1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 34 of 1994 Date of decision: 04.01.2008 ____________________________________________________________ State of H.P. Appellant. -vs- Raghubir Singh Respondent. __________________________________________________________________ Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?No. For the appellant : Mr. Som Dutt Vasudeva, Additional Advocate General with Mr. D.S. Nainta, Dy. Advocate General. For the respondent : Mr.Vinay Thakur, Advocate vice counsel for the respondent. _________________________________________________________ Surjit Singh, J. (oral) This appeal by the State is directed against the judgment of trial Court whereby the respondent, who was charged with and tried for an offence under Section 302, I.P.C. for allegedly murdering his wife, has been convicted of an offence punishable under Section 304-II, Indian Penal Code and released on his entering into a bond in the sum of Rs. 2000/- with one surety, for a period of two years for keeping peace and being of good behaviour, under Section 4 of the Probation of Offenders Act. The order of such release was passed by the trial Court, after sending for the report of the Probation Officer, who recommended the benefit, on the ground that the respondent was a man of good character and needed to be given an opportunity to reform. State has sought the conversion of the conviction of the respondent under Section Whether reporters of the Local papers are allowed to see the judgment? yes 2 304-II of the Indian Penal Code to under Section 302 Indian Penal Code and the award of sentence accordingly. Prosecution case, as per record, is like this. Respondent was married to the deceased about eight years prior to the occurrence. They were having two children. It appears that after the birth of the second child, the parties were not having good relations. The wife filed an application, under Section 125 of the Code of Criminal Procedure, seeking grant of monthly maintenance allowance for herself and one of her children. Application was allowed. Deceased then started living separate from the respondent at the house of one Gopal Chacha. It appears that despite acrimony in the relationships between the deceased and the respondent, the two had been meeting each other and also sleeping together, even though occasionally. On the fateful night, respondent visited his wife. They stayed together and enjoyed sex. Thereafter, they started arguing with each other over the demand of the respondent that the deceased left Gopal Chacha’s house and started living with him at his place along with the children because of one child was stated to be sick those days and needed medical attention. The deceased allegedly refused to accede to the demand. She started hurling abuses. She proclaimed that the mother of the respondent was a witch and his father a thief. The quarrel continued for some time and it rose to such a pitch that the deceased spat on the face of the respondent. This provoked the respondent to use the criminal force against the deceased. He pressed the neck of the deceased as a result of which she died. The respondent thereafter went to his brother Amar Singh (PW2) and narrated the incident to him. From there the respondent accompanied by his brother Amar Singh (PW2) and one Ramesh went to the Police Station, where Amar Singh lodged the First Information Report. The Police registered a case under Section 302 3 I.P.C. against the respondent and arrested him immediately. Inquest was conducted. Dead body was subjected to post mortem. Doctor opined that the cause of death was asphyxia by smothering and strangulation by hand. During the course of trial, prosecution examined Amar Singh (PW2) who testified that the respondent visited him in the night and told him that he happened to kill his wife by pressing her neck because of her having provoked him by hurling abuses and spitting on his face. Prosecution did not lead any other evidence to seek the conviction of the respondent. Trial Court relying upon the testimony of Amar Singh (PW2) as also the statement made by the respondent under Section 313 of the Code of Criminal Procedure, where in he took the plea that he happened to kill his wife on being provoked by her, in the aforesaid manner, convicted the appellant of the offence under Section 304-II Indian Penal Code and after calling for the report of the Probation officer, released him on probation. State has sought the conversion of the conviction of the appellant from 304-II to Section 302 I.P.C. We have perused the record and heard the learned Additional Advocate General. The only evidence on which the respondent has been convicted is the confession made by him to his brother Amar Singh and as per confession, the respondent happened to commit the crime because of the aforesaid provocation given by the deceased. A wife sleeping with her husband and then indulging in use of filthy language and also spitting on the face of her husband is definitely a case of provocation depriving the husband of self-control. The respondent is not shown to have used any weapon or other object to hit the deceased to cause her death. He used his hands to press the neck of the deceased as a result 4 of which she died of asphyxia. Perhaps the respondent did not intend causing the death of his wife because immediately after the incident, he went to his brother Amar Singh (PW2) with a feeling of remorse and made a clean breast of his guilt. Looking to the aforesaid facts and circumstances of the case, we see no reason to interfere with the finding of the trial Court that this is not a case of murder but culpable homicide not amounting to murder, punishable under Section 304, Part-II, I.P.C. Hence the appeal is dismissed. (Surjit Singh) Judge. (Surinder Singh) Judge. January 4, 2008. (bm) 5