^' '"^ ^^ ^^ ^:y ^t,* IN THB HICaiCOURT__0]|_ >.,.nA ( r'nW-al) OwaQ" Kencst v " .JUBICATURB AT J^B^IPUR MP )0, CRIMJNAL APPEAX- N0. ~1_11L. /1999 AE>'PSLLAN?s_- (m JAIL). BEER SINGH ALIAS PQ&'Tf ^. m of sona<3har^ aged about 32 yearsi resident of Gadiya Para Masgaon BaXavand^ PSo Nagaxnar^ Versus RBSPOI^SNTs- State Of M»P»/' 6 CRIMINA.L. AFPEA^JJIDER_SECTION 374(2).OP ISiS CR.P-C. XI-HC-78 ^ l-fTq^TTSh^llcb 3^T^||<L||cr|^, ^^Ko, fa^ll^y ,..^.?.:...50..^^oo n 3:n^T^lRTlich cT^T3:n^?T$b^i<=b u^- L 3<1^1 Msl* (1:!^3^r) ^cn'W^T^rTT^T DIVI8ION BBNCH -: HON*BLE MR. L.C. BHADOO,|Ag. C.J. HON'BLB MR. 8UNIL KUMA^l 8INHA, J. chl^?d41^ HTR^ff ^ tet^'<Rl<^l< ^arri^Tsn^T 04.01.2007 Shri Akhil Mishiu, Pane Snit Hainida Siddique, <[*ouiisel for fhe appellant Lawyer for the State. Heard 011 I.A.No.2588/|2000 for condonatiou of delay ifi filing the appeal. As per the office report, |there is delay of8 days iii fltmg the appeal, | For fhe reasons mention^d in the mterim application, it is aUowed. Delay is condoned, The appeal is admitted Leamed counsel for fh fhis is a sinaU niatter and the br consideration, acciised/appeUaiit submits fhat |appellaiit is in deteiition siace last morc tihLaii 8 yeare, therefor4 the appeal may itself be heard fiuejty, to which, leamed coun^ The recoid of appeal i^ appeal is heaxd finally wifli the ] Per L.C. Bhadoo. A£.C.J. This appeal is directed [el for flie State has 110 objection. already available; therefore, the |consent of fhe parties. gainst the judgment of conviction and order of sentence dated p8.8.1999, passed by fhe Second Additioaal Sessions Judge, J^gdalpur, Bastar iii Sessioiis Trial No,45/1999, whereby, leanied pecond Additioiial Sessions Judge, P.T.O. XI-HC-78 3:n^T^rf^TW cT^TT 3TT^T $F)TTF^ •-4 ^Su^- *11*l^tl Sb*TT<?i ^oET ^qNKnq, ^Tfl^^Ko, (^dl^y ^•A-^^01-?J^1 2i200 3ll^l ^ra^FT (y<i^<s<<^T) ^FcTTW ^rf?cT 3TT^T ^ offence uiider Section 302 chN?<n41»i ^H<nT^te1c^'<Ri<^i< ^3rri^TT3^T after holding fhe acciised/aplpeUant guUty for coiii2B.ission ofthe }pf IPC, sentenced him to undergo rigorous iaiprisoiiiiient for lil^ and to pay a fine of Rs.500/-, ta default ofpaynient offine to flirther undergo R.I. for 1 ye.ar. The case of the pr^ Gangadhar, broflier of fhe Bakawaiid to the effect fhat has coniDiltted fhe murder <J axe. He aloiig wifh Kot^ar secTition, ia brief, is fhat PW-1 accused/appellaiit and son of fhe deceased gave a nierg intinia^ioii (Ex.-P/2) iii the Police Chowki - liis elder brofher naiaely Beer Suigh >f his niofher -Soniari Bai with an - Lachhu, Patel Baldeo aiid Bhagat were present at fhe tmie of ^oGiisiission of the crime. This merg iiitlination was sent to fhe Popice Station - Naganiar, where based on fhis merg mtimatioii, Fir^t Information Report (Ex.-P/l) was registered. The Investigatin^ after iiotice to the PanchasJ body of the deceased. Whil^ OfiEicer left for sceiie of occurrence prepared hiquest (Ex.-P/3) on the in the Police czistody, the accused gave nienioranduni (Ex.-P/4)| regaiduig flie place where he kept axe, weapon ofoffence, befor^ the Investigatiou Officer, who took iiito possession the same, I^i pzirsuance of that/axe was taken into possessioa under Ex.-P/p. Plain soU and blocxl stedn soilwas taken into possession under ]px.-P/6, The body ofSomad Baiwas sent for postm.ortem. exaai^aatioii to fhe Maharani Hospital, Jagdalpur, wherc Dr. K.M. [Gupta coaducted the postmortem, prepared postmorteisi report fhe cause of death was com^ (Ex.~P/9), in which, he opined fhat due to shock, as result of mjuiy to P.T.O. XI-HC-78 3TT^T ^FiT ^Jcb cTSTT W^T ^TT^ <- 'y *1|t(^l Sfr*<T^» 3^ ^TRTT^FT, ^rft^TT^, fsKrll^y .A.A.-:.30.Z?/^ {^t 200 311^1 451th (^cii^q^) ^<ITW^f?cT^TI^T hiloi fhe cervical vertebra and spin€|l sent to fhe Forcnsic Scienc^ report (Ex.-P/18) was received| Afit:er usual uivestigatio4 the accused iii fhe Court of who iti tum coniinitted the froni wliere, leanied Second the case on transfer for trial. The prosecutioii ia orde^ acciised exaoiined 8 witnesse^ rccorded uuder Section 313 niaterial appearing against stated tliat he is mncx'en.t and| Learaed Additional Ses^ counsel aad perusal of the accused as aforenientioiied, We have heaid leamed the record. Leamed couiisel for fhe tfae honiicidal death of the ociilar evidenee of PW-1 Gat Lachhu, as also niedical evid{ coaducted fhe postm.orteni o| established that fhe deafh nature, chi^f<n41'i ^rmoff ff tec^t<(^<^K ^3Tl^RT3TI^T cord, The recovered articles were ^ Laboratory, Raipur, froni where 1, the charge sheet was filed against C|hief Judicial Magistrate, Jagdalpur, ca^e to fhe Session Jzidge, Jagdalpur, ^dditional Sessions Judge received to establish the charge against the t. The statemeut of flie accused was <)f Cr.RC., m which, he deiiied the ia. fhe prosecution evidence aiid |has been isiiplicated ui a false case. |ions Judge after hearing respective rlecord coiivicted aiid senteuced fhe 'ounsel for the parties and perased ^iccused/appeUaut has not disputed d^ceased, Apart from. fhat, from the i|agadhar, PW-2 - Baldeo, PW-3 - ^nce ofDr.K.M. Gupta (PW-5), who |ii the body of the deceased, it is |>f the deceased was honiicidal io. P.T.O. XI-HC-78 3TT^T ^T f^TN)" cT§TT3TI^T$h^ict) 4 <TTR^[T<»>*11<h 3^ ^iNKrt^, ^Tn^4!^ fs(cni<iy ^...4..A:.3?.^,oo 3TT^?rq^F (^I^^r) ?^TTW:^rf?cT^n^T ^ sed/app^Uant As far as involveinent qiiestion is concenied, PW-1| aad soii of fhe deceased, wbjp the fateful day, accused/app^l mother naiDLely Somari Ba^ consunied flie liquor, on wl^i oiother (deceased) and father| and the accused was separat^ were also present After soi4( in his haad, weut to the plac^ he attacked wifh the axe 011 she raised cries. Baldeo anl fhe gate brought Beer vSmgh| place of occurrence. His fatN another room. His nioflier dt iiijury aad he lodged the rep< Gaiigadhar is corroborated by| who are the independent witn^ The defence has not the cross-examiriatioii of th^ evideiice of these witaesses. conioborated by the medical stated tliat he conducted fh| deceased - Somari Bai aiid ftl ia tlie size of 13.0 cm x chl<4ld4l^ WT^ff ^ fe^ ^RCT: ^3rf^T3TT^T be4'ii fhe accused/appellant in criBie ui - Gaiigadhar, brother ofthe accused was an eye-witness stated fhat on consunied liquor, therefore, his scolded him. as to why he has ich, he started quarreliag wifh his The quarrel was iiitervened by him ad. At that time, Baldeo aiid Lachhzi etinie, accused came holding aa. axe where Soniari Bai was sleeping and he back side of fhe head, on which, ^l Lachu who were standing oiitside [outside alongwith the axe from the |r nainely Soiiadhar was sleepuig iii ^ed immediatety on account of the \rt (Ex.-P/1). The above evidence of PW-2 - Baldeo and PW-3 - Lachhii, ?sses, able to elicit aay circzim.staiice in |*se witnesses/ which discredit the Moreover, their evidence has beeii "vidence, in which, the Doctor has i^ postmortem on the body of the j.ere was a cut mjuiy on tlie neck |0cm x muscle bone deep. The P.T.O. ^b ^ XI-HC-78 +ll^crll st»*iich ^^^TFTT^RT, ^^1(0, f^dl^ty ^..A;.?..-.3.?.^.^^ 3TI^T^T^i<=h cTSTT ^TI^T ^FOT^ ^ 31T^?T 'Cf^T (^qt^q^) ?^<TTW^f?(T^TT^T ^ injuiy was niuscle deep up to| the niuscle blood vessels wei cbi<4?<n<41^ WTOt ffte^^^K ^3T(^TW^T fhe boue. As a reszilt ofthe injuiy, cut aiid second cervical vertebra was fiuctured. The above iajuries were aiiteHiortem. ia. uature, whicli were caused 1^y hard froia the above evidence, it is ^ was the aiithor of fhe crtme in| [d sharp object (Ex.-P/5). Therefore, ^.pparent that flie accused/appeUaiit question. Leamed counsel for fl^.e appellant argues fliat froni flie evideiice of the prosecutioii, if ls llot established that the accused assaulted the deceased with there was a quarrel between prcmeditation, therefore, fhe ^i mtentioii to cazise ^^ death, as ^ie iiiother aiid soii aud in. the heat of passion; accused broug|it ao. axe aiid attacked without •a4-II ffence against tiie acczised does not travel beyond Section 304 Pa4:-II offhe IPC. Leamed counsel for th|e appellaiit placed relian.ee on the decision of tlie Apex Com't ii^ tlie matter of Sukhde^ Si^ffh ^s. Delhi State (Go^t. of NCTt of Deaii reported ia (2003} 7 Siapreme C^urt Cases 441. Oii fhe ofh.er hand, leai^ied counsel for the State supported fhe jzidgmeiit ofthe trial Cour(:, In tiie m-atter ofSiikhde|y Singh vs. DeUii State (Govt. ofNCT of Delh^ the Apex Cozirt h^ld that to bring the niatter withia Exceptioii 4 to Section 300, IRie defeiice has to establish that (1) flie criBie was conim.itted is^ a sudden fight (2) fhere was no preineditatioii (3) the act w^s ia a heat of passion; and (4) the P.T.O. XI-HC-78 +ii*«<iiSb+iicn 3^'^NI^t^, ^Tfl<1^^, fadl^y ^^...^fi:^^o^M}L -...».....-^.,.».^qT^OO 3:TT^T^H'f^TW ^TT3TT^Tsh*41<=t) 4;' ^? ^ 3TT^T^^3F (y^q^) ?^<TTW ^f?cT 3TT^T {, assailant had not faken any laaaner, cbl^Icl41<ri WT^ff ^ fe^^^K ^3:rf^T3TT^r ^iadzie advaiitage or acted in a eniel .+ In ttie prcsent case, ti|Le stoiy of ftie prosectition is fliat when accused coasumled liq^ hmi, some altercation took p| iior, deceased -Soniari Bai scolded [ace betweeii tiie accused/appellant and his parents. Iii the. niea|ntmie, fhe brother of the acczised - Gangadhar as also Baldeo an^d Lachhu came and iateryened aiid fhey were separated. Theres|fter, accused brotight aii axe and attacked his sxiother on the back side of fhe head wifli an axe, wheii she was sleeping, as a ^sult of which, his mother - Soniaii Bai succunibed to tlie injuri^ caiinot be said that it was do| accused aad his mother were | aad attacked his niother. satisfied, because accused to| mofher was sleeping. He ac| witli the axe on flie back side sustaiaed iiijuries and died 04 the spot. In fhe result, we are of iio illegaMty or iafinnity iii the ks instaiita-neozisly. In this case, it ae in a heat ofpassion, becazise tih.e sepaiuted, fherefore, there was ^time to cool down. Moreover, flie. ^ccused canie prepared with the axe Evexi flie fourth mgredient is not ok the undzie advantage, when the ted io. a cniel nianner by attackuig ofthehead, as a result ofwhich, she |the considered opmLion that there is ^jiidgHient ofthe trial Coiirt The appeal betag devoi^ of nierits is liable to be dtemissed and it is hereby disniissed. Sd/- Sunil Kumar Sinha Judge P.T.O. Sd/- Ag. Chief Justice