•y,> ^ IB TBE sssa eomT OF jiiBic&i®agAT : jaB&LHja. CBISmAL &? APPB&L MO._\3^A__71999. APPaL&MT :- j'/V' 3~/ <- .^ -^" ^^^-T ;.9-c"t:"^.A< kf.S* 'A^^ BALSAY,S/o IfaarakbaB Kei-va, aged about 35 years, K/e ^lllage Khotapani, P.S.&aHkuifiiBistt. Jasta.gur-Hagar, (TBBO@@H LES&L AIB) -VEBSOS- Siate of M.P., tbroBgta P.S. ^Ktaakan, Bis-fct. Jasbpur Sagdr( SPOBB.EH'I'i- CSIBIH&L APP^L 0NBB& SBCTIGS 374C2) QF 'I'BE_^RtPt©, -^' i11" l.e ~-«.^.^t^: 1 \ M l1.!!' *^FS"aL*'-caRB Xl-HC-78 H1ff?IT ai<1lch 3^ '^WKri^, aTflyiti, fa)c)lti^< ^,<^.((h^.Ud^13AD—- 3TI^?T 4ac»>(yd^siqiT) tn^Twfs^w OTT3iraTsbH ?:RITSK lrf?ff STI^T DIVISION BENCH: - HON'BLE MR. L.C, BHADOO ANS HON'BLE MR. DHIRENDRA MISHRA, JJ. This appeal is directed agair] sentence dated 22-3-99 pas^ q>l<lfrt<fl-lKIHClT^'te^<Rl+AH ^; SlRpT Sn^T 4-12-2006 Mr. P.K.C. Tiwari, Sr. Advodate with Mr. Rakesh Thakur, Advocate for the appellant. Mr. U.N.S. Deo, Additional F|ubiic Prosecutor forthe State/respondent. Oraljudgment dictated on D^is. PER L.C. BHADOO. J. st the judgment of conviction and order of ed by Additional Sessions Judge, Jashpurnagar, in S.T. No.211/98 Mv|iereby learned Additional Sessions Judge after holding the accused/appetlaitt guilty for commission of offsnce under Section 302 ofthe t.P.C. for commi|tting murder of Suni Bai, sentenced him to undergo imprisonment tor life & tjo pay a fine of Rs.2,000/-, in default of payment of flne to further undergo ^.1. for 5 years. Case of the prosecution, in t^rief, is that FW-IGansuram Korwa, son of the deceased, lodged a report Ex.{P/1 in Police Staition Kurkari to the effect that his father died 2 years bacl^ , therefore, his mofher Suni Bai started residing with accused Balsai as hi4 wife. Yesterday i.e. on 5-11-98 when he was sleeping at his house at aboi^t 5 p.m., his aunt Lali Bai Korwa came to his house and informed him that B^lsai has committed murder ofyour mother Suni Bai by attacking witti a LaW\ hearing this, he along with his aun1) Sudhani Bai wentto the place and] ii. The body is tying in the house. On Lali Bai Korwa and maternal grandmother ^saw that body was lying there. As Kotwar P.T.O. -r1 \ y- XI-HC-78 HTH^TT SfiWcft 3:5T ^MWt{, WT^U'W, (s|flltiy,< ^^.. .G^.(. ft-. .V'3^.1/./ 200 an^?Tira^? (^ig^Er) 3TI^T?iTf?^N) craTsn^TstiiIeh »T ^Rirerc <rf?cf sn^r '~r^' was not available yesterctay night, report. Receiving this report, Stati| under Section 302 of the I.P.C., lefl inquest Ex.-P/2 on the body of Su| +llfc)''fl4 iflTRTtA' te^f^R-K ^sff^fTsn^r fnereTore, toaay ne nas come to loage the [an House Officer registered the offence for the scene of occurrence and prepared >i Bai. During investigation, the accused gave memorandum Ex.-P/3, in pui^uance of that, Lathi, weapon of offence, was seized under Ex.-P/4. The fpody of deceased Suni Bai was sent to Primary Heaith Centre, Kunkuri f^r postmortem examination where Dr. S. Toppo (FW-5) conducted postmorflem and prepared postmortem report Ex.- P/5. He opined that cause of deatti is haemorrhagic shock due to traumatic rupture of spleen. The nature of d^ath is homicidal. After completion of investig^tion, charge sheet was filed in the Court of Chief Judicial Magistrate, Jashp|urnagar, who in turn, committed the case rom where learned Additional Sessions ' for trial. 7 witnesses in order to establish the to the Sessions Judge, Raigarh Judge received the case on transfe^ The prosecution examined| charge against the accused. Stat^ment of the accused was recorded under 1 he denied material appearing against him in the prosecution evidence, plea^ied innocence. He has also stated that Suni Bai was suffering from disea|se, she was taking treatment, when she was not completely cured, she ca|me back to his house and he has been falsely implicated in the crime. Leamed Additional Session^ Judge after hearing respective counsel for the parties, convicted and sentehced the accused as aforementioned. We have heard learned couitsel for the partjes. P.T.O. XI-HC-78 HIHWl Sb*1|ch ^sr '^i*iid'ii, ®Tny'i<s,(s|i'fiyy,<. ^...^.^.-.).^j.|^200 c^r^ -^'"~\ ® •sn^?r M^ch (^cit^qqiir) • S]^TSiiTR-fi+ (TSITSlR5Tsh1|ch ?Rnw;Hf?cr3T^?T Mr. Tiwari, has notdisputec< that, PW-5 Dr. S. Toppo, who deceased Suni Bai, has stated tha|t the size of 2%" x 1", below that inji|iry x 1 cm.x1 cm. There was injury the stomach in the size of 2" x 1". and rupture of spleen. His r^| corroborated by the evidence of crime in question. Therefore, it ii was homicidal in nature. PtW As far as involvement of th4 concemed, PW-3 Sukri Bai Korw^ and accused Bal Sai is also knowrj Court at about 4 p.m. she was came to her house to consume his agricultural fietd. As there wa^ Bai on the previous day on the] agriculturat field, therefore, the going to the residence. He assault|i on stomach. She intervened, therji account of the injuries sustained In cross-examination, she has consuming Handiya (intoxicant). b^ Learned counsel for the of para-3 of her evidence, this ^pifeNt-r mR?fr ff tec3'^n?R ^3iRriT3Ti^?r homicidal death of Suni Bai. Apart from ponducted postmortem on the body of there was a bluish injury below chest in spleen was ruptured in the size of 1%" ?n occipital region. Another injury was on Suni Bai died on account of haemorrhage iport is Ex.-P/S. Medical evidence is W-3 Sukri Bai Korwa, who witnessed the established that death of the deceased con^uming f-iafidiya accused/appellant in crime in question is has stated that Suni Bai was her niece to her. 4 months prior to her evidence in Handiya (intoxicant), Suni Bai also i, at that time, the accused came from some quarrel between Bal Sai and Suni ground that Suni Bai had not gone to asked Suni Bai as to why she is not ed with a club twice on her head and once efore, the accused left for his house. On Suni Bai, she succumbed to the injuries. that she and Suni Bai, both were acdused slated ac4used/appellant argued that in the last line 'jvitness has stated that after consuming I",1I'"\ P.T.O. ^ XI-HC-78 ^wv\\ Sb*l|ch 3%r -<<i<iici<i4, s'tfly'is, fsic)iy>{< »* »<t^-4* * i/*.^ »*f*~^-^^'»'iff ^ 200 3TI^?TlT3q? (^cli^clt^r) ,3?7^rqirf^TRi' aw3T[^TOTra gTcrrwffii'g'sn^r Handiya (intoxicant) she went tor si it can be inferred that this witness h In examination-in-chief, this witnessed the incident when the club. In cross-examination, ev< consumption of Handiya (intoxican|t) stated that she went for sleep ev^ witnessed the incident. Therefor^, argument advanced by leamec) Moreover, evidence of this eyewf! evidence of PW-5 Dr. S. Toppo. appellant in the crime in question i( examination of the evidence of PW-13 ^/itness has categorically stated that she tccused assaulted the deceased with a |n though she has stated that after she went for sleep, but she has not in before the incident and she had not j, we do not find any substance in the counsel for the accused/appellant. [itness is corroboratetf by the medical [Therefore, involvement of the accused/ ^ established. There is nothing in cross- 13 to discredit her evidence. Mr. Tiwari argued that as p| from disease. As per the eviden) spleen can be enlarged, Suni Bai spleen was enlarged, the accused ^ and he assaulted, therefore, the 4 punishable under Section302 ofth^ On the other hand, leart supported the judgment of the trial ^ In order to appreciate the we have scrutinized the evidence. that Suni Bai was suffering from weak. PW-5 Dr.S. Toppo has statf enlarged, even on fall, same can WlfeF'ft^ ITTERfr'tf fecA (f^RTC ^stf^q-sn^r ep. Therefore, from the abuve evitleiice, d not witnessed the crime in question. er the evidence, Suni Bai was suffering ;e of Dr. Toppo, on accouht of lyialaria was suffering from fever , therefore, her /as not knowing ttiat spleen was enlarged ccused cannot be convicted for offence IPC. led counsei for the State/respondent ;ourt. aifgument advanced by respective counsel, It has come in the prosecution evidence ftver and on account of disease she was id that on account of fever, spleen can be )e ruptured. PW-3 Sukri Bai Korwa has P.T.O. \ "S'3 /I XI-HC-78 3^ -^WW^, ^rfkpi'S, .RldlU <<TH^irsft*^|ch I, »TllU'l6,,Wrtl«3< ^•...(t3».«/./..^ts.*<^y.y^q.^QQ sn^TTg'gT ('^orf^'^eT) ail^r ?>T few •T-__^_ gqr an^r giTR; Barve ^,,^ ^^ f^ 7<€ sraTWHfN'sn^T ^~- srie thle stated that on the fateful day Handiya (intoxicant), at that time, as to why she is not going to the quarrel between the accused anijl deceased had not gone to the agrit assaulted the deceased with club the deceased was ruptured, circumstances, it cannot be said with intention to cause her death. it can safely be inferred that when ciub he had a knowledge that by a^ her death. Therefore, offence Section 304 Part-11 ofthe I.P.C. and tne aeceasea were consuming accused came and asked the deceased r^sidence. On the previous day, there was the deceased for the reason that the i{;ultural field, in that process, the accused t|hat landed on the stomach and spleen of proved fatal and she died. In the the accused assaulted the deceased put from the evidence available on record, Khe accused assaulted the deceased with ssautting with club, he may likely to cause ag^inst the accused does not travel beyond th* that In the result, the appeal p^r imposed upon the accused/appellEJnt aside, instead thereof, he is conviclted and sentenced to undergo R.l. for detention since 7-11-98 thereby h^ is, therefore, directed that if the then he be set at liberty forthwith. Sd/- L.C.BHADOO Judge wifa^rwraf ^' W' <Ri+<ii< ^;3rf^q'3n^?r rtly succeeds. Conviction and sentence under Section 302 of the I.P.C. are set under Section 304 Part-11 ofthe I.P.C. years. It is stated that the accused is in has already completed the sentence. It is not required in any other case, atcused P.T.O. tl' \ t»**-W»W»f'