l:^'^"^^ii^'; •^€- HIGH^OUI=a^F^HM^TTISeiARH:BII.^ DIVlSiQNBENtIH: HahlxBllB^iii^pmi^ H^IsFBItElSHJ^R;.L^HANWAR.,JJ. ^PEl-LANT^ «iTiai1) iCrimihalADDealNo. 579 of2005 RESPONDENT Teyu -Ram ^adav, iS/o^^ aged ab0yt^8y^r5,io<3cypation^fa Resident of Village^ Kyndel, B Magarlod, DistrictDhamtari,(CG) ^VERSUS}.^:.:^./';,y-'l,[:1^ The ^tat&o^Chhatjtisgarh.throughstl-ie Statiw House OfHce^ Magarlod;Dist.Dhamtari(CG) CRIMINAL%PPEALUNDENSECTION3^4{210FTHECRIMINAL ^PROCiDVRi^©DE:^li':'Y:;;^''^^.;,^^^ ^ppearan(^:r\'^l!Jl^|\';,yy':@:^^% :Ms.;'NinJj^m||?Bajlpaj,^un^|fc>r^ :Mr;^.R.^^isWaiP^:foah;i^itate,^I^;'^ :^M- ial: ,ORA^Ji0ijVlENT ^Passedon 103.01.2011;) RerT.P.Sharma. *J. ^hallerigi&^rilhisapp|al|s^totti&^u^ :JQrisentence|:late||||M|,2QQ5|^ the Nditional ^sion&^^^^^^J^ wherebyandwhe U^ ofculpable bomicjdeamourrt belbw cdnvicted ithe^^^^^ sehtencedtb lifeimprisori^ :t''. /^::^':1':''; ^•:-'''^\';^. •.•'•';^"^ •'.^•:.";i-:. ".••.••^^•^:''^''..:^1:-'':'..:;''^.^^^ 2 . T'he^cohvi^ion of the^ppellant^^^^R withoi^ iota bfevidehce, the Cdurt bel^^^^ appellarit asafQr6saidandthereby<^mm 3. As per th^ wife Amrit Bai appejlant.tdje^ case of thegpj^seG^jon \|ei^residin9^N9^h^|(|l,7.8.2004,1 daug Rei1^nijn|g^r^a!S^F||^^ t^: ^'^:. ^m m^ iiF»onth^rteck;^f;ithe^eGe^d|^fitrB tried lo;kj1l iTer.^here^ her to the hospital^^ examlhed at IVtagarlocl^i^ Dhiruv videl Ex^.19^> ^ |Qs|)ital%DhawitSn\ihere?PiV;1^ /NrK Bai'died w!8N.^ poslicetbou^the^cl||t|o^^ (^Ex||.2ll,M€^Wni^ Exl'M^ ^.I.R.Exltl&^ ^ iBquest^veFAMeidea<dbody;w |sent for^ ^ jR.^.^hakur CQndLicted aytopsy vide Ex;P.8 and i found the foHpwing ^iTij:yries:^%^t:\'ll.':-/..l',:^^ ^^.ILigature^^^ litv^asr^jn^ ^'^'^^|rii<rture.^^j:'v.::^,^:|£l:';'::,gj^ l^|l^.i:l.jlnt^rni||||&:^^<||n9|!||<|.^ 1 Causeicif.cleathwasoRjned^^ ,was;.h0miQidal^in,ihlatuFe.;,;:.,^ i .Duririgthejc^rse^^^^^ ^hbim^de disclosiire ^atement^^^^^o^ tecoyeNd attheinstan^oftheappe^^^ ^spcrt^map.vide^Ex;P:.;1j1,.''':',,^:,:^^ •^..>;;.^,1^..-•:„•./- 4. Statenient^ bfwitnesses v^^^^^ ^Cr.PjGl.iOAf^r^co^pleti^^^ Ibeforethe C^ourtiofJ.^R.^.DIiamtari,^^^^ the^oyrt of Se^sions, Raipur.^^^^^ reGeivedth^easeohtransferf6rits^rjal.'^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ |. jri oi^er to pro^ ^examihed aslrTi^ny as^^t^ under Sectionj3|a^the Cr^;C lappeanng agam|tjhima^ .^53^€ w'% 'x ..^" ff V. M '^ has tried to commit suicide by hanging. Thereafter, he has taken her to the hospital for treatment and ultimately she died. 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. Ms. Nirupama Bajpai, learned counsel for the appellant and Shri S.R.J.Jaiswal, learned P.L.for the State are heard. Judgment impugned and record ofthe Court below perused. 8. Ms. Nirupama Bajpai, learned counsel for the appellant vehemently argued that the conviction of the appellant is substantially based on the evidence of P.W.1 Fagu, P.W.2 Nathuram, P.W.3 Mathura Bai and also P.W.14 Revti Bai before whom the present appellant has made extra judicial confession that he has tied the rope upon the neck of his wife. Counsel further argued that as per evidence of prosecution, even after using the rope for causing the death of deceased Amrit Bai on 7.8.2004 at about 6. p.m. she was survived till 12.20 p.m. and on 8.8.2004 and the appellant himself has taken her for treatment to save her life' which shows that he has not caused injury to the deceased with intent to cause her death but on account of frustration and the fact that as a result of negligent and conduct of the deceased, his child has died on the same day, the appellant has used force upon the deceased. Even ifthe entire evidence of the prosecution is considered together, the act of the appellant does not travel beyond the scope of Section 304 part 1 of the I.P.C. 9. On the other hand, Mr. S.R.J.Jaiswal, learned PL for the State argued that the appellant has intentionally caused homicidal death of the deceased. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, the death of deceased Amrit Bai as a result of fatal injury over her neck has not been substantially disputed on behalf of the appellant, even otherwise, it was also established by Dr. R.S.Thakur P.W.7 and autopsy report Ex.P.8, P.W.15 Dr. T.R. Dhruv and ^ M- ^•••^•• ^^\ I^ ^) ^-^ his medical report Ex.P.19, P.W.16 Dr. J.S.Khalsa and his medical report vide Ex. P.12 and death was homicidal in nature. 11. As regards the complicity of the appellant in crime in question, the conviction is substantially based on the evidence of extra judicial confession made by the appellant before P.W.1 Fagu, P.W.2 Nathuram, P.W.3 Mathura Bai and also P.W.14 Revti Bai, who have deposed in their evidence that they came to know about the illness of Amrit Bai and the appellant took her for treatment to Magarlod Hospital by Marshall vehicle. He also made extra judicial confession before them that he tied the rope upon the neck of his wife and they have seen the injury and ligature mark over the neck of the deceased. Thereafter, they finally shifted the deceased (while she was live) to District Hospital, Dhamtari, where she died. P.W.1 Fagu, P.W.2 Nathuram, and P.W.3 Mathura Bai have admitted in their evidence that on the same day, the daughter of the appellant and the deceased Amrit Bai, died and after performing her last rites, the present incident took place. The circumstances in which the appellant has used force would reveal that present appellant has used the force on account of frustration that his sole daughter died and on the same day just after using force he has tried his level best to save the life of the deceased but on account offatal injury, the deceased died. The evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant has used the force and caused homicidal death but the evidence also reveat that he has tried his level best to save the life of his wife which shows that he has committed the offence on account of frustration and has not caused her death with intent to cause her death. 12. While convicting the appellant under Section 302 of the I.P.C, the Court below did not consider the aforesaid aspect that the appellant did commit the offence with frustration and even also tried his level best to save her life and thereby committed the illegality. 13. For the foregoing reasons, we are of the considered view that the conviction and sentence ofthe appellant is liable to be altered. 14. Consequently, the appeal is partly is allowed. Conviction of the appellant under Section 302 of the I.P.C. and the sentence awarded thereunder is altered to Section 304 Part 1 of the I.P.C. and considering ff:^ii-,i%^Si;iiiB ^^^ itci^iBii^isjiiii^iiiiiii^ itmiiioiiiiiiii:iiiii>i"ift|iii^^ ^il'inleliiliffiilS%l^ iisilSililliiliii^illlitiii^iAiii^ l^ot':required'fin;.any|o(|T|^as^^^:^^^^ Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^'