g Xi-HC—78 *ffHC(T a»<11^» 'TSf •<iwwii, anl'M'Ko, faltrliyy ^^...CcS~.A..,....L^..fe./..fc.S.. •H^.200 SH^TT'TW ('^3^?) snisi qn ft-fi'ti ^T ^TT^T sFTTW TOiiw^ifCTOT^r ^)l<rfCT<l1l 'RTO^f "^* 'fe1^ tf^^ ^TSffiltf 3)1^1 DIVSION BENCH: HON'BLE SHRI L.C. BHADOO& HON'BLE SHRT T:P7^iAFU i.J>» CraMINAL WPEAl, UO, 1WS003 APPELLANT Suldaim phigh alias Sukkum S/o Kariyaram Gond, afaed about 28 yeais, R/o vUlage Michgao(), Polic®Station Manpur, District RajnandAaon, CG. VERSU RESPONDENT Stateof Manpur, Shri VishnuKoshta couns Shri Sudhir Bajpai Dy. GA Shhatlisgarti through Poltee Stetion plstrict Rajnandgaon, CG. •I for the appellant. br the re^on<tenffStete. JUOGMfl NT(ORAL) (Passed oi\25.6^00^ L.C. BHADOO. J This appaal is directed ag order of sentence dated 5.12.2C Rajnandgaon in Sessions Trial Sessions Judge convicted the the IPC for committing the murder undergo imprisonment for life. ^inst the judgment <rf convictten and .20p2 passed by the Sessions Judge, |Mo. 125/2001 whereby the leamed ac^used/appellant under sertion 302 of bf one Sukhdev and sentenced him to -r -3.' 'S^t -^MW^, Q-i^WW, fadK-iy p....C/X.,..^.......(.U.^.^200 3(1^1 'T^T ('^3^') an^i ^ii !<-f '^T^n^f'g^ri^' TOIIWHfcfSil^I 'tillii'l'fl') ^Wi^! tf fvS <ratsi< ^? sifgH aii^a anld PancHas Case ofthe prosecuBon in briel| [atong with vtllage Kotwar Nakul Sai |and lodged the report to the effect Ibetween the accused and the cteeeaseld Ihouse of accused Sukkum Gond Ibrother Sukhdevwith knife and information, merg intimaUon No. [that FIR Ex P-10was registered. joccurrence, he prepared inquest Ex P\ faiving notice Ex. P-11 to the |accused gave memorandum Ex. P-1 Irecoveredthe knife uncter Ex. P-2. (nvestigating Officer. The |under Ex. P-4. Blood stained and pla| yrom the placeofoccurrence under Exj |Sukhdev was sent for post mortem) pentre, Manpur where Dr. Mohan Lal |nortem and in the post mortem repor^ |death ofSukhdev was hypovolumic ;hemicai examination to Forenste jwhere report Ex. P-16 was recewed. is that on 15.6.20D1 one Kejuram 'jrent to the poltce station Manpur Ithat there was some altercation regarding tying ofthagoatinttie in the quarrel he atteclesd his cem(nitted his murder. Rscewing ttris 10/2D01 was rworded and based on InvesFgating Officer teft for the scene of ^12 on the body of Sukhdev after White in police custody, the |and in pureuance of that he got Site| plan Ex. P-3 was prepwed by the ofthe decesBed were seized |n soil was taken into possession P-5. Thereafter, the dead body of examination to Primary Health Tikam PW-4 conducted the post repor^ Ex. P-6 he opined ttiat cause of sHocfc. Seized articles were senfrfor Sjcience Laboratory, Raipur, from undergarme|nts P. After completion ofinvestigatiorj pourt of Judleial Magistrate First Clasjs Isommitted the case to thecourt of Sesii the charge sheet was filed in the s, Ambagarh Chowki who in tum ;ions Judge, Rajnandgaon. -y.iiy'-fii) ^ft^ TS/197—3/2008—40,000. T XI-HC—78 s^y w R'fi'b TTSff 3TI^?T $k^i<=lb 'S'ST "4i<il<n<i, s>Tfl'H'is, fsidiyy,< . . .!:^r?T.:.B...-...l..cf.6../...Q. KIKdl <hMI<*> ••'"••—••"•'•-/—"»• -^200 sn^T'T^? ('^3^'?) TOITW ^lf5?( 311^1 4. In order to establish prosecution has examined nini was recorded under section 31 which he has denied the prosecution case and pleaded erime in question. (he charge against the accused, the witnesses.Statement of the sacused 1|3 of the Code of Criminal Procedure in rr|aterial appearing a^unst him in Uie ttis innocence and fialse implication in the 5. Leamed Sessions Judge | convieted and sentenced theact Koshla 6. We have heard Mr. Mr. Sudhir Bajpai Dy. GA for the| 7. Learned counsel for the| homicidal death of deceased SkJ PW-4 has stated that on 16.6.211 in the Primary Heatth Centre, day, the dead body of Sukhd^\ examination and he conductect injury on the chest In the siz^ started. There was a penetratin|g heart and the cause of death above evidence it is in nature. As iar as complicity concerned, leamed counsel attention of this court towardsl established that the fortthe <h[^<n<4li TTWcff ^f 'f^^t' <f<1^1-l. ^siRn 3ii^i after hearingcounsel for both the parties sused/appellant as mentioned above. counsel for the accused/appeflant and respondent/State. aecusectoppellant has not disputed <he bkhdev. Moreover, Dr. Mohal Lal Tikam X)1 he was posted as the Medicat Officer iharritola, District Rajnandgaon. On that sv was brought to him for post mortem the post mortem at 4 p.m. Ttwe was of 2x1/2x4 inch and putrefaction had injury exfending up to the centre of the was hypovolumic shock. In view of the death of Sukhdev was homicidal if the accused in the crime in questlon is accused/appellant while drawing ttie paragraph 8 of the evwlence of PW-7 S^S 'Vf K-U* WII 3IR?I aiiiT inwii vhww 7=r "41'41d-4, 0'flly®,fsl<y1l'yll< ___...C.'-s-.,.^...'...(..t<.&./.6.%.. 3II^!T T^T (^ai't?) +iilcitil-1 'flnsff ^i 'fetzt <r^ti;]i ^gifiiHa.ii^i Kotyaram, the fafter ofthe decea^ed and the accused, argued that Biis witness has stated that the acci4ed and the deceased were in their respective rooms, he saw deceas^d Sukhdev coming out of his room carrying knife and going into the rfsom of Suldcum and what happened thereafter, he did not know. He sufc|mltted ttiat in wew of the evklence of ^Biis wifaiess, in fact deeeased was 4arrying the knife and therefore, there is no question of accused attacki falsely implicated in the crime In qu< ig the deceased and he has been (stion. 8. In order to appreciate the|argument of the counsel for the accused/appellarrt, we have scrutii^ized the evidence of the witnesses and oUiermaterial availabte on reccjrd. PW-7 Kotyaram who is thefether ofthedeceased and aecused has s from rain, the accused was fodng iated that iirorder to protect ftie goat i stump Tor tylng it in the verandah ^4g?iri^T which was objected by the decea|sed. Ttiereafter, the accused went inside his room. What happened the|reafter, he did not know but both the brotherswent inside the room of Su|ckum. Thereafter, SuUidev came out of the room and fell down in the venjndah. He saw that btoodwss o^ing out of the chest <rf Sukhdev and sotnetime thereafter he suceumbed to Ihe injuries suslamed by him. In the ^ross examination he has statedlhat it is true that there was some qua^rel bebween the two brothers wrttti regard to tying the goat by the aec^sed in the yerandah and thereafter both of them went into their respecltive rooms. PW-6 Sukma Bai has stated thaton the feteful day she as|well as her mother-in-taw, father-in- law, accused Sukkum and her husband Sukhctev were at Uieir residence. Accused was tying the|goat which Was objeeted by the —3/2008—40,000. T XI-HC—78 sn^iv R-fi'* Wff 3TI^?T ^F^Ni' -ST- '3~5T '^wwi, yxily'is, fsi<niyy MI^I*Ni«,^:-/al:lt<^^cl5-^200 sn^i ''ra^i' ('^f3^t?) TCITW ^ft^ SII^T deceased. Thereafter, she w|ei husband Sukhdev cried and I room and saw that her husbabd |ent for cooking ttie meal. At that time her |on hearing the cries she came out of her was lying on-theground. th^se 9. If the evidence of then it is established that brothers. Their father, moth^r house. It Is also establisheB accused and the deceasedf accused in the verandah and the room of Sukkum. Ther^after accused Sukkum in an injur^d oozing out of his chest Ev^r deceasedwent inside Uie roc|m an fnjured condition, ir> the rc|om there fs no question of any|body inflicted. In these circum^anlses, into play whteh prescribes knowledge of any person, Therefore, how Sukhdev knowledge of Sukkum and a( the Evidence Act burdenl circumstances under which any suggestion has come ii^ wltnesses from the defencfr statement under seetion 313 qii<<!<*)^li +iT'R^i1f ^f fs^l <f^^l< ^arRnOT^i two witnesses is put to close scrutiny the accused and the deeeased are real and wife of the decessed were in their Uiat there was a quarrel between the with regard to tying of the goat by the afterthe quarret both the brothers went In Sukhdev came out of the room of ^d condition, fell down and blood started ^n though, Kotyaram has stated that ttie of Sukkum with knife and he came out in only two brothers were there, therefore, |body else to wteess how th®injury was >, secUon 106 of ttte Evidence Act comes when any fcwt is especially within the ^urden of proving that fact is upon him. fatal jnjury was wBhin the special Ixordingto the provisions of section 1W of was on the aceused to exptain the deceased sustained knif®injury. Neither tt»e cross-examination of the presecution nor the accused has exptained in his of Uie Cr.P.C. the cireumstances under tbat the XI-HC—78 T 6- Hi*(or a»»n<»» 3^ '<<1'41<V1-4, ©Tlly'Kc,fs)diy^< ^C'~iK:-^...,..l..<f..C../...(s2^....•^,200 S^V 'V^V (1°lfj»l<iitT) sn^i ^r R-< Tf^H 37Tt?T strqtqi TOirar^fCTsn^i cMMfcTqll '^TO^ff -£f-^T^ ^^K ^i'srRnan^i which the deceased sustainl contrary, he has simply plea< crime in question. Thereforej burden wHich was on his taken into account agalnst conclusive that they cleariyl injuries in a quarrel betweenj persons in the room from condition. Moreover, the RnH^ the accused under Ex.P/2| Laboratory, Ralpur, for chemif which item No. 4 marked a| Therefore, this circumstance with ttie knife whieh was Dr. Mohanal Tikam (PW-4) examined by him and itwas] establishes that the accused to that extent we do not findl the trial court. Thus, ttie et question is established beyjt conclusion can be drawn complicMy of the accused possibility of any other persoi|i shlouklere. frdm i|ed the knife injury in his room. On the |ed innocence 'and false implication in the the accused has faited to discha^e the This is an additional factor to be llhe aceused. The circuni^ances are so estabflsh that ttie deseased sustained |bwo brothera because these were the two jvhere the deceased came in an injured in question was seized at the instance of which was sent to Forensic Scienee ;al examination and Ex.P/16 is e report in "D" is shown to be stained with blood. [also establishes that the injury wascaused at the instance of the aecused. Even has stated that knife in question was Istained with blood. This cireumstance also was the auftor of the crime in quesfion and |any illegality or infirmity in ttie judgment of >mplicity of the accused in the crime in >nd reasonable doubt and an irresistible the circumstances which establishe ttie fn the crime in question as there is no committing the murder of the deceased. recdvered [-HC—78 T -> - ~Fsf -^WW^, W^W16, ^viWy ri^...&'X...A...-..l>rf..fe/.C?..^.. <mc(rwqra» " ""••"°""""^F^ 200 sn^r Tf^' ('^3°!^) SV^S W K;-) ^n <^i^i ^i^fch ?WIW ^lf5?I Stl^l wrafwiN-w^i •?feA •^R?re ^aifOTsil^T 10. Leamed counsel for deceased was the real brothi some petty matter with regarc verandah which was objecte^ without there being any prior accused attacked his brother and unfortunately the knife lar brother of the accused. Thereft to secCon 300 of tt»e I.P.C. a» beyond section 304 Part-11 ofttt ne accusea/appellant argusd that the of the accused and quarrel started on to tying of goat by the accused in e by the deceased and in that quarrel intension, premedtetton or preparation |n the heat of passion which proved fetal |ded on the chest taldng snyay the life of ^re, the case is covered under exeeption 4 (id the crime in question does not travel lel.P.C. 11. On the other hand, th< counset forthe respondent/Sta|l. impugned has been supported by the pesitjon 12. It is an admitted brothere on a petty matter witt) as per the evldenceof the faf with knife in Uie room of the scuffle took place and in thaf Therefore, the knife injury w4' quarrel and in the heat of[ preparatton. Therefore, the exception 4 to secUon 300 ofthe that quarret started between the two regard to tying of goat and in ttiat quarrel ther of the deceased, the deceased went accused and where, it appears that some scuffle deceased sustained knife injury. s inflicted by the accused in the sudden passion, without any premeditation or act of the accused is covered under I.P.C. 13. In the result, the appeaf imposed on the accused/app^llant partly succeeds. Conviction and sentence under section 302 ofthe IPC are set T ^ir XI-HC—78 'T5T "l<|<l|<iq, 8>Tl)y'|(o, fsfdiy^ WWI *^i* ^-l^ - i ^. fc/05.--^200 sn^r 1ra^ (''pfgsi^q) 3^v ^r R-ii'* WTT 3TT^T'SF'RR? .--••"t T? TOmre ^ffcf aii^'i <:M<i[<niifli +ii*RriT^ff5%t <^i-^i< ^aifiman^w aside and instead thereof heis c|»nvictedundersection 304-11 ofthe IPC and sentenced to undergo rigor^us impri^bnment for seven years. It is stated that the accused is in de^enBon since 17.6.2001 and ttiereby he has served the sentence impos^d on him. In these cireumstances, it is directed that the accused/appe|lant be set at tiberty forthwith if not required in any other case. Sd/- L.C.BHADOO Judge Sd/- T.P. Sharma Judge