,3^r Tin-m'iW W^^I ut?"flj ^T-f?3qTTT G^t-igT, EFTFT 3nti'T ^07 3^"/2000 1^IFT"f 3?ff'tir 3T^!?i OTTTi J/4 y^ tSy i/';iT ??TEDl OT17TIT 3Tmi5T 'sTJ- HtWffi n'W"- 57 5!:t fTcTFTi-- gf7TCq~ :: ^ [-(.f{- yr^-r ?n-fT. qgrr -&T?TT '•^Tn?f i-fTT':lT'"i '. islris" vHJVU •, •,;<fl y ryyi •• TTT'-.-S?? E!"(ly-?-.-' i--v,^ ^s -^^, ^ 'l -. Ti ?3?"'.'3yT^ U ^. a-^TU ''3J"U 3Titi E^ •5T7T5TC- ?§ i^- gun-T ^?B"H' '^•''S'" I^J"',TS?T'~^- . '~Ts'e:~A'r~i'...". "7S3''.-B "T 'i?u ;^' :^i •^^^J s» j^'y^'s^^ ;'!td "^ ^f-T T?T 6 -^Ts 4^r 31'^itl"7^"?^ Tn'EJTT'r! •?TTT?^T?F i 3iEttpTTrff iTi-^i^T'T -^rrm'n" l' s TT^ ?'"- c-ig-zm' XI-HC-22 3-^^PTRW, 6rhW[<a, f^THiy 31l<tyi Msrqi IINCTI ShlTqi •m^TCTaraTHf^r iDivisioa Bench: fg^ .C.^.-n;n.q.]..-A.'gg^^^ • 2-°~?2/2?Z?a f^%" 200 •W^T^iT f^raian^T OTT^fff?? ?5prfrFfrTWRft'^fei<fl <RtWK ^sri^Tsn^r tton'ble Shri Justice L.C.Bhado (ion'ble SIui Justice V.K. Slu-i 35/J,0/20Q6 U.K.S Chandel, Panel Lawyer for Suit, Uma Tiwari, couasel ^>r fhe appeUaiit. Shri G.D. Vaswaiu,Addittoaal Public Prosecutor with Shri theState. Oral judgment dictated oa pats. PBR L.C. BHADOO. J. This appcal is directed a^ainst fhe judgiaent of conviction aad order of sentence datedf 26/06/2000 passed by IInd Additional Sessions Judge, Mi Iiasamuiid, in Sessions Trial No, 321/99 whereby leamed Addi^pnal Sessions Judge after holdias the accused/appeUant gtully foi| commissioii ofthe ofience under Section 302 ofthe IPC, for co4imittuig murder ofHeeramaa and Sonaibai, sentenced hini to un4ergQ imprisoument for life aiid to pay a fine of Rs.10,000/-, in de 'ault of payment of fine to fiirfher zmdergo S.I. for six months. The case ofthe prosecuti^n, ia brief, is fhat ou 25/06/1999 when the accused was retumitjg froni his agricultural field, Deea Bandhu, Heeramaa aud Sonai pai were staadiug in front of their house holding lathis iu their Vishnu wifh lathi on his hea^ injuiy on fhe head, thereafter a^ Deen Bandhu. When Deen Bj ^ Ihaads. Deen Baudhu assaulted as a result ofwhich lie sustained fccused snatehed the said lafhi from kndhu eatered his house, accused (<fl^ys^) ^ -J / ."—->:, (^) XI-HC-22 <w r<(|oidq, sxfftms, teiray sn^rw f^iraan^r awR?a1N 311^1 IR^> »WctlshKI* V^ 200 sn^TgWTW^a f^^ -^ qipifer'frT wRff ff tec& (i3fCTt ^ari^tTsn^r assaulted Heerainan and Sonai|Bsii with said lafhi, as a result of which Heeramaa feU down, there|after accused attacked 4-5 tnnes wifh axe on the neck ofHeeram^n, as a result ofwhich he died on \Qie spot. Accused also attacke^ Sonai Bai wifh the same axe on [lier neck as a rcsult ofwhich shejalso died on the spot. Thereafter, icciised mfonned viflage Kotwai &akharam atoout fhe iacideat that ic has murdered his sisteraad Ibrother-m-law namelv Sonai Bai nd Heeramaa, at that time, ac^used was canyiag blood staiaed ce with him and there was blocfd on tiis clothes. ViUage Kotwar Sakha Ram informed fhe viUage I^axichas Asharam, Gyaa Das aad )fhers. They went to fhe place i^f occun-ence, saw the bodies of [eeramaii and Sonai Bai aad alsc| saw the injuries present on fheir lodies. Paachas asked the accilised to faand over the weaoon of (ffence (axe) to vfflage Kotwar Salpia Ram, on which accused gave axe to Kotwar. The matter w^s reported in the Police Station: (aghbahara by PW/1 Sakha Rair(- Merg mtimation No.23 of99 •garding death of Heeramaa aa<^ merg mtunation No. 24 of 99 igapding death of Sonai Bai we^~e given in the Police Station ^hbahara on which first iBformation report (Ex.P/2) for >miidssion ofoffence under Sectictn 302 offhe IPC was registered. ic Investigating Officer P.P.Sic|gh (PW/13) seized the btood icd axe, weapon of offence UB|der Ex.P/4 aiid also seized the btood stained clothes of fhe restigating Of&cer preparcd sii uijider Ex. P/6. Site plan ofplaee accused iinder Ex.P/5. The plaa of place of occun-ence tfoccun-ence (Ex.P/7) was also cfl^y^) XI-HC-22 3^'^rpncPT, aTfl'M'iis, faciiyy 3l 1^1 45l<h H11MI Shllch ••••••••••••••••••••• ^- 200 Rl^ •••••••••• Sn^T^iT R-li+3TI^T St)t| (rf?(T sn^r WtiTW (rfN' -3- <tii<iF<t<11-f iTra5Tt' ^' fs^S <Ri«i< ^3T|^IT3I1^T iaq^est shbahfcra prepared by Patwari. The bloc|d clothes of fhe accused were P/9 froxn the place of occurrenc^ fhe body of Heerain.an and iaq^es Sonai Bai were prepared by fh.e| Heerainan was sent for p^) Govemineut Hospital, Baghbah^ra Mishra (PW/16) conducted the of Heeraiaaa was as a result of over the neck and it was homicit Bai was sent for postatiortem| Hospital, Baghbahara under (PW/16) conducted the Sonai Bai was as a result ofl sustamed over the neck and it articles were sent for cheinicall Laboiatoiy, Raipur under Ex/ was received. The papers relatujig Ex.P/22, P/23, P/24 and P/25| Investigating Officer. After coiupletion of fhe i4ve in the Court of Chief Judicial tum coniiaitted fhe case to where he received the case for trlal staiaed soil and blood stained cejn iato possession under Ex.P/8 &. ;. The iaquest report (Ex.P/ 10) of report (Ex.P/11) offhe body of Investieating Officer. The bodv of astiuortein examuiation to the under Ex.P/16 where Dr. C..S. ^pstiaortem aad opiaed fhat death shock due to iajuries sustafaied )lal in nature. The bodv of Sonai examiiiation to fhe Govemment ix.P/lS where Dr. C.S. Mishi-a and opiaed that deafh of shock (syncope) due to iajuries hoiuicidal ia nature. The seized examiQation to Forensic Science Iroiu where report (Ex.P/21) tujig to 5 years Khasra of laiid |were taken iuto possession by tiie i4vestigation, charge-sheet was filed [Magistrate, Mahasamund, who in fjie Sessions Judge, Raipiu-, froia postin|3rtem VtSiS 11/20 (tft^^f^) te' XI-HC-22 3^ •<<I<<IM<<, »Tfl^lie,i^<fli«y 311^5*1 Ma<t> HI*4CTI Sh*l|ch ••••••••••••••••••••• ^pj- 200 sn^rw R-ii+snSsr sbH gfia' ShH an^r CTarep; flfiff •^- '»iN?i-i4)-iwraf ^' fs^S TfsiTzre ^; 3t^[IT 3tI^T The prosecution in 014' accused exaiaiiied sixteen was recoxded under Section 3| the niaterial appearing agam^ aad stated tiiat he is innocenlt tn. ftie cnme. Learaed Sessions Judi' Additional Public Prosed^ accused/appeBant, convicte^ inentioned in para one of ffais Learaed coiuisel for faomicidal deafh of Heeramaal per fhe evidence of eyewita^5 stated fhat accused Vishnu. : mother Sonai Bai, as also the wbo conducted postmortein Bai, has stated that there weif Heeramaa aad he dled on. a< deafh. was homicidal. He postmorteia on fhe body of] wounds on the neckofSonai] tnjuries on the neck and deafl^ ocular aad niedical evidencf Heeraiuaa and Sonai Bai was :r to establish the cbai^e against wiltnesses. Stateiuent of fhe accused 113 oftiie Cr.P.C. in which he denied ?t hJTTi in. fhe prosecution evidence and he has been falsely iaiplicated after hearing ttie arguinents ol' utor and counsel for the and sentenced the accused as udgment. appeUant has not disputed fhe and Sonai Bai. Apart from that, as Deen Baadhu (PW/2) who 5ias .ssaulted his fafher Heerainan aud ;videuceofPW/l6 Dr. C.S. Misbi-a, the bodies of Heerainaa and Sonai five iacised wounds oa the neck of pcount of injuries on fh.e aeck aad fiirfh.er stated that he conducted Sonai Bai, there were five incised Bai and she died on accoiuit of th.e was hoiuicidal. In view offhe above ;, it is established that death of tiomicidal ia uature. ttte 4SS oa hte (tfl^y^) 2 XI-HC-22 3FS? ^[TO?R, yTnu'l?, RtMluy 3TT^?r'CRrE|7 *<I*<CTI snixn ••••••••••••••••••••• ^i^ 200 f^^:" STI^T^iT (^iwsn^r stiM'iti nfer SII^IOTdTWgftd -<~> +liltct41.1 WQf if tSfS <.Rl^K ^TSi^iran^r As far as involvement of the crime in question is conce^ned accused/appellant argued that t|h.e persoas iu hs right of private from agricultural field and pas^ia; the housc of the deceased persdns, their house holding latfais in assaulted hua with lafhi on bi snatehed the lathi froiu Deen) Heerainaii aad Sonai Bai, fheref<|) right of private defence, a^ accused/appeUant does not travi^] IPC. On the ofher haud, Shri] Prosecutor supported fhe judgm^a the accused in coiainissiou of the learaed counsel for fhe accused attacked tiie deceased Idefence, When. he was retumiiis through fhe street in front of )ns, they were standing iii front of haads. Wben Deeii Bandhu |ls head, be sustaiaed iajury, he Baadhu aad thereafter attacked )re, ttlis is acase ofexceeding the such offence agaiust tlie 1:1 beyond Section 304 Part II oftbe G.D. Vaswani, Additioaal Public intofthe trial Coiirt. cctiinsel Haviug heard leamed perused fhe evidence availabl^ accused/appeBaut rests on fh4 Baadhu, extra judicial confessj PW/1 Sakha Ram, PW/3 S4 Oaneshram., also the circumstajitial the accused were found staiaed the offence, which he handed ovj possession by fhe Investigating for fhe parties, we have on record. Conviction. of fhe ocular eviden.cc of PW/2 Deen ton niade by fhe accused before ^idram, PW/4 Prem aad PW/5 evidence that fhe clotties of twith blood aud fhe axe, weapon of ;r tp village Kotwar was taken into Officer was also staiiied wifh. blood. (tft^^f^) ^ XI-HC-22 3;i?3(Rncra', 81Tflu'l<p,is|<110y Sll^t Mtiq» *iiini ihiitn ••••••••••••••••••••• g^- 200 RM"""""""" sn^T^ir fewan^r sh>il=h(ri^r sR-IRi qil'ilfa'fl't HIHflT^'tel^t <R|WK ^isrf^iTsn^T PW/2 Deen Bandhu, who i^ stated that on the fateful dat his residence, at that tune, as a result of which his intervened, he pushed her fhereafter attacked bis mothfc Tiim. The accused/appeUaati he sustaiaed iajuries on fhe was dispute regardias the accused. The above has been corroborated by accused before vfllaee fhat on fhe fateful dav when to his house aad niformed liiin (Sonai Bai} and brother-iu-l^ from his head, on wbich he to fhe place of occurreace, ac^ axe which was hauded over matter was reported by him PW/3 Sadram who has als^ made extra judicial confessi{)n accused was carrying blood) clofhes of fhe accused were evidcnce of PW/4 Prcin aad| made extra judicial confessiijin aitcused iteck. partiqon ociUar v' e^tra Kotnbr tie son of the deceased persona, bas at the tune ofincident, he was at came and assaulted his fafher fattier feU down. When his mofher ^s a result of which she feU down, 'r with axe which was witnessed by lalso attacked his fafher wifh axe aiid He has further stated fliat there of laad betweea his parents and evidence of PW/2 Deen Baiidhu judieial confession miade by the PW/1 Sakharani, who has stated was at his residence accused came Ijiim that he has murdered bis sister 4w(Heeramau). The blood was ooziag Informed the Panchas and took fheai fc ;used/appeUaat also came there wifh A.—f him on askiag by Paiichas.sSS^he to PoUce. SimUar is fhe evidence of ? stated fhat tbe accused/appeBant 5n before fhem and has stated fhat staiaed axe in his hands aud £he stained wifh blood. Siinilar is the PW/5 Ganeshram. fhat the accused before tliem. AU tliese witnesses (tf^^f^r) '^ XI-HC-22 3^5(PfRPT, tSTllw'16, RdK-iy 3Tt^T qiC=b HTR?(T WiflW ^ 200 ^v's. an^iqil 1^TNi3TI^I gmTOgfOT .*w(<'l<fl'f KIKflTfttetA<fa^;K ^3l1^riT3t1^T sd/app^Uant accilse t&e df are independent witaesses an^l to iuiplicate the accused/app^lj confession niade by the was voluntaiy aiid true, as ocular evidence of PW/2 Dee) clofhes of fbe accused were s1 fhe axe, weapon of fhe offeace) occurrence where they saw tl(t< Bai. Therefore, involvement in question is established. Now, coiniag to (he qi( ord.er to exercise fh.e right o^ accused, as titie provisions of which envisages ftiat when s) burien of proving the existen): within any of the General E^ wifhia any special exception. o| fh.e sanie Code, or ia auy law the Court shaU presuine the true fhat the priaiary burden) iagredients of the offence discharge burdea under adduciag oral or documentart oa rccord in cross-examin! regarding fhe right ofprivate d( f fh.ere is ao reasoD. for fhese witnesses in a false case. The extra judicial .sed/appeUaat before tiiese witaesses tfae.same has .been corroborated bv i Ba&dhu aad also the fact that the aiaed With blood, he also Iiancled over aad fhe Paachas weut to flie place of dead bodies of Heerainan aad Sonai tlie accused ia commission ofcrim.e Sectibn testion 6f right of private defence, in private defence burden was on the Bection 105 of fhe Indiaa Evideace Act person is accused of any offence, the :e of circuinstances briagiag fhe case septions in the ladian Penal Cocie, or proviso coatained in aay otber part of ]defirung tfae offence, is upon him, aiid labsence of such circum.staaces. !t is was on the prosecution to prove tlie fcad fhereafter the accused was to 105 of fhe Indiaa Evidence Act by evideace, even bv bringi&g the facts ^.tion of the prosecution witnesses ;fence ofperson. (iN^f®it) ^6 XI-HC-22 TSI riiiiiiciq, y^lwis, Riciiyy 3n^?r ^ia«*> ii*<ni ai*<it»i V^ 200 Ri<>«s 3n^?i?iT R-ii<t>3n^r s»iK gfer sn^rgRtraTofer lil'qfa'fl-) WRTl' ff fWt <R]«1<' ^; sil^ir sn^r tbe pi^vate :an>uun df tUat In order to ascertaia by leamed counsel for f4< evidence available on recordj to establish Iiis rigbt of accused/appellaat has not a( estabUshing the right of p\ recorded under Section 313 he attacked fhe deceased pe^ person, even by cross-exai^u defence regarding the right The luvestigatuig Officer, P/ examiaed on fhis aspect attacked the accused aad id attacked fhem.. Suailarly otlt or the persons before whoija judicial coiifession, bave estabUsh the right of privatej has not been established by] witnesses. Even if the pro^i prosecution stoiy is fhat, accused/appellaat, PW/2 Cf with lafhi, accused snatch^c Deen Bandhu ran away. the deceased persons attacked the accused or veracity of the arguiaent advaaced accused/appeUant based on fhe accused/appellaat has not been able defeuce. lu the first instauce, iduced anv evidence in lus defence for ^ivate defence, even iu his statement bffheCr.P.C,, he has not stated tliat ^sons in his right ofprivate defence of ^miug fhe prosecution witnesses fhe private defence has not beea raised. p. Singh (PW/ 13) has not been cross- the deceased pefsons ia any way right ofprivate defence ofperson 3ie icr prosecution witaesses, eye-witness the accused/appeUant niade extra been cross-exanuned in order to defence. Even fhe prosecution stoiy ]legal evidence by cross-examinuig fhe (ecution stoiy is accepted as it is, the argued by learaed couasel for the leen Bandhu assaulted fhe accused )d the lathi froin Deen Bandhu and jere is nothiag on record to show that and Sonai Bai in aay maaner [attempted to attack the acciised, (tft^^ir) Ht3t Thlere Heeilaman XI-HC-22 sn^T^ir R-fi+sii^T ^Hicb yfsci aiIIW 111MI 9)W<*> 'Sss^WvPf, OTn<i;i<o, facii'yy 3ii^i 4ach "V^ 200 sn^TCTaTWafer -^ ft. therefore, there was no occas) deceased persons wifh lafhi) Baadhu. Moreover, when th( thexu with the axe which he 4-5 tiaies to each deceased private defence, accused wa( party/deceased party by ustaj necessaiy for protection ofhis| Bai feH down, thereafter there| attack Heeraman and Sonail forcgoing reasons, arguiuen|l accused/appeUant regarding t|] of inent aad canuot be acceptefd For fhe fpregom^ iufirtiuly in fhe judgiaent ofl passed by the trial Court. In the result, the appeal| Sd/- L.C.BHADOO Judge <tii<<f<-i<n-f WTcff ff IWt <RI'KK ^srRpTsii^T ion for the accused to assault the which was snatched froin Deen sy fell down, tlie accused attacked vas carrying, therefore, he attacked oersons. In the matter of right of i entifled to attack fhe coinplaiat ^ of force to fhe extent which was person. When Heeram.an aad Sonai was no occasioil for the accused to Bai with axe. As such, for the advauced by couiisel for fhe he right of pnvate defence is devoid is, we do not fiiid aay fflegality or cbnviction and order of sentence fails aud the same is disinissed. Sd/- V.K.Shrivastava Judge (Iftt^f^) \