IMPORTANT POINT
The court ruled that the Appellant's actions constituted culpable homicide not amounting to murder under Section 304 Part-II IPC due to lack of premeditation and presence of heat of passion.

JUDGMENT :

Sanjay Kumar Jaiswal, J.

1. Invoking jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, 1973 the Appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 31.1.2020 passed by the Additional Sessions Judge (FTC), Baikunthpur at Korea, Chhattisgarh in Sessions Case No.10 of 2019 by which he has been convicted and sentenced as under:

2. According to the case of prosecution, the Appellant and injured are husband wife. Deceased Hansi Bai was mother-in-law of the Appellant. They were living separately. Injured wife was living at her maternal house with her child and other family members at Adarsh Chowk, Patna. The Appellant was residing at Village Jhilmili, Bhaiyathan. Generally there had been quarrel between husband and wife on the pretext that injured wife should live with the her husband/Appellant at Village Jhilmili. On 6.4.2018 the Appellant came to her in-laws’ house. At around 8 p.m., they all had food etc. and went to sleep. Injured slept with her son and deceased in separate room, and the Appellant with her nephew in another room. In and around midnight the Appellant woke up and started abusing the injured by pressing her neck. She resisted and cried for help. Then the Appellant went out side and brought an axe. She tried to close the door but could not succeed, as the Appellant opened with force of leg. The Appellant caused her injury with the said axe on head, ear, thigh, neck, hand etc. Looking to the situation, the deceased started shouting for help and resisted, to stop such assault, on which the Appellant pushed her on bed and assaulted her with such axe on her neck, resulting into her death due to said neck injury.

3. Based on information of the incident, First Information Report (Ex.P8) for offences punishable under Sections 302 and 307 of the Indian Penal Code was registered against the Appellant. Investigation was carried out. The Appellant was apprehended. Site map was got prepared. Statements of witnesses were recorded. Proceedings of recording memorandum statement and seizure were carried out and upon completion of other investigational aspects, a charge-sheet for offences punishable under Sections 302 and 307 of the Indian Penal Code was filed. The Trial Court framed charges under Sections 302 and 307 of the Indian Penal Code against the Appellant.

4. To rope in the Appellant, the prosecution examined as many as 10 witnesses and exhibited 24 documents. In examination under Section 313 of the Code of Criminal Procedure, the Appellant denied the guilt and pleaded innocence. In defence, he did not examine any witness.

5. On completion of the trial, vide the impugned judgment, the Trial Court convicted and sentenced the Appellant as mentioned in first paragraph of this judgment. Hence, the instant appeal.

6. Learned Counsel appearing for the Appellant submits that the Appellant has been falsely implicated in the crime in question and he has been convicted by recording a finding which is perverse to the record. He further submits that if the case of the prosecution is taken as it is, it would be a case, at the most, of commission of offence under Section 304 Part-II of the Indian Penal Code and the Appellant is in jail since 26.9.2018, i.e., for about 6 years, and, as such, it is a case where conviction of the Appellant for offence under Section 302 IPC can be converted/altered to offence under Section 304 Part-II IPC. Thus, the present appeal deserves to be allowed in full or in part.

7. Per contra,