p-.=: THE HIGH COURT OF JUDICATURE AT BILASPUR, C.G. CRIMINALAPPEALNO. ^^ / /2004 (Crimmal Appeal Under section 374 (Z) of Criminal Procedure Code) ^N- TftlO 8:"^SBl< p •^-^••^-Sc^^^i L^W^ &j^^----;-7'""'. ^'r':.h,^--^ !;c '';,-'^)a^^-hvf^ ^.:.r^-' ...,; ^"vt"'' E..to8R-(n @AD^ RESPONDENT Radheshyam S/o Pedaram, aged about years, occupation agdculturer, R/o viUage Bhaismundi, police station Nafharpur, Distt. Kanker (C.G.) .-.I'. VERSUS State of Chhattisgarh thiozigh the police station Narhaipui, Distt. Kariker, (C.G.) CRIMINAL APPEAL UNDER^SECTION 374(2) OF CKIMINAL PROCEDURE CODE XI-HC-22 an^r^T R-ii4i3TI^T giiiwdf?? &a:t8a^S ^SI "i||A||<-)i|, (STflu'IS, (s|c||+|y 311^1 ^Den 11*<M] Shlltt) ' fsre% D.B. Hon'ble Sliri Itefi.Btoado®ikad Ho&'ble Shri D.R. peihmnkh. jj sitiall pat-ties 04.10.2005 Shri Wshnu Ifeshta, Cpi Shri U.N.S.Deo, Govt.'Advfx Shri Akhil Mishra, P.L. for the Sl|i Leamed counsel for the hearing on bail '^iplication (K|. may be heard finally as this is With the consent of the The accused Radheshyam| conviction and jud^nent dated Pirst Additional Sessions Judg|e 405/2003 whereby the tearned| holding the accused-appellant under Section 302 I.P.C. sentenot life and to pay a fine of Rs. further undergo one year rigorou The case of the prosecutioji P.W.l alongwith his -wife Aaso plucking the mango. Howe^rer, wife Aaso Bai stayed back. Wh< the son of the deceased went to| his mother was lying near the ir|e immediately returned to the qiFlf^flT WlrA'ff teA; ^STf^ITSTI^T J. Cpunjsel for the appellant. •'Advticate/Addl. Public Fl-osecutor with (ate. t>arties submitted that instead of .Cr.P.No.2998/2004), the appeal matter. i, the appeal is heard finally. |has questioned thc legality of the l7fil February 2004 passed by the je, Kanker in sessions trial No. Additional Sessions Judge after for the commission of offerase id him to under imprisonment for '-and in default of payment to p imprisonment. is that on 16.04.2003 Shyamlal B^i (dcceased) went to the field for |Shyamlal retumed hoine but his jn she did not retum till evening, lcall his mother and he saw that tree in a pool of blood. He and informed his father i.e. gi^ilty 100()/ ey ir|ango hotise ('fli.^M) II XI-HC-22 31T^TW (N^aii^r ^'ffiH^tT as-ssa hi S^rsiTqRTO, ^\W6, f^TRiy 311^^1 M^ch ,n^g^..Q^:.%;.....^ ^ fd<)< 3"^r?^nwgf^r i- WI^Pfrr WRff fffel^ rf3RSTC ^sirf^rsn^r Shyamlal and thereafter one A^ijore and Sahadev P.W.5 went to the scene of occurrence. But A^so Bai was not talking, they lifted Aaso Bai and broug^it to some ^istance but ahe died on the way. The matter was reported) by Shyainlal to the Police Station Narharpur under Ex.P.1. On|seceiving this report, Investigating Officer after giving notice to th^ Panchas, prepared Panchnama of the dead body of Aaso Bai vi<<e Ex.P.3. The post-mortem of the dead body of the Aa?o Bai wa^ conducted ty D.K.Ramtefee P.W.9 along with Smt. Manjii Rathor^ and after investigation, the charge sheet was ffled in the Court: of C.J.M., Kanker who in turn committed the case to the Sesfsions Judge, Jagdalpur from where the leamed first Additional S^ssions Judge, Kanker received the case on transfer for trial. The prosecution in ord^r to prove the offence against the appellant-Radheshyam and h^s wife Santa Bai essamined as many as 10 witnesses. 'The leamjed first Additional Sessions Judge recorded the statement of th^ accused under Section 313 of the Code of Criminal Procedure ji|i which they pleaded innocence and 'denied the prosecution eviderjce and stated Chat they are innocent and have been implicated |ialsely. After hearing the Public Prosecutor and the counsell Sessions Judge convicted) Radheshyam in the aforesai^ manner. However, the co-accused namely Santa Bai was acquit^ed of the charge. -3- 1 (^^^) for the accused-appellant, leamed and sentenced the appellant- XI-HC-22 ssTrqraTcpr, s^toli?, RfdKHy sn^r^r f^iraisn^T giii'ffidfscT ,,,,-:«s9'jB»EtiS^ :••:*;;lS>?^_ {.it-tf^ 3TT^?1 ilflcb HWWI Slllchte-.^-A:^h^ 200 Rre.s""""""" leambd We have heard the Shri U.N.S.Deo, counsel for the !p Leamed oounsel for the a<t about the nature of death cS Aa^ involvement of the accused.iali murder of Aaso Bai is ooncernedi judioial confession made ty th^ Bhagbati, P.W.3 Lachhantin and| evidence of these three witnessed, accused appellant under Secti< murder of Aaso Bai. As far regarding extrajudicial confessu before them is concemed, their the cross-examination both tl accused made extra judicial police. P.W.3 Lachhantin in has stated that the accused a| deceased Aaao Bai was plucking stopped her from plucldng man| mango b^ket on which he ass< stick 3-4 times. In the cross-< has not been aUe to elicit any this witness unreliable or unt counsel for the accused tried judicial confession was made by qirafrpfl^T inwifff telfl'(IWSK ^sri^irsn^r counsel for the appellant and 5tate. xnised-appellant has not disputed io Bai as homicidal. As far as the ppellant for commission of the the whole case rests on the extra accused-appdlant before P.W.2 P.W.4 Ramlal Uike. Believing the the trial Court has convicted the |>n 302 I.P.C. for commission of hs the ewidence of P.W.2 and 4 ^n made by the accused-appellant levidence is not adnaissible as in kese witnesses stated that the cc|nfession in the presence of the pa^agraph-2 of examination-in-chief ijppellant disclosed her that the |mangoes and when the appellant ioes she attackcd him with the lulted Aaso Bai with the mango ^xamination, the defence counsel Ffect which makes the evidence of fcjrustworthy. Even though the :t> elicit from her that the extra ^ie accused in the presence af the -V, ^ (ifl^^fe^) ll f_ XI-HC-22 sn^r^i f^iwan^r CT'ffiHf?(f .. .^.>ss:>;agtS8B 3^-qraRPT, gsftwis, toray 11*1MI StlKIW 341<^<?1 lf^^', ^.rY...A..^....^ 200^ R'b^ """""""""" w^w gwiwflfer IA- q,iiifc)in^ wRff ffte^t <Ri<-'ii< ^sri^TTsn^r police under duress of the pol(ce but this witness categorically denied that fact, therefore, th^re is no material before us to disbelieve the evidence of P.W.3 (^achhantin who is an indcpendent witness. Therefore, the fact of the involvement of the acoused in assaulting the deceased with 'tlie The counsel for the accjused-appellant arpied that the deceased was sister-in-law of the quarrel started and the accused mango stick stands proved. accuscd and on a petty matter,a assaulted with mango stick upon being attacked by the deceased| with the basket of mango, and therefore, there was no intentio^i <rf the accused to murder his sister-in-law and in a heat of p^ssion the acoused assaulted the deceased with the mango stick, a^ a result of which, she died. The argument advanced \,sy the leamed counsel for the appellant is not without force. | Nothing has been brought in evidence -whicb shows that the a^cused-appellant was having any animosity against the deceased ^nd it is admitted fact that the deceased was sister-in-law of j;he accused-appellant and the quarrel started on a small matjter and the accused assaulted deceased with the mango stick, tl|ierefore, it can be safely inferred that while assaulting the dece^sed, the accused was having knowledge that by causing such|injury or bodily injuiy he may likely to the cause the deathof t^e deceased but there is nothing on record by which an inference ^an bc drawn that the appellant assaulted her with an intention to bommit murder of Aaso Bai. ^—-_. I -$'- (<ft^y^) I XI-HC-22 3^ -flMM^, vti-^WW, i°l(-)l<riy 3Ti^TTq;T f^iR;3n^r giiiwgfgtT W»f;wfflssf ^ imfiTSiw^) 3TI?9TiraW ^.^..^.-.2.^ Id't'^ '^C\YV\ For this reason, the offen(ja not travel beyond Sectiori 304 relation betwecn the deceased which the offence was committeiB that if the acoused is s^nl imprisonment, ends ofjustice In the result, the appeal i^ the accused under Section 301 acxjuitted of charge under Sec convicted for commission of ofR the I.P.C. and sentenced to undet years. The accused shaB be eiji sentence which he has already uj| Sdi- L.C.Bhadoo Judge gfpifepftr WRff ff i'3tit'(Rrezrc ^srf^nan^T committed by the accused does F|art-n of the I.P.C. Looking to the a^id the aocused and the manner in I, we are of the considcred opinion snced for five years rigcrous w<tuld be met. partly allowed. The conviction of I.P.C. is set aside and he is ttion 302 I.P.C. Instead he is tnce under Section 304 Part-II of ^o rigorous imprisomnent for five |ititled to set oS for the period of (idergone. Sd-/ Judge <:•- s ^ 'sf^0 (•^^N) ^y<^ ?£7. '^? i6:' '^: