Jethuram Pardhi vs State Of Chhattisgarh
2022 Latest Caselaw 1404 Chatt

                                                                      NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR


                      Criminal Appeal No.1079 of 2017

                    Judgment Reserved on :    15.2.2022
                    Judgment Delivered on :   17.3.2022

Jethuram Pardhi, sonof Budhiyaram Pardhi, aged about 30 years, resident of
Village Darakhar, Police Station Kasdol, District Raipur, Chhattisgarh (now
Balodabazar-Bhatapara (Chhattisgarh)
                                                               ---- Appellant
                                    versus
State of Chhattisgarh through Station House Officer, Police Station Kasdol,
District Raipur, Chhattisgarh (now Balodabazar-Bhatapara, Chhattisgarh)
                                                              --- Respondent


For Appellant             :            Shri Rajkumar Pali, Advocate
For Respondent            :            Ms. Shivali Dubey, Panel Lawyer



           Hon'ble Shri Justice Rajendra Chandra Singh Samant
                Hon'ble Shri Justice Arvind Singh Chandel

                               C.A.V. JUDGMENT

Per Arvind Singh Chandel, J.

1. This appeal is directed against the judgment dated 7.3.2013

passed by 1st Additional Sessions Judge, Baloda Bazar in Sessions

Trial No.108 of 2011, whereby the Appellant has been convicted

and sentenced as under:

Conviction Sentence

Under Section 302 of the Imprisonment for Life and fine Indian Penal Code of Rs.500 with default stipulation

2. In this case name of the deceased is Baisakhinbai. The Appellant

is her husband. It is the case of the prosecution that the Appellant

was residing in his in-laws' house situated at Village Darakhar

along with his wife and children. Prior to the incident, father-in-law

and mother-in-law of the Appellant had gone to Nagpur for earning

their livelihood and at the relevant time the Appellant was residing

in the said house along with his wife and children. 15 days prior to

the incident, i.e., on 19.5.2010, the Appellant had committed

marpeet with his wife by suspecting her character and ousted her

and children. In this regard, a panchayat meeting had also

convened by his wife. By the advice of the panchas, the wife

stayed in his maternal uncle's house along with her children. After

about 2 days, the Appellant took back them by assuring them that

he would keep them well. On 19.5.2010 at about 6 p.m., the

Appellant, his wife and children and Appellant's brother Hemsagar

(PW2) all took their meals at the residence of the Appellant.

Thereafter, the Appellant's son Rajkumar (PW1) and Hemsagar

(PW2) went to Village Katuajhar. On the next day at about 6 a.m.,

when Rajkumar returned home, he found his mother Baisakhinbai

lying dead in the pool of blood with injuries on her mouth and neck

and one wooden stick stained with blood was lying nearby and the

Appellant was not there. Appellant's daughter Ratnibai aged about

2 years was sitting in the cot. Rajkumar (PW1) called villagers.

Then Hemsagar (PW2), brother of the Appellant lodged morgue

intimation vide Ex.P1 and First Information Report (Ex.P2). Inquest

proceeding of the dead body was conducted vide Ex.P8. Post

mortem of the dead body of the deceased was conducted by Dr.

Sunil Singh (PW17). In examination, following injuries were found:

           (1)    Lacerated wound measuring 1 inch x ½ inch in
                  waist
           (2)    Four front teeth of upper jaw were broken
           (3)    Lacerated wound measuring 6x10 cms. with bruise
                  on left side of neck
           (4)    Deep abrasion in both knees
           (5)    Multiple bruises on chest's upper side

In internal examination, throat and trachea were found ruptured. It

was opined that cause of death was asphyxia, pain and shock due

to multiple injuries on the body. Post mortem report is Ex.P21.

3. It was also found that the silver pair patti which was worn by the

deceased was not found in her legs. On the basis of disclosure

statement (Ex.P4), said pair patti was seized on the instance of the

Appellant from Johan vide Ex.P5. Statements of witnesses were

recorded under Section 161 Cr.P.C. After completion of

investigation, charge-sheet was filed. Trial Court framed the

charge.

4. In support of its case, the prosecution examined as many as 17

witnesses. In examination under Section 313 of the Code of

Criminal Procedure, the Appellant denied the guilt and pleaded

innocence. No witness was examined in his defence.

5. After completion of the trial, the Trial Court convicted and

sentenced the Appellant as mentioned in first paragraph of this

judgment. Hence, this appeal.

6. Learned Counsel appearing for the Appellant argued that the Trial

Court has wrongly convicted the Appellant. There is no eyewitness

in this case and conviction of the Appellant is based upon

circumstantial evidence. In this case the chain of circumstances is

not duly established. Merely on the ground of absconding and

recovery of payal, conviction of the Appellant is not sustainable.

Alternatively, it is argued that if this Court is not inclined to acquit

the Appellant, the conviction of the Appellant be converted to

Section 304 Part I or II IPC as at the time of incident the deceased

refused to develop physical relation with the Appellant then on the

heat of passion only on this reason the Appellant assaulted the

deceased. He had no motive to kill the deceased.

7. Learned Counsel appearing for the State opposed the arguments

advanced by Learned Counsel for the Appellant. It is submitted by

the State Counsel that there is sufficient evidence available on

record against the Appellant. Chain of the circumstances has been

duly proved. Trail Court has rightly convicted the Appellant.

8. We have heard Learned Counsel appearing for the parties and

perused the record of the Trial Court minutely, gone through the

statements and other evidence.

9. There is no dispute on the point that the deceased was wife of the

Appellant and they were residing along with their children i.e.

Rajkumar (PW1) and her younger sister aged about 2 years. From

the statements of witnesses and evidence adduced by the

prosecution, it is also well established that about 15 days prior to

the incident, the Appellant had committed marpeet with the

deceased by suspecting her character and ousted her along with

their children. Thereafter, a panchayat meeting was also

convened. It is also well established that on the advice of the

panchayat, the Appellant took deceased and children back by

assuring them that he would keep them well.

10. With regard to the incident, son of the Appellant Rajkumar (PW1)

deposed that when he reached Village Darakhar from Village

Katuakhar, at that time, he had seen that deceased Baisakhinbai

was lying dead inside the house. According to this witness, at that

time the Appellant was not present in the house and was already

fled away from the village. This witness further deposed that his

mother was wearing silver lachchha in her legs which was missing.

Hemsagar (PW2) is the brother of the Appellant. He also deposed

that on being informed by Rajkumar (PW1) when he reached the

spot, at that time the deceased was lying dead on cot and her body

was bleeding and at that time the Appellant was not present inside

the house. In paragraph 7 of his examination, this witness admitted

the fact that Bhojram Sahu was visiting the house of the Appellant

due to which dispute was taking place between Appellant and

deceased. Chain Singh (PW4) and Gangaram (PW5) corroborating

statements of Rajkumar (PW1) and Hemsagar (PW2) also stated

that when they reached the spot, at that time dead body of

deceased was lying there and the Appellant was absconded.

Before Urvashi (PW6), a suggestion was made by the defence that

1 day prior to the incident the Appellant was present in house along

with deceased and children, which was admitted by her. Thus, from

the above suggestion made by the defence also, it is established

that 1 day prior to the incident, the Appellant was present in the

house along with the deceased.

11. On a minute examination of the above evidence, it is clear that 15

days prior to the incident, a quarrel had taken place between the

deceased and the Appellant because the Appellant was doubting

character of the deceased. It is also established that thereafter the

Appellant had taken deceased and children to home and on the

date of incident also the Appellant was present in the house along

with the deceased. From the statement of Rajkumar (PW1), it is

also established that in the morning when he reached home he saw

that dead body of the deceased was lying in the house and the

Appellant was absconded. From the statement of Rajkumar (PW1),

it is also established that the pair patti which was worn by the

deceased was also missing from her legs. Why did the deceased

come into such a condition and why did the Appellant run away

from the house, no explanation has been given by the Appellant in

this regard. According to Section 106 of the Evidence Act, the

Appellant is bound to explain this. From the evidence, it is also

established that the pair patti which was missing from the legs of

the deceased was seized on the instance of the Appellant during

the course of investigation. How the pair patti of the deceased

came into possession of the Appellant, it has not been explained by

the Appellant. From the entire evidence, in our considered view,

chain of the circumstances is duly proved against the Appellant.

Thus, we find that the Appellant is the person who caused

homicidal death of his wife.

12. Now the question arises for consideration before this Court is

whether act of the Appellant amounts to murder or it falls within the

ambit of Explanation 4 of Section 300 IPC.

13. From the evidence, it appears that the Appellant was doubting

character of the deceased and dispute was taking place between

them for this reason. 15 days prior to the incident, a dispute took

place between them for this reason itself. From the memorandum

statement of the Appellant, it appears that on the date of incident

also, the deceased refused the Appellant for sexual intercourse,

therefore, the incident took place. It is thus apparent that the

incident took place all of a sudden in a heat of passion and without

any premeditation on the part of Appellant. However, looking to the

manner in which the Appellant assaulted the deceased and nature

of injuries caused to her, it is also apparent that he had the intention

to cause such bodily injury to the deceased or likely to cause her

death. Therefore, the act of the Appellant would fall under

Exception 4 of Section 300 IPC making him liable to be convicted

under Section 304 Part I IPC and not under Section 302 IPC.

14. In the result, conviction of the Appellant is altered from Section 302

IPC to Section 304 Part I IPC. He is in jail since 2.7.2010 and has

already undergone about 11 years and 6 months. Looking to the

facts and circumstances, his sentence is restricted to the period

already undergone by him. The appeal is allowed in part in the

aforesaid terms.

                      Sd/-                               Sd/-

        (Rajendra Chandra Singh Samant)        (Arvind Singh Chandel)
                   Judge                               Judge

Gopal