HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon’ble Shri T.P. Sharma & Hon’ble Shri R.N. Chandrakar JJ. Criminal Appeal No. 565 of 2007 Appellant Khonte Uraon s/o. Baja Uraon, (in jan) age 40 years, Caste Uraon, Occupation— Farmer, r/o. village Tirkela, P.S. Lakhanpur, Dist. Sarguja (CG). Vs. Respondent. State of Chhattisgarh through P.S. Lakhanpur, Dist. Sarguja (CG). (Criminal Appeal Under Section 374 (2) of the Cr.P.C.) Present: Mr. Abhay Tiwari, counsel for the appellant. Mr. Neeraj Mehta ,‘ Panel Lawyer forthe State. ORAL JUDGMENT (Delivered on 1877-201 1) Per T.P., Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 25-6-2007 passed by Sessions Judge, Ambikapur, in Sessions Trial No. 16/2007, whereby and whereunder learned Sessions Judge after holding the appellant guilty for the commission of culpable homicide, amounting to murder of his wife, Sukhin Bai, convicted the appellant under Section 302 IPC and sentenced him to undergo life imprisonment and to pay fine of Rs.100/—, in default of payment of me to undergo additional RI for 15 days. Conviction of the appellant is impugned on the ground that without there being any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per the case of prosecution, unfortunate deceased Sukhin Bai was residing with appellant along with her kids. On 6-11-2006 at night deceased Sukhin Bai was out of her house along with her daughter — Sampathi Bai (PW/3) aged about ten years. Appellant searched his wife and on account ofangr-y he assaulted his wife by hands and fists and caused internal injuries as result of which his wife became unconscious and on 7—1 1-2006 at 9.00 p.m. she died. Bolo Ram (PW/1) went to Police Station and lodged FIR vide Ex.P/1, merg intimation was recorded vide Ex.P/7, Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex.P/2 prepared inquest over the body of the deceased vide EXP/3; one petty coat of the deceased was seized ~ vide EXP/4, clothes of appellant were seized vide EXP/5, spot map was prepared vide Ex.P/8; clothes of deceased were seized vide EXP/9 and dead body of the deceased was sent for autopsy to Community Health Centre, Lakhanpur vide EX.P/6-A where Doctor P.S. Kerketta (PW/7) conducted postmortem vide Ex.P/6 and found the following injuries; i) haematoma & abrasion over right frono temporal region of scalp in the size of 4” x 4"; ii) swelling over right side of face; iii) abrasion over left forehead in the size of 2” x 2"; iv) abrasion over left cheek region in the size ef 3" x 3”; v) abrasion over right Scapuiar region to rib region superiiciai in the size of 6" X 4”. On internal examination — i) multiple fracture of right fronto temporal bone was found; ii) brain membrane was ruptured and iii) haematoma was found inside the bone and opined that cause of death was due to head injury and death was homicidal in nature. 5. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in‘the Court of Chief Judicial Magistrate, W Ambikapur, who in turn committed the case to the Court of Sessions Judge, Ambikapur. Learned Sessions Judge, received the case on transfer, who framed charge under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. 6. ln order to appreciate the guilt of the appellant, prosecution examined as many as [nine witnesses. Accused person was also examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and ‘ pleaded his false implication and innocence. After affording an opportunity of hearingkto the parties, the learned Sessions Judge convicted and sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment Mr. Abhay Tiwari, learned counsel appearing for the appellant frankly admits that in the light of evidence of the witnesses and circumstances appearing against the appellant, he is not disputing the fact the appellant has not caused homicidal death of deceased Sukhin Bai. He further submits that as per documentary and ocular evidence, appellant has not caused injuries to Sukhin Bai by any dangerous weapon or with intent to cause her death, but he caused injuries to deceased by hands and fists on account of annoyance when she along with her ten years old daughter was moving out of his house at night, therefore, the act of appellant does not travel beyond the scope of Section 304 Part l of the IPC. in support of his arguments he placed reliance in the matter of . Paras Sai vs. State of Chhattisgarh (Criminal Appeal No. 990/2004) passed by this court on 3-9-2010. On the other hand, Mr. Neeraj Mehta, learned Panel Lawyer appearing on behalf of the State opposed the appeal and submitted that the present appellant has committed culpable homicide amounting to murder of his wife with intent to cause her death and the court below has rightly convicted and sentenced the appellant as aforementioned. in order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. 12. in the present case, homicidal death of the deceased Sukhin Bai as a result of injuries is not substantially disputed on behalf of the appellant. On the other hand, it is established by the evidence of Doctor P.S. Kerketta (PW/7) and autopsy report (EXP/6) death of Sukhin Bai was homicidal in nature. 13. As regards complicity of the appellant in the crime in question is concerned, present appellant has‘ not disputed the fact that appellant has not caused homicidal death of his wife Sukhin Bai. On the other hand, evidence adduced on behalf of the prosecution and first information report vide Ex.P/1 are sufficient for drawing inference that appellant/husband of Sukhin Bai has caused homicidal death of deceased Sukhin Bai. 14. As regards question of intention is concerned, as per initial case of prosecution, on account of free moment of deceased Sukhin Bai along with her daughter aged about ten years at night, appellant annoyed and caused injuries to his wife —deceased Sukhin Bai by hands and fists and he has not caused any injury by any weapon. This shows that the present appellant has caused injury not with intent to cause death, but at the time of causing such injuries he was having sufficient knowledge that by such act the deceased may die. Evidence adduced on behalf of the prosecution is sufficient to draw inference that the appellant has not committed homicidal death of’ ” the deceased with intent to cause her death and this act does not travel beyond the scope of Section 304 Part-1 of the IPC. While convicting the appellant under Section 302 of the IPC and sentencing him to undergo imprisonment for life, the trial Court has not considered the aforesaid material aspect of the case and thereby committed illegality. §"{. 'x J @ For the foregoing reasons, we are of the considered view that the act of the appellant squarely falls within the ambit of Section 304 Part l of the Indian Penal Code. 17. Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is altered to Section 304 Part 1 of the IPC and the appellant is hereby sentenced to undergo RI for eight years. \ Sdl- e Sd/- R.N.Chandrakar TP Shanna 1 Judge l Judge