GH COURT OF CHHATTISGARH AT BILASPU IVISION BENC ,ChainrSai /o asiram, age50 ‘ y’ears;, R/o‘ Jilda Tihaiara, Polics Station Khad’wan, I iétfi’c Kora c.,G;‘ / po‘NrDENT 4‘ tate of att1sgarh through Pohc Statlon Khadagwa D y ( G ) ' s , CR APPE ’ P r E tT APPELAN’ (In Jall) lstrlct Korla C I l _ i § t .‘ i v IMIINAL AL UNDER SECTION 374(2) OF THE CODE OF ‘ CRIMBNAL PROCEDURE 1973 l resent Ms Sunlta Jam Advocate for the appellant Mr J A Lohal'u P L for the State/res-po’nd‘etlt H ‘ * ‘ ORAL JUDGEMENT ' (Passed (mi 02/08/2011 The followmg 1udgment o the Coult was passed bV f J' ’ \ J — _1., Eaene ‘ 'n: i/this x/appe‘ s o ; te Lugmen " of Chllg i al i t h jdt J conv1ct10n an order of sentence ated 2352006 ; d d //, ” i d b ddl S g 'passe y Altlona ess1ons Judge Manendraarh " Vt K : Dlsrlct orlya (C G) 1n Sesswns Trlal No 118/2005 whereby and Where under after h01d1ng the aellan p gullty, for te comm1ss1on of offence of culpable: - h homicide amounting to murder 'iof‘khis wife Samalob’ai, nk' A i ’ “ ConViCted‘fthe appellant uhd’ér‘Section 302 ofthe 'I‘n‘ 1a L T P Sharma, H R D H ON’BLEMR T P SHARMA ON BLE MR RANGNATH CH H 8n H ANDRAKAR JJ j S Gh d' . p . gg D? I iy () VERSUS s S Chh 7 e n ) “‘7' : ppt r H l f‘ine‘of/ Rs. IOOO/—,rin default ‘of payment of fine amount yaddltlonal r1gorous 1mprlsonment for 6 months i d Conv1ct1on 1s 1mpugned on the ground that Wlthout any ‘ 10ta of eVIdenoe suff1c1ent for conv1ct10n of appellant,‘ : Court below has convicted and sentenced the"appellant L as aforementioned and therehy committed an illegality. :‘As per case of the prosecution on 2/2/2005 at about “5'00 PM appellant demanded food from his w1fe g Samalobai (since dece‘asedlwhlch she refused then he - y asgsaulted by stick resulting into death of Samalobai ‘ then Shyambai, his niece informed the incident to ' f Ramsingh that Vappellant/ and Samalobai were ‘ quarrelling then he went to the house of appellant ' Where he saw dead body of Samalobai was lying and _ appellant has made extrajudlmal confessmn before h1m ’that he has caused injury to her w1fe Samalobai by stlck then Ramsmgh mformed the meldent to Bundel Slngh. ’PW3 ‘Bundel‘ Slngh lodged Dehat1 Flrst Information Report Vide EX. P—3. On the basis of EX. P— 3, First Information Report was registered Vide Ex. P— 3A. Marg intimation was recorded Vide EX. P—2 & P—2A. Spotr map was prepared Vide EX. P—l. After summoning , the witnesses,_inquest over the dead body of Samalobai was prepared vide ,Ex.'P—4.' Police prepared spot map, Vide EX; P—5. Blood stained and plain ’soil were recovered frdm ,the’ spof‘ Vide EX P—8. Brbken piece [o‘f 'ba7ngles were seized .from'the spot vide Ex. P—9. Dead- lbody‘ of Samalobai’was sent for autopsy to Government Hospital, Khadagwan Vide EX. P—11 from Where PW9 JDr. 'Vinay Jaiswa1 condhcted autopsy Vide Ex. P—llA ‘ and found following injuries and symptoms:— (i) , Contusion over right Shoulder of 6 C.m. X ~ ‘1 c m blackish 1n colour i i i (ii) i Lacerated wound over left foot Just above L 3‘ ankle of 2 cm X V2 ctm. x muscle deep l With clotted blood I .(iii) Contus10n over both the thigh of 6 c m Xr 2 c.m., blackish in colour. * (iv)» No fracture was noticed. _ p {v) ‘Presence Vof“ alcohol was found in the stomach of Samalobai. Mode of death was traumatic shock‘and ‘Vdeath‘was homicidal in nature. Appellant was talgen into custody, hermadediscloser statementof stick Vide EX. P76, same Was recovered at his instance vide EX. P—7. Shirt of appellant was seized vide EX ,Pi—lOr Sealed articles were sent for chemical examination Vide Ex. 13—15. Presence of blood &.human blood over stick recovered from appellant has been confirmed vide EX. P— 16 Statements of the witnesses ‘were recorded unde ‘ ’ Section 161 of the Code of Criminal Procedure 1973 ( ’short ‘the Code) After completion of the investigation ~W :a&n:a.mg r charge sheet was filed before the Judicial Magistrate First Class; Manendr‘agarh Who’in turn committed the case’to the Court of Sessions, Koriya from where learned Additional Sessions Judge, Manendragarh, i District Koriya (C.G.) has received the case on transfer 7 ffor trial. in order to prove the guilt of the appellant/accused prosecution examined as ‘many as. 9 Witnesses. " " Accused/appellant was examined under Se‘ction‘313 of tine Code §Vhere he denied‘the circumstances appearing against him, innocency and false implication in crime in question is claimed. After affording an opportunity of hearing torirthe parties; learned Additional Sessions Judge, Manendragarh, District Koriya (C.G.) has'convicted and sentenced the appellant as aforementioned. V 4 Ms. Sunita Jain, learned counsel for the appellant and Mr. iJ.A. Lohani, P.L.. for the State/respondent are , 'below perused. Learned counsel for the appellant vehemently argued v that in the light of evidence of prosecution witnesses, - and circumstances against present appellant that Samalobai, 'wife of. appellant Xdied inrfthe house of appellant and he has not offered any explanation, she v heard. Judgments impugned and record of the'Court rn ‘ ‘i 7 A raglan “‘rr‘ ""“’r \ 'Wrn A A i$ not disputing the fact that appellanthas not caused 'homicidaldeath of his Wife Samalobai. V Learned counsel for, the appellant further argued that as per initial case of the prosecution and Dehati First Information Report Ext P—3, on account of demand of > - food, incident took place and appellant has not caused fatal injury to Samaloba-i although Samalobai died as, a ' result of traumatic shock therefore, if the evidence ’of prosecution is considered as a gospel truth then even tithe :act of appellant does not travel-beyond the scope of- Section 304 Part—H of Indian Penal Code. , Learned counsel for, the appellant also argued that present appellant is in custody since 2005 and has“ fcompleted 6 1/2 years and same would be sufficient ‘ sentence for commission of aforesaid offence. 'On the other hand; learned counsel for the respondent/ State .opp0sed the appeal and arguedthat present appellant has caused homicidal death ‘of Samalobai with intent to Cause her death and Court > i below has rightly convicted ' and sentenced the appellant as aforementioned. In order to‘ appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. f i n h sen- cas oa eath as a ult of J fo o th y o dec alb no ben subta dpu o e o h t e stan1lly 1sted n bhalf f te appelt the ohr hand othe ls thhed lan on te emls ao esabs te ev1 Va sa nd toy r by h dence of PW9 Dr lny Ja1wl a aups lport E P lA n de‘a of Salob as hmda n . ', \ V 1n nature re 'X. — ’l ad th maal w 01c1l \ r ‘ . ’7 ‘ , u a . we r a A regard the comcity, o apelan crm i s ~_s pli f plt in ie n uestio, covt of he pelat isusll asd o‘ vice o WI. amh evv _‘ ~ peln has m xti‘jica confsi s pe is dn h bck fro te rke tn was ied y h ie Sb t al ’Sarloa e qurrig t er 2 o ent to he he Of pel Wh h boy f t ous aplant ere e saw dead d o ' maloai s yng in se o applat he Sab wa li the hou f eln ke f th llant s e e pllt jasd rom e appe how he did thn apean w a n in house ma xajiCial ho ws preset his de etrud WconfeSSion that he has assaulted his Wife Samalobai by ‘stick then he called Bundel Singh thereafter Police? came. Defence has crosseexramined this witness at p length [but has not been able to elicit anything in his: cross examination to discredit his testimony speCially relating :to extrajudiCial iconfess1on before whom ' appellant has made extrajudicial confeSSion. :;,_m_,mwaxmm i te pret e hmicidl d res mury und ver e bod f eased Smaoal has Qn nicion t apln srbtantiay be njthe eden f P Rsing bforehom p aplat ade eaudil eson. A r h _ ev1ece Wen he came a m h mat he he ' nform b is nec hyamai hat ppelant and ' , nabi wer aelln hen aft 1/ hur he w » he went to the house ‘ r 9 ‘ \ i PW2 Jansai has also deposed in his evidence that When j 16; of appellant, he .saw the dead- Wbody of Samalobai was lying. in the house of appellant. Unimpeached evidence of PWI Ramsingh relatingvfo extrajudicial confession made by appellant before him is well corroborated by Dehati First Information Report EX. P—3 are sufficient for drawing definite conclusion that only appellant has caused homicidal death Of r Samalobai. VAsiregards 3 the quersltion\of.,motiveiis concerned, initially there was no motive for causing injury to Samalobai, wife of' appellant and as per autopsy report, before incident she had consumed liquor and no fatal injury has been noticed by doctor., At the time of autopsy, except one injury other injuries were found on non—Vital part. As per Ex. P—3, appellant demanded food from his without premeditation when Samalobai ‘refused to provide, food to his husband i.e‘. .appellant‘. Aforesaid ’wife, which she refused, then he assaulted ‘her; this shows that incident took place on sudden provocation l evidence and circumstances reveal, thatwappellant has not caused homicidal death of Samalobai but at the time of causing such injury, he was having knowledge that by his act, Samalobai may .die therefore, act’ ttributed by the appellant does not 'traVel beyond the l“ u: -' a l8. ‘ A y 1 I 1 scope of Section 304 Part—II of Indian Penal Code. While convicting and sentencing tne appellant under Section 302 of Indian Penal pode, Court below has not considered the circumstances in which incident took place and thereby committed an illegality. For the foregoing reasons, criminal appeal is partly allowed. Conviction of the appellant under Section 302 t “fof Indian Penal Code is altered into under Section 304 Part-ll of Indian Penal Code and considering the cause of incident and injuries found over the body of deceased Samalobai, appellant is sentenced to the custodial period i.e. for about 6 1/2 years. He is in custody since 3/2/2005, he be released forthwith, if not required in . ~ $ l, C‘vm - an#~.:m»wv~mm@mg.ai.t»_..‘,._~n. A. vI. any other case. §/\\ sap r” ‘P' iudge / F9; 1v. 7 // ; lR.N. Chandrakar I). /\/§ ~ gyaN‘ , Judge (r fr” #1 L’ V ~> I I I f i i C CW - l E