WW CFO HHHHIIWHHHII i @ IN THE HIGH COURT OF J'UDICAEURE AT JABALPUR (FLPJ CRMINAL APPEAL m.\I\"l%oF 1999 fl) REiiINAL AFFEAL UNDER SEC’ICEON 374 OF m CODE OF CRJMINAL PROCEHJ‘RE PPELLANT ... EHERAM Son of 'Ihuliran Bhuchar, NJAIL ageé about 28 years, occupation agricul ture, resident of village Erai, Chovki AShta, P.S. Sarma, mstric‘c Jaspur, M.P. VE$US §RE$PON$NT ... ihe State of M.P. through P'.$. Sanna ‘ Chomki Ashta, District Jaspur C A I XI—HC-78 QB: Hon’ble Shri Justice L.(:. ‘ U } ? 1 wwwm Lvu A ”1e vull. uu§hlbc ' ‘ canal Buuxl «7LI GLn: 1..—&_An 1§1.o1.2oo% Miss. Sofla Khan, commel for tha appellant. Shri Ashi3h Shukla, Add‘l'. Public Prosecutor: for the Stata Heard. 1 g I‘ ‘ Qral judgment dictatEd on Dais. As ner L.C. Bhadoo. Ag. Chiaaf Justice: (11g § Thiis ap15'ea1 is; dirscted and order of senmnce dated o against’the judgment of conviction 12.2.199Q passed by Addl. Sessions Judge, Jashpurnagar, in S653i0ns Trial N0. 171] 1998 Whsreby The leanled Addl‘ Sessions Judge, after 1101ding the accused appdlant guilty for commission of tho oifence punishable u/s 302 IPC, sentenced him to undergo imprisonment for life alid to pay a fine of 123.2000] —_. in default of payment of fine to further undergo RI. for two years“ '(2) The case of the proseeution, in brief: is that P‘W.1 Dhan in Police Station Sanna to the effect. — 8 adult. he went to plough the field :Hr‘ Bai were at hi3 reSidence. Sukhi use after throwing cow dung in pit. Ram lodged a report (EX.P— 1) that on 14.7.1998 at about 7 Whereae Gayatii Bai and S111 Bai was returning to her ho .444 P.T.O. XI—HC—78 mW,WI—<g,f%lmg{ W W . ....c.v.(..r.*..z/.a& “$2 200 mmwiawr) WWEWW §1Wm j wwwm When she was passing thrcugh a stmst in front of the house \ of cutting tho Wood with an Axa. On seeing Sukhi Bai he came and assaulted her with the’back of the gxe 011 her light temporal down and themafter the accusad dragged her unto the courtvaxtl of ‘ . a:ccused \ Budhram. ha was mgion, as a result of which, shs fall r the house of Sukhi Bai and he rau awav. The said incident was Witnessed bv Gavatxi Bai (RW‘Q). Dhan Ram was informed bv : Q Bhaqwati (a) Faguni Bai {PfM3) in the fields that whv his sister Gavatri {P.W.2} was crving house and renorted the mat Rain gave merg intimation mime for commission of the officer left for Scene of 00 Pcmchas. m‘eDaIecl inquest u - One Kathii stained with b1 30d was seized under Ex.P—2. Blood Stained eoil and plain soil occurrence vide EXP-4, The his memorandum was recon Axe was seized from his house under theweanon of oEence i.e.. EXP—6. The investigating off ,\ P.T.O. \ \ and on healing this: he caine to his ter to the Police Station Sanna. Dhan hwy/cw” based on F.I.R. After registering the offence u/ s 302 IPC. the investigating :urrence. After giving notice to\ the ,nder Ex.P 3 on the bodv of Sukhi Bai. were also seized from the nlace of accused was taken into custodv. and led Vide EXP-S. on the basis of which. leer. during the investigation. 'nrenared XI—HC—78 ’ U“( mm @ 3am,®?hw1a,%mg{ wmi m WW(W) mmwm Jy site 131ml at th€ place of 0c to Forensic Sciencs Laho dated 26.9.1998 waS recei sent for Dost momem ex WWW WW aawm Ma11ora Where Dr.R.S. Paik u . rcnm‘t und€r EX. P—12. A fter comnletion of investigation. charge sheet was filed in the CO‘ § turn, committed the case ' . Judge. Jashnurnagar. received the case the learned Addl. Sessions an transfer. ‘rder to establish the charge against the (31 The nrosecution in o accused examined 5 Witnes ses. The statement of the accused was in which he denied the material recorded u/s 313 Cr.P.€3. the nrosecution evidence and nleaded annealing against him in has been falselv imnlicated in the crime. that he is innocent and'he In defence. he examined onlv one witness namely Dayanand Sai‘ Ml 3n perusal of the record, convicted and the resnective narties and sentenced the accused as aforementioned. :urrence. The seized articles were sent ratow. Rainur from where the report ved. The dead bodv of Sukhi Bai was; amination to Primary Health Centre, ra conducted the autonsv and Drenared ixt of J.M.F.C.. Jashnumagar. who in :o SesSions Judge. Raiqarh from where P.T.O. a“n .\_;\ The learned Addl. Sessions Judge. after hearing counsel for yg @ XI—HC—78 11mm ...cy.‘.t>g..u2.@./?9a1 200 WW(W) I mm§wt§m i mmwm ~ £1 J 35WW {5} ‘ W6 haw héard Miss. S ‘Eia Khan. Advocate. 011 b6half of the 1 \ apg$ellant and Shn’ Ashish Slhukla. Addl. Public Proswutor. on bé‘half of the State. ‘ (6)§ Miss. Sofla Khan has nof'disvut€d the homicidal death of SuklgLBaj. P.W.8 DrRS. Pakra who conductai the autopsy on ”E1165 body of Sukhi Bai, has stated that on 16.7.1998 when he was WQ‘rkilEg as aneAssistant Sl‘irgoou of Primary Hoalfh Center, Ménora, conducted autopsy 0£L the bodV of the deceased and there was one lacerated wound above the right eau‘ in size of 11/2” x 1". There was a blood clout near the Wound. On opening the body, it was found that there was a de‘oressed fracmre beneath the injury. The cause of death was due to Coma: as a result of fracture of 346111 k bone. which was homicidal :11 nature. His renort is EX.P~i1. Therefore. in View of the above medical evidence as also ocular evidence of P.W.2 Gavatxi ‘Bai it is established that the death of Sukhi Bai was homicidal in nature. (m As far as the involvement of the accused in cn‘me in Question i A is concerned, P.W.2 Gayatn‘ lBai,/@ adopted daughter of Suklii Bai. has stated that in the fateful morning at about 8 a.m.. she was at residence; the accused was cutting the wood with an Axe at / PTO. XI—HC-78 W W WW Wm m m m $I §W$ WW(W) ‘ ‘ ‘3 ._ ' 5mmasmm W § 13‘2?WK wmww § mmwm 11 the ice“? dung and when $116 was passing through the street in ‘ fronjt of the house of the acvused, all of a Sudden, the accuSed ‘ deceised. On healing screams, this As result of the $ lasing cries, on vnhich the accused ran away. a i assiaulti Sukhi Ba} fell down on the ground. On healing her cries, Bhagwati @ Fagni Bai (PW. 3) went to the agricultural field and ) informed her brother Dhan Ram, who rushed to the place of : occurrence and thereafter, Gayatri narrated the story to him, on ‘ which, he lodged the report. In the cross examination of this M\ Witness, the defence has not been able to elicit any circumstance to discredit the evidence of this eye-witness. Moreover, the accused ‘ ‘ is nephew of Sukhi Bai, therefore, there was no reason to implicate him in a false case. The, ab )ve evidence of Gayatri Bai stantls corroborated by the medical evidence of DrRS Paikra (P.W.8) who stated that there was one. lacerated wound on the right temporal region of the deceased. Even the weapon of offence was recovered , at the instance of the accused, therefore, the entire medical and 1 ‘ P.T.o. 33W,m,f%mwg? CV ooo.. o ;.9.'...[ WW WW(W) Liwiw m mmwm Pg. Circumstaniial evidfince est; 1'11 the en'me in question. E! prosecution cass. the deG eased Sukhi Bai used to abuse the accused and Sav that whv 1 3 allowing them to utilize the ’ incident. Sukhi Bai abused § result of which. the annellaj side of the Axe and ran awa v. therefore. from the above evidence. it can be inferred that the a mother) with an intention situation. the offence agajl 1st the accused does not travel bevond section 304 of IPC. Ft On the other hand. Shri Ashish Shukla. sunnorted the inclement of the trial Court. €Q0) P.W.1 Dhan Ram. so the daughter of the deceas :d. have stated that thev do not know Whv the accused assaulte 1 their mother. therefore. no motive bV the accused has been proved by the regarding the assault made Drosecution. On the contra 7V. in the memorandum of the accused. ‘ \ / WWEWW éamm the. annellant argued that as net the Learnad counsel for Lblishes the involvement of the accused A R ie is nloughinq the Whole field and not ield and on the same dav at the time of the accused which. infuriated him. as a Lt assaulted the deceased with the back :cused did not assault his aunt {elder to cause her death and in such a n of the deceased and P.W.2 Gavatri. \ P.T.O. XI—HC-78 3am, m,W 1 Wm . oCyAg. o([.?:og% 9‘9‘ . Hi 200 mym I mm WW(W) 1 WW wW 1 wwwm ‘ 3 a aawm git has com€ 011 r€cord that whan Sukhi Bai was mturning after i i {throwing th€ cattlE dung, sha saw th€ accused and staltal abusing \ him which infuriated him and he assaukad the c1€C€aSEd with the back sidg of t11€ AX€ and réLIL away. It has furthar come 1'11 the 1 i evidence of Gayatri Bai, thé‘t at the time of incident, the accused WE; cutting_ the wood at iiiis residence. Tliie shows that the accused was not urenared to aSsault the deceaSed and he was § busy in his work. Moreover, as has been mentioned earlier, P.W.1 311d P.W.2 have hot Stated as to Why the accused assaulted the deceased who was his aimt without anv rhyme or reason, therefore, the point veg? mentioned in the memorandum of the accused that Sukhi Bai stal ted abusing him which infutiated him and in. a snur of moment, he assaulted the deceased. In such a k, situation the seizure ofweapon of offence i.e., Axe in the house of accused annears to be piausibie and from the above evidence, the inference can be drawn that the accused assaulted the deceased, all of a sudden. without arv nremeditation in a heat. of passion, when Sukhi Bai abused the accused. Therefore, the case of the accused is souarelv covered. under Explanation 4 of Section 300 and it cannot be inferred from the evidence that the accused I t . P.T.O. mmvl%am%21 yg. WW§WW éaWW assaulted th€ deceased with é Ln intention to cause the death of his Iisar and dsar aunt Sukhi E Eai. Therefore. the offence does not ti‘avel bevond S€ction 304 (Pa; (1 ll In the ragult. th€ anpea ccused annellant u/ s 302 {PC are set ccused is convicted u/s 304 {malt ii] ,I. for 9 vears. It is stated that the smltsnm inm0$ed unon the a x - aside. Instead Tlmrsof. the a a‘nd Seniencrzd to undergo R 1 a accused is in detention SinCf : 16.7.1998. Therefore he is entitled of detention against the conviction ' for set off the above nen'od imnosed unon him. Sd/- Acting Chief Justice .“t ID. l‘nartly succeeds. The conviction and ., t P.T.O.