;0', '-^-x'::. "^ -y •^.i,'':1^ ^-.^- ^t^r MP' wi.^^ll^-^ ^^..Uwk ^.-.*. .^D.e^ -^.L=^Li- ^itl^^^liiiiji!^^ '">:^ ^'•^ ^^~''. ^.' •.^B"*'on,Bencfr^ f)^ . IgT, 3H8 ^HIGH- :pOU&T @? ...3BgJ3H%;^Rfi^SH-^A31$:J^B- PEJR;' •: Griminal1 '..^>pe;al-.. ^; ^a^ '©f ^' 1@^5-».;.: APEELI^NT.S (IS >TSIL ) •Harisai ;,5/^Jl'Saotoi^ta-:>Gasfcfe:^ f ~" " -., • 1-1 .^ . - -^ed< ..ab.Q^fc;-30- •years^' '/••. .•;..'. ^^'s'.''', ©ccapatia:ii»-Xgrica3:tp€e^. '' .^. y, 7-:, '.e^ B/^iVlllage'-Ag'asllP.S <-iaaorp.lr, ^" Qistt.SargUJa ( NES)'-"; .'^. TEIRSUS'' ' ..: ; . '•• 7. .•''- -1,:. - .-.'.' RESE:>©HBB33T s 1- %le State.of Hadhya Praaesh<.i. , thrcnagh. ,P«S^S^r^ , ©istfc^Sargu'J a..( ^'^'::'11-'..-•'•111\'-:'^ CMMN.M*- APPE^.UroBR'SBGTION 374,-.(2.) QE Tf®;,GODB'^ •• ©£•QM'MEBM*. PSSXSE3SJSS flQ13 S ;: .',: '. '; . '1, . :..:; •': \ ... ^ A^ XI-HC-22 , ^^r ^fTqT^PT, ^Tit^^Ko, f®i<ni<y<i< Hl^^li ^Nicb 3ff^r "q^? ^:ft5^^ •1^r^' 3TI^T^T f<^i<=h 'sn^r 5h^i<=t) <iRa Y . ' '^- -+- DJvision Bench: - Hon'bleMr. L.C. Bhadoo and Hon'ble Mr. Dhirendra Mishra. JJ. appellant. |ic Prosecutor with Mr. Sachin Singh 7-2-2006 Mr. A.K. Prasad, counsel for tiie Mr. U.N.S. Deo, AdditionaJ Pub|i Rajput, Deputy Govt. Advocate for the ^tate/respondent. Oral judgment dictated on Dais. Per L.C. Bhadoo. J: - By this appeal under Section 37|4 (2) of the Cr.P.C. the appellant has questioned Jegality and correctness of Gbl^(<n<i1*1 "HTR^ff ^ h^\ ^fa^K '^'37f^W3?n^T |the Judgment of conviction and order of sentence dated 21-6-1995 passed (>y ttie 1 Additional, Sessions Judge, Ambikapur, in Sessions Trial No.3p6/93, whereby tearned Additional Sessions Judge after holding the accu^ed/appetlant guilty for commjssjon of offence underSection 302 read with S^ction 34 ofttie I.P.C., sentenced him to undergo imprisonment for life and |pay a fine of Rs.500/-, in default of payment of fine to further undergo R.l. ^or two monttis. Case of the prosecution is that <|>n 8-9-1992 Sukhmania, her husband Sirna and her daughter Bilaso went t< retumed from there at about 6 p.m. deceased) was at her residence an' accused Sukus has beaten her. At aftout 6 p.m._^ccused/appellant Nansai ^ft^e^f 3 the House of Vishwanath and they At that time Dhaneshwari Bai (since j she disclosed to Sukhmania that Trom Sukhmania, which she ^q/^S^I refused. On this Nansai insisted for p^oviding ^tfte upon which Sukhmania came there and started' demandingl refused. On this Nansai insisted for p^oviding went near her mother-in-iaw Dhane^hwari Bai. Nansai enquired from [Tfr^ ^p^^ XI-HC-22 ^^ '^qr^^, '^fraTTS, fa<ni^y HI^C^I $hNI<=b 3T^T xra^? ...&.....A.a.^'^ .s^ 20ft- 'fN^T" STI^T^T 'f^N'^n^T ^H\^ ^f^a + chl<4i<rl'^T1 ^l^<yiT '^'ft1cst <p3l^l< ^ ^Tf^FT ^TT^T Dhaneshwari Bai as to who has assau|ted her. She replted that Sukus has assaulted her. On this Nansai ass^ ulted Dhaneshwari Bai and started pressing her chest. In the mean tjr{ie, Sukus also came and both the brothers (accused Sukus & app^Jlant Nansai) started assaulting Dhaneshwari Bai. Nansai assaulted wilh stick on head and hands as a result of which Dhaneshwari Bai reGeived inju|ries. ReportofthematterEx.P-1 was lodged by Sirna at Police Station: Dhajurpur. Initially offence undep Section 307 read with Section 34 ofthe I.P.C. twas registered and later on, on 10-9- 1992, Dhaneshwari Bai succumbed tc{ the injuries sustained by her. The investigating officer converted the offen|ce into Section 302 read with Section 34 of the I.P.C.and started investig^tion. Post-mortem on the body of Dhaneshwari Bai was conducted by D(|. S.K. Sinha (PW-8) and he prepared the po^t-mortem report Ex.P-10 in whic|i he opinedthat the cause of death is comma due to head injury. After completion of investigation of Judicial Magistrate, First Class, Ar|ibikapur, who in turn commttted the case to the Sessions Judge, Ambikap| Sessions Judge received the case on trjansfer for frial. The prosecution in order to estaj On the other hand, statement of tt»ea\ Section 313 of the Cr.P.C. in which However, co-accused Sukus died durinl Learned Additional Sessions M Additional Public Prosecutor and cou| sentenced the accused as mentioned ir| |, charge sheet was fited in the Court LIF, from where tearned 1st Additional l>lish charge examined ten witnesses. xused/appellant was recorded under le denied the prosecution evidence. g trial. , idge after hearing the argumente of nsel for the accused, convicted and para 1 ofthis judgment. [Tt%^f^ XI-HC-22 ^iT^r ^rr W\^ ^n^r ^^icb <if^a ^^ ^{\^W^, ^xil^^Ko, fa^11<4^< ^T^T 'q^^? ^I^Crff$h^|ch,,....&.:..ft^^^ l^y' -SIT^T'^m^n: ^Tf^T We have heard learned courl ^NfQI^I'l '^TPT^f ^ 'feT^t <Fs1^|< ^3^P73^T isel for the parties. The homicidal death of Dharteshwari Bai is not in dispute. Learned counsel for the ap|(>ellant. at the outeet, submitted that there was no intention of theaccused/apbellant to cause tiie death of Dhaneshwari Bai. He argued that theaccysed/^ppellant assautted Dhaneshwari Bai with stick and co-accused Sukus also ^ssaulted her. Dhaneshwari Bai died after two days of the inddent. Therefo|'e, offence against the acc?used/appetlant does hottravel beyond Section 30-^ Part-11 ofthe I.P.C. On the other hand, leaijned counsel appearing for the State/ respondent supported thejudgmerttofthetrial Court. Involvement of ttieaccus^d/appetlant in the crime in question <s established in wew of the evidenc^ of Sukhmania (PW-5) whowitnessed Uie / • "•• . ' - '. ' . I. . : • • .• . ' ' - ' . - crime and her evidence is corrob<{irated by the medical evjdence bf Or. S.K. Sinha (R/V-8). As far asthe argujment advanced by learned counsel for the appellant is concerned, from the record that in the first instance, $ukys assaulted the deceased, thereafter, the accused/appellant came and evidence of Sukhmania it has come on he asked for Hquor from Sukhmania, when she refused and went nearby Dhaheshwari Bai, tiie accused/appeflant picked up a stick and assaulted Dhanesjhwari Bai on head & hand. It is admitted position that the deceased died afjter two days of the jncident In view of the above fact^, there is no evidehce that the accused/ appellant assaulted Dhaneshwat'i Bai with jntention to cause her death. Rather in thespur of moment, w(i| the accused picked up a stick an|i ^n Sukhmania refusedto provide him ^u^uo d assaulted deceased Dhaneshwari Bai on • [Tft^ ^Rsi^ ^\^f XI-HC-22 @>. '^ET';:^PTI^PT, ^Til^^Ko, fa<ni^y 3TT^?T tpT^ _:..Cs3....A..-..£!;^'^/2^. ^....'^•.<-..-..............i;........,y.^ ^^_ ^W^{ 5b*«cb fN^T' 37T^T^T R-lJch 3Tli?T 5ti^ich ^Ra Soma -+- -^ ^ ^^r'^TT^R'^rr cni^fd^i 'RPR^ff ^ f^^i <P»i<^i< ^7 ^rf^TH-317^1 head & hand, as a result of whw^ the deceased died after two days. Therefore, in our opinion, offence afeainst the accused/appetlant does not travel beyoncf SectJon304Part-lt ofth|e I.P.C. In tiie result, the appeal par|tly succeects and the same is partly allowed. Conviction and sentence a Section 302 read with Section 34 acquitted of that charge, instead therJBof, he is convicted under Section 304 Part-11 of the I.P.C. and sentenced accused/appellant is stated to be un disputed by learned counseiappearir the accused has already undergone t|ie sentence imposed upon him. He be setat liberiyforthwith, ifnot required i Parties are entitled for certified|copy of this order. Sd/- L.C. Bhadoo Judge /arded to tfie accused/appellant under rf the I.P.C. are set-aside and he is to undergo R.l. for ten years. The der detention since 1992 which is not ig for the State/respondent. Therefore, i any other case. Sd/- Dhirendra Mishra Judge [Tft^ ^Rsi^