r HIGH COURT OF CHHATTISGARH. BILASPUR Crimjnal A_epeal Np.78 of 2010 i\^. APPELLANT: (InJail) RESPONDENT: Babulal, Son of Premsai aged about 38 years, Caste Turiya, Occupation Labour R/o Village Kantiprakashpur, Police Station Ambikapur, Distt. Surguja (C.G.) Versus State of Chhattisgarh, Through the Police Station Ambikapur, Distt. Surguja (C.G.) {Criminal appeal under Section 374 (2) ofthe Code ofCriminal Procedure, 1973} Present: Mr. V.K. Pandey, counsel for the appellant. Mr. Ashish Shukla, Govt, Advocate for the State/respondent. Division BenchL- Hon'bJeJVIrJT.P^Stiarma and Hon'ble h/lr. R.L. Jhanwar,_JJ ORAL JUDGMENT (1.6-3-2010) TJ3. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 26-12-2009 passed by the Sessions Judge, Ambikapur jn Sessions Trial No. 136/2008, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable hQmicide amounting to murder of Lalmania, wife of the appellant, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs.2,000/-, in default ofpayment offine to further undergo R.l. for six months. 2. Conviction is impugned on the ground that white convicting the appellant the trial Court has not considered the mitigating circumstances for commission of offehce and thereby committed illegality. 3. Case of the prosecution, in brief, i.s that on the fateful night of 11-2-2008, one Amit was present in the house of the appellant and was committing sexual intercourse with the wife of the appellant namely, Lalmania (since deceased) on which the appellant got provoked and caused injuries over the head of Lalmania with wooden plank as of result she died on the spot. The appellant made extra judicial confession before other witnesses including Keval Ram (PW-1) who went to the Police Station and lodged F.1.R. vide Ex.P-2 and merg vide Ex.P-1. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex. P-5, prepared inquest over the dead body of Lalmania vide Ex.P-6. Dead body was sent for autopsy to Government Hospital, Ambikapur vide Ex.P-10(A). Dr. K.R. Tekam (PW-4) conducted autopsy vide Ex.P-10 and found one injury over parietal bone including fracture of parietal bone, blood was found inside the brain and mode of deathwas coma. Spot map was prepared by the Investigating Officer vide Ex.P-3. The accused was taken into custody, he made discloser statement of wooden plank vide Ex. P-7 and the same was recovered at the instance of the appellant vide Ex.P-8. He was arrested vide Ex.P-9. Wooden plank was examined by Dr. K.R. Tekam (PW-4) vide Ex.P-12 who opined that the injury found over the dead body of Lalmania may be caused by the said wooden plank. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Ambikapur, who in turn, committed the case to the Court of Sessions, Ambikapur who conducted trial of the case. 4. ln order to prove the guiltof the appellant, the prosecution has examined as many as ninewitnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. He has taken the defence that Amit has caused injury to Lalmania. He has also examined "^.. II -^.—— '^ <SlBi'"-'"'~| ^^ss^ Sitaram Toppo (DW-1) & Panchu Ram (DW-2) who have deposed that at about 3 a.m. (at night) they heard the sound of the appellant, when they reached to the house of the appellant, Amit was present there and he was caught by the appellant, thereafter Amit fled away and on second day morning, they came to know that Laimania was found dead. They have also deposed that according to their information, Lalmania was having illicit relation with Amit. 5. After affording opportunity of hearing to the parties, learned Sessions Judge has convicted & sentenced the appellant in the aforesaid manner. 6. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Couri:. 7. Learned counsel for the appellant submits that conviction of the appellant is substantially based on circumstantial evidence that the deceased & the appellant were wife & husband, they were present in one house,the deceased was found dead and no explanation has been offered on behalf of the appellant. Learned counsel further submits that it reveals from the evidence of the prosecution, especially on the basis of F.1.R. that deceased Lalmania, wife ofthe appellant, was having illicit relation with one Amit and on the date of incident, the appellant caught Amit red handed with his wife when his wife & Amit were in compromising position, therefore, the appellant lost his temper and on .sudden provocation, on the spur of the moment, he has caused one injury on the head of the deceased, he has not intentionally caused the death of the deceased, and therefore, if the evidence of the prosecution and all circumstances are proved to be true, even then, the role attributed to the appellant does not travel beyond the scope of Section 304 Part-11 of the f I.P.C. ^•c .-ws«-. :e.i.^-ffSywfi ••^ssy J j %. ! 1!i«rf,. '^&.-.^Si 8. On the other hand, learned State counsel opposes the appeal and submits that in case of such illicit relation and sexual intercourse by Amit with wife of the appellant, right to exercise private defence of causing injury to Amit was available to the appellant, but right to cause injury to deceased Lalmania was not available to the appellant. The appellant himself has caused fatal injury to the deceased and the trial Court has rightly convicted & sentenced the appellant. 9. In order to appreciate the arguments advanced on behalf of the appellant, we have examined the evidence available on record. 10.1n the present case, homicidal death ofdeceased Lalmania as a result of ante-mortem fatal injury has not been substantiallydisputed on behalfof the appellant, otherwise also established by the evidence of Dr. K.R. Tekam (PW-4) & autopsy report Ex.P-10 which reveal that parietal bone of the deceased was found fractured and death of the deceased was homicidal in nature. 11.As regards complicity ofthe appellant in the crime in question, conviction ofthe appellant is based on the following circumstances: - (1) That, the appellant & the deceased were residing in one house. (2) That, deceased Lalmania was found dead as a result of the injury sustained by her. (3)That, the appellant has not offered any reasonable explanation that how deceased Lalmania died. (4) That, the appellant was under obligation to explain in terms of Section 106 ofthe Indian EvidenceAct, 1872. 12.1n the present case, Keval Ram (PW-1), who has lodged report vide Ex.P-2 & merg vide Ex.P-1 , has deposed in his evidence that on the date of incident at about 4 a.m. the appellant came to him, he (this witness) is Kotwar and the appellant informed him that his wife has died, then he 9 '. .,r''Ssk. "l s. '^s^" '"^ ^ J? 'is^ went to the Police Station and lodged report. The prosecution has declared him hostile. l3.Ram Kumar (PW-2), Ram Bilas (PW-3) & Ajay Kumar (PW-7) have deposed in their evidence that dead body of Lalmania was found in the house of the appellant. 14.Defence has also examined Sitaram Toppo (DW-1) & Panchu Ram (DW- 2) who have deposed in their evidence that on the fateful night at about 3 a.m. they heard the sound of Babulal on which they went to his house, at that time, Amit was present there and he was caught hold by the appellant, thereafter, Amit fled away from the spot. Panchu Ram (DW-2) has further deposed thatAmit was having illicit relation with Lalmania. 15.Keval Ram (PW-1) has lodged F.I.R. vide Ex.P-2. Although he has not supported the contents of F.1.R. but the F.1.R. still reveals that the appellant had seen Amit & his wife in compromising position, and therefore, he lost his temper and has caused injury. In the present case, evidence of all witnesses reveal that the appellant & the deceased were residing in same house under one roof. The deceased was found dead. The appellant was under obligation to offer explanation in terms of Section 106 of the Indian Evidence Act, 1872. As per the defence evidence, on the fateful night the appellant shouted on which the two defence witnesses came to his house, at that time, the appellant was holding Amit, thereafter Amit fled away from his house. Presence of Amit at 3 a.m. (at night) in the house of the appellant was not natural. 16.Entire evidence is sufficient for drawing inference that the appellant has seen his wife with one Amit in compromising position and, therefore, the appellant has lost his temper and on account of losing temper, he has caused one injury over the head of the deceased. The chain of ^'^K. ' • -•w^y^.fi. J li^0:i;'% t? '^•&~!vSe.--yt-.l-'~ '-. ^^^•" '.. •* Soma circumstances adduced on behalf of the prosecution against the appellant are sufficient for drawing inference that the appellant was the person who has caused head injury to his wife. 17.As regards the question of motive, evidence ofthe prosecution witnesses and evidence of the defence witnesses clearly reveal that there was no occasion for the appellant to cause such injury to the deceased, who was his wife, except for the aforesaid fact that he has seen his wife in compromising position with Amit. It shows that the appellant has not caused any injury to his wife (the deceased) with intent to cause her death. 18.After appreciating the evidence available on record, learned Sessions Judge has convicted the appellant, but has not considered the most material aspect of the case and the mitigating circumstances in which the appellant has caused single blow to his wife, and thereby committed illegality. 19.For the foregoing reasons, the appeal deserves to be partly allowed and it is hereby partly allowed. Conviction of the appellant under Section 302 of the I.P.C. is altered to Section 304 Part-11 of the I.P.C. The appellant is sentenced to R.l. for six years & pay fine of Rs.2,000/-, in default of payment offine to further undergo R.l. for six months. The appellant is in custody, he is entitled for set off as per law. Sd/- T.P. Sharma Judge &AI- y..^' jba»v juASe ^av ftT""