3^cr ^i^{<^^, ^ifl^^Ko, i^0i^^< ^SJNdi ^^ich"""""""""" """"""" ^F^ 200 W^?T T(^K ( ^c<f^<^) ^iT^r^ Rrri4> ^Sff ^TT^T $b^(ch ^. ^cfT^R'^f^H ^TT^T SB: HON?BLE DHIRBND A^fP HQN'BLB SHPJ T.P. SH4l?MA, J.T. AFFEI,]LANT (IN JAILl 1, Ba 28 ^hant Ram, S/o Daduraiii, aged about years, occupa.tion Agricultui'e, ^deut of vulage Kalipur, P.0, Baliuli, ^tt. Surguja Ambikapur (CG) 2. Dajdiiraxn S/o Manglarain, aged about 53 $, Occupauon Agiiculturc, resident of ?iU^ge Kalipur, P.0. BattiiU, Distt. Sut-giija, Anibikapur (CO) res Di< ye^i's, viUjage Su|~guja, VERSUS RESFONDEnT St^te of Chhattisgarh tlirough P.S. Ba|fctuli, Distt Surguja (CG) 12-2-2008 Shri Ashok Kumar Shuk|a, Shri Rakesh Jha, Dy. Gcjvt This ciimuial appeal i| conviction aiid order of senten<t 275/2000 whereby leamec( Ambikapur, Sargzija has conv4< read with Section 34 ofl,P,C. imprisoninent for Ufe. 2. The case ofthe prosecut| and deceased Khoqiai^m ^ adjacent. Tliere is a long dra^ tiiem. On 4-7-2000, deceased his field with the help of labo^ son Basaiiti-am caaie there ail <^i^t<n4Ti TFR^Tf ^f Fs^i <Fn^i< iT3>tfN^T^f RAMI8HRA 4a., Advocate for the appellaiits, c|vt. Advocate, for Uie state. |s dii'ected against Uie judgmeut of ^e dated 26-12-2001 passed ia S.T. No. 3rd Additional Sessions Judge, |cted tlie appellaiits iinder Section 302 ^iid sentenced each of them to undergo on, ia brief, is tiiat appeUaiit Daduraoi 'ere real brothers. Their fields are •ii dispiite regarcluig partitiou between Khor}3araoi was diggiag Uie earfli from rers when appellaat Dadurani aiid his id stopped them. from throwuig eailh GRPRJ— FS/ '3^^ ^WW^, ^W\(£,,^vftW^ y HW^l sblllcb •Wi, 200 3nit?r ^RW (^^<^) 3?n^^r^ich ^TW^T sh^jch ^^iTW^TT^n^r on theu' side. When fhe dece^ appellant Daduraia caught hii^ his son appellant Basaiitram. whereupon Basaiitrain attackejd head. He feU 011 the ground aac] alnd 3. P.W. 6 Jeeti'am lodged Ex. P-3 on 4-7-2000 at about was also recorded on tlie hif4 dead body was prepared vide Basantrain ofEx.-S, weapon ofl vide Ex. P-9. Plaiii soU aiidl possession from fhe place of 4 sent for aiitopsy to Commun^ G.R. Kun'e (P.W. 5) conducteeji P-2. Articles seized duriug exaBiination to F\S.L. aad Uie ^ iiivestlfeation M^gistrate 4. After completiiig uivesti^ation, Court of Chief Judicial committed the case to the Ses{ was received by fhe leanied Ac|ditional trial. proseci|ition 5. DuiTiig trial, Uie tliereatter statement of accusel cr>(^f<rt41-( 'HTq'^f ^ ^Q <pyj^{< ^r ^rRfH'3?T^[ sed Kho^araiii was picking up axe, aiid snatched the axe aad gave it to asked him to attack fhe deceased, the deceased with tJie axe over his died after sonietmie. Ipie report agaiast the appeUaiits vide 119.40 hrs. Merg uitisiiation of Ex, P-6 mf^rmation of Jeeti^m. Inquest over fhe Qx, P-5. On fhe disclosiire statenient of offence axe was takeii iato possession blood stauied soU were taken into t|icident vide Ex, P-10. Dead body was ity Healtli Centre, Battauli where Dr. post morteni aiid gave his rcport Ex. lavestigation were sent for chemical sportofthe F.S.L. is Ex. P-12. L, chai'ge sheet was filed ui fiie igistrate, Ambikapur who ui turn ions Judge, Ambikapiir aiid fhe same Sessions Jiidge on transfer for exaniiaed 13 witnesses in all and 1 persons were recorded iii which tiiey GRPRJ— FS/2 ^^31^ 3?n^r,^T f<-iich '^T^TT^T $h^ich @ <3- ^SSf ^iqi^^, ^ft^Fr^, [s)(?l>!'y^< <41Nd( sb^lcb •^ 200 31T§RT ^^ (^f^t^r) '^RTTW^f^T ^TI^T denied tlie evidence appeariii! and pleaded false implication. 6. Homicidal deatli of ofherwise, from the statemeilt Jokhaaram who are eye-witn^ss evidence of Dr. G.R. KuiTe [P.] proved his reportofEx. P-2 wound on parietal region of further fonnd paiietal and pfc wound ofsize 3?? x 1" x 1/2?? broken aiid one iiicised wouitd region of tlie head aiid ha| caused by hai'd aad shar}3 comma clue to braiii sustabied by tlie deceased ovefc* in nature, homicidal deatli of fl -witn^sses aA-d t3le 0|11 7. Leanied counsel for tli4 tlie appellaats is based on 9 Jokliaiirain who are aUegedj from the case of tlie appeUauts had gone there hiaisetf aggressor. He was throwuig tiie dug earth on prosecu^ion cbl<4?<n4)t1 'RTFRTf ^f 'fe^t' <F3l^i< ^^TfOT^sn^r agamst tliein in tlie prosecution case K{hor|3ai^iii is not ui dispute. Even of P.W. 8 Bheekhi'am and P.W. 9 of the incident aad also froBi the ^¥.5)who condzicted post mortemL aiid iii which he has uoticed one uicised head of size 2'" x 1s x l/'y and lias ^rietal bone was broken, one lacerated left vertex region aiid the boues were of size 2" x 1" xl/2"? on tlie vertex opined Uiat tlie above iiijiires were weapon aiid tlie cause of deam was as a result of fiie uijuries his braiii aiid tlie saiae was homicidal the deceased is estabUshed, ed^ed haemjon'hage sNtement appeUaats submits that conviction of of P.W. 8 Bheekhram aiid P.W. I eye-witiiesses of fhe iacident. However itself, it would be evident that tiie |unarmed, Deceased Khorpai'ain was <|iggin.g eai-th from his field aad was 'tlie field of fhe appeliaiits which is GRPRJ— ^,J\ "IJ :^^.^ .^ ^A^i;s" 3?(T^T^;)T R^ich 'OTT^TT^T $FT?nr ^. ^ 3-^T "41^1^, ^Tf1'y4i<s, R^i^y < ^IINdl sbNlch •^ 200 37^?T '^R? ( 4cl^<sl<i^ ) anld BasadtraiDL attribtuted adjacent to tlie fields oftlie douig so, wherezipon he was p| an iatention to assault fh<j DaduraDi snatched Uie axe alleged fhat thereafter axe. In these cu'cuinstaiices,! Khor}3arajH caanot be occiin-ed due to sudden aiid tiyiiig to encroach the field oj he was picking up the a?4 appeUaiits. The alleged eye^ facts. Their version before fhe| Uieir diary statements aiid reUance could be placed on and benefit of doubt oiight to was furtlier argued Uiat ui not be convicted wifh the aid evidence of preconcert of miii|( uitention of causiiig deatii ofj by the appeUaat BasaQ.train Pait i or Pait II, I.P.C. defceased, 8. On the other hand, the statemeut of P.W. 8 Bhfcekhrani ^Jokhaaram were engagecl als c^i^f<n<flTi 'HR^Tf ^f 'fe^t' <r3i^s< ^3tf?FT3TT^T l. The appeuants forbad him from )|ickmg iip his axe lymg on the floorwitli appeUarits, however the appeUant gave it to his son Basantram aad it is assaiUted the deceased wim an iiitention of murdering tlie deceased to the appellaats. The mcident ^rave provocation as the deceased was the appellaiits and on beiiig stopped, with aii intention to assault the ^itnesses have uot come up with true |tiial Court is ia complete variance froin ui tliese cu'cuBistaiices, uo explicit versiou of the alleged eye-witnesses |iave been extended to fhe appellaiits. It a|a.y case, the appeUaiit Daduram coidd bfSectioii 34 offhe I.P.C. as there is no ii|d tliat tliey came fhere wim a comnion Khori3araia aiid tiie offence committed does not travel beyond Section 304 tie a|a.y ^lso leslnied counsel for the State refermig to argues that Bheekhraoi aiid labourers by the deceased for the GRPRJ—FS/ ^5-^^ ^l^l^^, ^T{1'y41(S, ic|01^^< ^ +tl^dl sb^lcb' •^ 200 3?T^?T ^R? (lic<^<^) 3^r^T f<^ict» 'TOTW^T 5h^l<=b ^ ^HW^f^TW^T purpose of diggiag earth. The^ tirae of incident, accused Dad| Khoiparam from throwmg eartpi Daduraia caught KhorpaTQssi axe over his head aiid the incj aiid Jokhaiiraio. as they liad His version is diily coiToborate^i also the eye-witiiess of tli( corroborated from me inedic^ coiTespondnig iiijiuies Uiree Kiior(3ai"aia, have categoricaUy stated tliat at tlie Itiraia. came with his son aiid stopped in his field and at tliat tiisie accusect iiid Basaiitrami assaulted hiin with the |dent was witnessed by hini, Akhil Sai to work iii flie field of Khoq^aram. from the statement of Jokhaii who is uicident, Their version is further y evidence as flie Doctor has foiinci niimber over the head of deceased ^pne 9. We have heard leanie perased tlie record as also tlie pp^Uaiits 10. The trial Coiirt iii paiB.| prosecution case, accorduig tc^ up the axe for assaultuig app^U; his axe aiid gave it to his soi-i whereupon Basaiitram assaui head. Relyuig upon the has been held that the eye-witiiesses have categorically assaiilted the deceased whi|< version is coiToboratecl from 4i stateitient appell^iite ct»i^I<n4l'i'HR^f ^F fiT^ <H?i^i< ^ 3tf?R ^STT^I coiinsel for the paities. We have iinpugned jiidgment. 3 of the jiidgment has discussed the which, while tlie deceased was pickiiig i, Daduram caught him, snatched aiicl asked hmi to assault Khoipai'ain Led Khoi^ai'aia with Uie axe over his of Bheekhraia aiid JokhaiiraBi, it have been nanied ui the F.I.R. The stated tliat the appellaiit Basantram e Daduram had caught hini, Their ie seiziire of the weapon of offence axe GRPRJ—FS/2- ^- ^ ^l^^^ '"'^^.^^' ^TTCf ^1^10^, ¥$^1^^|<o, (sj^>|y^< 37T^T^)T'f^ri^ ^T^TT ^TR^T »)+i|cb HIH^ l^ 'WT^IT sb*{|cb "^ 200 3^9T ^gF (^crf^^T) ^CTW^rf^^T^r which has been seized o accomiag to the F.S.L., the conviction is also based on has proved tlie deceased aiid his version lodged F.i.R. corresponjiiiig of memorandiim of Basaiitram. aad ^eapon, axe was staiaed wifh blood. The ^tatement of Dr. G.R. Kvirre (P.W. 5) who iiijuries over the person of tlie js also coiToborated from tlie promptly 11. P.W. 8 Bheekhram altercation between fhe app< on account of throwuig eaif field. Daduram caught Kliori him wifh aii axe. This witd between tlie two brothers coiTtial for tiie last 5-6 yeaif Tliis witiiess ui para 8 of h^ tiTie to say tliat. Sudhaiii ha{ has to give and accommgly 12, Version given by P.W| Bheekhram. This witoess statement of Ex. D-1 wher^ picking up axe from the fiel4 made such statement bef<t Bheekhram is also avallabU been confronted wim the dl CM^<fll NIH^f ^' fe^ 'rfS(PC$TC '^'3TRm3T?^T jhas stated that there was a vex^al tllaiit Dadurain aad deceased Khorparam |Lli by the deceased Khorparam m their )araBi ajid accused Basantrani assaulted less has admitted fliat the relationship Le. Daduram aad Khoi^aram was not as they had a dispiite about partition cross-exainmation has stated that it is told hmi today as to what statement he le is giviiig the statement. 9 Jokhaiiraoi is also similar- to P.W. 8 has been coiifronted from his diaiy ;in it is nientioned fhat Khoi'pai'ain was however tliis witness has denied haviag >re me police. The diaiy statement of on record. Though tliis witness has not aiy statement in the cross-examuiation, XI-BC. 3^' ^WW^, ^W^, ^^iW^ ^ ^TRW shNlcb 'W^ 200 3^r oRT f<^ 1?T8Tf ^TR?T 9h^|cb ir- ^" ^ 3:n^?T'q^ra? (^ciil^ci^) ^^nw^ft^ ^TT^T however from flie penisal while the deceased was Daduraai snatched fhe ox\ raade assault witli the axe |3f the diaiy statenient also, we fincl fhat pi^kiag up the axe froisi the field, appeUaiit aiid handed over it to Basaiitraoi who tiie head ofthe deceased. <frver a|E cai&e Basaatr^mi 13. After cai'efiil scrutii{iy witnesses, we observe that| was diggiiig his lield wim| Jokhanraoi aad Akhilsai, his nephew Basaiiti'am shoiild not throw the eartlil picking up axe from the axe aiid gave it to cn his head. Thiis from me| so far as appellaiit Dadura^n the assault. The only deceased aad Basaiitram above version given.by the| statement and, tiierefore, it| the axe froin fhe deceased deceased thrice over his h| thereforc, acconliiig to appellaiit Dadiiram under I.P.C. caiinot.be sustamed tliat flie appeUaiit aUe^ati g^.ve Dadurbin cbl<lt<n<fll 'HTR^f ^f^t<ll <f^1^i< ^ <3ffiW'STT^T of Uie deposition of the above two |me uicident occurred while fhe deceased tlie help of P.W. 8 Bheekhram, P.W. 9 tliat juncture, liis brother Dadiiram aiid tliere aiid objected that tlie deceased [on tlieir field aiid while the deceased was gjround, appellmit Dadiiraoi snatehed tiie who gave fiiree blows to tlie deceased |above evidence, we are oftlie opuiion tliat is concemed, he did not participate in t^ation against hiin is fhat he caught the g^.ve axe blows over his head. Though fhe [witoesses is in variance from theii' diaiy appears more probable fhat he snatched [aad gave it to his son who assaulted tiie ?ad as a result, tlie deceased died aad, considered opuiion, tlie conviction of gection 302 witli the aid of Section 34 of there is no evidence available on record caine tliere after preconcert with oiilr ^s ^ T^ ^iWW^, ^xn^'Ko, (sf^l<-l^< 'WTCTT *N(ch -^ 200 ^TT^T^T fqii^ ^T^T 'SH^T 5t)^i<^ ^J ^- 3:ni(?T ^Ri (^cif^^) '^nw^ft^T ^n^r caus|uig comBioii uitention of fhe incident occurrcd onll? engaged ui verbal duel an4 the ground, however Basaatrani gave thi'ee froni shai-p edged aad I^J fracture iiijuries over terapl: also one lacerated woundl weapon of offence, the fo2}< tlie portion i.e, vital partj intention of causuig de^ Basaiitram. suc<tlessive deafh of the deceased Khoi^ai'am and on tlie spur of nionient after they were tiie deceased was pickiag up the axe froia c^nsideriiig Uie fact that tiie appellaat blows over fiie head of the deceased yiunt side of Uie axe wliich caused two region ofthe head oftlie deceased and over his head and, fhus considering fiie 'e with which tlie assault was made aad skuU, on which the assault was made, 3l4th caa be attributed to fhe appellan.t terap^ral 14. In the result, appeal| to be allowed aiid accord^ under Section 302 read imposed under that sectio4 charge. 15, However, tlie appeal) His conviction under Sectf modified and he is com sentenced to undergo imp4sonment for Sd/- Dhirendra Mishra Judge et)|^t<y1<iir1 ^l*1<?ll ^f^St <Fal^K ^T 3?iRP:T'STT^T preferred by appellant Daduram deserves rd^agly tlie same is ailowed. His conviction Iwitli Section 34 of I.P.C. aiid sentence are set aside. He is acquitted oftlie above of the appellaat Basaiiti'aia is disniissed, [on 302 read witli Section 34 of I.P.C. is icted under Section 302 of I.P.C. aiid iife. Sd/- T.P.Sharma Judge