Judgment:
Rajeev Gupta, C.J.
1. Appellants Gulab Sahu and Smt. Mithilesh Sahu stand convicted under Section 302 read with Section 34 of the IPC with sentences of imprisonment for life and fine of Rs. 1,000/- vide impugned judgment dated 2-5-2003, passed by the Additional Sessions Judge, Bemetara, Distt. Durg in Sessions Trial No. 318/2002.
2. Appellants Gulab Sahu and Smt. Mithilesh Sahu have been found guilty of causing those injuries on Smt. Mungabaion 2-8-2002 which resulted in her death on 30-8-2002.
3. The prosecution case as disclosed by deceased Mungabai in her dying declaration (Exh. P-14) is that appellant No. 2 Smt. Mithilesh Sahu, daughter-in-law of deceased Mungabai and wife of Rohit Kumar (P.W. 3) developed illicit relationship with appellant No. 1 Gulab Sahu which was deprecated by deceased Mungabai time and again. In this background, the appellants on 2-8-2002 when deceased Mungabai was busy in worshipping, caught hold of her and appellant Gulab Sahu tried to press her neck. Deceased Mungabai resisted and tried to save herself. In the process her head struck with the wooden plank of the cot which was lying there, as a result whereof she sustained injury on her head region which ultimately proved fatal.
4. Shri N.S. Dhurandhar, learned Counsel for the appellants did not dispute the homicidal nature of death of deceased Mungabai. Learned Counsel however, contended that the appellants' conviction under Section 302 read with Section 34 of the IPC as recorded by the Trial Court is not legally sustainable as even according to the prosecution case, the injury on the head region of the deceased was not caused by any of the two appellants and the injury which deceased Mungabai sustained on 2- 8-2002 resulted in her death after 28 days on 30-8-2002. Learned Counsel further submitted that the offence against the appellants, at the most, would be one of culpable homicide, not amounting to murder and would be punishable under Section 304 Part II of the IPC only. Learned Counsel further submitted that appellants Gulab Sahu and Smt. Mithilesh Sahu have been in custody for a period of more than six years.
5. Shri Ashish Shukla, learned Government Advocate for the State, on the other hand, supported the judgment of the Trial Court and contended that the conviction of the appellants under Section 302 read with Section 34 of the IPC is well founded and does not call for any interference in this appeal.
6. The appellants' conviction is founded on Dying Declaration (Exh. P-14) of deceased Mungabai recorded in the form of her case diary statement by the police; and the evidence of Shiv Prasad Sahu (P.W. 1), Mohan Sahu (P.W. 2), Rohit Kumar (P.W. 3), Baldau Prasad (P.W. 4), Tilku @ Tilakram (P.W. 5) and Smt. Pushpabai (P.W. 6) about the oral dying declaration of deceased Mungabai to the effect that appellants Gulab Sahu and Smt. Mithilesh Sahu were responsible for her death.
7. Deceased Mungabai sustained the injuries as detailed in her injury report (Exh. P-6) on 2-8-2002 is borne out from her dying declaration (Exh. P-14) recorded in the form of the diary statement by the Police and the evidence of Shiv Prasad Sahu (P.W. 1), Mohan Sahu (P.W. 2), Rohit Kumar (P.W. 3), Baldau Prasad (P.W. 4), Tilku @ Tilakram (P.W, 5) and Smt. Pushpabai (P.W. 6) about her oral dying declaration. We, therefore, affirm the finding recorded by the Trial Court that deceased Mungabai died on account of the head injury sustained by her in the incident on 2-8-2002.
8. The next question, which crops up for our consideration is about the nature of the offence proved against appellants Gulab Sahu and Smt. Mithilesh Sahu.
9. Deceased Mungabai sustained injuries on 2-8-2002; she was admitted in the hospital on 3-8-2002; she was discharged from the hospital on 6-8-2002; she was again admitted in the hospital on 21-8-2002; she died during the course of her treatment in the hospital, on 30-8-2002. The Autopsy Surgeon Neeraj Sindhey (P.W. 13), on post-mortem examination opined that deceased Mungabai died on account of the shock due to head injury. In her initial medical examination by Dr. N.K. Tiwari (P.W. 8), two contusion and one abrasion were found, as detailed in her injury report (Exh. P-6). In her X-ray examination, no fracture corresponding to the head injury was detected. The Autopsy Surgeon in response to the query from the police vide Exh. P-15 further opined that the death occurred due to Haematoma corresponding to the head injury.
10. From the prosecution case itself it is apparent that appellants Gulab Sahu and Smt. Mithilesh Sahu are not directly responsible for the fatal injury on the head region of the deceased. In view of the above fact and the gap of about 28 days in between the incident on 2-8-2002 and her death on 30-8-2002, we find it difficult to hold with any amount of certainty that the appellants while catching hold of the deceased by her neck had intended to cause the said injury on her head region which she sustained accidentally and ultimately proved fatal. Thus, we have no hesitation in holding that the appellants' conviction under Section 302 read with Section 34 of the IPC as recorded by the Trial Court cannot legally by sustained.
11. Nevertheless, the appellants cannot escape from their liability altogether. The appellants well can be imputed with the knowledge that while they were catching hold the deceased by her neck she might sustain the injury, which she actually sustained in the present case on her head region. Thus, the appellant's above act would certainly amount to culpable homicide not amounting to murder and in the facts and circumstances of the present case would be punishable under Section 304, Part II of the IPC.
12. As for the sentence, both the appellants are reported to be in custody for the last more than six years since their conviction by the Trial Court vide impugned judgment dated 2-5-2003. We are, therefore, of the opinion that custodial sentence of six years would be sufficient punishment for the offence proved against the appellants under Section 304 Part II read with Section 34 of the IPC and would meet the ends of justice.
13. For the foregoing reasons, the appeal filed by the appellants against their conviction and sentences is allowed in part. The appellant's conviction under Section 302 read with Section 34 of the IPC and sentences of imprisonment for life and fine of Rs. 1,000/- awarded by the Trial Court are hereby set aside. Instead appellants Gulab Sahu and Smt. Mithilesh Sahu are convicted under Section 304 Part II read with Section 34 of the IPC and are sentenced to Rigorous Imprisonment for six years each.
14. Appellants Gulab Sahu and Smt. Mithilesh Sahu are in custody. If they are found to have already undergone the whole of the sentence of Rigorous Imprisonment for six years, now awarded, they be set at liberty forthwith, if not wanted in connection with any other cases.