D. N. Patel, J. - (1.) The present appeal has been preferred against the judgment and order of conviction and sentence dated 28th May, 2007 and 31st May, 2007 respectively, passed by learned Additional Sessions Judge, Ghatshila, East Singhbhum, in Sessions Trial No. 49 of 2005, arising out Baharagora (Barsole) P.S. Case No. 84 of 2004, whereby, the appellant, namely, Ashwini Kumar Bhui, has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 5,000/- and in default of payment of fine, to further undergo simple imprisonment for three months.
(2.) The case of the prosecution and the summary of evidence and documentary evidence are as under : "Date of incident - 12-12-2004 at 7.30 p.m. Fardbeyan on - 12-12-2004 at 21.00 hrs (i.e. 9 p.m.) FIR lodged on - 13-12-2004 at 9a.m. being Baharagora (Barsole) PS Case No. 84 of 2004 Deceased - Savitri Bhui Conviction and Sentence- The sole appellant has been convicted for the offence punishable under Section 302, IPC and sentenced to undergo rigorous, imprisonment for life and fine of Rs. 5000/- and in default of payment of fine, to further undergo simple imprisonment for three months. Case of the Prosecution- The case of the prosecution is that on 12-12-2004 at 21.00 hours (i.e. 9 p.m.) the informant Parmeshwar Mahto (P.W. 10 who was posted as a Chowkidar in Chowki No. 04./4 gave fardbeyan to police that on 12-12-2004 in the evening he was standing at the Chowk of Oriya School. He heard the Hulla coming out from the village that Ashwini Kumar Bhui (accused) is beating his wife Savitri Bhui (deceased) after shutting the door of his house. When the informant reached near the house of Ashwini Kumar Bhui he heard the Hulla of Bachao-Bachao. The villagers (i) Deepak Nayak (P.W. 2), (ii) Bindu Dehuri (P.W. 7), (iii) Khokhan Dehuri (P.W. 6) and (iv) Gauri Pado Dehuri (P.W. 5) also gathered there. The informant tried his best to open the door by pushing it, but, the door did not open and then the informant entered into the house by breaking the window of the house and saw Ashwini Kumar Bhui standing with Lathi in his hand and the dead body of his wife was lying on the floor, whose tongue has come out and blood was oozing out from the nose. Thereafter, the informant opened the door from inside and the villagers came inside the house. The informant further alleged that Ashwini Kumar Bhui told the villagers that he had an altercation with his wife for not cooking the food, due to which he closed the door of his house and killed his wife by throttling her neck. Prosecution witnesses : PW. 1 Parmeshwar Mahto He is the informant of this case and has supported the case of prosecution. He has proved the Fard Beyan in the writing the B.B. Verma, marked as Ext. 1. PW. 2 Deepak Kumar He has deposed that Ashwini was standing inside his house with Lathi in his hand and the dead body of his wife Savitri Bhui was lying there. PW. 3 Dr. Lalan Choudhary He is the doctor who has conducted the post-mortem of the dead body of Savitri Bhui and has proved the post-mortem report, marked as Ext. 3. PW. 4 Balak Das Mohanty He is hearsay witness. He has proved his signature on the carbon copy of inquest report, marked as Ext. 2/1. PW. 5 Gauri Pado Dehuri He has deposed that Ashwini Bhui was standing inside his house and the dead body of his wife Savitri Bhui was lying there covered with cloth. P.W. 6 Khokhan Dehuri He has deposed that Ashwini Bhui was standing inside his house with Lathi in his hand and the dead body of his wife Savitri Bhui was lying there. PW. 7 Bindu Dehuri He has deposed that Ashwini was standing inside his house with Lathi in his hand and the dead body of his wife Savitri Bhui was lying there. PW. 8 B. B. Verma (I.O.) He is the Investigating Officer of this case. He has proved the signature of A.S.I. Sri Vijay Kumar Singh in formal FIR, which is marked as Ext. 4 and has also proved the formal FIR in the writing of Munshi Sri Dhrub Rai, which is marked as Ext. 4/1. He has also proved the seizure list of broken bangles of deceased Savitri Bhui, marked as Ext. 5 and has also proved the inquest report, marked as Ext. 2/2. Exhibits Ext. 1 - Fard Beyan Ext. 2/1 - Signature of Balak Das Mohanty on inquest report. Ext. 12/2 - Inquest Report Ext. 3 - Post-Mortem Report Ante-mortem Injuries : (A) Abrasions : (i) 2 cm. x 2 cm. over left forehead; (ii) 2 cm. x 4 cm. over right clavicular region; (iii) 1 cm. x 2.5 cm. over right mandibular region; (iv) 3 cm. x 6 cm. over left side sterno clavicular area; (v) 4 cm. x 4 cm. over left mandibular region; (vi) 2 cm. x 4 cm. over back of right shoulder; (vii) 3 cm. x 6 cm. over back of neck lower part back of right shoulder; (viii) 1 cm. x 3 cm. over left side of lower lip. On dissection : (A) Skull: Left temporal scalp contused. 6 cm x 3 cm vertex contused. 1 cm x 1 cm left side occipital scalp contused. 6 cm x 4 cm whole brain contused. (B) Neck : Whole neck and upper chest valve contused. Posterior aspects of larynx and trachea massively contused. Both cornea fractured. Larynx and tracheal mucosa contused and contains copious whitish forth. 2rd cervical vertebra dislocated. Spinal cord torn and lacerated. (C) Chest and Abdomen : Lungs congested. Viscera congested. Stomach contains undigested rice and Sag 200 gms. Opinion : Cause of death-throttling. However, the head injury is also sufficient to cause death in ordinary course. All above injuries are caused by hard and blunt object. Time since death - 18 hours to 24 hours approximately. The aforesaid injury on head may be caused by Lathi. Ext. 4 - Signature of A.S.I. Sri Vijay Kumar Singh on formal FIR Ext. 4/1 - Formal FIR in writing of Munshi Sri Dhrub Rai Ext. 5 - Seizure list"
(3.) Arguments on behalf of the appellant : - Learned counsel for the appellant submitted that the prosecution has failed to prove its case, beyond reasonable doubts, as there are major omissions and contradictions in the depositions of the witnesses. These aspects of the matter have not been property appreciated by the learned trial Court and hence, the impugned judgment and order of conviction and sentence, passed by the learned trial Court, deserve to be quashed and set aside. It is also submitted by the learned counsel for the appellant that as per the prosecution witnesses, the Fard-beyan was given at the place of occurrence and on the other hand, it has been stated that the same was also taken at the police station and, thus, the true First Information Report has not been brought on record. - It is also submitted by the learned counsel for the appellant that neither there is any seizure of the weapon nor there is any seizure of the rod of window, which is said to have been broken up by the Chowkidar. It is also submitted by the learned counsel for the appellant that looking to the cordial relationship between the deceased-wife and the accused-husband and the fact that there was no animosity in the relationship between the couple, it appears that the action of this appellant was neither pre-meditated nor pre-planned nor well designed rather the offence has been committed at the spur of moment and hence, it is not an offence, punishable under Section 302 of the Indian Penal Code. It is, thus, submitted that, at best, the action of the appellant comes within the exception of Section 300 of the Indian Penal Code and, as such, the offence is punishable under Section 304, Part I of the Indian Penal Code. It is also submitted that there is no eye-witness to the occurrence. These aspects of the matter have not been properly appreciated by the learned trial court and hence also, the impugned judgment and order of conviction and sentence deserve to be quashed and set aside. - Learned counsel for the appellant has relied upon a decision, rendered by Hon'ble Patna High Court in the case of Ishwar Murmu v. State of Bihar, 2000 CrLJ 3657 (Patna). On the basis of the aforesaid decision, it is submitted that the offence, committed by this appellant is not a premeditated action and hence, the offence is not punishable under Section 302 of the Indian Penal Code rather it is punishable under Section 304, Part I of the Indian Penal Code. - It is further submitted that the appellant is in judicial custody since 12th December, 2004 and hence, he has already undergone the maximum period of sentence under Section 304, Part I of the Indian Penal Code.;