\;^.. CF0000058638 ,@> ^^ ^.. . . . ^^ (Ct^:. . 'l 'rj^4^- ;i IN TI-®HIGH GOURT OF MADPK-A PRAEES^ ATsJABALPUR Criminal Appeal No. '^?S ^ '/1993, ., -7dV<57!sy'£(^^ APPELLAOT : .TarAsi^ie @ Darji s/o SuJsra (IN JAIL ) Aged-45yearsf R/oVillage-Ghatakpur, Distt^Raigarh • (ly'P) "VSKSUS • SESE'ONDEITO s The State of M.P. through-^.S.Narainpur, ^, 7 ..^ ^^^^^/ :^A^ CRIS4INAL APPSAL U/S 374(2) OF 'fflE CODE OF CRIMINM^ PRQCSIXJR^ $ BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 11:49:08 +0530 XI-HC-22 ^^ ^TPT^P?, '?^ft'Si?T?/^TRTy WW?ii'W^%^.......o...A.-A:..^^ ^n^T'^i -f^ri^^iT^r '^TfN>^rft^> 3T?^f'^ITW^t^ •^qfejz^TTO^ ^ f^^ i^^^ ^"3^m^?i • DIVISION BENCH: HON'BLE & HON'BLI HRI LC.BHADOO 1 DHIRENDRA MISHRA, JJ BLEISHRI CRIMINALARPE^L N0.434 of 1993 Appellant Respondent Tarsijsiyush Vs. Statej of Madhya Pradesh Ms. Sharmila Singhai, leamed c4unsel for the Shri U.N.S.Deo, ieamed Additjonal Akhil Mishra, learned Panet Lawyer for (he respondent/State appellant. Public Prosecutor with Shri ORALJUDGMENT LC.Bhadoo. J (08.02.^006) By this appeal under Section 374(2) of the Code of Criminal Procedure the accused/appellant h^s chaltenged the tegality and correctnessof the judgment of convitjtion and order of sentence dated 21.04.1993 passed in Session Trial INo. 111/92 whereby the fearned Additional Sessions Judge, Ja^ipurnagar after holding the accused/appetlant guilty for commissio^i of murder of Norbetiyus convicted him under Section 302 of the Indian penal Code and sentenced htm to undergo imprispnment for life. [-q^^f^ XI-HC-22 'sn^T^T f^TRF311^r ?b^i^^ficT 2., ^^ '^TRM^. ^ftWT^, 't^TRiy <\2> NiN^sr^w^'^........a...4.-...^.-.-.'^ W^IS Sefction Case of the prosecution is that or Tarsisyus attacked his brother Nort ofthe accused with axe on head anj; he died spontaneously. Quarrel coming from the agricultural field. same. Thereafter» villagers came reported by Deonis in police s^s registering the case P-1 under OfRcer left for the scene of occurr^ gave memprandum P-2 regardins weapon of the offence and in recovered under P-3. Plain soil 8|n possession under P-4. Blood garments and one Lungi were giving notice to the panchas. pan^ ,was prepared. Site plan P-8 was sent for post mortem examinati<|n where Dr. S.Toppo P.W.-10 post mortem report P-12 in whtehj hemorrhage due to fracture of sk^l! death was homicidal in nature. Af charge sheet was fited against Rejina, wife ofthe accused/appellt who in turn committed ttie casej condt(cted •wrf^N^r^ff ^ fe^t Tf^p "^ ^^ ^rr^r pursi^ance stqimed taKen 7.3.1992 at about 1 1 a.m. accused ^tyus on the instigation of Rejina, wife ijl temporal region, as a result of which witnessed by Alwis when he was informed his brother Jonus about the lon the scene and the matter was ^ation Narayanpur under P-1. After 302 of the IPC the Investigating ^nce. White in police custody accused the place where he kept the axe i.e. of that memorandum the axe was <nd blood stained soil was taken into dothes of the accused, under into possession under P-5. After fchnama of the body of Norbetyus P-6 ilso prepared. Body of Norbetyus was to Primary Health Centre, Kunkuri the post mortem and prepared the jhe opined that the cause of death was ill which led to excessive bleeding and ^er completion of the mvestigation the he accusedj'appetlant and co-accused ant in the Court of JMFC, Jashpumagar to the Sessions Judge, Raigarh from --1-. [Tit^ ^Ka^ XI-HC-22 "S^ ^TraM^. '®^hEPTS»^TRTy ^t •N8^^1l^Rra^te--^4'.ol».'..^^ 3T^T^T t^n^a^^r ^^WH^r 3. 4. 3;iit^T ii^r^R'^fi'er -.&— 6 persons examined fifteen witnesses ^N^f^ -qTq^f -^ °fe^if^gK ^3?NH^T^T where the learned Additional Ses^ions Judge, Jashpurnagar, District Raigarh received the case on transfe( for trial. The prosecution in order to establijsh the charge against the accused were also recorded under Sectton 31|3 of the Cr.P.C. in which they denied the prosecution evidence appearing ^gainst them and stated that they are innocentand have been falsely impli^ated in the crime. Leamed Additionat Sessions Judgej Public Prosecutor and counsel for sentenced the accused/appellant a^ judgment. However co-accused Reji acquitted of the charge ofSection after hearing the arguments of the jthe accused persons convicted and mentioned in paragraph one of this iiha, wife of the accused/appellant was 1CJ9/302ofthelPC. As far as involvement of the concerned, P.W.-13 Alwis Tirkey is 07.03.92 hewas retuming from th^ reached the house of Tarsisyus, temporal region as a which Rejina said "attack again atlacked Norbetyus with axe| Statements of the accused persons We have heard learned counsel forjthe parties and perused the evidence availabteon record. Homicidal death ofNorbetiyus is notjin dispute. accus4d/appeltant in the crime in question is ^he eye witness who has stated that on agrjcultural field and when Norbetyus T|arsisyus attacked him with axe on his result of whic^ Norbetyus fell down on fhe ground, on Norbetslus once more", on whteh Tarsisyus and thereafter Tarsisyus pressed the -t- [Tft^^ft^? XI-HC-22 Tf^ ^FTR;R, ^ft?5T??, ^irey W^^I ^^N^* .G,:,i-.A.-..1^l^ tie®^ ^n^T'^T f<Tli?h^3i^ ^RW^rfiTT ^RfepfhT ^ m^-€^R '^^^TH^n^T 8 neck by putting his leg and Rejina informed his brother about tiie incid sat on the chest of Norbetyus. He ent. Thereafter villagers came to ttie scene and saw the injuries on Norb^tyus and report was lodged at Fwlice station Narayanpur. P.W.-4 Sukhcha the fateful day when he was peelinj quarrel between Tarsisyus, Rejm ran has stated in his evidence that on 1 the Bamboo he heard the noise of ? and Norbetyus, thereafter calm prevailed. P.W.-10 Dr. S. Toppo haslstated that on 08.03.92 he conducted ttie post mortem examination on th|& body of Norbetyus and found that there was an indsed wound on tihe left side of head in the size of ,1x1/2x/1/2" in spindle shape as a resuft of which occipital bone was fractured and clotted blood was prejsent and brain material was coming out. Second injury was on the left s|de of the face spindle in shape in the size of 1x1/2x1/2" and Maxltery bone|was fractured, haemotoma below the wound and there was swelling and jcontusion over right side of face just pver the neck of mandible and |ere was haemotoma. tn^uries were homiddal in nature. Report is P-12. <|5n 25.03.92 he examined the axe and gave the report. Injuries which wercj could be caused by axe and report! found on the body of the deceased is P-13. In tti^ cross examination he stated that blade of the axe was 4.5 jc.m. jn length whieh was more than 1 y2"andlessthan2" Learned counsel for the appellant ^ rgued that as witness P.W.13 Atwis Tirkey has stated that accused pre^sed the neck by putting leg, but no corresponding injury was found, the|refore evidence of this witness is not reliabte. Looking to the evidence ojf ttiis witness even if no injury was ...4-." [^^fe^ XI-HC-22 '^^. ~^^K^^, ^tWTS, I^^TRRy ,^.........^-^.:^\^ (gD wq'w^m^1 ^T^T^T f^rww^r "^RT^ ^f^a 10 3TT^l'r€!T^:^fta -s- noticed on the neck, the evidence of (his on this ground because he has dea^ly deceased with axe on the head and the face and head of the decease<< corroborated by ttie medical evidenc^ th6 evjdeoce of this witness on the| was such that he had not disclosed anyone except his brother, but thel brother Jonus and by not informing djsbelieved because it depends uponj or behaves in particular circumstanc^ in day light and there is nothing in ttiat this witness had any animosity a^ him and implicate him in a fatse brothers, therefore there was no accused/appellant ina false case. clttier Therefore in view of the evidence evidenceand also evidence of P.W.- the accused was the author of the we do not find any illegadty or infirmits Learned counsel for the accused/api Apex Court in the matter of Prakefeh Pradesh reoorted in AIR 2004 SCW ^p^fq^ -qpq^f -^ ^zt'^T^R '^3^P:?^¥f witness eannot be rejected solety stated thataceusecl assaulted ttie (lorresponding injuries were found on and moreover those injuries stand Learned counsel further attacked jground that conduct of this witness |:he factum of witnessing of crime to fact remains that he informed his persons his evidence cannot be person to person how one conducts ^s. Moreover the incident took ptace cross examination of this witness jainst the accused to depose e^ainst ^se. Moreover quarrel was between for this witness to implicate the the c^se realson of P.W.-13 Atwis Tirkey, medicat Sukhcharan, we are convinced that rime in question and to this extent in the judgment of the trial Court. ^ellant relying on the decision of the Chand Vs. State of Himachal 4650 argued that from the evictence ['1[f^ift^s^ XI-HC-22 ^¥?^? 1^TN'3TJ^T ^<-ii<^ ^ift'^ 11 12 -S^ ^Fff^PT, -^OT^, t^iray 'Wfl'^T^^W^...:.^...^...^^ the prosecution has not been abte to s^iow deceased with intention to cause his against the accused/appellant does no^ travel In the same judgment in paragraph distance is ahways notdeterminative of the accused, the factual backgrouil account nature crf injuries susteined, relevant factors. In that case there wj petty matter that the dog of one brother onwhteh the other tie hjs dog that enraged the accused,] fired from tiie distance of35ft. The C<| the distence. of 35 ft. and peliet hit said that there was intention to cause Vs. State of Puniab reoorted in AIRI that under Clause Thirdty of broither brother asl^ed the accused Sectibn murder, if both the following conditiofi which causes death is done wilh the ih with the intention of causing a bodily i^ to be inflicted is sufricient in the ordins^ry It must be proved that there was an ir}1 injury which in the ordinary course ofi viz. thatthe injury found to be presen^ ^Rfe^^r ^m^ff ^ ft^t TN^R ^T 3TJ^ ^R^l that the accused assaultect the leath, therefore the offencealleged Ibeyond 304-11 ofthelPC. it has been held thatthough the about the intention or knowledge |d has to be considered teking into jthe weapon used and such other is quarrel between two brothere on entered the house of another asto why he did not |he brought gun from his house and ^yrt held ttiat theshot was fired from deceased therefore it cannot be Ideath. In the matter of Virsa Sinah 11958 SC 465 the Apex Courtheld tfte 300; IPC culpabte homidde is is are satisfied j.e. (a) that the act rtention of causing cteath or is ctone ijury; and (b) that the injury intended course of nature to cause death. tention to Snflict that partteular bodily lature was sufRcient to cause deatti was tfie injury that w®sintended to „>„. [Tft^?R^^ Xi-HC-22' an^T'^T f^ira'^n^T ^RT^ 13 14 ^^ ^TPT^R, Txftw(%, f^?ray WWII.^H?^^••••••••cn-'^;-£i-^ JM^ ^T^fT^WTrft?f .^L be inflicted. For cases to fall within cl; the offender intended to cause deattji, the intentional bodily injury or injurjes ordinary course of nature. Therefor Clause 111 of Section 300 the intentiot fact whether the accused while inflic^ing to cause death of the deceased and determinative factors to be taken weapon used, size of the weapon made and factual background ofthe lause. Thirdly it is not necessary that i,so long as the death ensues from sufRdent to cause deatti in the in order to prove the offence in h 1s the main measure to assess the the bodily injuries was intending |n order toascertain the intention the rto consideration are the nature of the place where the assautt was nme. ahd In the matter of State of Andhra Pi Couirt reported in (19761 SCC 382 the tha ptural so that even if none of were cumulatively so, the case falls ufider this clause In the light of above prindple if we present case it is clear that at the deadly weapon i.e. axe, assaulted o^ deceased fell down but that did n<4 further. He again assaulted twice ar^d fractured and brain material started c< same axe was caused on the left sld Maxillary bone was fractured and agi side of the face and as a result of ^TRta^h T{R^ ^ fe^t I?W?H ^ ^f^r ^r^f adesh Vs. Ravavaraou Punnawa tNe held that the bodily injury includes je injuries indtvidually were fatel but Idok into the evidence available in the first instance the accused used the tce on the head as a result of which ^ stop the accused from assaulting resultantly Ihe occipitel bonewas ^ming out. The second injurywith ttie Ide of the face as a result of which |n the third injury caused on the right jwhich tfie mandibte bone was also [Tft^^Ri^ -.4»- XI-HC-22 ^n^T^? t^;TW3?15^l ^^W^ficT 15 -^ ^si -^FTRT??, 'g^FT?, ^Trary 1?P?^T%°W% -t- ^v ^ ^ ^ W^T^CTW^f^ —SrL. fractured, therefore almost all the b<j ^ptf^N ^ fe^t '^ST^R^T^l nes of face and head were fractured and the deceased died spontaneou^ly. Thus as the injuries were caused with deadly weapon that too repeat^dly, it becomes ctear that there was intention on the part of the accusedfappellant to cause injury on the vital part of the body of the deceased vi4ich were sufficient to cause death in the ordinary course of nature. Therefore, in this background.we are of tiie consrclered opinion that the argunjients advanced by counsel for the appellant is of no help to tt»eaccus^dand the frial Court has rightly held the accused guilty for the commissi4n of an offence under Section 302 of the IPC. In vjew of the above we do not judgment of the trial Court and therefore, the same is liable to be di^missed. 1 Sd/- L.C.Bhadoo I Judge find any iliegality or infirmity in frie tl^ere is no force in the appeal and i^missed. It is accordingly dismissed. Sd/- Dhirendra Mishra Judge [^ft^.^Ri^