'"^>l"' ^i. N1^ ^ HiGH COURT OF CHHATTiSGARH AT BILASPUR ^ •M^'"" !^s^ ABpeiSant '$In Jai!) CORAM :Hon'bte Mr.T.P.Sharma & Hon'bie Mr.N.K.Aaarwai, JJ. f^riminai Appeai No.645 of 200S LiRhanram S/o Sevakram, Caste Halba, aged about 45 years, Occupation-Labour, R/o Mohera, Police Station Magariod, Dlstrict Dhamtari (CG) 1/1vs. State of Chhattisgarh, Through Poiice Station Magar'od, Dlstrict Dhamtari (CG) (Criminal Appeai under Section 374(2) of Cr.P.C.) Mr.Vishwanath Goswami, counsel for the appeiisni. Mr.J.L.Lohani, Pane! La^'vysrforthe SSate/respondent. mi-i l^;-;. •Si^ 1. 2. (Passed on 11th November, 2011) T.P.Sharma. J. Chailenge in this appeai is to the judgment of conviction & order or sentence dated 19.7.2006 passsd by the Additionai Sessions Judge, Dhamtari, In Sessions Triai No.399/2005, whsreby & whereunder iearned Addiiionai Sessions Judge after hotding the appeiiant guiity for commission of cuipable homicide amounting to murder of his wlfe Koushiya Bai convicted him under section %)2 of the Indian Pena! Cods and sentenced 10 undergo imprisonment for iife and fine of Rs.100/-. Conviction is impugned on the ground that without any lota of evidence, the triai Court has convicted and ssntenced ths appeilant as aforementioned and thereby committed Hiegaiiiy. As per case of prosecution, on She fatefui day cf 16.9.2005 at aboiit 2 p.m. the appeiiani quarreied with his wife Koushlya Bai and caused fatal injury ov'er her chest by axe and caused hsr instantaneous death. The appeiiant made extra judlciai confession before Bhujuram (PW-1), Ganeshuram (PW-2), Ramesh Kumar (PVV-3), Komaisinah Som (PVV-4), w M .^ ivianihir (FvV-5) and Guptaram (PVv-6). Naresh Kumar (PW-7) nas D. witnessed the incident. Kotwar Kishunram (PW-13) went to ths Poiics Station and iodged the F.LR. vide Ex.P/16. ?i/i8rg was reoorded yide Ex.P/15. investigating officer proceeded for the scene of occurrence and after summoning the witnesses vide Ex.P/1 inquest was prepsred over the body of ihe deceased vide Ex.P/2. Bioodstained and piain soii were recovered from the spot vide Ex.P/5. Dead body was sent for autopsy to Government Hospitai, ?«'iagariod vide EX.P/SA where Dr.Sharda Thakur (P'W-9) conducted autopsy vide Ex.P/8 and found incised wound of 5 crn. x 2 cm. over sternum and fracture of lower sternum bone. Cause of death was heamorrage and syncope and death was homicidsi in nature. Durin{ the course of investigation, the appeliant was taken into custedy, he made disciosure statement of axe vide Ex.F/3 and same .vas recovered at hls instance vide Ex.P/4. Bloodstalned cioih or the appeliant v/as seized vlde Ex.P/5. Seizedarticies were sent for chemical exsmination. Statement oftne witnesses were rscorded under Section 161 ofthe Code of Criminai Procedure (for short 'the Code') and after compietion of jRyestigation charge sheet was fised in the Court of Judicial Magistrate First Class, Dhamtari, who In turn committed the csse te the Court or Sessions, Raipur, from where the Additional Sessions Judge, Dhamtari received the case on iransfer for trial. in order So prove the guiit of the accused/appeiiant, the prosecution has examined as many as sixteen witnesses. Accused was examined under Section 313 of the Code, in which he denied the circumstances appearing agalnst hlm and ciaimed innocence and false implication in the crime in question. The appeliart has taken specific defence thai at the time of quarreiing he was hoidlng axe, he and his wife v.'ere snatching the axe and during the course of snatehing his wife received mjury over the chest resuitlng into her death and he has not committed homicidsl death amountina to murder of his wlfe. After providing an opportunity of hearing to the partles, iearned Sessions Judge, Dhamtari has convicted and sentenced the appeliant as aforementioned. ^ SiSSS We have heard iearnsd counse! for the parties, perused ths judgmeni impugned and record ofthe trial Court. Learns -earnsd counsei for the appeiiani submits that in the present case incident has not been wltnessed by the wiinesses. Conviction is substantialiy based OR extra judlciai confession made by the appeilant, but as per evidence of Bhejursm (PW-1), Komaistngh Som (Pvv-4) and Manthir (PW-5), the present appeiiant has made statement before t'nem that during the course of quarrei and whiie the deceased was snafc'ning axe she received injury, which is sufric'ienf to provethat the appaiiant has not caused any injury to his wsfe. Learned counsei further submits that evsn ift'ne factum of extra j'udiciai confession Is considered as a frue, then the act sttributed to the present appeilant does noi travei beyond the scope of Section 304 Part-ii ofthe i.P.C. On the other hand, iearned Panel Lawyer for ihe State opposes the appeai and submits that the appeliant has caused fatai injury with intent to cause death of his wifs and sfter appreciating the evidence avatiabie on record fhs trisl Couri has convicted and sentenced the appeilant as aforemsntloned. 10. In order to appreciate the arguments advanced on behaif of the pariies, we have examined the evidencs adduced on behaif of the parties. In the present cass, homicidai desth as a resuit of fatai injury found over She chest of deceased Koushiya Bai has noi been substantiaiiy dispuied on behaif of the appeilant, even otherwise, it is aiso estabiished by the evidence of Dr.Sharda Thakur (PW-9) and autopsy report Ex.P/8 that deaih of ihe deceased was homicidai in nature. 12. Conviction is based on extra judicial confession made by ths appeiiant before Bhujuram (PW-1), Ganeshuram (PW-2), Komaisingh Som (PVV-4), Manthir (Pi/V-5) and Guptaram (PW-6) and evidence of Naresh Kumar (PW-7), '.vho has specificaily deposed that initlaily his father anci mother were quarreiing, therssfter his father t.e. the present appe!!ant assauited his mother by axe, but in his cross-examination he has admiited that •when he came after sometime, he saw the injured body of his mother and the appsiiant was present near the place of incldent. The appellant his presence on the spot. hlmself has admitted -^ , ,rf@ t.iiSi"" .^^?3s iiB^"^ fSSSS ^•f'^"s-y--9W!:f''S'^S 15. 13. Defence has cross-examined these witnesses at iength. in cross- examination of Bhujuram (PW-1), Komaisingh Som (PW-4) and Pvianthir (PW-5) they have admitted that ths appeiiant has infermsd them that during the course of quarrel whiie the deceased was snatching axs at ihat fime she has received injury, but Ganeshuram (PW-2) and Guptaram (FW-6) have speclficaiiy deposed that the appeilant has made exira judiciai confession before them that he has kiiied his wife Koushiya Bai. Thereafter they went to the house of the appeilant where injured dead body of Koushiya Bai was lying. i4. Defence has not suggested anything to this witness to discredit their testimony reiating to factum of extra judiciai confession. There Is mateRai coniradiction in the evidence of Bhujuram (PW-1), Komateingh Som (FW-4) and Manthir (PVv"-5) relating to extra Judicisi conresslon and expianaSion made by the appeilant that during the course of quarrei while the deceased was SRatehing axe has received injury. n the iight of evidence of Ganeshuram (P^V-2) and Guptaram (PW-6) and contradi'ctory evidence of other witnesses reiating to extra judiclal confession, the oniy inference wouid be possibte that ihe present appsiiant has made extra judicial confession before the aforesaid wiinesses that he has caused homicidai death of his wife, but during the course of evidencs, Bhujuram (PW-1), Komalsingh Som (PW-4) and Manthir (FW-5) have nof supported She aforesaid faci. Evidence of Ganeshuram (Pyv-2) and Guptaram (PVv-6) are sufficient for drswing inference that the present appeiiant has caused homiddal death of his wife. 16. As regards t'ne quesuon of motive, the prosecution has not proved the motive for commission of offence. Deceased Koushiya Bal is wife of the appeiiant. Quarrei between husband and wife is not unnaturai. Singie injury has been found over the chest of the deceased. The appeiiant was hoiding axe, he was having ampie opportunity for causing fatai injury over vitai part of the body, but the appeiiant has not caused another injury except ons found over the chest. Thte evidence cieariy indicates that the act attributed to the present appeiiant does not Sravei beyond t'ne seope of 304Part-il ofthei.P.C. r>.. ^ 17. Whiie convicting and sentencing the appeiiant uncier Section 302 of the i.F.C.-the tria! Court has not considered the aforesaid ciroumstances and thereby committed iilegalrty. 18. For the foregoing reasons, the appeai is partiy aliowed. Convlction of the appeiiant under Section 302 ofthe i.P.C. is hereby aitered to Section 304 Part-ii of the i.P.C. and instsad of imprisonment for life and fine of Rs.100/'-, he is hereby sentenced to the custodiai period i.s., ssnce 17.9.2005 tiii ioday for about six years and more than two months. He bs reieased forthwith, if not required iri any other case. ' Sd/- T.P. Sharma Judge Sd/- N.K. Agrawai Judge ^J\' i'7' '