^ ^- i^-^ f^^' kLnO** ^'r"..-•"•* CF0000062697 IN THE HIGH COURT OF JUaiCATURE OP MAIHYA PRADESH ATsJABALRJR Griminal Appeal N3 .v _^^ Of 1999 APPELLANT : (. IN JAIL ) Budharu Aged about«-35years, ^ S/o '&aratbo, resideat of-Bardha, «^' P.S.-Balouda Bazar,Qistt .Raipur. VERSCTS <^- RESPON'OEHTs State o£ M.8. fchrough-Statian House Offlcer, P.S.-Balouda Bazar,Distt. Salpur• <-.. CKEMINAL APgEAL DNDER SEC'EEON 374(2) OF THE CORQE OF GRIMIHM. gBOCEEXJRE; XI-HC—7S an^nw Rs^i* wnai^ignN; ,:w- '3''^-<ii'4i<n^, 8>Til+i'is, fsifli-ay ^,........^c.a..?^.4^^ sii^i 1ra?>' ('^iig3!^; ^mw^lft'Haii^r &IVISION BENCH: - E MR. l-.C.BHADOOA HON'BLE MR. DHIRENDRA MI$HRA. JJ. l-1-2006 Smt. Usha Chandrakar, Shri U.N.S. beo, Additioi respondent. Oral Judgment. 1. BythisappeaiaccusedBuc judgment of conviction couhsel passed by the l Addi District Rdipur in 5.T. No.- Sessions Judge after hol commission of murder of Section 302 of the 1.1 imprisonment for lifeand payment of fine to further 2. Bnef facts necessary foi] Mevalal Satnami, son of P/13 in the poiice stafi« yesterday evening i.e. on 7 'tiiiin'il't 'qmgf tf is^S <F«]t$i< •^aiRiTisn^t for the appellnnt. lal Public Prosecutor for the State/ jharu has questioned the legality of the cjnd order of sentence dated 9-3-99 ^ional Sessions Judge, Baloda Bazar, .•^53/$4 whereby the learned Additional (ding the accused/appellant guiity for IMahendra Kumar, convicted him under '.C. and sen'tenced him to undergo Ipcy a fine of Rs.1,000/-, in default of undergo R.I. for one year. the disposal of this appeol are that ^dhendra Kumar lodged the report Ex.- |in Baloda Bazar to the effect that ^9-94 he and his father were returning ufter purcho^ing grocery item^ ffbm Tiidk V&f 0.'S shop. When they reached near the house of Budharu Satnami, Budharu came to T XI-HC—78 an^'nqii TOFsn^i j-.- ^-.- 'Tsf13Tpn^rq, ts'iilwito, fq<y)i-Hy,< 31I^l'<PRT (Ip^^ET) —<^ ro$- with a wooden club and afl father that 'you have with the club on fais repeatedly assauited ^-10 received injuries on the 'hi father fell down oh the receiving this report, 5.H under Sections 307 and 3 for the scene of occurren the Panchas, prepared Pan the deceased. He took int under Ex.-P/5. The weoipf possession under Ex.-P/4 blood stained soil and pla the place of occurrenc^ deceased were taken int^ stained wooden club and d under Ex-P/20. The repoi^ Ex.-P/22 and P/-24 reispe^tive 3. The dead body of the examination to the aBPlfepfrT ••TORff•iffeiA Tfil^TC ^? aifiro w^y |er blocking their pcissa9e, he said to his gr|ibbed Rs.10,000/-', started assculting fa^ner's right hand, back, shoutder, he times, as a result of which his father ^ad. Blood start®doozing out of it. 1-lis ground and died spontaneously. On |0. police station registered the crime !|41 of the I.P.C., crime No.250/94; left jce and aftergivin9 "o'l'ice (Ex.-P/ll) to {:handma (Ex.-P/l2) of the dead body of |o possession the ciothes of the accused ^n 'of offence i.e. club was taken into from the possessionof Budharu. The n soil were taken into possession from under Ex.-P/3. TTie clothes of the possession under Ex.-P/l. The blood tther clothes were sent for examination ^ts of the F.S.L, Raipur and serologist ;ly were received. deceased was sent for postmortem Comnti^nity Health Centre, Baloda Bazar where Dr. K.5. Bojpoee conducted the postmortem on rhe dead body^of Mahendra Kumar 0'nd he opined that the deceased died on account N XI-HC-22 -"£ -s^ -i<i4icf^, .a^+i'is, Isiqray Tiwen aiHict) of shock as a result of heofci investigation, charge sheet ^i ialoda Bazar who in turrr Judge, Raipur from where Saloda bazaar received the calse injur/. Afrer cbmpletion of the |as fited in the Court of A.C. J.M., c4mmitted the case to the Sessiohs the 1 Additional 5essions Judge, on trdnsfer for trial. The prosecution in order t<} accused examined 20 withesd was recorded under Section 3 the'prosecution evicfence an^ implicated in the crime. heuring the arguments of th| counsel for the accused, copv| mentioned in para-1 of this ju< Lsarrled We have heard learned couns^ Learned counsel for the. fdct o-f homicidal nature of that, t>r. K.S. Bajpaee (PW-I9 body of the deceased, has s postmortem pn the bgcly of injury on the left parietal peg to the skin. The bone beneotfh Wfeiih'WRff •? teA TfSR^!: ^sipaqsii^i establish the charge-against the. |es. The statement of the nccused 113 pf the-Cr.P.C. in which he denied stated that he has been falsely Additional Sessions Judge after Additional Public ProseGutor and lcted cmd sentenced the accused as Igment. foptheparties. db acc^sed/appellant did not dispute the iath of the deceased. Apor+ from , who conducted postmortem on the Itated that on 9-9-94 heconducted the deceased. There wds lacerated i|)n in the size of 3 xQ."5 cm deep up the injury was frdctured; The cause of de.uti'i wUii lifcMd injui'y Ufid exc&ssive hdsmflt'rhi fr XI-HC-22 sn^i'^1 f?TOT31^I 'siiiiitb v s •3^-'='ipii?ra, '3gfens, 'rsi<ii'«i< WICil »N!<») 311^1 TRHWflfe •/i. qnqfeNpr^nwS •?fezi"ri^R?R ^afiOTanig ' report is Ex.-P/23. PW-2 accused Budharu attackedtd the ffccuSed said that he ,y goirig to do'. PW-3 Chintar'anf and stated fhat Budharu of the above ocular evideil » - • . , established thot the death nature. 7. Now, ceming tp the invol\| question, ieamed counsel fc^ evidence of PW-2 Janak Rai1 , worth reliflince and the accu; Janak Ram Satnami has statj 7 p.m. in the evenirig the de< towards their house from tH side Budharu came carrying cries from behind thnt 1 attacking the deceased with On raising the cries, Chintan •;^' standing on the dodr of hi: murder, 'what you are g( cor-roborated the above evi Fanak Ram Satnami has stated that le dsceased with a Lathi.atthat time, )\as committed murder. 'whdt you are has corroborated the ahove evidehce mu|rdered Mahendra. Therefore, in view ice arid the inedical evidence, it is bf the deceased was homicidal in fement of the accused in crime in the accuseci/cippellant argued that Satncmi and PW-3 Chintaram is not (ed has been wrongly convicted. PW-2 |;d that on the fatefut dayatabout 6- (eased and hisson Meyalal were going e shop of Tilak Ram, from the other |a club in his hand andhe heard the hjiv&died'. He saw that Budhdru was |a Ldthi on which he raised the cries. im came on fhe scene. Budharu while house said that he hos committed 4ing to do'. ,PW-3 Chintaram has iilence and stated that he saw that iudhary wus^attacking the deceosed, the deceasecl fel 1 cldwri on XI-HC-22 'S^ •^Wld'4, 'enil'y'is, i««'iiQ9? . sn^t^i TC'iW 311^1 SSH 'H^ ^TWtl »i*)tch -?- the eorth; became unconscioj Thereafter, Budharu left stated that Mevotdl raised 1} Atohendrd. When he went ''I.' . front of the house of the asked him to save his life. " his house and Mahendrd sat Thereafter, he was taken to eyewitnesses namely PW-Z] Chintaram is corrQbdrafed byj has stated that Mahendra The evidence of'these witil / eyidence of t)r. Bajpaee PW-^ postmortem on the bodyof t^ was a lacerated wound on thel 0.5 cm, bone beneath the at the dedth of the deceased weopon of offence i.e club P/4;sqmewdsstainedwith b| tottards to the F.S.L. from wbere it w serologist's report Ex.-P/24 stained with human bldod. *li!<'i<il-(iw^ ^^S'S^K . ^3Tptra<fl^?f mdde is and blood was oozihg out of injury. For his house. PW-8 Manharan has he cries that Budharu has murdered that side, Mahendro was lying in iccused. Or> enqyiry; the deceased he accused was standing in front of jd that Budharu has-assauited hm. 1'he hospital. Therefore, evidence 6f janak Ram Satnami and PW-3 the evidence of PW-8 Manharon who oral dying deciaration before him. ^esses stands corroborated by the 19 who has stated that he cond.ucted le deceased and hefoundthatthere left.parietat region in the size of 3x jove injury was found fraGtur-ed dnd (^as on account of head injury. The ^as taken into possession under Ex.- lood and it was sent for examination ^s sent to the serotogist. As per the (item No;50) Acacia stick was found fherefore, the above evidence also stdnds corrobordted by the serologist's report that th^ftft<S&ted XI-HC-22 'S^-'II^M'il, »fl1u'is,'isiwi'ay •(IMMI gitii^ sii^i^ l^iRiSliCT 5t)^ .^T?^ an^r^giwHfer -t- 'iilliTf'fl-l tnTai 4 is^ th^K ^i'3ipBH SH^I used club in question in above evidence of'ieyewi: confession and medical ri was the author of the cnwe ^ssqulting the deceased. In view of the ^iesses, dying declaration, extra judicial jport, it is estabiished that ttie dccused in question. S. Learned counsel for the evidence it is not estal deceased with the intei medical report ther-e wa^ tha said injury was caus^ against the accused does 9. On the otherhaind.Shri the trial Court. (iccused/appetlaht argued thdt from the llished that the accused atl-acked the tion to cause his dedth. As per the only one serious injury on the head dnd |d with the club, therefore, the offence hot travel beyond Section 304-11 of the U.N.5. &eo supported the jud^ment of 10. In order to appreciate t| for the accused/oppellan| evidence. PW-2 Janak stated 1+iat the deceasel house, when he reachec| nssaulted the deceosed ft the medical report, on froctured omd the deciased le argument advanced by leai^ed counsel we have perused fhe medical dnd ocular tam Satnami and pW-3 Chinlnram have was going from Tilak Ram's shop to his ih front of the house of Budharu, he ith the.wooden club on hjs head. As per ccount of thot injury parietnl bone was died. Therefore, froffl the above 'idcnca, it appenrs tha+ +ho n/-/-ii<a>ri nqsofil+ec! the decea.Sed all . [^^te^ XI-HC-22 sn^'i'^i W sn^i ^qf^-yf^d ^l^ ^ •S^ ^WW^, elTfl'H'lto, ftywy tffWff t»i»11<*> •M of a sudden, withputany pi^ saying that Mahendra had ^ not stated that injury in qi^ course of natur^ to cause tl| is estabtished that''while as^ the aeeused w/as having kn| wooden club, he may likely Therefore. in view of the c offence against the accu; Section 304-11 of the I.P.C.i e-niedi-tatiori and in a heat of passion jrabbed Rs.10,000/-. Even doctpr has ]iestion was sufficient ih the ordinary ^e death.However, from the facts, it jaulting the deceased with wooden club iwledge that causin9 injury with the |to cause 1+ie death of the deceased. (bove,we are of the opinion that the s^d/op'pelkint does not travei beyond 11. ln the result, the appeal 5ecti6n 302 of the I.P.C. oin41 nre set aside, ihstead there| ynder Section 304-11 of th| for 10 years. The accusedj thepeby he is in custody •rtierefore, if the dccused/4p|: case, he be released forthwi|th Sd/- L.G. Bhndoo Judge qi|'i(cl<i1-f liWl'ff'? 'fe'A <[»]t{R 'f'' ^S^SSfS^V pai-tly aiiowed. The conviction ynder sentenceawarded under that section bf, the accused/appellant is convicted ^ I.P.C. and sentenced to uhdergo R.I. foppelhnt is in cus+ody since 9-9-94, for the last more than 11 years, ippeitant is not required in any other Sd/- Dhirendra Mishra Judge .[^^Rrt '<"7