? , f/ H!GH COURT OF CHHATTISGARH AT BILA$PUR Criminal Appeal No.835 of 2005 Division Bench: Coram: HON‘BLE‘ MRTPSHARMA & HON’BLE MR.R.L.JHANWAR, JJ. ' Jairam Gour S/o Phirangi Gour, aged (in Jail) about 35 years, Occupation — Labour, APPELLANT S/o Bamhninbharri Ponce Station Shihawa District Dhamtari C.G.) i Versus State of Chhattisgarh (APPEAL UNDER SECTION 374 (2) OF THE Cr.P.C.) -—,. a Present:- Mr.H.P.Agrawal, counsei for the appeliant. RESPONDENT Mr.Ravindra Agrawal, Assistant Pubiic Prosecutor for the State. JUDGMENT (ORAL) (Passed on 3'“ January, 201 1) T.P.Sharma, J;- 1. Chatienge in this appeai is to the judgment of conviotion and order of sentence dated 15.9.2005 passed by the Additionai Sessions Judge, Dhamtari in Sessions Trial No.23E/2004 whereby and whereunder teamed Additional Sessions Judge after holding the appeilant guilty for commission of cuipa'ole homicide of his wife Rahi Bai amounting to murder convicted him under Section 302 of the lndian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rsqiooia 2. Conviction is impugned on the ground that without there being any iota of evidence, trial Court has convicted and sentenced the appeiiant as aforementioned and thereby committed illegality. 3. As per case cf the prosecution, on the fateful night of 20.4.2004 at about 8 to 9 pom. appeliant and deceased Rahi Bai were present in their house, on account of some dispute quarrei took place between both the persons, thereafter appellant assaulted his wife namely, Rani Bai by stick upon her back, forehead and hands. She became unconscious. The appeilant did not take any precaution or care for her treatment; she died on second day 3 g morning. On 23.4.2004 Rajau Ram (PW—1) went to the police Station Shihawa and lodged the FAR. vide EXP/1. Merg was also recorded vide Ex.Pi11. investigating officer left for the scene of occurrence and after summoning the witnesses vide Ex.P/2, inquest over dead body of deceased Rahi Bai was prepared vide EX.PI3. Spot map was prepared by investigating officer 'vide (EXP/4. Dead body was sent for autopsy to Government Hospitai, Nagri vide Ex.P/9A. Dr. Ramesh Kumar Thakur (PW—8) conducted autopsy vide Ex.Pi9 and found foiiowing injuriess (i) Confusion over right shouider of 6 cm. x 6 cm. v (ii) Confusion over right arrn of 4 cm. x 4 cm. (iii) Bleeding from mouth and nostrils. 76:1) fQne incised wound of 2 cm. x .5 cm. over upper part of left t eye. {v} Multipleabrasions over back Mode of death was c‘oma as a result of injuries. During the course of investigation, the appellant was taken into custody, he made disclosure statement of stick vide EXP/5 and the same was recovered at his instance vide EXP/6. 4. Statements of the witnesses were recorded under Sections 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed (in the g Court of Judicial Magistrate First Class, Dhamtari, who in tum committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge, Dhamtari received the case on transfer for trial. in order to prove the guilt of the accused/appellant, the prosecution has U! examined as many as eleven witnesses. Statement of the accused/appellant was recorded under Section 313 of the Cr.P.C. where he denied the circumstances appearing against him and pleaded innocence and false impiication in the crime in question. 6. After affording an opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the appeilant as afcfementioned. . We have heard Mr.H.P.Agrawal, counsei for the appellant and Mr.Ravindra Agrawal, Assistant Pubiic Prosecutor for the State, perused \ the judgment impugned and record of the trial Court. \ \ \\o 8. Learned counsei for the appeilant vehemently argued that in the iight of evidence of Sukhnath (PW-2) and Bahoran Ram (PW-3) relating to eitre 1 judicial confession made by the appeHant before these wiinesses and the circumstances proved by the prosecution, he is not disputingthe fact that i the appeiiant has not caused injuries to his wife Rahi Bai resuiting into her death. Learned ooun'sei further argued that as per case of the proseoution, » appeiiant and deceased were present in their house, at the time [of f incident on account of some dispute quarrei took piace between them and on sudden provocation the appellant has caused injuries, no any-injury p I was fatal or dangerous to life, the deceased was aiive for some hours, the appellant was having sufficient opportunity to kili his wife, but he has not ‘kilied h‘e‘rfwife, These all circumstances show that while causing injuries, even the appellant was not having any intention to kill his wife, even he was not having knowledge that by his act his wife may die, therefore, if the“ evidence of the prosecution is considered as true then even the act attributed to the appellant does not travel beyond the scope cf Section 304 Part i orthe lndian Pena: Code. f ‘ V 9. On the other hand, learned State counsel supported the judgment impugned and argued that incident took place at night in the house of the appellant where oniy‘ appellant and deceased were present, the appellant has not offered any explanation that how his wife died, he has not taken any care for her treatment even after causing such injuries to his wife shows his grave intention of homicidal death amounting to murder ofhis wife. 10.in order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution, 11.ln the present case, homicidal death as a result of injuries found over the body of Rahi Bai has not been substantiaiiy disputed on behalf of the appellant, on the other hand, also estabilshed by the evidence of DrRamesh Kumar Thakur (PW-8) and autopsy report EXP/9. Death was ”homicidal in nature. 12.As regards the complicity of the appellant in the crime in question, l Bahoran , Ram , (PW-3), Mangli Bai (PW-5) and Rukmani Bai (PW-6) before \ \ conviction is substantiaiiy based on the evidence of Sukhnath (PW-2), \ whom the appellant has made extra judicial confession that he has \ ll \ @ assaulted his wife. As per nutsheil case of the prosecution, on account of i some dispute an of a sudden the appellant assaulted his wife and as a result of such injuries his wife became unconscious and after some hours she died. After causing injuries when his wife became unconscious thereafter, the appellant has not caused any injury, he has not used dangerous weapon for causing such injuries. The circumstances proved by the prosecution clearly reveals that the appellant has caused injuries on sudden provocation and has not caused any dangerous or fatal injury and as a result of cumulative effect of injury, deceased died. 13.In the absence of definite motive for causing homicidal death, definitely in the present case, the act of the appellant squarely falls within the ambit of Section 304 Part Lof the indian Penal Code. 14.While copvicting the appellant under Section 302 of the indian Penal Code, the trial Court has not considered the aforesaid aspect of the case, especially motive for commission of offence and thereby committed illegality. 15.For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 of the lndian Penal Code is hereby altered to Section 304 Part i of the lndian Penal Code and sentenced to undergo R.l. for eight years. The appellant is in custody, he is entitled for set off of the detention period. f Sd/— 5di- R.L.\Jhanwar T. P. Sharma i, Judge Judge '7