§E SP ONDENT : S 1sr;c-arg3a.4f : CO ON : NVI CTI /s 302 of V L1e on mrlsonmen KIMML artAL H |Hl||||||HlH||H|ll|\|||||!| CF00061 607 00 ‘h” ( Wiminaf 31 COURT OF: MADHYA‘PRADESH 'AT“ JABABP R“ »MINAL &PprAL No 3\ OF 1997 Lawywwi WM uwxcAmQ/eohm 1&1) Cy Q C3 h 40 year eé pur ollce station—Kamlespu AP P uLL. AXT ‘ Dasuwa allaSgkalluwa Korw Accused ’ son cf Debba— Camru ageu s rslent of Vlllage— Malt wf stric't-Ls‘arua (m, VERUS S ‘he utate of Nadhya Pradeshx/ tnrough Pollce Staclsn &amlespu DttSuf ‘SBNTEE NC: U ,* f lg ipc .p c. %rlsl out of the Judgment and order o onv1ct10n gassed bn 8 1 1§§ by Shrl J.K rial N T o. a i Kll ag _of\M;P. v/s. DaSu alas auwa Kor ein aggrieve e ugmen an‘ore $mQ iven‘ Sessions Judg g§y e Ap pp f l the nblkaur the aellant preers thls appea on oilowln acts and rouns f conv1ctlonLate 9 u;‘ K k ‘ \ L U W Dmsxon'VBenc } P hgw Digj agi hr / 1 ‘ ‘L W~ f c ? 3.4 Bg d by tH jdt d&r é(yH o od 8 1 £g f gd. xx“ HIGH COURT OF CHHAT'I‘IMARH A’l‘ BIhASPUR Criminal Aggeal No. 4841 1997 Dasuwa alias Kalluwa Korwa Vs. if; state of Madhya Ptadesh’ (Now Ohhattisgarh) u ‘ Judgment i $ . \V’ ' HIGH COURT OF CHHATTISGARH AT BILASPUR Ctlminal Amal No. 4841 1997 Dasuwa alias Kalluwa Korwa Vs. State of Madhya PradesliINow Chhatu'sgarh) cam‘s: non'ble sm madam & Hon'b‘le slui mup Raouheb Dashan/un, aJ. Present :- Shri J.S.. Buaik, Counsel for the appellant. shri M.P.S.Bhatia. Panel Lawyer for the State. Judmen; lQeHvered 9n g7-Q-m5) Per Dilip’ Raosaheb Deshmukh. J. This appeal is directed against the judgment dated 08th Janualy, 1997 in Sessions ’I‘n'al No. 311/95 by Shri J.K.S.Rajput, Sessions Judge, Ambikapur, District- Sarguja whereby the appellant was convicted under Section-302 of I.P.C. for committing murder of his Wife Sukwan' Bai and was sentenced to imprisonment for life. *§_ The factual matrix‘ in brief is that on 27-08-1995. the appellant along with his Wife Sukwari Bai had gone to the Tibbati Camp Kunia for selling county liquor. While returning Sukwan' Bai was canying about one 65 half K.G. Iice with her. On way the rice fell down. There was a quanel between the appellant and Sukwari Bai. The appellant assaulted Sukwari Bai by kicks and hsts. Sukwari Bai fell unconscious. The appellant brought her home. She succumbed to the injuries. The appellant ‘ informed Sonu about the death of his Wife WherellponSonw) iv PW—2 lodged F.I.R. in Police Station-Kamleshwaxpur on 28-08- 1995 at about 4 P.M.Head Constable Kumbkaran Rajwade, PW-7 wrote Merg intimation vide EXP—5 and reached the spot on the same day and held inquest vide EXP-8. The dead body of Sukwan‘ Bai was sent for post- mortem. Dr. R.S. Singh PW—5, who conducted the autopsy found the following injuries‘on Sukwari Bai :- sl? Contusion size 8 cm. x 4 cm. irregular shape on leii cheek, rcddish black coloumd. 2. ‘ Left eye upper lid is congested. s 3. Contusion size 5 x 5 cm. irregular in shape, bluish black, skin supine on forehead 2 cm above middle of left eyebrow. 4. Contusion with swelling on leii side of forehead just anterior to left ear, multiple in number, irregular in shape. 5. Contusion size 3 cm x 1 c‘m on<neck lower posterior side with bluish colouration. § 6. Laceiated wound 3 x 3 cm on outer siiie of left ankle joint. 7. Contusion on anterior lower part of left knee joint sim 1 x 1 cm, irregular in shape. 3. 0n internal examination Dr. Singh PW-5’ found that the brain on the left dental and temporal side was congested with intracranial haemorrhage. Throat was reddish in Ecolour. The mouth and oesophagus were filled with bloody nuid. The small intestine was hlled with gas and lliquid mud with pungent odour. Vide report Ex.P-4 Doctor Singh opined that the cause of death was coma . due to head injury which was homicidal in nature. 4. After completion of investigation, the appellant was prosecuted under section-302 of the I.P.C. The_accused- / @ appellant abjurad the guilt and pleaded in defence that on returning home he did not nnd his wife. 0n the next day, he went in search of Sukwan' Bai anti found her lying dead on the side of mad and brought her dead body home. No evidence in defence was adduced. The prosecmion examined as many as 8 witnesses. The learned trial Judge Ielying, upon the medical evidence came to the conclusion that death of Sukwari Bai was ‘ “homicidal. Reliance was placed on the testimony of Losang Sirong PW-l to conclude that the appellant was last seen with the deceased immediately prior to the occurrence and on the testimony of Pahru PW-6 in paxa~3 to conclude that the appellant was the author of the crime of murder. /‘>. ' 1’ ”x , 5. Learned counsel for the appellant has assailed the impugned judgment on the ground that the evidence led by the prosecution does not bring home the guilt of the appellant for an od‘ence under section-302 of the I.P.C. beyond reasonable doubt. He also placed reliance on para—7 of the cross-examination of Dr. R.S.Singh PW-5 while arguing that the deceased was intoxicated and injuries sustained by her could have been caused due to nequent falls. On the other hand, learned counsel appearing for the State argued in support of the Judgment of the trial Court. We have heard the rival contentions and also perused the record of Sessions Trial No. 311/95. Dr. R.S.Singh, Assistant Surgeon PW—S has proved the injuries sustained by Sukwari Bai which have been mentioned in para-2 (Supra) by us and has opined in para-5 of his testimony that death of Sukwari Bai was due to coma as a result of head injury which was sumcient in the ordinary course of nature to cause death. He has also opined that the death of Sukwan‘ Bai was homicidal in nature. Although in para-7 of the cross—examination it has emerged that there was some liquid in the small intasu'ne of the deceased having a‘ foul odour and could have been liquor, yet this by itself is not su$cient to conclude that the deceased had fallen several times While being highly intom'cated. There is nothing in the cross— i examination of the prosecuu'on witnesses to pmbablise ‘ ‘ghat Sukwaii Bai had fallen several 1imes on the mund. 1 Pahru‘PWzé in para-3 has clearly stated that on being asked about the cause of death of Sukwari Bai, the apimliant baa told him that duping the quarrel he had assaulted Sukwari Bai by kicks and hsts due to annoyance. This testimony is wholly umebutted in cmss- examinan'on. The testimony of Losang Serong PW-l shows that the appellant was with the deceased Sukwari Bai shortly before she sustained the injulies and at that time the appellant was litiing her and saying that she should come home. In our considered opinion, the abovementioned unrebutted testimony ofmsang Scrong PW—l, Pahru PW-6 coupled with the testimony of Dr. R.S. Singh PW-5 establishes beyond doubt that the appellant had inflicted the injuries sustained by Sukwari Bai, as a result of which death of Sukwaii Bai was caused. It is thus established that the appellant had caused the death of Sukwari Bai, f\ The only quesu'on which requiies Our consideration is as to what oh‘ence was committed by the appellant. There is nothing in the entire evidence led by the prosecution to show that the appellant had the motive or intention to cause the death of Sukwari Bai. The 'unrebutted testimony of Pahru PW-6 also suggests that the appellant had assaulted Sukwari Bai by kicks and dsts upon annoyance. We have considered the medical evidence of I/V Dr. R‘ S. Singh F’W-5 regarding the injuries sustained by Sukwaqri Bai and also the evidence of Losang Serong P.W.1. In oiu‘ opinion, the evidence led by the prosecution does not establish that the accused-appellant had the requisite intention for causing the death of Sukwari Bai, though it can be safely inferxed that the, accused had the lmowledge that the injuries sustained by Sukwali Bai were likely to cause her death. _V: 8. Having considexed the evidence led by the pmseeution in its entirety, we are of the considered opinion that although the oE'enee under section-302 of the I.P.C. is not established against the appellant, yet the requisite knowledge that the injuries inflicted by the appellant on Sukwari Bai were likely to cause her death can safely be attributed to the appellant and therefom we hold the appellant guilty under secn'on-304 Part-II of the I.P.C. 9.‘ In the result. the appeal is partly allowed. The conviction of the appellant under section-302 ofvethe I.P.C. and the sentence imposed thereunder is set aside. Instead, the appellant is convicted under Section-304 Part—II of the I.P.C. and sentenced to rigorous imprisonment for 10 years. The appellant has suh'ered incarceration nom 30-08—1995 till date i.e. for a period of more than 10 years. The appellant shall therefore be set at liberty M i ’ 27-09-2005 Sdl- Witllifnm‘equired in any other case. E y / sd’_ Dilip Raosaheb Deshmuk Judge Fakhruddin Judge i 27:09-2005 h .