HIGH COURT OP CHHATTISGARH AT BILASPUR Crimiaal Aooeal No. 568/2004 CORAM; HOH?BLE SHRI T.P.SHARMA 85 HON»BLESHRI R.L.JHANWAR, JJ. APPELLANT (In Jail) RESPONDBNT Kunwar Singh s/o Murha Raisi Gond aged 40 years, R/o Pataii P.S. Amba Chouk}^ District Rajnandgaon (CG) Versus State of Chhattisgarh Through:- P.S. Araba Chouk^r Distdct Rajnaadgaon CmMINAL APPBAL U/S 374 (2) OF THE CODE OF CEIMINAL PROCEDURE Presenfc- Shri S,K. Chaiidel, counsel for tlie appeUao.t. Shri Ashish Shiikla, GoveniBieut Advocate for the State, ORAL JUDGMEHT (22.09.2010) Per T.P.Sharma, J.:- 1. ChaUenge m this appeal is to the judgm.ent of conviction aad order of sentence dated 02.04.2004, passed in Sessions Trial No, 11/2004 by tAie Additioual Sessions Judge, Rajnandgaon (CG), whereby aiid wherexinder the leamed Additional Sessions Judge aJter holdiiig tlie appellao.t guUty for comHiission of niurder of his wife- Jaibo Bai, couvicted tlie appeUaat under Section 302 of tlie IPC aud senteiiced to undergo iiaprisonment for Ufe aiid to pay a tiae of Rs,5000/-, io. default of payment of Ime to furtlier undergo R.I. for 1 yeai\ 2. The conviction is challenged on flie ground tliat without aay cliGchuig aiid credible evidence, Court below has convicted aiid '% 1(?L^5^; sentenced the appellant as aforementioned and thereby committed illegallty. 3. Brief case of the prosecution is fhat on the fateful night of 14.8,2003, at about 10.00 pm, wife oftlie appeUaat namely -Jaibo Bai, who was residiag witii the appeUaat was gomg out from the house to aiiotlier place and when the appellaat asked her, she repHed that who is he to ask her, On this, the appeUant pressed her neck aa.cl tliereby caused her death.. Kamla Bai (PW-4) was present on fhe spot, who has seen fhe iacideut. Paltao. (PW-1) went to PoUce Station aad lodged report vide Ex, P/ 1, Merg intimation was recorded vide Ex. P/3, Spot niap was prepared vide Ex, P/2. After summonmg witaesses mquest over fhe dead body was prepared vide Ex. P/4. Dead body was sent for autopsy to C.H.C. Ambagarh. Dr. R.K. Pashi (PW-6) conducted autopsy vide Ex. P/6 aiid found Mgature laark over ftie neck along witli abrasion, Mode of death was asphyxia, as a result of straiigulation aiid deatli was honiiciclal in uatare. The accused/appeUant was taken into custody. He m-ade disclosure stateBient of fhe dead body vide Ex.P/5 on 16.8,2003. After suinmouing witaesses, io.que.st over tiie dead was prepared ou such meinoranduxa vide Ex. P/4. Stateisients oftlie witoesses were recorded under Section 161 ofthe Code ofCrimmal Procedure, 1973 (for short 'fhe Code'). 4. Aft.cr conipletion of nivestigation, charge sheet was filed before fhe Court of Judicial Magistrate Fii'st Class, Asiibagarh Chouky, who ia tura, coniniitted fhe case to flie Court of Sessions, Rajnaadgaon from where fhe leam.ed Additional Sessions Judge received the case on traasfer for trial. 5. In order to prove fhe guilt of Uie accused/appeUaiit, prosecution exammed as many as 6 witaesses. Statement of fhe accused/appeUaiit was recorded under Section 313 of the Code, where he derded tlie circum.stances appeariug agamst hiia, iiinocence aad false impUcation io. criine iu question was clainied^ 6. After affording opportunity of hearing to tihie parties, leamed Additional Sessions Judge has convicted aad sentenced the accused/appeUaat as aforementioned. 7. We have heard Shri S,K. Chandel, learried counsel for fhe appeUaiit aad Shn Ashish Shukla, leamied GoveiTinient Advocate for fhe State, perused fhe judgnient iinpugned aad record of fhe Court below. L-. 8. Learaed counsel appearuig for fhe appeUant veheinenUy argued that conviction oftiie appeUant is based ou the evidence of child eye witiiess Kaaila Bai (PW-4) aad extra judicial coufession, but fhe evidence of fhis witaess clearly revealed tliat at tiie tiiae of iacident at 10.00 p.ni., wife offtie appellaiit was goiiig out froni fhe house aad when appellaDLt asked her fhat where she was goiag, she repUed fhat who is he to ask her, on which, the appellaat get annoyed and all of a sudden caught hoid of her aeck aad pressed it. He was not intendio.g to cause her deafh, fherefore, if the act of ttie appeUaat 1s adnutted to be true fh-en also fhe case of the appellaiit does not travel beyond Section 304 Part I of fhe IPC. He subniitted fhat the appeUaiit is in custody siace 17.8.2003 and tliereby has committed niore fhaa 7 years of miprisorunent. 9. On the ofher haad, leamed State counsel veheinently opposed fhe argunients aad submitted that fhe appellant has pressed neck of his wife aad caused her deatli. This is a case of intentional deafh of Jaibo bai. Court below has rightiy convicted and senteuce-d fhe appeUaat as above. ^fc ^- ,'.:^'^<^i '^. / &,"1 1; ' €i ^^ % ^^& • i ^ ,""?'%lfti ? ^ 10, In order to appreciate the arguments advanced on behalf of the parties, we have examiaed the evidence adduced on behalf of the prosecution. 11. Iu tlie present case, homicidal death of fhe deceased as a result of straagiilation has not been substantiaUy disputed on behalf of fhe appeUant, on the otiier haad,it is established by the evidence of Dr, R.K, Pashi (PW-6) aiid autopsy report Ex. P/6 aiid deafh was honiicidal in nature, 12. As regards coiaplicity of Uie accused/appeUaat in. ciime in question is concemed, conviction is based on fhe evidence of eye witaess Kamla bai (PW~4), daughter of appeUaat aad deceased and the extra judicial confession niade to ofher witatesses. Kainla Bai (PW-4), aged about 13 years has categorically stated that at fhe tiine ofiacident, she heard fhe sound aiid caine.out froin her rooia with. a bumiiig chunney then she was threatened by her father i.e. appellaat, Thereafter, she went to her room for sleepiag; after V2 hour, her fatlier caoie aad told her to brmg her niother fhen she an.d her father brought her motih.er iaside fhe rooin. She stated fhat she has seen the appellant, pressing neck ofher niotlier. 13. Defence has cross exaniined ttiis wito^ess at length, but has not beeu able to eUcit anyfbLing to discredit her testunony, Dhekaluram (PW-2) aiid Adhar Siagh (PW-3) have deposed that the appellaat has not raade extra judicial contession before fheni fliat on fhe date of mcident, his wife was going out from fhe house then he asked her where she was goiag, she repUed fhat who is he to ask her, fhercfore, he get annoyed aad caught hold ofher neck aad pressed it, due to which, she died. Defence has also cross exainuied these witiiesses at lengfh but has not been able to eMcit aayfbiiig in their cross exanitaation to discredit fheir testiiaouy. The factuni of extra judicial confession aad evidence of Dr. R.K. ,,^....s^. Pashi (PW-6) are szifficient for drawiag an iaference fh.at the appellaat has pressed fh.e neck of ftie deceased due to which she died. 14. As regards motive is conceraed, as per evideuce of extra judicial confession, deceased was goiag out froia house at about 10.00 pai ta tlie village aad when it was objected by Uie appeUaat and was asked fhat where she was going, iastead of aaswermg fhe same, deceased told fhat who was to appeUaat to ask her. On fhis, the appellaat i.e. husbaad of fhe deceased get aanoyed aad he caught hold of her neck and pressed it. This evidence clearly revealed that the present appeUantwas not haviag any iiitention to kiU his wite and he was provoked by fhe act of fhe deceased; he pressed her neck due to which she died, In these circumstaaces, fhe act of the appeUaixt does not travel beyond Section 304 Part I of the IPC. While convicting aad sentenciag fhe appeUaiit, fhe learaed Additional Sessions Judge has not considered fhe aforesaid aspect of the case aad thereby committed illegality. 15. Consequentiy, fhe appeal is parUy allowed. Conviction aad sentence of the appeUaat under Section 302 of fhe IPC is altered iato Section 304 Part I of the IPC. He is sentenced, to R.I. for 8 years aad fme of Rs.1000/-, m defazilt of payment of fme additional RJ. for 6 Bionfhs. -l ' Sd/- Sd/- 1 R.L.Jhanwar T.P. Sharma Judge Judge sunita