^( i;;...:^; E?^?'"ii'i HIGH COURT OF GHHATTISGARH. BILASPUR APPELLANT: (InJait) RESPONDENT: CrimjnalApDealNo.927of2010 Andaru S/o Maniram aged about 34 years, r/o Viltage Futhamuda, Thana Arjuni, Distt. Dhamtari(C.G.) Versus State of Chhattisgarh, through the District Magistrate, Dhamtari Distt. Dhamtari (C.G.) {Criminal appeal under Section 374 (2) of Cr.P.C.} Present: Mr. Sunil Sahu, counsel fortheappellant. • Mrs. Madhunisha Singh, Panel Lawyer for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharmaand Hon'ble Mr. R.L. Jhanwar. JJ ORALJUDGMENT l,:^..^.';::l')-':W^ T.P.Sharma.J:- ^ Heard on l.A.No.2/2010 for suspension of senterfce and grant of bail ^ duringthependencyofappeal. _ 2. Leamed counsel for the appellant submits if evidence of Jhanauram (RA/-7), which is against the appellarit. is considered as true, act of the appellant does not travel beyond the scope of SeGtion 304 Part-1 ofthe IPC. Learned tQunsei further submits that the. appellant is:in custody since 3-7-2001and has completed more than nine years..six fflonths in jail and.therelpre, he Is ready to argue the case finally. 3. Learned State counsel is also ready to argue the case Tinally. 4. With the consent of bbth the parties, instead of hearing the appeal on I.A. No.1,the appealis heard finally. 5. Vide judgment of convietion & Qrder of senteneedated 29-7-2003 passed in Sessions Trial No.30/2002, the Additional Sessions Judge, Dhamtari has convicted the appellant uriaer Sections 302 & 201 of the IPC, fOr causing eulpable homicide amounting to murderofhiswife Hirmotin Bai .rf8' < and concealing the evidence of criminal case, and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of flne to further undei^o Rl for one year and to undergo Rl tor five years & pay fine of Rs.1,000/-, in default of payment of fine to further yndergo Rl for one year, respectively. 6. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced'the appellant, and thereby committed iliegality. 7. As per case of the prosecution, on 8-2-2001 at about.1 p.m. the appellant & his wife Hirmotin Bai (since deceased) were present in their house at Village Futhamuda, Pollce Station Arjuni, Distt. Dhamtari, they were quarrelling and during the course of quarrel, the appellani took out the burning fuel wood and caused injury over her head. She died on.the spot. Thereafter without intimating the factum of causing injury, the appellant along with other accused, with intent to conceal the evidence of 'criminal case, buried the dead body. Relative of the appellant Heera Singh (PW-2) - brother ofthe deceased, who has previously directed the appellant not.to bury the;dead body.went to the police station and lociged merg vide Ex.P-5. After obtaining permission from Sub Divisional Magistrate,Nagari,deadbodywas exhumed vide Ex.P-3. The Investigating OfFicer left for the scene of occurrence and after summoning the witnesses vide Ex.P-1, prepared inquest QMer the dead body ofthe deceased vide Ex. P-2. Spot map was prepared vide Ex.P-4. FIR was iodgsd vide Ex.P-9. Request was made for autopsy on the spot i.e.Camp Amaiipara, Poltee Statlon Arjuni. Teamofdoctorsconsisting of Dr. A.R. Thakur (PW-11) & Dr. Smt..A. Tripathi condugte^ autopsy vide Ex.P-13 and found one lacerated wound of %" x %" x 1",over head, depressed fracture of right temporal bone and congestion of brain. Mode of death was .shock and coma. Blopdstained vrooden piece was seized vide Ex.P-6 from the accused. Patwari prepared spot map vide Ex.P-7. Sealed viscera wasseized vide Ex.P-8. 8. Statements ofthe witnesses were recorded underSection 161 of the CrPC: After compietion of investigation, eharge sheet was filed before the Court of Judicial Magistrate First Ciass, Dhamtari who committed the case to the C.ourt of Session&, Raipur from where learned Additional Sessions Judge received the case on transfer for trial. &^,L^.^.,1. 9. In order to prove the guilt of the accused, the prosecution has examined as many as eleven witnesses. The accusea was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded jnnocence and false implication in the erime in question. lO.After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appeliant as aforementioned. 11.We have heard leamedcounsel for the parties, perused the judgment impugned and record of the trial Court. 12.Learned counsei for the appeliant vehemenljy argued that evidence sdduced on behaif of the prosecution is sufficient for drawing inference that fir-stiy, dead body was buried, same was exhumed at the instance of Investigating Officer and as per autopsy report, injury over head of the , deceased was found. Jhanauram (PW-7) has deposed that on the fatefyl day, the appellantS thedeceased were quarrelling and during the. course of quarrel, the appellant has caused injury to his wife. Learned counsel furtEier argued that he is not disputing the fact that dead body was not buried and the appellant has not intimated any person reiating to cause bfdeath of hiswife as a result of injuries sustained by tier. .In the light of evidence of Jhanauram (PW-7), he is not disputing that the appellant has not caused homteidal death of deceased^Hirmotin Bai. Learned counsel also argued that as per evidence of Jhanauram (PW-7), during the course of quarrel, the appellant has caused singte blow by : burning wooden piece Sying near the place of incident and injury of%" x %" x 1" was only found whichshows fhat he has caused onfeblow of not considerabte size and he has not caused repeated Injury, but when his wife died as a result of injury sustained by her, with a view tosave himseif from prosecution, he has not informed the-incident to other persons and has buried the dead body of his wife. If this evidence is considered, the act attributed to the appellant, witl not travel beyond the scope ofSection 304 Part-11 ofthe IPC. 13.0n the other hand, learned State counsel opposed the appeal and .submitted that the appellant has caused homicidal death of his wife and has buried the dead body.' The trial Court has rightly convicted & sentenced the appellant. Bi<S!i: •^- 14.1n brderto appreciate the arguments advanced on behalf ofthe parties, , we haveexaminedthe evidence adduced on behalfof the prosecution. 15.1n thepresent case, homicidal deathof the deceased as a result offatal injury found over her body has not been substantially disputed on behalf of theappellant, otherwise also, it is established bythe evidence of Dr. A.R. Thakur (PW-11) and autopsy report Ex.P-13 that death of HirmQtin Bai was homicida! in nature. 16.As regards complicity of the appellant in the crime in question,as per evidence ofGandhiram (PW-1),,i-leera Singh (PW-2), Dheerjuram (PW- 3), Prahlad (PW-4), Maan Singh (PW-5), Jeevanlai Ratre (PW-6), Jhanauram (PW-7), Subhash Chandra Chowdhary (PW-8), Sudharu (PW-9) & S.K. Dubey(PW-IO), dead body of deceased Hirmotin Baiwas buried, same was exhumed after taking permission from the Ex6cutive Magistrate and after preparing Panchnama vide Ex.P-3, and injury was found over head of the deceased by the doctor who has conducted autopsy. As per evidence of Jhanauram (PW-7), the appellant has caused injury to his wife at the time of quarrei. This evidence is sufficient for dra^ying inference that the appellant has caused homicidal death of his-wife. . 17.As regards the questionof motivs, motive on!y aids in criminality and in case ofdirect evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part ofthe body effected, nature ofinjury andother similar circumstances. 18.1n thepresentcase, as per evidence ofJhanauram (PW-7), theappellant & his wife deceased Hirmotin Bai were quarrelling on which the^appellant took out- the burning piece of wood and caused singte blow which shows thatJie has caused injury on sudden quarrel, on sudden provocation and without any premeditation. If the aforesald evidence is considered, it would show that act of the appellant does not travei beyond the scope of Sections304Part-ll&201 ofthelPC. . 19,While convicting the appellant under Section 302 of the IPC, the trial CQurt has not considered the aforesaid circumstances and thereby committed illegality. 20.For the foregoing reasons, the'appeai is partly allowed. Conviction & sentences of the appellant under Section 201 of the IPC are hereby K ^?~T^- Soma ' -maintained. Conviction ofthe appeilant under Section 302 ofthe IPC is aitered to Section 304 Part-11 ofthe IFWSnd the appellant issentenGed to the custodial period i.e. from 3-7-2001 till date for about mpre than nineyearssix months. He be released forthwith, if not required in ariy othercase. 21.Consequently, I.A.No.2/2010stands disposed of^ .Sdl-^. T.R.Sttanna; Judge Sd/- R.L. Jhanwar Judge f-;'