@ WW,WWW3I W W Gs’ A.2. W ZQQL mvm (W) WW WWW q ' WW“ ‘q ' ‘ WWaaw€$ ‘ mm wm $3€mw€w mw ‘ APPELLANT: ‘ Phoolchand Bargah, ” (In Jail) S/ o Shri Nandlal Bargah, Age 27 years, Occupation Agriculture, R/ o Village Mukundpur, RS. Darima, Distt. Surguja, C.G. - Versus - RESPONDENT: The State of Chhath'sgarh, Thmugh RS. Darima, Distt. Surguja, C.G. {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure} Division Bench: Hon’ble Mr. L.C. Bhadoo and Hon’ble Mr. T.P. Sharma, JJ. 4-4-2008 Mr. A.K. Prasad, counsel for the appellant. Mr. Ravindra Agrawal, Panlel Lawyer for the State] respondent. Oral judgment dictated on Dais. L C. Bhadoo, J — 1 Th1s appeal 1s d1rected agamst the Judgment of conwcuon and order of sentence dated 13th May, 2002 passed by the 15‘ Addmonal rSessmns Judge Amb1kapur m Sess1ons Tnal No 99/ 2000 whexeby learned Add1t10nal Sess1ons Judge after holdmg the accused] appellant gmlty for commlss1on of od‘ence under Secuon 302 of the l.P.C. for comm1tt1ng the munier of Fagm Bal, sentenced hnn to i i &' (D A élg Wm W20®Z 3mm (W) WWW ammm WWW1iwm Wwm awfwarw \ undergo imprisonment for life aJjd pay a me of Rs. 1,000] -, in default of payment of iine to further undergo R.I. for three months. Learned Additional Sessions Judge h also convicted the accused for commission of oEence under S ction 323 of the I.P.C. for causing simple injury to Nanka (PW-3) d sentenced him to undergo RJ. for one year and pay a nne of Rs.5 O/—, in default of payment of line to further undergo R.I. for three mo ths. . Case of the prosecution, in b ef, is that on the occasion of the festival of Deepavali at about 4 p.111, there was a quan‘el between accused/appellant Phoolchand argah and Mutoor Rajwar. Nanka (PW—3) asked accused Phoolch d not to indulge in the Marpeet on which Phoolohand attacked him n his head with a Lathi as a result of which he sustained injury d blood started oozing out of the injury. In the mean time, Fa ' Bai (since deceased) came on the spot and intervened in the matt , the accused attacked her also on head 8n neck with a Lathi as a result of which she fell down and became unconscious, She was en to the residence, n‘om there she i‘was taken to the Police Station and again from there, she was taken :to the hospital at Danma Thereafter, she was taken from Danma hospital to Ambikapur hospital 'thn‘d day mommg she succumbed the injuries sustained by her The matter was reported m Pohce Station Amblkapur under Ex P-8 pnor to that Nanhmm lodged report .Ex P—1(C) Receivmg merg mhmanon Ex P—2A the Invesnganng Ohicer left for the place where the body of Fagni Bai was glymg E and after givmg notice EXJ? 3, he prepared inquest EXP—4 on x3/ WW,W,W C) ’t ég% Wm E? 20€B& Mm (W) WWW 'imaWW mmfmg‘érm maz§aaré$r qaamm the body of Fagni Bai. He preyared site plan EXP-5. Body of Fagm' Bai was sent for postmortem examination to Government Hospital, Ambikapur under EXP-7. F,I.R. Exs.P-8 8t. P—10 were registered. Post-mortem was conducted on the body of Fagm' Bai by Dr. M.K. Jain (PW— 15). He opined that cause of death was due to head injury and he prepaxed post-moxtem report Ex.P— 13. Injury of Nanka was examined by Dr. O.P. Shrivasztava (PW- 14) and he prepared report EXP—11. After completion of investigation, charge sheet was nled in the Court of Chief Judicial Magistrate, A bikapur, who in tum committed the case to the Sessions Judge, Ambikapur, from where learned 1“ Additional Sessions Judge rece ved the case on transfer for trial The prosecution in order to tablish charges against the accused examined 15 witnesses. Sta ement of the accused was recorded under Section 313 of the Cr. .C. in which he denied the material appearing against him. He als adduced three defence witnesses. Learned Additional Sessions udge after heating counsel for the 3 respective parties, convicted! and sentenced the accused as aforementioned. We have heard Mr. A.K. Praséad, learned counsel on behalf of the appellant and Mr. Ravindra Agirawal, learned Panel Lawyer on behalf t k of the'State/respondent. : 3 t n mmw, WWI—55, W3? C> 6 lg WW wt ma mm (W), WWW ‘aneméwm mwm mm fglaw %’a¢m3né¥r l %{ 1 Q a Mr Pxasad has not dlspu the homicidal death of Fagni Bai. Momover Dr M K Jam (PW— ) has stated in his evidence that he conducted post-mortem on the body of Fagm Bal, there was swellmg on occ1p1tal reglon and contu 1011, on dlssection 1t was found that there was clotted blood and o mmovmg that 1t was seen that there was' &acture of skull bone be een both the palietal bones and big clot was present in the brain. Cause of death was head injury. His report is EXP-13. Above medi a1 evidence has been comboxated by —3), Shivkuman' (PW—6), Dewan Ram , all of them have stated in their ed the deceased on her head with medical and ocular evidence it is established that the death of Bai is homicidal in natum. F ' used in the crime in question is of the deceased, has stated in his evidence that on the fateful d on the occasion of Deepavali festival he saw that at about 4 p.m. acc sed Phoolchand 85 Mutoor Ram were quan‘elling therefore, he went, and intervened in the matter, the accused attacked him on his hEead with Lathi and when his mother x 1 the ocular evidence of Nanka (PW—7) 65 Mutoor Ram (PW evidence that the accused Lathi. In View of the abov As far as complicity of the concerned, Nanka (PW-3), s : came to intexvene, he attacked her also. é f Shivkumari (PW-6) has also stated in his evidence that on the fateful 1' day in the first instance, the accused attacked Nanka with Lathi, before‘that he was quaneling With Mutoor Ram as a result of which Nanka fell down, when mother of Nanka came to inteivene, the t \Laccused attacked her also W1 Lathi Dewan Ram (PW-7) has k ( - a e c o a W m Emma, may, comborated the above evidence. Mutoor Ram (PW-9) with whom the accused was quan‘eling, has also corroborated the above evidence. In cross-examinau'on of these w elicit any circumstance whic] witnesses. Therefom, complic queétion is established beyond 1 134 Mr. Prasad argued that in a qua all of a sudden, in a heat of pas as a result of which she died on the hospital after two days and there was no intention of the accused to cause the death of the deceased, therefore, oEence against the accused does not travel beyond Section 304 Part-II ofthe I.P.C. .It has come in the evidence of the prosecution witnesses that in the first instance there was quarrel hetween the accused 8a Mutoor Ram, when Nanka came and interve ed, the accused attacked him also, thereafter, when Fagni Bai c , he attacked her only once with a Lathi and on third day of the ' cident i.e. on 22-11‘1999, Fagm' Bai : died in the hospital. In the find instance, there is no evidence of the E doctor to the ed‘ect that the injury sustained by the deceased was f sudic1ent 1n the ordinary course of nature to cause her death Moreover, Fagin Bai died after two days of the mc1dent the accused attacked the deceased all of a sudden when she came to intervene ; and the accused attacked the deceased only once. Therefore, h‘om the above facts, it cannot be said that the accused attacked the X itnesses defence has not been able to 1 discredits the evidence of these ity of the accused in the crime in easonable doubt. Lrxel between the parties, the accused sion attacked the deceased only once deceased with intention to caus Kher death and to prove that fact, the WW QO. £2 W31 2WD Wm (W) WWW ayméwim m¥fwm mm iiz$m érmemé‘a i prosecution has not been able to bn'ng any material on record which establishes that the accused attacked the deceased with intention to 1mstances, conviction and sentences er Section 302 of the 1.13.13. cannot be cause her death. In the cird imposed upon the accused und sustained. 12.111 the result, the appeal nled conviction 61, sentences under S ani he isvacquitted of the said c under Section 304 Part—II of the for seven years. As far as convi of the I.P.C. is concemed, same upon the accused shall run ( accused is in detention since completed seven yeals ofjail sex forthWith if not required in any o W L.C. BHADOO Judge SOI'l'la by the accused paxtly succeeds, his ection 302 of the i.P.C. are set aside barge, instead thereof he is convicted ‘ I.P.C. and sentenced to undergo R.I. lotion an sentences under Section 323 are maintained. Sentences imposed oncunently. It is stated that the 19-7—2000, thereby he has already tence. Therefore, he be set at liberty ther ease. HI, Sdl- T. P. Sharma Judge W m .......<§?.$...a:2uén%g.........W 2%% a 7 anésf m (W) ‘ ‘ §§Tn§gr§§§ mW m" é mw§‘wm $ saw-em ma