CF0000062253 £ m THE Hxaa cwar eswpxcAmBE. MADHYA Pmnasa' gar JAWUR. CRIMINAL APPEAL No.’_§E\__‘0F 1999 . (UNDER SECHW 374(2) OF IHE \CODE OF CRIMIML PEQSEDJRE). r APPELLANT (IN JAIL) Suman \Kmar, Son 'of‘Shri Bamdayal Patel, Aged‘about’ 29. years;-Pesident 'of Jabera Police Station Jabera, District—DURG madhya PradeSh) . VERSUS State of Madhya Pxadesh. crummy. APPEN. UNDER sECTIoN 374(2) OF mg cons OF CRIMINAL PROCEDURE. QmVICTIm sgmENCE / v XI-HC-78 m Eqi$ Cnkdwmngmlilm moo g l mwmaama) anéewtm ammglm , Wanvgaanéa I , mam§wmn $31§wanéa DIVISION BENCH: HON. HRIL.C. BHADOO & Per L.C.Bhadoo, J iqn 374(2) of the Cede of Criminal Procedure the accused/appell nt has questioned the legality and correctness of the judgment of onviction and order of sentence dated 30.01.99 passed by Fourth Additional Sessions Judge, Durg in S.T.No.62l98 whereby the le ned Additional Sessions Judge after holding the accused/appellant g ilty for the commission of offence under Sections 302 of the lndian P nal Code sentenced him to undergo imprisonment for life and to pay tine of Rs. 5,000/-, in default of payment of fine to further undergo Rl fo I wife namely Amrika Bai. riminal A eal No. 821 of 19 C 99 Appellant .Suman umar , Vs State of M.P. Shri L.C.Das, learned counsel for he appellant. t Respondent Shri U.N.S. Deo, learned (i.A. with Shri M. P.S.Bhatia, leamed P.L. for the Slate. o R L J u D e M E N 1' (2210312006) By this appeal under years) for committingthe murder of his K S t r o XI-HC-78 WI- §In1$ G¥4'Wn$uhj $1296” marmaaiawa) Xl-HC—78 m§qi$ Gca' . 9:.$34.l%[m mawaafaaa) anaemrm mmwm 4‘ mamas: As far as the first circumshnce i concerned, P.W.-6 Ganga Prasad has categoricaily stated in his eviden e that on the fatefu! day at the crucial time he went outside the villaget a place where one truck accident took place. At that time the accused ame walking towards him and said that "Babaji l had murdered my wife’ on which he enquired that with which f weapon he has murdered his ife upon which he said that he has murdered her by assaulting with Raepe (Kudali-Shovel) which is cailed i ‘ spade. On further enquiry by him he said that he attacked with the Raape on her head and thereafter he al ng with the accused went to the poiice .chowki Jewra where he again dis losed the same facts. .In the cross examination of this itness the defence has not been able to elicit any circumstance which makes the evidence of this witness untrustworthy or unreliable. offence - Raaha (Kudali-Shovel) and the clothes of the accused were found stained with blopd. Moreover he is an independent record which shows that he has eposed against the accused on account of animosity of bias. Therefore the evidence of this witness regarding making extra judicial confession fore the accused inspires the evidence of the Court. As far as the second circums+nce is concerned, the clothes of the accused were taken into posses1on under P-8 and the weapon of offence Reapa (Kudali-Shovel) was tak n into possession under P-9 and the I*_$¢=? Xl-HC—78 m§m$ 3A m a {mmzoo mam(W) mamféwh ammam mm#wm $manéa1 mammanéa .§ - same has been proved by P.W 12. M. L.Shukla, P.W.-6 Ganga Prasad and P.W.-8 Tuisi Ram. As per the orénsic Science Laboratory report, the ’ clothes of the accused and Re pa (Kudali-Shovel) we're found stained with blood. Therefore the prosec tion has been able to estabtish based on the circumstantial evidence, the i ‘volvement of the accused in the crime in question attacking the de'cease by the accused with Reapa (Kudali- Shovel). Learned counsel for the accuse appellant argued that when the accused in the kitchen garden, the deceased refused to work with him and a the accused was already annoyed with the deceased regarding her rel tions with one Dhanesh, the refusal to work by the deceased infuriated he accused and in a sudden quarrel, in a heat of passion without any p meditation the accused picked up the Raepa lying on the ground and assaulted with the same from the back side. Therefore the offence aga nst the accused does. not travel beyong 304-" of the IPC. On the other hand Shri M.P .Bhatia, P.L. on behalf of the State supported the judgment of the tri l Court. The argument which has b n advanced by the counsel for the accused/appellant to a great e ent find place in the report disclosed by the appellant himself in' the ice Outpost Jewra in which he had mentioned that as he was dobtmg that his wrfe was havmg physical relationship wrth some other pe son therefore there used to be frequent dispute between them and on e fateful day when both of them were . l q XI-HC-78 W§Wi$ CVAqay-l’i/Iqim, mwm(m) marmw > aanméam mmé'wm -C -r $a§qma mmmma working in the kitchen garden d“ eased all of a sudden refused to work with him saying that he was not w rking up to the fuiiest capacity and said that she is going toihis house hich infuriated him and picked up the Raapa which was lyin on the gron nd and attacked her. Similar is the\defence taken by t accused in a statement under section 313 of the Cr.P.C. and as has be n mentioned that the case rests on the extra judicial confession made b the accused/appellant before P.W.-6 Ganga Prasad who has also s ted that accused came to him and informed that on enquiry by him s to why he committed the crime and thereafter they went to the polio chowki where he said that a quarrel ensued between the two while‘t y were working in the kitchen garden and there was nothing on recordt indicate that the accused had any pre- plan or pre-meditation to attac the deceased and the body of the deceased was also found in the tchen garden itseif where the offence took place and from the facts it ap ears that they were working together in the kitchen garden, a dispute‘aro e between the two and in that process accused assaulted his wife (since eceased) with the Reapa. Therefore we are of the considere opinion that the case of the accused is covered under Exception 4 of Se ion 300 of the IPC and there is nothing on record to show that the accus d acted in a cruel and unusual manner. The conduct of the accused was uch that immediately after attacking his wife he went to the police Out st and reported the matter therefore, looking to the manner in which ihe accused attacked his wife and also looking to the facts of the case we are of the opinion that the offence under Section 304»; of the IPC i made out against the accused and as h i XI-HC—78 m§W wk C$A :.W¢.~.Lr.. $3J.\W m21m(q§1aaa) mmim‘m r $msnéa mammia; amméam mmvgama .1_. I W?C such the finding of the tfia! Court convicting the accused under SecPtion 302 of the IPC and sentencing im under that Seetion could not be susmined. In the result. the appeal' pamy succeeds. The accused is acquitted of the charge under Section 302 of the PC and the sentenced imposed Upon him is also set aside. Instead the eof the accused/appeiiant is convicted under Section 3044 of the IPC an sentenced to undergo RI for ten yearsw The accused/appeiiant shaii be en itled to setoff of the detention period for which he remained in the police and judicial cwAé/u r i Sd/- s mRENSDd/- msHRA _, L.C.BHAD00 , D,, v Jug: i Judge ’