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Chandel, Panel OR PerL.C.Bhadoo.J This appeal is directed sentence dated 15-12-2000 passe<| Sessions Trial No. 32/2000 whe^< accused guilty for commission murder ofhis wife Parvatibai, 2. The casse of the prosecution 5th December, 1999, accused c strangulation. Merg intimation Ex. <t5i^f<n41Ti Hi^<nT^'fe1(^'<(^^.i< ^3T(^T3TT^T IHRI DHIRENDRA MISHRA. JJ ersus State ofMadhya Pradesh (now Chhattisgarh for the appeilant. JLawyer for the State. AL JUDGMENT (20-12-2006) agjamst sentebced fhe judgment of conviction and order of by leamed Sessions Judge, Dhamijaigarh in eby leamed Sessions Judge after holding the under Section 302 ofl.P.C. for conmiittmg him to undergo imprisonment for life. ofoffence in briefis that in the intervening night of4 and |)Tnynitted murder of his wife Parvatibai by p-3 was given by Vishnu Prasad P.W. 2 to Police P.T.O. XI-HC-78 3TT^T ^T f^rfcF cCT'3TT^T$b^lct) z (© 3^ ^NM^, ^Tn<MII(o, ^Krll^y ^^-^.Wol +11+1C11 Sb+licb ^ 200 STT^rq^W (^3^F) ^TTW^f^TW^T Station Kapu to the effect that in| committed murder ofhis wife Parv4 in mustard field ofNegi. The body and Mandirsai. Receiving this repo|rt, registered a crime undei' Section 302 occurrence, prepared site plan Ex. P|- Ex. P-1 to the Panchas, prepared inqti of Parvatibai was sent for post Dharmjaigarh under Ex. P-7 where on fhe body of Parvatibai and pre^ Parvatibai died due to asphyxia as a| nature. After usual mvestigation, ch|ar Court of Judicial Magistrate First C| case to fhe Sessions Judge, Dhannjaf to establish fhe charge against the ac| Section 313 ofCr.P.C. m which he prosecution evidence and stated that the crime. H©explained that in the in ifae evening and in the night hi cbi^f<n41Ti ^i^^iT^'teT<Ft'<^i<^i< ^) 3Tf^T 3T1^T |the last night his hrofher-in-law Maniram has tibai by pressing her neck and her body is lying v^as seen by him along with Gulabsingh, Kaniram Station House Ofificer, PoUce Station, Kapu t((2 of I.P.C. under Ex. P-4, left for the scene of -5 ofme place ofoccurrence, after giving notice lest Ex. P-2 on tfae body ofParvatibai. The body lortem examination to Govemment Hospital, \W. 8 Dr. Anil Kumar conducted post mortem )ared report Ex. P-9 in which he opined that result of throttling and death was homicidal in )h|arge sheet was filed against the accused in the ^lass, Dharmjaigarh who in tum committed the Igarh where prosecution examined 14 witnesses bused. Statement ofaccused was recorded under ^emed the material appearmg agamst him m the ^ie is innocent and has been falsely implicated in itiommg he left his house for work and retumed wife was sleepmg, when he woke up m the P.T.O. f\ ^ XI-HC-78 CT^T^)T^icb cT8TT3TR?T$h^l<=b f^ 3 *11+1MI $S*<(Cfr T^T^Nicn^, ^Tfl<i^<o,f^<ni<M^< , Cc.A.^o. W )6^^[ 200 3TT^TlT$RT ^TTW^fNw^T moming, his wife was not there, th^refore he went in search ofhis wife near the field where he saw that Krishna and Sirbal house and left for lodging ftie leamed counsel for the respective) aforementioned. 3. We have heard Shri Rajesh | and Shri U.K.S. Chandel, Panel La\ were standiag and he bolted Birbal in his r4port. Leamed Sessions Judge after hearing the parties convicted and sentenced the accused as 4. As far as nature of death o: who conducted post mortem on th^ contusions on the neck, chm and was firactured, there was contusion) cartilage, clotted blood was presenl) died on account ofinjuries present] was homicidal m nature, fherefor< established that the death 5. ofParvatihai As far as involvement ofth< is no ocular or direct evidence in <=bi^I<n41Ti Hi^c<iT^:teI^<l^<^i< ^3T1^T3TT^T Tain, Advocate on behalfofthe accused-appellant |vyer on behalfoffhe State. Parvatibai is concemed, P.W. 8 Dr. Aml Kumar body ofParvatibai has stated that there were 11 f4ce ofthe deceased, even forearm ofthe deceased in oval shape on fhe neck which was on thyroid [ on accoimt ofinjury No. 3, 5, 6 and 7, Parvatibai |on the neck as a result of asphyxia and the death ^ in view of the above medical evidence, it is ati|?ai was homicidal in nature. accused in crime in question is concemed, there |this matter. As per settled law in order to rest conviction based on the circumsta|niti^ evidence, as per the decision of the Apex P.T.O. t- XI-HC-78 3TT^T^)TR^icb cTSTT 3TWT 5OTW fe) tl HI*1Cfll ^HIcb 3^ ^lNlcrt^, ^Tfl^Ko, f^^tl^y ^.A-^.^3^1 n^-—-;<-<--<<<<<^[200 3TTii?rq^F? (II^3^T) ^cTTW^cTW^T Court, in the matter of Dhanaik (1994(2)SCC 220. the circumstari ial evidence must satisfy the following tests:- a. The circumstances from cogently and finnly established; b,. Those circumstances sho^ towards the guilty offhe accused; c. The circumstances, taken c| there is no escape fi'om the concj was committed by the accused d. The circumstantial evidenc and incapable ofexplanation ofan; and such evidence should not onl should be inconsistent with his inn< 6. In the present case there sound ofbeating from the house oj of quarreling wifh deceased and h was found in mustard field and fhc <=bl^I<n41w1 HTH^ff ^ te^ <Rl^4K ^3Tf^T3TT^ST av Chatteriee -v- State of W.B. reported in vhich an urference of guilt is drawn must be d be of a defmite tendency unerringly pointmg umulatively, should fonn a cham so complete that ision that within all human probability ifae crime else; and andlnone in order to sustain conviction must be complete ofher hypothesis than fhat ofme guUt ofaccused ^ be consistent with the guilt of me accused but >cence. evidence that the witnesses heard screams and fthe accused and tfaat tfae accused was in the habit [^ used to beat her, that fiie body of fhe deceased 1'e were injuries on fhe neck and odier portions of P.T.O. XI-HC-78 ^n^T^Tf^ri^ c^TT3TR?T9b^lcb HTH^I ?b^|ch 3^ ^ll^ld<4, ^Tfl^4l<o, fadwy ^....cr..'?..^..M^,oo 311^1 y^cb (y^si^) ^cTT^T^T^rTI^T chi^Id41-i w^rf ^ te^ <Ri«i< ^gTf^iTsn^T the bod\7. P.W. 2 Vishnu Prasad w^io lodged the report has tumed hostile and he has simply stated fhat he saw the bodyj of Parvatibai in the mustard field and he lodged the report. He has been cross-exanlined by the Govemment Pieader. He has stated that on enquir>T from the accused, ti| committed murder of his wife by p|ressing his neck on account of her illicit relation and thereafter threw her body in the| Ft. from the house of the accused. stated fhat Parvatibai was her sister. e acciised confessed before Jainandan fhat he has mustard field and fhat place is at a distance of 50 P.W. 4 Vimla, another wife of the accused has she has died. On the date of mcide^it accused used to beat her and on account ofthat, left the house to go to Suldibasi P^ vicmity of fhe house of the accus€ the accused slapped Parvatibai twice. She ra and her husband was beating Parvati saying that she is not a good character 4dy. Qn the next day, she came to imow that Paivatibai has been murdered. P.W. 5 Birbal has stated that his house is in the |d. In the fatefal night, he heard the sound of beatmg &om the house of accused Is/tami'am. When he ttied to come out ofhis hoiise, he noted that his house was bolted from outside and, thereaftei' he came out of his hoiise by removmg tiles ofroof. In c^oss-examination also he has stated that he heard the sound of beating from the hous of Maniram. P.W. 6 Krishna Prasad has also stated that in the fateful night he ^jvas sleepmg after taking dinner, he heard the sound ofbeating j&om the house of|flie accused at about 10-11 p.m. in the night. P.T.O. [2-0 XI-HC-78 w^T^rf^ri^ cTSTT 3TR?T ^>HT°F +11«4WI Sh+IKtl S^^Nlcrt^, ^T{l^Jl<o, fsi^tl^y ^.(^^^ ^sfs.w} ^[ 200 311^1 M5|tt» (*ic<^s«^') ^TTW ^rf?cT W^?T When he tried to open his doorj therefore he came out of his hout Singh, material witness in this cas| 11 in fhe ni^it of 4-12-1999, which he asked fhe accused as td accused asked him to enquire fronji to what happened, she told that Bfrbal enquired j&om Maim'am, he rq)lie^l further said that h©has bolted Bii-bal |he noted that fhe door was locked j&om outside, se by removing tiles of roof. P.W. 9 Maheshwari and Pradhan oflhe village has stated fhat at about ac|cused brought his wife abusmg to his house, on why he has come to his house in late ni^it, the his wife, on which he enquired j&om Parv7atibai as is responsible for beating, thereafter he again %. that today he has caught tilie thief and fhe accused in fhe house. Thereafter he advised Maniram thle and his wife not to quarrel m Panchayat, thei'eafter fhey left for| is established that fhe accused wa^ day, mese witnesses heard sound accused and his deceased wife P.W. 9 just before the mcident an|d the other wife P.W. 4 Vimla ha^ beating Parvatibai and to that established that accused was wife. Even tiie body of fhe dec( <=bi^I<n41Ti wr^ff ^ te^ <Fii<-<-i< ^3Tf^T3:TT^T ni^tit and fhey should get fhe matter settled in jtheir house. Therefore from ifae above evidence, it doubting the fidelity ofhis wife and on fhe fateful {)f beating fi-om fhe house of accused and even the Pajvati both went to the house ofMaheshwari Singli they were complaming against each other. Even also stated fhat accused on fhe fateful day was ^xtent j&om fhe evidence of this witness, it is angrjy with his wife, and fherefore, he was beating his |ased was found in the vicinity of the house of P.T.O. XI-HC-78 w^r^rf^ri^ cTSTTW^T^TW @ *<1+1^11 »»*11<h 3^ ^l^ld^, ^Tfl^4l(o, f^KrtKiy .^..A:A'>....?.?/^^ 200 3TI^T€T^g?(^qi^q^T) 5^<TT8iK ^cT 3:n^?T accused about 50 ft. from the hou^ accused and the deceased left the hbuse the accused to explain the circums^ances deceased Par^atibai and how she i\ wllen tbat the Evidence Act envisages that any person, the burden ofproving the accused to discharge and expla^i same burden has not been dischar^ was sleeping in his house with house, therefore, Jfrom the above accused in fhe crime in question i; was found in the vicinity ofthe aca Paitvatibai 7. Counsel for the accused aifeued exception 1 ofsection 300 ofthe IP|( not travel bevond section 304-H ofl the decision of Apex Court in the| 1998 Cr.L.J 1411. In fhat case the|, wife. The defence ofthe accused w|as accused adopted another altemativ< <=bi^I<n41-i ^i^^iT^teT<9T<(^<^i< ^3Tf^TT3TT^T e of accused m mustard field of Negi. When the ofP.W. 9 Maheshwari Singh, burden Ues on under which the injurfcs wei'e sustamed by |ustained those injuries and died. Section 106 of \en any fact is especially within the knowledge of fact is upon him, fherefore, the burden was on how Parvatibai sustained injuries and died. The ^ed by the accused. He has simply stated fhat he [vatibai and durmg that period Parvatibai left fhe circumstantial evidence, involvement of the established and even the body of the deceased st|rong sed. that case of the accused is covered under 2, therefore, the offence against fhe accused does the IPC. For this argument he placed reliance in matter of State of U.P. Vs. Laxmi rqported in accused was facing the charge of murder of his insanity and the Court held that mere fact that defence during his exammation under Section P.T.O. (^' XI-HC-78 3TT^T^)T^i<=h cT8TT3T7^?T$b^l<t) r' *11+1<^1 Sh+licft 3:o^<::^RTT?PT, ^TH^II<o, f®<^tl<M^< _ ^ft. r^o. ^_j_ - ^: 200 3TT^Tq5ra7 (^qi^<s|(^sT) ?^TTW^T3:n^T 313 ofthe Cr.P.C. without refemn|g ©noughto deny him of the benejfit materials fi-om evidence pointmg excq)tion. It is not the law fliat faiture right to rely on the exception onc|e accused to prove any fact can be di| through prosecution evidence by further held that the accused was to Exception No. 1 Section 300 ofLP.C. is not of the Excq)tion, if the Court can cull out o fhe existence of circumstances leading to that to set up such a defence would foreclose the and for all. It is axiomatic that burden on the sl|iowing speatdng against his drinking habitt fhe manner m which he had children to him and smasfaed her / some other strong cause which prior to the murder. Certain broad line ofthmking. Qn fhe same prin< PW-2 Vishnu Prasad has stated in relation. Simiiariy, PW-9 Mahesh^) has stated fhat on the fatefal night 4t Bai came to his house quarreling a4d ct)i^I^i41vi WT^ff ^* te^ <r^<^i< ^3Tf^TT3TT^T ^charged either through defence evidence or even a prq)onderance ofprobability. The Court jaot well-disposed to his wife as she was always $. We are mciined to think fhat, while considefing sudde^ily pounched upon his young wtfe who bore two |head during fhe early hours he would have had pro|bably would have taken place within a short time features looming large in evidence help us in Uiat [^iple if we look into the evidence of pi'osecution, his evidence that accused made confession before Jainandan and said that he has cotnmitted murder of his wife on account of illicit ^ari Singh in para 1 of his exammation-in-chief about 11 p.m. the accused and deceased Parwati on inquiry Mamram disclosed that today he has P.T.O. C?n XI-HC-78 3n^T^)TR^i<=h cT8TT3TT^T9b^|cb *ii+iw a»+ii<sh 3^T ^Nicn^, ^Tft^^Ko, f®«ni^^< 6r,A~No. %SJ©| ^ 200 t5T^5|c^ (^i^^sT) ?^<TTW ^f??T 3TI^ST cauglit the thief. He has further sl Even though in this line word "M^ On this, he mquired as to where is inside the house, on which he per and they left for their house. This in-chief of these witnesses not on that the accused was doubting fhe he brought his wife to Maheshwai-j <=bi^f^<nvi *4i^^iT^:te1c^t'<^i«i< ^3Tf^T3:T^T fated fhat today he saw Bii'bal wifh Parwati Bai. 'M^niram77 has been typed out in place of "Parwati". [Birbal, Maniram disclosed fhat he has bolted him ^uaded both Manirani and his wtfe not to quarrel levidence has come on record in fhe examination- any suggestion, fherefore, these factors suggest Ifidelity of his wife and on fhe fateful day he saw the deceased with ^osecution witii|ess Birbal in his house and fhat infuriated him and Singh PW-9 and on his persuasion fhey retumed back and m fhat process somethin^ might have happened between flie two and that infuriated the accused and on that |he pressed the neck of Uie deceased. Therefore, it can safely be inferred from the pro^ecution evidence fhat flie accused pressed neck of his wife ia sudden provocation and| the ofifence is squarely covered under exception 1 to section 300 ofthe IPC as per fh^ principle envisaged by the Supreme Court in the matter of State of U.P, (suwa). Tl|[erefore, we are offhe considered opinion that the finding ofthe trial Court convicti4g the accused under Section 302 ofLP.C. cannot be sustained and fiie ofifence agaii^st fhe accused under these circumstances is made out under Section 304 Part I ofI.P.K P.T.O. XI-HC-78 3TT^T^)Tf^ri^ cT8TT3TT^T$bH|cb /"\ L\ p^^k-^— y ^' r^ ^ .< +11^MI St»*<l<sh 7s[ ^ww^, ^-^^\<o, Rtdi-y^ __ CV-P,.^.^3/oi_^ 200 ^ (2g STT^iq^R' (li<;<^dcl<^T) ^RTTSBR: ^rfgcT 3TT^T 8. In fhe result, the appeal imposed upon the accused undeil the accused is convicted under S{ R.L for 10 years. It is stated that The accused shall be entitled forl sentence imposed upon him. is partly allowed. The conviction and sentence Section 302 ofLP.C. are set aside, instead fhereof ^ction 304 Part I of LP.C. and sentenced to undergo ^he accused is in detention since 7-12-1999 till date. ^he set oflfofthe above detention period against the Sd/- L.C, Bhadoo Judge chi^f^i4iri ^i^^iT ^* r^Lc;i <f^t«i< ^3rf^T3TT^T Sd/- Dhirendra Mishra Judge P.T.O.