@ HIGH “'T ‘ ‘ COURT "‘ ""‘OF-_‘—""‘_‘ CHHATTISGARH AT *‘ BILASPUR *‘ ‘“ DIVISION BENCH: HON‘BLE MR. DHIRENDRA MISHRA & HON'BLE MR. SUNIL KUMAR SINHA J'J' X CRIMINAL APPEAL NO.357 of 2003 APPELLANT Banwar'i, S/o Banu Korva (Pahadi), aged (In jail) abouf 4O years, Occupafion-Agriculfurisf, residem‘ bf Govindpura, P.S. Bafouh‘, Dismcf Sarguja (Ambikapur) (C.G.) Vs * REsPONbENT stare of’ Chha++isgarh mrough the Ponce S‘rafion Barouli, Dis’rr-ic’r Sarguja (Ambikapur') Presanf: Mrs. Savifa Tiwari, Advocafe for the appellant Mr. Pr'aveen Dos, Depu‘ry Government Advocm‘e for The respondeni-Sfafe. ORAL JUDGMENT (7” November, 2003) m Per Suni! Kumar Sinha J: 1. AppellanT—Banwari, son of Banu Korva (Pahadi) sTands convicTed under Sec‘rion 302 of The Indian Penal Code (for shorf “IPC") and sen‘renced to undergo rigorous imprisonmenf for life by fhe judgmem‘ and order dared 20.2.2003 passed in Sessions Trial No. 425/2001 by The learned Sessions Judge, Ambikapur, Disfricf Sarguja. Deceased Chirangi Bai was fhe Wife of fhe appellant . Case of The prosecufion, in brief, is fha‘r on 18.11.2001 aT aboui 10.00 p.m. ‘rhe deceased was presenf in +he house of J‘hulmafi (PW— 2) as she was keeping fear in her mind Thaf she would be bea’ren by fhe appellanf on account of suspicion of The appellanf regarding her illicif relations wi‘l'h some ofher person in fhe village. Furfher case of The prosecuTion is ThaT The appellanT, searching The deceased, came To The house of JhulmaTi (PW-2) and assaulTed The deceased wiTh burning wood and when The deceased fell down on The ground, he assaulTed her by legs due To which she became unconscious and ThereafTer The appellanT lefT The house of JhulmaTi Bai (PW~'2). / \\ Criminal Appeal No.357 of 2003 Chimngi Bai died on ’rhe nexf morning of abou‘r 6.00 a.rn. The incidenf was wifnessed by JhulmaTi Bai (PW-2), who disclosed abou’r fhe inciden’r To The villager-s on which merg infima’rion (EXP-2) was gwen. 3. During ’rhe course of invesfigm‘ion, fhe Invesfigafing Officer gave notice (Ex.P-6) To ’rhe Ponchos and prepared inquesf (EXP—5) on The body of ‘rhe deceased. Blood stained soii, plain soil & clo‘rhes of deceased were seized from fhe place of occurrence under Ex.P—7. Piece of half burnf wood was seized under Ex.P-\8. Sife plan was prepared under EXP—10. Dead body of fhe deceased was sem‘ for posfmorfem examinafion To The Communify Heal’rh Cenfre, Bafouli, Disfric‘l‘ Sarguja where Dr. Roop Singh Parihaar (PW-3) conducfed posfmorfem and prepared his repor’r EXP-4. The Au’ropsy Surgeon found following injuries on The body of The deceased;- . One anfe—mor’rem burn injury on ’rhe righf porfion of The skull. One anTe-morfem laceraTed wound on The righT porTion of The skull meaSuring 3x1 cm inTo muscle deep, cloTTed blood presenT. o One anTe-morTem laceraTed wound on The righT parieTal region measuring 6x6 cm inTo muscle deep, cloTTed blood presenT. o One anTe-morTem bluish wound on The righT side of The sTomach measuring 6x7 cm. On infernal examinaTion, he found ThaT cloTTed blood was presenT on boTh The sides of brain membrane. He also found ThaT spleen of The deceased was rupTured and The blood has come ouT To The kidne‘y also. He furTher specifically menTioned ThaT These inTernal injuries were also anTe-morTem in naTure. The AuTopsy Surgeon opined ThaT cause of deaTh was syncope due To splenic haemorrhage 6T exTra dural haemorrhage and iT was homicidal in naTure. In furTher invesTigaTion The seized arTicles were senT for Their chemical examinaTion To Forensic Science LaboraTory, Raipur under EXP—14 from where reporT (EXP-16) was obTained, according To a Criminal Appeal No.357 of 2003 3 @ which, blood s‘rains were found on ‘rhe sfained soil & clofhes of ’rhe deceased, however, no blood stains were found on fhe plain soil. 4. After comple’rion of usual invesfiga’rion, The charge sheef was filed infrhe Courf of Judicial Magisfrafe 15" Class, Ambikapur, who in ’rurn commiTTed The case To The Cour’r of Sessions Judge, Ambikapur, who conduc’red Trial and convicfed & senfenced The accused/appellanT as aforemenTioned. 5. ConvicTion of The appellam‘ is based upon The sole Tes’rlmony of eyewiTness namely Jhulmafi Bai (PW-2) supporTed by The evidence of RaTur‘am (PW—1) To whom she narrafed The incidenT immediaTely as also by The evidence'of Dr. Roop Singh (PW-3), who conducTed posTmorTem of The deceased. 6. Mrs. Tiwari, learned counsel for The appellanT argued ThaT The sole TesTimony of J’hulmaTi Bai (PW—2) cannoT be relied on. She also argued’ThaT in The facTs and circumsTances of <This caSe, The acT aTTribuTed To The appellanT would noT amounT To an offence punishable under SecTion 302 of The IPC and iT would noT Travel beyond SecTion 304 ParT-I of The IPC. 7. On The oTher hand, Mr. Das, learned DepuTy GovernmenT AdvocaTe for The STaTe opposes The above argumenTs and supporTs The judgmenT and order passed by The Trial courT. 8. We have heard’rlearned counsel for The parTies aT lengTh and also peruSed The record of The sessions Trial. . PW—Z‘JhulmaTi deposed ThaT aT abouT 10.00 p.m. on The faTeful day The appellanT came To her house searching his wife Chirangi Bai and asked her as To wheTher his wife is There or noT? She furTher deposed ThaT saying This he enTered her house, picked up a burning wood, Touched The burning porTion of wood To The head of deceased and ThereafTer he assaulTed her by The said burning wood due To which The deceased fell down. She has very specifically deposed \ ”x "\\ ThaT even afTer The deceased has fallen down, he assaulTed her Criminal Appeal No.357 of 2003 wi’rh his legs. She has fur‘rher' deposed ’rha’r when she im‘er‘vened and said The? who will see The children, Then fhe appellant u’rfer‘ed ’rhaf he will look affer' The children when The deceased would die. This wiTness has been cross—examined by The defence in 2-3 lines and noThing maTerial could be broughT on record in The cross— exominaTion of This wiTness on which eiTher her TesTimony may be discarded or iT may be inferred ThaT she has noT given The correcT picTure of incidenT which admiTTedly Took place inside her own house aT abouT 10.00 p.m. on The faTeful nighT. 10.Version of JhulmaTi (PW-2) is corroboraTed by The TesTimony of RaTuram (PW-1), who sTaTed ThaT aT abouT 6.00 am. in The nexT morning JhulmaTi (PW-2) came To his house and sTaTed ThaT The appellanT had commiTTed murder of The deceased. She has also sTaTed abouT The manner of assaulT To This wiTness. RaTuram (PW- 1) is The person who has lodged merg inTimaTion (EXP—2). The ‘facTum'of assaulT To The deceased by The appellanT finds place in The conTenTs of merg inTimaTion. Therefore, version of J’hulmaTi (PW-2) is supporTed by The evidence of RaTuram (PW—1) and merg inTimaTion, lodged aT The insTance of RaTuram. Her evidence is furTher corroboraTed by medical evidence of PW-3 Dr. Roop Singh, who found as many as four exTernal injuries on The body of deceased and also found ThaT spleen of The deceased was rupTured. As such, The argumenT advanced by learned counsel for The appellanT ThaT TesTimony of JhulmaTi (PW-2) should noT be relied, cannaT be accepTed and compliciTy of The appellanT in crime in quesTion is fully esTablished. 11. So far as The argumenT of learned counsel for The appellanT ThaT The offence does noT Travel beyond SecTion 304 ParT—I of The IPC is concerned, SecTion 304 of IPC does noT creaTe any offence; iT merely provides The punishmenT for culpable homicide noT amounTing To murder and draws a disTincTion beTween The penalTy To be inflicTed in cases, where, an lhTenTion To kill being presenT, The pg /)’ \ Criminal Appeal No‘357 of 2003 g 5 acT would have amoun‘r To murder, bu‘r for ifs having fallen wi’rhin one of ‘rhe Excep‘rions in Section 300, and cases in which The crime is culpable homicide noT amounting ’ro murder, fhaT is ’ro say, where There is knowledge That dea’rh will be a likely resul'r, buT ihe i‘n‘ren‘rion lo cause death, or bodily injury likely to cause death, is absent. First part of Section 304 of the IPC applies where there is guilty intention whereas the second part applies where there is guilty knowledge. However, before an accu5ed is held guilty and punished under the first 'or second part of Section 304, a death must have been causad by him under any of the circumstances mentioned in the five exceptions to 5.300, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. 12.If we’apply. the above principles to the facts andrcircumstances of this case, it would appear that the appellant was having knowledge about the illicit relations of his wife with Some other person in the village and due to which he was angry with his wife and for this reason he was in search of his wife for the last two days who was hiding herself here & there to save her life. The material on record would show that on the fateful night also, the appellant was searching his wife and ultimately when he found her in the house of Jhulmati Bai (PW-2), he gave repeated blows by burning wood to the head of his wife and even after her fall on the ground on account of injuries sustained by her on the head, he assaulted her with his legs. According to the postmortem report, spleen of the deceaSed was completely ruptured which shows that due to assault given by the appellant by his legs on the abdominal region of the deceased, said injury was sustained by the deceased. Repeated blows given to the deceased by burning wood and legs would show that the \ ..\r\ \ / / \sQppellant was having intention to cause death of his wife. / l “ Sdl-m Sunil Kumar Sinha Judge vv