HIGHCOURTOFCHHATTISCrARH.BILASPUR .h. CORAM: Hon'ble Shri RaieevGupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Apoeal No. 289 of 2005 JaamaKorMa ,M / vs. State of CKhattisgarh JUDGMENT For consideration Sd/- Suntt Kumar Sinha| Judge / HON'BLE SHRI JUSTICERAJEEVGUPTA Sd/- „, ChiefJustice Post for Judgment : l^ /05/2009 ^. SdA Suni! Kumar Sinha f.v-'-^JuSge _->< ' •-J—— "V y <ln HIGH COURT OFCHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Guota. C.J.& Hon'ble Shri Sunil Kumar Sinha, J. APPELLANT Criminal Aopeal No.289/2005 Jaama KorKta, S/o Thursu Pahadi Korwa, Aged about 42 years, Occupation - Agriculture, Gram Jhariya, Kardana Thana Bataiili, Distrifct Sarguja (C.G.) J-i' RESPONDENT Versus State of Chhattisgarh, Through Aarakshi Kendra Batauli (Appeal under Section 374 (2) of The Code of Criminal Procedurel Appearance: Smt. IndiraTripathi, Counsel for the appellant. Shri Ravindra Agarwal, Panel Lawyer for the State. JUDGMENT (4-.05.2009) Followmg judgment of the Court was delivered by Sunil Kumar Sinha, J. [1] AppeUant Jaama Korwa stands convicted under Section 302 IPC and sentenced to undergo imprisonment for life by the Sessions Judge, Sarguja (Ambikapur) in S.T. No. 470/ 2004 on 16.3.2005. ^. (2) The facts,briefly stated,are as under: Deceased Sohani Bai wasthe wife of the appellant. On 27.07.2004 at about 7:00 p.m., they had gone to village Bagpani for drinking liquor. They did not retum in the night. On 28.7.2004, the dead body of th.e \ ~ ' ^ ~ . " ' ' ' ~ • . deceased was found on the way. The appellant retumed ^•-M Criminal Appeal No.289/2005 11 '! .--^\ to his house after 4-5 days and made extra judicial confession before his father Thursuram (PW-5). \ On the tnformation to Budhan Sai (PW-2), nephew of fhe appellant, he went to the spot, saw the dead body and lodged merg intimation (Ex.P/3) in the concemed Police Station. The'Investigating Officer reached to the scene of occurrence, gave notice (Ex.P/5) to fhe Pgu-ichas and prepared Inquest,(Ex.P/6) on the body of the tii deceased . The site pl& was prepared under Ex.-P/S. Another site plan was prepared under Ex.-P/l. The dead body 6f fhe deceased was sent for its postmortem to Community Health Centre, Batauli under Ex.P/9, where, the postm.ortem examination was conducted by Dr. G.R. Kiure (PW-10), who prepared his report Ex.P/15. He noticed the following injuries on the body of fhe deceased : (i) Abrasion on the back of the right elbow. (ii) Abrasions on both sides of the neck. (iii) Fracture of left radio-ulna bone. (iv) SwelUng on left hip region. (v) Fracture in the neck of left femur . The AutopsySurgeon opined that all the injures were antimortem in nature and the death was caused on account of shock due to the injuries. After receiving the^ostmortem report as above, a First Information Report (Ex.P/11) was registered under Section 302 of the IPC and the appellant was-taken into custody on 16.08.2004 (3) After completion of the usual investigation, the charge , sheet was ffled in the Coiut of Judicial Magistrate First Class, Ambikapur, who in tum eom-mitted the matter to the .^' .X -^ ^? Criminal Appeal No.289/2005 Sessions Court, Anibikapur, where the trial was conducted and the appellant was convicted and sentenced as aforementioned. \ (4) The conviction of the appellant is based on the evidence oflast seen together and the extrajudicial confession made to his father Thursnram (PW-5). •J' (5) Smt. Indira Tripathi,§fleamed counsel for the appellant ^•'i has not disputed the homicidal death of the deceased. Moreover, it com.es in the evidence of Dr. G.R. Kurre (PW-10) fhat during the postmortem examination, he found the aforesaid inji.iries on the body of the deceased and death of the deceased was on account of shock as a result of the above injuries, which was, homicidal in nature. Therefore, it was estabUshed that the death of the deceased was homicidal in nature. ^; ,-^ (6) So far as involvement of the appellant is concerned, it comes in the evidence of Mangleshwar (PW-1) that the appeUant and the deceased came to his house at about 5:00 p.m. on 27.7.2004. They Were in drunken condition. They were keeping some liquor with them and were drinking the Uquor. Shiv Prasad (PW-3) also came there and he was also offered liquor by the appellant and the deceased. After drinklng the liquor, Shiv Prasad went from his house and thereaftor, the appeUant and the deceased also went from his house. K; (7( Shiv Prasad (PW-3) deposed- that the deceased was his sister and the appellant is his brother-in-law. On the fateful day, he met them in the house of Mangleshwar (PW-1). After remaining with them for sometime and after taking liquor, he went to his house. In the next morning, he could come to know that the appeUant had committed murder ofhis wife. <-: 4 Criminal Appeal No.289/2005 (8) These witnesses have been cross-examined by the counsel for the defencq, but nothing adverse could be brought on record to eliminate their evidence of last seen together. Therefore, it was established that the deceased was lastly seen with the appellant in the house of Mangleshwar (PW-1) in the evening of 27.07.12004 and they left that place together for going to their house, but the dead body of the deceased was found in the next inoming and the appellant was absconding. y.,x (9) Thursurain (PW-5) is the father of the appellant. He deposed that the appellant and the deceased had left the house in the inoming, but they did not retum back in the night. In the next moming, he was mformed that a dead body was lying near the house of Khasru, on which, he along with his wife went there and saw that it was the dead body of their daughter-in-law. He further deposed that after 4-5 days, the appellant retumed to the house. When he asked him as to where he had gone, the appeUant said that he had gone to Budhakharpath (on a hiU). This witness was declared hostile by the prosecution and was eross-examined by the Public Proseeutor. He admitted in the cross-examination that the appeUant made extra judicial confession before him. that a quarrel took place between the appellant and the deceased while returning to the house and the appellant had assaulted the deceased. The appellant also said that since he had assaulted the deceased, he was absconding. In further cross- examination by the defence, he categorically admitted that his son had not told about cotiunitting murder of the deceased. •* (10) Looklng to the evidence of last seen as also the extra judicial confession and the time gap between the last seen and the discovery 6f the dead body, in our considered view, the involvement ofthe appellant m assaulting'8'ie deceased is 'xi^ writ large on record. It appears that when fhe appellant^ind ^,.' '^Ss^y' '*''-^ K^t? Criminal Appeal No.289/2005 the deceased were retuming to their house in drunken condition, sorae quarrel took place between them in the way and the deceased w^s assaulted by the appellant. The appellant was the author of the injuries caused to the deceased. <d ^Myna (11) Smt. Tripathi, learned counsel for the appeUant has argued that looking to the nature of injuries sustsdned by the deeeased and the contents (^f the evidence of Dr. G.R. Kurre >'iL. ; (PW-10), the act of the appeUant would not be punishable under Section 302 of the IPC. (12) On a perusal of the postmortem report and the evidence of the Doctor, we do not find that there was any injuiy on the vital part of the body of the deceased. The Doctor has also not opined that the injuries sustained by the deceased were sufficient to cause her death in ordinary course of nature. The contents of the postmortem report and the evidence of the Doctor as also the other evidence available on record would show that the appellant was having no intention to cause fhe death of the deceased, but in the facts and circumstEuices of the case, the knowledge of the appellant can well be attributed and in such a situation, the appellant shall be liable for pimishment imder Section 304 Part -II of the IPC. (13) Accordingly, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set aside. Instead thweof, theappellant is convicted under Sectipn 304 Part-II IPC and sentenced to undergo R.I. for six years. The appellant is injai.1 since 17.8.2004. He shall be entitled to set-off.the period already Undergone by him. SdA .„ CfaiefJustice Sd/- Sunil Kumar Sinha Judge