HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.724 of 2006 1 APPELLANT: Sahdev Singh, S/o Purushottam Gond, Aged t (in Jail) 32 years, Occupation Agriculture & Labour, R/o Village Tolga, Patelpara, Police Station Udaipur, District Sarguja. Versus RESPONDENT: State of Chhattisgarh, Through Station lncharge, Police Station Udaipur, District Sarguja (C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, ‘1973} / Present: Q “of Mr. Abhay Tiwari & Mr. Ravish Verma, coUnsel for the appellant. g Mrs. Madhunisha Singh, Panel Lawyer for the State/respondent. 2 Division Bench: - x g Hon’ble Mr. T.P. Sharma and v Hon’ble Mr. R.N. Chandrakar, JJ ORAL JUDGMENT ré (15-6-2011) a T.P. Sharma, J: - % ‘ 1. Challenge in this appeal is to the judgment of conviction & order of 7 sentence dated 30-8-2006 passed by the Sessions Judge, Ambikapur in ta Sessions Trial No.58/2006, whereby'& whereunder learned Sessions Judge after holding the appellant guilty.for commission of culpable homicide amounting to murder of his wife Shyam Kunwar, convicted the .l/ appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.200/—, in default of payment of fine to further undergo RI for one year. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. . As per case of the prosecution, on the fateful night of 21—10-2005 at 'l about 11 p.m. the appellant was present with his wife in his house and l 1 he' twisted the neck of his wife resulting in her death. Merg was intimated. The investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-1, prepared inquest over the \> . dead body of the deceased vide EXP-2. Spot map was prepared vide Ex.P-3. Dead body was sent for autopsy to Government Hospital, , Udaipur vide Ex.P-4A. Dr. D.K. Markam (PW-6) conducted autopsy vide Ex.P-4 and found twisting of neck with other internal and external injuries over neck which are suggestive of the fact that neck of the deceased has been twisted. Cause of death was shock and death was homicidal in nature Finally, FIR was registered vide EXP-5. . Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was tiled before the Court of Judicial Magistrate First Class, Ambikapur who committed the case to the Court of Sessions, Ambikapur where trial of the case was / conducted. %/ (g, 5. ln orderfto prove the guilt of the accused/appellant, the prosecution has f s examined as many as seven witnesses. The accused/appellant was 313 of the CrPC in which he denied the 7_ examineg under‘Section circumstances appearing against him, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Sessions Judge, convicted and sentenced the appellant as aforementioned. ' 7. We have heard learned counsel for the parties, perused the judgment » r impugned and record of the trial Court. ? Kt r0, 8. Learned counsel for the appellant submits that the prosecution has adduced evidence that the appellant was present in the house at about 11 p.m. when the offence took place along with his wife i.e. deceased 7 Shyam Kunwar and his mother—in-Iaw Kendo Bai (PW-2). Shyam Kunwar was found dead. The appellant has not offered any explanation. 1i Therefore, evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant has caused homicidal death of x ' deceased Shyam Kunwar. Learned counsel further submits that the manner in which the death has been caused shows that the appellant has caused aforesaid injuries by twisting the neck on sudden quarrel and provocation without any premeditation or pre—intention. Learned counsel alSo submits that on the fateful day Kendo Bai (PW-2) — mother—in—law of l; appellant, was present in the house and she has not stated anything to ,\ \ show that the appellant has caused such injury under any other i ‘\~\;\\; circumstances. Therefore, it would only be safe to infer and presume that on account of sudden quarrel or provocation the appellant caused single injury to his wife. Learned counsel also submits that in these circumstances, the act of the appellant does not travel beyond the of Section 304 Part-l of the IPC. As held by the Supreme Court in scope the matter of Shakti Dan v. State of Rajasthan, (2010) 2 SCC (Cri) 765, of the appellant'squarely falls within the ambit of Section 304 the act Part-l of the IPC. ln Shakti Dan’s case (supra) the Supreme Court has altered conviction of the accused to Section 304 Part—l of the IPC and imposed custodial sentence of ten years. 9. On the other hand learned State counsel opposes the appeal and submits that the inCIdent took place in secrecy where the appellant & the / deceased were present Therefore the appellant was under obligation gé to ofier explanation that how his Wife died and who has caused injury to g her In absence of such explanation the only presumption can be drawn 9* under Section, 106 of the Indian EVIdence Act that the appellant has comrrtitted the said offence. (é 10 In order to appreciate the arguments advanced on behalf of the parties we have examined the eVIdence adduced on behalf of the prosecution rf} h 11tln the present case, homicidal death of deceased Shyam Kunwar as a 1/ A l, ’ ‘ s result of fatal injuries found on her neck has not been substantially I disputed on behalf of the appellant, even otherwise, it is established by 7 evidence of Dr. DQK. Markam (PW—6) and autopsy report Ex.P-4 that the {0' death of Shyam Kunwar was homicidal in nature. 12 As regards compIICIty of the appellant in the crime in question and motive for commissmn of offence the appellant along With his Wife was present f / in his house at the time of such inCident and his Wife died due to strangulation as a result of twisting of neck. The appellant has not offered any explanation. As per evidence of Kendo Bai (PW—2), she was also present in the house, but she has not said anything against the appellant. The appellant has not caused multiple injuries or injury by any dangerous weapon, but Shyam Kunwar died as a result of twisting of neck. The factum of twisting of neck that too by single attempt shows that the appellant has caused aforesaid injury on sudden provocation, be on account of quarrel, but he has not caused the aforesaid injury . may with intent to cause the death of the deceased. In these circumstances, \\\7 ‘ as held by the Supreme Couit in the matter of Shakti Dan (supra), the i i . WWW] ‘A A case of the appellant squarely falls within the ambit of Section 304 Part-I of the IPC. While convicting and sentencing the appellant under Section 302 of the IPC, the trial Court has not considered the aforesaid aspect and thereby committed illegality. ' 13. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is altered to Section 304 Part-I of the IPC. The appellant is hereby sentenced to undergo RI for ten years and pay fine of Rs.200/—, in default of payment of fine to further undergo RI for three months. The appellant is in custody since 25—10-2005, he is entitled for set off for the aforesaid period of detention already undergone by him. / sw— 7* Sd/— a, ' ’T‘P.SHARMAv ’t RN. Chandrakar 9 Soma Judge Judge "A. a ‘ T3; \ef f