IMPORTANT POINT
When incident occurs all of a sudden and the accused does not take undue advantage of the deceased his conviction u/s 304 Part I would be justified.

JUDGMENT :

S.ABDUL NAZEER, J.

1. This appeal by the State of Madhya Pradesh is directed against the judgment dated 14.11.2006 in Criminal Appeal No.1685 of 1998, whereby the Division Bench of the High Court of Madhya Pradesh at Jabalpur, has allowed the appeal in part and altered the conviction of the respondent-accused from Section 302 IPC to Section 304 Part I of IPC. The respondent-accused was in custody for about ten years and five months as on the date of the judgment passed by the High Court. The High Court has sentenced the accused for the period which he had already undergone.

2. The prosecution case in brief is that Nazma Begum (hereinafter referred to as the `deceased') is the wife of the respondent-accused. They were married about eleven years back from the date of the incident. Reshma and Taufique are the daughter and son respectively of the accused and the deceased. In the intervening night of 17th and 18th June, 1996, the accused went to attend the `Milad' and came back to his house at 12 in the night. It is said that after coming to his house, some altercation took place between the deceased and the accused, as a result of which the accused gave a kick to the deceased and on receiving the blow of kick, deceased was hit by the flagstone of almirah. The accused further gave two to three pushes to the deceased, as a result whereof she received multiple injuries. Thereafter, the accused strangled the deceased by an artificial plait (chutila), as a consequence of which she died.

3. The incident was witnessed by the minor children namely, Reshma and Taufique. It is further averred that the accused terrorized his children and told them not to disclose the incident to anybody. It is further contended that later on the deceased went to the house of his neighbour, Sitaram Pathak and told him that after attending the `Milad', when he came back to his house, he found his wife dead. He requested Sitaram Pathak to call his parents-in-law. In the morning of next day, his father-in-law lodged a report at 5.19 hours in the concerned police station.

4. On lodging of the FIR, the police party arrived at the spot; prepared inquest report of the dead body of the deceased and sent it for post mortem, prepared the spot map, recorded the statement of the witnesses and seized the blood-stained earth, as well as, other articles from the place of occurrence. The police arrested the accused and at his instance, an artificial plait, which was used as a weapon in the commission of the offence and a Mangalsutra were seized.

5. After the completion of investigation, a chargesheet was submitted in the competent court, which on its turn committed the case to the Sessions Court. The Sessions Court, on the basis of the averments made against the accused in the chargesheet, framed charge punishable under Section 302 of IPC, which he denied and requested for trial.

6. In order to prove the charge, the prosecution examined thirteen witnesses and placed Ex.P/1 to Ex.P/15, the documents on record. The accused in support of his defence, examined two witnesses as DW-1 and DW-2. The trial court on appreciation of the evidence on record held that the accused did commit the offence for which he was charged and eventually convicted him under Section 302 of IPC and sentenced him to suffer rigorous imprisonment of life and fine of Rs.2000/-, in default to undergo further rigorous imprisonment of one month.

7. As noticed above, the High Court has altered the punishment and convicted the accused under Section 304 Part I of IPC.

8. We have heard learned counsel for the appellant and learned senior counsel for the respondent at length. Learned counsel appearing for the appellant-State submits that the High Court was not justified in setting aside the conviction of the accused under Section 302 IPC and convicting him only under Section 304 Part I of IPC. It is argued that having regard to the evidence on record, particularly the evidence of eye-witnesses, PW-5 and PW-6, and