ORDER

The appellant has filed the present Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 against judgment and order dated 28.06.2013 passed in Session Trial No.71 of 2012 by learned Special Judge [under SC / ST (prevention of Atrocities) Act, 1989) and Additional Sessions Judge Ujjain, District Ujjain (M.P.) whereby he has been convicted for offence punishable under Section 302 of the Indian Penal Code, 1908 and sentenced to undergo Life Imprisonment with fine of Rs.1,000/- with default stipulation.

2. As per the prosecution story, deceased Jasodabai got earlier married with one Fugga and had two children Sanjay and Anjali. After the death of Fugga, she started living as a wife with the present appellant. On 20.02.2012 near about 08:00 PM, they both consumed liquor near Free Ganj over bridge and thereafter, some dispute arose between them. The appellant assaulted Yasodabai by means of stick and thereafter strangulated her neck. She died due to asphyxia on the spot.

2.1 An information was given to the Police Control Room on 22.02.2012 at about 07:45 AM. A Marg No.09 of 2012 was registered vide Ex.P/7. Sub Inspector R.D. Pandey reached to the spot and recovered the dead body and sent for postmortem examination. Autopsy conducted by Dr. Sanjay Rana (PW-5) and as per his opinion, the cause of death was strangulation. Statement of Sanjay and Anjali were recorded and First Information Report (FIR) was registered against this appellant under Section 302 of IPC.

2.2 Since the deceased was belonging to Scheduled Tribe, therefore, the investigation was transferred to Scheduled Caste & Scheduled Tribe Police Station. The appellant was arrested and on his disclosure, stick was recovered. All the seized articles were sent to Forensic Science Laboratory for its examination. After completing of investigation, the charge sheet was filed and the trial was conducted.

2.3 The prosecution examined eight witnesses and exhibited eighteen documents. After evaluating the evidence came on record, the appellant has been convicted under Section 302 of IPC and sentenced to undergo life imprisonment.

3. Learned counsel appearing for the appellant submits that the appellant is not assailing the judgment of conviction on various findings and his complicity, but he is assailing the conviction only under Section 302 of IPC.

4. Learned counsel submits that there was no previous enmity between the appellant and the deceased. They were living as husband and wife and as per prosecution story, they consumed liquor thereafter suddenly a dispute arose and out of anger, he assaulted the deceased and strangulated her neck. He is in jail since twelve years and he has no criminal past.

5. Learned Government Advocate opposes the aforesaid prayer by submitting that this appellant strangulated the neck of the deceased due to which she died on the spot and thus he has rightly been convicted under Section 302 of IPC, hence the appeal is liable to be dismissed.

6. We have heard learned counsel for the parties and perused the record.

7. The prosecution examined PW-1 Sanjay and PW-2 Anjali who are children (aged eight years and six years respectively) of the deceased. They have stated that the appellant and their mother (deceased) both consumed liquor and on account of some dispute, due to anger, the appellant strangulated the neck of the deceased and she died.

8. Admittedly, appellant and the deceased were husband and wife and, after consuming liquor, suddenly a dispute arose between them and out of anger, the appellant strangulated her neck, due to which, the deceased died on the spot.

At the time of incident, the appellant was aged about 24 years with no criminal record. There was no previous enmity between them. Therefore, in our opinion, considerable merit in that contention, it is the case of culpable homicidal not amounting to murder and it will fall under section 304 Part-II of I.P.C.

9