‘ / W /'K 00006273 Appenaii: " :_’Asooram son o£ Bhoudarif’ aged about, 4o ears, R/o v1 lags Kunmera, Ghotiapara; 19.3. sitapar bistt Sargaja 50.1}; .. versq§ _ qs ”L Resgggdem ;- Stat'e’éf Madhya Pradesh thmugh station House Officer, Police Station / Sitapur ; Distt Sarguja (M.P.) / f, ‘ L. . /" ‘ } 06 j 1 ‘ \ § HIGH COURT OF JUDIGATURE AT BILASPUR (CHHATTISGARH (DIVIS!ON BENCH) Criminal Appeal No.114’7 of 1999 y \ \ \ \ ‘ \ ‘ \ \ ‘ Asooram Versus Stata of Madhya Pradesh (now State of C.G.) ‘ JUDGMENT FOR CONSIDERATION p\ r DO u ‘ Sdl- hief Justice Sdl- L.C.BHAO Judge f; mm HON’BLE THE CHIEF JUSTICE ‘ . 12L2DU4W POST FOR JUDGMENT ON 22"” DECEMBER, 2004 ‘ i Sd/ JUDGE 19422004 b. ’ / C l - 1 ¢ J ‘ ‘ ‘ ‘ ‘ ‘ HXGH COURT OF CHEATTISGAR}! AT BILASPUR Dimsion Bench: - Hon’hle 8hri A.S.V. Mom-thy, C.J. as Hon’ble 8111i LC. Asooram Versus Stats. of Madhya Pr'adesh ,Va V Bhadoo, J. Criminal Appeal No. 1 147 of 1999 (now State of C.G.) Present: - ‘ ‘ Mi§s. Shanm'la Singhahi, Advocate: § Shh Akhil Mishra‘,‘ Panel Lawyer: For the appenant For the Stat€/ respondent JUDGMENT (Delivered on aw? December, 2004) The followinq judqment of the Court was delivered by L.C. Bhadoo J. 1. The accused] appellant Asovram has preferred this criminal appeal under Secu‘on 374(2) of Cr.P.C. being aggrieved by the judgment dated 19.2. 1999 passed by learned 13‘ Additional Sessions Judge, Ambikapur in S.T. No.170/98 whereby learned Sessions Judge after holding the accused/appellant guilty for commission of murder of his wife Bhinsobai convicted him under Section 302 of Indian Penal Code and sentenced him to undergo imprisonment for life. Aeol Brief facts necessary for disposal of this criminal appeal are that as per prosecution case accused/ appellant committed the murder of his Wife Bhinsobai in the night of 4.5. 1998 by assaulting her With lathi. Cn‘me was witnessed by PW-3 Udal, who came on the scene and snatched the lathi 6r. axe from the accused/appellant and thereafter he left the house of accused/ appellant. , On the next day morning, accused] appellant Asooram went to Up—sarpanch of the village namely Lalluram (PW-1) committed murder of his wife. and informed him that he has In turn PW-l-Lalluram informed accused] appellant Was lying dead in his house and certain injuries were present on the body of deceased Bhinsobai. On seeing this Viuage Sarpanch and Upsarpanch asked the Kotwar (PW—2) to lodge the report at the police station. On this Kotwar (PW-2) gave the merg intimation (EXP-7), based on that F.I.R. (EXP-8) was registered by the Station House Ohicer, Police Station Sitapur, after giving nou'ce to the Panchaas, he prepared the Panchnama (EXP-2) of the body of deceased Bhinsobai and thereafter, the body of deceased was sent for post mortem examination. Dr. K.K. Dutta (PW—6) conducted the post mortem and prepared post mortem repmt (EX.P;12). After completion of the investigation S.H.O. hled the charge sheet before the Court of Judicial Magistrate First Class, Ambikapur, who in tum committed the case to leamed Sessions Judge, Ambikapur from where learned 1“ Additional Sessions Judge received the case on transfer. After naming the chargeklecording the prosecution evidence 85 statement of the accused/appellant under Section 313 of Cr.P.C. and hearing learned counsel for the parties in the matter, learned Sessions Judge convicted and sentenced the accused/appellant in the aforesaid manner. a Hor‘ Kotwar namely Sukhnath (PW-2) and all of them mached to scene the Wife of the of occunence Where thev saw that We have heard Miss. Sharmjla Singhai, learned counsel for the accused] appellant and Shri Akhil Mishra, learned Panel Lawyer for the State] respondent. As far as the question of death of deceased Bhinsobai is being concerned as homicidal in natuie, learned counsel for the appellant has not disputed this fact. Even otherwise, as per evidence of PW-3 Udal, extra judicial confession made by accused/appellant Asoomm before PW—l Lalluram, evidence of Dr.K.K. Dutta (PW-6) and looking to the post mortem report, it is proved that the death of deceased Bln'nsobai was homicidal in Ilam . As far. as the question of involvement of accused/appellant Asooram in committing the murder of deceased Bhinsobai is concerned, PW-3 Udal has categorically stated that in the night at ‘ ‘ i. . V tr . about 8.0011111 when he was faking dinner at his msidence at that time he heard the noise of hghting between the accused/appellant and his Wife, on hearing this he Went [to the house of the accused/appellant where he saw that the accused/appellant was assaulting his wife with a Lathi and he was holding an axe in his another hand. Therefore, he snatched the lathi 8t. axe from his hands and left the house. Thereafter, on the next day morning accused] appellant Asooram informed him that Bhjnsohai is dead. PW—l Lalluram, who W'as the Village Up-Sarpanch, the accused] appellant went to him on the next day morning and made extrajudicial confession before him that he has committed murder of his Wife Bhinsobai. There is no reasonlto disbelieve the evidence o£ these two Witnesses. The lathi and axe was also recovered hem u . the accused] appellant. Even learned counsel for the accused] appellant has not. disputed the finding of the trial court to this extent. Learned counsel for the accused/appellant argued that on the facts, if the prosecution case is accepted as it is, the odence against the accused] appellant does not navel beyond Section 304 Pa1t~II of IPC and he has been wrongly convicted and sentenced under Section 302' of IPC. She further submitted that the Witnesses have stated that the accusedlappellant and deceased Bhinsobai were in habit of consuming liquor, thereafter, they used to quarrel with each other. Refening the evidence of PW-3 Udal counsel argued that on the fateful night also both accused] appellant and deceased were in drunken condition, they were hghting With each other, during that period some hot words were exchanged between them and in a heat of passion the accused] appellant assaulted the deceased with lathi Therefore, there was no intention of the accused] appellant to commit murder of his wife. ‘ On the other hand learned Panel Lawyer for the State argued that looking to the nature of the injuries and the manner in which accused—Asooram assaulted deceased Bhinsobai, it is amply proved that accused/appellant assaulted Bhinsobai with an intention to commit her murder. /*/t,..,»rj K 8. i In order to appmciate the arguments 0f‘leamed counsel for the i parties, we have gone through the evidence of PW—S Udal, who saw ithe accused/appellant assaulting Bhjnsobai with lathi. In the brass-examination, PW-3 has ‘categon'cally stated that the iaccusediappellanf and his wife Bhinsobai were m drunken condition, they Were abusing each other and he snatched the }athi from the hand of the accnsed/appellant but he had not asked ; reason for the quarrel e1ther from deceased or accused] appellant t after adwsmg them he left for h1s house at that hme both were satlsfied and thereafter there was no fight between them He Cfurther stated that 1t 1s true that Bhmsobal was 1n the hablt of consummg hquor dally. S1m11ar1y, PW 1 1n h1s cmss—examlnatlon stated that the accused/appellant is of Oraon caste and it is correct that the accused/appellant and deceased Bhinsobai used j to consume liquor. Therefore, in View of the above fact it is clear ‘ that the accused/appellant and the deceased both were in 1 drunken condition and it seems that during that drunken condition some altercation took place between the two and 011 this the accused/appellant assaulted his wife with lathi, as a result of which she received four contusions on her head and other parts of h the body, swelling Was present, there was lacerated injury on the left ear and her two incisor were also broken. There is nothing on i record, which goes to show that accused] appellant assaulted his f wife Bhinsobai with lathi in order to commit her murder. As .V mentioned above, both were in drunken condition and in that " conditionsome hot words were exchanged between the two and in ' a heat of passion the accused] appellant assaulted Bbinsobai with ¢ ‘ lathi, as a result of which in the night she died on account of excessive bleeding. 9 The present'case is squarely covered under the exception of Section 3Q0 I,P.C., which says that ‘atlpable homicide is not ’ , murder, if it is committed without premeditation in a suddenfight, in § the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or v unusual mannei’. There is nothing on record which goes to show that accused] appellant took any undue advantage of the situation ; or he behaved in a cruel manner and for this View we are fortihed 3:) i ‘ by the judgment of the Hon‘hle Apex Court in the matter of 1 Manke Ram V. State of Haryana mported in AIR 2003 SC 4147, facts of that case wele almost similar to the pressnt case. In that case. the [xx—charge of Police Chowki invited the Head Constable for taking drmk at his residexxce and during that time some altemation took place between them and in a heat of passion the A.S.1. after picking his service revolver axed tWo shots at the Head constable, as a result of which he died incidentally at the spot. Looking to all these facts, the Hon‘ble Ape'X Court reached to the conclusion that ‘incident took plane in a Sudden. fight and in a heat ofpassion, both § i ‘* the ‘ accused and ihe deceased were inebriated and accused in using service revolver which was lying nearby cannot be said to have taken undue advantage and for that ihe o}?‘enoe against does not travel beyond Section 304 Part-II of IPC’. In View of the above, We ‘ axe of the considered opinion that the oifence against the 1 accused] appellant does not navel beyond Section 304 Part-II. l0.In the result, the appeal is partly succeed and same is allowed. The conviction and sentence of accused/appellant Asooram under Section 302 of IPC are set aside. Instead thereof accused] appellant Asooram is convicted under Section 304 Palt—II of Indian Penal Code. and sentenced to undergo rigorous imprisonment for O7 years. As the accused/applicant is in custody since 6.5.1998, therefore, it is directed that this period should be adjusted against x< i \ in“... Ni” t?! the sentence awarded. Sdl— I Sdl- Chief JuStice ‘ I ” L.c.BHADoo Judge w/ 42-2004 3/3’12-2004