Arbi Ali vs State Of U.P. Thru' Secy.
2013 Latest Caselaw 5785 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 52
 
Case :- CRIMINAL APPEAL No. - 5687 of 2005
 
Appellant :- Arbi Ali
 
Respondent :- State Of U.P. Thru' Secy.
 
Counsel for Appellant :- Maneesh Singh,Bijai Prakash Tiwari,N.L. Agrawal,S.M. Haider Zaidi
 
Counsel for Respondent :- Government Advocate
 
Hon'ble Ravindra Singh,J.

Hon'ble Mohd. Tahir,J.

(Delivered by Hon'ble Mohd. Tahir,J.)

This criminal appeal has been preferred against the judgment and order dated 27.10.2005 passed by Additional Sessions Judge, Court No.12, Kanpur Nagar in ST No.411/2004, State vs. Arbi Ali, under Section 302 IPC and ST No.412/2004 State vs. Arbi Ali, under Section 30 Arms Act, both related to P.S. Naubasta, District Kanpur Nagar, whereby the accused appellant Arbi Ali was convicted under Section 302 IPC and Section 30 Arms Act and sentenced to undergo life imprisonment and six months' rigorous imprisonment respectively.

2. The prosecution case as appearing from the F.I.R. Ext.Ka.1, in brief, is that on 12.12.2003 at 4 p.m. complainant Basharat Ali, who is the real brother of deceased Shahrunnisha, lodged a written report to the effect that the marriage of his sister Shahrunnisha was solemnized with accused appellant Arbi Ali. She had five children. Out of them, two daughters had already been married. The accused appellant had illicit relationship with a lady of the name of Smt. Sugra, due to which usually hot altercation between the deceased and the accused appellant used to happen. The accused appellant often used to beat the deceased. On 12.12.2003 at about 2.30 p.m., the first informant/complainant went to the house of his sister Shahrunnisha (deceased). At that time, the accused appellant asked his wife (deceased) to go to her Mayka with her brother and further said to her that he did not want to keep her in his house. On this, the sister of the complainant (deceased) replied that she would not go anywhere and she would live with the appellant here in his house. Upon this response of the deceased, the accused appellant took out his licensed SBBL gun of 12 bore from his room and said to the deceased that today he would finish her. At that time, the deceased was standing in the Sahan of the first floor of the house. The accused appellant with the intention to kill the deceased opened fire on her, as a result of which she fell down and died on the spot itself. At that time, the daughters of the deceased, namely, Nikki and Dulari were present on the spot and they saw the incident and cried and rushed to save their mother. The complainant also rushed to save the deceased. The accused appellant aimed the gun at the complainant also, who in order to save himself took the cover of the room. The accused appellant ran away from the spot carrying the gun in his hand. On the basis of the above written report, case under Section 302 IPC was registered in P.S. Naubasta, Kanpur Nagar at Crime No.461/2003. Constable Head Moharrir K.B. Singh prepared the chick FIR Ext.Ka.9 on the basis of the written report Ext.Ka.1 and made entry in the G.D. in regard to the registration of the case. The copy of the G.D. entry is Ext.Ka.10.

3. The investigation of the case was entrusted to Sri Rishikant Shukla, Station Incharge of the aforesaid police station, who went to the spot and got the inquest report of the dead body of the deceased prepared by S.I. Sri M.P. Sharma. The inquest report is Ext.Ka.3 and other relevant papers like letter to C.M.O., sample of seal, photo Nash, Challan Lash are Ext.Ka.4, Ext.Ka.5, Ext.Ka.6 and Ext.Ka.7 respectively. The bloodstained and simple earth were also collected from the spot, the memo of which is Ext.Ka.8. After sealing the dead body, the same was sent to Mortuary for post mortem examination through Constables Ram Naresh and Naresh Prasad.

4. PW-5 Dr. Alok Ranjan conducted the post mortem examination on the dead body of the deceased on 13.12.2003 at 1.15 p.m. and prepared post mortem report Ext.Ka.4. According to this report, the deceased was about 50 years. She was of average-built body. Her death took place about one day before the post mortem examination. Post mortem staining was present on her back and on the back of both the thighs. According to the post mortem report, following ante mortem injury was found on the person of the deceased:

"A firearm would of injury 3 cm. x 2 cm x chest cavity deep on right side of chest, 3 cm above right nipple clotted blood present, margins of wound are inverted underlying the wound, 4th and 5th ribs were fractured on right side. 19 small pellets and one wadding were recovered from the chest cavity."

On internal examination of the dead body of the deceased, membrane of the brain was found pale. Both the lungs were found lacerated. Pericardium and pleura were also found lacerated. One litre blood was present in the chest cavity. In the small intestine pasty food and gas were present and in the large intestine faecal matter and gas were present and liver, spleen and kidneys were found pale, urinary bladder was found empty, gall bladder was found half-full and uterus was found empty.

According to the opinion of the Autopsy Surgeon, the death of the deceased was caused due to shock and haemorrhage as a result of ante mortem injuries.

5. The Investigating Officer Sri Rishikant Shukla arrested the accused appellant on the day of the incident itself about 7 p.m. from Yashoda Nagar byepass and from his possession, a SBBL gun of 12 bore, used in the commission of the crime in question was recovered in the barrel of which an empty cartridge was found and the same was emitting fresh firing smell. The said gun was seized by the police and seizure memo thereof was prepared, which is Ext.Ka.12. The gun and the empty cartridges were sealed on the spot of recovery itself.

6. On the basis of the seizure memo Ext.Ka.12, Constable Kaushalendra Bahadur Singh prepared Chick FIR Ext.Ka.13 and registered the case in that regard at Crime No.462/2003, under Section 27/30 Arms Act in P.S. Naubasta, Kanpur Nagar against the accused appellant and in that regard he made an entry in the G.D. The recovered gun and the empty cartridge were sent to Vidhi Vigyan Prayogshala, Lucknow, U.P. for comparison and opinion of the Ballistic Expert. The Ballistic Expert report is Ext.Ka.14, according to which the empty cartridge was fired from the said SBBL gun.

7. The Investigating Officer of the main case S.O. Rishikant Shukla, after completing investigation, filed charge sheet Ext.Ka.13 under Section 302 IPC against the accused appellant. The investigation of the case under Section 27/30 Arms Act was entrusted to S.I. Neeraj Gautam, who after investigating the case, filed charge sheet Ext.Ka.16 under Section 27/30 Arms Act against the accused appellant.

8. In the usual course, both the cases of Section 302 IPC and that of Section 27/30 Arms Act were committed to the court of sessions by the Magistrate concerned. The trial court framed charges against the accused appellant under Section 302 IPC and 27/30 Arms Act. The accused appellant pleaded not guilty to the charges and claimed to be tried.

9. The accused appellant took the defence that he has the second legally married wife of the name of Sugra who lives in separate house situated in separate Mohalla Rajeev Nagar, Kanpur Nagar. He wanted to transfer that house in the name of his second wife to which the deceased Shahrunnisha had objection and on the day of occurrence at about 12 o'clock the deceased became furiated and said that she would not allow him to transfer the said house in the name of Sugra in her life. He did not pay any heed towards this assertion of the deceased. At that time, his two daughters, namely, Nikki and Dulari and he himself were present in the house. Apart from them, none other person was present in the house. After the quarrel the deceased went on the roof of the house and just thereafter they heard the sound of fire. He and his daughters went on the roof and saw the deceased lying dead on the roof. The gun was also lying beside her. Thus, according to the accused appellant, the deceased committed suicide by shooting herself from the gun. His further defence is that he informed the police of P.S. Naubasta about the said occurrence and at the time of the occurrence, the complainant/first informant Basharat Ali was not present in his (accused's) house. The police called him through some person, namely, Munna from his village and thereafter the police had falsely involved him in this case in collusion with the complainant. His further defence is that he was arrested from his house and not from Yashoda Nagar on the day of occurrence at about 8 p.m. and at that time, his gun was also taken by the police into custody.

10. The prosecution in order to prove its case examined 9 witnesses in all in the trial court. The general feature of evidence of these witnesses, in nutshell, is as follows:

PW-1 Basharat Ali is the first informant of the case. He claims himself to be the eye witness of the occurrence in question. He proved the written report Ext.Ka.1.

PW-2 Nikki is the daughter of the accused appellant. She was alleged to be the eye witness of the occurrence in question but she did not support the prosecution case and turned hostile.

PW-3 Dulari is also the daughter of the accused appellant and she also became hostile, while according to the prosecution, she was also the eye witness of the occurrence in question.

PW-4 Dr. Alok Ranjan is the Autopsy Surgeon, who conducted the post mortem examination on the dead body of the deceased. He proved the post mortem report Ext.Ka.2.

PW-5 S.I. M.P. Sharma is the police officer who conducted the inquest proceedings on the dead body of the deceased on the dictation and direction of the Investigating Officer Sri R.K. Shukla.

PW-6 K.B. Singh is the Constable Moharrir who prepared the Chick FIR Ext.Ka.9 on the basis of the written report received from the first informant and he also proved the G.D. Ext.Ka.10 regarding the registration of the case under Section 302 IPC against the accused appellant.

PW-7 Sri R.K. Shukla is the Investigating Officer of the case of Section 302 IPC. He proved the investigation conducted by him and also proved the memo regarding the collection of bloodstained and plain earth (Papri of the floor of the roof). He also proved the site plan Ext.Ka.8 regarding the spot of the case of murder in question. He also proved the recovery memo Ext.Ka.12 regarding the recovery of the gun and empty cartridge from the accused appellant. He also proved the charge sheet Ext.Ka.13 submitted by him. He further proved the ballistic expert report Ext.Ka.14 and site plan Ext.Ka.15 of the place of arrest of the accused and recovery of gun from him.

PW-8 is Constable Kaushalendra Bahadur Singh who proved the inquest report as well as the recovery memo of the gun and the empty cartridge. He also proved the site plan Ext.Ka.15 regarding the case under Section 27/30 Arms Act and also proved the charge sheet Ext.Ka.16 under Section 27/30 Arms Act to be in the hand writing of S.I. Neeraj Gautam, who is the Investigating Officer of the case of Section 27/30 Arms Act.

11. Three witnesses were said to be the eye witnesses of the occurrence in question. Two of them, namely Nikki (PW-2) and Dulari (PW-3) turned hostile. Thus only witness Basharat Ali (PW-1) remains. So, it would be proper to mention his statement as was given by him in his examination-in-chief in which he has stated as follows:-

He knows accused Arbi Ali. He is his Bahnoi. His sister Shahrunnisha was married with him. Her age was 50 years. She had five children, out of them, two daughters had already been married. Accused Arbi Ali had illicit relationship with a lady of the name of Sugra, on account of which the duo used to quarrel with each other due to which reason the accused used to beat his sister. He has further stated that on 12.12.2003 he went to the matrimonial house of his sister. On that day, in the noon also some hot altercation took place between them at 2-3 o'clock in the noon. The accused said to his sister that he does not want to keep her and so she should go to her Mayka along with his brother. Upon this, his sister responded that she would go nowhere and that she would live here in this house. Thereupon accused Arbi Ali having picked up his licensed single barrel gun from his room said to his sister (the deceased) that today he would finish her and thereafter he with the intention to kill his sister gave a fire shot to her as a result of which she fell down on the spot itself and died. Having heard the sound of fire his sister's daughters, namely, Nikki and Dulari witnessed the occurrence and they cried. He rushed to save his sister but the accused aimed the gun at him also. So he took the cover of the room to save himself. Thereafter, Arbi Ali ran away from the spot having gun in his hand. He got the report of this incident scribed by one Tariq Hussain and made it over in the police station. He proved the written report (Ext.Ka.1). The relevant portion of his cross-examination shall be referred to hereinafter at the appropriate place.

12. The other eye witnesses are either hostile witnesses or formal in character. So we think that there is no need to repeat their statement. The relevant portion of their statement shall also be referred to hereinafter while appreciating and scrutinizing the evidence.

13. From the side of the accused appellant, Smt. Sugra was examined as DW-1 and in documentary evidence, the said Nikahnama of the accused appellant with Smt. Sugra and the agreement to sale were filed, which are Ext.Kha.1 and Ext.Kha.2 respectively. The agreement to sale was filed to show that much before the occurrence in question one Raisa executed a agreement to sale in respect of a house in favour of the accused Arbi Ali and Sugra as his wife.

14. The trial court after hearing the arguments of the defence counsel as well as the State counsel and perusing the evidence on record, convicted and sentenced the accused appellant as mentioned hereinbefore in the beginning of the judgment. Hence, this appeal.

15. We have heard Sri N.L. Agrawal, learned counsel for the appellant and Sri Saghir Ahmad, learned A.G.A. for the State of U.P. and perused the entire evidence on record.

16. Learned counsel for the accused appellant has submitted that the FIR in this case is ante-timed and the same was not in existence at the time of preparation of the inquest report of the dead body of the deceased because the inquest proceeding was completed on the day of occurrence itself at 5.30 p.m. but the dead body of the deceased was received in the police line on the next day of occurrence at 10.50 a.m. as is evident from the entry made in the Challan Lash Ext.Ka.7 while the headquarter is at a distance of 12 Km. only from the place of occurrence and the means of conveyance for headquarter were easily available. According to the counsel for the appellant, late receipt of the dead body of the deceased at the Headquarter (police line) indicates that the FIR was not lodged at the time as alleged by the prosecution but the same came into existence much after the preparation of the inquest report and the same was made ante-timed. We find no substance in this contention because case crime number is very well mentioned on the top of the inquest report (Ext.Ka.3). There is also clear mention in the inquest report that the accused appellant committed murder of his wife by firing shot on her from his licensed SBBL gun of 12 bore and further the copy of the FIR and the copy of the G.D. regarding the registration of the case also find place in the enclosures sent along with the inquest report to the autopsy surgeon. Apart from that, Chick FIR Ext.Ka.9 and G.D. Ext.Ka.10 regarding the registration of the case, are the documents prepared by a public servant in the discharge of his official duty, also indicate that the FIR of this case was lodged at 4 p.m. on the day of occurrence itself, that is, only 1½ hours after the occurrence. It is wrong to presume that as to whatever is done by the police personnels is the outcome of fabrication or concoction. They are also the public servants and in regard to them also there is presumption as envisaged under Section 114(e) of the Evidence Act which says that the court may presume that judicial and official acts have been regularly performed. In that view of the matter, the acts performed by the public servant in the discharge of his official duty would be presumed to have been regularly performed unless there is some strong evidence to rebut this presumption. In the present case, there is nothing on record to show that the police personnel who prepared the Chick FIR or G.D. regarding the registration of the case was under influence of the first informant or he had some enmity with the accused appellant. So, the contention of the counsel for the appellant that the FIR is ante-timed, is bereft of any force and is not acceptable.

17. Learned counsel for the appellant has further submitted that the motive as alleged by the prosecution for the commission of the murder of the deceased by the appellant is not established because the deceased was the wife of the accused appellant and she was 50 years of age and was the mother of five children of the accused appellant, so there was no occasion or reason for the accused appellant to commit her murder. We do not find any substance in this contention also because it is admittedly proved that on the day of occurrence some hot altercation took place between the deceased and the accused appellant just before the occurrence in question and the reason of this hot altercation between the duo as per FIR and the testimony of the first informant, was illicit relationship of the accused appellant with a lady of the name of Sugra. Even from the statement of appellant's daughters, namely, Nikki (PW-2) and Dulari (PW-3), though they turned hostile, the motive of the commission of the murder of the deceased by the accused appellant is established. PW-2 Nikki has stated in her statement that on the day of occurrence her Mummy and Papa were quarelling with each other and that her Papa used to go to the house of Sugra. PW-3 Dulari has also stated in her statement that her Mummy and Papa used to quarrel with each other in respect of a lady of the name Sugra. So, the motive of murder as alleged by the prosecution is very well proved from the evidence on record.

18. Learned counsel for the petitioner has assailed the testimony of PW-1 Basharat Ali on the ground that he is a chance witness as well as the interested witness, so his testimony should not be relied upon. This contention of the counsel for the appellant is also not acceptable because he is the real brother of the deceased, so he need not account for his presence in the matrimonial house of his sister (deceased). In the FIR itself it is mentioned by him that the dispute between his sister and the accused appellant was going on and the accused appellant used to beat his sister. So under those circumstances, the arrival of this witness at his sister's matrimonial house could not be taken as surprise. Therefore he cannot be said to be a chance witness. So far as the contention of the appellant's counsel that he is an interested witness is concerned, in this regard it may be mentioned that there is nothing on record to show that he had some ill-will or enmity towards the appellant from before the occurrence in question. So, there was no reason for him to falsely implicate the accused appellant in this case. In this reference, the Hon'ble Supreme Court in the case of Israr vs. State of U.P. 2005 (51) ACC 113 has held that the relationship is not a factor to affect the credibility of the witness. It is more often than not that a relation would not conceal the actual culprit and make an allegation against an innocent. So on the basis of mere relationship of this witness with the deceased, this witness cannot be said to be an interested witness and his testimony cannot be disbelieved.

19. Learned appellant's counsel has further challenged the testimony of PW-1 Basharat Ali on this ground also that the testimony of this witness is not in accordance with the site plan Ext.Ka.11 of the spot of murder in question as well as the statement of the Investigating Officer (PW-7). This witness in his cross-examination has stated that he from the door saw the accused appellant firing shots on his sister but the Investigating Officer has stated in his cross-examination that the spot where the shot hit the deceased could not be seen from Sadar Darwaza of the house of the appellant. So according to the counsel for the appellant, this witness did not see the accused appellant firing shot on his sister. This contention of the counsel for the appellant, to our mind, also has no force because this witness in his statement has stated that the accused appellant aimed his gun at him also and in order to save himself he took the cover of the room. The room in the courtyard of which the deceased sustained gun shot injury, is on the first floor of the house of the accused appellant. This witness simply mentions Darwaza in his statement. He did not prefix word 'Sadar' before word 'Darwaza'. That is, he has, nowhere, mentioned 'Sadar Darwaza' in his statement. So when the statement of this witness is taken as a whole, Darwaza means the door of the room on the first floor of the house and not the Sadar Darwaza of the house of the appellant. Moreover, in cross-examination the attention of this witness was not drawn by the defence counsel towards the site plan of the spot which was prepared on his pointing out. So, no discrepancy or contradiction as pointed out by the counsel for the appellant is made out and this witness cannot be disbelieved on the mere statement of the Investigating Officer in this regard.

20. Learned counsel for the appellant has contended that the position of the witness (PW-1) has not been shown by the Investigating Officer in the site plan. So his presence is not established on the spot at the time of the occurrence in question. This contention of the counsel for the appellant is also bereft of any substance because this witness had no control on the Investigating Officer and secondly it is simply an omission or negligence on the part of the Investigating Officer. In this regard, the Hon'ble Supreme Court in the case of Ram Bali vs. State of U.P. 2004 (49) ACC 453 has held that the failure or omission or negligence on the part of the Investigating Officer cannot affect the credibility of the prosecution version if the direct testimony of the eye witnesses corroborated by the medical evidence fully establishes the prosecution case. So, the mere omission on the part of the Investigating Officer in not showing the presence of this eye witness in the site plan does not adversely affect the credibility of this witness and cannot lead to this inference that this witness was not present on the spot at the time of occurrence in question.

21. The next submission of the learned counsel for the appellant in regard to testimony of PW-1 Basharat Ali is that the testimony of this witness is not compatible with the medical evidence because according to the statement of this witness, the deceased was at a distance of 5-6 paces from the barrel of the gun at the time the deceased sustained fire shot but according to the autopsy surgeon (PW-4), the fire might have been done on the deceased by pressing the barrel of the gun against her body because there was no dispersion of pellets and that 19 small pellets and wadding were found in the chest cavity of the deceased, so according to the appellant's counsel this very discrepancy indicates that this witness was not present on the spot at the time of occurrence in question. In our view, this discrepancy is of no consequence because such type of incident occurs in quick succession and the vivid description of the sequence of events cannot be expected even from a truthful eye witness. Normally, a witness when asked about the details of the occurrence in cross-examination, he ventures to give some answer, not necessarily true or relevant, perhaps for the fear that his evidence may not be discarded in respect of the main incident which he had witnessed. Even a truthful witness is overawed by the court atmosphere and the piercing cross-examination made by the counsel and out of nervousness he mixes up facts, gets confused regarding the sequence of the events or fills up details from imagination on the spur of moment. It is a sort of psychological defence mechanism activated at the spur of moment. So, it would not be proper to discard the testimony of this witness on this mere discrepancy. The discrepancies and contradictions may be overlooked if the prosecution version appears to be truthful. In this reference, we can do no better than to refer the judgment of the Hon'ble Supreme Court rendered in the case of State of U.P. vs. Anil Singh, reported in 1988 (3) Crimes 367. In this case, the Hon'ble Supreme Court has held that the prosecution case should not be rejected if there is a ring of truth in the main.

22. Learned counsel for the appellant has vehemently argued that it is a case of suicide and not a case of homicide as is evident from the statement of the autopsy surgeon Dr. Alok Ranjan (PW-4) because this witness has stated that there is probability of the injury of the deceased being caused by contact fire and in support of his opinion, he has stated that the wadding was found in the chest cavity of the deceased, so the said wound of the deceased might be a suicidal wound. We do not find any force in this contention also because if the muzzle of the barrel is pressed against a target and then the fire is done in that case, there may be a circular impression of the muzzle (the front end of the barrel) on the skin round the entry wound. But, in the case in hand there is no medical evidence of whatsoever that any circular impression was found by the Autopsy Surgeon on the skin round the entry wound. Secondly, the edges of contact wound may be everted as mentioned on page 349 of Modi's Medical Jurisprudence and Toxicology (22nd Edition). But, in the present case, the edges of the wound of the deceased are inverted and not averted as is clear from the post mortem examination report. There is also a mention on the above page of Modi's Medical Jurisprudence and Toxicology that if the wadding, pieces of clothing or other debris may be found lodged in the wound when there is a close shot. So, according to Modi's Medical Jurisprudence and Toxicology, the firearm wound of the deceased is not the contract wound but it is a wound caused by firing shot from a close range. Moreover, the opinion of the autopsy surgeon that it is being contact wound might be suicidal wound is not supported or substantiated by any evidence on record. So, the same is not acceptable.

23. It is worth-mentioning that wadding and pellets were found in the chest cavity of the deceased which suggests that the shot hit the chest of the deceased at right angle which is not possible in case of suicide by the deceased in view of the length of the barrel of the licensed gun and length of the hands of the deceased as she, according to the post mortem examination report, was a lady of average-built body.

24. It is also noticeable that the post crime conduct of the accused also is of such a nature that it excludes the possibility of the commission of the suicide by the deceased. He says that he gave the information to the police about the occurrence in question but there is nothing on record to show that he gave any information to police just after the occurrence or thereafter. Had the deceased committed suicide, he would have naturally gone to the police station to give information about the same. Not only this, when the police came to his house he was not present in his house but he was arrested in the evening by the police from Yashoda Nagar with the gun in his hand. He did not take the plea of suicide even in the bail application moved by him in the Sessions Court as is evident from the lower court record itself.

25. The witnesses Nikki and Dulari, who are the daughters of the appellant and who have been declared hostile, also do not clearly say, anywhere, in their statement that their mother committed suicide and when they and their father (appellant) went to the roof of their house, the gun was lying there near the dead body of their mother.

26. It is also worth-mentioning that the plea of the defence that the deceased committed suicide due to the fact that the accused appellant wanted to transfer a house in the name of his so-called second wife Sugra, to which the deceased had objection, is also not digestible because the accused appellant as per the defence version itself, did not transfer that house to said Shugra before the incident in question. Had the accused appellant transferred that house to Sugra in spite of the protest of the deceased, in that case the deceased might have committed suicide but admittedly the house was not transferred by the time of the incident in question. So there was no reason or occasion for the deceased to commit suicide.

27. On the other hand, there is a clear and convincing evidence of the first informant Basharat Ali (PW-1) that it is the accused appellant who shot the deceased dead by firing from his licensed gun. The testimony of this witness is corroborated by the FIR which was promptly lodged just after 1½ hours of the occurrence in question and further his testimony finds support from the medical evidence also, according to which the deceased died due to gun shot injury. This witness was subjected to lengthy and searching cross-examination by the defence but nothing in cross-examination elicited which makes his presence doubtful on the place of occurrence at the time of occurrence in question. His testimony fits in within the facts and circumstances of the matter. So from his testimony the prosecution case is proved beyond reasonable doubt and the trial court has rightly held that the prosecution has succeeded to prove its case against the accused appellant beyond reasonable doubt.

28. The accused appellant has been rightly convicted and sentenced under Section 30 Arms Act also because from the Ballistic Expert report as well as from the statement of the witnesses, it is established that the accused appellant misused his licensed gun in committing the murder of his wife. So we find no reason to interfere with this finding also.

29. Lastly, learned counsel for the appellant has submitted that as a matter of law, the offence punishable under Section 302 IPC is not made out and simply an offence punishable under Section 304 IPC is made out because as per the prosecution version the deceased was murdered by the accused appellant under grave and sudden provocation and that the appellant is in jail for the last about 10 years. So, taking the lenient view, the appellant should be set free on the basis of the imprisonment which he has already undergone. We find no substance in this contention also because the appellant committed the murder of his wife simply because of this fact that she made protest against the relationship of the appellant with another woman. She was 50 years of age and she was admittedly the married wife of the appellant and was the mother of five children of the appellant. It was the bounden duty of the appellant to protect and to sustain her but instead of protecting and sustaining her the appellant shot her dead. The weapon used by the appellant in causing the injury to the deceased and the seat of the injury on the person of the deceased do not indicate that the appellant intended to commit lesser offence or he had no intention to kill her. So, clear offence punishable under Section 302 IPC is made out and proved against the appellant and in the facts and circumstances of the matter, he deserves no leniency.

30. For the foregoing reasons, we are of the opinion that the appellant was rightly convicted for the murder of his wife and we see no reason for interference with the order of the conviction and sentence passed against him.

31. In the result, we dismiss the appeal and affirm the order of conviction and sentence passed against the accused appellant by the lower court.

32. Office is directed to return the lower court record expeditiously along with a copy of this judgment for information and for intimation to the accused appellant through the Superintendent of the jail concerned.

Order Date :-13-09-2013

SP