APPELLANT: (In Jail) HIGH COURT OF CHHATTISGARH. BILASPUR Crimina) Appeal No.961 pf 2004 Gagru @ Bijjuram @ Gopesh Madhia S/o Muddaram Noreti, aged 28 years occupation labourer R/o Village Atlanar PS Narayanpur Distt. Bastar (C.G.) RESPONDENT: Versus State of Chhattisgarh through Narayanpur Distt. Bastar (C.G.) PS {Criminal appeal under Section 374 (2) Criminal Procedure Code 1 973} Present: Mr. Ratindra Mishra, counsel for the appellant. Mr. D.K. Gwalre, Goyt. Advocate for the State/respondent. Division Bench: - Upn'ble hflr. T.P. Sharma and Hon'ble Mr. R.N. Chandrakar. JJ ORAL JUDGMENT (27-7-2011) T.P. Sharma. J: - 1. Challenge in this appsal is to the judgment of conviction & order of sentence dated 17-3-2004 passeri by the Sessions Judge, Jagdalpur, in Sessions Trial No.532/2003, whereby & whereunder learned Sessions Judge after holding the appellant gui!ty for commission of culpable homicide amounting to murder of his v/ife Sukmati, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, Sukmati (since deceased), wife of the appellant, was having illicit relation with pne Lallesh Pathak which was known to neighbours. On being asked, Sukmati has also admitted her illicit relation with Lallesh Pathak, before the appellant. On 1 8-8-2003 in the evening, the appellant along with Sukmati (since deceased) consumed liquor, thereafter they took dinner and at the time of sleeping the appellant told Sukmati not to continue illicit relation with Lallesh ^, Pathak on which Sukmati got annoyed, thereafter, the appellant pressed her neck and caused her death. After causing death of Sukmati, the appellant fled away from the house and went to Narayanpur, he made extra judicial confession before his elder sister, Rajman Poyam (PW-2) & Satish Bakshi (PW-4). Satish Bakshi (PW-4) produced the appellant before the police station. The appellant himself has lodged FIR vide Ex.P-7. On 19-8-2003, Kenda Singh Netam (PW-1) lodged merg vide Ex.P-9. Spot map was prepared vide Ex.P-10. After summoning the witnesses vide Ex.P-1, inquest over the dead body of the deceased was prepared vide Ex. P-2. Dead body was se'ht for autopsy to Primary Health Centre, Kondagaon vide Ex.P-4(A). Dr. (Smt.) Kumud Kunwar (PW-3) conducted autopsy vide Ex.P-4 and found abrasion over right shoulder, froth coming from mouth, ligature mark/marks of finger over neck of the deceased. Cause of death was strangulation and death was homicidal in nature. On 24-8-2003, Satish Bakshi (PW-4) produced the appellant before Police Station Kondagaon who lodged FIR vide Ex.P-7. Viscera ofthe deceased was seized vide Ex. P-8. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Kondagaon who committed the case to the Court of Sessions, Jagdalpur where trial of the case was conducted. 5. In order to prove the guilt of the accused, the prosecution has examined as many as six witnesses. The accused was examined under Section 313 ofthe CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Sessions Judge, convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant submits that conviction of the appellant is based on extra judicial confession made by the appellant before Satish Bakshi (PW-4) and considering evidence of the prosecution, he is not disputing the fact that the appellant has not caused homicidal death of the deceased, but he submits that evidence of the prosecution and FIR lodged by the appellant himself reveal that on sudden provocation, the appellant has caused homicidal death of the deceased. Therefore, the act attributed to the appellant does not travel beyond the scope of Section 304 Part-11 ofthe IPC. 9. On the other hand, learned State counsel opposes the appeal and submits that the aforesaid factum of sudden provocation is self- generated and the appellant is responsible for the said sudden provocation. After appreciating evidence available on record, the trial Court has rightly convicted & sentenced the appellant in the aforesaid manner. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 11.1n the present case, homicidal death of the deceased as a result of strangulation has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. (Smt.) Kumud Kunwar (PW-3) and autopsy report Ex.P-4 that death of the deceased was homicidal in nature. 12.As regards complicity of the appellant in the crime in question, death of deceased Sukmati was intimated by Kenda Singh Netam (PW-1) vide merg intimation Ex.P-9. Autopsy report Ex.P-4 reveals cause ofdeath of the deceased as strangulation. As per evidence of Satish Bakshi (PW- 4), the appellant, who was previously working with him as carpenter, has made extra judicial confession before him that he has caused homicidal death of his wife and is absconding, on which he advised the appellant to surrender himself before the police and he took him to Police Station Kondagaon. In para 3 of his cross-examination, he has specifically admitted that on account of illicit relation of his wife with another person, the appellant has committed the aforesaid offence. 13.The appellant himself has lodged FIR vide Ex.P-7. Confessional part of Ex.P-7 is not admissible in evidence in terms of Sections 25 & 26 of the Evidence Act and other non-confessional part of the FIR is admissible in evidence. Non-confessional part of the FIR reveals that at the time of commission of offence, the appellant was present in his house along with his wife Sukmati (since deceased), no other person was present in his house, he asked his wife relating to her illicit relation with Lallesh Pathak and also directed her not to continue such relation in future whereupon she got annoyed and the appellant also got annoyed. These facts ^. Soma mentioned in the FIR are not confessional statement, inter alia, these are non-confessionai statement and can be safely relied upon by any of the parties, which shows that on account of illicit relation of his wife with Lallesh Pathak and the fact that even she was not ready to discontinue such relation, the appellant has caused aforesaid injuries. This shows that the incident happened on sudden provocation without any premeditation, but at the timeof causing such injury by strangulation for a considerable long time, the appellant was having ample knowledge that by his act, the deceased may die. This evidence is sufficient to establish the fact that the appellant has commifted homicidal death ofthe deceased on sudden provocation without any premeditation and thus, the act of the appellant does not travel beyond the scope ofSection 304 Part-1 of the IPC. While convicting & sentencing the appellant under Section 302 of the IPC, the trial Court has not considered the aforesaid aspect of the case and thereby committed illegality. 14.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. Considering the act attributed to the appellant, especially strangulation up to death of the deceased when she was alone, the appellant is sentenced to undergo Rl for ten years. He is in custody since 24-8- 2003. He is entitled for setoff for the aforesaid period of detention. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge