^'*? 3TT^T^ fqiw TTSH 37T^T 5r»+iic»i 3T^T ^HI^, ^T{1^41<o, isl^l'yy W^vl\ <bN|cb C^A'P0 ' ^' /^60"L- ^..................•..l.............................^.....^^ ^ 200 3n^?r XRRR (4<<[^^) '^ITW^rf^T ^TI^T APPELLANT CIn Jaii) VepJ!i ftESPONDENT \ (Criminai Appea! unc|er Section 374(2) of the Cr.P.C.) Djvjslon Bench : Hon'bie Shri L.C. Bhadoo & yon'bie Shri T.P. Sharwa. JD' 29-2-2008 4si Heard Shri Bhaskar Py4si, Bajpai/ t)y. ©ovt.Advocate forjthe Orai Judgment dictated) kC,_Bhfldoo^J This apped is directe< order of sentence dated 1: Sessions JudQe, Mahasamunc learned AdditionGl Sessions .! chi<<(<n<i1i *ii*i<vff '^^l^st <R»i^i< ^3tfiFT3TT^T us Mohammed KGfiqus, aged about 30 years, S/o Late Mohd. Ishaq, Occupation Labour, ft/o Mohamoipara, P.S. Mahosamund, Distt, Mahasamund (CG). State of Chhottisgarh/ Through P.S- Mahasamund, Distt. Mahasamund (C6L .si, counsel for the appeltant <& Shri Sudhir State. on dais. against the judgment of conviction ond 1-11-2001 pQSsed by the 2nd Additiona! in sessions trial No.305/2001 whereby udge after holdina the accused/GppelJant ^TT^T ??T RTl[<=h ^T^T 3TR^T 5h*ll<=h 3^cT ^INK*-)^, ©rn^'Ko,isl^l^y TWRTT (hNlcb ^ 200 aniRr TT^? (<ic<^Q(<<?y) ^RITW^f^T ^?T guilty for commission of off4' Indian Penal Code {for sho^ impri^onment for life & to pa^ of fineto further undergo R^ year, respectively* It was f| shall run concurrently. 4nce 2) Case of the prosecutiorj 5.00 a.m. some dlspute arose t| Begum Bano (since deceased). Bano, the accused pressed he| Bano hos not died, therefore, other parts of the body/as injuries. Accused threw the jumped into the well in orde| mother of the accused namety up, she hecrd the cries from heard the voice of her son i. cailed the neighbours. They wei! with the help of a rope. accused and saw that the wi1 were injurites on her body. cbl^fd^i'1 TT1TRff ^T,fel3t <Ri^i< ^3ifTO3TI^T under Sections 302 and 309 of the itthe IPCf} sentenced him to undergo fine of fts,5,000/-, in defautt of payment for 3 years and to undergo RJ. for one rther directed that both the sentences in brief, is that on 17-7-2001 at about |etween the appeifant and his wife namely, lln order to commit the murder of Seaum neck, the accused thought that Begum ^e attacked her with sickte on her chest & b-result of which she succumbed to the sickte in the adjoining well. He himself to commit suicide. By that time, the M.eena Begum (PW-4) had aiready woken frhe well and went towards the well. She ^. Gccused H^a^e saven. Hearing this she <^ame and pulled out the accused from the jThe people went inside the house of the of the accused was lying dead. There r- XI-HC—78 3TT^T^ (<rli<sh A^STT 'STT^T 5h^ict» Tc^ ^i<<i<y'»<<, «)T{i-y<i<o, tsiowy *<INdl (hNlcb W^ 200 ani^r xra^? (yiI^qcT) ^«ii^R^a 3TI^T 3) Babu Kao (PW-1) »t AAohasamund under Ex.P/1. 302 <& 309 of the IPC, the occurrence^ After giving inquest (ExP/4) on the bod^ pioce of occurrence was pre^ared 3ano was sent for postmort^ Hospital, Mahasamund wher^ Pardal conducted postmorte|m ExP/10. The doctors opin| excessive haemorrhage on result of throttling leading homicidal in nature. Even (Ex.P/11), but the sickle accused WQS seized under E: the Investigating Officer. coli 4) After completion of ir Court of Chief Judicial Magi^ the case to the Court of Se Additionat Sessionsjudge, A/ for trial, \ 4)l^id^1*1 'RPraf ^f,1^st <P»I^I< ^ 3FJRTRT 3TI^?r r|eported the matter in Police Station Ifter reaisterinQ the crime under Sections |;nvestiGGtina Officer left for the scene of n^tice (Ex?/3) to the Panchas, he prepored of Begum Bano. Site plan (ExP/5) of the by Patwari Halka- The body of Begum examination under ExP/9 to (yovernment Dr. S. Chandravanshi (PW-6) & &r. Alka te^m and they prepared postmortem report )in^d thot the cause of death was due to a^ount of rapture ^)f tiver and asphyxia as a j-o the cardiopulmonary failure. Death was though the accused gave memorandum ild not be seized. The full pant of the |P/l2. Site pian (Ex.P/14) was prepared by vestigation, charge sheet was fited in the |trate, Mahasamund/who in turn committed ssionS Judge, Raipur, from where iearned |ohasamund, received the same on transfer XI-H' ^TT^T '^T R'lJch j ^sn gn^T sh^jcb 3:^T "q|<1|<>-c4, tS>Tn'MII<o, (s|01'y^< 'W^ff **<|ch "^ 200 snisr x^ra? (^cjljci^) '^iTW^n'sn^T 5) In order to estabtssh t^e prosecution examined 9 witn^sses wos recorded under Section materiat appearing against hjtn. been falseiy implicated in thej charge against the accused/appellant the ;. Statement of the accused/appellant 313 of the Cr.P*C. in which he denied the He stated thot he is innocent and has lcrime in question, 6) Learned Additionai.Se4 respective parties, convictec| aforementioned. 7) We have heard Shri Bl Shri Sudhir Bajpcti/ by. (yovt. deoh-h 8) Shri Pyasj, leGrned disDuted the homicidal Chandravanshi (PW-6)/who Bsno, has s+Qted that 8th<& 13 There was a stab wound4n th< The cause of death was beath was homicidal in naturl established that the death ofl rapjt'u cM^f<n<D<1 ^IH<!lf "^f^fe^ <Pt^l< ^^iRpT^n^r ^ions Judge after hearing counsel for the and sentenced the accused/appeilant as [laskar Pyasi, counsel for the appellant and Advocote for the State. coUrisel for the accused/Gpoeiiant, has ndt of Begum Bano. Moreover, Dr. S. cc^ducted postmortem on the body of Begum if ribs were cut in the size of 3 cm. x 1 cm. iiver in the size of 3 cm x 0.5 cm< x 2 cm. ire of liver and cardiopulmonary faiiure. ur^. In view of above medical evidence, it is !Begum Bano wos homicidal in nature. XI- STT^T^T'ft^F ^TT^T 3?T^T 5h+ll<=ft 0 75ST ^IHI^, ^Tfl-trt^Ko, [s)01'M^< *<l*ldl **<l<b •^ 200 anipff'q^3F (yiI^qcT) ^RITW^feT-STT^T 9) As far as complicity question is concerned, in thi^ The whole cose rests oh the bw in order to convict an ac< the Hon'ble Apex Court in Stat®of W.B. (1994) 2 SC| bas^d ITn a case circumstances f to be drawn hai but also that ai shouid be of a a with the hypotl Those circumsl being expiained guilt of the aca must be so com! ground for the of the accused. established ci jndignation of conviction and greater should evidence lest su; 10) In the present case, said to have made extra jud not suppofted the prosecutic cbl^id^l^ ^i*i<?ff'^,'fe^ <Pn^i< ^^rRpT^Frr^T )f the accused/appellant in the crime in case there is no direct or ocubr evidence< ircumstantia) evidence. As per th€settied used based on the circumstGntial eyidence, t-he matter of Dhananjoy Chat)B@rje@ Vs. 220 held that: on circumstantial evidence, the 'om which the conciusion of guiit is ^e not only to be fuily estGbiished the circumstances so estabiished ^nciusive nature arid consistent oniy sBSIS OT TH€ yujlT^ OT in€- uCCUS^u* h|xnces should not be capabie of >yGny other hypothesis except the tsed and the chain of the evidence lete GS not to leave any reasonable dief consistent with the innocence It needs no reminder that legaiiy i^cumstances and not merely ifie court can form the basis of fhe more serious the crime, the the care taken to scr'utinize the Ipicion takes the piace of proof," 8<ibu ftao (PW-1), before whom the accused ^ial confession, has turned hostile ond hos ^ case. Similarly, the witnesses who were XI-HC—78 ^T^T^T f<TlJch <i 1cT^T ^TT^T 5li*li<=t) 3:5^'^TPTT^T, yiTn-y<i<o,(s«y'>l^^< ^ ^l^dl **<|cb "^ 200 3HiST XpT^ (^c([^<{tST) '^nw^f^T3?n^T called on the spot namely, PW-4 Meena Begum/ mother 4 they have not supported the as per the evidence of PW-1 the spot, he has stated thal together in the house where also established from his of his house« Hecirina the that side, he saw that the ac^ from the well with the h4 cross-examined. PiW- 11) PW-2 Satibai Chandral<|ar fully, but she has stated thap" number of persons coltected the accused was lying in the PW-3 Rajbati hds simply sta^ and said that her son has Jun^pe been cross-examined. 12) PW-4 Meena Beoum, she heard the voice of her CM<4f<n<I1i ^i*i<^ ^fe^t <Fs|^K ^stfiw^n^r PjW-2 Satibai Chandrakar, PW-3 kajbati & c|f the accused, have also turned hostile and ^rosecution case. But the fact remains that pabu Kao, the first psrson who reached on the accused and his wife used to reside jthe body of Begum Bano wos found. It is evNbnce that th^ accused was found in the weli cbmwotion in the vicinitv, he went towards ^used was in the well and he was pulted out |lp of rope. This witness has not been ', has not supported the prosecution case on the fateful doy on heoring commotion jn the house of the accused, they saw that JA/eil and they puiled out hirp from the wett. S-ed that the mother of the accused came into the wjell. This witness has also not jun^ed mbther of the cccused has also stated that feon l.e. accused "save saveii from the well. XI-HS 3TT^T^ f<Tli<=h J^SH .3H^[ $b*iich 3^ST ^l^l^^l, ^•y'Ko, i«t01^y ^Wv[[ <kNlcb ^ 200 3n^?r XPRF (^dl^^) ^^II^R ^lia 13TI^T Thereafter she called the houses. In the meantime, accused from the well p^rsons who were residing in the adjoining ^ajmati A others came and pulled out the w4s 13) Therefore, from the a| fatefut day the accused neighbours, they came and pu not stated that how he felt Dr, S. Chandravanshi, who cor Bono, there were stab injurie:| on account of hole in the statement recorded under witnesses have not been deceased Begum Bano sustain^ found in the well, but he has 14) Coupled with these pro^ of PW-9 Sheikh Rahim, brothi accused. He hos stated tha evidence his sister was man harass and subject his siste cbl^lid^l'1 'RPraf ^Fs^ <Rn^$i< ^3ffip73?n^T ?ove evidence it Js established that on the w4s in the well, his mother informed the |led out him from the well. The accused has the well. As per the evidence of PW-6 |ducted postmortem on the body of Begum on the body of the deceased ond she died The accused has not stated in his S^tion 313 of the CrP.C* or the prosecution crc|ss-exGmined on any aspect that how the sd the homicidal injuries. The accused was stated that how he fetl in the weil. It/er. nbt (ed facts, we have scrutinized the evidence ^.r of the deceased & brother-in-bw of the cbout 10 years prior to the date of his lied with the accused. Accused used to ^ to cruelty on the ground of demand of money. He used to give b^atin9 to Begum Bano. He per-suaded the 3Tlt^T ;FT f<Tl[<=h ^^T 3?TT^T sr)+ii<=n T^SS '^w\^^, ^xn'M'Ko, (si<v>i'y^< ^Wvt{ 5b*41«b "^ 200 CT^T-q^? (lic<^<^) '^RITW^rf^T ^TT^T accused & his sister not to| his sister to his residenci residence and also gaye mon^ he started the business of months, thereafter he ctos^ used to give beating .to cross-examined on this a$pex<| 15) Therefore, from th established that: quarrel and on his advice, the accused took He gave one house to the accused for ^y to him to do his own business. ThereQfter glass bangles. He did that business 2-4 td the same and came to Mahasamund. He his sister. This witness has not been above evidence of the witnesses, it is > The accused usl used to give > The body of was lying in > The accused w< cries oniy the weii, 16) The accused has not o^ sustoined homicidGl injuries CGSC of the prosecution is between the two, The accu^ and thereafter attacked hei himself jymped into the we cbl^id^l'1 HW^K^^S <Rnt$*< ^3?fRiH3n^T td to harass, subject to cruelty and be(|iting to Begum Bano. ^egum Bono with homicjdal injuries the |h6use of the accused, |is olso found in the well and on his r|eighbours puiied put him from the |fered any explanation that how Begum Bcxno o^d how he fell down in the wel! whereas, the |hat on the fateful day there was quarrei sd first pressed the neck of the deceased with sickle. Considering his wife dead he in order to commit suicide* There is no XI-H^3»^.fe /t~^\ 1 TSSf ^Nt^q, ^Tfi'^Ko, (<(01-y^< 3TI^T?RT fqilon 'cW^TT^T sh^Jcb c ^IINdl *Nlcb "V^ 200 3^?T TR^F (^clf^^) '^iTW^rf^r 3?n^r explanation from the complicity of the accused in into wett in order to commit accilsed on these proved facts, therefore, crime in question and thereafter jumped stjicide i$ established, +he 17) Learned counsel for nothing on record that the to cause her death. Even 4 \1 prosecution case, there use^ give beating to the deceased financiat condition of the circumstGnces the accused m| Jumped into the well in against the ciccused does the IPC. 19) In the present case, witnesses have tumed hostil based on that inference can i of the crime in question, It condition^ of the accused <^>l€<(<yt<I1l'W^Tf ^f,fe^ <P»t^l< ^3ifOT^n^r th^ accused/appeilant submitted that there is a<|:cused attacked the deceased with intention ickle has not been recovered. As per the vto be some quarret, the accused used to on account of dispute between the two, the laccused was not welland under these Ight have given beating to the deceased ond to commit suicide, therefore, offence travei beyond Section 304 Part-II of order n|ot 18) On the other hand, le^rned counsel for the State supported the Judgment of the trial Court. as has been mentioned eartier, all the il^, but there are provedcircumstances and Ibe drawn that the accused was the author Ihas also come on record that the financiol w{ss not well, therefore, there used to be XI-He—7S ^^ ^,^. 1 '^®gj^ |, ft 'w J 3:c^T •^TPTT^T, ^>Tfl^4l<o, (sx'il'yy ^ -sasis^ WERTT (b*4|cb "^ 200 ^TI^Ty[ fqiicn ^SHW^T sib^lJcb %^ an^r'q^ep (^t^^) '^ITW^f^T^TT^T migtjit quarrel between the husboj frustration the accused Jumped into the weli in order cir'cumstances, intention to cannot be attributed to the! safely be inferred that the < \ which he cttocked Beoum Therefore, offence under Se< and conviction and sentence cannot be maintained, ctuse 20) In the result, the appe^l imposed upon the accused/ap^ellant set aside; instead thereof he| the IPC and sentenced to u^ sentence under Section 309 o1 the accused is in detention be entitled for set off of sentence imposed upon him. Sd/- L.C. Bhadoo Judge <=bi^f<n<iiti 1RTT^ff ^f,fe(3t <RI^I< "^^TRw^n^T id and wife. It appears that out of have ottacked his wife and thereafter ro commit suicide feeling guilty, Under the death of his wife nGmety, Begum Bano accused. Further, from this fact it con ccu^ed had knowiedge thot the manner in tano he mGvlikeiy to cause her d&ath. :tion 304 Part-II of the IPC is estabiished imposed under Section 302 of the IPC partly succeeds. Conviction and sentence under Section 302 of the IPC are |is convicted under Section 304 Part-II of ^idergo RJ. for 10 years. Conviction and f the IPC are maintained. It is stated that 17-7-2001 til! today. The accused shaii the above detention period agcinst the s^ce Sd/- T.P.Sharma Judge 10