HIGH COURT OF CHHATTISGARH : BILASPUR Coram : Hon’ble Shri T.P. Sharma and Hon’ble Shri Rajeshwar Lal Jhanwar, JJ. Cr.Appeal No. 479 of 2005 APPELLANT : Bishambhar Das, S/o Mohar Das (in Jail) Manikpuri. aged about 50 years, Resident of' Village Chamari Chowki, Khandsara. P.S. Bemetara, District Durg. Versus The State of Chhattisgarh Through Station House. Officer, Police Station Bemetara (Choki Khandsara), District ‘ Durg (CG) t CRIMINAL APPEAL UNDER SECTION 374 (ZIOF THE CRIMINAL PROCEDURE CODE, Appearance: V i‘ RESPONDENT ‘ Shri Abhay Tiwari, counsel for the appeilant Shri Ashish Shukia, Government Advocate for the State ORAL JUDGMENT (Delivered on 2.204.201 0) The foiiowing judgment was deiivered 'by T.P.Sharma, J. Chailenge in this appeai is to the judgment of conviction and order of sentence dated 13.05.2005 passed by the Additionai Sessions Judge, Bemetara, Dist. Durg in Sessions Case No. 279 of 2004 whereby and whereunder after holding the appeliant guilty for the commission of culpable homicide amounting to murder of his wife Kiran, the Court below convicted the appellant under Section 302 of the l.P.C. and sentenced to life imprisonment and fine of Rs.2000l- and in default to undergo further Rl for 6 months. 2 . The conviction is impugned on the ground that without any iota of. evidence, the Court below has convicted and sentenced the appellant as aforesaid and thereby committed illegality. / E 3. Brief case of the prosecution is that the present appenant was suspecting the character _of Kiranbai, who is second wife of the appeiiant. On 10.10.2004 at about 10.30 a.m. the appeiiant and the deceased went to the house of P.W.3 Koushalya Bai (house of Kotwar). The appeiiant and Kiranbai asked about her husband whereupon she reptied that he went to attend Polio Programme and then the appeiiant went to school to meet Kotwar and Kotwar told him that he will cometo home. The appeiiant again returned to Kotwar’s house. The appeiiant asked his wife to go to police chowki whereupon she refused to go to police chowki and told her husband only On arrival of Kotwar she will go ‘to police chowki. On this, a quarrel took place between the spouses. The accused dragged Kiran Bai and pushed her on the ré‘ad on the ground of suspicion relating to her character. The ~ accused sat over the‘abdomen of Kiranbai and after taking out a knife from his pocket and gave a blow over her abdomen She shouted for help The accused fled from the spot by scooter after hurling the knife towards a feld y PW3 Koushalya Bar went to police station and lodged FIR ExP 19 Registered F.l.R. was recorded vrde Ex.P.16. Investigating Offcer left for scene of occurrence and after summoning witnesses vide Ex.P.8, inquest over the dead body of Kiranbai was prepared vide Ex P 9 Dead body was sent for autopsy to Government Hospital Bemetara vrde Ex P 1A P W 1 Dr AM Shnvastava conducted autopsy vrde Ex P1 and found the followrng injuries: 1. One stab injury on hypo—chodrium region of 4 x 1 1/2 x 4 cm. l \ , 2. Intestines were protruding out and intestine valve was found cut. Blood clotted was present in the abdominal cavity. Mode of death was shock. Merg was recorded vide Ex.p.23. investigation took place. Spot map was prepared vide Ex.P.14. Bloodstained and plain soil was recovered vide Ex.P.15. Accused was taken into custody and made disclosure statement of a knife vide Ex.P.10. The same was recovered at the instance of the accused vide Ex.P.11. Shirt stained with blood was recovered from the' accused vide Ex P 12 Sealed cloths of Keribai was seized vide Ex.P.13. Seized articles were sent for chemlcal examination Vide Ex P 21 Presence of blood over knife and shirt of the accused was confnned Vlde Ex P 24 ’3'— 4. Statements of witnesses were recorded under Section 161 of the Code of the Criminal Procedure, 1973 (for short ‘the Code’). After completion of investigation charge sheet was filed before the A.C.J.M. Bemetara who in turn committed the case to the Court of Sessions, Durg. The iearned Additional Sessions Judge received the case on transfer for trial. 5. ln order to prove the guilt of the accused, the prosecution examined as many as 16 witnesses. The accused was examined under Section 313 of the Code where he denied the circumstances appearing against'him and innocence and false implication is claimed. The accused has also examined to.w.1 PriFadas Manikpurj. o.w.2 Harkunwar and o.w.3 Shakun Bai. o.w.1 Hiradas Manikpuri has deposed that the Car was registered in the name of Kiranbai apd she Was nominee of accused. D.W.2 Harkunwar and D.W.3- Shakun Bai deposed‘in their statement that Purushottam was found in their house for committing theft of the watch. 6. After affording opportunity to the parties and after appreciating the evidence adduced by the prosecution, the learned Additional Sessions Judge ~' has convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties at length, perused the record of Court below including impugned judgment. 8. Counsel for the appellant vehemently argued that the appellant has not committed any offence and he has been falsely implicated in crime in ' question. Even othenlvise the evidence adduced by the prosecution revealed ; that only one injury has been caused by the appellant. When he came to know the illicit relation of his wife with other person, he was deprived of power of self control and sense and by grave and sudden provocation he had caused such injury. Therefore, his act does not travel beyond the scope of Section 304 Part—l of the l.P.C. 9. Learned counsel for the appellant placed reliance in the matter of , zuGanga Ram v. State of M.P., [2000 (1) C.Cr.J.. 470 (M.P.)] in which the High Court of M.P. has held that injury caused after depriving the power of self control and by grave and sudden provocation had caused the injuries after knowing the fact that his wife was having illicit relation with other person. The actis not culpable homicidal amounting to murder but this act of au' the accused squareiy fails within the ambits of Section 304 Part i of the I.P.C. He further placed reliance in the matter of Mahesh v. State of Madhya Pradesh, 1996 (6) Supreme 609, in which the Supreme Court has held that on account of death by sudden fight and the singie blow of pharsa on head, the offence would fall under Section 304 Part i of the I.P.C. 10. Counsel for the State, on the other hand, vehemently opposed the appeal and submitted that in the present case, the accused has not only caused injury on sudden provocation but also has intentionally caused the injury with intent to commit the murder of his wife. The prosecution has: proved its case while adducing the evidence of solitary witness P.W.3 Kaushaiya Bai and her evidence is sufhcient for drawing an inference that the appellant has‘caused culpable homicide amount to murder of the deceased. Learned State Counsel placed reliance in the matter of Mahesh Balmiki @ Munna v? State of Madhya Pradesh, JT 1999 (6) SC 279 and argued that}. the Apex Court has Held that even in case of single blow, offence may be of murder punishable under Section 302 of the I.P.C. and it depends upon circumstances of the case. Placing further reliance in the matter of Manubhai Atabhai v. State of Gujarat, (2007) 10 SCC 358, learned counsel for the State argued that the nature of intention has to be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon death and single blow of 6" knife and piercing 6 cm. into body and affecting vital organ (liver) is a‘, commission of murder. 11. ln order to appreciate the arguments advanced on behalf of the patties, we have carefully and minutely examined the material evidence available on record. ln the present case, the homicidal death as a result of ante-mortem fatal injury on the person of deceased - Kiranbai has not been substantially disputed on behalf of the appellant othenNise also established by the evidence of Dr. A.M.Shrivastava P.W.1 and autopsy report Ex.P.1 which revealed that a stab wound was found in the abdomen affecting the intestines and valve and blood clots were seen in the abdomen. The death was homicidal in nature. 12. r As regards the complicity of the appellant in crime in question, P.W.3 Kaushalya Bai is eye witness, who has categorically deposed that at the time I -‘g’ of incident she was present in her house. Appeilant came to her house and deceased was also present in her house. Some aitercation took piace between them .which she stopped. Then the appellant told her wife — Kiranbai (since deceased) to go to police outpost with him which she refused and then the appellant dragged his wife and pushed her down in the road and sat over her chest whereupon the deceased shouted for help. On her shouts, this witness came to the deceased, who asked for‘water. Then the appellant left the spot by motorcycle. Injury was found below the right of chest and blood was coming out from the injury. She went to the police statiorl ‘and lodged a report. The version of this witness has been substantiallycorroborated by the evidence of P.W.5 Purushottam. a child witness. Before recording his evidence, the Court below has taken care and after ensuring that the witness is able to answer the questions put to him, the Court examined him’r This witness denied the suggestion that he has stolen the watch and he snatched the ornament of Kiranbai. The evidence of these witnesses is sufficient for drawing an inference that the appellant caused fatal injury to the deceased Kiranbai, wife of the appellant. 13. As per evidence of P.W.14 Sheeluram, Head Constable of Police Station Bemetara, the appellant has made disclosure statement of knife vide Ex.P.10 and length of knife is 9 1/2 “ long having blade of 5 1/2" and the same has been recovered at the instance of the accused vide Ex.P.11. l 14. In Ganga Ram v. State of M.P. (supra) it was held that the injury caused was on sudden tight or after depriving the power of self-control and ’ under grave and sudden provocation without any premeditation, the offence would not be murder but would be culpable homicide not amounting to murder punishable under Section 304 of the l.P.C. whereas in Manubhai Atabhai v. State of Gujarat it was held that even in case of only single blow the offence would culpable homicide amounting to murder and nature of intention has to be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant ”upon death. ln case of only one injury, it is difficult to hold that the offence would be under the category of Section 304 Part l of the l.P.C. and the Court is required to examine the circumstances in which the injury was caused. ln the present case; the appellant and the deceased were present in the house -g~ of Kotwar. In an altercation, the appellant was asking the deceased to go to police station and after her refusal he dragged her in the road and after laying down her he sat over her chest and caused single injury on the abdomen by knife. 15. This is not the case in which the appellant came to know for the first time about the illicit relation of his wife. As per evidence of the prosecution, the appellant was suspecting the character of the deceased. At the time, he was interesting to take her to police station but when she refused then he dragged her on the road and after sitting over her chest he has caused knife blow over the abdomen resulting in‘to her death. The autopsy report revealed” that intestine valve was found cut and intestines were protruding out inside the‘aBdomen. This is not the case in which the accused has intentionally caused injury and after causing such injury he has tried to save her life but after causing injury he fled from the spot by scooter. Even he has not lodged any report. If these circumstances like nature of intention, kind of weapgff/ used. the part of the body hit by knife, the amount of force employed and injury found over the abdomen are taken into consideration, the appellant has intentionally caused injury with intent causing culpable homicide amounting to murder of the deceased. 16. After appreciating the material evidence available on record, the learned Additional Sessions Judge, has rightly convicted and sentenced the appellant as aforementioned. t’v. 17. On close scrutiny of the evidence adduced on behalf of the prosecution, we do not find any illegality or infirmity in the finding of the Court below requiring any interference of this Court. 18. Consequently, the appeal is devoid of merit and is liable to be and is ‘ dismissed accordingly. Sd/— ‘1’ Sdl- R.L.Jhanwar T.P.Sharma if Judge Judge