•! ',' :^6^ •ss.?7^' .% HIGH COURTOF CHHATTISGARH. BILASPUR ;'38-s;SiSs^i' APPELLANT: (InJail) RESPONDENT: Criminal Appeal No.631 of 2005 Dashrath Nishad S/o Bahal Nishad aged about 36 years, Resident of Village Jevra Sirsa P.S. Pulgaon, Distt. Durg (CG). Versus The State of 'Chhattisgarh, through the. Station House Officer, Police Station Pulgaon, Distt. Durg (CG), {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure} Present: ,^, Mr. Shailendra Dubey, counsel-forthe appellant. Mr. Ashish Shukla, Govt. Advocate for the State/respondent. Division Bench: - Hon'bleMr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar, 33 ORALJUDGMENT (28-8-2010) T.P. Sharma, 3: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 25-4-2005 passed by the 8 AdditionalSessions Judge (F.T.C.), Durg in Sessions Trial No.215/2003, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of murder of his wife Chandar Bai, convicted the appellant under Section 302 ofthe I.P.C. and sentenced him to undergo imprisonment for life & pay fine of, Rs.1,000/-, in default of payment of Rne to further undergo R.I. for two months. 2. Conviction is impugned on the ^ground that without any'iota of evidence, the trial Court has convicted & sentenced the appellant and thereby committedillegality. ; 3. Case of the prosecution, jn brief, is that the appellant,his wife Chandar Bai (since deceased), sonsSanjay (PW-1) & Ajay (PW-6) were residing in same premises; on 20-6-2003 the appellant directed his wife that she should not go for work to which she resisted;, thereafter, the appellant assaulted his wife with rod & gaiti and sr~. "% SWS'WsSi >:»k caused her death. The appellaht himself went to the Police Chowki and lodged report. Rojnamcha and dehati nalsi Ex.P-7 were recorded. On the basisof Ex.P-7, F.I.R. Ex.P-8 was recorded.. After' summoning the witnesses vide Ex.P-5, inquest over the dead body of the deceased was prepared vide Ex.P-4. Clothes of the accused were seized vide Ex.P-3. Gaiti, rod, plain & blood stained soil were seized from the spot vide EX.P-2. Dead body of the deceasedwas sent for autopsy to Govemment Hospital, Durg vide Ex. P-9. Autopsy was conducted by Dr. P. Balkishore (PW-14) vide Ex.P-10 who found followlnginjuries on the body ofthedeceased: - 1. Lacerated wound of 6 c.m. x 2 c.m. deep up to bone on the backside ofhead. .^ 2. Lacerated wound of 8 c.m. x 2 c.m. deep up to bone over left' temporal region. 3. Lacerated wound of 2 c.m. x 1 c.m. deep up to bone over left side offace. 4. Jaw was broken near chin with contusion of 5 c.m. x 3 c.m. 5. Lacerated wound of 1 1/2C.m. x 1 1/2 c.m. x 4 c.m. over back. 6. Laceratedwound of 1 1/2C.m. x 1 1/z c.m. deep up to bone over thoracic vertebra. 7. Swelling & contusion of 3 c.m. x 1 '/2 c.m. on back. 8. Lacerated wound of 2 c.m. x 1 1/2 c.m. x skin deep over left fore hand. 9. Lacerated wound of 3 c.m. x 1 1/2 c.m. x deep up to bone over left fbre hand. lo.Lacerated wound of 3 c.m. x 1 1/2 c.m. x 4 c.m.over left hand. ll.Contusion over chest in the SJze of 3 c.m. x 1 Vz c.m. and another contusion inside the breast in the size of 3 c.m. x 1 c.m. / : : ' • : . :: . . '. . . Compound committed fracture was found on temporal &occipital parietal region, haematoma was found over brain and cause of death was shock as a result of excessive haemorrhage. Death was, homicidal in nature. 4. Statements of the witnesses-were recorded under Section 161 ofthe Cr.P.C, After completion of investigation, charge sheet was filed before the Courtof Judicial Magistrate First Class, Durg who committed the case to the Court of Sessions, Durg from where l;t^!M:i;t{;ai)gsl £•..•^•.•:^-"..i<^^^gg^ S'lSssta-fssueS,, ^'i'^^^^il^^s''' learned Additional Sessions Judge received the caseon transfer for trial. 5. In order to prove the guilt of fhe appellant, the prosecution has examined as many qs fourteen witnesses. The accused was examined under Section 313 ofthe Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false impliGation. . 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. , ,*; ^ ' ' . • ! ' 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appellant submits that in view of the evidence of Sanjay (PW-1), Ajay (PW-6), Dr. P. Balkishore (PW-14) and statements of other witnesses, he is not disputing that the appellant has not caused fatal injuries to his wife ChandarBai resulting in her death. Learned counsel furthersubmits that this is not the case of commissionof murder punishable under Section 302 of the I.P.C., this is the case which falls within the category of Section 304 Part-II ofthe I.P.C. Therefore, conviction & sentences of the appellant require reconsideration. Learned counsel also submits that the appellant himself has lodged report and Just one day before the incident, theappellant hasseen his wifewith another person in compromising position on which the appellant objected and directed her not to go for work to which she resisted then on the heat of passion he lost mental balance and caused fatal injuries to his wife. 9. On the other hand, learned Sfate counsel opposed the appeal and submitted that on account of the incident of previous day, the appellanthas caused injuries to his wife on next day which shows that theappellant has intentionally caused injuries with a view to murder her thetrial Court has rightly convicted & sentenced the appellant. l0.in order to appreciate the arguments advanced Qn behalf of the parties, we have examined the material available on record. ll.In the present case, as per the evidence of Sanjay (PW-1), Ajay (PW-6), Dr. P. Balkisnore (PW-14), dehati nalsi Ex.P-7, F.I.R. Ex.P-8 and autopsy report Ex.P-10 it is clear that the appellant has caused fatal injuries to his wife at the time of incident and deathof Chandra Bai was homicidal in natAe. l2.As regards the mitigating circumstances and conviction of the appellant,as per F.I.R, Exs.P-8 &P-8A and evidence ofMohd, Farhaz Qureshi (PW-10) - Sub Irtspector, the appellant himself has lodged report in Police Chowki in which he has informed that one day before the incident he has seen his wife with one Kunwar Singh in compromising position and second day he has committed ttie,, aforesaid offence when he tried tostop his wife from going for work. It clearly reveals that the appellant has seen his wife with one KunwarSingh in compromising position in his houseone day before the incident and with aview to close the chapter and try to resolve the dispute the appellant has directed his wife to stop from going for work, but she refysed on which he lost his temper and in a heat of possession he has caused the aforesaid injuries to his wife. The circumstances show thatthe appellant has not committed murder of his wife with pre-meditation and has caused fatal injuries onsudden provocation. Therefore, act ofthe appeltant squarely falls within the, ambit of Section 304 Part-I of the I.P.C. l3.While convicting & sentencing the appellant, the trial Court has not corisidered this aspect of the case and thereby committed illegality in conviction him under Seetion 302 oftheI.P.C. l4.Consequently, the appeal is partly. allowed. Conviction of the appellantunder Section 302 of the I.P.C. is altered to Section 304 Part-I of the I.P.C. Considering the nature ofinjuries and gravity of offence, instead of sentencing the appellant to undergo imprisonment for life & pay* fine of Rs.1,000/-, the appellant is, hereby sentenced to undergo R.I. for ten years & pay fineof Rs.1,000/-, in defaultof payment of fine to further undergo R.I. for two months. Soma Sd/- T.P. Sharma Judge L^' Sd/- R.L. Jhanwar Judge