HEGH COURT GF CHH&TTE$GARH AT £iLASi’UR E Criminai Apyeai N01 102] 19§3 A‘pyeatance: Shri Rakesh Kumar dha, Dy. Govemmant Advocate for the Stats. Shn' Abhay Tiwari, counsel for the appélla}1t. Division Eeaciw Han’ble Shn-i T.P. Shaxma as Eaa’ble Shri R.L.Jhanwar,JJ ORAL J‘Ui)(IMEE\I‘T (16.03.2010) ex .P.Shaxma, J. P T 1. Challenge in this appeal is to the judgment of conviction alid ordm“ of sentence “dated 17.7.1993, passes} by the 3rd Additional Sessions Judge, Durg Camp Bemetara in ST. No.244/91, whereby anci whereunder, the learned 3I Adziitional Sessions Judge after homing the appellaixt guilty for commission of culpable homicide amounting to murder of his wife —Pusaiyabai, convicted the appellant under Section 302 of the {PC and sentenced to undergo imprisonment for Life. 2. T ie judgment impugneti is chaiienged on the groumi that white convicting the appellant untier Section 3G2 ofthe IPC, the é APPELLAET Sarha sfo Tulsiram Kalar , Rfo Segefia, RS. Khamhriya, District Durg (MP) (Now CG) VERSUS I “F . RESPOMDENT State of Madklya Pradesh (Now Chhattisgarh) Ct below has 110$ considered the matérial evidence, which wa sufiicieet for c‘irawing 511 inference th it was a sudden flg'‘ aim on account ofsuch flght, the appellant as caused the deah ofthe deceased 311d thereby cemmitted illegality. 8. Prosecution ease in brief is that T aypellarit and iyabai (since deceased} werehusand am} wife. They were *es3‘.il together under he’same roof, OE 14.4.19, a aoa ?i(ig L 91 i bt 9.0%, the appellant aiid th deceased were presen in their hotse. A quarrel took place between them and Puiyaai abeedthe appellant, on which, the appella‘snatched the Hael (mala of qoins) from the nec of Pusaiyaba, due to whh, her neck got strangulated and she died. The appellant mae xtra judicial confession efore aciardas“ (PW-10) — Kowar, who went to Police Station and iodged the F.I.R.vide EX P] 12. Merg intimation was als reorded. The investigating officer left for the scene of occurrence and after summoning the witnesses Vide EX. P] 11, inquest over the dead body of the deceased was prepared vide EXP/2. The dead body was sent for autopsy o P.H.C. Kh riya vide Ex. P/6—A, where Dr‘. RP. Shnna (PW—4) conducted the autopsy vide EX. P/6 and found following injuries: i. Ligature mark of 1 c breadth around the neck. Redness 0 was present é Multiple abrasions over neck The Doctor opined that the cause of death was asphyxia, as a result of strangulation. Blood stained soil and plain soil was recovered from the spot vide EX. P/8. Spot map was prepared vide Ex. P! 13. Clothes of the deceasedmwere seized vide Ex. PIS. Seized articles were sent for chemical examination vide EXP] 14. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). oui s; at m h f ‘ he rusé b 6 e t i sab tii nt in k i ic d e b L ta . o c t am h a m n 4, After compietion of investigation, charge sheiit was filed b€fore the Court of A.C.J.M. Bemetara, who m turn, committed the caee to the Court of Sessions, Burg, from where, the learned 3rd Additional Sessions Judge, Burg, Camp Bemetara receiveii the ease on transfer or trial. i 5. In order to prove the guilt of the accused/appellant, “prosecution has examined as many as 14 Witnesses The accused was examined under Section 3 13 of the Code Where he denied the circumstances appearing against him pleaded innocence and false implication m the cnme m question After afiordmg opportunity of hearing to the parties, the leained 1 Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 6. We have heard learned counsel for the parties at length and perused the judgment impugned and record of the Comt below. '7. - Leaineel counsel for the appellant vehemently argued that although the prosecution witnesses have not supported the case of prosecution, but the circumstances proved against the appellant revealed that the appellant and the“ deceased were present in the house, where the deceased died as a result of strangulation/injury over the neck. Then the appellant was required to explain the circumstance. F.I,R. Ex. P] 12 has been lodged by Lahardas (PW-10) on the basis of information given by the appellant. It clearly revealed that the quarrel took place between the appellant and the deceased and the appellant has snatched the ’Hamel»{mala of coins), which the deceased was _ wearing on her neck and as a result of such snatching, neck of the deceased got strangulated, due to which, she died. It shows f 4x. that on account of quanel, all of a suckien the appellant Jost his emper and in a heat of axigar, ha has committmi the aforasaid offaxms, He has not intentionally caused the dcath of the deceased. He placed reliance on the decision of the Apex (301111, n the matter of Uday Singh Vs. State 0f U..P., 2003 (1) CGLJ {SCM 15km which the Apex Court has held that the tight etween the two patties taken place which suddenly staxted. Pressing of neck by thetaccused, caused death of the deceased. 1? “*as not a murder. Therefore, the case of the appellant is squarely covered with the case of Uday Singh (supra) and it does not travel beyond the scope of Section\304 part ll of the l lPC. \ 8 . On the other hand, leaxne'd counsel for the State opposed the petition and submitted that in the present case, the appellant has caused fatal injury by throttling and thereby has caused the death of his Wife—Pusaiyabai and Court below has Iightly convicted and sentenced the appellant as aforementioned ,9. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. a 10. In the present case, homicidal death as {a result of ante mortem fatal injury to the deceased has not been substantiahy disputed by the appehant. On the other hand, it is established by the evidence of Dr. RP. Shanna (PW-4) and Autopsy report EXP/6, which revealed that the cause of death was strangulation and death was 10micidal in nature. The conviction of’the appellant is based on the extra judicial _ confession and other circumstantial evidence. ‘ ‘t ‘ i i i b : ‘ l i (1x 11, Ag ragards The comp1icity of tha accused/apgdlant in cn’m6 in qussi‘ion i3 concsnlsd, Lahardas (PW— 10) has deposed that he. was prasent 3‘11 hiS house, at mat time, the appellant came. and calied him and made extra judicial confession before him that on account of quairel between him that his wife § Puwiyabai, has died. Bhuvan (PW—2) has deposed that the appellant came to him and told that his wife has died. Lahardas (PW-10), who has lodged the report has deposed in ; “his evidence That the appellant came to him and told that he ‘ was present with Pusaiyabai. Pusaiyabai demanded water, 1 which he has not given, on which, Pusaiyabai caught hold of him then he pushed her and she ’fell down and become ' unconscious. He is the person, who has lodged the report Vide Ex. P] 12. In cross—examination, he has denied that the appellant told him that he has snatched the Hamel (mala of coins) from the neck of the deceased. The evidence of aforesaid witness clearly revealed that at the time of incident, appellant and the deceased Pusaiyabai were present in their house. The. appellant narrated the incident to others. Pusaiyabai was found dead. The appellant has not offered any explanation as to how Pusaiyabai has died in the house. g\{ 12. In the absence of any explanation relating to death of Pusaiyabai, only hypothesis would be prissible that the appellant was the person, who has caused injury over the neck of the deceased. The F.I.R. was lodged by Lahardas (PW—10) vide EX. P/ 12 reveals that the appeltant has made extra judicial confession of killing by him to Pusaiyabai and on the basis of such confessional statement, Lahardas (PW—10) has lodged the report, lt 'shows thati firstly, quarrel took place between the appellant and the deceased and thereafter when the deceased abused the appellant, then he snatched the Hamel (mala of coins), which the deceased had worn on his neck. This part of fhr: F.I.R. can be safsly taken in to considaration fpr the purpose of motiva of the offence, which shows that the appellant had not intentionally caused the death of the deceased and on account of the quarrel, all of a sudden, he lost his temper and in a heat of anger, he snatched the Hamel (mala of coins) from the neck of the deceased, due to which, neck of the deceased got strangulated and she died. Under these Circumstances, as is held in the matter of Uday Singh (Supra), the act of the appellant is squarely covered within the ambit of Section 304 Part II of the IPC. 13. After appreciating the evidence available on record, the learned Additional Sessions Judge has convicted and sentenced the appellant under Section 302 of the [PC for iniprisonment of life, but has not considered the motive for commission of the crime and thereby, committed illeality. 14. On close scrutiny of the evidence, we are of the view that the act of the appellant is squarely falls in the category of Section 304 Part H of the IPC. Consequently, the appeal is partly allowed. Conviction ofthe appellant under Section 302 of the IPC is altered into Section 304 Part ll of the IPC. 15. In the present case the appellant was in «custody since 15.4.1991 till 24. 1.2003 i.e. for more than about 12 years. The aforesaid custodial period is the sufficient conviction under Section 304 Part II of the IPC and he is sentenced for the custodial period, which he has already suffered. Sd/— .‘ R.L. Jhanwar Judge Sd/- T. P. Sharma Judge \ g