HIGH COURT OF CiiHATTI8GARI—I AT_3ILASPUR Criminal Appeal No.8512005 APPELLANT Sri Ram Kamar, s/o Shm' Nohar Singh Kamar, aged about 36 yeam, r/d vinage- Dhoura Bhatha, Khudurpani, RS. Sihawa, District Dhamtari (CG) x r VERSU$ RESPONDENT ’TY‘“ rp- State of Chhattisgarh Through RS. Sihawa, Distn'ct Dhamtari (CG) CRIgINAL APPEAL UIS 374 i2] OF THE CODE OF CRIMHNAL PROCUDERE ‘ Appearance: Shri KK. .Singh, counsel for the appellant. Shri Sandeep Yadav, Dy. Government Advocate ior the State. Division Bench:- Hon’ble shri T.P. Sharma as Hon’ble shri R.L.Jhamvax,JJ ORAL JUDGMENT (19.11.2010) Per T.P.Shaxma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 22.12.2004, passed by the Additional Sessions Judge, Dhamtari, Sessions Division, Raipur (CG) in S.’I‘.No. 112/ 2004, whereby and whereunder the learned Additional Sessions Judge, after hoiding the. appellant guilty for commission of culpable homicide amounting to minder of his wife- Aghantin Bai, convicted the appellant under Section 302 of the IPC and sentenced for life imprisonment and to pay a tine of Rs. 100/ -. The conviction is impugned on the ground that Without there being any iota of evidence su$cient for conviction of the appellant, the learned Additional Sessions Judge has convictsd and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of prosecution, on fateful night of 7. 1.2004, at about 11.00 pm, appeEant was quaxreling with his wife and assaulting her by a stick. His brother Aktu Ram (PW-2), sister in law- Rukmam‘ Bai (PW-3), Ba‘santi Bai (PW-4), Janki Bai (PW-5), Lakshman (PW-6) and Sunaram (PW-7), after hearing the sound of quarrel went to the house of appellant and advised him then the appellant told- that he will kill his wife, therefore, they went back to their houses. ‘After some time, the quarrel sound came to an end t - .. then again the above Witness went to the house of the appellant and saw that Aghantin Bai (since deceased) was lying on the floor with fatal injury; blood was coming out. Aktu Ram (PW-2) went to Police Station and lodged FIR vide Ex. P/2 and merg intimmion vide EX. P/ 10. Investigating Oliicer left for the scene of occurrence and after summoning witnesses vide Ex. P/S, inquest over the dead body of the deceased was prepared vide Ex. P/6. Spot map was prepared vide EX. P/S. One wooden frame was seized from the spot vide Ex. P17. Dead body was sent for autopsy to C.H.C. Nagri, vide EX. P] 11, Where Dr. Ashish Shukla (PW-9) conducted autopsy vide EX. P/8 and found following injuries : i. Compressed contusion on the left eye of 1 X .5 cm. n Contusion over right cheek of 3 x 3 cm. Contusion over right neck of 8 x 1.5 cm. Contusion over right lumber region on back side of 1.5 x 2 om and over front side of 4.5 x 1 cm Fracture of 9th, 10th and 11th ribs Excessive haemorrhage was present on the left side of the skull ' 2 linier abrasions on the left side of the leg. Cause of death was excessive haemorrhage found over the skull. Sealed clothes of the deceased were seized vide Ex. P/ 13. l f Seized a1fjcles were sent for chemical examination vide EX. P/ 12. Statements of the witnesses were recoxded under Section 161 of the Code of Criminal Proceduxe, 1973 (in short the Code). 4. After completion of investigation, charge sheet was filed before the Judicial Magistrate Filst Class Dhamtari, Who in turn, ommitted the case to the Court of Sessions, Raipur from Where &E learned Additional Sessions Judge received the case on w 5. i In order to prove the guilt of the accused/appellant, prosecution examined as many as 12 Witnesses. Accused was examined under Section 313 of the Code, in which, he denied the circumstances appearing against him, innocence and false implication in crime in question was claimed. 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. 7. We have heard Shli K.K. Singh, learned counsel for the appellant and Shri Sandeep Yadav, learned Dy. Government Advocate for the State, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that as per medical evidence, cause of death was head injury; the alleged eye Witnesses have stated nothing relating to head injury even the Investigating ohicer has deposed that he has not seen any injury over the head of the deceased, therefore, in absence of any evidence relah'ng to injury found over the head, the sole cause of death, conviction of the appellant under Section, 302 of the [PC is not sustainable. He further argued that the appellant has not transfer for trial. ‘ c caused any injury to the deceased i.e. his Wife with intent to cause her death. The appellagt and the deceased both were quarreliug on the ground that Aghaxxtin bai, his wife, consumed liquor in excess quanu'ty and appeHant caused. injury on sudden provocation and on spur of moment, therefore, even if the appellant is held guilty for commission of the above oEence, then é: also the act of the appeliant does not travel beyond the scope of Section 304 Part Il of the IPC. He placed reliance on the decision «J‘oi‘ the Apex Court rendered in the matter of Kapildeo Manda! & Ors It. State 0f Bihar, reported in AIR 2008 SC 533, in which, the Apex Court held that credibility of Witnesses not to be judged miérely on the basis of relationship with the deceased and strained relation withithe accused and in case of inconsistency between the medical and ocular evidence of the allegation that accused persons caused tire arm injuries, evidence of eye witnesses became doubtful. In case of Surendra Pratap Chouhan, Appellant V. Ram Naik and others, Respondents, AIR 2001 SC 164-, the Apex Court held that in case of conviction on the basis of evidence of witnesses having strained relation with the accused, the evidence needs to be scrutinized with caution. 9. 0n the other hand, learned counsel for the State opposed these arguments and submitted that. conviction of the appellant is based on the evidence of Aktu Ram (PW-’2), sister in law- Rukmani Bai (PW-3), Basanti Bai (PW—4), Janki Bai (PW—5), Lakshman (PW— 6) and Sunaram (PW—7) and the circumstances that at 1 1.00 pm in the night, only the appellant was present with the deceased, who died on the spot and the onence committed in secrecy in presence of the appellant only; the appellant was under obligation to offer explanation that how his wife died, but he has not offered any explanation in this regard, therefore, these circumstances are suhicient for drawing an inference that the appellant was the person, who committed murder of his wife. In the present case, FI ‘w aforcsaid wimesses were not having stiained relaticn with the appellant, therefore, their evidence cannot be discalded. 10. In or&er to appreciate the arguments advanced on behalf of the parh'es, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death as a result of fatal injury found over the body of the deceased has not been Slébfstantially disputed on behalf of the appellant, on the other hand, it‘is established by the evidence of Dr. Ashish Shukla (PW-9) and autopsy report Ex. P/ 8 and death was homicidal in nature. I i 12. As regards complicity of the accused] appellant in crime in question is concerned, prosecution examined Aktu Ram (PW-2), sister in law» Rukmani Bai (PW-3), Basanu' Bai (PW-4), Janki Bai (PW-5), Lakshman (PW-6) and Sunaram (PW-7), who have specifically deposed that on the date of incident at about 11.00 pm, appellant was using filthy language to his wife Aghantin Bai (since deceased) and was assaulting her by a stick. They went to the house of the appellant and tried to intervene and advised the appellant then the appellant told that he will kill his wife and thereafter, they went to their houses. After some time, quarreling sound came to an end then they again went near the place of incident where they saw that dead body of the deceased was lying on the ground in injured condition in the Varandah of the appellant. Stick was also lying near the dead body and appellant was not present; he was absconding from the spot, thereafter, Aktu Ram (PW-2), Went to Police Station and lodged FIR vide EX. P/ 2. In cross examination, all the witnesses have admitted that they have not seen the appellant assaulting the deceased. Rukmani Bai (PW- 3) has admitted that at the time of incident, appellant and his wife were quarreling; appellant was asking his wife that hom which place she was coming after consuming the liquor. Both were abusing to each other. Basanti Bai (PW-4) has also admittnd in pala 3 of her cross examination that the deceased was in drunken state. Aktu Ram (PW-2) has also admitted in para 4 of his cross examination that the deceased was in drunken condition and she was shouting. He further admitted in paxa 7 of his cross examination that the deceased consumed liquor in excess and was abusing him, in these circumstances, the husband used to assault the wife. Evidence of these Witnesses revealed that the appellant and‘the deceased had consumed liquor and they were quarreling u u; with each other. Deceased was shouting. Appellant was present with the deceased at the time of incident. The deceased was seen alivedastly in the company of the appellant at about 1 1.00 pm and after some time, within a short span, deceased was found dead. Appellant has not otl‘ered any explanation that how his wife died. v As per medical evidence, 3 ribs were found fractured and the same was not the cause of death. Cause of death was head injury i.e. internal haemorrhage. Injury was also noticed on the fotehead and deplessed injury beside the left eye. Both the injuries were cause of internal haemorrhage. This evidence is suhicient for drawing an inference that the appellant was the only person who has caused injury to the deceased. As is held in case of witnesses having strained relation with the accused, required minute scrutiny, in the present case, witnesses were not having any strained relation with the appellant even otherwise, on a close scrutiny of their evidence, they were found reliable to the extent that both were quarreling to each other and deceased was present alive last at about 11.00 ‘pm in the company of the appellant and thereafter deceased was found dead. Appellant was not present on the spot. The incident took place at about 11.00 pm and the appellant was ab'sconding hom the spot. The aforesaid circumstances and evidence is suiticient for drawing an inference that only the appellant was the person, who caused injury to the i decaased, resulting into her death. As regards motive is concerned, in the present case, as per evidence of afoxesaid witnesses, deceased Aghantin Bai Le. Wife of the appellant had consumed liquor in excess quantity. She was shouting and qualreling with the husband, in these circumstances, the appellant has caused injury to his wife on sudden provocation at a spur of moment and no visible fatal injury was found over the dead body of the deceased. This 'shows that the appellant has not caused any injury to the deceased with intent to cause her death. While convicting and sentencing the appellant under Section 302 of the IPC, Court below has not considered this aspect of the case relating to motive of the oEence and thereby committed illegality. t l3. For the foregoing reasons, appeal is partly allowed. conviction of the appellant under Section 302 of the IPC is altered into Section 304 Part I of the IPC and he is sentenced for 10 years 4‘ a v: RI. and hne ofRs. 100/-. ‘ Sd/- ‘ Sd/ i R.L. Jhanwari T. P. Sharma i i ‘ Judge sunita Judge, ’ " J L