ks ^ HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR, JJ. CriminalAppeal No.127/2005 APPELLANT (in iaill RESPONDENT Kamla Bai wife of Kamta Prasad Sahu, aged about 40 years, resident of village - Madeli, Police Station Chhura, District, Raipur,(C.G.) VERSUS State of Chhattisgarh, through : the Police Station Chhura, District Raipur CRIMINAL APPEAL UNDERSECTION 374 (2) OF THE CRIMINAL PROCEDURE CODE. 1973 Appearance: Smt. Hamida Siddiqui, counsel for the appellant. Smt. Madhu Nisha Singh, P.L. forthe State. (<.-. Per T.P.Sharma. J. ORAL JUDGMENT (Passedon 07.02.2011) Challenge in this appeal is to the judgment of convicfion and order of sentence dated 04.11.2004 passed by 1 Additional Sessions Judge, Raipur (C.G.) whereby and whereunder after holding the appellant guilty for commission of culpable-Lhbmidde-amounting to murder of her daughter-in-law Meena Bai @ Duleshwari, the Court below convicted the appellant under Section 302 of the I.P.C. and sentenced him to imprisonment for life with fine of Rs.1000/- and in default to undergo further 3 months R.l. 2. The conviction is irirfpagn6dvorvthe?ground that without any iota of evidence, the Court below convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per the case of the prosecution, on fateful day of 6.6.2004 at •( • i about 12 noon, the appellant, mother-in-law of the deceased Meena Bai :. ..•[ •^L.^: :'i0' ; !:1....... .. ..'. . : • •'.,.; . . . l waspresent in her house along with Meena Bai. On account of service of deceased under the scheme of Indira Health Mitanin, both the appellant and the deceased quarrelled and appellant assaulted Meena Bai by L household articles and caused her instantaneous death. The incident was informed to husband of the appellant i.e. Khilawan Ram Sahu P.W.1 who wenttopolice Station and lodged merg vide Ex.P.1. F.1.R. was lodged on the basis of merg intimation vide Ex.P.26. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex.P.2, inquest over the dead body of Meena Bai was prepared vide Ex.P.3. Bloodstained soil and plain soil, other articles stained with blood were seized from the spot vide Ex.P.7. Dead body was sent for autopsy to Government Hospital Chhura vide Ex.P.12. Dr. R.S. Paikra P.W.12 conducted autopsy vide Ex.P.13 and found one incised wound of 2.5 x 0.5 x 0.7 cm. over middle forehead, about more than 20 lacerated wounds, contusions and bruises over different parts of the body, 5 teeth was broken. Present appellant was also examined by Dr.R.S.Paikra P.W.12 •^,.,-~^Y^:',..;'~ ~.~ ~-v .^.t~ ^n^'Fo^^cf'^.^: ~"7-"t:.'""~--^'-^ -"-'":' "^ -\ who also found one incised like wound of 1.0x0.5x0.5 cm, 9 abrasions, one bruise, onelacerated wound over the different parts of body of the appellant including injury over the face. Present appellant was taken into custody and made disclosure statement of sickle and cloths vide Ex. P.4, the same were recovered at the instance of the appellant vide Ex.P.5 & 4. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the Court of J.M.F.C. Gariaband, who in turn committed the case,tothe Court of Sessions Judge, Raipur. The learned Additional Sessions Judge received the case on tra^sfer for its trial. 5. In order to prove the guilt of the appellant, prosecution examined as many as 15 witnesses. The accused/appellant was also examined under Section 313 oftheCr.P.S. where she denied the circumstances appearing against her and pleaded her innocence and false implication in crimein question. 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. ^•'-i pSmt. HamidanSiddn^ar,ttearned-counsel for the appellant and Smt. Madhu Nisha Singh, P.L. for the State are heard. Perused the impugned judgment and record of the Court below. A^l ^y^ i^ 8. Smt. Hamida Siddiqui, learned counsel for the appellant argued that in the light of evidence of prosecution witnesses that only two persons i.e. the present appellant and thedeceased were present inside the house at the time of commission of incident. The appellant has offered false explanation thatthe deceased fell down from ladder and thereby received injuries but as per evidence of Dr. R.S.Paikra P.W.12, injuries found over the body ofthe deceased have not been caused as a result offall from the ladder and the fact that by the evidence of other witnesses it revealed that the appellant has caused the injury to the deceased. She did not dispute that appellant has not caused injuries to the deceased. Counsel for the appellant submits that appellant also received more than 10 injuries at the time of incident which clearly revealed that both the persons were present inside the house and both persons used sickle for causing injury and ultimately the deceased died may be as a result of more injuries caused by the appellant, but ifthe entire evidence ofthe prosecution is admitted in its entirety, then the act of the appellant does not travel beyond the scope of Section 304 Part II ofthe I.P.C. 9-. • -' Gn-the-other'hand; ISmt?v'Madha Nisha-Singhy learned counsel for theStatesubmsits that more than 20 injuries including injuries relating to breaking of 5 teeth have been found which shows that the appellant has acted in brutal and merciless manner and has caused homicidal death amounting tb murder of her daughter-in-law. After appreciating the evidence available on record," the learned Court beloW ha^ rightly convicted and sentenced the appellant as aforementioned. 10. In order to appreciate the arguments advanced on behalf of the parties, we have perused evidence adduced on behalf ofthe prosecution. In the present case, homicidal death of Meena Bai as a result of fatal injuries-fbund over-heFbody^has net-bee^-substantially disputed onl behalf of the appellant, on the other hand also established by the evidence of P.W.12 Dr.R.S.Paikra and his autopsy report Ex.P.13 and death of Meena Bai was homicidal in nature. 11. As regards the complicity of the appellant in crime in question, although the appellant has not disputed the fact that she has not caused homicidal death of deceased, buteven otherwise the same is established by the evidence of P.W. 1, P.W.2 Babulal, P.W.3 Rang Mohan Anand, P.W.4 Chainram and P.W.8 Yaadram Sahu which revealed that at the J , ••-..^-- 1 .N;. I.^Ay'^ time of death of deceased Meena Bai only the appellant was present inside the house and she has offered explanation of fall from ladder. The aforesaid circumstance is sufficient for drawing inference that only the appellant has caused fatal injuries to the deceased resulting into death of her daughter-in-law. 12. As regards the question of mofive, in case of direct evidence, motive loses its importance, even otherwise, motive only aids in criminality and it can be inferred from the use of weapon, part on the body affected and other similar circumstances. In the present case, P.W.12 Dr. R.S. Paikra has deposed in paragraph 12 of his evidence that on 7.6.1994 he has also examined the appellant - Kamla Bai vide Ex.P.16 and found multiple injuries as aforementioned over her body. The appellant has been sent for medical examination vide Ex.P.17 which revealed that the deceased has also caused injuries to the appellant. Nobody was present at the time of such quarrel. In these circumstances, it can be safely inferred that there was clash between the appellant and the deceased and caused injuries to each other by using household articles present in the .•-:-n '...: >- • : , • ." .. • :-•.".;'., house and both the appellant and the deceased have not caused injuries upon each other with intent to cause death or causing grievous injury. Thus, the evidence clearly shows that on sudden quarrel, on spur of moment and without premeditation, the present appellant has caused injuries and thereby caused homicidal death to the deceased. The present appellant has also received injuries caused by the deceased -;p... . ,. . "• -:. . " during the clash. These circumstances show that the act of the appellant does not travel beyond the scope of Section 304 part II ofthe I.P.C. 13. While convicting the appellant under Section 302 of the I.P.C. the Court below did not consider the aforesaid aspect of the case and thereby committed illegality,- -••"<:'-^or "nr '*'• ...... , 14. For the foregoing reasons, the appeal is partly allowed. Conviction ofthe appellant under Section 302 ofthe I.P.C. is altered into Section304 Part II of the I.P.C. and the appellant is sentenced to custodial period i.e. 8.6.2004 till date, for a period of more than six and half years. The appellant be released, if not required in any other case. Sd/- ( R.L. Jhanwar MSharma | | Judge Judge j