VU/ @4/ M HIGH COURT 0? CHHATTIS6ARH AT BILA3?UR Cr§m§m§ Aggecd No. 1152/94 AWELLANT (In Jaii} Muajan s/o Bishura Ummu, residem‘ of viHage Udari, aged 35 year‘s, Palice Sm'h'on Dhaurpm‘, Disfriw Sarguja, (MP) (New C6) VE?§$U$ ReswNaENT The $?m‘e of Madhya Pradesh Through Paiice Smféon, Dhaurpur, Djsfricf Sarguga MP. (New C6) Appearance: Shri r4§ Agrawai, Sn Advoca‘fe wwh $m‘i’. Ifu Rani Mukharjee, counsei for we appe§§an'?. Shri 5udhir gajpai, Dy. Governmam Advoca‘m for The Smfe. Div§sier1 gench: - Hwfbie Shr§ T.P. Shawna & Hen'b§e $5M R. LEmrnwarJJ QRAL JUDéMENT {22.03‘201Q) Per» ‘E‘. 9. Shawna 3'. i. Chailemge §n fhis appeai is To ‘rhe judgmén‘l‘ of convic‘fion and order of sen‘rence da‘fed 16.8.1994, passed by fhe Sessiois Judge, Ambikapur in S.T.No.161/91, whereby and w§1ereundem ‘rhe iearned Sessions Judge, affrer hoiding The appeiianf guil‘fy for cémmission of cutpabie hamicide amouming To/murder- of his wife s -Manesh wari , to convic‘red The, appeiicm’r under SecTion 302 of 1’he IPC and sen‘renced 1‘0 undergo imprisonmem for life. 2. The corwic?ion impughed is chaiknge on The ground “Hm? wi’rhou? any io’m of evidence suffiden‘r for convicfion of fhe appellant Cour? beiow has convicfed and sem‘enced The appeHam and Thereby commWTed ii%eacx§i‘h,i. \ J g/ i QC, 3. The pm3ecm‘aon case in brief is ‘fhaT on The fa'refu! day of 5.1.1991 a? abou? 5.00 pm” #he appeHanT and his wife Maneshwari (si'me deceased) were preseiqf in ’rhe house of The appellant Maileshwari misbehavecl wilh lhe appellant Then The oppellan‘r ge‘r‘ angry and on grave pmvoca'l'ion, he assaull'ecl his wife wilh fis‘i‘s and legs, asa resull‘ of which, Maheshwari died on The spot. Deha‘li Nalishi was recordea vide Ex. 'E/l. Merg was recorded videi-ExP/lO. The Inves‘liga‘iing Officer- lefl‘ for The scene of occurrence and offer summoning fhe wi‘rnesses vide Ex. P/Z, inquesf over fhe dead body was prepared vide Ex. P/3. Nails of The appeilanf were cuf and seized vide Ex. P/4. Finally FIR. was lodged vide Ex. P/9. Dead body was seni- for aui'opsy. ‘i‘o Governmen“? Hospi‘ml, Ambikapur vide Ex. P/11. Dr. RS. $ingh (PW—E7) conduc'red au‘i’opsy vide Ex. P/12 and found foilowing injuries i i; Abrasion of 1 x é—cm over ief’r hand iii Haema‘i’oma over- ief’r side of neck of g 1 X T 1 '5 .iii. Abrasion of 3 x 1" beiow lef‘i ear iv. Abrasion over ief’r cheek of 1 x g and abrasion over right cheek of .‘L x g 1n 1n 1“ \ a One lacer'a‘led wound on The back side 'of nigh? ear of 1 x g ”N d vi. INmcr'aniai hemorrhage and ex1'mduml haemorrhage was present The Docmr opined 1‘hcn‘ The cause of deaTh was shock, as a . resui? of exfmdumi and infracerbmi haemorrhage. Sealed do‘rhes of The deceased were seized vide Ex. P/5. Pa‘rwar'i prepared spM map vide EX. W6. SfaTemen'rs sf ‘r‘ne wifnesses were recorded under SecTion 161V of fhe Code of Crimina! Procedure, 1973 (for shor‘r Jrhe Code). 4. Affer comp§efion of ‘i’he invesTigaTion, charge shee'r was fiied’ before The Courw‘ of Judicia! MagisWm‘e Firs? Ciass, Ambikapur, who in ‘turn, commi‘Hed The case To fhe Cour‘r of Sessions Ambikapurl where the frial was conducfe‘d. 5.» In order To prove The guil‘r of The accused/appeiian‘r prosecufion examined as many as 17 wi‘messes. The accused was examined under Section 313 of The Code, where he denied The circums‘rances appearing agains? him, pieaded innocence and faise implication. 6. Afier affording oppormni'ry of hearing f0 The par‘ries, The iearned Sessions Judge has convicTed and senTenced The appeiianT as aforemenTioned. 7. We have heard Shri HE. Agrawai, 5r. AdvocaTe wiTh SmT. ITu Rani Mukharjee, iearned counsei for The appeiianT and Shri Sudhir Bajpai, learned Dy. Goi/ernmenT AdvocaTe for The STaTe, perused The uiudgménT impugned and record of The CourT beiow. 8. Learned counsel for fhe appe§iam vehemerwly argued Thaw“ i‘n Th2 iigh‘f of evidence of 5onkuawar (PW—14), mm‘her ef The deceased and mmher-in—law of 'a‘he oppeélant he is nof dispu‘l’ing 'fhe fac? The? on accoum of quarrel, appeHan’r has caused injury To The deceased by hands and fis?s. He fur'rher submiwed Thm‘ in The presen‘r case, considermg The na‘fur'e of injury, circums’rances in which, injury was causedy convici‘ion of The appeiian‘i‘, under Secfion 302 of The IPC is no? susTainabie under The law. A? fhe most convicfion of The appeHani' fails under Sec‘rion 323 of The IPC. He placed reliance on The decision of ‘i'he Allahabad High Courl', rendered in The maTTer of 5mf’. 5ridew’ V. 5mm, 1974 CR1, LJ'. 126 (V 80 6' 37:}, wherein iT has been heid ThaT causing simple injury by Throwing bricks, deaTh of The person is noT a murder, buT The offence is punishable under SecTion 323 of The IPC. 9. On The oTher hand, learned counsel for The 5TaTe opposed The peTiTionand submiTTed ThaT The appellanT has caused mulTiple injuries To his wife, which shows ThaT The appelianT has caused inTenTionally deaTh of his wife. i« 10. In order To appreciaTe The argumenTs advanced on behalf of The parTies, we have examined The evidence adduced on behalf of The parTies. In The presenT case, homicidal deaTh as a resulT of anTe morTem faTal injury has noT been subsTanTiaily dispuTed by The appelianT, on The oTher hand, iT is esTabiished by The evidence of Dr. RS. Singh (PW-i7) and auTopsy reporT Ex. P/12. 11. As regards The compiicify of The accused/appellan? in crime in quesfion, especiaHy in commission of cuipable hom§cide, amo’tm'ring To murder of f'ne deceased is concerned, convic‘rion is based on “rhe evidence of Sonkunwar (PW—14), moTher of The deceased and moTher in iaw of The appellant who has deposed rho? she was siffing in fhe cour‘r yard of The house of ’r'ne appeNanT aT The time of incide’n'i'. Appeikm’r and deceased quarreled ‘rhen fhe appeHanT fisfed on *rhe neck of The deceased and ofTer felling down her, caused faTal injury on her neck by his leg. In cross-examinaTion, she has sTaTed ThaT she has also sTaTed The aforesaid facTs To The Police. These facTs do noT find place in Ex. D/l, however, iT finds place in The sTaTemenT of 161 of The Code. 12. The evidence of 5onkunwar (PW-14) revealed ThaT aT The Time of incident boTh The appellanT and deceased quarre‘lecl and The appellanT assoulTed The deceased, as a resulT of which, she died on The spoT. According To her sTaTemenT, appellanT has assaulfed by hands and legs and has noT used any weapon. The auTopsy reporT and evidence of Dr. R6. Singh (PW—17), clearly revealed ThaT cause of deaTh was due To shock and exTradural and inTracerbral haemorrhage found in The brain. No exTernal grievous hurT was found on The body of f‘ne deceased. According To The case of prosecuTion, on a sudden quarrel! appellanT has assaulTed his wife ThaT Too by hands and legs and noT by any weapon. The appellanT has noT caused any‘grievous injury or has noT caused any injury up on viTal parT, buT he has caused injury over The neck and face and ThaT Too repeaTed injury, which V‘shows ThaT he has assaulTed his wife, who was in helpless posiTion and a was no? in a posi‘rion To resisf herself. If shows ‘s‘ha‘r fhe appellan'l' has no? caused The §njury wi’rh infern‘ 1'0 causing her deafh, bu‘r af The firhe of causing ihjury, he was nof having knowiedge Thu? due 'fo The injury deceased may die. 13. Considering fhe injury found over fhe body of the deceased, manner in which injury was caused and number of injuries, 'u‘he ac‘i of f'ne appeiian'f does nof Travel beyond Secfion 304 Parf II of fhe IPC. Affer apprecia’ring fhe evidence avaiiabie on record, The iearned Sessions Judge has convicfed and senfenced fhe appeii‘an‘r under Secfion 302 of The IPC, bu? has no? considered The number of injuries, na‘rure of injuries and absence of any specific weapon, fhereby commii'fed iiiegaiify. ‘14. ’ f—‘or fhe foregoing reasons, fhe appeai is garfiy aHowed. Convio‘rion of The appelianf under Secfion 302 Parf II of The IPC is aifered info Secfion 304 Parf II of fhe IPC and he is senfenced for fhe cus‘i’odiai period! which he has aiready suffered. Sd/ WNW i i i i ‘ . I“ R.L. Jhanwar Sd/— ii Judge 'T.P. Sharma "‘ V Judge '