»•":&—;stfe ^ B -^S?;", ^^^Js^'r !!scSsa!<f ^-.'^ :iV- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA SB HON'BLE MR. R. L. JHANWAR. JJ. Crimmal Aopeal No. 897/1989 APPLICANT (JaU) Vs. RESPONDENT Smt. Rukhmani Bai, w/oSunder Lal, aged about 28 years, resident of Khuta Para, Dongargarh, District Rajnandgaon, M.P. State of Madhya Pradesh through P.S. Dongargarh, District Rajnandgaon, M.P. APPEAL^ UNDER SECTION 374 OF CODE OF CRIMINAL PROCEDURE. Present:- Shri Arvind Kumar Dubey, Advocate for the appellant. Shri Rakesh Jha, Additional Public Prosecutor for the State/respondent. is-'-?'':^^'rljf. ORAL-JUDGEMENT (Passedon 19/02/2010) The following iudgment of the Coyrt was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 1/9/89 passed by Sessions Judge, Rajnandgaon in Sessions Trial No. 7/89 whereby 85 where under leamed Sessions Judge after holding the appellant guilty for the commission of culpable homicide amounting to murder of deceased Gulab Khan convicted the appellant under Section 302 YOGENDRA SINGH KANWAR Digitally signed by YOGENDRA SINGH KANWAR Date: 2025.02.21 12:09:25 +0530 i—s of the Indian Penal Code and sentenced imprisonment for life. Conviction is impugned on the ground that without there being any iota of evidence of coinmission of murder, leamed Sessions Judge has convicted and sentenced the appellant as aforementioned and thereby committed illegality. Case of the prosecution, in brief, is that on the fateful day of 25/11/88 at about 10.30 p.m. deceased Gulab Khan came to his house after consuming liquor. He abused his wife and children and while he was going in front ofthe house of the appellant, appellant came and assaulted him over his head by axe from his back side on assumption that deceased was abusing (using unhealthy language to her), deceased fell down and become unconscious. PW1 Salim Khan, son of the deceased went to the police station and lodged First Information Report vide Ex. P-1. They took the injured Gulab Khan to the hospital for treatment. He examined by PW9 Dr.~ N. Sachdeo vide Ex. P-6A and found one / incised wound over scalp on left side of 2 Vz" x l/a" x skin deep, (skull bone was visible). Injury was grievous. During course of treatment at about 12.55 A.M. on 26/11/88 Gulab Khan died. The death was intimated by dpctor to police station Dongargarh vide Ex. P-7. ' •'"3i^ ..< '•<t %. ::i"Sia,, 1 "" '3?'*J '•?': »4S!ltBS.: g<l:"SISB; Marg was recorded vide Ex. P-7A. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P-4, inquest over the dead body of the deceased was prepared vide Ex. P-5. Dead body was sent for autopsy to Primary Health Center, Dongargarh vide Ex. P-8A. Autopsy was conducted by PW10 Dr. Rajesh Sadani vide Ex. P-8 and found one surgically repaired and stitched wound of 2.5 long over left parietal region. Sub-dural haemotoma was found inside the brain. Cause of deafh was cardio-respiratory failure as a result of hemorrhage. Blood stained cloths were seized vide Ex. P-2. During course of investigation accused was taken into custody she raade disclosure statement of axe vide Ex. P-9 same was recovered at the instance of appellant vide Ex. P- 10. Blood stained & plain soil were recovered from the spot vide Ex. P-11. Spot map was prepared vide Ex. P- 12. Seized articles were sent for chemical examination, jiresence of blood over the axe was found by report Ex; P-13 (FSL). ~ / Statemehts of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in' short 'the Code'). After completion of the investigation charge sheet was filed in the Court of Judicial Magistrate First Class, Dongargarh who in turn -&-•' committed the case to fhe Court of Sessions, Rajnandgaon. Learned Sessions Judge received the case on transfer for trial. 7. In order to prove the guilt of the appellant/accused, the prosecution has examined as many as 12 witnesses. Statement of the accused was also recorded under Section 313 of fhe Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. 8. Appellant has taken specific defence that the deceased entered into her house while she was alone and tried to outrage her modesty then she pushed the deceased then deceased fell down in her house. 9. After affording opportunity of hearing to the parties, the learned Sessions Judge has convicted and sentenced the appellant as aforeraentioned. 10. We have heard Shri Arvind Kumar Dubey, counsel for the appellant and Shri Rakesh Kumar Jha, Additional Public Prosecutor for the State, perused the judgnient / impugned and record of the court below. 11. Leamed counsel for the appellant vehemently argued that even according to the case of the prosecution while deceased was going in front of her house and was - ' abusing then on assumption that deceased was ^' .d:iiS6i : ilV BH!1 abusing her, she assaulted him by axe shows that she has not caused any fatal injury with intent to cause the death of the deceased. Blood was found inside the house of the appellant, appellant has taken the defence that deceased came into her house and ta-ied to outrage her modesty then she pushed him. The defence taken by the appellant is well corroborated by the circumstances that blood was found inside the room of the appellant. The evidence of alleged eye witness PW2 Smt. Aishabai, wife of the deceased as full ofomission, contradiction and exaggeration and is not safe to rely; 12. On the other hand, leamed counsel for the respondent/State opposed the appeal and submits that appellant has intentionally caused fatal injury to the deceased and as a result of fatal injury deceased died on same day shows her grave intention of causing the death of the deceased. Evidence of PW2 Smt. Aishabai wife of the deceased whose presence at the time of incident on the spot was natural inspire confidence, trustworthy'and safe to rely. / 13. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case death of the deceased as a result of injury has not - • been. substantigtlly disputed by the appellant, on the •^ \ :;3!i '••'iill l!k. i ;3B3 lS!!i!(!i'- otherAand, also established by the evidence PW9 Dr. N. Sachdeo and autopsy report Ex. P-6A, PW10 Dr. Rajesh Sadani and- autopsy report Ex. P-8 which reveals that one incised wound was found over the left partial region of the deceased including sub-dural haemotoraa. Death was as a result of such injuiy and was homicidal in nature. 14. As regards the complicity of the accused/appellant in the crime in question is concerned, the prosecution Uas examined PW2 Smt. Aishabai, eye witness who has deposed in her evidence that at the time of incident her husband Gulab Khan since deceased came at about 8 p.m. he was in drunken condition, he abused her and her children while her husband was going in front of the house of the appellant which was way which they used,.'appellant came with axe and told that why he is abusing her and assaulted by axe over the head of the deceased from his back side. Her husband fell down immediately she rushed and snatehed the axe and thrown in the courtyard. She also pushed the appellant -. / into hei- room. The deceased woken up and went inside the room of the appellant on the assumption that appellant may not cause any injury to hirn blood also spread in the room of the appellant finally she brought - 'the deceased in her house and went to the house ofher '%.'8t s% y i ::,:y ^,f ^.^;;; •f^ liihi brother. Her son went to the police station and lodged the report. They took the deceased to hospital and her husband died in the hospital during treatment. Defence has cross examined.this witness at length in Para-13 of her cross examuiation she has specified that the path (way) is situated in the courtyard of the appellant. She has also stated in Para-17 of her evidence that she has stated the police that she pushed the appellant inside her house fhen her husband also came inside the house of the appellant but this fact does not find place in the Ex. D-1 of her statement recorded under Section 161 of the Code. She has admitted enmity between appellant and herself in Para 21 of her evidence. Present appellant has taken the specific defence that deceased came into her room and tried to outrage her modesty but she has not asked any question to this witness or to any other witnesses. She has taken such defence in her examination under Section 313 of the Code.but has not adduced any evidence even she has not examined herself as defence witness. In absence of / any defence relating to attempt to outrage the modesty of the appellant such defence is not of worth credence. 15. After appreciating the evidence available on record learned Sessions Judge has convicted the appellant - 'under Section 302 ofthe Indian Penal Code. In absence •i;s!S;l » ^ s(i of any explanation and injury of the deceased the evideiice of PW2 Smt. Aishabai, eye witness whose presence at the time- of incident in her residence was natural. Her conduct appears to be natural inspire confidence and trustworthy. Her evidence is sufficient for drawing an inference that appellant has caused injury over the head of the deceased by the axe. 16. As regard the question of motive is concerned, evidence of PW2 Smt. Aishabai clearly shows that deceased was not abusing the appellant but on assumption that deceased was abusing her, she assaulted the deceased. Injury' was grievous in nature but not fatal. Appellant has not caused repeated injury even when the deceased entered into her room sufficient opportunity was available to her but she has not caused repeated injury shows that only on assumption fhat deceased has abused her on annoyance, she has caused single blow this shows that appellant has not caused any injury with intent to cause the death of the deceased but while causing the injury by axe over the head of fhe / deceased she was having knowledge that as a result of such injuiy deceased may die. 17. The evidence adduced on behalf of the prosecution is not sufficient for drawing an inference that appellant .- has caused injury with intent to cause t1"2 A°.ath of the ^ a ^.f .,-j:fgi. wss" 18. deceased but is sufficient for drawing an inference that while causing the injuiy appellant was having knowledge that as aresult of injury deceased may die; Consequently, the act of the appellant squarely falls within the ambit of under Section 304 Part-II of the Indian Penal Code while convicting the appellant leanied Sessions Judge has not considered the material aspect of the case and thereby committed an illegality. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 of the Indian Penal Code is altered into under Section 304 Part-II of the Indian Penal Code and his sentenced rigorous imprisonment for 7 years. Appellant was in custody for some period, her period of detention shall be adjusted in the sentence awarded to her. Appellant is in bail she shall immediately surrender before the Sessions Judge, Rajnandgaon for serving remaining sentence. Sd/- T. P. Sharma Judge.; Sd/- R.L. Jhanwar Judge