I H IIIIIIIII ll l Ill CF00000642 Cm 1'3) \‘77\9x: W (‘4 A!» PEAL OF PRISON“ R sr/I/o xx?” ....:o Name —'-Q°{/gQ/‘/ -m~--—— — - —-—- .L— -- 1er 73' name —?77f\6q;f§'g may/e77 W757 w/W &/@’~’71/ J‘ii/gL‘q/q/‘Q?’ by) 1 0erue — w -—- Age " ”‘$§clt§ "‘ " :emrd to "' gTIeCWoHaUb?" ’ "‘ "" " 0n ~ 12' gamma "' * ‘ ‘3aQ‘WF‘§'A9" " " ‘ " ’— ctlon " ~‘(5' 5wzi’w7 \ wry - -~ by %W§x%/271Wfw/J~Iui\ w, ¢xpla1ned to tne prlSoher that 1f he states he wishes to wsented by a lrcal practltloner the anpellate Cou t W111 oceed w1th the case for sevendays unless the leoal t oner appears earner. f the legal practltloner does not I hat he does my Wish to be renre tadb y legal nractltlom— e <ourt may proceed at once W th thc case and will notkbe . to gig/g a hearing to 'my legal practitioner who should app of’Applicatica for copy of Jud¢ementv€§—w7§ %mmy@~f ~ on whigh‘ cop-2' received~>~ - - -3§ ’g-ma' "" ‘ "" "" ‘33. sent—~"‘ ~ "‘ ~3/ %,Qmn_ .... .... -- Wlshes to be represlnted or no - - ~ - — %£u1 (gag 670 W/@¢¥W _ _ _ - u ll r _ _‘ _ " Jail WW3 (Wei/we] ? ”‘ " x on Whicl‘ : "’he’cher the e ~ Name Dated y-jw—yiQQfD—y .. ~... .. ‘ o a. fe =1: d With t0 the a ”ya/7 copy o‘ «9’ Judgement w)‘ ~1749y3~m or order u ,passeg WI w 1n errata: the case 7 ‘f-; a“ f txawmlsS1on v he proper Appellate Court. l 3 - i lagseemnw-w ~- -~—~—~—— Of f1 ct, ————————————————————.———————— wptmen recoT‘H to accompany ihe — — ~ ~ — -— —~ ~- --. ~— ’Pu’l9"7'?% 0f :JTJeal to the Appellate Court~ - -- - - ~- — -— V a - Date . .199 ————————— e~__...—r R\ rgseipt in Appellate Court —- - e -- i I r L ce a > z-‘ xL . i lll g m l . 3 HIGH COURT OF JUDICATURE AT BILA5?UR CHHATTISGARH Crimina! Appaal No.2317 of 2000 Reshamlal - Versus - Sfafz of Madhya Prndesh (now Chhaf‘risgar'h) JUDGMENT FOR CONSIDERATION Sdl— L.C.BHADOO Judge 29-11-2005 ¢ HON'BLE MR. JUSTICE DILIP R. DESHMUKH I Sdl— i; Dilip Raosaheb Deshmukh 3‘! Judge \ POST FOR JUD$MENT ON 80TH NOVEMBE§ 2005 Sdl- L.C.BHAO Judge W 2’4’I1A2005” 9 * DO Rhamial es VarStu - - - 6e Mr. Ravindra Agrawal, w The foiicwinq judgment of The Court was deiivered by LCT B/ma’oa, $ ~ 1. By fhis criminal appeal mder Sec‘h‘on 374 appellm'r hm quesfioned me legumy of judg dufed 22"“ August 2000, passed by The Add State of Madhya Pradcsh (now Chhmisgarh) For 1'he appellant m HON'BLE MR. DILIP R. DEsHMUKH JJ. (Delivered an § § & November, 2005) - \ (2) 6f 'i‘he Cr.P.C. fhe accused/ men? cf conviciion md senience i ‘ r‘ &IGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH Criminai AMI No.2317 of 2000 g?9 b) by The said axe on his lefT leg & lefT hand as a resulT of which his lefT leg was fracfured, and Reshamlal leff The place considering Sha‘l'r-ughan as dead. The said incidenf has been wiinessed by his sisfer Anifa. He immedia’l‘ely went to The Wllage Kofwar, informed obouf ‘rhe incidenf and wem' f0 Police Sfdion 1'0 $inform abouT The said incident On receiving This repor‘l', SfaTion In-charge Officer v.5. KerkeTTa (PW-15) regisTered The case under SecTion 307 of The I.P.C. vide F.I.R. (Ex.P-14) and during invesfigafion, he recorded me evidence of The wi‘rnesses. On 14-11-1996, 5.N. Paieria (PW-16), fhe Siafion House wficer, Police Station: Janjgir, Took imo possession The weapon of offence, axe, under EXP-1. On 15-11—1996 affer giving no‘rice 1'0 fhe Ponchos (EXP-6) prepged the Ponchanoma of 1he dead body of Shairughan (EXP-7) and sent The dead body of ShaTrughan To Primary HealTh CenTre, Janjgir under EXP-9 for p05? mor‘rem. 01 15-11-1996, he took into possession broken pieces of bone and also fhe weapon of offence Kudali, blood sfained soil ¢ well as the plain soil from the place of occurrence under EXP—3 and recorded The evidence of wifnesses. . AfTer compleTion of invesTigoTion, charge sheeT was filed in The CourT of Judicial Magis‘rrafe, Firs? Class, Janjgir, who in furn commiffed fhe case To The Sessions Judge, Bilospur, from where learned AddiTional Sessions Judge, Janjgir, received The c&e on Transfer. Learned AddiTional Sessions Judge framed The charge under SecTion 302 of The I.P.C., read over and explained To The accused/appellant The appellanT abjured The guilT and pleaded innocence. . The prosecuTion in order To prove The offence againsT The accused/appellmf (examined as many as 17 wiTnesses. On The oTher hand, learned AddiTional Sessions Judge recorded The sToTemenT of The accused under SecTion 313 of The Cr.P.C. in which The accused denied The prosecuTion evidence appearing againsT him qnd submiTTed ThaT he is innocenT, md he has been falsely implicaTed in The crime. Learned AddiTional Sessions Judge offer hearing The argumenTs of AddiTional Public ProsecuTor and counsel for The accused, and afTer perusal of The prosecuTion evidence convicTed and senTenced The accused/appellan‘l' under SecTion 302 of The I.P.C. 5. We have heard Mrs. Kiran Jain, learned counsel for 'rhe accused/appellam' and Mr. M.P.5. Bha'ria, Penal Lawyer wi‘rh Mr. Ruvindra Agrawal’ Panel Lawyer for fhe Sink/respondent 6. Learned counsel for The accused/appellanf did n01- dispufe about The na‘rure of dea‘lh of fhe deceased. Apar? from fha'r, from fhe evidence of eyewifness Sonjay Kumar (PW-3), who lodgedureporf in fhe Police Sfa‘l'ion: Rohi‘r Kumor (PW-5): Anifa (PW-7); Kum. Ul-‘ira (PW-11); and The evidence of Dr. HR. Dharwani (PW-8) To fhe effec‘l' fhaf he ‘conducl'ed posf-morfem on ‘rhe body of Sha‘l’rughan on 15-11-1996 and noficed as many as nine injuries our of which injury; Nos.1, 2, 3‘ & 4 were incised wounds on fhe head, and fha‘l' femporol, occipii'al & parie'ral bones were found frac‘iured, in his opinion, The injuries were sufficienT in The ordinary course of naTure To cause The deaTh, and were anTi-morTem in naTure and The deaTh of ShaTrughan was homicidal in naTure, iT sfands esTablished ThaT The naTure of The deaTh of ShaTrughan was homicidal. 7. As far as The involvemenT of The accused in commiTTing The murder of his son ShaTrughan is concerned, learned counsel for The accused/appellanf has noT dispuTed This facT also. However, she argued ThaT The accused assaulTécl The deceased wiThouT any premediTaTion or preplan, all of a sudden in a heaT of passion, as There was some dispute regarding land wiTh his son ShaTrughan who was noT giving share To his broTher. Therefore, learned counsel submiTTed ThaT The offence againsT The aocused/appellanT does noT Travel beyond SecTion 304 ParT—II of The I.P.C. and The accused has been wrongly convicTed under SecTion 302 of The I.P.C. On The oTher hand, learned Panel Lawyers supporTed The judgmenT of The Trial Court . Now, coming 'To The poinT of involvemenT of The accused/appellant in commiTTing The murder of ShaTrughan', Sonjay Kumar (PW-3), who is The son of The deceased and grand son of The accused/appellant was The eyewiTness. PW-3 has sTaTed in his evidence ThaT on The faTeful day in The morning, his \\ . faTher was working in The kiTchen garden, aT ThaT Time, The accused/appellmT picked up Kudali and ossaulTed on his faTher's head 2-4 Times, ThereafTer, he broughT w<e from The‘house and again assaulTed on The leg & hand of his \ \ \ \ k . oozing cu? of fhe injuries. On seeing This, The accused leff fhe scene of occurrence. Aparf from him (PW-3), his sis‘rers namely, Amifa (PW-7) & Kum. U'rfra (PW-11) had also ceen fhe incident Thereoffer, Sonjay Kumar (PW-3) wenf 1'0 inform fa 'ihe 5ccre+ary & Kofwar of ihe viliage from where he wem' fo lodge reporf in the Police Srafion and he lodged ‘rhe reporf EXP-4. 'lhis wilness hm sfa‘l'ed fhaf he was a1- hisvhouse c1- fhe fime of inciden‘r and he was faking meals, the place of occurrence was visible from fhe place where-he was fakingweals. The evidence of fhis wifness has been corroborafed by 'rhe evidence of‘PW—7 Amifa, sister of this wi‘i'ness, she has sfa‘ied fhat she was presen'r A in ‘i’he house af 1-he 'i'ime of incidenf and his grandfather ossaul‘l'ed his fafher wifh Kudali‘gnd fhereaffer wifh axe. Kum. Uf‘l‘ra (PW-11), ano‘l'her daughfer of The deceased, has also corroborated fhe above evidence. In cross-examinafion of fhese wifnesses, fhe defence counsel could no? elicif any facf, which makes fhe evidence of fhese wifnesses unfrusfworfhy or unreliable. Moreover, fhese wifnesses are so closely rela'ied To fhe accused also and fhere was no occasion for fhese wifnesses fo implicafe fheir grondfafher in a false case. I ‘ 10. Moreover, Lakhanlal (PW-4) has sfafed in his evidence fhaf 1‘here was some dispufe regarding parfi'i-ion befween deceased Shairughon and his brofher Chafur. Chafur used fo work wifh Lakhanlal and live of his house. On fhe fafeful day a‘i ebouf 6 p.m. when he returned from his field accused Red'iamlal came 'i'o his house and informed the? he has assaulfed his son and going 1‘0 fhe Police Sfa‘iion. Therefore, from 'i'he above facf if has been esfablished fhaf fhe accused himself made oral extra judicial confession before PW-4 and in fhe cross-examinafion nofhing has been broughf ouf which makes 1'he evidence of this wifness unfrusfwor‘rhy. He is an independenf wifness and fhere was no occasion for him fo’ depose agains'i keshamlal fo implicafe him in fhe false cgse. Therefore, this extra judicial confession also corroborates the evidence of the eyewitnesses. \ 11. From the medical evidence also the evidence of the eyewitnesses stands corroborared because Dr. HR Dharwani (PW-8) has stated in his evidence That he conducted the post-mortem on the body of Shatrughan on 15-11-1995 \l l? \ y r _~. \ \ \ \ i @ and he na‘riced as many as nine injuries which were 6n fhe head, hand ax leg and These injuries were in fhe nai'ur'e of incised wounds and crush injury. He has fur‘rher simed fha'r he prepwed the posT-mor‘rem repor'r Ex.P-10 and fhe injuries which were found on fhe body of ‘rhe deceased couid be caused by fhe weapons of offence i.e. axe 6i Kudali which were recovered :from The accused and from the place of occurrence. Therefore, fhere is article evidence on record, which connects 1'he accused wifh fhe murder of Shairughm. In fhe circumstances, we do no? find anyvsubs‘l'ance in The appeal as for as The question of accused being auThor of The crime and To ThaT exTenT, The finding of The Trial CounT is based on legal and reliable evidence. 12. Now, eoming To The argumenT of learned counsel for The accused/appellanT ThaT looking To The“ facTs and circumsTances of The case, The offence againsT The accused/appellanf does noT Travel beyond SecTion 304 ParT-II of The I.P.C., in order To aTTracT ExcepTion 4 To SecTion 300 of The I.P.C. iT has To be seen wheTher looking To The evidence of The prosecuTion iT can be held ThaT The accused/appellanT commiTTed The murder wiThouT premediTaTion in a sudden fighT in The heaT of passion upon a sudden quarrel and wiThouT offender’s having Taken undue advantage or acTed in a cruel or unusual mmner. Before reaching To The conclusion ThaT The case of The accused/appellanT is covered under Excep'l'ion 4 To SecTion 300 of The I.P.C. iT has To be seen ThaT (i) The murder was commiTTed wiThouT premediTaTion in a sudden fighT: (ii) in The heaT of passion upon a sudden quarrel: and (iii) wiThouT The offender's having Taken undue advonTage or acTed in a cruel or unusual manner. 13. Perusal of The evidence of The eyewiTnesses namely, Sanjay Kuma‘ (PW-3), AmiTa (PW-7) «5x Kum. UTTra (PW-11) reveals ThaT in The firsT insTance The accused/appellanT wiThouT any reason or rhyme, picked up The Kudali and aTTacked his so’n ShaTrughan on his head 2-3 Times as a resulT of which, as per The medical evidence, The deceased received (i) one incised wound: 1.5" x 71;“ x -i-“ on righT supra orbiTal region; (ii) laceraTed wound: 4" x 1" x skin deep on righT Temporal region; (iii) laceraTed wound: 2" x %" x skin deep on occipiTol parieTal region; (iv) laceraTed wound: 4” x 1" x skin deep on lefT side of occipiTal region 2" below The occipiTal parieTal joinT; “is \ (v) incised wound: 1.5” x g x —§—" on righf forearm; (vi) mclsed wound 6" x 1" x an Ief'r forearm; (vii) incised wound: 3" x 1“ x i— situai‘ed 1" above mJur'y N01 to 6 on The righf forearm; (viii) incised wound: 4" x 1" x 1" sifuafed 2" above injury No.7 on fhe righf forearm; v Temporal, accipifai and pariefal bones were found fractured. ‘ \ Th‘ér‘eaffer, fhe accused again hroughf we from his house and assaulfed fhe deceased wi‘rh‘fhe axe on his lef‘l’ ieg & hand as a resuH‘ of which 1’he deceased received crush injury of The size of 6” x 4" x bone deep si‘l'ua‘i'ed on middle of Ief‘l‘ leg: Tibia and fibula were fracfured and exposed externally’ 14. The infen‘rion of fhe accused can be gathered from fhe nafure of injuries he ' caused, ‘rhe weapons of offence he used and ihe par'r of fhe body where he caused The injuries. In fhe firs‘r instance, fhe accused affacked fhe deceased on his head wifh an iron Kudali as a resulf of which fhe head bones were fracfured The accused did no‘r s‘rop ‘ihere he went info his house broughf an axe and again assaulfed fhe deceased on his lefi’ leg as a resulf of which fhe bones were fractured. The above conduci' of the accused, nai-ure of Injuries and weapons of offence used show fhaf fhe accused was merciless while assaulfing his son and he assaulfed wifh deadly weapons. In order fo ensure fho‘r deafh is caused, ‘rhe accused broughf axe from his house and .assaulfed again. Therefore, in the above facts, fhere is nofhing on record in cross— examina‘l'ion of The eyewii‘nesses fhaf fhe accused assaulted all of a sudden in a hea‘r of passion and wifhouf faking undue advantage in cruel or casual manner. In fact,_wifhout any instigation from fhe deceased the accused assaulted him in a cruel manner while he was working in the kitchen garden. Nothing has come in cross-examination of the witnesses that the deceased in any way instigated the accused. 15. Therefore, we are of the considered opinion that based on the nature of injuries and the prosecution case, it is difficult to accept the argument advanced by learned counsel for the accused/appellant. Judgment of the Apex Court in the matter of Shammgom alias Kulondaivelu v. state of 1 u G5 \x l Tami! Nodu reported in 2003 Cri.L.J. 418 (Suprcme Cour-f) is of no help +0 the accused] appeHanf because in fhaT case fhe Apex Count reached fo The conciusion fha‘r fhe incident sfnrfed on a pei'iy quarrel which sparked off by ihe admoni‘i'ion given by The deceased for his alleged misbehaviour in whisi-Iing and 'aii of a sudden, he eniered his house, picked up the weapon and «Hacked and infiicfed injuries on The deceased, whereas, fac‘i's of fhe presenf case are emirely different 16. In .giew of the above discussion, we ore of fhe considered opinion ‘i‘haf fhe finding of ‘ihe trial Couri- ‘lhm‘ The accused/appellant commii'fed the offence of murder is bmed on legal evidence, which does no? require in'l‘erference by A This Court ¢ 17. In fhe result we do no‘l find any merif in lhis appeal, same is liable lo be dismissed and it is hereby dismissed. ‘ Soma w — {’t'ry‘ R“: i‘ Sdi- Sdl- l ‘” L.C.BHADOO Judge Dilip Raosaheb Deshmukh Judge