'Q,.,J'; •'-'m ^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram: Hon'ble Shri T.P. Sharma& Hon'ble Shri R.N. Chandrakar,AI. CriminalADpeal No. 163of 2007 Appellant (in jail) Vs. Respondent. Leelaram Bhuihar, s/o. Bhathur Ram Bhuihar, aged 45 years, occupation-Agriculture, Caste Bhuihar, r/o. Saakin, Dhaneshpur, Bansdihpara, Police Station Kusmi, Dist. Sarguja (CG). State of Chhattisgarh through Police Station Kusmi, Dist. Sarguja (CG). (Criminal Appeal under Section 374 (2) ofthe Cr.P.C.) Present: Mr. Abhay Tiwari, counsel for the appellant. Ms. Madhunisha Singh Panel Lawyer for the State. ORAL JUDGMENT (Deliveredon 24-8-2011) PerT.P.Sharma.J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 31-1-2007 passed by First Additional Sessions Judge, Ambikapur, in Sessions Trial No.366/2006, whereby and whereunder, learned Sessions Judge after holding the appellant guilty for the commission of culpable homicidal death, amounting to murder of his wife Bandhni Bai, convicted the appellant under Section 302 IPC and sentenced him to undergo life imprisonment and to pay fine of Rs.1000/-, in default of payment of fine to undergo further Rl for one year. Conviction of the appellanf is impugned on the ground that without there being any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per the case of prosecution, appellant and his wife Bandhni Bai consumed Kosna/Handiya, one kind of liquor. Appellant further demanded the same from his wife but was refused. On refusal, the appellant picked up a Kudali (a weapon used for digging the soil), assaulted his wife and caused her death. Other persons present on the spot witnessed the incident. On being asked, the appellant made extra judicial confession before the witnesses. PW/1 Timduram went to Police Station Kusmi and lodged first information report vide Ex.P/1, merg was recorded vide Ex.P/2. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex.P/6 prepared inquest over the body of the deceased vide Ex.P/7, spot map was prepared vide Ex.P/3, dead body of the deceased was sent for autopsy to Community Health Centre, Kusmi, where Doctor T. Sai (PW/9) conducted postmortem vide Ex.P/12 and found the following injuries; i) bruise on left parietal region of 7x5cm irregular in shape; ii) bruise on right frontal region of 5x4cm irregular in shape; iii) bruise over back of 6x4cm irregular in shape; iv) bruise of 5x4cm over back of the left leg irregular in shape; v) eyes were closed; vi) 111 pupil dilated conjunctiva congested; vii) fracture of left parietal bone and brain was congested ahd opined that cause of death was coma and death was homicidal in nature. 5. During course of investigation, accused was taken into custody. He made a disclosure statement of Kudali vide Ex.P/8 and the same was recovered at the instance of appellant vide Ex.P/9, blood stained soil and plain soil were recovered from the spot vide Ex.P/10 and sealed clothes of the deceased were seized vide Ex.P/11. 6. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, chargesheet was filed against the appellant in the Court of Judicial Magistrate First Class, Ambikapur, who in turn committed the case to the Court of Sessions Judge, Ambikapur. Learned Additional Sessions Judge, received the case on transfer for trial, who framed charge under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. 7. In order to prove the guilt of the appellant, prosecution examined as many as thirteen witnesses. Accused person was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and pleaded innocence and false implication. 8. After affording an opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. V 'i 9. We have heard learned counsel for the parties and perused the record ofthe trial court as also the impugned judgment 10. Mr. Abhay Tiwari, counsel appearing for the appellant vehemently argued that conviction is based on evidence of extra judicial confession made by the appellant before PW/2 Itwari Bai, PW/4 Saalen Tirkey, PW/5 Patru Ram, PW/6 Jerku & PW/11 Balo Bai. In the light of evidence of the aforesaid witnesses, he is not disputing the fact that the appellant has not caused homicidat death of his wife. Learned counsel further submits that as per evidence of the aforesaid witnesses both husband and wife consumed liquor i.e., Kosnu/Handiya and were under intoxication. When the appellant again demanded the same which was refused by deceased, then on sudden provocation appellant caused homicidal death of deceased. Present appellant is in custody since 18-6-2006 and has completed more than five years. In the circumstances, the act of the appellant does not travel beyond Section 304 Part II of the IPC and the custodial period of the appellant would be sufficient sentence for him. 11. On the other hand, l\yis. Madhunisha Singh, learned Panel Lawyer appearing on behalfofthe Stateopposed the appeal and submitted that the appellant caused repeated assaults and caused instantaneous death of deceased including fatal injuries upon vital parts of the deceased which shows his grave intention of causing homicidal death amounting to murder of deceased. After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. "^ ^ jl y s y ^ ^ 12. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf ofthe prosecution. 13. In the present case, homicidal death of the deceased as a result of fatal injuries found over the body of the deceased Bandhni Bai has not been substantially disputed on behalf of the appellant. On the other hand also it is established by the evidence of Doctor T. Sai (PW/9) and autopsy report (Ex.P/12) that the death of Bandhni Bai was homicidal in nature. 14. As regards complicity of the appellant in the crime in question is concerned, conviction is substantially based on the evidence of extra judicial confession made by the appellant before PW/2 Itwari Bai, PW/4 Saalen Tirkey, PW/5 Patru Ram, PW/6 Jerku & PW/11 Balo Bai which clearly reveals that they asked the appellant as to how deceased died, then the appellant made extra judicial confession before them that on refusal of providing Kosnu/Handiya, he caused the aforesaid fatal injuries to the deceased, resulting into death of deceased Bandhni Bai. 15. Defence has cross-examined these witnesses at length, but has not been able to elicit anything in their cross-examination to discredit their testimonies, especially to the extent that present appellant has not made extra judicial confession before them. Extra judicial confession is also a kind of evidence and once it is proved to be true, the same is sufficient for conviction of the accused. The evidence adduced on behalf of the prosecution relating to extra judicial confession is sufficient to prove the fact that present appellant had caused homicidal death of his wife Bandhni Bai. 16. As regards question of intention is concerned, nature of injuries, weapon used, and other circumstances are required to be considered. In the present case, appellant and deceased Bandhni Bai consumed Kosnu/Handiya in their house and after consuming Kosnu/Handiya, appellant again demanded the same from his wife which was refused. On refusal, present appellant picked up a Kudali, commonly available in the house of villagers and caused repeated injuries over the head and other parts of the body of the deceased Bandhni Bai and caused contusion by a dangerous object but has not caused any lacerated wound or stab wound which shows that at the time of causing injuries to the deceased, appellant was annoyed but had not caused injuries with intent to cause her death, but simultaneously at the time of causing such repeated injuries by a dangerous weapon, he was having sufficient knowledge that by such act the deceased may die. In the circumstances, the act of the appellant squarely falls within the ambit of Section 304 Part 1 of the IPC. 17. While convicting the appellant under Section 302 of the IPC and sentencing him to undergo imprisonment for life, the trial Court has not considered the aforesaid material aspect of the case, especially intention of the appellant and thereby committed an illegality. 18. Consequently, the appeal is partly allowed. Conviction of the gppellant under Section 302 of the IPC is altered into Section 304 Part 1 ofthe IPC and he issentenced to undergo Rl for eight years. F t):lu He is in custody since 18-6-2006 and is entitled for set off as per law. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge