3^T •*IWW^, 'S-^\W\<S, ^fftmy, tllNdl sbN!*' c^.^. (<jo. 9'/^00^- 3II^?T W3K C^S^^SI) sii^r.'^i ft-fii* ^!>IT3IR^I stillck wiiw ^ifsff w^?[ APPELLANT RESPONDENT ^lemala Aayatu, S/o Mukka, Caste ^uriya, Aged about 48 years, Resident ^>f Potam Para, Gongalur, Police Stata'on pangaloor, Distrtet Dantewada (CG). -Vbreus- ptate of Chhattisgarh Present: - Smt. Usha Chandrakait Shri U.N.S. Deo, Addl.i DB: HON'BLESHRI L.C. HON'BLE SHRI DHIR ORAL.) L.C. Bhadoo. J chi^!(y)4ir1 ^T^<"lf "^ f^^ '{f^i^R ^afRman^T Appeal under Section 374^2) of the Code of Criminal Procedure. 1973 t counsel for the appellant. IPublicProsecutor for the State. 9HADOO& ENDRAMISHRA,JJ. UDGMENT (Delwered oiji 13"' April, 2007) This appeal is directed again^t the judgment of conviction and order of sentence dated 13-10-2001 passe<? by Fourth Additional Sessions Judge, Jagdalpur, in Sessions Trial No| Sessions Judge after holding the a<j offence under Sections 302 and 3?3 of the Indian Penal Code, sentenced him to undergo imprisonment for lif^ 281^000 whereby leamed Additional cused/appellant guilty for commission of & to pay a fine of Rs.300/-, in default of payment offine to further undergo Ip.l. for three monftis and to undergo R.l. for four months, respecUvely. GRPRJ— FS/24 - 50.000. 'S^f -^ww^, ®Tf|y'i<s,fsfc/iiyy (5 an^l.^T R'li'b tf8ns)i^[ •SKW an^r TR^ (ijcj[^si<ff: TOirwgfeisn^i 2) The case of the prosecutioti, in brief, is that in the night of 8-5-2000 in between 11.00 to 12.00 p.m., de^seased Budru and accused Aayatu sterted quarrelling in connection with liqijor. On hearing commotion, Lakmu (PW-1) came on the scene and tried to iihtervene. The accused attacked him with a knife. In the meantime, he attacll place of occurrence. Deceased) the crime, InvestigaUng Officer inquest (Ex.P/1) on the body of] postmortem examination under where Dr. R.L. Gangesh (PW-5 hemorrhage due to hypovolumic examinadon, he prepared injuryl prepared the site plan (Ex.P/10j ^[^[<yrqh ~^^t^'^^ Tf^-i^R ^aifgiian^i ed Budru with a knife & club and left the Budru died on account of the injuries sustained by him. The matter w^is reported in the Pollce Station Gangaloor by Lakmu (PW-1) vkle First tnfortnafen Report E.X.P12. After registration of |eft for scene of oceurrence. He prepared Budru. The body of Budru was sent for px.P/3 to Primary Health Centre, Bijapur, conducted the postmorfem and prepared the report (Ex.P/4) in Which he cfpined that the cause of death was intemal shock. The death was homicidal in nature. The injuries of Latonu were al^o examined by Dr. R.L. Gangesh. After report (Ex.P/5). The Investigating Officer . During investigaUon, white in the police custody, the accused gave memprandum (Ex.P/12), in pursuance <rf that at his instance knife was seized under Ex.P/13. 3) After completion of the ir Court of Chief Judicial Magistra case to the Court of Sessiore Additional Sessions Judge, Jagdi 4) tn order to establish the prosecution examined 8 witness^s ir(vestigation, charge sheet was filed in the (e, Dantewada, who in tum committed the 1^ Judge, Jagdalpur, from where leamed l^ilpur, received the same on transfer for trial. charge against the accused/appellant, the >. Statement of the accused was recorded GRPRJ— FS/24& ,- 50,000. STCT.^mn^RT, tSrftWfS, Rj<>i,|y^< 'WTW 'sh^ieih 311^1.WfniT gqiSIT^T WqN? an^yr 'vsv; (• ^wwtif^r sn^i wifwft:T iWRff ti feet ^SRZR: '^sfRiiisn^i under Section 313 of the Code of Oriminal Procedure in which he denied the material appearing against him in tt^e prosecution evidence. 5) Leamed Additional Sessio(is Judge after hearing counsel for the respecUve parfes, convicted an|d sentenced the accused/appellant as aforementjoned. 6) We have heard leamed coi|insel Tor both the parties and perused the material available on record. 7) Leamed counset appearing|for the accused/appellant has not disputed homicidal death of Budru. Morec|ver, Bogal Lakmu (PW-1), Bogam Aayutu (RW-2) and Hemala Lachhi (P|W-4) have categoricalty stated that the accused attacked the deceased tvith a knife, as a result of which he died spontaneously. The above evide^ice is corroborated by the evidence of Dr. R.L. Gangesh (PW-5), who conc^cted the postmortem on ttie body of the deceased. He has stated that tti4re were one incised wound and three stab wounds on the chest of the dece^ised. The cause of death was hemorrhage and shock. He also stated that irjjuries were sufficient in the ordinary course of nature to cause death. Oeath was homicidal in nature. In view of the above, it is established that the d^ath of Budru was homicidal in nature. 8) As far as involvement of] the accused in the crime in question is concemed, Smt. Chandrakar, le|arned counsel appearing for the accused/ appellant, argued thatthe incider|ttook place in between 11.00 to 12.00 p.m. i.e. dark night, therefore, there w^is no occasion for the witnesses to witness the crime in question. Her furthejr argument is that in fact when accused and deceased started quarrelling in |connection with liquor, in that process the deceased sustained injuries, th|erefore, the offence against Uie accused/ GRPRJ— FS/246^2flfin3—50.0iii). a' •- :yi i -i 'Sl. !; ^l TvSf ^fmv^{, ti'rft'M'Ko, fsicsiyy 4 'y^] '^T T^T^ gn^?r IISR; ('yf-^'sw) ^aRR^ftgsn^i ^Rfepih iinaf ^ls^ ti^?^ ^ appellant does not travel Code. harid 9) On the other supported the case ofthe 10) In order to apprecia|te the parties, we have peru^ed that in the Monday night) brother and accused Aayat residenceofAayutu. The adjoining. Whenheheard) and saw that Aayutu wa^ chest. When he tried to in< of which he sustained in] ground. Thereafter he infor^ned 11) Bogam Aayutu (PW stated fliat deceased Bi brother-in-law. Accused assaulted the deceased that accused attacked the accused with club. 12) Hemala Lachhi (P<4/-4) deceased, has stated that at her residence and they attacked Budru with a knffe beyond Section 304 Part II of the Indlan Penal I, Shri Deo, teamed Addl. Pubtic Prosecutor, rosecuUon. the arguments advanced by tearned counsel for |ed the evidence. Bogal Lakmu (PW-1) has stated he was at his residence. Deceased Budru, his tu, his brother-in-law, were consuming llquor atthe tiouse of Budru, his house and Aayatu's house are |the cries of Budru he went to the house of Aayatu attacking Budru with knife on his stomach and srvene, the accused attacked him also, as a result luries. In the meanUme, Budru fell down on the e villagers and lodged the report (Ex.P/2). 1-2) has also corroborated the above evidence and Wru was his brother and the accused is his t^s murdered his brother with knife and club. He oh his chest. tn cross-examination, he has stated Ideceased with knife. Deceased also attacked the ), the wife of the accused and sister of fte |he deceased and accused wer®consuming liquor ^tarted quarrelling. During that process, accused on his chest. She saw the accused attacking her ' ^ 3^sr ^i<li^, (Sixfly'itS, Ri^iyy HWvil sbNI<*> an^yr 'vsv (^-f^^st' 311^1.qn R-ii<<i 'OTisn^i -st^w^ WiTWHtersnt^T brother Budru with a knife. Accuse^l also threatened her that since you have witnessed the crime, he will murderpier also. On this, she ran away. 13) In view of the above eviflence of these three witnesses, it is established ttiat ttie accused attac that there was night at the time of of the accused and sister of the d^ceased, has categorically stated that at her residence boUi accused and d houses of the accused as well ptace. Accused and deceased w4 '^NCT'N lfTq?if'if ftIA' ^ 3?f?ri:i sn^i ;ed the deceased with a knife. It is true ncident, but Hemata Lachhi (RA/-4), wHe ceased were consuming Ifciuor and they started quarrelling. Accused atta^ked the deceased with a knife. Other witnesses namely, Bogal Lakmu (P|W-1), Bogam Aayutu (PW-2), who are the brothers of the deceased, have ^tated that they reside adjoining to the as deceased. Therefore, the accused, deceased and the w'rtnesses are cl^se relaCves. They were residing at same •e consuming lk|uor in the house of the accused. Therefore, there is no qu^stion that these persons were not able to witness the crime when the accus^d attacked the deceased. Moreover, the knife in question wrth which the a^scused attacked the deceased has been recovered at the instance of theiaccused. After examinaUon Doctor has stated that the injuries sustained] question, therefore, the argument by Budru can be caused by knife in advanced by leamed counsel appearing forthe accused/appellant is devoid|of merit. 14) As far as the question of s<idden fight is concemed, Hemata Lachhi (PW-4), the wife of the accused ai|id sister of the deceased, has stated that both of them started quarrelling. Ttiere is nothing on record that the accused in any manner sustained any injui|y. On the contrary, the accused attacked GRPRJ—FS/24 50,000. l' ll' 3=5^ ^ii\\ffi^ •Qxi\y\6, ^v^W^ ^Wvi\ *N(cb 31I^?T TRR; (1jqf^5|^8I sn^i.sRi 1?m?; mi aii^i gnw TOITW ^f?3 SII^I •*i<<(<-i<il-t tniRif'?'fsi;t <.F<IWK ^sfRm 3ii^i Gowri the deceased with a knife. He ca one incised wound on the tempor^ cabsed three slab injuries on the chest and region. 15) In order to take the beneflt Penal Code, it must be establish^d manner. Apart from other points, four injuries on the vital organs ofjthe eslablished that the accused attat and unusual manner, therefore, ttf( exception 4 to Section 300 of the |sf exception 4 to SecUon 300 of the Indian that the accused has not acted in cmet l|ooking to the nature <rf the injuries, that too body, the deceased was armless, it is ;ked the deceased mercilessly, in a cmel te accused is not entitled for the benefrt of Ihdian Penal Code. 16) For the foregoing reasons,[ the judgment of the trial Court under SecBons 302 and 323 ofth4 [we do not find any illegalityor infirmHy in cortvicting the accused for commitBng offence tndian Penal Code. 17) In Uie result, the appeal| dismissed and it is hereby dismissied Sd/- L.C.BHADOO Judge being devoid of merit deserves to be GRPRJ— FS/246—2;200' 50.000. (;<;