HiQH COURT OF CHHA:TTi AT iSSO! 'lOAKi •ti^r^F^''i^i CORAM :Hori bis Mr.T.P.Sharma & Hon'ble ivlr.R.L.Jhanwar, JJ. (in Jai!) ApBeai N0^88 of 2007 iabulal Chouhan S/o. Ratan Singh Chouhan Aged about Oceupation - LaboiTrer l/o. Viliaae Dhaurabhata Distt.-Korba (C.G.) Vs. State of Chhattisgarh, Through: Magistrate Korba. (Criminai Appeal under Section 374(2) of Cr.P.G.) .Shrawan Chande!, counsei for the appeitant. r.D.K.Q'waire, Govt.Advocate forthe State/responden! KS\ Bt, (PassedQn8tnAprii,2011) T.P.Sharma, J. 2. Chaiienge in this appeal is to the judgment of conviction & order of sentence dated 7.2.2007 passed by the Sesslons Judgs, Korba, in ?essions Triai No.40/2005, whereby & whereunder leamed Sessions Judge sfter hoiding the appeitant guilty for commisslon of cuipabie homicide amounting to murder of tiis wife Basanti Bai convicted him under section 302 of the Indian Penai Code and semsnced to undergo imprisonment for iife and fine of Rs.1000/-, in defauft of psyment of fine to furiher undergo R.i. for slx months. Convtetion is impugned on ihe ground that without any tota of evldence, the trlai Court has convicted and sentenced the appeiiant as aforementioned and thereby committed iilegaijty. As per case of prosecution, Basanti Bai (sinee deceased) wife of the appeliant was residing with the appeiiant at viiiage Dhaurabhata, Poiiee Station Kartia, Distt.Korba. On 21.3.2005 between 5 to 10 pffi. the appeliant assauited hjs wife Basanti Bai by stick or some soft objsct and fc' caused injur/ and nsgtected for her treatment tili 25.3.200. On 26.3.; she succumbed tothe injurles. The appeliant was not present 'm his house at the time of her death. Ganesh Ram went to the Po!tee Stetion and Sodged merg vide Ex.P/5. FJ.R. was iodged vide Ex.P/6. investigatin< officer proceeded for scene of occurrence and after summonjng the wiinesses vide Ex.P/11, inquest ovsr dead body of deceassd Basanti Bai was prepared vide Ex.P/13. Dead body was seni for autopsy to Primary Heaith Centre, Kartala vide Ex-P/'SA where Dr.B.S.Narwariya (PW-1) conducted autopsy vlde Ex.P/3 and found foilowing injures:- One bruise over back of shouidsr of 12.5" x 7" Ul 1 £.>-> (") (iil) (iv) Bruise over ieft shouider of 4" x 2.5". Bruise over 7th cervical vertebra of3" x1 %' Bruise over ieft hand near shouider. Trachea and other internal parts were con^ Cause of death was syrscope. Patwari prepared spot map vide Ex.P/1. One chameta (ieather soft object for beating drum) was seized from the appeiiant vide Ex.P/10. Statement of the witnesses were recorded under Section 161 of ihe Code of Criminal Procedure (for short 'the Code') and after compjetion of jnvesiigation charge sheet was fiied in the Court of Judiciai Ciass, Korba, who in turn commitSed Sessions, Korba. 5. in order to prove the guilt of the accused/'appeitant, prosecutson has examined as many as fourteen witnesses. Accused was examined under Section 313 of the Code, in which he denied the circumstancss appearinc against him and cialmed innocence and false impiication in the crime tn question. The appeilant has examined defence witness Sonamati, mother of She appellant who has eieposed that Basanti Bai was ill and the appeiiant had gone for srrangement or money for her ireatment. During his absence deceased dsed as a resuit of illness and Tatse report has been lexiged against the appeifant. 6. After providing an opportuntty of hearing to the parties, teamed Sessions Judge, Korba has convtoted and sentenced the appeilant as aforementioned. ^ , ( ^ s !»k;- --3> - Ws have heard learned counsei for the parties, psrused the judgment impugned and record of the triai Court. Learned counsel for the appeliant submits that in the tlght of evidence of Sonamati (DW-1), mother of the appeiiant, evidence of other witnes^s and medicai evidence that deceased Basanti Bai died as a result of injury, he is not disputing the fact that deceased has noi died as 8 resuit of iiiness but has died as a resuit of injury found over the neck and congested of internal parts. His mother Sonamati was not present at ths time of incident. Oniy the appsiiant and the deceased were present at ths time of incldent, therefore, he was under obiigatiOQ to offer ©xpisnatton thaf who has caused injury and how Basanti Bai died. in absence of any expianation in ferms of Section 106 of the Evidence Act he is not dlsputing the fact thaf deceased Basanti Bai has not died ss a result of injury and the fact that Shs appetlani has caused injury. Learned counsel further subrrsits that the present appeliant has not caused any injury to his wife wlth intent to cause her deafh but on accouni of quarrsl he has caused simpSe injury by chameta (objsct for beatsng cirum). The deceased alive for four days. During the course of her liiness as a resutt of injury the presenf appeiiant has tried to arrange money for treatment, even he has toid to other viitagers that he is going to took his wife to hospitai for treatmeni but unfortunately on account of poverty his wife suecumbad to simpie Injuries which was prima facie not sufficient for causing any grievous hurt, therefore, the act attributed to the appeliant does not travei beyond the scope of Section 304 Part-i! of the i.P.C. o)n the other hand, iearned State counset oppcses the appea! and submits that the appeliant who was under obligation to secure iife of her wife but instead of securing her life he has caused injury and even after causing such injury he has not taken any step for her trsatment. After appreciating the evidence avaiiabie on record, iearned Sessions Judge has rightiy convicted and sentenced fhe appeiiant as aforementioned. 10. in order to appreciate the arguments advaneed on behaif of the parties, we have examinsd the evidence adduced on behalf ofthe parties. 11. in the present case, homicidai death as a resutt of fatai injury found ever the neck of deceased Basanti Bai has nof been substantlaiiy disputed on •loefqo jeijseei yos 's'i uodeaw.snojeSuep Aq Ajntui aioA8u6 pasnea sey eq ^ey} s.'wqs S^M ssij ^o qiesp sieiujun ^o ssneo QIQ sem uoiqAft 8,!M siy jo >|3su ey} JSAO Ajnfui pesneo sey 34 yiq 8j!M 514 o^ seunfus jesai pesneo ueAe JG ii!>! ot uoRustUi Aue SuiAey pu SBM 94 TO a^i/A ssq o} Ainfui pssneo SBM eq soueAouue jo isjjenb eaios ^o lunooae uo »e^smoijs siyi 'Ajnfu! jsyyni Aue pesneo pu sey eq yiq eiiM si4 llpi o^ A^sunyoddo luarayns SuiAey SBM }ueij9dde sq} unesse piesejoie 6u!sneo jayv •3,iM siy p }uaui}89^ ^S |]IM 94 pue unesse jayyry pu i|!M sq yei^ sjsqio o»p|o? SB^ liesiuiq ^Bijsdde eiji Ainfu! qons Buisneo jeyv •psip peseeoap aqi sSeqiiOLuesq MO|S |euj3iU! jo unssj B se ^BIQ sjeedds i| -Ainfu! (818} jo snojsSuep Aue psoipu tou seij joioop ai|i 'sAep sejqi o) OAiq jo^ isesj }B eA!|B sem lueusdde 34110 siiM 'Ajnfui SUSMSOSJ jayy 'fl •e^uw sitj o? AjnEuj pesneo seq }ue||adde lussajd 34^ ley^ aiqissod aq pinoM eauais^u! Aiuo 34} 'uoiteuejdxs Aue ^o soussqe ui •uo!}euejdxa Aus gKjeyo pu sey iuejiadde aq} inq 'seynfui paAiaosj sqs Moq pue 9j! siq o^Ajnfui pesneo sey oi) ysi^ uoReueidxe js.yo 0} uoiieBijqo jspun SBM tueijsdde 941 'Asejoes us peniuiutioo eous^o pue ssnoq Jieijt ui ^usssjd SJ3/A suosjed 134^0 ou pase8;^p 941 pue luejiadde ayi tdsoxe }U8pioui 10 UOISSJLUUJOS P 3Ui 84} Vrf 'a}IM 814 P ^USlUiBSJ} JOi SUiAjt SaW j|9SUi!4 a|-l •psseeoap 94^ p Apoq aiji JSAO punoj ejeM seynfut jnoj •luepioui jo 3uji? syt |B esnoy e^ ui luessjd sew }ue|isdde 94} yai^ siqissod eq pifioA^ soua.ie^ui A|UO usy? 'jeqisSoi pajspisuoo aje seouspiAe eseq} jj -££. •3^,'ft Siq JO tUSLU^BSJ? JO^ feuoui io ^iSLuefiuejje JQJ psy? seu, uos ssy pue ftissaid py SSM eys iuapious p SLU!? eQt ie 'iuejjedde 94} ^o jsyjoiu '((.-AAO) BBiusuog jo esuapiAS jed sy •souspiAS Aue peonppe pu seq uoiffiossoxi 'souapiAs essy} tdeoxg 'peep puno^ seAft }uej|9dde 34? ^o s^ 5u!U9AS ^o auiR sqi te pue Qft'A aq |o tuaiu^esj} jo^ JSBSI suios 6u|A!0 joj ujiii pa^ssnbsj tueiiadde sy) seX)Z"£'£Z^0 'sti^ sst| paijnesse seij iesnqeg yew pausJOjui SBA* sij aX!Z'£'frZ uo 'fe-AAd) uiejiissueo jo souspiAS jsd sy "esnov siy uj ^uassjd pu SBM iue||edde (uessjd eiji •peep puno^ SSM a^im siy sAep OM} jsye pue SUM sii| o^ dsis OM}jo suo pegnesse SBU }UB!j8dde syt (g-AAd) Uisy jn>|SMl jo eouspiAe jed se 'uojissnb ui euius 341 ui ^ueijadde/pssnooB sq} jo A?i3ijduioo 94} spjeSej sv •zi, "e/d'xa yodgj Asdoine pue (l-AAd5 eAue/sueN-s-g-ja io aouspiAS 8lj} Aq pai|S!|qet83 OSJB si ti 'esuvueyio ueAe 'iuBijadde sqi p ^eysq -i7 - nt ¥1 -^ 15. Evidence adduced on behaif of prosecution is oniy sufRcjent to estabiish the fact Shat the present appsiiant has caused grievous dangerous weapon. At the iime of causing such injury over the was having knowiedge that by his act the deceased may die when his wife was affected by such injury, even then the not serious about her ireatment shows that he was havjng knovriedg®that by his act his wie may dre. The aforesaid evidence cleariy reveais that the present appeiiant has not committed culpabie homicide amounting to murrier of his wife but his act squarely faiis vflthin the ambit of Sectlon 304 Part-iloftheS.P.C. 16. Whiie convicting and sentencing the appeliant under Section 302 of the I.P.C. the triai Court has not considered the aforesaid aspect and thereby committed iilegaiity. 17. For the foregoing reasons, the appeai is partiy allowed. Convietion of the appeliant under Section 302 ofthe i.P.C. is hereby attered to Sectlon 304 Part-11 ofthe i.P.C. However, instead of imprisonment fer iife and fine of Rs.1000/-, he is hereby sentenced to fhe period aiready undergone i.e., since 28.3.2005 tiii today for about 5 years and 11 months. He be reieased forthwith, if not required in any other case. ~~—~~~ -—^——^^ - _ Sd/- ^RShanna | Ji. Judge Judge ^ /) ^ 'ar ^