WHS'aeitHRffiS .^.-.^^ .?i£a^-Sg&:s3:;! ^ IN THB HIGH COURT OF OTDieATURE AT ffABALWR, M.t. Griminal Appeal No. '3>V-^fc. /1999 Appellaat •J.'^y^ Daehrath S/o Mllap Dbobl, aged about 30 years, r/o Chandrapur district Bilaspar /^y 4^' -versus, \" ^^ \y^. <' Res-pondent =1</' •^•' z^y State of Haahya pradesh throagh Distrlcfe Magistrate, Raigarh. .>'./y/" / s' V-' Y^^/ / ^" y APPEAL UNDERSECTXON 374(2) OF THE_CODE OF CRIMINAL PROCEDURE XI-HC-22 -ysf •^RsRvR, a'di'y'Ts, ^ray '&il'^. &cA..^..r^pyo)o) S^t^T f?:]7T3?g'?t aTSTWafeT »,.-tS9f 3Ilt?I??BI®Tlft?t ^iPlfa-W Wl"?f •B. f^S tfw ^ S^Ki^ S ivision Bench: Hon'ble Shri V.K. Shrivastava.JJ, ^ie appel'ant. Public Prosecutor Shri H. S. Patel, coynsel fortt Shri J.D. Bajpaee, Additiona) ihatia, Panel Lawyerfor theState/r^spondent Oral judgment dicfated on D^s. Ihadoo J 3y this appeal under Sectior^ appeliant has questioned the legalitj conviction and order of sentence learned 2 Additioriai Sessions whereby iearned Additional Sessi appeilant guilty forcommission ofl !.P.C., sentenced him to undergo ir< of Rs.1,000/-, in defauit of payment year. He has challenged thesame.l Case ofthe prosecution, in a Dehati Naiishi (Ex.-P/18) in the Pc| Soday at about11 a.m. he was goirl savi' that one person was attackinj him, he started running on which caught him and thereafter brought ^ Sarpanch, Up Sarpanch, Chowkidj from Dashrath. As he has murder therefore, th®matter is regor^Sd. .P.8. 374 <2) of the Cr.P.C. the ^ccused/ l? and correctness of the judgment of d^ited 20*^ November 1999 passed by .pudge, Raigarh in S.T. No.102/85 ioijis Judge after holding the accused/ offence under Section 302 of the ir^prisonment for life and to pay a fine |3f fine to further undergo R.i. for one .|i this appeal. b|rief, Is that on 26-3- 95 Govind gave iice Station Raigarh to the effect that |g to Raigarh market, on the way he 4 a child with the stone. On seeins [he aiong with Kiniram chased and |im to the village. in the presence Qf ^r and Ratan enquires were made r^d his son by assaulting withstone, Based on this reeortjneiaJntiDiatiQD- ^1-HL--ZZ' •S^^PIKPS, •g^RFis,l^irey 3n^"i'i-Bi f?;ira'aii^r ^aRi-^f^f fS» -•di^l' q^iwir'i ^reff ^ 1^z( •(R ;x.-P/20 was prepared and FIR ISection 302 of the I.P.C. commlssion of offence under Investigating Officer left for the sc^ne of occurrence, after giving notice (Ex.-P/1) tothe Panchas, preparefl Panchanama Ex.-P/2ofthe body of Murli. The site plan (Ex.-P/S) of thje place of occucrence was prepared. ^oi! was taken into possession under The plain soil and blood stained Ex.-P/5. Blood stained stone, vj possession from the place of prepared the site plan under Ex.-if/7 and P/7-A. The dead body of the deceased was sent for postmort^m examination to the K.G. Hospital, 'eapon of offehce, was taken i fccurrence under Ex.-P/6. Patwari Raigarh under Ex.-P/12 where Dr. the postmortem, prepared the stained clothes of the 'deceased v< against the accused in-the Court! who in turn committed the casel learned Additional Sessions Judg^ The prosecution in order recorded under Section 313 of was a pit and on account of falliri was registered under Ex.-P/21 for |P.K. iVtishra (PW-12) after conductinc Ipostmortem report Ex.-P/16. Blood ^ere taken into possession under Ex:- P/13. The cycle was taken into riossession under Ex.-P/14. Ctothes of the accused were taken into poss^ssion under Ex.-P/15. After completion of the ir|vestigation, charge sheet was flled of Chief Judicial Magistrate, Raigarh to the Sessions Judge from where receh/ed the case on transfer for tria!. |to establish the charge against the accused examined 13 witnesse^. Statement of the accused was he Cr.P.C. in which he denied the prosecution evidence and stated i|hat a truck was coming in a very fast speed from the front side, therefoife, in order to save himself. he alighted from the cycle. However, cycie w^s fei! down on the stppe where there <,/E>C-CA.AU-^^O^ tg his son heeame injuraAi'When he stepped down in the pit in order |o lift his son, during that period, 3-4 ['cft^ y<g<i Xl-HC-22 -S-Sf •airqRTt, •S^tetre. 'i^TRTy 5.. CI-. sn^i'ER? f?aR;S,T^I WTWHf^I w- :-s:";i:*-eiSslfe CT?si'?;RiimTfe -1 ^NyritTtipraf ^ fs%r Tfe?T!: ^3l1^*T31^S( viilagers came and caught him. hj he received treatment for the Sessions Judge after hearing argjjments of Additional Pubiic Prosecutor and counsel for the accused, corlvicted and sentencedthe accused as mentioned in para-1 of this judgm^nt. , We have heard Shri H.S. fl appellant and Shri J.D. Bajpaee, M.P.S. Bhatia, Panel Lawyer fort>| The homicidai death of decl As far as involvement d, question is concerned, PW-1 Go] day at about 11 a.m. he was goirjg to the Raigarh market. He saw that one person was attacking a child away on a cycle. The child receiv| ca!!ed Kiniram whowas nearbytti and stated that he saw that the stone and thereafter he ran away along with Govindram chased the they reported the matter to thi witnessed the crime In questior assauiting a chiid with the stone e is not mentally fit and in the prison, mental disease. Learned 'atel, learned counsel for the accused/ Additionai Public Prosecutor with Shri e sased Murti is not in dispute. f the accused/appellant in crime In /indram has stated that on the fateful with the stone and thereafter he ran 3d injury on the head. He shouted and e piace ofthe incident. He along with Kiniram chased and caught the a4cused and thereafter iodged the report in the police station. PW-2 Kiniranji has corroborated the above evidence iccused was attacking a chjld with the on a bicyde. The child had died. He accused and caughthim. Thereafter ? police. These two witnesses who have stated that the accused was and thereafter he wanted to run away. They chased and caught him. Tfiey witnessed the accused assaulting the deceased his own son. The ^vidence of these eyewitnesses stands corroborated by PW-3 SUbhash w|io has a!so stated that he saw that the accused was runningaway, Kinir^m and Govindram chased and caught Ip [Tif^ "^'r^ XI-HC-22 311^1-EBI ft;iw3n§?i CT>^ ^IT^T !»"N. 'S'^.'^'IT'TRPI, 'SFaN^®,(twi'yy ^ Stl^TIWWSi^T ^- him. Similar isthe evidence of witnesses stands corroborated <t)!fq^<i1 -T 'RTR^if ^ fs*^! I^i^R ^; 3)1?aii siifg PW-4 Ratan. The evidence of these >y the evidence of PW-12 Dr. P.K. Mishra who has stated that on 26}3-95 at about 4 p.m. he conducted the postmortem on the dead body of Murli. There were 4 injuries on the body and on dissection he founcj were fractured and dotted blaod 4?as present. He has further stated that cause of death was head injury ajid on account of cloaing of blood in the brain. His repo.rt is Ex.-P/16. Th| taken into possession by the therefore, in view of the ocular e'lj is established that the accused wj Learned counsel' for thel accused/appellant is in custody] committed the crime in a fit ofl accused refused to send his wift supported the judgment offhe tri^l in order to appreciate the ^ PW-8 Gajanand, father-in-law on a bicycie and said that he wo| that frontal, temporal, parietal bones |e stone, weapon of offence, was also 11.0.from the place of occurrence, ^idence as weil as medical evidence, it ^s author ofthe crime in question. accused/appellant argued that the since last more than 1 1 years, he anger when the. father-in-law of the 3 and in that fit of anger, without any intention, he attacked his own soji aged.about 5 years with a stone as a resuit of which Murli digd, theref()re, offence agalnst the accused does not trayei beyond Section 304-11 cjf the I.P.C. On the other hand, yamed Additional Pubtic Prosecutor 1 Court. irgument advanced by Isarned counsel for the accused/appellant we h^/e perused the prosecution evidence. if the accused, has stated that the aecused is his son-in-iaw. On S|.inday,'the accused came to his house jld take his'wife aiong with him. Even he did nottBB^his meal. He adv(sed him that sincethere is occasion of 'Chhati' at ttie residence of his siyer, therefore, you take her after some [^t^^f^ Xi-HC-22 -s^ -riTT®ii,^ata'Ts, 'ra9ray e_? ais^i^T 1^?73?I^I -^{I^r^T^ ^-;"••£»!? ....^-.s^ sst^SS2i2; Ban/s ^TtjiOTH •W?fi-9 fS'St'Ti^R ^T sf'iW gn^! lime.Thereafter, the accused ^aid that he would not take meal. He would go just now. While going bicycie who was playing outside. he took his son along with him on a After some time, Subhash Sahu came and informed him that his son-in-few has murdered his son Murii. In view ofthe above evideijce ofPW-8 Gajanand, it is evident that when Gajanand, father-in-law of|the accused refused to send Anjana, wife of the accused, he became ^nraged. Even the accused refused to take meal on the request of his f^tl- on a bicycle, on the way, in a fit o( ^ther-in-taw. Aftertaking his son he teft anger, the accused assaulted his son wlth the stone, therefore, intentibn to cause death of his son is not established. However, from the that the accused whiie assauitirt knowledge that by assaulting with| above facts, it can safely be inferred ig the deceased with the stone had iStone on the head of a child of 5 years he may likeiy to cause death of tljie deceased, therefore, offence under Section 304-1! ofthe I.P.C. is mad^ in the result, the appeal ^artly succeeds. The conviction and sentence imposed on the accuse|d/appellant under Section 302 of the I.P.C. are set aside, instead there<t ofthe i.P.C. andsentenced to unc<i the accused/appellant is in cust^ ff, he'isconvicted under Section 304-11 iergo R.l. for 10 years. It is stated that ^dy since 1995 which has not been thereby he has already undergone be set at liberty forthwith uniess case. Sd/- L.C.BHADOO Judge out against the accused/appeilant. disputed by Additional Public Ffrosecutor for the State/respondent, the sentence. The accused/appellant required to be detained in any other Sd/. V.K.Shrivastava Judge [^tfei) -;t^sw •;<'