"^* -'s ''-.- "^. •<—\ '^ - St 1 '^/dit !> Sk jal CT t-^* §' co ('.:. 1 o?' •^ XI-HC-78 W^T^TRFTRF ^l Sb^T \- <? 3:^r<<l<<lci«,Wtfiwis, fs|dl'y^< . Cf. {\. Mo. 1 7-?7/AOO& HIHCTta»+1|Ct»********* * * * • * ***•***»^ 200 3T1^?T^^? (H?1^^) ?<wi<8T ^cf 3TI^T DB^ HON;BLi3 SHRl L.C. BHADOO AND HON'BLE SHttI DHIREM5P-A MISHRA, JJ Appeliaiit F^espondent Criminat Appeai No. 1757/2000 Chetu ms State of Ciihattisgarh vert Shri Ranbii' Singh with Shri Sa^rabh Dangi, Advocates for the appeiiant. Sliii U.N.S. Deo, Addi. Pub'4c Prosecutor with Slm D.C. Pandey, Panel La^A^er for the State; ORAll Per L.C. Bhadoo. J Accusea cnetu iias preteirel coiTectness of the judgment pf conv|c passed by the leamed Sessions whereby the leamed Sessions Judgj coimnissioti of offence punishable ^i murder of Gadaram, sentenced hiin to | 2. Brief facts necessaiy for disp^: Balsmgli had gone to market, wliere^ ct>Nl<n<{|»iWToff ^ te^t <Ri«u ^3rf^T3TI^T JUDGMENT (1<|)-11-2006) this appeal questionmg the legality and )nviction and order of sentence dated 23-5-2000 Jud^e, Jagdalpur m Sessions Trial No. 356/99 after holding accused-appellant guilty for ^nder Section 302 of I.P.C. for coiTOnittmg ^indergo imprisomnent foriife. )sal of tiiis appeal are that on the fateful day his wife Mahadei (P.W. 3) and dauther Ku. P.T.O. XI-HC-78 *II*ICTI a»*i;ch ^3( ^WW^, ^S\W\<o, (s|<tl^^< ^-.^•.ft.^'.J.'7SZ/?^D. /t>^200 RT<^|<ti( W^T^rRFTRF <W W^T 97RN)' 5«11^K^cf 3TIcST <^i^I<n41ri <4H^T^te^<Ri<^i< ^3rf^T3TI^T .Ramsila (P.W. 5) were working^ m field, they saw that deceased Gadaram vvas standmg there. Accuse( axe in his hand and attaoked Gadaraml ofwhicii Gadaram fell down and succl witnesses naniely p.W, 3 Mahactei atid| mcident. Hc h'mnediatelv went to Pii^ theincident. Onreceiving this inform^ -appeUant Chetu came on the scene canyiiig |with the axe cn his head and chest, as a result |imbed to the injuries sppntaneously. The H¥O P.W. 5 Rpnsila bemg frightened left for their liouse. Wlien Baism^i retumed his ho^ise from market, they informed him about the [das-ViUage Kotwar and mformed him about ^tion, Piladas along with Balsmgli left for tlie soene ofoocuiTence. On tlie way, Sai^anch Baisaldiu met tiiem. Baisingii mformcd Iiim also about the mcident. Piladas iiijfoiined Patel Bondku also about the mcident. They went near the place of occyiTen| Piladas took tlie accused to Police St| them and the matter was reported to th| mtiiiiation Ex, P-7, based on tliat, Fii'8t| conumssion of offence punisiiable unc| left for the scene of occuiTence. After repoit Ex. P-1 of body of Gadaram.l memorandum Ex. P-3 under Section 21 he got recovered the weapon of Qttenc] ^e and saw the body of Gadaram. Thereafter ition, Kondagaon. Balsing also accompanied ^ Police Station, Kondagaon by Baismgli vide fafpiination Repoit Ex. P-6 was registered for er Section 302 ofl.P.C. Itivestigatmg Ofiicer giving notice to Panchas prepared the inquest Wlr&Q in the police custody accused gave ofthe Evidence Act and in pursuance ofthat, ^ under Ex.P-4. Site plan was prepared by tlie RT.O. XI-HC-78 ^^ tTTRdl IS»»*1|ch ?qpn^T, c?tnwi<o, Ricti'My ^••^- ^o. J757A000 !***'^ 200 311^1 <45|th ('i?!^^) f^T^RW cW3TI^T97RT^ <. ?^TRK;R^TW^T Investigation Officer. Tiie body of C^adaram was sent for post moitem exammation Kondadaon under Ex. P-ll where Dr. S. Lonliare to Fiimai-y iieaitli Centre, K conducted post mortem and prepared|post cause of death is excessive hemonfi Weapon pf offence i.e. axe was als^ was possible to cause tiie injuiy wiii( the axe in question. After usual mve| Judicial Magistrate Fii'st Class, Kont Sessions Judge, Jagdalpiir. 3. The prpsecution examined 8 accused. Statement of the accused wiiich he denied tlie material appeari submitted that witnesses are liar and 4. Leamed Sessions Judge aftc pailies, com'icteci ancl sentencea tlie a 3. We iiave heard Slm Ranbil' S appeilant and SMDeo, leamed Add Gbl^Id41-l ^l^dT^tel<ft<fa«l< ^3Tf^T3TliRT mortem report Ex. P-8; IIe opmed that the lage and the death was homicidai m nature. examined by the doctor and he opined that it •h was found on the head ofthe deceased with tigation, charge sheet was filed m the Court of lagaon who m tum committed the case to the ntnesses m order to establisli charge against tiie /as recorded under Section 313 of Cr.P.C. m |ig against him in the prosecution evidence and has been falsely implicated m the crime. |r hearing leamed counsel for the respective ^cused-appellant. ligii, leamed counsel appearmg on behaifofthe Public Prosecutor on behcaifofthe State. P.T.O. XI-HC-78 w^T^rf^fhF ^T$bHlcb h»-^' 3^" ^TFTRPT, ©tn'y'Ko,Is|<ii'y^< __ cr. ^. ND. ns7l^y0^ Ul^dlsbNlcd *•*•»••* * •»** • ** ** **^^ 200 3;n^?r iraiaR' (yii^<s«,<T) ^TRK^'cTW^T A 6. Counsel fbr the appeilaiitdj Apart from that, the evidence of ey| Ramsila as also the medical evidenl deatii ofGadaram was homicidal in |d not clispute the homicidai death ofGadaram. ^witnesses namely P.W. 3 Mahadei and P.W. 5 be ofP.W. 6 Dr. S. Lolmare establishes that tiie liature. 7. So far as in^lvement of concemeci, tlie conviction rests on til and P.W. 5 Ramsila. Mam attack vvas that both the eye-witnesses occuiTence after hearmg the souncl about 5-4 steps ancl (jaclaram was 1; not witnessed the accused assaultms Ramsila has stated mat the accused back wbereas as per medical evideij bone of skull ancl there was one evidence does not coiToborate the prosecution iias tailea to coxmect tli€| 8. On the other hand, ieamed the trial Court; cbl^?ci<{l<rl WT^Jf ff tel^t :d^R^PC ^^rf^TW^T tlie accusecl-appeiiant m cnme m question is \€evidence ofthe eye-witn^sses P.W. 3 Mahadei [)f tiie ieamed counsel for the acciised-appellant h|ive stated that they saw towards the scene of fod at that time, the acciised was at a distance of ing on the gi'ound, Therefore, actually they had the deceased. He fumwr argued that P.W. 5 Ku. assaulted tlmce i.e. twice on head and once on |ce, there was one fracture on oocipital temporal cbntusion on tiie chest and cis such, the medical ividence of these eye-vvitnesses. Tlierefore, the aocused witii ttie cnme m question. l;ounsei for the State suppoited the judgiTient of 31 P.T.O. XI-HC-78 W^T^Tf^FlW cWOT^Tsb^w \. <.> HTHC'II Sit»*ll<»» 3^r^|^|^<L|^ ^Tn<-1<|(o, fc«?1|^< .^^^7/^^ OT^Ttra'g)' (^ctt^si^T) ?^Trw^r^^T 9. In order to appreciate the respective parties, we iiave pemsed| Mahadei and P.W. 5 Ramsila. As working in the agiicultural fieid at there, he enquirea aboiit her husb. Thereafteiv when Gadaram went at s\ on the scene canying axe and aTtacke^ he fell down. Being friglitened, tiie^ stated that at tiw time ofincident, tli| stated tiiat she does not know iiow di?] is coiTect to say that when the sound Gadaram was lymg and Chetu was place of occuiTence, they thou^it deceased. She did not see the accus accused gomg, he was at a distance otlier person was there. ^7tiereas P.V mother were worldng m the field, Gadaram with the axe on the head fr Gadaram fell ddwn and they left the cbl^Id<lTITI WI^f ^* tel<ft <Ri«l< ^ 31^T 3:T1^T irguments advanced by the counsel for tlie the evidence of eye-witnesses namely P.W. 3 )er evidence of P.W. 3 Mahadei, they were ibout 4.00 p.m. At that time, Gadaram came ia. ^lie repliea tliat iie iiaa gone to marKet. >ine distance, at that time, accused Chetu came on the head ofGadarani^ as a result on wiiidi, left the scene. In cross-exammation, she has |ey wei'e at a distance of 25 ft. She has failher Ipute stailed and who first started the dispute. It offail was heard b^7 thein, then they saw that ^a^dng tlie place. Seeing Ciietu going fi'om the |:hat he is the person vvhp has attacked the ?d attackmg tlie deceased. \\riien slie saw the \)f 3-4 paces from tbe place of occuiTence, no [. 5 Ramsiia has stated that she along with her the accused came wilh the axe and attacked ^m the side ijlMuncti and as a result of wluch, jcene. Li the cross-examination, she stated that P.T.O. 31 XI-HC-78 3TI^T^T^i* ^l ^RW ^.. Hl*1<<1( St»*(l<t» 3^^<^ld^,^Ti1wi<o,Rt<rtl^^< ^. ^. ^o* \~]37/SooQ *^ 200 ^TV(5|€b 5^TTW ^<T W^T when she saw towards the soene of|occuiTence after iiearing the sound, the accused was at a distanceof 15-20 ft. from tli say that because ofthat, they thougl^t fact she saw the accused assaulting evidence of both these witnesses occuiTence. Even thougii, P.W. 3 hearing sozmd, she saw towards the |) a distance of 3-4 paces. But P.^ categorically stated that she saw notiimg on record to discredit the e~| has categoricaUy stated that she sa^ the arguments advanced by tlie coi|nsei stated that accused assaulted tlmcl place ot occuiTence, meretore, it is mcoiTect to that the accused assaulted the deceased, but in the deceased. Therefore, in the fiiTst mstance, the es^ablishes the presence of accused at tlie place of Mfeihadei m cross-exammation has stated that after iiijuries were on the body of the de(] there is no matei'ial contradiction in| the paiticular facts and cwcumstan4 more ovei\ she has stated that the mjuiy has been found on tlle head back, there is eveiy possibility that ct>)i^?<n<flyi wi^ff ^ tel^t <RI«K ^3:rf^T3TI^T )lace of occurrence and the accused was going at V. 5 Ramsila even in cross-exammation has ^iie accused assaultmg the deceased. There is ddence of these two witnesses. P.W. 5 Ranisila the accused assaultmg the deceased. As far as for the appellant that P.W. 5 Ramsila has ^ whereas as per medical eviclence only two |eased, is concemed, m our considered opmion, |the ocular and me4ical evidence. It depends on ^es that how the witness obseived the mcident, lEiccused assaultecl on the head and in fact, the |nd the other mjmy was cn the chest mstead of |there miglit have any mistake m obseivance of P.T.O. XI-HC-78 3TI^TcRT^ ^l sb'fl^i ^- -- ^( <. *11*ICTt ShHltt* 3^? ^l^l<!l<4,^'rfl^41^,R«1Wy ^. ^.No. ne7/s.^° '*'**^200 311^1 45(€b ?^<TTW ^<T ^TI^ST cbl^I<n^lrl HTO^Tf ^* te^<Ri<^i< ^3^TT3TI^T assault or on account aflapse oftii|ne, this witness has stated so m li€?revidence, but this fact itself is not sufficieht to fiiscard the evidence of this witness. Such miiior contradictions happen many times.| be said that these witnesses have liard object as per the medicai e^l There is nothitig on record tlirougli which it can deposed against the accused on account of any animosity or haw aiiy gmdge agai|ist him so as to implicate him in such a heinous Srime. As far as the other arguttjients advanced by the leamed counsel for the appellant thatthe injm^ mflicted <|n the head ofthe deceased was with a blunt and |idence and in fact, prosecution case is that the accysed has assaulted with axe, t|ierefore Uiei'e is variance in ocular and niedical evidence, if we look into the evi| stated that the accused attacked the is rear portion of axe i.e. blunt side ^ence ofP.W. 5 Kamsila/she has categorically d©ce<i:s©dwith the axe from side ofMimciL Mundi oftheaxe, therefore, we do not fmd any variance be een the ocular aiid medical e^jidence. Tlierefore, involvement ofthe accused m tiie criiiie m question has been estaltlished beyond the shadow ofdoubt. 10. Counsei for the accused-a^ellant argued that as per injuiy report, accused assaulted once on the heaa, which|is said to be fatal mjwy and the other injuiy was siinple in nanire, therefore, the ofifence against the accused does not travei beyond Section 304 Part II ofi.P.C.He a so argued that there is nothing on record which shows that the accused had mtentiob to cause death of Gadaram. tri order to bring the P.T.O. )1 XI-HC-78 3n^?r ^r f^rhF cW^TT^T sbHicb €• '• ^ ^. •^ ^^r +1l*ldt ShHlch 3^? ^qFn^RT, ^Tfi«<l<o,Rldiy^< _^_ ^.-Q;^ l-75^Ae<,» ^'^200 ^lq^% S^cTTW ^cT W^T 9 case within exceptiori 4 to Sectioi^ accused attacked without premedita|:ion premedita|:ion in a sudden figlit, in the heat of a passion |into the prosecution evidence, which has been pidence which shows that there was any quaiTel between the accused and the deceas^d or the deceased m any mamier mfariated the with axe and without any rhyme and reason fc wliich iridicates that the accused came with upon a sudden quaiTel. if we look refeiTed above, there is no iota of e siccused. In fact the accused camel attacked the deceased with the ax| pi'eparation canying axe m Iils iiancj the deceased on his head with the a^ under Exception 4 of Section 300 of] 11. So far as intention is concei) the facts and circumstances of eacfl which the accused assaulted the In this case, the accused attacked th^ in vital part i.e. head of the deceaj accused, occipital temporal bone ^ Therefore, above facts suggest tha deadiy weapon with mtention to cau cM^Ici41Ti w^ ^'te^f <Rt<^i< ^3:rf^T3T^?Ti 300 of I.P.C. it is to be estabiished that the and without waiting for a moment, iie attacked ;e, therefore, the act ofthe accused does notfall LP.C. |ned, iiitention ofaccused can be gathered from case i.e. weapon of oftence iised, mannei' m dec|eased, pail of body whcre the accused attacked. deceased with a deadly weapon ofaxe, that too |>ed and as a result of the assault made by the |as fractured and deceased died spontaneously. the accused assaulted the deeeased with the ^e death ofthe deceased. Iii the result, we do not )!' P.T.O. XI-HC-78 3TI^?T 5RT RRN? cW^TI^STsb^icb ^ f<aJtA<J<-l ^ ^. v^ ^ *ll*«»ltSt»*l|Ct» 3P5^ ^1^1^<<, ^Tft<-1<1<^ Rl^tl^y. _,__fr ft.No.'7s7/e°o» ^^200 ^TH^l^b B^TTW^rf^fW^T find any UlegaUty or mfirnrity^m to be dismissed ancl it is hereby disir^ssed Sd/- L.C. Bhadoo Judge <=bi^Icn<{l^ ^i^^Tffte^t<Ri<^i< ^3Tf^T^n^T judgtnent ofthe trial Court. Jh^ appeal is liable Sd/- Dhirendra Mishra Judge )i P.T.O.