sC^ IHiWIRiafe. HIGH COURT OF CHHATTISGARH AT BiLASPUR Criminai Appeai No.806 of 2005 Division Bench: Coram: HON'BLE MR.T.P.SHARMA& HON'BLE MR.R.L.JHANWAR, JJ. APPELLANT Smt:JaRni Devi W/o. Lats Bhalla Korwa, (!n Jaii) aged about 47 years, Occupation Agricuiturist-Housewife, R/o Nonpani Manoharpur, Police Station Sankargarh, Distrtet ^urguja (C.G.) Versus RESPONDENT State of Chhattisgarh (APPEAL UNDER SECTION 374 (2) OF THE Cr.P.C.) Present:- Mr.Avinash K.Mishra, cpunsel for the appeliant. Mr.D.K-Gwaire, Government Advocate forthe State. JUDGMENT <ORAU (Passed on 5th January, 2011) T.P.Shanna, J.:- Chalienge in this appeat is to the judgment of conviction anci order of serrtence dated 20.4.2005 passed by the First Addttional Sessions Judge, Ambikapur in Sesstons Trial No.375/2004, whereby and whereundsr leamed First Additionat Sessions Judge aftsr holding the appellant guiity for commission of cuipable homicide of herhusband Bhalia amounting to murder convicted her under Section 302 of the indian Penai Code and sentenced to undergo imprisonmert for life and to pay fine of Rs.500/-, in default of payment of fine to further undergo \'.: R.l.forsixmorrths. 2. Conviction is impugned on the ground ttiat without there being any iota of evidence, trial Court has convicted and sentenced the appeiiant as aforementioned and thereby committed iliegality. 3. As per case of the prosecution, on the fateful night of 19.7.2004 at about 8 p.m., appeilant, wife of deceased BhaSia, was quarreling with her husband i.e. deceassd Bhaiia. On accountof her iilicit relation with one 'o ^ *' 4. 5. woman Somari @ Samari, she was angry and shouting and thereafter, she assaulted her husband by stick over his head, he beeame unconK;ious and lastly he died on the second day. Ratna (PW-2), son of deceased Bhalia, has todged the F.I.R. vide Ex.P/1. Merg intjmation was also recorded vide Ex.P/2. Investigating offcer proceeded for scene of occurrence and after summoning the witnesses vide Ex.P/3, inquest over dead body of deceased Bhalia was prepared vide Ex.P/4. Daad body was sent for autopsy to Community Heaith Centre, Sangargarh where Dr.N.L.Bhuarya (PW-5) conducted autopsy vide Ex.P/7 and found fbllowing Injuries:- y (i) One iacerated wound of 4 %" x %" x Vz" over right tempo parietal region. (ii) Parietat bone beneath aforesaid injury was found fracture. Cause of death was as a result of excessive haemorrage due to injury and death was homteidal in nature. During thecourse of investigation, bloodstained and piain soil were recovered from the spot vide Ex.P/12. Spot map was prepared by Investigating officer vide Ex.P/13. Accused/appellant was teken into custody, she made disciosure statement of stick vide Ex.P/5 and the same has been recovared at her instance vide Ex.P/6. Patwari aiso prepared spot map vide Ex.F/9. CSothes of the deceased were seized vide Ex.P/10. Seized artictes were sent for chemicai examination and presence of blood was confirmed on sttek seized from the appeiiant vide Ex.P/15. Statements of the witnesses were recorded under Sections 161 of frse Cr.P.C. and after completion of investigation, charge sheet was filed in the Court of Judiciai Maglstrate First CSass, Amblkapur, who in turn committed the case to the Court of Sessions, Ambtkapur, from where teamed First Additionai Sessions Judge, Ambikapur received the case ontransferfortrial. ^;: In order to proVe the guitt of the accused/appeilant, th^prosecution has examined as many as tweive witness^.-After affording an opportunity of hearing to the parties, iearned First Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 7. 8. We have heard Mr.Avinash K-Mishra, ccninsel for the appeltant and Mr.D.K.Gwalre, Govemment Advocate for the State, perused the judgment impugned and record of the trial Court. Learned counsel Tor the appeliant frankly admits and submits that in the iight of admission of causing Injury by the appeilant to her husband by stick he is not disputing the fact that the appellant has not caused homicidal death of her husband but submits that the circumstances in which the appeilant has caused single injury to her husband shows that the act attributed to the appetiant does not travel beyond the scope of Section 304 Part II of the indian Penal Code. Learned counsel further submits that the appeltant has caused injury on sudden quarrel and on sudden provocation without any premeditation and intention for causing such injury. On the other hand, leamed State counssl supported the judgment impugned and submits that white causing fatal injury over the head by stick the appellant was havlng knowledge that by her act, she writl kilt her husband. 9. In order to appreciate the arguments advanced on behalf of ttie partjes, we have examined the evidence adduced on behalf of the prosecution. 10. In the present case, homicidal death as a resuit of fata! injuryfound over the head of the deceased has not been sub^antiaily disputed on behalf of the appeliant, on the other hand, also established by the evidencs of Dr.N.L.Bhuarya (PW-5) and autopsy report Ex.P/7 and death was homicidal in nature. 11. As regards the complicity of the appellarrt in the crime in question, the appeliant herself has admitted the fact that she has caused injury to her husband in her examination tecorded under Section 313ofthe Gr.P.C. Same is also established by the evidence of Sukhmaniya (PW-l)whom she has made extra judicial confession and Somari @ Samari who has seen the incident. The evidence adduced on behatf of the prosecution and admission of the appeliant are sufficient for drawing inference that the appeltant has caused homicidal death of her husband Bhalia. 4 12. As regards the question of motive, in case of direct evidence motive losses its importance, even otherwise, motive only aids in criminaiity and can be inferred on the basis of nature of injury, kind of weapon used, part ofthe body effected and other similar circumstances. 13. In the present case, as p?r initial case of the prosecution and evidence adduced on behaif ofthe prosecution, appellant and dK^ased were wife and husband, both were quarreling, the appeilant was biaming to her husband that he was having iilicit relation with one Somari,shs was angry, she was shouting and has caused singie biow by stick over the head of the deceased, the dsceased feit down and became unconscious, he was aiive for more than 12 hours and thereafter he died. Ths appetlant has not caused repeated injunes or has not acted in cmel manner. This shows that at the time of causing injury the appeHant was having knowiedge that by her act the deceased may die; but has noi caused injury with intent to cause his death, therefore, the act of the appellant does not travel beyond the scope of Section 304 Part II of the indian Penat Code. 14. While convicting the appeliant under Section 302 of the indian Pena! Code, the triat Court has not considered the circumstances in whteh the appellant has caused injury and thereby committed illegality. 15. For the foregoing reasons, the appeat is partly aitowed. Conviction of the appeilant under Section ^)2 of the Indian Penal Code is altered to Section 304 Part !i of the Indian Penal Code and sentencsd to the custodial period aiready undergone i.e., since 22.7.2004 tiil tajay about more than 6 years and 5 months. She be released, if not required in any case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhaiswar 1