^' -:ff 7 (! 'CFb'000060157 ^" Q.,1 A •-_l?3a.\x / - APPE&L ^^PRIS(%ER < ^" 3>^(^n N0. Pafeher!s name ^Q^^^L. Name - -apTi~ Byt.cH o Residence^^@@rfe^^[^^^^_ _, Age ,3^_ Sentenced,^^3-t^itedLS-^-T-on^'lLi^L_.^-7^! Under section ^QlJU^2.lUiL~..—by<ri^^^l^ (^rf^|;igT?S ---^-^s.^^Js^I32^:^Z3^^»^^r^®^^ " / it is explained to the prisoner fehat if he states or w^shes to be represented by legal practifeioner fche Appelisfce Court will not proceed with the base for seven days unless the l.egal practitioner appears* If the-legal practtfciQner does inot ^aar with-in seven days he may not heard at ail^ If the prisoner.stafces that he does not wish to be represenfeed by legal practiofcioner the courfc ma^ proceed Qt once /with fche kcase and will not be obliged to give a hearing to any/legal •. practitionsr whb should appeQr. ^ ^ la Dafce of. Application for copy of Judgement ^ 2, Date of which copy received 2Ul-'^l<l& 3» 'Date on which appeal sent 4» .WhetKer the prisoner wished to be representad or HOt-WYes//No- F. NO« Confcinued in Name Jail °. 11&12 ^[A.ll[£^_^..._ ECTgaZ——-_. ^,* -,-l^|Z_.^.-.. .,_ ..-Dated S^^(~q-^ ': 199 y-1 . v,.,,,. ;V ^-- l.<es=^.—«—-—« -. . —*"? A^i-2*/-- V—(;—^-^—-*— ~-.. —^^^...,^<-.-^-.. F^ ®rd.to the CHIEF JUDICIAL ^GTSTRATE ^^]^[^"%|]^ to gather which a -copy of Grder passed in the caselfor.j^avour of tx^ngmission to the proper Appellia te Court < , Supeririendent '^^"^sCCVqim Date of receipt in C<.JpMIs Office ____J^..7..^Z^^ Dafee of r^ceipt, record to accompany __.,^3l.2.!'l^^_^..^^^. Memo of Appeal of the Appeliate Court ^^^^^^^^^^^v^t^^ ,NQ. ____(^X.._Dated _2lL-rJ2l.. 199<1_.._ Forwarded to the . . _ _ g,^.^<rlXv<Jl VQ^^ ^-^S-eT^^^^^---^— C .J. gisfcrate --,^^<!£^r^ Date of receipt in Appeliate Court //SURGUJA TY.// ^ -;.- -.•. t®r ll;i LA^ 's^ ^' t-1 r^ lTPT^Tl9»'n^ \JT^^1^|<A<1,U)"^WI<^&<'>I^W< .&:fi».A).e^a^, OT^^T^Tfe;Tt<tf ^nsn^^r^^N \^ <"7':i\." r 'H-- :^' OTT^T^P (^ltg6R§) ^t^@o ^cT[<^1;?rfi^T 3TT^$T D.B. Hon'ble Shri L.C.BliadooL Hon'ble Shri Dilip R. Ddshmukh. JJ 20.06.2005 Appellant byjShri Abhay State by Shn U.N.S.Deo, Oral order. 1 Fiwari, Advocate. Govt. Advocate. ' Heard. } 2. The accused appellant aggrieved by the judgment of c4 the 2nd Addit'ional Sessions Jud No.3/1997 dated 24.7.1998 Sessions Judge after convictin|g commission of offence under Sl I.P.C. sentenced him to undei months rigorous imprisonmen^ Section 182 and 21,1 I.P.C. 3. The brief factis leading to| the night of 10,11.1996 accuse^ liquor and took dinner in the accompanying the jaccused-api 4?iyfc^4l^ WT^* ^" f^^xRltcix ^3rf^T3TT^T las preferred this appeal being >nviction and sentence passed by Ige, Ambikapur in Sessions trial vhereby the learned Additional the accused-appellant for the ictions 302, 182 and 211 of the |go imprisonment for life and 3 in each of the offenees under filing ofthis appeal are that in Bulchu and his wife consumed [liduse of Manglu. Manglu was ^ellant and his wife when they SP/FS/20'05-20,000 vj-cxi'rAiiA(icyEr,^-al'<i<l<B,Rirti<(iy'< HI^Sp^^W^ an^TWf^t^ ^^T3T^^TjcFqto V: 7..-^ 3lT^^iq^(^t^S) W^ 200 ?iRlTWWfNW^3T ^z-- were returning from the housei and consuming Uquor. Bulc^i Manglu. At that time Bulchu started assaulting Asadi Bai w|t ran away and Asadi Bai died ii^ on 11.11.1996 at 3,00 P.M. to| On recei\/ing report the first iriJJ •at Crime No. 52/1996 unde|: registration of the case, the Ij spot and after giving notice Bx.: Panchnama Ex. P.2 of the bod^ Post-mortem examination vide P.W. 10 conducted the post-3 and prepared report Ex, P.20. injuries on the body of the A$ there was compound fracture received injury on the lung als death was homicidal. She di< injury on the head and lung inju c|TT^^4^1^rtT^af^^^^ ^3?f^Rr3T^^T ^f Manglu after taking the dinner lu was ahead of his wife and rought stick from his house and ;h stick. On seeing this^ Manglu the night. Matter was reported Lhe police station Shankargarh. tbrmation Ex. P.8 was registered Section 302 I.P.C, After ivestigating Officer reached the 1 to the witnesses prepared the Thereafter body was sent for |etter Ex.P.ll, Dr. Pritam Ram mc^rtem on the body of Asadi Bai He noticed as many as nine ^di Bai. The Doctor found that ^n the head of Asadi Bai. She i|3. In his opinion the nature of ?|d on account of shock due to 17- SP/FS/2005-20,000 /( XI-HC-78 \jwc| <-<4iqio<4,tPTn<<-1<l<S,t6|rtW^<< +1MCTI ^^TT^ 3n^5Tq^(^fg6H5) ^200 3TI^?T<inf^;:<tcp ^TTSH^^T^WP <?^ ^' ^^TTWr "^rf^T 3TT^$T 3- 4. The learned Additional Set prosecution_ evidence and staj; OAftJL Cr.P.C./ After hearing the argun|ient appellant and the Public Prost appellant in the manner mentioijied 5. We have heard fhe leaijned appellai-it and Shri U.N.S.Deo oi-| 6. At the outset, learned co4nsel challenge the conviction recor|ded Section 182 8& 211 of the I.P.Ct. accused appellant also did not He simply argued that the fa<| accused-appellant assaulted Asc ^g^^Trtf^ qi^-pf'^J^^p^^^ wa|s in intoxication stage. There appellant to commit the murde| argued that the offence does not IIofthel.P.C. cpi<ifo<tl»i+ii^oV^'fcMSl \Fji^i<< ^3l^qrOT^$T ^sions Judge after recording the :ement under Section 313 of :s of counsel of the accused- ;cutor, convicted the accused- above. counsel for the accused- behalf of the State. accused/appellant did not by the trial Court under The learned.counsel for the argue on merits of the appeal. As of the case show that the 4-di Bai in the heat of passion ^ ^ between the'LWo^wd both were no intention of the accused- ^ of his own wife, therefore, he travel beyond section 304 Part- ^wT?2TRTRRT, yfl1^-t'<l<o, Rlowy1< *ij*twia?ITr^ 3T1^^T^TRri cTSn^^T^WP ^- 3^^T^SV (yii^'fi) 1^200 ^arw^rf^T 3T^t$T "^- 7. On the other hand, tl U.N.S.Deo while supporting ti argued that the manner in whi^ and caused as many as nine assaulted Asadi Bai with an int| 8. As far as involvement c concerned, from the evidence • Jhirgi Bai, it is evident that aft reached to the house of Bifni B. before her that he has assault( and provide water to her, on h spot. She saw the Asadi Bai Asadi Bai also informed Bifni assaulted her. The above corroborated by P.W. 2 Jhirgi accused made extrajydicial coi information from the accused, Bifni Bai was already standi] ^bt^fo^l^ HI^T^f^€t^Rn^ji^ ^^rf^ran^^T learned Govt. Advocate Mr. .e judgment of the lower Court •h the accused assaulted his wife njuries shows that the accused mtion to commit her murder. the accused in the offence is of P.W. 1 Bifni Bai and P.W.2, sr assaulting Asadi Bai, accused d, made extrajudicial confession d Asadi Bai and asked her to go ^aring this Bifni Bai reached the was lying in injured condition. |Bai that the accused-appellant 1/idence of Bifni Bai has been |ai. She has also stated that the, ^fession before her. On receiving ^he also reached the spot where |g. She further stated that the f. SP/FS/2005-20,000 \j-OT| <-A||<L|lc6^1, UTl1<(1''l<?, Rrtltl^ WlcCT^TT^ W^^T<PT R-li<b ^TTCT^^T^HFP IN»-^. W^^TlR^ (tjcl^6»<s) ^200 ?^ffaR^r^T3T^^T -s- deceased also made a dying d^c caused by the accused-appellaijil 9. In cross-examination of for the accused has not been a1 which makes the evidence of| Apart from that, P.W . 5 Mangli4 incident has stated that accus^d his house for taking dinner anc| Deepawali festival, after takin|g Balchu and his wife-Asadi B< accompanied them. He has' ahead of them. He and Asadj accused after reaching 1-us hoi started assaulting Asadi Bai, a|s injuries on head, Kand and le^ away from the place of occurrer| 10. Counsel for the accused cross-examination of this wi evidence of this witness doubtl ^i^i^ri^i^^T^ffex^\Ri^j!>< !|?3rf^Ti?IT^?T ^laration to her about the injury :hese two witnesses, the counsel »le to bring out any circumstance these two witnesses unreliable. who was an eye witness to the and his wife-Asadi Bai came to consuming liquor on account of dinner and consuming liquor, left for their house. He also itated that accused Balchu was Bg.i were following him. The ise came back with a stick and a result of which she received On seeing this attack, he ran |ce. [could not elicit aiiything in the jtness also which makes the 1iil and unreliable. Therefore, in SP/FS/2005-20,000 /" i.H. ^3wr^TraTo^T, y>"a1<(i<i<?, Rl«i<(iy< *<iHc»ia?Tr^ ^200 311^^7 cPTR^Jcb ^TWW^^T^Wp OT^^T q5PP(4^ij4<6;) g^rrw^rf^rw^^T ^^ <pi<4io4iTi *iiii^V^ffe<-£l<<RI^IK ^srf^TSI^OT view of the ocular evidence as 1jvell as dying declaration ofAsadi : of the accused in assaulting ifession made by accused before im P.W.10 who conducted the sadi Bai found as many as nine nd there was compound fracture that the death of Asadi Bai was Bai regarding the involvemen| Asadi Bai and extra judicial co| P.W.l and P.W.2. Dr.Pritamr post-mortem on the body of Aj injuries, 7th rib was fractured ^ on the head and he has opinec^ homicidal in nature. II. Now coming to the ai'gu|ments advanced by the leanied counsel for the appellant that the wife of the accused, both w' they consumed liquor at the 12. In this connection, if we the Apex Court in fhe matter 1996 (6) Supreme 609, the crop. The appellant, however iccused and deceased Asadi Bai, ^re in the stage of intoxication as icuse of Manglu. There was no intention ofthe accused for conjimitting murder of hie own wife. ook into the law as laid down by of Mahesh Vs. StateofM.P.. facts of the case were that the deceased: objected to the appell^nt not let his cattle damage the request of fhe deceased and i^isisted that he would graze the did not pay any heed to the SP/FS/2005-20,000 ^ ,F, ., 1 r i ^3x^'^IWI^^,tPt^^<l<?, RlrtW^ IPraiWTT^ 3n^^T<l5Tfert<^ ?Tm3n^$TaRra» ^n^ PIL— -<^ OT^?T qsiq* (yi^etcfi) ^200 B^TWr^f|cTOT^$T -4- cattle in that field and altercatlc and the accused. In that proc|< blow on the head of the decea^< which he died on the spot. ^ Court held that on the factsl accused during a sudden assaulted the deceased, Exception-4 to Section 300 of I. for commission of offence Similarly, in the matter of 8tat4 ion ensued between the deceased ?ss the appellant dealt a pharsa ?d Krishna Kumar as a revsult of pn these facts the Hon?ble Apex and in the circumstances, the |quarrel without premeditation ^ the offence will fall within |P.C. and accused was held guilty u^ider Section 304 part-I r.P.C. of Raiasthan Vs. Satyanarayana therefore reported in 1998 (1) Supremc was neighbour of Bhima. Bhoridevi wife of Bhimaand th of words between her and accused appellant assaulted also injured Ram Gopal and that time, Kesar Lal (deceased); house of accused and started he was quarrelling like that i cpl<4lclS<?IT1 +11^^T^ffa^l ^^jX ^3rf^T3II^<T Sclme 433, the accused Satyanaraya quarrel took place between accused. Tthere was exchange Sat^anarayana. In that process, the ^horidevi with an iron pipe. He went back to the house, By brother of Bhima, went near the qliestipning the accused as to why the mqrning. Thereupon the tlien Itl ^, SP/FS/2005-20,000 •^ i \JT7C| -r^W 1 C6^1, u'al^-'is, Rlrti^-i^ (^ HlH^iaPTT^ OT^^T^f^RftR ^snw^^TjpHro ^" ^. Wit^T 'CRPF (^ciI^CKs) W[,200 ?^ffW^rf^T3n^CT ^^ accused came out of his housel on the abdomen of Kesar Lal a^ came out and he died and tN facts, the Apex Court held tho.\ the blow on any vital part of R^ was aimed at Ram Gopal buf the stomach of Kesai' Lal," Tl^ appellant should have been coi] oftheI.RC. and not under Sectl 13, In fhe matter of Gendlal (1) M.P.L.J. 46, the Division ^e heldon facts that during the his wife, the accused dealt with bamboo-stick and account of the Court held that fhere w^.s intention to cause her death. 14. In the light of the above| facts and evidence of the preseitit to the incident who has simpr <hJ4(^41v1 Ht^^T^f'fe^ 1<Rix^j\ ^ai^H^^T with a knife and inflicted a blow a result of which his intestines accused ran away. On these "the respondent had not aimed m Gopal or Kesar Lal. The blow is he moved aside, it landed on erefore, the Court held that the ivicted under Section 304 Part-I .on 302 I.P.C. ^. State ofM.P. reported in 2003 ;nch of the M. P. High Court has Itercation between accused and some blows on her with two feet ixcessive bleeding she died and no motive, prior ill-will or. judgments, if we look into the case, P.W.5 is an eye witness stated that after taking dinner SP/FS/2005-20,000 ^SvSf ^AWW^, U-alwKo, R|C')1'<1^'< WTOT^TT^ 3n^^T<pTRVii<h ^sn^^T^w^ SIT^^T 'CR^ (4^lj<s|«£S) W^200 g^TTW^rf^ W^$T -°>- and consuming liquor at his and his wife-Asadi Bai left appellant was ahead of them Jollowing the accused, all of from his house and started ass{ has stated in cross-exaininall consumed liquor and they wei^ look into the last line of the| Inspector (Investigating Officer)| that the accused appellant »~LOct ^i iy^^s/-< F-ki o '^-fr-V^ - l^. /-^ ^..^v •T' compromising position. Mang nowhere stated that the accuseti plan. On the other hand, fromj when all the three were retut sudden brought a stick from his wife. All were in the stage the evidence of Investigating Matnu informed him that the <RI<4io41T1 ^I^^T^ffe^l ^RlX-CjX ^3rf^H3ff^^T ^esidence the accused appellant for their home. The accused ^nd Asadi Bai and Manglu were suc|den, the accusedbrought a lathi ^aulting Asadi Bai. This witness i|tion that since morning they in stage of intoxication. If we cross-examination of the Sub- Ithat the witness Matnu told him linformed Matnu that lic ii^s ^. he| saw his wife and Mangnu in a i^lu P.W.5 in his evidence has assaulted Asadi Bai with a pre- the evidence, it is apparent that |rning to house^ accused all of l^is house and started assaulting cjf intoxication and moreover from Oflficer, it has come on record that liccused informed Matnu that he SP/FS/2005-20,000 ^SET <"ywirt^, y>"n1'<i<i<?, RirtKi^ *li*ioi iF'TT^ 3n^^T?PTRRT<^ ^pn^^T^w^ VK ..- •v^ ^ snit^T'p^ (<ic*^qts) W^200 ^<TTW^if^^n^^T -)1>- chi4f^4lv(^i^0T ^f fe1^)' ^i^ji^ ^3rf^T3II^^T saw Asadi Bai and Manglu i|ii a compromising position. It appears from the facts, th^ accused while in stage of ' intoxication assaulted his wife premeditation and pre-plan, record which goes to show that in a heat of passion without any therefore, there is nothing on accused assaulted his wifewith pre-plan or pre-meditation or ^ith the intention to kill his wife. However, looking to the evidei^jce which can safely be inferred that the manner in which the | had a knowledge that assaulti]| may likely to cause death. Tl| down by the Apex Court in tt| iccused assaulted Asadi Bai, he ig Asadi Bai in such a manner ^erefore, in view of the law laid |ie above cited cases, we are of considered opinion that the pi^secution has not been able to establish the offence under Se^tion 302 I.P.C. However, on facts the offence ynder Section J 15. Similariy, in the matter of reported in 2004 SCC (Cri) 10 and circumstances of the cas] appellant for offence punishable! 04 Part II was made out, Mankeram V. Stat^of Haryana, ^, the Apex Court on the facts held that the convicticn of under Section 302 I.P.C.is not made out and it is converted tb Section 304 Pt.II I.P.C. The 1, SP/FS/2Q05-20,000 vjTyq ^<41<41c)<.|, yT^^-l^ 1<»,^<AW^. ^pTeff a?Tr^ 3:n^^T<RTf^Tf^ ^H3n^$T^:RTO 3TI^?TtpPI»(^<lij4<€S) ^200 5^ffW^T(%cT 3H^$T 1 .t-1 hife facts of that case were that residential part of the appellan| the appellant' was the inchar^e appellant came back from deceased, who was a Head Co( Outpost was standing outside) company of his nephew. On Suraj Mal for a drink in his appellant to his room leavinfe appellant and Suraj Mal wer^ 9.45 RM., nephew went into gef up so that they could have to this request, because of and abused the deceased id deceased objected, which pickihghis service reyolver fire^l him on the right side of the Thereafter the prosecution cas^ two of them grappled with e^: s^eing ro0m cpi<ilo<nvt +ir+i<i?V^fa<-<3 Kf^ix^x ^srf^tTan^OT |the incident took place at the ^s quarters in Sangatpura where of the police post. When the duty, he saw Suraj Mal, the t-18tablein the Sangatpura Police the quarter of appellan.t in the them, the appellant invited The deceased went with the nephew outside. While the drinking in his room: at about room and asked Suraj Mal to :heir dinner. Suraj Mal accepted L, the appellant got annoyed filthy langLiage to which the annoyed the appellant and two shorts at Suraj Mal, hitting |neck and left side of his thigh. further proceeds by stating that ;h pther and came outside the tbe which furtfher SP/FS/2005.20,000 vjxnc|-r<||<4|rtq,tPTll^<|<»,Rrtt'<1^ lTWOTa?^TT^ ^200 3Tlit^T<=RPP (4clfj4<g) -} 3n^^T<RT(^Tr^ n%?T3n^^T9?^TO -^' r u^ ^RiTW^rftcT 3H^$T ^l^ room. On the.se facts, the Cou| whether the action of the api| Suraj Mal would amount to n\ amounting to murder. The Cou| between the appellant and th^ and appellant posted at one invited the deceased to his rc^ accepted by the deceased and fcj room of the appellant and af t| the deceased came into the rooj sessions by asking his uncle t<| which was obviously not likej offended by the said interruptic] which was not to the liking against such abuses. The Coui| motive for killing the deceased ^ place in a sudden fight in the h^ whether the appellant did take| fight or acted in a:cruel or un^ /P^^^l ^i^^V^fe^l ^^j^ ^3lf^T3n^<T rt was required to consider that »ellant which caused death of urder or culpable homicide not rt held that there was no enmity deceased. Both the deceased Poli.ce post and the appellant 3m to have a drink which was oth of them were drinking in the hat point of time the nephew of Ti and interrupted their drinking get up andjoin him for dinner d by the appellant who being ai started abusing in a language of the deceased who protested t further held that there was no ind the incident in question took ^at of passion. The question was an undue advanfage of the said isual manner. Keeping in mind SP/FS/2005-20,000 ^ ^TE^^WW^, v>-a^x-i<ic, Rlrtiti^ HNc>ia?ITT^ ^200 OT^^Tq^ (>i<:ll^6<<8) OT^^T^RTRFrt<P cTssnaiT^^Taw^ -'^ S^TW^rf^TOT^^T ^.)3- the fact that both the appellaj considerable amount of alcohc! evidence of the doctor and the <bWlc641v1 ^»H0T^ffe<^^fa^Ji^ ^3lf^H 311^91 it and deceased had consumed |1 which is established from the ^ervice revolver being next to the place where the fight took pla^e and was not kept there by a planned act by the appellant, i|[: cannot be altogether ruled out that the shots were fired not ^ith an intention of taking any [ant. It isprobable that in an lant used the service revolver ween the two and the Court also .ly be found guilty of an offence U-tII. jase, it is admitted position that j^vere consuming liquor since ^nglu. As per the evidence of linformed him that accused saw Manglu^and his wife in a ^ the accused was in stage of |iind that his wife and Manglu fact must have infuriated that undue advantage by the appel^ ineUriated co2~idition the appe| because ofthe physical fight bet^ held that the appellant could o4 punishable under Section 304 P{ 16. Similarly, in the present 4 accused and deceased both morning at the residence of M^ Investigating Officer, Matnu disclosed to Matriu that once hel compromising position, therefor^ intoxication and having in his i-| are ftaxdng illicit relations. Thatl 1 ^ I SP/FS/2005-20,000, *ll«lCTl9?»TT^ VJT^IT^I^lri4, ^•a1^i4i<»,Rcow^ .c^:^,..^^./5^... ^200 3n^^T<(5TR^li<h clWW^^TPPW^ ^. / ^..-.-,- .A^w 3H^9T ^5W (^t3^[) ^mm^rf^Tw^^T -i^ accused in a heat passioi|i preparafion, accused all of sud4< and started assaultmg his wife of circumsfances, it can not be| his wife'wiffr the intention to prosecution has not been able t<] :302 of I.P.G. Instead thereof offit made out. 17. In the result, ^fe»s^»s fffe| is parfly allowed and accused| charge of 302 I.P.C, aiid insteal Section 304 Part I of the I.P.Gl yeai's Rigorous Imprisonment ar| payment of fine, he has to furt The accused appellant is entitl which he remained in police a: investigation and trial. The Section 182 and 211 of I.P.C. are Sd/" L.C. Bhadoo Judge <chl^fo41r1 ^I^T^fec<&^^"cj>< ^3Tf^T3H^^T without premeditation and ?n brought stick from his house Lsadi Bai as such on these facts inferred that accused assaulted ommit her murder. Therefore, establish offence under Section ;nce under Section 304 Pai't I is ifeg^ »<^ti^r?, the appeal appellant is acquitted of the 1 thereof he is convicted under andsentenced to undergo 10 id fine of Rs.500/-, in default of her undergo three months RJ. ?d for set-off for the period for |id judicial custody during the lonviction and sentence under maintaraed- Sd/- Dilip Raosaheb Deshmukh Judge SP/FS/2005-20,000 ^ ?a°<-