HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANTS: (In Jail) Criminal Appeal No.976 of 2004 1. Rajesh Kumar Yadav S/o Fekuram Yadav, aged 25 years, resident of Kapsiya Kala, P.S. Kota. Raj Kumar Yadav S/o Fekuram Yadav, aged 27 years, resident of Kapsiya Kala, P'.S Kota. 3. Het Ram S/o Manrakhan Yadav, aged 35 years, r/o Kapsiyakala, P.S. Kota. . .Bharat Lal S/o JiraRhan Yadav, aged 2 years, r/o Kapsiya Kala, P.S. Kota, District Bilaspur (CG). ' Versus The State of Chhattisgarh, Through the District Magistrate, Bilaspur (CG). 2. RESPONDENT: {Criminal appeal under Section 374 (2) of Cr.P.C.} Present: Mr. Shailendra Dubey, counsel for the appellants. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. Division Bench: - Hon’ble Mr. T.P. Sharma and H_on’ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (1 0—1—20“! 1) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order o sentence dated 26-10—2004 passed by the 8th Additional Sessions Judge (FTCh Bilaspur in' Sessions Trial No.60/2004, whereby & whereunder learned Additional Sessions Judge has convicted & sentenced the appellants as under: - . , 4 9 f Name of the accused Conviction Sentence Rajesh Kumar Yadav Sec. 302 IPC imprisonment for life & fine of Rs.10,000/—, in default additional RI for oneiyear. ' Rajesh Kumar Yadav, Raj Kumar Yadav, Het Ram & Bharat Lal Sec.201 IPC Rl for four years & fine of Rs.3,000/— eaCh, in default additional Rl for six months. @ 2. Conviction is impugned on the ground that without any ota o evidence, the trial Court has convicted & sentenced the aeiiants, and thereby ce lly . s e ase o te secutio, Shiv Kumi (sinc ecease — i aplant No.1’Rajsh Kumr dav wa residing ith her husban i hi’us, on 503 at out 11 .m. the apllats assaued her nd used er deat ad with iew o conal the idenc cri Rjsh a n w he c acud h trd tha the d s oted sucid a ave ried to create the e od without nrmi o prens ea dt w fo by Kr ich oc cme th d ed cren at e cio ro A mm wites vid E inqes v he de b o th deased prepaed de .P Bak ns wre fd k of t ces y was f a o Cmit Hea , K d ‘ta PW d ty e EP a n dison r h ropl egion bl l e f o mp b Ce o dat ws c and so as sult deh was i n nature. FIR as lodged vide Ex.P-4 rin the us'of intigion, ppellant ajsh Kumar Yadav was taken ito ustody, he mde dsce ment ab -x wh coerd at his stace de Vscera d ws seized Sot map w pd vde E.P5» . taments of t witnses recordd r tio '1 f t Ste he es were e unde Secn 16 o he CrPC. ter cpltion investigation, charge t as fie ere the Curt of Additional Ch Juicial Mgistrte, spur ho commied the e to te Court f sion, Bilapur fr ere learned Adonal s e r ase n r r t I d t rove th gl of the acCue, he psion ind s’ a eleven itnses. cused re xamin uder eco 313 o e r n which tey dend the irstanes apperig gainst t, laded innocence n false mlicatn n te rime in estio. They ve also eaind d ss udram D—1 who has depose h the apellnts have ot comitte or” and r u t desd “ ommittd iegalit. 'A pr c f h pron ar e dd) wfe of pei e a Ya s w d n shoe -10-20 ab p pen it a ca h h n a v t ce eve of minal case, appellant ae Kumr Yadav alog ith otr o- cse as ie to show t eceased ha cmmit ie nd they h t m dad by ifong t at of the decsed. The incien as inrmed the otwa on wh plie a to e spot an stopp matio th rematn gund. fter suoning the ness e x.P-6, ut oer t ad ody f e ec was r vi Ex-7. lc stai e oun on nec he deaed. Dead bod sent or utopsy t omuny lth Centre ota vie EXP-84 Dr.Niki (-8) conducte auops vid. x.-3 nd foud blank colorati ove rigt fntal/temora r, ackish ine ovr neck and racture f right teoral one. aus f eh a oma hck a re of injury and at homicdal i w . Dug core vesat a Re n c a ilosr state of tle videE.P-1 ich was reve inn vi Ex.P-2. i of the decease a . p as repare i x-. cas h o Sess s om wh i diti Session Judg eceived the c o tansfer fo rial. . n orer o p e uit sd t roecut has exame amany s wes The ac we eed n Stin f th CPC i h ie ccumc an a hem pe ad ipio i h c qun ha xme efence witne Bh (W) d tat pa n md tture cuelty pon he ecae. ' i f pp Af ome of shee w ld bfo o ief d aa Bila w tt 6. After affording opportunity‘ of hearing to the parties, learned Additionai V Sessions Judge aforementioned . We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. . Learned counsel for the appellants frankly admits that in the light of circumstances proved against the appellants, he is not disputing thefact that appellant Rajesh Kumar Yadav has caused homicidal death 'of eceased Shiv Kumari and that appellant Rajesh Kumar Yadav along with other accused has tried to conceal the evidence of criminal cases a V 4. Learned counsel submits that as per initial case of the prosecution, on he fateful day the deceased was sleeping with Rajesh Kumar Yadav at night she was unhappy and when the cause of unhappiness was asked she told that she is havmg love affair With one Ra] Kumar and tried to sleep on floor when the same was objected she condemned appellant Rajesh Kumar Yadav and told that his face Is like bllwa on which Rajesh Kumar Yadav got annoyed and pushed her upon table as of result she sustained injuries and thereafter, she died. The appellants have tried to conceal the evidence of criminal case. This shows that appellantRajesh Kumar Yadav has caused single injury to the deceased on sudden» . provocation when he was provoked by the deceased. Therefore, act of appellant Rajesh Kumar Yadav does not travel beyond the scope of Section 304 Part-ll of the IPC. On the other hand, learned State counsel opposes the appeal, but admits the factual scenario. 10.By examining twelve witnesses (eleven prosecution witnesses and one defence witness), the prosecution has proved the fact that the deceased died in‘the room of appellant No.1 Rajesh Kumar Yadav as a result of injuries sustained by her.‘ Appellant No.1 Rajesh Kumar Yadav was“ under obligation to offer explanation, but he has not offered any explanation. ln these circumstances, only inference that the appellants have caused homicidal death of the deceased would be possible. The prosecution has also proved the fact that the appellants have not informed relatives of the deceased and have tried to‘cremate the' dead body of the deceased which was informed by the Kotwar andftnally Q convicted & sentenced the appellants as . ‘ d t . stopped by the police. This shows that the appellants have tried to conceal the evidence of criminal case. .Circumstances in which appellant No.1 Rajesh Kumar Yadav has cau'sed injury to Shiv Kumari has been recorded by the police in ‘the- discloser statement of appellant No.1 Rajesh Kumar Yadav in EXP-1, although that cannot be used by the prosecution, but appellant No.1 Rajesh Kuma'r Yadav can use the aforesaid part of evidence for taking his defence. If this evidence is considered, it reveals that appellant No.1 Rajesh Kumar Yadav was condemned by his wife (since deceased) on which he pushed his wife upon table as a result of which the deceased sustained injuries and died In these Circumstances act of appellant No ‘l Rajesh Kumar Yadav does not travel beyond the scope of Section‘ 304 Part—ll of the IPC While convrcting appellant N01 Rajesh Kumar Yadav, the trial Court has not consrdered the aforesaid aspect of the case and thereby committed illegality. 12. For the foregoing reasons, the appeal is partly allowed. (1)Conviction of appellant No.1 Rajesh Kumar Yadav under Section 302,0f the IPC is altered to Section 364"Part—lI of the IPC, however, his conviction under Section 201 of the IPC is maintained. He is in jail since‘13-10-2003, thereby he is in jail since last more than‘seven years. He is sentenced to the custodial!“ periOd already undergone by him i.e. more than seven years. (2)Conviction of appellants No.2 to 4 under Section 201 of the IPC is hereby maintained, presently they are on bail. Appellant No.2 Raj Kumar Yadav was in custody from 13-10-2003 to 27-2-2004, thereafter from the date ofjudgment i.e. 26-10—2004 at least up to 23-12—2004, thereby he was in custody for more than six months. appellant No.3 Het Ram was in custody from 13—10—2003 to 29-3- 2004, thereafter from the date ofjudgment i.e. 26-10-2004 at least up to 23-12—2004, thereby he was in custody for more than seven. months. Appellant No.4 Bharat Lal was in custody from '13—10- 2003 to 29-3-2004, thereafter from the date of judgment i.e.’26-10- 2004 at least up to 23-12-2004, thereby he was in custody for more than seven months. Appellants No.2 to 4 are hereby sentenced to the period already undergone by them. Sdl- R.L. Jhanwa‘ \ Judge / Som e i; xi