrelling with each other and during the course of quarrel the deceased sustained injuries resulting in her death. This shows that thew , i appellant has not caused any injury to the deceased with intent to cause her death. If the case of the prosecution is admitted in its face value, even then, the act attributed to the appellant does not travel beyond the scope of Section 304 Part-ll of the l.P.C. 9.’ On the other hand, learned State counsel opposed the appeal and submitted that this is not a'simple case of causing injury, but cause {of death, in the present case, is throttling which requires definite intentiOn . and positive act for causing death of a person. After appreciating the evidence available on record, the trial Court has rightly convictedg&' sentenced the appellant. a *3 10.ln order to‘appteciate the arguments advanced on behalf of the parties, ‘ We have examined the evidence adduced on behalf of the prosecution. s 11 In the present case homtcrdal death of deceased Shanti Bar as a result of asphyxta and throttling has not been substantially disputed on behalf of the appellant, othenNIse also, It Is established by the evrdence of Dr. B.L. Bhagat (PW-8) and autopsy report Ex.P-6 that the death of the deceased was homicidal in nature 1 2 As regards complicrty of the appellant In the crime In question as per the " ev1dence of Slyaram (PW 2) and Aghnuram (PW—3), eyewrtnesses the appellant assaulted his‘wife Shanti Bai and dragged her, ln their cross— examination they have admitted that the appellant & the deceased had consumed liquor in excess quantity, even the deceased was‘not ina position to walk. As per para 4 of the cross-examination of Siyaram (PW-2) both were quarrelling with each other Merg Ex D-2 also reveals that the deceased has consumed liquor in excess quantity, though same does not find support from the autopsy report '13.Evidence of the aforesaid witnesses inspires confidence and their,~’~,« “w evidence is trustworthy to the extent that the appellant has caused injury to the deceased and caused her homicidal death. * 14.As regards motive behind the offence, the appellant who is husband of ‘ \ - the deceased hadxconsumed liquor in excess quantity and the deceased m[ i a Mew” \ \ ' haiSValSO COnSUIIIed ”QUOr’in eXceSS quantity, and both were quarremng. The appellant was dragging his wife towards his house and also Soma 4 i7, assaulting her by hands & fists, he has not used any specific dangerous weapon. The entire factual scenario reveals that the appeiiant has not caused any injury to his wife with intent to cause her death, but at the time of causing such injury including injury over neck the appellant was having definite knowledge that by the act of using force, especially upon her neck, she may die. Therefore, the act of the appellant does not“ l travel beyond the scope of Section 304 Part-l of the l.P.C. 15.While convicting the appellant under Section 302 of the l.P.C. learned Additional Sessions Judge has not considered the circumstances in which the offence has been committed, and thereby committed illegality. ‘ 16.Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of the l.P.C. is altered to Section 304 Part-l of the l.P.C. Considering the act of throttling and other circumstances, the appellant is hereby sentenced to undergo R.l. for ten years, instead of A imprisonment for life. The ‘appellant is in custody since 22-6—2003. He is“ entitled for set off for the period already undergone by him. Sd/- ‘ Sdl— T. P. Sharma ‘ R.L. Jhanwar ' Z Judge Judgel l ji l V i