HIGHCQURTOFCHHA"n'ISGARH,BILASPUR Criminal ADDeal No.926 of 2002 APPELLANT: (InJail) RESPONDENT: Bifaiyya S/o t-ajhra Uraon, aged 46 years, Occupation Agriculture, Labour, R/o Village Jargim, Pdlice Station Shankargarh, Distt. Surguja (C.G.) Versus State of Chhattisgarh, through Police Station Shankargarh, Distt. Surguja (C.G.),, .1! .' '. •.,:,..'1:; ;^/;,l!,' {Criminal appeal underSectipn 374 (2) ofthe Code of Criminal Procedure} Present: Mr. Pahkaj Agrawal, counsel for the appellant. Mr. Sandeep Yadav, Deputy Govt. Advocate for the State/ respondent. Divisiori Bench:— Hon'bleMr. T.P. Sharma and HOn'ble Mr. R.l.. Jhanwar, .13 ORAL3UDGMENT (30-8-2010) T.P.Shiarma, 3: - 1. Challenge in this appeal is to the judgment of convictiQn & order of sentence dated 21-8-2002 passed by the 4th Additional Sessions, Judge, Ambikapur in Sessions Trial No.ll/20Q2, whereby & whereunder learned Additional Sessions 3udge after holding the appellant guilty for commission of culpable homicide amoynting to murder of his wife Phoolmet Bai, cohvicted the appellant under Section 302 of the l.P.C. and sentenced him t6 undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to furtherundergo R.I. forsix months. 2. Convictionis impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful day of 16-11- -2001 at about 6 p.m. the appellant assaulted his wife Phoolrnet Bai (since deceased) by kicks & fists, pushed her on the floor and th'ereby caused serious injyries, and as a result of such injuries Phoolmet Bai died. Karmu (PW-4).- son-in-lawof the appellant :''^.':'^'.;^;. •l.r'.^'.t1'".:'^''^ Wi^fsfSsSSS^S.- lo^dgea FIftvjde Ex.P-6 aridmei-g yide Ex.P-4. After summoning thg witnesses vide Ex,P-l, inquesf over the dead bpdy of the deceas&d was prepared vide Ex,P-2. Dead body was sent Tor autopsy to Primary Health Centre, Shankargarh, Dr. .loseph Lakra (PW-3) conducted autopsy vide Ex.P-3 and found contusion over chest pf 4" x 2" with haematoma. On internal examination, bones of trachea & neck were found fractured and blood was found in the peritoneum cavity. Cause of death was shock and deafh was homicidal ih' nature. SpotmapswaspreparedyideExs.P-3&P-7. 4. Statements of the witnesses were recorded under Section 161 ofthe Cr.P.C. After completion of investigatiori, charge sheet was filed before the Court of Judicial Magistrate First Class, Ambikapur who cbmmitted the case td the Court ofSessions, Ambikapurfromwhere learned Additional Sessions Judge received the case on transfer for .trial. ' " ' . . :' ' . . :: - ' ' .^ 1.: -, 5. In order to prove the guilt of the appellant, the prQsecution has examined as many as nine witnesses. .The accused was examinecl' under Section 313 of the Cr.P.C. in which he denied the cjrcumstances appearing against him, pleaded innocence and false implication. • 6, After affording opportunity of hearing to the parties, learned Aclditional Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impughed and record ofthe trial Court. •t 8. Learned counsel for the appellant submits that in the light of the evidence of Kum. Shivkumari (PW-6) & other witnesses, he is not disputing the fact that the appellarit had caused injury to the deceased, but the appellant has notcommitted culpable homjcide amounting to murder of Phoolmet Bai. Case of the appellant does not travel beyond thescope of Section 304 Part-Iof the I.P.C. and sentence already suffered by the appellant is sufficient sentence for the offence alleged against Wm. 9. On the other hand/leamed State counsel opposes the appeal and submits that the appellant has committed culpable homicide' amounting to murderof his wife. ,j€.^, i'y~' ,>«-'««i-w^ ^: 3'n? '^"^^- •^s^"":; SwssssSSsS. :.-^^-i^._^ l0.in ordertoappreeiatetheargumentsadvancedon behalf oif the parties, we have examjned the evldence adduced on behalf of the,, '/partles.' . .: ! " ./ :•••:.. : 1 . •'1, ' .' • •! ,;. . .' • \ ' ll.In thepresent case, homicidal death of deceased Phoolmet Ba1 as a result of fatal injuries found over her body has not beensubsfantially disputed on behalf of the appellant, otherwise also same is established by the evidence of Dr. 3oseph Lakra (PW-3) and autopsy report Ex.P-3which reveal that bones of neck& trachea werefound fractured and death was homicidal in nature. l2.As regards complicity of the appellant in the crime in questiQn, conviction of the appellant is substantially based on the evidenee-of, Kum. Shivkumari (PW-6) - 12 yearc' aged child witness whose presence has not been substantially disputed by any of the parties. As per her evidence, at the time of incident the appellant & the deceased i.e. husband & wife, consumed Aand/a (intoxicating liqyor), they were inintoxication, deceased Phoolmet Bai was sitting negr stoye (in kitchen) and she passed. urine on which the appellant objected her as to why she was passing urine near stove where food is being cooked, then the appellant caught hold of his wife (deceased Phoolmet Bai) and pushed repeatedly and assaulted her with kicks. The appetlant pushed deceased PhOQlmet Bai thrice and the, deceased died as a resultof such injuries. Defence has cross- examined this witness at length, but it has not been able to elicit anything in her cross-examination to discredit her testimony. . 13.0ther witnesses vvere not presentat the time of incident. They have not substantially deposed relating to commission pf incjdent. Evidence of Kum. Shivkumari (PW-6), child witness, reveals that initiatly husband & wife i.e. the appellant & the deceased had consymed handia, an intoxicating liquor, and they were ynder intQxication. Probably in the stage of intoxication the deceased lost her control and passed urine near stove where food is being copked which was objected by the appellant and on the spurof the moment the appellant lost his mental balance and on sudden provocation by the deceased, he assaylted the deceased by pushing her on floor. ;This shows that the appellant has assaulted the deceased and caused , .injury to herwithout any pre-meditation and without anyintention to kill her on sudden provocation when he was provoked by the act of ^y^ . ^fKi'. sy'v^ Soma 'Wi^'sssy^'ssSXWS'SSS' the deceased. Therefore, the present case does not travel beyond the scope of Sectibn 304 Part-t of th&I.P.C. t4.While convicting the app'ellant, the trial Court has not cQDsidered the mitigating circumstances. and the fact that both the persons, hysband & wife, had consumed liquor together and when deceased PhoQlmet Bal, the wife, passed urine^near stove, the appellant, caused injury to her, and thereby committed illegality. IS.Cohseqyently, the appeal is partly allowed. Convictjon of the appellant under Secfion 302 of the I.P.C. is altered to Section 304 Part-I of the I.P.C. Considering the circumstances, insteadof imprispnment for life & fine of Rs.1,000/-, the appellant is hereby sentenced to imprisonment for the period already undergone i.e. for about more than 8 V2 years. Theappellantis in custodysince 24-1t- 2001, he be released forthwith, if not required in any pther case. Sd/- T.P. Sharma Judge /- *+^T'^"^: 'sjsSiS^ l1..'>