:C—78 ©' ^) ^ 3?|T^RT^T ^{cb ^f^T 3R^?r $t)^i<=b T^ ^l'lll<7!»^, ^Tfl^'Ko, (c|01^y W^T ^^....^.A-....^^.4^..............^ 200^ 3^P?T V^K ( 4^flfl<^) '^RTTW^rfiu 3?n^r APPELLANTST (Sn Jaii) -^ RESPONDENT: L.C. Bhadoo. J. This appeai is directed of sentence dated 29-6-2002 Mahasamund, in S.T. No.46^ Judge after holding the accus <=M<4(<n<11Ti ^w^ ^f^t <f^^i< ^ ^tRm 3?n^r 1. 2. 'rsus- Janak Ram Sao, aged about 36 years, son of Samaru Sao, farmer by occupatjon. Dayaram Sao, aged about 41 years, son of Samaru Ram Sao, farmer by occupation. Both resident of village Kudari Bahra, P.S. Basna, Tah. Basna, Distt. Mahasamund. of Chhattisgarh, Through: P. S. Basna, District Mahasamund (CriminaS Appeai Ufjider Section 374 (2) ofthe Cr.P.C.) DiyLsion Bench: • Hon'bSe Shri L.C. Bhadoo & Hon'ble Shri T.P. Sharma. JJ 26-2-2008:- Shri Pavan Keshapwanij Shri Akhil Mishra, Depufy Govt. Ora! Judgment dictated counsel for the appedants. L Advocate for the State/respondent. >n against the judgment of conviction and order passed by the 1 Additiona! Sesslons Judge, ^2001 whereby learned AdditionaJ Sessions id^appeilants guilty for commlssion of offence XI-HI S^ST ^WW^, ^-^W^, ^<?1>M^( ^ ^Wv\{ sh^lcb jlT^T ^T ^[cb ^[STT ^tl^l 5t»^i<=b .i- "WI, 200 3^?T XI5R? (4^^<<ST) ^^TTW^f^r^n^T under Section 302 read with murder of Gangaram Sao, s' imprisonment for life & to pay ^ to further undergo R.!. for 3 m<^ convicted for commission of of cni<4f<2i<flri ^i*i<?tt '^\fel3t <H»1<^1< '^^m^n^r lyection 34 ot the I.P.C. fut yysnmsttjng the ^ntenced each of the accused to undergo fine of Rs.500/'-, in default of payment offine nths. The accused^appe!lants have also been 'ence under Section 323 read with Section 34 ofthe I.P.C. for causjng simpl^ injuries to Virendra Kumarand sentenced to undergo R.l. for one year. Fi|rther, accused Dayaram has been convicted under Section 323 ofthe I.P.Q sentenced to undergo R.l. forj sentences shali run concurrenl The case of the prosec| nsght of 31st August, 20011 |. for causing simpte Injuries to Rajkumari and |one year. It was further djrected that aS! the iy. iition, in brief, is that at about 8-9 p.m. in the Gangaram (since deceased) came after consuming liquor and starte^ saying to Janak Ram as to why he is not cultivating the iand of Orissa. j He started rebuking him aiso, which enraged Janak Ram and Dayaram an^they attacked hjm with lathi. Virendra, son of the deceased, intervened and sustained simpie Snjuries. In also intervened. She was al^ she sustained simple Injuries.l under Ex.P/1, based on tha^ under Section 302 read withl he attacked, as a resuit ofwhich he [the meantime, wife of Gangaram, Rajkumari ^o attacked by Dayaram, as a result of which The matter was repor|:ed by VJrendra in the Police Station Basna merg No.45/2001 for commission of offence Section 34 of the S.P.C. was registered under Ex.P/2. The investigating otfscer teft for scene of occurrence, after giving notice Ex.P^14-A to the Pancjhas, prepared inquest Ex.P/14 on the body of XI-HC ^n^r^ f^'ijch TTSff ^n^T sh^i<=b 3^cT "'IMI^, ^Tf1-H<|(o, Ic«?'>l<1^< ^. ^ *<l*4dl thNlcb "^ 200 3n^?r'q^? (HC<^<<ST) ^<nw ^rf^r 3?n^r Gangaram. The clothes of body of Gangaram was sent f^|i Hospjtal, Basna under Ex.Ff^ postmortem and opined that organ i.e. brain. He prepare^ Assistant Surgeon for his opjr|i under Ex.P/3: Virendra was Ex.P/5-A. Dr. A.K.S. Ratre^ Ex.P/15. Rajkumari was a!s4 Ex.P/6-A and Dr. Ratre after 4 plan Ex.P/7 was prepared by custody g.ave memorandum E^ gave memorandum Ex.P/9 jn recovered at the instance of ^ accused Dayaram under Ex.P/1 After cor?ipletjon of the Court of Judicia! Magistrate, 1' case to the Sessions Judge, Sessions Judge received the c^ The prosecution in order persons examjned 9 witnesse< recorded under Section 313 of appearing against them in th fatefu! night Gangaram came cbl<<t<rt<11^ 'RfP^f ^f.fe^ <Pq<^i< i^ 3?ifipT 3?n^?r (^angaram were seized under Ex.P/15. The postmortem examination to the Government ?/4-A where Dr. N.K. Agrawa! conducted ;ause of death was due to Injuries to vitaS the report Ex.P/4. Lathis were sent to the ion under Ex.P/3-A and he gave his opinion Iso sent for examination of his injuries under xamined injuries and prepared injury report sent for examJnatiQn of her injuries under [xamination prepared the report Ex.P/6. Site |he I.P. Accused Janak Ram whi!e in police .P/8 in respect oflathi and accused Dayaram ^spect of lathi, in pursuance of that lathi was abcused Janak Ram under Ex.P/10 and from 11.. investigation. charge sheet was filed Sn the Class, Saraipati, who in turn committed the Ralpur from where learned 1st Additionai >se on transfef for tria!. to establish the charges against the accused .. Statements of the accused persons were the Cr.P.C. in which they denied the material e prosecution evjdence, stated that in the ^fter consuming excessive Siquor, he started XI-HC—7! 3TT^?r'SFT'f^lN "^CT 3TR?T 5b*llct» Teq- ^ii-4i<'i»4, ^THwKo, fsi^i^y ^Wvl{ tb^icb •^ 200 3H^?T X|^R (yiiyiqtT) '^TOT^rf^^I^T beating his wife Rajkumari, th^ result of whlch he fell down dr examined DW-1 Samaru and Q5' Learned Additional Ses^ the respective parties, convictt aforemention^d. ^ We have heard Ieame<M Learned counsel for tM death of Gangaram. Moreover 1st September 2001 he condutted He noticed (1) bruise injuries (ength and ^"-3/4" in width (2)| of 2"x1/2" to 4"x1/2". Lobule o| nght of forehead. (3) cru deep. (4) crushed injury on beneath the injury was fracture^ the brain cavity. Snjuries were bone&were fractured and membrane 5th, 6th & 7th ribs were fracture^ organ i.e. brain. Report is E) ocular evidence of PYV-1, V Rajkumari, wife of the deceas< cbl^id41'11 "W^ff '^,fel3t <P»I<$I< '^3ifiW3T1^[ 'efore, VJrendra attacked him wifh lathi, as a the platform and sustained injuries. They A/-2 Ganesh Ram jn their defence. ions Judge after hearing leamed counse! for d and sentenced the accused/appelJants as ounsel for the parties. appeliants has not disputed the homicida! Dr. N.K. Agrawal (RW-4) has stated that on postmortem on the body of Gangaram. )n chest and stomach in the size of 2"-6" in jnumber of bruise injuries on back in the sjze left ear was cut. There was jnjury on the >hed injury in the size of 214" x %" x bone |the left parieto occipital region and bone !. (5) one broken pieces ofskull pierced into snte mortem in nature. Parieta! and occipjtal of brain was also ruptured. Left side |. Death was cn account of injuries on vitai [Pf4. In view of the medical evidence and irendra, son of the deceased and PW-3 ^d, who have stated that they saw that the XI-HC—78 @> ~s^ '^ww^, ^•yli<s, (sf^i^y Nl<4dl sbHleb "^n. 200 3T[^T ^T'f^rf^F ^T^T ^TT^T 5b^I<^ 3ff^?r 'q^ra? (44f^<ysT) '^TTW ^rf^T 3:n^r accused persons attacked th< death of the deceased was horhicida! oftHe st>n R^m, As far as compiicity concemed, PW-1 Virendra, fateful night his father retumee condition. He aksed Janak cuJtivating Orissa land. He Dayaram inside the housj and Jan-ak Ram attacked his sustained injuries on head andj mother came to intervene, sustained simple injuries. Th| sustained injuries on finger corroborated by the evidenc^ stated that Janak Ram and| Gangaram. In cross-examjnat{on able to elicit any circumstance| Learned counsel for th^ both these witnesses are c! witnesses have not been exar^ined recorded police case diary sta^r It js settled law that qi^aljty quantity. As far as relative wi| <=hi^(<n<i1Ti ^H<A* ^fe^ ^I^R ^sfRm^n^i deceased with tathis, it is established that jn nature. accused persons in the crime In question js of the deceased, has stated that in the to their house at about 8-9 p.m. in drunken t, his younger brother, as to why he is not ttarted rebuking Janak Ram. At that time, >^. He came with lathi. ThereaSer Dayaram f^ther with !ath<s, as a result of which his father neck. He fell down on the platform. When^'^-^L jhe also attacked by Daya?"am. i^ accused persons hjm He ind eye. The evidence of this witness is of FW-3 Rajkumari, who has categorically Dayaram are the persons who attacked ofthese witnesses, defence has not jw'hich evidence of these w'rtnesses. accused/appellants argued that jn this case !|?se relative of the deceased, independent by the prosecution and 1.0. has also not ^ment of independent wltnesses. laljty of evidence is to be seen and not the nesses are concerned, their evidence cannot /^.^a: XI-HC—78 ^TT^T^T fqilcn ^f^T <3TT^T 9FRW [L,. 3^£T^||<4|0<q, ^>Tf1^<|<o, fsl^l'y^ ^{Wv[[ <b^|cb "^ 200 3llit3?T'CR^ (<lc<^<^) ^wiW <if^a ^TT^T persons ceme be rejected mereiy on the groi|nd has to be scrutinized with cade truthfujness and correctness o| deceased and the accused the accused persons name!y, the fatefuS njght Gangaram quarreiling with Rajkumari, duejto him, as a result of which he f^!| 1) in para-6 of cross-examjnatj^n to the poiice. Being father,it jncident: He did not inform aiso not that he inform< Virendra and Rajkumari have c^te attacked Gangaram and they h; came jn a drunken conditjon. Ganesh Ram no reiiance can b^ Virendra and RA/-3 Rajkumari none than real unde of Virfer of his father. Therefore, complj and cjinching evidence. infjrmity in the jydgment of the t| Learned counsel for prosecution evidence itself it drunken condjtion and \ rebuking him saying that as to cbl^id^il'1 'Rr1TT^f ^f.fe^ <F3it$i< ^ 3?ff?R ^n^r that they are relative, but their evldence i|e and circumspection in order to ascertaln their statement. Even though father of the namely, Samaru and other brother of (panesh Ram, in defence, have that in in drunken condition and he which Virendra him and pushed down and sustained injuries. Samaru (DW- atj<ln has that he did not disclose this fact ^as his duty to inform the police about the the| police. Similariy, Ganesh Ram (DW-2) has |d about the jnddent to the police. In fact c^tegorically stated that the accused persons ^ve not conceaSed the fact that the deceased ITherefore, cn the evidence of Samaru and pjaced. There no reason before PW-1 |to implicate the accused persons. who are rfendra, in a false case that too for the murder j^jty ofthe accused persons js establlshed by ]o that extent, we do not find any ISiegality or llal Court. jthe accused/appellants argued that In |has come that the deceased came in a quarrelljng with Janak Ram, He ^vhy he is not cultjvating the agricultural land XI-HC—T^1 '3^ ^WW^, ^W\<»,(s»<?il'y^< ^TT^T^T fqilch TT^T 3TR?T 5h+l|ch -.< L ^. ^: Nl*<dl **41ch ^ 200 3n^?T'CRF9R (4c(^<t^) '^nW^lf^T <3^?T of Orissa that enraged Janak I jnstance, attacked him, there4 platform, as a result ofwhich the accused/appellants i.P.C. On the. other hand, Sh jRam. Janak Ram and Dayaram, in the first ^fter deceased Gangaram fel! down on Tulsi Ijie sustainedinjuries. Hence, offence against |iot travei beyond Section 304 Part-II of the Mjshra supported the judgment of the trial arid agric|uitural tHe- Court. We have perused th^ deceased, has stated that in came in drunken condition why he is not cujtjvating was present jn the house. Bot|i material on record to show ths the bothers. IVIoreover, al! persons were residing in the deceased came in drunken and rebuking him saying as t<^ whereas, the land of Orissa fel| as per cross-examination of in the circumstances, in factj quarrel, in that quarrel, the a^; quarrel, in a heat of passi therefore, it cannot be inferreM persons attacked the deceasejd obl^ld^l'i 'HTO^f ^\fe^ <RJ|«C'< ^3TfilH3?n^[ evjdence. RA/-1 Virendra, son of the |he fateful night at about 8-9 p.m. his father started rebuking Janak Ram saying as to land of Orissa, at that time Dayaram ofthem attacked him with lathi. There is no |t there was any previous animosity between fbrothers, the deceased and the accused tame house and in rooms. As the c^ndrtjon, started quarreliing with Janak Ram why he is not cuJtivating the land of Orissa in his share 9nd he was cultivating the land, ?^/-1 Vlrendra and PW-3 Rajkumari. lliureru^ |Gangaram was the person responsible for a^cused persons attacked him, in a sudden ijsn, without pre-meditation or preparation, from the circumstances that the accused wjth intention to cause his death. But the w /d^ XI-HC-78® r ^^sy 3^" ^IHI^, ^Tf1y<l<o, fc|<y'>iyy *41*<dl *MI<*» ^ 200 3TT^?T?FT ^i<=h TCT ^^ 5t)+licb Barve 3^?T tRRR (lic<^<^) ^w^R «[^a^TI^T manner in which the accused too on vital part ofthebody i.< of which he sustained injuries| that the accused persons hadl attacking with lathis, they Hence, offence against the ac| 304 Part-II ofthe I.P.C. >ersons attacked the deeeased with lathis that ^. head and other part of the body, as a result on head, that proved fatal,it can be inferred [knowledge that the manner in which they are n'|ay likely to oause death of the deceased. ^used persons does not trave! beyond Section sentehced In the result, the appe^ Their convjction and sentencel j.P.C. are set aside, instead t| Part-1! of the S.P.C. and their conviction and sentence i.P.C. for causing simple injum sentence under Section 323 o1 causlng Injuries to judgment of the trial Court, it slnce $-9-2001 till today. Th| period the Sd/- L.C, Bhadoo Judge chl^fd^l'l "W^ff ^f.fe^ <Fai^i< ^r^ffipT^n^r ^ of the accused/appellants partly succeeds. lunder Sectjon 302 read with Section 34 of the »ereof, they are convicted under Sectjon 304 to undergo R.l. for 10 years. However, inder Section 323 read with Section 34 of the |s to Virendra are maintained. Conviction and the IPC imposed upor? accused Dayaram for ^ajkumari are also maintained. From the ^ppears that the accused persons are jn jai! i^v shall be entitled for set off of the above se|itence imposed upon them. Sd/- T.P. Sharma Judge