Conviction for murder under Section 302 can be amended to culpable homicide under Section 304 based on circumstances, including lack of premeditation and severity of the injury.

ORDER :

1.This criminal appeal is directed against the judgment dated 27.10.2017 passed by learned Additional Sessions Judge No.2, Bayana Bharatpur (for short 'learned Trial Court') in Sessions Case No.09/2017 whereby, the accused-appellant (for brevity ‘the appellant’) has been convicted and sentenced as under:

1. Under Section 302 IPC: Life imprisonment and fine of Rs.2,000/- in default whereof, three months’ simple imprisonment.

2. Under Section 201 IPC: One year’s rigorous imprisonment and fine of Rs. 1,000/- in default whereof, one month simple imprisonment.

Sentences to run concurrently.

2. The relevant facts in brief are that Sh. Ajit Singh (PW-2) lodged a written report dated 11.10.2014 at about 07:50 a.m. at Police Station-Roopbas, District-Bharatpur stating therein that yesterday night at about 11:00 p.m., after study, he went to bed. It was stated that his mother-Shakuntala and his father-the appellant were sleeping in their respective rooms. It was averred that at about 12:40 a.m., he heard his room being bolted from outside and upon asking, he heard his father saying that he would not unlatch the door whereupon, he apprehended that his mother would be murdered as his father used to threaten every other day of it for they were not on good terms. It was stated that he informed his uncle Dharm Singh and also his brother Randheer Singh on mobile whereupon, after 15 minutes, his aunty Chandrawati, brother and two uncle came alongwith other villagers and found his mother dead and his father absent. It was averred that his father returned at about 06:00 a.m. and informed the villagers that he has murdered his wife. Based thereupon, the FIR No.584 dated 11.10.2014 came to be registered for the offence under Section 302/201 IPC. After investigation, the appellant was charge-sheeted. Charges were framed under Sections 302 and 201 IPC. After trial, the appellant has been convicted and sentenced as stated hereinabove.

3. Although, learned counsel for the appellant canvassed that he has wrongly been convicted under Section 302 IPC but, submitted that he would feel contented if the conviction under Section 302 IPC is converted under Section 304 Part I IPC. Elaborating his submission, learned counsel submitted that as per the postmortem report of the body of the deceased (Ex.P27), she has received only one lacerated wound on her skull which has been found to be fatal. He further submits that a wooden log was recovered at his instance and in view of the prosecution evidence that the deceased was defenceless and he did not repeat the blow despite having opportunity, his conviction under Section 302 IPC deserves to be altered to the conviction under Section 304 Part I IPC.

4. Per contra, learned Public Prosecutor opposed the prayer.

5. Heard. Considered.

6. Although, the prosecution witnesses namely, S/Sh. Dharm Singh @ Bhura (PW-5) and Randheer Singh (PW-6) have deposed to have seen the appellant inflicting blow on the body of the deceased with a wooden log but, disbelieving their testimony, it was held by the learned trial Court, vide impugned judgment dated 27.10.2017, that the case is based on circumstantial evidence. The appellant has been convicted on the premise that he was last seen in the company of the deceased, only three persons were present in the house-the scene of crime, i.e., the appellant, the deceased-his wife and Ajit Singh-informant and their son, after the incident, he fled, the bloodstained weapon of offence and bloodstained loin cloth worn by him at the time of incident, were recovered at his instance. The learned trial Court has further held that from the evidence available on record, it was established th