^?ii^i^-; ^;1^'^^f^^^©y:,.^.E^^^^ :,esiM^^.^^:^o^;;^,;^^^^ —;^ ^i^^ .&i>s>sia^^t.'..,_ S]2^KX3^''i^i'~ ^^^' sX^^\. ^^0"' ^y^ ^. ^T •^^,^' ^ss^ii ;?ai;saai^a||a;i.s6nl:.^;|Klh.e®Faa1-' ;a^:-':29:.'jE's^^B/o'jttrej.h:lc|^,'l,/^'^ %aBa^hi^Ms^^^^ pDese&^ly at Ebndl WaEiaEbBGlt ,Mstf\©arg:^,M<t« ~ •<^^li:..'i^»^ •/•, m ( ve rsM s ^- &SSS>©£iBBS£ State.-o.f-.M^P.. 8.2. NO^ gi/20QQ, mWK^ :ms^:m^ ^^?r^^"/a—mM^m^^^: H/'- lf; XI-HC-78 3TT^T ^)T f^TN) cTSTTOT^T^ri^ c^) A. P- '2, ^IHC'lTSh+llch 3^'^1-qK'l-q, yrfiy^Ko, fcjdl'y^ *••••• ••••.•••^•••^••» ^ 200 t?TM^<t) (lic<^sl<i!!t;T) ^RTTW ^rf?<f 3TT^T DIVISION BENCH HON'BLE MR. L.C. BHADO HON'BLEJfJRJ?HIRENDRA MISHRA, JJ. 16-11-2006 Shri D.R. Shaniia, Advocate, for the appellant. Shri U.N.8. Deo, Ad^litional Mislira, Panel La^er for the| Oral Judginent dictatep onDais PER L.C. BHADOO, J. This appeal is direct^ order of sentence dated 6 ] Judge, Balod, District Du^ Additional Sessions Judge conimission of ofFence undeit undergo imprisomilent for lif| The case ofthe father ofthe deceased and fa|t the Police Station Dondi to at his residence. Son of th^ father is attacking his moth^i of the accused. He saw tha1| ^i^fci^'-i <-ii^^T^te^'<Ri<-^j< ^3Tf^T3T1^T Q& r. Advocate with Shri B.D. Badgaiyya, Public Prosecutor with Sliri Akliil State/respondent. ^d against the judgiiient of conviction and |May 2000 passed by Additional Sessions j-g in S.T. No.91/2000 whereby leamed after holding the accused/appellant guilty for Section 302 ofthe I.P.C. sentenced him to pro^ecution, in bdef, is that PW-1 Banauram, ^her-m-law ofthe accused lodged a report in the efFect that 'today at about 4 p.m. he was >f thb accused came and informed him that his ie|r with an axe, on this, he went to the house his daughter Sushila was lying/blood was P.T.O. p p ^) XI-HC-78 3TT^T ^T ^i<=b cCT3TR?T$b^lcti +11+1^1 Sb+11<st» 3^T ^Nl^tq, ^Tn^ll(o, ^l^y .4^.J. ./<3°. ^ 200 311^1 M51<») ?;RTT^K ;RfN'^TI^T oozing out of the injuries hospital. Receiving this repo^ registered F.I.R. (Ex.-P/l) fc|r 307oftheI.P.C,leftforthe| offence i.e. axe was taken in^( Ex.-P/2 was given by the taken into possession under deceased was conducted bv report Ex.-P/6. The injuries Dr. L.L. Markande, who P/ll) ofthe body of Sushil^ after giving notice (Ex.~P/10)| acdused pr^pared After completion of against the accused in the who in tum coirmiitted the G£ leamed Additional Sessions Ji The prosecution in < accused exammed 11 witnes< under Section 313 ofthe Cr. cbl<M?<y1<41v1 HTH^Tf ^* te^t ^f^K ^3T^TCT^T f head, therefore, he took Sushila to the Station House Officer, Police Station the coniimssion of offence under Section scene ofoccurrence from where weapon of o possession under Ex^P/3. Memorandum 1, Plain soil and blood stained soil was Ex.-P/4. Postmortem on the body of the Dr. V.K. Sao, who prepared postmortem on the body of Sushila were examined by injury report Ex.-P/7. Inquest (Ex,- was prepared by the Investigating Officer ^o the Panchas. |:he mvestigation, charge sheet was filed coiirt ofJudicial Magistrate, 1 Class, Balod, ca|se to the Sessions Judge, Durg, from v^diere ^dge received the case on transfer for trial. •rder to establish the charge against the es. Statement ofthe accused was recorded \C. in which he denied material appearing -^- P.T.O. XI-HC-78 ^TT^T^T^icb ^TTW^Tsh^ich r~ r^ €) +iiHrtra»Hich 3:^'r^NKrt't<, «>Tn<1)l<o, fs(<ylW^< .^^-.../%^... ^ 200 3TT^?T q^^T (^cll^sl^T) ^<rTW;Rf^T3T1^T against him in the prosecutior isitmocent evidence. In the last, he has stated that he and has been falseljy implicated in the Crime. Leamed Additional counsel and pemsal ofthe rec mentioned aforesaid. chNt<vi4i»i^i^^T^fte1^' <r3i«« ^3Tf^TW^T ^essions Judge after hearing respective lord convicted and sentenced the accused as We have heard leamedjcounsel for the parties. Sliri Shamia has not c|isputed homicidal death of Sushila. PW"4 Dr. V.K. Sao, who conducte<|l postmortem on the body ofthe deceased, has categorically staled that|there was incised wound on tlie paiietal region in the size of 3?9, an|)ther incised wound was on the scapular region in the size of 1.5", inj4ries were ante-mortem m nature, there was fracture oftemporal and pari^tal bone, brain material camc out, cause of death was shock and haemon|hage on account of head injury. The cleath report is Ex.-P/6. Thercfore, in view ofthe established that the death of the deceased was homicidal in nature. His| above medical evidence, it is| was homicidal in nature. As far as involveme^it of the accused/appellant in crime iri question is concemcd, leamejd Senior Advocate argiied that there is no ocular evidence. The acctlised has been convicted merely on the evidence of PW-3 Bisambha|r, who has stated that he saw the accused while he was running in the ^treet. No defmite conclusion can be dravvn -^\- P.T.O. cn3 XI-HC-78 +11+1^1 Sh+lich 3'^T^I^Krt^, ^Tfl^,l<o, is|<nw^< ^J^..L,r<^;./.f.u^'?.. ^ ^QQ 3TT^?r MSI<*» ('i0'^6*^) 3TT^T^TRl^i<=b cT^T3TT^?T5h^i<+) ^cTTW ^f?cT 3TI^T Gbi^I^t4i-i ^i^^iT ^* te^ <Ri<-cti< ^3Tf^T3TI^T from the above fact without efFect that the accused was 4 argued that recovery of th^ memorandum ofthe accused seized from the place of o4 caimot be said that the axe w^s ^orroboration by any other evidence to the ^ithor of the crime in question. He further [ axe which is said to be based on the |, is not correct as the axe iii question was currence where it was lying, therefore, it recovered atthe instance ofthe accused. On the other hand, supported thejudgment ofth^ leamed counsel for the State/respondent trial Court. In order to apprecia^e the argiiment advanced by respective counsel, we have perused the at about 4 p.m. he saw the i|iccused when he was rumiing in the street. He hmiiediately went to the was crying, wife ofthe accu^ evidence. PW-3 Bisambhar has stated that house ofthe accused, he saw that his soa -ed was lying, there was injury on the head and blood was oozing out o|f it. The child was of 6-7 years old. He disclosed that his father has tittacked his mother with an axe, thereafter he went to the house ofBaliau and infomied him. PW-1 Banauram, father ofthe deceased and fatj the tatefal day at about 4 p.) him that his father has attacl On this, he went to the hou^ Ltlher-in-law ofthe accused, has stated that on m, son of the deceased came and iiifoimed ked his mother with an axe and ran away. ofthe accused and saw that his daugliter Sushila was lying, blood w4s oozing out of head. He took her to the hospital and lodged the repoitt Ex.-P/l. The house ofPW-3 Bisambhar, —s- P.T.O. XI-HC-78 W^T^iT^ich cTSTTW^Tsh^lcb -r^ ^- ^-, (g) ^WMI »^l<sh 3^ -^i^i^^, ^Tfl<iji<o, fsi<ni^^< ..Cr^../^?//^. ^ 1QQ ^T<^<^ < ^n'^K^rf^cf CT^T rtim< examlnation as per site plan (Ex.-P/16) ofthe accused. He saw the which created doubt in his the accused where he saw thalt blood was oozing out of heit disclosed him that his fatherl accused in reply to the evi<| incorrect. In the cross-examjn; been brouglit on record to animosity against the accuse|d him in order to implicate reason to disbelieve the the accused while he was neighbourer seeing the accus< but natural. He iminediately | Sushila was lying in injured | efFect fmds support fromthe informed who also came on| lying in injured condition false explanation has been saw him mmiing. In his ignorant about the murder o^ pr|epared hfcm evid^nce chi<il^i41Ti ^i^^iT ^ te^ <Ri^i< ^3Tf^T3T1^T by Patwari.is adjacent to the house accused while he was ninning in the street liind, he immediately went to the house of Sushila was lying in injured condition and head. Son ofthe accused, child witness, has attacked his mother with an axe. The ^ence of this witness has stated that it is ofthis witness, no circumstance has |show that this witness, in fact, had any and that is why he had deposed against in a false case. Therefore, there is no ofthis witness to the effect that he saw ^unning in the street. Moreover, being a \d miming in the street by this witness was Iwent to the house of accused and saw that lcondition. Evidence ofthis witness to this |Fact that PW-1 Banauram was iinmediately the scene and saw that his daughter was he took her to the hospital. Therefore, by the accused that this witness did not he has not explained that how he was his wife as murder was committed in his —^- a4d giyen stat^iiient P.T.O. 'rr. XI-HC-78 3TI^T ^)T f^rN) cTO'W^Tsb^Icb T^- ^WWl St»+1|ct» 3^T '<|N |<<t^, ^<14 Ko, f®t<nKiy wr^ * * ^* *'* * * *y> * * Y* * * * • ^p^ 200 ^T M5|ch (^li^<s«^ST) ?^<TT^K ^fN" ^TI^T 2006 house. Therefore, it was his crime was comiTiitted and he ^ As has been held in Court in the matter of T| Maharashtra reported in that a crime committed in\ unpumshed. Ifcm offence tak\ such circumstanceswhere th\ and commit the offence at th\ it will be extremely difficul\ establish the guilt ofthe, acc\ e\ndence, as notice above, i^ notpreside over a criminal punished. A Jadge also escape. Vl^here an offence U1\ house, the initial burden to\ upon the proseciition, butth^ it to establish the charge cai\ other cases of circiimstanti\ comparatively lighter chara\ Act there will be a give a cogent explanation correspo^ding Ghi^I^i41ri ^i^^TTfte^^^K ^3:ri^TW^T luty to explain the circumstances in which vas not involved in it. khe recent judginent of the Hon'ble Apex rimuldi Maroti Kirkan Vs. State of AIR SCW 5300 that "it does not mean secrecy or imide the house should go zsplace inside theprivacy ofa hoiise and in ' assailants have all the opportunity toplan ? time and in circumstances oftheir choice, for the prosecution to lead evidence to ised ifthe strictprinciple ofcircumstantial insisted upon by the Coiirts. A Jzidge does trial merely to see that no innocentman is to see that a guilty man does not murder is committed in secrecy inside a establish the case ^would undoubtedly be nature and amonnt ofevidence to be led by not be ofthe same degree as is reqziired in al evidence. The burden would be of a ?ter. In view ofSection 106 ofthe Evidence dmg burden on the inmates ofthe house to is to how the crime ^vas committed. The -7- pi\esides liJte P.T.O. XI-HC-78 W^T^Tf^TW (TO'STT^T^qt^ 7n- (^) 3^' "4NIC1^, t?Tn'H<l(o, {s)diy^< ^TPTFTT sb^lch *>-< * * ><4 <<<A <-^«/—.. * ^ 200 3T1^5T<ra^7 (4,cl^c<<^T) ?;RTTW:^f?cT3TI^fT que^tion inmates ofthe house cann^t offering no explanation on establish its case lies entirel^ at all on an accused to offer or false explanation it ^ circumstances'\ The conduct of accus|e< fled the scene of occurren4 Evidence Act. He has not house, howthe crime in it is established that he was The evidence of PW-ll efFect that they were immed|ifi aged abouf 6-7 years that hi^ axe is relevant as per Sectio^i been examined by the pro^ which, thougli not in issue, fonii part ofthe same fransa^ the son ofthe accused imiYiedi and to his grandfather PW-1 incident that it fonnied admissible under Section 6 voluntary and was not on get away by simply keeping quiet and ^he supposed prenuse that the burden to upon the prosecution and there is no duty ^ny explanation. In case ofno explanation ^ould an additoinal link in chain of paf1 chl^I^1^1T1 WMt* ^* fe^ <f^<^l< ^^ri^TW^T is|ed that just after conmiission of crime he le is admissible under Section 8 of the e^plained as to why he ran away from his was committed in his house, therefore, th^ author ofcrime in question. -11 Banauram and PW-3 Bisambhar t6 the edjiately infomied by the son ofthe accused mother was attacked by his father with an 6 ofthe Evidence Act even ifhe has not )^ecution. Section 6 envisages that Tacts <ire so connected with a fact in issue as to (^tion, are relevant'. The disclosure tnade by le^iately after the mcident to PW-3 Bisambhar iBanaurani was so short from the fact ofthe of the same transaction and same is lof the Evidence Act. The disclosure was e4quiry by PW-1 and PW-3. The disclosure .. ?- P.T.O. XI-HC-78 W^T^T^Jcb cTSTTyW^T $FRT^ TT /l^ <@ +11<4<^1 «»H|Ct» ^Sf ^liqi^t^, ^SncfrFPTS, Rl<nwy __ Cr'/^- l^o//^ ^|cb ^*^^i^^^^^^^^^ ^fqp 2(^0^ sn^TT ^ra^R (^Git^<s<^) ?^<TTW: ^rfNW^T by the child to PW-1 and P^ is an exception to hearsay m\ it has to be remembered contemporaneous and also queries has to be excluded. judgment of the Apex Cour^ Bihar reported in AIR 197< accused Sawal Das, his fathe|r of his wife. The deceased wt "Bachao Bachao" inside thfc uttering the words that killed. The said part of cri| witness who deposed before uttering the words that their killed. The said evidence under Section 6 of the witness was not examinedl prosecution case. In the present case, he saw the accused running inmiediately went to the hou^ about 6-7 years voluntarily df wife with an axe, therefore, <=hNl<n41Ti H\H^\\ ^ fe^ <RI^K ^^ri^TCT^T V-3 is admissible as res-gestae. Res-gestae |e. In order to hold the statement res-gestae, |:hat the statement should be reasonable, s^ontaneous. Statement made in response to 7or this we are fortified in our view by the in the matter of Saw^l Das V. State of SUPREME COURT 778. In that case, and mother were charged with the murder is pushed inside the room. She raised cries room and her children raised the cries their jniother was either being killed or had been ^s raised by the children were heard by a he Court that he heard cries ofthe children |nother was either being killed or had been )f third person was held to be admissible Evidence Act even though that child by the prosecution in support of the Indftan as |per the evidence ofPW-3Bisambhar, when iway in the street, being a neiglibourer, he e ofthe accused, son ofthe deceased aged sclosed him that his father has attacked his view ofthe above judgment ofthe Apex ^t' P.T.O. XI-HC-78 3TT^T^T^i4) ^W^TshHlct) ./- ^A\N.fl ^ Barve *ll+1^l Sh*11th 3^f ^Mi^Krt^, ^Tn^41<o, f^<ni^< ,^ff:J^^ ^ 200 311^1 M5|«t> (.^cit^d^&T) ?^[TW: ^cf 3TI^T Court and also in view of| adniissible under Section 6 oj the accused was seen mimin^ Bisambhar, he immediately that his wife was lying in inji|ii that his father has attack^ circumstances conclusively e^t crime in question and only u|r accused was the author of I possibility of coniing any inquestion. As far as recovery 4 recovered from the place of the axe was recovered atthe ib For the foregoing the trial Court convicting th^ Sushila does not suffer frotili being devoid of merit, is dismissed. Section 6 of the Evidence Act, same is lthe Evidence Act. Therefore, the fact that away from the house in the street by PW-3 Went to the house of the accused and saw inji|ired condition, son ofthe accused disclosed ^d his mother with an axe, the above e^tablishes that the accused was author ofthe yresistible conclusion can be drawn that the |the crinie in question and there was no person in between committing the crime thik-d reas0ns. Sdf- L.C, Bhadoo Judge <=bNl^l41T1 HTR^ff^ tel<ft <Ri<-<tl< ^ 3^^T CT^?T |)f the axe is concemed, as the axe was t>ccurrence, therefore, it camiot be said that ibstance ofthe accused. s^ns, we are ofthe opinion that judginent of accused for the coiriLniission of murder of any illegality or infimiity. The appeal [liable to be dismissed and it is hereby Sd/- Dhirendra Mishra Judge P.T.O.