XI-HC-78 ,c:3Tf^T ^)T RFTT^ cT^T3TR?T5b^lcb ® <TW^TT^»HTcb 3^T ^ll^ld^, ^Tn<HJI(o, [stcr11'H^< ^^...c^A.^ta) 02^^200 3^ l^t ^l5|<*> ('ic<lj,Gl^i2:T) g^n'arR: ^fN ^TI^T OSVJSIOM SENCH: Hon'bie Shrl Justice L.C. Bbadoo& Honibje_Shn_Justice Dhirerj-dra IVIishra. CRIMINAL APPEAL l4 APPELLAISIT Versiis RgSPONDENT Shri Prafuiia Bharat. Shri D.K. Gwaiare respondenV State, (ORAyl Advocate {Dated L.C. BhadooJ The accused/appellantl judgment of conviction and passed by Additional Sesslor|s No. 307/1999 v/hereby he ha^ the indlan Penai Code for c< Prem, and sentenced to und^ <=hN?c<l4)^ WT^ff ^ te^t <Rl^K ^^[f^TT^Tr^T o.111/2002. Kursdaniaj @ Kutku S/o Fltku Uraon Aged about 30 years, R/o Viilage Dharmpur, P.S. Sitapur District Sarguja, CG. State of M.P. (Novi/ CG) for the acctised/appeiiant. Additional Publlc Prosecutor for UDGMENT 29-3-2007) has preferred this appeai agalnst the order of sentence dated 22.08.2000 Judge, Ambikapur, in Sessions tria! been held guilfr^ under section 302 of ^mmittjng the murder of his brother - ^rgo Imprisonment for life and pay fine P.T.O. XI-HC-78 ^n^r ^T RpN cT?TT3TF^T5b^i<=h 3^ ^I^M^, ^Tfl^^Ko, f.^<-11^^< HW^l[ Sh^lich ^ 200 3TT^T ^?|cb (^cit^q^) ^RTTW: :Rf^T ^TT^T of Rs. 6000/-, in defauit of pa| four months. flr Case of the prosecutibn, about 8 p.m., when decea^ accused came, attacked himl near the temporal region and| PVV-5, informed him that he and see whether he is dead 4 Budhlbai, the wife of the Sarpanch Debarram and K^ inqulry, the accused confes^ Prem with axe. Thereafter, took the accused to the polic^ 1 IViJIan, the son ofthe decealsed registered by the Station After giving notice Ex. P-3 to'| Ex. P-4 on the dead body prepared. Thereafter, dead | examination to Government ifiosc Dr. K.K. Datta PW-7 conduc|ed oreoared the post mortent rnemorandum Ex. P-15 anc| weaoon of the offence was s^i After compietion of th< in the Court of Judldai Magli turn committed the case to th <=bl^I^^r1 WT^f ^ fe^t <FSt<-<K ^3Tf-OTCT^T ment of fine to further undergo R! for i, in brief, is that on 20.7.1999 at feed - Prem was at hls resldence, Iwith axe on the right side of his neck thereafter he went to hls father Fitku |has attacked Prem, asked him to go a!lve. Crime was witnessed by PW- Ideceased. She Informed the viiiage ^twar Sainath Chikwa and on their |ed that he has attacked his brothsr S^rpanch and the Kobvar of the vlilage station, matter v^as reported by PW- i, based on that, FiR Ex. P-2 was -lc|use Office of Pollce Statlon Sitapur, l|the Panchas, prepared inquest report Prem, site p!an Ex. P-5 was also body was sent for post mortem ^ospital, Sitapur under Ex. P-9 v/here the oost mortem examination and report Ex. P-10. Accused gave in pursuance of that an axe, the iizedunderExP-16. Hcluse investlgatlon charge sheet was filed ^trate First Ciass, Amblkapur, who In Court of Sessions Judge, Ambikapur P.T.O. XI-HC-78 w^T^rf^TN cT8TT3TI^T5h^ich ^NB I— 3^ ^i^id^, ^Tf1^4i<o, R«ni^^< ^IHdl ?h*1ich ^ 200 STT^T^ra"^ (^c(i^<q^) ?^TT^K ^TfN 3TT^T from where iearned Addil received the same on transfet In order to accussd/appeitant, the prosj Statement of the accused w^ .Code of Criminai Procedurl appearing agalnst him in the innocent and has been faIseN We have heard couns( rnateria! avajlabie on record. Counsei appearing on not disputed the fact that tl nature. Moreover, from the e^ the deceased who witnessed judjcial confession made by PW-5 as v/eil as the medlca! established that the death of est^blish As far as the involver questlon Is concerned; coun| that in paragraph 7 of cross e^ stated that due to darkness happening beh^een the accus cannot be said that she witne^sed <=hN?<n^-i wraf ^' te^t ^ffSK ^3Tf^T3TT^T onal Sessions Judge, Ambikaptir, for trial. the charge against the ^cution has examlned 8 witnesses. s recorded under Sectlon 313 of tsie in which he denied the materiai )rosecutjon case and stated that he is impjicated in the case. •I for both the parties and oerused the behalf of the accused/appellant has ie death pf Prem 'was homicjdal in ^idence of Budhibai PW-4. the wife cf the crime in question as aiso the extra |the accused before his father Fltku levidence of Dr. K.K. Datta PW-7, it is &rem was hcmicidal in nature. hent of the accused In the crlme in ^ei for the accused/'appeilant argued kaminatlon of PW«4Budhibai, she has |she was not able to see what was ^ed and the deceased and as such, it the crlme in questlon. P.T.O. XI-HC-78 W^T ^ {^t°K c^Trw^T^i^ b— ~^3( ^l^ld<M, ^Tfl'H'Ko, i^^l'M^ tTTR^TT ^KTcb ^ 200 3T(^?T q^^T (^i^^) ^TTW^fi^CT^ We have perused th( she has categoricaliy state<p reside v^as small and it hadl aiong with her husband and| closet her brother-in-law, th^ another brother-in-law nam^i used to llve together. On th^ husband were sitting in th^i there and started saying th^t which her husband repiied ti-|at but accused Kundan did nol husband to the courtyard ar^d near the right side of the ea^ down and the biood started evidence of PW-4 Budhibai, at the piace of the incident aiso stated In her evidencel where she as v/eil as deceas the courtyard and attacked sald that this witness did nol 11 Is belleved that due to daril as to what was happening, e|^ at the piace of incsdent, hi more land and bringing the this witness. IVIoreover, the was Infiicted by someone el Prem sustained injury.There^fter 4)M?d4)^ wT^rf ^r f^t ^RCT: ^ 3Tf^T 3TI^T evidence of PW-4 Budhibai in which that the house in vvtiich she used to two closets (Kothri), in one closet she ^hildren used to reside and In the other accused, used to reside. She had yet ly Basant and both her brothers-in-iaw fatefu! night, when she as vvell as her ir residence, accused Kundan carns her husband had kept more iand, on he wlii give the same to the accused stop himself at that and dragged her attacked him cn the temporai region wlth axe, as a result of which he fe!l >ozJng out of the injury. Thus, from the the wife of the deceased, her presence tannot be doubted. Moreover, she has Ithat the accused came to her hpuse |sd Prem were sittlng, dragged Prem to |him with axe, therefore, it cannot be Ivvitness the crime In questjon. Even if ^ness this witness was not ab!e to see fen then, the presence of the accused inquiry from deceased for retainlng ^xe are duly proved by the evldence of ^ccused has not stated that the injury ^e as there was no third person v/hsn r,accused went directiy to his father P.T.O. XI-HC-78 %^T^rRRt^ cTSTT 3T[^T $h^i<^ ^---~, ^- ® K M^ '3^i ^WW^, »Tfl'M<l<6, l.sl^l'M^ HWW[ Sh+lich ^[ 200 311^1 ^5| ch ^<Tf^K^f??f3T^T PW-5 Fitkti and disciosed tc| asked him to go and see Fitku came and sav/ that above extra judicial confess|on fatner establishes the involv^ment questlon and there appears father of the accused to fai< case. him that he had attacked Prem and v^hether he is dead or aiive, on which ?rem was Sying dead, therefore, the made by the accused before his of the accused wlth the crime In to be no reason for Fitku PW-5 - the seiy impiicate the accused in a false EvenPW-1 Miian,the| cross examination of his evli judidal confession before availabie on record for the in\ question and to that extent w^ the impugned judgment of th( Counsel for the accu^ being the brother 'of the d^ deceased was not giving atternpt was made, therefor^ inferred that the accused h4 Prern. !t is an admltted of the accused and he askedl giving him the more iand, give It to him but the accuse<| courtyard and attacked hlm 01|1 cbN[<"I^T1 WRff ^ f^t <f^^l< ^3tf^T3T1^T |son ofthe deceased, has stated 'in the Sdence .that the accused made extra !1im. Thus, there Is ample evjdence l^oivement of the accused wlth crime in ^ do not find any liiegality of infirmity in i4 trial Court. ^ed/appeiSant argued that the accused ^ceased attacked him only once as- i^nd to the accused and no second i, from the above evidence it can be h^d no intention to cause the death o? positi|on that the deceased was the brother the deceas-ed vvhy deceased was not which deceased repiied that he wiii did not stop there, dragged him to the Mth axe. When there Is no evidence P.T.O. XI-HC-78 w^T^rf^TW cW-^TT^T ^^lch <-4 "\" \^ ^ 3^T ^I^K'I''.), ^Tfl^KS, fs|diyj,< HWW\ Sh^lich ^ 200 311^1 <451<t> (^cft^ei^) ^TW ^rfN ^TI^T regarding the intention, the| circumstances under which the the weapon used in the offehce caused and the part ofthe bopy present case/the accused us^( to^sft the vita! part of the boc|y the evidence of the doctor wllio body ofthedeceased, muscl^ cut and the injury was sufflci< cause death. Deceased diedl and shock. Therefore, the pa|l •sls:> .'. .' and the force"with which the of the spinai cord was cut; ln| of Prem is writ iarge. same can be gathered from the offencs v^as commilted, natyre of ^< force with which the injury was on which injury was infiicted. In the 3d axe which is a deadly weapon that i.e. righttemporal region and as per conducted the post mortem on the bone and 3/4th of the spinal cord was mi In the ordinarv course of nature to on account of cutting of spinal cord of the body chosen by the accused iinjury was inflicted due to which 3/4 lention of the accused to cause death in view of above, we the Impugned judgment of th^ the accused as mentioned ^i without substance is Siable dismissed. Sd/- L.C, Bhadoo Judge 4)N?d41-1 HTR^rr^f^t<Rl^i< ^3Tf^T3TT^?T <Bo not find any illegaiity or inflrmlty in trial Court convicting and sentencing ^bove. Accordingiy, the appeai being to be dismissed. it Is accordingly Sd/- Dhirendra Mishra Judge P.T.O.