Full Judgment
Charanjit Talwar, J.
(1) The appellant Ganga Singh is challenging his conviction for an offence punishable under Section 302 of the Indian Penal Code. The sentence of life imprisonment imposed on him by the trial court vide order of 22nd March, 1986 has also been impugned herein. Apart from imprisonment for life, the appellant was sentenced to pay fine of Rs. 2.000.00 also. In case of his failure to pay the fine, the appellant was directed to undergo further R.I. for two years.
(2) We have gone through the record with the assistance of Mr. O.P. Soni, learned counsel for the appellant. At the outset we may notice that the prosecution has been able to prove that on 10th July 1985 at about 8.30 A.M. the appellant herein strangulated his wife. We have carefully gone through the testimony of Public Witness . 3 Shri Raj Singh, who was the only eye witness. We agree with the finding of the trial court that this witness is trustworthy. His presence at the scene of occurrence cannot be doubted as he is also an inhabitant of Shaheed Sukhdev Nagar, Industrial Area, Wazir pur. Delhi the occurrence took place at Jhuggi No. 448 and the witness was residing at Jhuggi No. 19 of that very area. It is unnecessary for us to notice the facts of the prosecution case all over again as Mr. Soni is not challenging that finding on merits. His contention is that the offence made out falls under Part-II of Section 304, Indian Penal Code. His plea is that the accused be released on the sentence already undergone by him.
(3) According to Raj Singh, the appellant and his wife were quarrelling for about 15-20 minutes before the wife was strangulated. To quote from his testimony. 'The accused was beating the deceased with fist blows. The quarrel was taking place at the door. I did not try to intervene in between the accused and the deceased. The accused and the deceased were grappling with one another. Sometime the deceased fell on the ground and sometime the accused fell on the ground. I did not see any injury on the person of the accused'.
(4) The above statement was made by the witness in his cross-examination. In his examination-in-chief,he had stated that he bad seen the deceased lying on the cot in the Jhuggi and be saw the accused pressing her neck with a muffler. This witness does not impute any motive for the crime. We may note that the first informant Arvind Kumar Gautam did not support the prosecution case and was permitted to be cross-examined. Nothing worthwhile was brought out in his cross-examination. As noticed above, Public Witness . 3 Raj Singh is the only witness whose testimony is to be assessed for purposes of finding out as to whether this offence falls within the purview of Section 300, Indian Penal Code or Section 304, Indian Penal Code.
(5) The prosecution does not allege that the crime was committed with any pre-meditation by the appellant. It is apparent from the testimony of the eye witness that there was no intention on his part to put her to death During the quarrel, it is admitted that the wife felled the appellant. It appears that because of her grappling or fight back, the appellant completely lost his temper and in a sudden temper pressed her neck with a muffler. The death was due to asphyxia resulting from strangulation. This is the opinion of Dr. L.T. Ramani (P.W.4) who conducted the post mortem on the body of the deceased. According to the testimony of the Doctor no bone had been broken. He found only 'faintly visible linear abrasion mark running horizontally on the front and left side of middle of neck, size 8 cm long'. This shows that the muffler had not been wound around the neck but had been pressed on the front portion of the neck.
(6) Keeping the background of the quarrel in view, it is to be held that the appellant had no intention to murder his wife and the offence thereforee, is not punishable under Section 302 of the Indian Penal Code. It is further apparent that the crime was committed in a sudden temper. Mr Soni's reliance on Ukarda v. State of Rajasthan, 1988 (2) Raj LR 817, therein similar circumstances it was held that the offence fell under part-II of Section 304, Indian Penal Code, is well founded. In the said case the wife wanted to go to her parents house but the husband did not allow her. That led to a dispute and the wife started abusing the husband which angered him and he lost his temper. He had no intention or pre-design to put her to death but in a sudden temper he pressed her neck which resulted in her death.
(7) In the present case we are of the view that the appellant had no intention of causing such bodily injury as was likely to cause death. As held by the Supreme Court even knowledge on his part of- 'lower degree of likelihood'. is absent.
(8) We convert the conviction from Section 302. Indian Penal Code to one under Part Ii of Section 304, Indian Penal Code. We set aside the sentence of life imprisonment and also of fine but award the appellant rigorous imprisonment for five years.
(9) The appeal is allowed to the extent indicated above.