HIQH COURT OFCHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLESHRI R.L.JHANWAR, JJ. Criminal Appeal No. 990/2004 APPELLANT (in jail) RESPONDENT Paras Sai, S/o Chhandu Ram Uraon, aged 35 years, occupation - Agriculture, resident of village Jamthedi, Police Station Sitapur, District Surguja (C.G.) VERSUS The State of Chhattisgarh, Through Police Station Sitapur, Dist. Surguja CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CRIMINAL PROCEDURE CODE Appearance: Shri Abhay Tiwari, counsel for the appellant. Shri S.R.J.Jaiswal, P.L. forthe State. ••• % ORAL JUDGMENT (Passedon 03.09.2010) PerT.P.Shamia,J, The challenge in this appeal is to the judgment of conviction and order of sentence dated 05.11 .2004 passed in S.T.No.279/2004 by the 5TH Additional Sessions Judge (F.T.C.), Ambikapur whereby and whereunder after hQlding the appellant guilty for commission of culpable homicide amountingto murder of his wife - Chahmuni, the Court below convicting the appellant under Section 302 of the I.P.C. sentenced him to life imprisonment. 2. The conviction is impugned on the ground that without iota of evidence, the Court below has convicted and sentenced the appellant and thereby committed illegality. 3. 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After affording anopportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. Shri Abhay Tiwari, learned counsel for the appellant and Shri S.R.J.Jaiswal, learned counsel for the State are heard. Perused the impugned judgment including recordsofthe Court below. 8. Learned counsel for the appellant vehemently argued that in the present case, as per prosecutioncase, the appellant has caused single injury on account of illicit relation of his wife with another person on sudden provocation, otherwise the appellant has caused single injury without any intention. Therefore, ifthe case ofthe prosecution is admitted at its face value, then the act of appellant does not travel beyond the scope of Section 304 Part-1 ofthe I.P.C. He placed reliance in the matter of Ganga Ram v. State of M.P., 2000 (1) C.Cr.J. 470 (M.P.) wherein the High Court of Madhya Pradesh held that injury caused to wife by the husband on sudden provocation on knowing the illicit relation of his wife with another person, the act of the appellant does not travel beyond the scopeof Section 304 Part-1 ofthe l.P.C. He further argued that as per the evidence of the prosecution witnesses, the appellant was insane at the time of commission of offence and was not able to understand the result of act committed by him. 9. On the other hand, learned counsel for the State opposed the appeal and submitted that the present appellant has committed culpable homicide ampunting to murder of his wife and the Court below has rightly convicted and sentenced the appellant as aforementioned. 10. In order to appreciate the arguments advancedon behalf ofthe parties, we have examined the evidence available on record. In the present case, homicidal death as a result of fatal injury on the body of deceased - Chahamuni has not been substantially disputed on behalf of the appellant, even otherwise it was established by the evidence of P.W.9 Dr. M. Nikunj and autopsy report vide Ex.P.14 which revealed that one lacerated wound and multiple fractures of bones were found over the body of the deceased and brain matter was coming out which shows the gravity ;?"" "^'- •s" of offence and injury found over the head of the deceased, therefore, fhe death was homicidal in nature. 11. As regards complicity of the appellant in crime in question, the eonviction is based on following eircumstantial evidence: i. That the appellantwas present in the room of deceased and door was closed from inside along with dead body of deceased. ii. The appellant made extra judicial confession before P.W.1 Dhaluram. 12. P.W.1 Dhaluram has deposed in his evidenee that he was informed by the brother of the appellant that appellant has caused the death of his wife whereupon he went to the house of the appellant and found the door closed from inside, then at the direction of some other villagers he broke the door and as soon as he entered he found the dead body inside the room and on being asked the aceused told him that he has killed his wife but he has not assigned any reason. This witness himselfwent to police station and lodged F.I.R. vide Ex.P.1 and also recorded merg intimation vide Ex.P.2. The defence has cross-examined this witness who admitted in cross-examination of his evidence that prior to 15 days of the incident mental status of the appellant was not good and even he was found sitting near the dead body of his wife inside the room. P.W.2 Ganesh Ram Singh, before whom seizures were made, has alsoadmitted in paragraph 4 of his cross-examination that mental condition of the appellant was not sound since last 15 tp 20 days. P.W.4 Bhagat Ram has also admitted the same thing. Investigating Officer Ramnath Yadav P.W.8, Head Constable hasalso admitted in paragraph 4 of his evidence thatat the time of investigafion he came to know that the appellant was not having sound mental status at the time of commission of such offence. 13. Althoughthe appellant has npt taken specific evidence of insanity but on perusal of evidence of investigating officer and other witnesses, it revealed that the appellant was mentally disturbed. At the time of commission of offence may be on account of the fact that his wife was having illicit relation with another person, he used Musar as weapon of offence and caused injury on her and even after causing injury he had not • t ~\ -..l«<*i-.t n ~1- w tried to flee from the spot and was found on the spot nearby dead body. This evidence is not sufficient for drawing an inference that the appellant is insane and is unable to understand good and bad but is sufficient for drawing an inference that the appellant has not intentionally and knowingly caused the fatal injury to his wife. He has not caused repeated injury. These facts are sufficient for drawing an inference that without any pre- meditation and on sudden provocation he has not caused any fatal injury to his wife but on coming to know that his wife 'was having illicit relation with another person he was deprived of power of self control and by grave and sudden provocation had caused injury. 14. After appreciating the evidence, the learned Additional Sessions Judge convicted the appellant under Section 302 of the I.P.C. As held in the case of Ganga Ram v. State of M.P. Ganga Ram v. S(a(e of M.P., wherein the act of the appellant does not travel beyond the scope of Section 304 Part 1 of the I.P.C., in the present case, considering the fact mentioned in F.1.R. and conduct ofthe appellant, the appellant has not caused any fatal injury with intent to causing death of his wife butat the time ofsuch injury he was having knowledge that by his act his wife may die, therefore, the role attributed to the appellant does not travel beyond the scope of Section 304 Part 1 of the I.P.C. White convicting the appellant, the Court below has not considered the aforesaid circumstance and thereby committed illegality. 15. On close scrutiny of the evidence, we hold that the act of the appellant is termed as having been caused on account of sudden and grave provocation and not with intent to cause death. 16. Gonsequently, the appeal is allowed. The conviction and sentence under Seetion 302 of the I.P.C. awarded by the Court below are altered to Section 304 Part-1 ofthe I.P.C. andsentenced the appellant toR.I. for8 years. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^ ^ f ^ 7 .w"<cj-