gffi||||%gg^^UBiiSUfiiBliSIB^^ ^:%^SSB?^i0'>&:^ ^W^i^ HIGH COURT OP CHHATTISGARH AT BODRJ. BILASPUR C&riminal Aooeal No.143/2006 APPELLANT (In Jail) VBRSUS RESPONDBNT Son Sai s/o Dalsai Kanwar aged 43 years R/o Chhaparbhata BundeM, P.S. Balconagar Chowki, Rajgamar, District Korba CG State ofC.G. Through P.S. Balco CmMINAL APPEAL U/S 374 (21 OP THE CODB OF CRIMINAL PROCUDERE Appearance: Ms, Nirupama Bajpai, counsel for fhe appeUaat. Shri D.K. Gwalre, GoverQinent Advocate for fhe State. Divisioa Beach:- Hoa*ble Shri T.P. Sharma & Hon^ble SIETJ R.L.Jhanwar,JJ Per T.P.Sharma, J. ORAL JUDGMBNT (23.3.2011) ChaUenge ui fhis appeal is to fhe judgxnent of conviction aad order of sentence dated 29.11.2005, passed by fhe Sessions Judge Korba, district Korba (CG) m S.T.No.02/2005, whereby and whereuiider the learaed Sessions Judge, after holdiag fhe appeUaat gnilty for coimnission of culpable homicide amoiinting to niurder of his wife- Dhanai Bai, convicted the appeUant uiider Section 302 of fhe IPC aad sentenced for life miprisonment aad fine of Rs. 1000/-, ia default of paymient of fine to furfcher undergo R.I, for6 xnonfhs. 2. The conviction is nnpugned on fhe ground fhat wifhout fhere beiag any iota of evidence sufficient for conviction of the appeUant, fc flie leamed Sessions Judge has convicted aad sentenced fhe appellaat as aforesaid raentioaed and fhereby comraitted illegatily, 3. As per case of prosecution, on account of quarrel between fhe appellant and the deceased-Dhan.ai Bai ou 11.10.2004, at about 12.00 at night, fhis appellaat assaulted his wife - Dhanai Bai (siace deceased) by Mtchen stool {Pidhc^ over her head and caused her death. Merg was recorded by Ram (PW-1) vide Ex. P/1, FIR was lodged vide Ex, P/10 at Police Chowki- Rajgaoiar and final FIRwas lodged at PoUce Station Balcouagar vide Ex. P/12, Merg was recorded vide Ex, P/11, The Investigatiag Ofiicer left for the scene ofoccurrence and after summonmg witaesses vide Ex. P/2, inquest over fhe dead body of fhe deceased was prepared vide Ex. P/3. Spot map was prepared vide Ex, P/4. Broken pieces of bangles were seized froni the spot vide Ex, P/5. Dead body was sent for autopsy to Indira Gaadhi Chikitsalaya, Korba vide Ex, P/14, where Dr. Arun Kumar Tiwari (PW-13) conducted autopsy vide Ex, P/17 and found foUowiag mjuries : i. contusion with hematoma of ^h x lw over right forehead above eyebrow ii. lacerated wound of ^2 x W x skia deep wifh heinatonia of 3 x 4^ over nght teraporal region iii. contusion of 2 x 4" over middle of the head iv. contusion with heniatonia of 2 x 3" over left teinporal region Mode of deafh was syncope aad death was honiicidal ia nature. Dunng the course of iavestigation accused was taken into custody; he made disclosure statement of kitchen stool vide Ex. P/7; saine was recovered at fhe iastaace offhe appellant vide Ex. P/6. Patwari prepared spot raap vide Ex. P/9. Sealed clofhes offhe deceased were seized vide Ex. P/13. Statements of tiie witoaesses were recorded under Section 161 of fhe Code of Crumnal Procedurc, 1973 (in short the C^de). ^ ^.2 4. After completion of mvest^ation, charge sheet was filed before fhe Chief Judicial Magistorate Korba, who ia tura, coTnmitted fhe case to fhe Court of Sessions, Korba who conducted fhe tdal. 5. In order to prove the guilt of fhe accused/appeUaEit, prosecution examiaed as maay as 15 witaesses. Accused was examined iinder Section 313 ofthe Code, io. which, he denied fhe circuinstaaces appearing agairist him/ uinocence aad false impUcation ia crune ia question was claimed, 6. After adffbrdmg opportunity of hearmg to fhe parties, fhe leamed Sessions Judge convicted and sentenced the appeUaat as aforesaid inentioned. 7. We have heard Ms. Nirupama Bajpai, learaed counsel for fhe appenaataiid Shri D,K. Gwahne, learaed Goverameiit Advocate for fhe State, perased fhe judgnient impugned aad record of the todal Court. 8. Learaed counsel for fhe appeUaat vehexaenUy argued fhat ia fhe Ught of evidence of Parasram (PW-7) and Sunaram (PW-6) aad other circuinstaaces, i.e. prcsence of fhe appellant on fhe spot at the time of iacident aiid homicidal death of wife of fhe appellaat, she is not disputmg fhe fact that fhe appeUant has not cazised fhe iajury to fhe deceased, she further argued that the evidence adduced on behaAf of Uie prosecutioii, especially ioitlal docunients offhe prosecution Ex. P/l aad ofher documents revealed fhat on account of szidden quarrel, at a spur on inonient wifhout prc- nieditation, present appetlaat has caused simple iojury to his wife- Dhanai Bai resulting into her death shows that he has not caused homLicidal deafh with iatent to caiise her deafh, fherefore, ffae act of ftie appeUaiit does not travel beyond the scope of Section 304 Part II ofthe IPC. ,y "y^^\ ^!fc^..:-"^pit;^^V . ':-:^ 1 ;,; 't -,r j ^ '%... • ^y'^^1 "s^%8&»^" 9. On fhe ofher haad, learaed counsel for fhe State vehemienfly opposed fhese arguinents and submitted that fhe appeUaat was under obUgation to protect axid save his wife, but iastead of protecting aad saving her, he has caused repeated iajuries by kitchen stool over her head, rcsulting iato her death, shows grave intention of causing deafh of fhe deceased aad after appreciatuig fhe evidence available on record, the learaed Sessions Judge has righfly convicted aad sentenced fhe appellaat as aforesaid raentioned. 10, In order to appreciate the arguments advaaced onbehalfof fhe parties, we have examuied fhe evidence adduced on behalfof fhe prosecution. 11, In ftie present case, hoinicidal deafh as a residt of fatal iajuiy found over fhe body of the deceased- Dhaaai Bai has not been substaatiaUy disputed on behalf of fhe appellaat, on fhe ofher haiid, it is estabUshed by fhe evidence of Dr, Arun Kuniar Tiwari (PW-13) aad autopsy report Ex. P/17 and deafh was homicidal ia nature. 12, As regards corapUcity of the accused/appeUaat ia crime ia question is concemed, conviction of fhe appellaat is substaiitiaUy based on fhe evidence of extra judicial confession made to Parasram (PW-7) aad Sunaraoi (PW-6). As per evidence of Parasram (PW-7), appellaat was weepiag along wifh his children aad he inade extra judicial confession fhat he has kiUed his wife Dhaaai Bai. Evidence of Parasrain (PW-7) is weU corroborated by fhe evidence of Sunaram (PW-6), who has deposed ia para 3 of his evidence fhat present appeUaat has admitted the fact fhat he has killed aad has coininitted rcustake. This evidence is unrebutted. Alfhough, extara judicial confession is a weak type of evidence, but •^ s^^,^^ once it is proved, fhe same is sufl5cient for conviction of fhe appeUant. 13. In fhe present case, unrebutted evidence relatiag to extra judicial confession made by fhe appeUaat before Parasram (PW-7) aad Sunarain (PW-6) is safe to rely aad by placiag reliaace on fbie aforesaid witaesses, Court below has not corainitted ony iUlegaMty ia convictuig and sentenciag fhe appeUant for coxainission of fhe aforesaid ofience. 14. As regards motive aad conviction of the appeUant under Section 302 of tiie IPC is conceraed, alfhough present appellaat has not taken speci&c defence, but prosecution is bound by fheir documentaxy evidence, Merg mtimation Ex. P/1 rcvealed fhat on account of sudden quarrel, appellant caused ffae aforesaid injury to his wtfe. Although mcrimiinating statement of fhe accused made to Police is not admissible ia evidence aad it caanot be used against fhe accused/appellaat for his conviction, but same may be taken ia considermg fhe intention of tfae appellant. Ex. P/7 stateraent recorded under Section 27 of tiie Evidence Act by the PoUce revealed fhat on account of sudden quarrel, present appeUaat has caused injury to his wife and fhe iajuries were found over fhe head of fhe deceased, but no fracture or fatal injury has been noticed by fhe Doctor. It appears fbiat as a result of cumulative effect of fbie iajuries, deceased has died. These facts are sufilcient to establish fhe fact fhat present appeUaat has not caused honiicidal deafh of fhe deceased wifh iatent to cause her deafh. However, at fhe time of causmg such iajury fhat too by the kitchen stool, appeUaat was haviag knowledge fhat by his act the deceased niay die. In fhese circumstaaces, act of the appeUant is squarely falts within fhe ambit of Section 304 Part I of fhe IPC. While convictmg aad sentenciag fhe appeUaat under Section 302 of fhe IPC, the leamed '<-rww:^ ^ Sessions Judge has not considered the circuiastaiices, in which, present appeUaat has caused homicidal death ofhis wife- Dhaaai Bai and fhereby committed iUegalily. sunita 15. For the foregoing reasons, the appeal is partly allowed. Conviction of fhe appellant under Section 302 of fhe IPC is altered into Section 304 Part I offhe IPC aad he is sentenced forR.I. for 8 years aad JSne ofRs.1000/-, in default ofpayment offine to furfher undergo R.I. for 6 monfhs. The appellant is ia custody smce 13.10.2004. He is entiUed for set off for fhe above period of detention 1 ' Sd/- Sd/- I 1 R.L.Jhanwar T\P.Sharma | Judge Judge [ — f