\ - mGH COURT OF JUDICATURE AT BILASPLTR. CHEIATTISGARH Criminal Appeal No. 1405 OF 1994 Devdharan S/o. Jethu Gond Aged about 45 years, Resident ofBatidih, Police Station: Dhourpur, District: Surguja Vs. StateofM.P. Through : Station House Officer, Police Station :Dhourpur, District :Surguja JUDGEMENT FOR CONSroiKATION Sd/- HON'BLE SHRI L.C.BHADOO .J. JUDGE 20/01/2006 Sd/- L.C. Bhadoo Judge rd POST FOR JUDGMENT ON 23ru JANUARY 2006 Sd/- Dhirendra MEishra Judge E BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.05 11:48:46 +0530 ^. DIVtSSON HON'BLESHRLL.C.BHADOO^J & HON'BLE SHRI DHSRENDRA MISHRA.J Appeilarst Crimina! Appeai No. 1405 of Devdharan Vs. The of Madhya Pradesh Shri Vijay Kumar Pandey, iearned counse! forthe appeiiant. Shri Alok Bakshi, learned G.A. forthe State/respondent. JUDGiVI.ENT (Deiivered on^-^January 2006) Per Dhlrersdra IVSishra. J The appeiiant has preferred this jai! appeal as he is convicted under Section 302 of the Sndlan Pena! Code and sentenced to undergo jife jmprisonment for causing homicidai death of hls wife Tekay Bai by iearned ii Additionaj. Sessions Judge, Ambikapur vide his judgment dated 07.09.1994 passed in S.T.No. 109/93. 2» The case ofthe prosecutlon, in brief, is that on 10.10.1992 on the basis of report lodged by Lohra Crime No. 104 dated 10.10.1992 \vas registered under Section 302 of the iPC against the appellant. In the First information Report of Ex.P/8 it was aileged that dder son of the appellant Kumman informed th'e complainant at about 6.00 a.m> in his house that in the previous evening his father has kiiled hls mother near Bhaleseth Tank of the vlilage v^iereupon he went to the house of Langu and saw the dead body of Tekay Bai. He aiso found injuries over ieft eye, right cheek, face and biood was oozing out ofthe injuries. On being asked from Ghurni Bai about the said incident she narrated that in the previous evening at about 7.00 p.m. when she was returning from Bhiiai, Korv^para she saw that appeiiant Devdharan was beating his wife by klcks a?id fists near the Tank and she tried to mediate, /-•s however, he contlnyed beating. Eariier-on the basis of report lodged by compiainant Lohra merg intimatlon No. 31/92 of Ex.P/10 was recorded by the poiice. During investlgation inquest of Ex.P/3 was prepared in the presence of witnesses, after issuing notice to the wtnesses vide Ex.P/2. Dead body was sent for autopsy to Govt. Hospital, Dhourpur vide memo of Ex.P/9-A. Dr. D.P.Shandiiya (P.W.11) conducted postmortem and submitted his report of Ex.P/9. In the postmoi'tem report the doctorfound that blood !ike iiquid had oozed from the mouth ofthe deceased. He aiso found ante-mortem Sacerated vv?ound over teft eye, cut wound over ieft ear and red colour contusion over right lumber region (posteriai). Spieen, Ijver and left kidney were pa!e in coiour vAereas there v/as a rupture in the right kidney. The injuries present ov-er the face and the rupture of kidney were caused by hard and blunt object. The cause of death is excesslve bleeding due to rupture of right kidney and the death was homicjdai in nature. BIoodstained gross and panlcies of paddy, plain gross and panicies of paddy, broken bangles and ear rings of the deceased etc. v^ere seized from the spot vide seizure memo of Ex.P/4. Ha!ka Patwari prepared the spot map of Ex.P/1. The wearing appareis of ttie deceased i.e. petticoat, sari and biouse were seized vide document of Ex.P/2. The accused was arrested on 10.10.1992 vide arrest memo of Ex.P/15. The selzed artides were sent for chemicai examination to the Forensic Science Laboratory-vide memo of Ex.P/16. The report ofthe F.S.L. is Ex.P/18 '^erein blood was found in the grass and v^earing appareis. of the deceased. After recording the statement ofthe v^tnesses charge sheet <A^S filed in the Court of Judiciai Maglstrate First Ciass, Ambikapur who committed the case to Sessions Court and the same was received for trial cn transfer by the learned Addltional Sessions Judge, Charge under Section 302 of the IPC v^as framed by the iearned AddJtionaJ Sessions Judge. The appeilant abjured his guiit whereupon the prosecutjon examined in-aii 12 wtnesses in support of its case. The statement of the accused ^A^S recorded under Sectjon 313 of the Cr.P.C. The appe!!ant denied the circumstances appearing against him ^s and submitted that he is innocent and has been faiseiy implicated. However, iearned Additiona! Sessions Judge convicted-and sentenced the appe!!ant as mentioned above. 3» it is not in dispute that the cause of death was excessive bieedlng due to rupture of right kidney and as such homicidal in nature. The only questlon to be decided Is - 'whether the iearned Additiona! Sessions Judge was justified in arriving at the conclusion that the deceased sustained injuries as a result of beating by the appellant and ^Miether the Court below was justifled in convicting the appeilant under Section 302ofthelPC? 4. The learned Court below has based its convlction main!y on the statements of compiainant Lohra (P.W.7), Ghurni Bai (P.W.8), Kumman (P.W.9) son ofthe appellant, Langu (P.W.10) and Dr. D.P.Shandiiya (P.W.11). Lohra (P.W.7) has stated that son of the deceased informed him that his father Devdharan has kilEed his mother whereupon after wltnessing the dead body, he lodged the report of Ex.P/8. Whereas Ghurni Bai (P.W.8) has stated that when she was returning towards her house in the evening, she saw Devdharan assaulting the deceased by kicks and fists a^; a resuit of vrfiich Tekay Bai had faiien on the earth. She tried to medlate but the appeilant puslied her av^y vutiereupon she ^wnt to her home and in the moming.she iearnt from the mother ofthe deceased that Tekay Bai has died. She was also vAness ofthe inquest report of the deceased and she had found injuries over the person of the deceased. P.W. 9 Kumman, son ofthe deceased has a!so stated that his parents were in drunken stage, her mother v^-as iying over the field, she had sustained injuries over her head, she was brought home by Charku and other reiatives and Ghurni Bai informed that his father was beating his mother and his father has run away due to fear of beating. P.W. 10 Langu 'vvho is eider brother ofthe deceased has stated that Devdharan and hls wife had gone to take the feast offestivat. In the evening Kumman informied that his mother is iylng near Bhaiaseth Tank and she v^s not speaking vrfiereupon they reached near the :n /-., piace ofincident and found Tekay Bai Jying over the fieid, however, she ^ms breathlng. Blood was oozing froiii her face. They took her to their resldence. in the next morning accused came to his house and slept m the sai-ne cot cn which the deceased was sieeping. in the morning Devdharan said that hls wife Is dead. On being scolded he asked fhat v^tiat he shouid do whether he should abscond. S. Learned counsel for the appeliant submits that from perusal of the statements ofthe wtnesses it Is evjdent that the inddent took piace on the spur ofmoment, there is no motive in the instant case and the same occurred as the appellant and the deceased were in drunken stage. Considering that the appeliant assauited the deceased by kicks. and fists, knov^edge to the appeliant that the biows given by him may cause death ofthe deceased cannot be attributed to the appeiiant and he can, at the most, be convicted only under Sectjon 323 ofthe iPC. S» On the other hand, learned counsej for the State/respondent supported the impugnedjudgment ofthe trial Court. 7- • We have heard iearned counsei for the resp-ective partles and perused the rnaterial availabie on r'ecord. 8. As regards the submissjon of learned counsel for the appeJiant that since the blov^ were given by the appeliant by kicks and fists, it cannot be inferred that the appellant gave those biows with the knowJedge that the same may cause death ofthe deceased, the same can be accepted particujarly when the appeiiant continued assaulting the deceased with kicks and fists on her vitai organs despite being dissuaded by Ghurni Bai. 9. From perusai ofthe statements ofthe above vAnesses it Is evident that the appeSSant and his Viife Tekay Bai were returning after enjoying the feast. They were in inebriated condition and there ^A^S some quarrel between the two near the Tank and because of that the appellant assaulted the deceased wth kicks and fists as a result of^ich she feii ^ on the ground and due to the assaults given by the appellant, right kidney of the deceased got ruptured causing excessive bleeding as a result of which she died. In the cross-examination of the above witnesses no material has come out which may take away the credibiiity of the witnesses. 10. Taking into consideration that the witnesses are ciose reiatives of the appellant and further considering that they had no reason to falsely implicate the appeilant in the above crime, it can be safely held that the injuries over the person of the deceased were caused by the appeilant and the Court below has correctly held the appellant responsibie for causing injuries to the deceased. 11. The oniy question now remains to be decided is whether the appeliant has committed culpable homicide amounting to murder? From evidence available on record it is evident that there was no previous enmity between the appeliant and the deceased and they were returning together after enjoying the feast and the incident occurred on the spur of moment on the way on some trivial matter. As both of them were in inebriated condition, the appellant assauited the deceased by kicks and fists, therefore, it cannot said that the appellant caused bodiiy injuries over the deceased with an intention to cause her death. 12. in view of the aforesaid discussions, in our considered opinion the offence committed by the appellant does nottravel beyond Section 304- II of the IPC. In the resuit, the appeai partiy succeeds. The conviction of the appellant under Section 302 of the iPC is set aside and instead the appeliant is held guiity of offence under Section 304-11 of the IPC. From perusal of the record it appears that the appell&nt is in jail since 10.10.1992 til! date and as such he has already completed more than 13 years of jail sentence and the maximum jail sentence prescribed under Section 304-11 ofthe iPC is 10 years, therefore, in the aforesaid circumstances, the appeilant is directed to be set at liberty forthwith, if not required in any other case. Sd/- Sd/- I \ DhirendraMishra L.C.Bhadoo | \ Jud8e Judge ^f