HIGH COiiRT GF CHH§??i$GAR§i IXT $§LA§P§§R $iVi$IGN EENCH: CafamrvHON’BLE Mr.T.P.$hanna & HON’BLE .“Jir.R.N.Chandrakar, JJ. Criminai Appea§ NaAS‘} sf 2W5 Appeiéant Bhadwa Ram Manghwar S/c Choie BadhamMamhwar, aged abaat 30 years, Gccupation Agiécuiturisi, Ric ViHage—Karmaha, Palice Statien Darima, i3istrict Surguja (C.G.) (in Jai§} Versas Responde§i f tate of Ch'nattisgarh, through Paiice ‘ Station Darima Crfminai Appeai under $ection 374 (2) 6f the Cr.P.C.) MLAbhw Tiwari, caunsei far ihé appeilani. MrsMadhunisha Singh, Panel Lawyer for the State/re3pcndent. J$5€3MENT {Passed on Qt“ September, 2G1 1) Per T.P.$harma, J.:- 1. Chaiienge in {his appeai is tc the judgment of canvictian & arder of ‘ sentence dated 294.2005 passed by the Sessions Judge. Sui’guja (Ambikaeur), in Seseions Triai Ne.4?1/2004, whereby & whereunder iearned Sessione Judge after hoia‘ing the appeiiant guilt far cemmission of cuipabie homicide amounting to murder of his wife Fuikuwar convicted him under Seoiion 3G2 0f the LRC. and sentenced to undergo imprisonment for tire. 2. Conviction is impugned on the ground that without there being any iota of evidence, the triai Court has convioteoi & sentenced the appelient as I aforementioned and thereby committed iiiegeiity. . As per case of the prosecution, deceased Fuikuwar, wife of the appeiiantx was having itiioit reiation with one Mentu and the appeiiant was having detinite knowiedge about the aforesaid tact. On 5.9.2004 at @ h). l about 3.30 am. at night the appeliant went from his house to {ieid far ease and then he came back in his hause he Saw Mantu and his wife Fu!kuwar in compromising positian, Mantu was commi mag intercaurse with his wife, then he caught hoid his wife and toid that she may §e ‘te ‘ne{ maiemai house. On account of ahercation he caueea‘ injuries by axe over her head and neck and caused her instantaneeus deem The appeilaht immediateiy went i0 Sudarehah Pandey WW4) aéeng whh hiecdstained axe and made extra jediciai confession. Thereaiier he weh‘t to the Peiice $tation aiong with Sudarehan Pandey (PW-1) where he iec‘ged mergcride E‘ .P/i ahd SLR. vide EXP 17. Rojnmacha was eiso recerded vide Ex.P.’2 . investigating officer proceeded for scene cf cccUrrence and after summoning ihe witnesses vide EXPZS prepared inquest ‘over the hc‘dy of the deceased vide ExPiS. Dead hedy of the deceased was sent for autcpey to Assistant Surgeon vide Ex.i3123i ’i BhPrakesh Keushai (PWJ) conducted autopsy vide EXP/10 and found foiicwing injuries:- (i) incised wound cf 3" X 1 1/2” x 3" in front of neck, internai organ iike trachea and eeophague were eiso feund out. (ii) incieee wound of 3” x i" x 3" over just beiow the nose. (iii) incised wound of 3" x " 2" x 3" over the neck. Cervicai bone was found out. (iv) Fracture of iefi jaw and another incised wound of 3" x 2" x 2" over ieft jaw. Cause of death was shock. During the course of investigation, the acpeiiant was taken into custody, he made disclosure statement of axe Vide EXPIZ and same was recovered at his instance vide Ex,Pi3. House of the appeaiiant was iocited which was opened after preparing panchnama vide ExPi-‘i where dead body of the deceased was found. Bioodstained and piain soii were recovered inside the house vide EXPJY. Seaied cicthes of the ceceased were recovered from inside the house vio‘e EX.Pi8. Spot map was prepared vide ExPi‘i 8. Statements of th witnesses were recorded under Section tot of the Cr.P.C. and after compieticn of investigation, charge sheet was fiied in *a‘t‘ ? J . me (3mm of Judiciai Magisti'ate First Ciass, Ambikapun wha én tum, cammitted the case to the Caurt of Sessions, Suirguja (Ambikaw). . én order to prave the gum of the accused/appeuant, ihe pmssacution has examined as many as e!even witnesses. Statement of the accused.’appeliant was recerded under $ection 313 of the Cr.P.C., in which he denied the cimumstances appearing against him and nieeded innocence and faiee impiicetien in.§he erime in question. . After providing opporiunity ef hearing to the parties, ieamed Sessinns Judge Eenvicted & sentenced the appeliant as aforementioned. . We have heard teamed counsei for the parties, perused the judgment impugned and rec‘ord of the triei Court“ . Learned counsei for the appeiiant submits that in the Eight of merg ‘vide EXP/1 and F.i.R. EXP/'1? iedged by the appeiiant himseli end‘exr’ra judicial confession to Sudarshan Pandey (PW—1), he is not dispuiing the fact that the present appeiiant has not caused homicidai death of his wife. Learned counsel further submits that as per evidence of the prosecution and non—oonfessionai part of Exs.P/'t and P/ti’, it is ciear that the deceased Fuikuwar, wife of the appeiiant and one Mantu were found in compromising position at iate night in the house of the appeiiant, then the appeliant has caused homicidal death of the deceased on spur v of moment and sudden provocation when he deprived of power of seif-control, therefore, the act attributed to the present appeliant does not travei beyond the scope of Section 304 Part-i of the i.P.C. . Learned counsei placed reliance in the matter of Ganga Ram tr. 3tate of MP, {2W0 (1} c.r.J.471 {that}, in which the High Court of Madhya Pradesh has heid that homicidai death caused due to sudden and grave provocation on knowing the liiicit reiation of his wife with another, then iconviction of the appeliant would be under Section 364 Part4 of the i.P;C. 110.0n the other hand, teamed Pahei Lawyer for the State/respondent supported the judgment impugned and submits that this is not a case in which the appeiiant has seen first time with Mantu or he was not having previous knowledge that his wife was not having iiiicit reiaticn wit. Mantu. mjuries fauna over ihe body 9f the deceased reveai that the present appei§ant has caused homicidai death of the deceased with intent to cause her death. 1.in order t0 appreciate the arguments advanced cn behaif ci‘ the parties, we have examined the evidence adduced on behaif cf the prosecution. 12in the present case, homicide! death of deceased Fuikuwar as a resuit of fatai injuries found over the body of the deceased has not been suhstantiaiiy disputed on behaif of the appeiiant, even otherwise it is estabtehed by the evidence of Dr.Prakash Koushai (PW-7) and autopsy report EXP/10. Death of the deceased was homicidai in nature. 13.As regards the compiicity of the appeiiant in crime in question, as per evidence of Sudarshan Pandey (PW-1), appeiiant has made extra judiciai confession before him that he has kiiied his wife, then he took the appeiiant to Police Station where he has iodged F.i.R. Non—confessionai part of merg EXP/1 and F.i.R. Ex.P11'r' reveals that at the time of incident he has seen his wife in compromising position aiong with Mantu, then he was immediateiy informed the incident to Sudardhan Pandey (PW—1) and aiso to Potice. Axe has been recovered from the appeiiant at his instance C vide Ex. Pi3 stained with bicod which k h..as been affirmed vide seroiogist vide EXPKSO. The aforesaid witnesses are sufficient to estabiish the fact that the appetiant has caused homicidai death of his wife. 14.As regards the question of intention, as per evidence of the prosecution, the appeiiant has seen his wife in compromising position with another person Mantu, some altercation took place, then he has caused homicidai death and by causing aforesaid tour injuries reveais that when he saw that his wife aiong with Mantu, that too at night in compromising position then he was deprived of power of seif-oontroi and by crave and sudden provocation he has caused aforesaid injuries. in these circumstances, the act of the appeiiant squareiy faiis within the ambit of Section 304 Part-i of the i.P.C. and not under Section 302 of the i.P.C. 15.Whiie convicting and sentencing the appeiiant under Section 302 of the i.P.C. the triai Court has not considered the aforesaid circumstances and i \ \i thereby committed iiiegaiity. VWE‘ 15H): fhe foregoing reascns, the appea! is pamy aiiowed. Csnviction of the appeHant under Section 392 of the I.P.C. is aitered to Sect§on 3G4 Part-l af the LP‘C. and senienced to undergc; Ri far ten yearS. The appeimni is in custody, he is entitied for set off fer the period of detention. ‘_.‘, Sd/- 1 Sdl- ‘.\ } T. P. SharTEA i‘ R.N.C'handl'ak31' i Judge if Judge