XI-HC-78 ^ *41^MI Sh^llcfl 3 T •<ii't|ici<i|, ®Ti1<d'ie,(sicii<dy . C-r-^^D.^, 4^,/S-ooo Wf 200 sn^r^R^icb (CT'3:iraTsbt<l°b llkll Stt^!V^n (^f^^) ?R[TW(rfN'3n^r «bi<<F(i41-i tiitiCTT?''tei^)'<F3]«i< ^aTRrR-sn^T APPELLANTS 1 Qaaedi R<u|i, S/o. SudanKwnhar, ayd about 32 years, Occupation|Labow 2 Sahadram^ N'tehetRana, son<rfSudanKianhar, %ed about 35 ye^rs, Occapatfon Labour •f--l. Both reside^te ofvillage Ma^ani Batturakachar, Police Station Ghaj^ioda, District Raigarh 1 Versus RESPONDENT State of l^.P., Ihrou^i District Magistrate, Raigarii (C.G.) Hon'ble Shri L.C.Bhadoo and D.B. : 2-4-2007 Hon'ble Shri DhirenUra Mishra. JJ. Today this appeal has been U; ShdAwadh Tripatiu, Advocajte for the appeilants. Shri Aldiil Mishra, Panel La\tyer, for the respondent/State. ited on I.A. No. 1 for eariy final Iwaring. Counsel for accuged-appella^.t Ganesk Ram argued Aat even diou^i ths accused-iq)peUanthasbwndtrecte4 to be released <ni bafl, twt he is not in a posidon to funaish bail bond. He i^ in detentioa snKe 1997, Aa-eby he is in detend<ai for more thaa 9 year. Thi^ fiaal hearing, to whidi colusel for q)peal is likely to take some more time for flie respondait has no objectioa. Tteefore, wifli caisent ofdiepa-ties.tMgiqppetl fa finally heard. Oraljudginentdictated<»nJ94"- ORAIJ seateace dated 5-2-2000 pas8edby2| No. 152/97, wrtiereby tlteleamed| accused/qipeBantsgBatyfwconau JUDGMENT PerL.C.Bhaduo.J.: This appesA is directed agaii^st fhe judgment <rf convistKm aid ordeT af AddMonal Sessinns Jiu^e, Ra%arii in S.T. Additionri SessKms Judge after holding ision of offenee nnder Seetion 302 read wilh P.T.O. XI-HC-78 3n^r^rR?it^i 1 g8IT3T1^Tsb>ll»b \< s« ^WWI !*l*<|ch 3^'^IPTIcPT, ®Tfl<1'ie,fsliliyy __ C^.p.No.64fc/n^ ^RT 200 311^1 qacb (yit^ctt,.?) ?RITWtrf?cT3;n^T Section 34 ofI.PX'., sentenced each to pay a fine ofRs. 5000/-,'m defa^ |>fAemto undergo UDprisoamenttw life aid \t of payment of fine, to fuidier untego one wiuch, Caiasiaram came out fium die| °bi<iln41-f Miticil'iftec3'<.Riwi< ^iaif^Tsn^r year's R.I. 2. Prosecution case, m brief, is i^at <m 18-4-1997, thae was a marriage in the house of Dharamsin^i. Deceased (phasiaram and his wife Jankibri (P.W. 13) weat to their house after takit^ mtat Tliey were sittiag in vwandah of Aeir hoiae. At fliat tane, accased Sahajlram alias Mehettam called Glusiaraa, <ni house. His wife Jaikibai abo came out fir<mi cau^tt Ghasiaram from lus testicl< the house, where accused Gane81u«|m wag already ixeaent. Accused SaIuHban asked deceased Gasiaram as to viby ^s is lookmg at his wife wilh ffl intention. He s and teew him on Ae ground. Accused Ganeshram attacked him with a woo|den stiek (Oenda) on lus head, as a regult of which, Oiasiaram sustaihed injuriai intervene, on which Ganedt slapped on tfie head. P.W. 14 Shrimoti Bai came to hsr. P.W. 12 ^(Uhedu·an eame on die scene after hearing Ae sound of commoti^n and saw Aat blood was oozmg out ofAe head. Atthattime, P.W.3 Phoolsindi also reaehed Ae sesae ofoeauietice. After seeing die scene, he lodged repwll Ex. P-3 on 19-4-1997 ia PBlice Staticm, Ghai^ioda. Ghasiaram was taken tf) boapitsA, Osa^mta fla- treabnent but he could not be tteated dierefca'e, his faanty menibera took him to his residence, ultnnately he succumbed to the inji^ries on 3-5-1997 sa 12.00 no<Mi. Stjuries of Ghasiaam were examimed l^ Dr. S.^J. Kesai (P.W.8). He gaw report Ex. P-12. Dr. M.D. Jodri(P.W. 12) to<A X-t^ offhe head andgave repmt Ex. P-1. Dr. M.L. Thawait coiriucted post mwtei^ prepared E& P-2. He feuid ihat tfiwe was a depressed fi-acture <m parietaloccyrftal region in oval sh^ie insize <rf3" x 2". Ctotted blood was present. There w^s »gwy on left testicle. The doctm <yined disi causeofdeatfa was coma aiid shfiGkas a result ofAe kead injury. Deadi was P.T.O. 1 2U XI-HC-78 HI^MISh*4|ch 3 T "ill-illcl'il, tfiTl1<H'l6, Rfcliyy ^_, Gr-ft-N.o. 4.& oc ^R 200 311^1 Mact)(^c|(^qt^.i]') 3l1^T?>Tf?^W OTran^Tstitiiti '< s ^HTW^fStTsn^r +i-'ifd41-i WTcffir'fe'K'l (K\W( ^3if;gn3n^r homicidal in nature. Ihvesrigating off^car aftear gwing norice Ex. P-6 to Panchas, prepaed inquest Ex. P-7 on body |of Ghasiaram. Site plant Ex. P-5A was prepiuied. Weapon of offaice- woode4 srick (Gaida) was seized flxaai Gaieahram under Ex. P-8. After ccmqiletMm of i(ivestigation, charge dteet was ffled m die Court of Judieial MagistrMe Coiu-t Sv^t Class, GBia^ioda who in tum cnnnutted theease to the Sessams Judge fi'om wjiye, leamed 2 Additional Sessioia Judge, Raigarh received fhe case on traufCT ffs triaL Prosecution in mder to estab|idt diarge agftmit Ae accused-appeUsmts examined 16 witneases. Stateinsnts SectKMt 313 of Cr.P.C. in wiueh boi of accused persons were tecoided under Ae aecused peraons dsnied-flie tBataiat appearmg against them and said Aa^ they have beea falsely uafUcsXssS m Ae crime. I-eamed Additioaal Sessions .T^dge after heaitog leamed coungel for the respective pardes, convicted aa^ sentenced Ae aceused persoiw as aforemsnti(med. We bsve heard Shri Awadh Ttipatfu <MI behalfofdie^peUants and Shri Akhil MiAra on behalfotiie State. Sfari Tripadu las not diq)ute^ P.W. 13 Jankibai wife oftfie deeeas^d hascategoricaBy stated that Ae accBsed Ganeshram attacked Ghasiaram wilh homicidal deadi rfOhiBiaram. Moreover, a ladu on his head, as a reailt of vrfudi, Gfaasiaram sustained ugunes, which VfiS be«tctMiobarated ly evidenceofP.W. 2 Dt. M.L. Thawait who has statedtha^ diae was a dqaessed firactuw <m parietd occipital region and the death was d^ie to coma and dwck on aceount ofkead injury, death was hcunicidal in natm'e, [Aerefore, in view ofthe above medicri and ocular evidence, it is established fhat ^eadi ofGhasiaramwas hnnicMal in natare. As far as invohwment of a<jcused i^pellanls in (a-nne in quesdon is concemed, P.W. 15 Mamiyarobai h^s tumed Iwstfle. She has tmV sappasts& \ ^ P.T.O. XI-HC-78 an^r^T.R-ficti OTrsn^Tstitiicti ^l^Wl sh*l|ch 3^ -t1WW<i, ^nS\W\<i, ^<-\wy. __ c^.!\-^. 64fcAo^ ^200 3<l^l 4ach (yi^'^ff) gTHTWHfgcTSn^T c]n stan<|mg ThereNte prosecution case. P.W. 14 Shrimoti stated (hat Gaaartu'am attacted examindion, she has stated Ifaat die Sahadran came to their residence anybody assailting Ghasiaram. Sl»| Therefore, evidence of ifais witness i4 Jankibai Iias categoricaBy stated Aa( dieir residence. At Aat time, husband waa casway, Out bflfae hons^. Sahadram and Ganeshram were testicles and dragged hnn. Ghasiaran wMi lathi (Genda). She result ofinjuries, herhusband feU Leamed counsel for the aeeused exanunation, ihis wittiess has state4 Ohasiaram, tfierrfore, she ts not e^i eategorieally stated dtat Bhagiradu Ladu from Ganeshram. Ske has dsol notsee anybo^ attacldngAe deceasf house was butnatural.SofarmP.W. an eyewitness. Wlien he was at informed him about fl» incident. Bai ]pai even fhoi^i m exanunati<a-in-clrief has Ghlsiaram wiA a woodea stidE Iwt in aoss- fioes not know wheAw aecused Oan«hand the fideEiil ni^tt w nofc ae <Md not aee |only saw diat Gbsmsaam was lying ftere. also of no Mp to flw iMoseention. P.W. 13 she alsmg wiA her husband was siaiag at Sahadrtm came aad eaUed h«huskand. Whai her Ghasiaram in mjured conditiML .<-?, we doiiot &td ani( Therefore, fi-om flie evidence of P.^| Ganeshram attacked die dece^ed \ '1. : : . . -- . =»ii<ifci41-iNititiT^'tei^t<Ri+(;i< ^;3Tf^TT3n^T i, ahe also followed him. Thenshe aaw ifaat ^t^a.t^a-^t^?'*- "' ^-. at ifae door. Accused pwseas csea^tt his aligd Gatiesteam ke feU down. Oiniediram attacked to intervene but ihey did not stop. As a do|wn. Btood staited ooatig out ofthe injunes. argued dtat in paa 5 rf ihe cnws- diat she <Bd not see anybody attacldng ejfewilness. But in flie same para, dw has d^o wttnessed flie CTime and he tried to SBateh |stated diat it ia incMrect to aay Aat she did ibd wilh ladri. ftesence ofdus wiaass in her f. 3 Phoolsing is cmieemed, in fi»the is not residence, dwn Maniyarobai (P.W. 15) pe nunediately reachwl the apot and saw hts substatiee in the aiffusest at Shri Trq)aflu. f. 13 Jsmkflxu, k is egtabMdied Uiat aceused ^vilh ladii oa head, as a resuh <rf wMeh, P.T.O. lli.1 XI-HC-78 *4M^I Sh^lch 3^ "ill<11cl-i|, ®Tfl<H'16,Rlcll+f^i C^p).^0. 6,^/^60 TTT 200 3)1^1 ^iaqi ('i"'^'^') 31T^T°fTrf?:fW ()qT3T1^Tsb>l|ct) ?T(ITW Hf?tT 3i1^?r Qhasiaram sustoiiwd fiacture, vWe^ established by Ae evidenee-of P.W.I tnortem oa Ifae body ofGhasiaram. AUegadon against Sahadran i4 and dtagged him. 61 fiict Iw pressed fhere is nothiag that it was (me affhe| there is nolhing inthe evidTOce lfaat| wilfa Qaneshram to cause deadi of Ganeshram was cairying ladri by was individual act ofGanesta'am aid intention, therefore, Sahatfcam cannoll Secrion 34 ofLP.C. Therefore, offenc^ Sectioa323 ofLP.C. Shri Awadh Tripadu argued incident because he was not treatedl hospital. Moreover dwre is notha^l Ganeshram attached fhe deceased appreciate <fae argnnent advanced by ofP.W. 13 Jaiddbai, wliohas statedtt|at ofthe house and when he went out head. Moreo'ver, die doetorhas not by Gaiasiaram was sufficient in the therefore, it cannot be infen'ed that Ga|ne to cause his deaA. However, (he attacked fhe deceased witft ladri Ganeshram had definite knowledge uttimately praved fatal wiuch has been 2 Dr. M.L. Thawait who condueted post that he cai^it ihe testicles (rfflie deceased [testiclea also but as per medicd evidence, lyeasons for dea<h <rf GBiasiaran. Moreofva; Sahadiam was sharing comnaon intaition Qhasiaram. Sdiadram was aimless whareas wl^ich he attacked Ghasiarana, dierefore, Aat tot of Sahadram does not estabUsh connnoa be held liable vicariousty with die add of ^ against Sahadram doeg not extend beyoiri wtt eRrafe^-r w^ifir'fei^ rfSresR ^srf^tirsn^r jtoat Ghasiaram died aftor 15 days of the |(»operly and he was discharged fifom the <ai record K> estabBsh that ihe aceused intention to cause his death. In order to i^hri Tripadu, we liave perosed die evidence in fact, Sahadram called her husband oia lofthe house, Gaieshram attacked liim on in tus evidence that the iajiuy sustained |c»rdiaary couse of nature to einise dealh, stdted iafen'ed that Galneshram attacked QhaMaram with inteatioa ntanner (Qia.^j^A^- in wMch &e accused - SdhaAam oa his| head, it can safety 1>e inferred ihat accuged by attacldng the deceased wtth latU on diat P.T.O. WfW^ XI-HC-78 3^T •^WW^, vSnS\W\<a, fslclf+fy . Cy.ft^D-^L^/ACC:o HI*<WI Sh+llch ^ 200 Sll^l 4^* (^clI^q^.ET) SII^T W..f^;lt^ (^TSn^Tshtllcb s^HTWBfN'sn^T +i-i)fi~i'ifl-f ^i^dTit'tec3'<.Ri<^i< ^STRffl'SIT^T head. he may likeiy te> cause deadji of Ghasianun. Therefore, offence under Section 304-11 is made out against accjused Ganeshram. ]n Ae result, appeal of a^cused appellants partly succeeds. Their conviction under Sectiori 302 read wil|h Seotton 34 ofI-P.C. and seatence inqwsed upon them me set aside. lastead theie|of, accused - Ganeshram is eonvicted under ." Section 304-11 of I.P.C. and he is senf:e(iced to undergo tea yeas' R.I. B is stated diat he is in detention since 16-6-19S|7 tiU date, Aerefore he shall beentitled for set offagainst the above sentence. | As far as accuSed Sahadram \s concemed, he is convicted imder Sectfon 323ofI.P.C. and sentencedto imderj one year's R.I. It is stated fhat he remained in detention fi-om 5-5-1997 tffl fhe H]i^i Court graided feaa to him on 5-7-2000, tttereby he has already served Aes^ntence. ffis bail bonds are dscharged. He need not sucrender.. Sd/T • L.C. Bhadoo Judge Sd/- DHIRENDRA MISHRA Judge