JUDGMENT : G.K. Vyas, J. Instant jail appeal has been filed by the accused appellant Babu lal from Central Jail, Udaipur to challenge the judgment dated 10.02.2010 passed by the Additional District and Sessions Judge (FT) Chittorgarh in Sessions Case No. 65/2008 whereby, the accused appellant was convicted for offence under Section 302 IPC and following sentence was passed against him: Under Section 302 IPC Life Imprisonment and a fine of Rs. 5,000/- and in default of payment of fine to further undergo two months simple imprisonment. 2. As per the brief facts of the case, the complainant Mangi lal Gurjar PW/1 gave submitted a written report Ex.P/1 at Police Station Shambhupura, District Chittorgarh on 15.09.2008 at 10:20 AM in which he stated that today in the morning at 9AM when he was going towards his house from his agricultural field (Bada), at that time he heard hue and cry from the house of his neighbour Ramba Gurjar. He immediately rushed to the house and saw that daughter-in-law of Shri Ramba, Smt. Narayani was lying on floor and blood was oozing from her body and her son Goverdhan was weeping while standing near the body. Goverdhan son of Narayani informed that his father Babu lal Gurjar inflicted injury by axe upon the body of his mother Narayani and due to the serious injury, she died after some time. As per information given by Mangi lal, the appellant Babu lal committed murder of his own wife Narayani by inflicting injuries upon her body by axe. It is apprehended by complainant that some dispute arose between the husband and wife, therefore, the appellant caused injuries upon the body of deceased. It was prayed that action may be taken against him. 3. Upon aforesaid complaint Ex.P/1, FIR No. 158/2008 was registered under Section 302 IPC against the appellant. SHO Police station, Shambhupura conducted investigation and filed charge-sheet against the accused appellant under Section 302 IPC in the court of Judicial Magistrate, Chittorgarh. 4. Learned Magistrate committed the case for trial to the court of Sessions Judge, Chittorgarh but later on transferred to the court of Additional District and Sessions Judge (FT) Chittorgarh for trial. During trial, after providing an opportunity of hearing, charges were framed against the appellant under Section 302 IPC but the appellant denied the charges levelled against him and prayed for trial. 5. During trial, after providing an opportunity of hearing, charges were framed against the appellant under Section 302 IPC but the appellant denied the charges levelled against him and prayed for trial. 5. In the trial, statements of 27 prosecution witnesses were recorded. After recording statement of prosecution witnesses, statement of accused appellant under Section 313 Cr.P.C., 1973 were recorded and an opportunity was given to explain his defence. 6. During trial, 33 documents were exhibited from prosecution side but no evidence was led by the appellant in his defence inspite of granting an opportunity to lead evidence in defence. 7. Learned trial court after recording evidence granted an opportunity to both the parties to finally argue the case and after hearing final arguments, held the accused appellant guilty for offence under Section 302 IPC and passed sentence of life imprisonment alongwith fine of Rs. 5000/- and in default of payment of fine to further undergo simple imprisonment for two months. Instant appeal has been filed by the accused appellant from jail, therefore, Mr. Deepesh Beniwal was appointed as Amicus Curiae to argue the case on his behalf. 8. Learned Amicus Curiae vehemently argued that trial court has committed a grave error while holding the accused appellant guilty for offence under Section 302 IPC in view of the fact that even if entire prosecution evidence is accepted, the offence cannot travel beyond Section 304 Part I IPC. 9. Learned Amicus Curiae further submitted that there is no evidence of motive on record, therefore, it can be said that finding of learned trial court for convicting the accused appellant for offence under Section 302 IPC is not sustainable in law because motive which is main ingredient of murder is absent in this case. According to learned Amicus Curiae probably some hot discussion took place in between husband and wife and in spur of moment, the injuries were caused upon the accused appellant, therefore, it is a case in which conviction of accused appellant deserves to be altered from offence under Section 302 IPC to 304 Part I IPC. According to learned Amicus Curiae probably some hot discussion took place in between husband and wife and in spur of moment, the injuries were caused upon the accused appellant, therefore, it is a case in which conviction of accused appellant deserves to be altered from offence under Section 302 IPC to 304 Part I IPC. The crux of argument of learned counsel for the appellant is that prosecution has failed to prove its case for offence under Section 302 IPC and offence cannot travel beyond offence under Section 304 Part I IPC because there is no evidence of motive/ intention on record so as to hold the accused appellant guilty for offence under Section 302 IPC. Learned Amicus Curiae prayed that this appeal may kindly be allowed in part and conviction of accused appellant may be altered from offence under Section 302 IPC to 304 Part I IPC. 10. Per contra, learned Public Prosecutor vehemently argued that as per evidence on record, the appellant was regularly consuming liquor and he was having two wives namely Kailashi Bai and deceased Narayani. From wedlock of both the marriages, eight issues were born ; four from the wedlock of first wife Kailashi Bai and four issues from wedlock of Narayani Devi. Smt. Kailashi Devi PW/7, wife of the accused appeared before the court as witness and specifically stated that conduct of the accused appellant was so bad with both the wives and he usually assaulted them and children. Smt. Kailashi Bai specifically stated in her statement that she is residing in the house of her father-in-law and Narayani was residing in other house situated in Gurjar Mohalla of Bamaniya alongwith Babu lal. It was stated that she is having three daughters and a son and Narayani is having three sons and a daughter and accused appellant was not doing any work and used to regularly consume liquor. He was addicted to liquor and created bad atmosphere in the house and used to regularly beat all the family members. It was stated that she is having three daughters and a son and Narayani is having three sons and a daughter and accused appellant was not doing any work and used to regularly consume liquor. He was addicted to liquor and created bad atmosphere in the house and used to regularly beat all the family members. Similarly, the son of accused appellant Goverdhan PW/10 specifically stated before the Court that my father was having two wives deceased Narayani and Smt. Kailashi Bai and on the date of occurrence, when he came from his agricultural field, he heard hue and cry of his mother from the house and immediately rushed towards house and saw that my father (accused appellant) having axe in hand and there was injury upon the neck of my mother Narayani and blood was oozing from the injuries and my father after seeing me ran away from the place of occurrence while pushing me in the house. It is also stated by him that soon after the occurrence, Mangi lal, complainant came there and thereafter, Mukesh and Devi lal also came there and my mother died due to injuries caused by my father. 11. Learned Public Prosecutor submits that there is no question to disbelieve the testimony of PW/10 Goverdhan and PW/7 Kailashi Bai because they are son and wife of the deceased and accused appellant. Learned trial court while considering statement of these witnesses as well as statement of doctor PW/17 Sanjay Pareek gave finding that prosecution has proved its case beyond reasonable doubt. 12. With regard to argument of learned counsel for the appellant that there is no motive or intention in this case, it is submitted that conduct of the accused appellant loudly speaks that he was unemployed person and was not having work and used to repeatedly ask money for consuming liquor and upon refusal, he used to beat both the wives and children as stated by them in their statement before the Court, therefore, there is no question to accept the argument of learned counsel for the appellant that offence under Section 302 IPC is not made out in absence of motive. The motive is well established because injuries were caused upon vital part of body that too by sharp edged weapon i.e. axe and all the recovered articles including clothes of deceased and axe was sent to FSL for chemical examination and as per FSL report Ex.P/33, human blood of A group was found upon axe and clothes of deceased as well as accused appellant. Thus, there is no question to accept the prayer of accused appellant to alter the offence from Section 302 IPC to Section 304 Part I IPC and it is prayed that the appeal may kindly be dismissed. 13. After hearing learned counsel for the parties, we have minutely scanned the entire evidence. It emerges from the facts that FIR was registered upon complaint submitted by P.W.1 Mangi lal who went on the spot on hearing hue and cry of deceased Narayani. The said witness Mangi lal categorically stated in his statement that on the date of incident when he was going towards his house, heard hue and cry from the house of his neighbour Ramji Ba and immediately went to the house and saw that Narayani was lying on the floor having injuries upon neck caused by sharp weapon axe. Her son Goverdhan was standing near the body of his mother informed him that my father has inflicted injuries upon neck of his mother Narayani therefore, she fell down and blood is oozing from the injuries. P.W.1 Mangi lal categorically stated that written complaint Ex.P/1 was filed by him, thereafter, investigation was conducted at the place of occurrence and body of deceased Narayani was taken to the hospital. Similarly witness P.W.2 Shankar lal, P.W.4 Prahlad, P.W.5 Mukesh Gurjar, P.W.6 Devi lal, P.W.7 Kailashi Bai, wife of accused appellant, P.W.9 Dakhi, P.W.12 Madan categorically made allegation against the accused appellant that he used to beat both the wives Smt. Kailashi Bai and Narayani and on the date of accident when they reached on the spot, dead body of Narayani was lying and information was given by son of accused Goverdhan that his father inflicted injury upon the neck of his mother Narayan and due to those injuries, she fell down and died. 14. We have perused the statement of eye-witness P.W.10 Goverdhan son of the accused and deceased Narayani Bai. 14. We have perused the statement of eye-witness P.W.10 Goverdhan son of the accused and deceased Narayani Bai. The said witness made following allegation in his statement before the court which reads as under :- ^^esjs firkth ds nks vkSjrsa gSa ftuesa ukjk;.khckbZ o dSyk'khckbZ gSa] esjh cM+h eka dSyk'kh o NksVh eka ukjk;.khckbZ gSA dSyk'kh ds rhu yM+fd;ka o ,d yM+dk gS rFkk ukjk;.kh ds rhu yM+ds ,d yM+dh gSaA eqyfte esjs firkth o esjh eka ukjk;.kh xwtj eksgYyk ckef.k;k esa iqjkus edku esa jgrs Fks] esjs firkth nk: ihrs o ehV [kkrs gS] esjs firkth vk;s fnu 'kjkc ihdj >xM+k djrs jgrs Fks o 'kjkc ds fy;s vk;s fnu iSls ekaxrs jgrs FksA lqcg ds djhcu lk<+s ukS cts dh ckr gS eSa [ksr ls vius ?kj ij vk jgk Fkk] eSa esjs ?kj ds pcwrjs ds ikl esa vk;k rks eSaus viuh eka dh ph[kus dh vkokt lquh Fkh] ph[kus dh vkokt ukjk;.khckbZ dh Fkh] eka dh ph[k lqudj eSa njokts ds ikl esa x;k ogka ij eSaus esjs firkth ,oa eka dks ns[kk Fkk] firkth ds gkFk esa dqYgkM+h Fkh rFkk esjh eka ukjk;.kh ckbZ ds 'kjhj ls [kwu fudy jgk Fkk] [kwu xnZu ls vk jgs Fks] esjs firkth us esjs dks ns[kk o os dqYgkM+h Qsaddj esjs dks /kDdk nsdj Hkkx x;s Fks] ogka ij lcls igys eakxhyky xwtj ogka ij vk;s Fks mlds ckn esa eqds'k ,oa nsohyky vk;s FksA esjh eka us ekSds ij gh ne rksM+ fn;k FkkA^^ 15. We have also perused the statement of P.W.7 Smt. Kailashi Bai, first wife of accused appellant who gave following statement which reads as under :- ^^esjk ifr gkftj vnkyr eqyfte gSa] bldh ,d vkSjr vkSj Fkh ftldk uke ukjk;.kh FkkA eSa ukSgjs esa jgrh gwa ;g ukSgjk ck esjs llqjkth Jhjke ck dk gSA ukjk;.kh xwtj eksgYyk ckefj;k es esjs ifr ckcwyky ds lkFk jgrh FkhA esjs rhu Nksfj;ka ,oa ,d Nksjk gSa] o ukjk;.kh ds rhu Nksjk ,oa ,d Nksjh gSA ckcwyky esjk ifr dqN ugha djrk Fkk] ;g 'kjkc ihrk gS] ;g 'kjkc ihdj /keky djrk jgrk FkkA ;g esjk ifr 'kjkc ihdj eq>s ,oa ukjk;.kh o mlds cPpksa dks ekjrk FkkA ukjk;.kh ckcwyky ds ckjs esa eq>s dqN ugha crkrh Fkh og dgrh Fkh fd mldks ;g 'kjkc ihdj ekjrk gSa eSa ?kj ij igqaph rks ogka ij dqYgkM+h iM+h gqbZ Fkh] mldh duiVh o xnZu ls [kwu fudy jgs FksA^^ 16. The investigating officer has proved the whole investigation conducted by him and recovery of articles and stated before the Court that all the articles taken in possession during investigation were sent to FSL for examination and as per FSL report, human blood of "A" group was found upon all the articles. The FSL report reads as under :- Description of Articles S.No. Packet Exhibit No. Details of Exhibit 1 A1 1 Blood Smeared soil 2 A2 2 Control Soil 3 B 3 Kulhari 4 C 4 Odni - - 5 Blouse 5 D 6 Kameej 6 Nil(Sealed 7 by M.O.) 7 Cotton guage Result of Analysis 1. On serological examination, the blood stains on the following were found to be of Human Origin :- Exhibit No. 1 (From A1), 3 (From B), 4, 5 (From C), 6 (From D) & 7 (From Nil, Sealed by M.O) Result On Blood Group 2. The following exhibits were having stains of 'A' group blood :- Exhibit NO. 1 (From A), 3 (From B) 4, 5 (From C), 6 (From D) & 7 (From Packet marked Nil, Sealed by M.O.)" 17. The following exhibits were having stains of 'A' group blood :- Exhibit NO. 1 (From A), 3 (From B) 4, 5 (From C), 6 (From D) & 7 (From Packet marked Nil, Sealed by M.O.)" 17. Upon consideration of entire evidence on record and arguments advanced by learned counsel for the parties, we are of the opinion that prosecution has proved its case beyond reasonable doubt against the accused appellant for commission of offence under Section 302 IPC because injuries were caused by the accused appellant upon neck of deceased by sharp edged weapon axe and as per statement of doctor PW/17 Dr. Sanjay Pareek, those injuries were serious and sufficient to cause death of the deceased. The prosecution has further proved the fact that behaviour and conduct of accused appellant was bad towards both the wives and children, he used to beat them after consuming liquor and injuries were caused by the accused appellant by sharp edged weapon axe upon the neck of deceased Narayani which is a vital part of the body, therefore, intention can be gathered from the nature of the injuries caused to the deceased wife. 18. In view of above discussion, there is no question to alter the conviction of accused appellant from offence under Section 302 IPC to 304 Part I IPC because it is a case in which a serious crime of killing his own wife is conducted by the accused appellant. 19. In view of above, instant jail appeal being without any merit, is hereby dismissed.