||^a-|C-78 y y -!/ '• .f 3:cq'^|A||^,yiT(1'M'l<o, RlciK-ty Ml*4rtl *NI* W^ 200 -BI^I W (<•<!'* iT^T 'SiT^T Sh*iiqi sn^T''ORt ('i'ity'tp) ^tH^R -yf^ti SH^l Versu! HON'BLE Present: Shri K.K.Siugh, couiis^l for the appellant. 'tillfdl'l-l tlWdfiffe^ <l«i<!ci< ^ ^W <Ht^ OF 2006 Chotu. aiias Madhusudan, S/o. Shri Viliam. Charls, Isai, aged about 32 years, r/o. Mohlain Bhafha, Katghora, District Korba (CG) State of C.G., Through Station House Ofiicer, PoUce Station Katghora, District Korba (CG) APPEAL UNDBR SBCT(IQN374(2i OF THE CRIMINAL L.C. Shri Raviudra Agrawal,| ORto.L JUDGMENT (3rf March 2008] The following judginenlj was deUvered by This appeal is directecj. aiid orcler of sentence datij Additional Sessions Judge Bii Paael lawyer for the State. against the judgment of conviction d 16.08.2002 passed by fhe First [aspur in S.T. No. 218/2001 whereby •;;'iNffll. 's^sf •^m^i\, aTfly'ic, Rirti'yy tllMrtl **4t* "^ 200 an^OT •'raai; ('ytl^w) 311^1 W fsira ^sn .sn^r sn+iw •i^IIW^lfel 311^1 --2-- <*i<<ii!f41-i iw'-if'ii.fe^ <I"i«ci< ^TsiRmsn^i A^c^-^ - the leam.ed/Sessions Judge suilty for coiiunission of the for coiiunittuig the niurder of him to undergo uiiprisomoie4 finaiicial condition of fb.e acchl ^fter holdiag ttie accused/appellaiit cjffence i-uider Secuon 302 of the IPC >ne Pawan @ Deenanath, seutenced .t for Ufe. However, looking to fhe ;d/appeUant, fine was not iiaposed. 2. Case of the prosecutionj, ;ave Dehati. Nalishi Ex.P-6 ti| Station Katghora on 11.4.20Q todav he alonK with his father] in. brief, is fhat, P.W.-3 Raj3in.un.ar fhe Statiou House Officer, PoUce 1 at 10.05 p.m. to the effect tb.at Pawau @ Deenauath Kashyap went to VUlage Nawagaon aad retu^-ned at about 9.45 p.m.., they saw that fhere was soine altercatjon between Kaushal Vishwakanna aad Chotu @ Madhusudan, hi| from. the door of fb.eir house, h: asked Chotu aud Kaushal as inother was watchitig fhe incident s fafher parked fhe aiotor cycle and to why tbey are quaTreItuig, you people are imnecessarily raism.^ cries after consuituiig few drops of Uquor, on wbich, Chotu. Isai ca^ae towards his fatber and said that he is uiuiecessarily interv accused/ appeUant was holdiaj he aftacked on fhe chest of hi; started ooziag out of fh.e iajur his lather iminediately to the h< ;runs he wfll kill TiiiTi. The itiie weapon. ia his haad wifh. which fe fafher as a result of which, blood (r a&d his fafher fell down. He took (ispital aud got Tiim adinitted. Chotu Isai had attacked his father '(rifh a weapon on his chest with iuteD.tion to cause his death. ifirst Infomiation Report of Ex. P-19 for th.e cominission of the offen<te under Section 307 of the IPC was it'glbtdi'ed. Tlifc ui'jcilur ai. t^atgnora &ospital, reterrcd in.j'urcd Pawaa ii XI-HG •SvSf ^Sj|A||^, riiTfly'lti, lsf<?il+l^< MWdl **<1* WI. 200 an^r •fss (yilyii^r) sn^ijei R-li'h ^qT 3TT^?T s»i+iiqi ^H^R'^'d SH^T -2>- @ Deenaaafh. to Goverameiit ^lospital Korba where he died on 12.04.2001. The Investigatm^ paachas prepared uiquest E3J Deenauafh.. Requisition of Ex.P[ for post inortexa on the body^ | Sui^eon Dr. A. D. Purena aiid| |0f5cer after giviag notice to the t.P-l on fb.e body of Pawaa (c). -2 was given by fhe poUce, Korba bf Pawan (2). Deenanath. Assistaat inortem. on fhe bodv of Pawaal there was iucised penetratiug ^ound on the left side niid a?dllary area at the level of between. 6th 1.5 cm..xl3 cni. deep obUque pl; fhat cause of death. is heinorrh; le'vel of 5th 6th rib. On aaterioi 4>l<tli<ri*il':l TITT^f ^'fex^ <Ri|t^H '^3tNR3TI^T Dr. M. S. Pal conducted the post @ Deenaaath. They noticed that md 7th ribs in the size of 3,5 cin. x iced towards left nipple aad opined be aud shock due to excessive loss of blood from. the uijured side lijiassive luag aud heart. Deafh was hoinicidal ia nature. They pi^p^red post iiiortem. report Ex.P-13, Dr. M.S.Pal sent inerg intimntinji Ex. P-3 to fhe Incharge, Outpost, -P- ftie Eierg intiination was given. Raiupur, Korba aad vide Ex.P-j Clothes of the deceased were s< soil an.d plain soil was seized] occurrence. The SHO of Polic^ Doctor of Govemnient Hospitalj iajiuies 'of deceased Pawan @ Ij)eenaaafh. After examination, ftie doctor prepared report of Ex, P- lj2 ia which he opined that fhere is oue (stab) penetratuig wound oji the left side of the chest at fhe ;ized under Ex. P-8. Blood stained T.m.der Ex.P-9 fi-om. :the pla.ee of Station Katghora requested fhe .ora for examiaation of the jaxiUaiy lmel.8"x 0.3" but depfh caanot be ineasured. The ac^used/appeUant, whUe ia. police custody gave m.enioraadum. Ex P-14. In pursuaace of which fhe -tenife-weapon' of offence was sei^ed uiider Ex.P-16 at fhe instaace 3^^ ^Hl^<4, ^Tfly'l^, Pl^l^^ '^ <41H^I *^1* •V^ 200 an^r 'BTO (lyf-i.'siiia) sn^( w(c(<ii+ VS 3)1^1 StiHlti ?RITW ^lf??t SII^I -M— of fhe accused/appe]laat.aiid| Ex.P-15. Site plan Ex.P-17 of&cer. Seized ardcles were st Forensic Science Laboratory,, received. one terricot shirt was seized uiider ras prepared by the Investigatin^ nt for cheirucal exaEMiiation to the agar from. where report Ex.P-21 was 3. After conipletion of tave^ fhe Court of Judicial Magistral conuaitted fhe case to the Se|s fhe leamed Additional Sessiodi on teansfer for 'trial. 4. Prosecution ia order to] accused/ appeUaat exainined Stateinent of the accused/ap] 313 of the Cr.P.C. in which against Iiim and stated that im.plicated ia tlie criia.e accused/appellant also exarn|n. deferice. 5. After lieariiig counsel Additional Sessioas Judge, accused/appeUaat as aforeiaeit^ioned +wi<'i'fl-i imaf •if_1t(Atfwsir •^siRnsii^i itigation, charge sheet was filed iu First Class, Katghora, who in turn ssions Judge, Bilaspur fix)ra wliere s Judge, Bilaspur received fhe case estabUsh fbe charge agaiast the as inany as fourteen witaesses. ellaat was recorded uitder Sectioii he deiued the inaterial appeadng e is innocent. He has been falsely )n account of anituosity. The ned Dr. M.S. Pal D.W.-l iu his ^ir tihie respecti.ve parties, leamed convicted aud sentenced the ii:llM an^t yi R-tl'h ^fT 3TT^T'3WT^ 3:E^?qFn^T, aTf1<1'l<o, Rldl^y WTCff *NI* S^V •VR5 (4?lI-i«l<W) 200 •reiIW ^ltef 311^1 -s~- 6. We have heard Stiri K.K| Sbri Raviudia Agrawal, Panel fafb.er 7. At the outset Shri K.K.) not disputed tbe homicidaf. Moreover, P.W.-3 Rajkumar, stated tb.at on the fateftil ni^ p.ia. he along with his Nawagaon, retumed to ftieir v[ altercation between Kaushal When his father interfered, father with a krdfe. The abov^ P.W.-5 Sint. Krishita Bai\vife <t evidence has been con-oboratdd Prasad Vishwakanna, P.W.-1Q post niortem. on the body of there was stab iajury on fhe rib. He has furfher stated shocfe as a result of excess! inortem. in. nature aad death vieiv of the above ocular aiidl fhat fhe deatft of Pawaa ®. thaDthe 8. As far as fhe coinplic: question is coaceFaed, Sbri l .L ^sgued fbat the evidence of B +i<<l<-i<fl-< iv^i Tffs^S <Rntsi< •^sifman^r ,Singh, counsel for the appeUaut aad .awyer for the State. .pingh, counsel for the appeUaut has death of Pawaa @ Deenanath. ^on of fhe deceased has categorically kht i.e. on 11.4.2001 at about 9.30 f^ei, after talditg dianer at Vfflage ^Ulage, they saw that fhere was som.e [Prasad and Chotu @ Madhusudaa. pie accused/appellaiit attacked bis r^ evidence has been corroborated bv <|>f the deceased aad further the above by fhe evidence ofP.W.-7 Kaushal Dr. A.D.Purena who conducted the Ifawaa @ Deenanafb. aad stated fhat left side of fhe chest between 5th 6th cause of death was hem.orrhaeic f.ve loss of blood. Injury was ante •KJ&S homicidal in uature. Therefore, in ruedical evidence, it is established Dednaaafh is honucidal in nature. jty of the accused ia the crime ia ^.K.Sm.gh, counsel for fhe appeUaiit L2L=3_BajkumaLanii-E^-5-Kasbiia ^' XI-B 3H^[ ?il R-fich TISTT 3H^?T 5t)*l iili: ! 3rcT ^l^lt'i-M, tSiTfl'y'IS, Rl<?iiy^< WtRfT *NI* 3^W XR% (ipf^^tT) 200 •Rgrw^fw-ai^i fc-1 Bai is contiadictory re.gardiaj was inade by fhe accused/ap])) far as P.W.7 Kaushal Prasadl tumed hostile aad has not su]|)ported argued that the recovery of knife 9. On the otiier hand, Shr( tlie State supported the judgm| 10. In order to appreciate| couiisel for the appeUaat, we| Rajkum.ar Kashyap, son of diuner, they saw that fhere w^ accused asked as to who i accused/appeUant took out a.FiSfl'llltf3^ tBT'lt'h 1'hp l<rTT)fr i'Sn tl-Li +lli<'l'!il-f ^MvS ^fS^St ifatjK ^? •siRn sii^r ; fh.e maiuier iu. which the assault >eUaiit. He farther subnutted that as Vishwakarina is concemed, he has fhe prosecution case. He also ife is not estabUshed. Ravindra Agrawal, Paael lawyer for snt of fhe trial Court. the arguiaents advauced by fhe have perused the eviden.ee. P.W.-3 the deceased has stated that on 11.4.2001, theywent to atten(|. a dinner party ia Vfllage Nawagaon. aad at about 9.30 p.ni., ia t]he night they retamed after taking s sonie altercation. between Kaushal Prasad Kashyap and accuse<^/appeUant Chotu @ Madhusudaa. His fafher after parkuig ffae inc(tor cycle, asked theia as to why they are quarreUiag after consuiniijig few drops of liquor on which the he to iatervene in fheir laatter whereupoa his fafher repUed tRiat he is the nieinber of the viciaity. At fhis, the accused asked yis fafher that he will see him aiid thereafter, there was soine altejrcation between the accused aiid bis faftier. In the laeanttme, he a|long with his inother went near his father to briiig him. aad whe4 they were bringing bis fafher, fhe the knife from. bis pocket ao.d j.Aest-of.Jaas fiittiier .nnrt mn iwv. XI-%C- sn^i^i I^'fi.'d 311^1 ^Hicfr ^rft^ 'ssi •^w\v\«{,anl'M'is, [aicii'My 3TTit?T IRR? wqwaOTW"""""""""'"'"'""""""'w^ 200 "' 1q^8I' .atjon corroborfcted ao^. wetit 11. In fhe cross examinatl evidence given by him. in fhe e^ fhis witness has been of the above wituess aad wife <1 that on ftie fateful n^ht atiabo| returaed froin Villaae Nawas fhere was soitie altercatiQr!) accused/appeUailt Chotu @ Ma| m.0tor cycle aud iatervened and| fhe accused/appeUan.t asked laatter and he wUl fiiiish TiJTn. was stan.din.g near the uiotor c^ fhe accused/appeUaiit they we^ accused attacked her husbandl chest aad the fcaife enteredl Thereafter, accused puUed fhe 12. P.W.-7 KaushalPrasadiEt person was quarreling when Krishna Bai (P.W.-5) came. Hi| about 9.30 p.in. he was sittin^ wifh Topi Lal Naai aad Kanhaij there at that time. Accused/ap| and deiiiaaded nioney froiu. fhat he has no inonev as he >on which accused said fhat ehNi<n'iili ^w^t ^ ^v\ <,Fii^i< ^3lf:W3IT^I tce has withstand wifh fhe taaunation ia chief. The evidence of by P.W.-5 Krishna Bai, niother jffhe deceased who had also stated |ut 9.30 p.ni., her husband and son after takiiig fheir dtaner, saw thaf between Kaushal Prasad and phusudan, her husband parked fhe persuaded not to qTiarrel On whicli, fe to who is he to iatervene ia their M fhat time she along with her son rcle. On hearing tbe threat given by near her husbaad. She saw that hyifh. the kmfe on ftie left side of his iato ttie chest of her husband. laufe aad accused ran away. ffae person wifh whom. the accused leceased, Raj Kum.ar (P.W.-3) aad has stated that on 11.4.2001, at ia the corridor of his house alorig ra Lal Sah.u. Naiidu Dubey was also IpeUant Chotu @ inadhusudaa cam.e ^audu Dubey. Nandu Maharaj said b|as to spent fhe nioney in aiarriage, why he bas called iTirn for givia^ ['^ ^fo^ T:: Xl-H ~s:sss ^[•if\f^, y^\vw, IsK'ii'yy an^iw Rs-iN 'tTSH 3TR?T »i*ii^ u» n" •WKW WW Vf. 200 sn^r iraq; (ijct[-y!<{ti) WITW ^ifro sii^i -v' inoney and started shQUtin^ s.oa. why they are shouting as accused did not stop aiid st| SaJau left fh.e place. Thereaft^ wife Krisluia Bai aitd niotorcycle in. front of his fhat why he is quarreltmg. becoming leader. He was tw. \1 went iaside. Froia that poiri prosecution case aad tumed witaess has cdrroborate the W-5 Krishna Bai to the exte: and fhat ttie accused was qu knife in his haad. 13. In the cross exaaimat Krishna Bai, the defence h; inaterial contrajdiction. Even fhat ..does not effect the witnesses. Moreover, nothiaj cross examination which in account of aniatositv or gi ixiiplicated Tlim in a false these witnesses has been cc Dr. S.S.Misbra, who iu fhe fii the/,evideiice of P.W.-10 Dr. <<>wfdll-l lllcffitf^S <Rl«$l< ^affliiiaii^r I. At this he asbed fhe accused as to thtre is examination of children but the [irted abusing. In belween Topilal aiid tr Pawan. @ Deenanafh, along wifh bis Rajkuinar came, he parked fhe ho^ise aad said to the accused/ appeUaiit [At fhis the accused said that he is Idiag kmfe ui his haad. Thereafter be |t fhis witaess has npt supported fhe Ihostile. But fhe fact reiuauis that this [testunouy of P.W.-3 Rajkuinar aad P. (it about fhe presence of fhe accused larreling wifh him aud he was holdinf 4on of P.W.-3 Raj Kumar aad P.W.-5 fes not been able to briiig ou i^cord though fhere is muior contradictioa i4ents of the evidence of tttese two has been brought on record in the fclicate fhat fhese ^vitnesses had on ^idge against the accused/appeUaat |.se. Moreover, fhe ocular evidence of jrroborated by fhe eyidence of P.W.-9 \st in.staace examiaed fhe iajuries and |A.D.Pureua who conducfed the post | XI-HC^78 <J-OT| ^||<<K,}<(^ g^f)y<ig^ Rjrti|y^< VWvlt *Ki«b 311^1 ?a1^5iN; '(p'ff ^r^t ^>*fR) 3ff^?r'qa% (4c*f'i'ii<?f) "^ 200 %<it?i«IliiiinfiffvS ^ftl^R ^aifOTSii^r m.orteni on fhe bodv of deceasfcd Pawaa @. Deenanafh. and bofh the doctors have categoricaUy sta^ed that fhere was stabbed injuiy on fh.e left side of the chesf betwjeen 5& 6th rib aad fhe iajury was ia fiie size of 3x0.5 cni. therefofe on account of fhis we do not fiiid aay fllegality or infinaity ia ,1|he finding of fhe trial Court placin^ reUance on fhe evideuce of-PtW.-S Rajkuiuar, P.W-5 Krisluia Bai, P.W.-7 Kaushal Prasad Vishwbkanna. 14. As far as fhe recovetv of knife at the in.staace of the accused/appeUant is concjeraed, even fhough independent witaesses have.not support^d the prosecution case but P.W.-14 Sbri K.N.Shanna, Investigatiij.g Officer has categoricaily stated fhat the accused/appeUant while |ii poU.ee custody, gave laeiaoraadiun. to him fhat he can. get ttk kiufe recovered aad fherefore he recorded fhe niem.oraadum. ;ot recovered the krufe and The knife was sent to the Fo| 2x. P-14 aad in. pursuaace of that he the saxne was seized under Ex. P-16. rensic Science Laboratoiy Sagar froin. where report Ex. P-21 was re^-eived and as per the report fhere was blood pn the knife. Thus, fhe recovery of blood stauied knite fiu-fher corroborates the evi4ence of P.W.-3 Rajkuiaar aad P.W.-5 Krishna Bai. 15. We do not fiud any ill^-gality or infirmily ia fhe findiiig of ftie trial Court regardiag the coii^plicity offhe acciised/appellaxit ia fhe cruiie ia question. XI-HO -^^.:._',: ^gq- ritiqio'i^, BTfly'IS, [qOI.My •^ 200 CT^I ?BI ft'mt •OTTsn^iwsih; 3ii^?r TIW ( ^saiw ^ifro a'n^T -lo-( 16. Shri K.K.Siagh, coun was only one stab injury death and the accused/a] sudden fight iu a heat of p; the acciised does not travel;' :1 for fhe appellant_argued that there anfl thei^ was no iD.tention to cause fhe d/aplpeUant attacked the deceased iii a i^sion. Therefore, fhe evidence against l:fleyond Section 324 offhe IPC. 17. On the other hand, judgraent of the trial Court> ^hri Ravindra Agrawal supported the 18. In order to apprecia) respective counsel we hav^ Rajkuiaar, son of the deceas) p.m.. he along with his fafh^ taMag dinner at Nawagaon, altercation between Kaushall @ Madhusudaa. His father why they were quarreltm; which was not liked by tlie he is .becoifunS leader and froinrhis pocket aiid stabbed] 19. P.W.-5 Krishiia Bai, wjl same fherefore, froni the ab| accused/appellant attacked iutervened ia their inatter adid the decesteed and accused/, *i'4l<n<di *ii*i<:if ^fssil <f<i<$i< ^3fRriT3n^ |:e fhe arguinents advanced by the scrutinized the evidence of P.W.-3 :d who has stated that at about 9..30 [r aad family ineinbers retumed after at fhat tiine, they saw that fhere was Prasad aad accused/appeltant Chotu ilatervened in fhe inatter aad said that ^fter consumuig few drops of liquor bccused aiid he asked his fafher th.at |will teach lesson, took out fhe bnife fe of the deceased has also stated the bve evidence it is established fhat fhe Ithe deceased onlv whea fhe deceased fheic was soine altercation befrvs'een ^ppeUant. Therefore it cannot be said "XI-HC <j-CT| "q|<<|c<l<<, ®Tfl^'IS,[s|<41tiy< TWRW •9KW3R WI. 200 an^yr WR; (ijcif-i^a) 3ii^r?aR-< '(TSH STT^T'SFRN? Suguna 'iCTW ^if?ff sii^r -II— that fhe accused attacked th^ lueditation. In fact when fhe de| by the accused.In the heat ofpj fhe knife from. his pocket aiid a'| cu-cuinstances, it caunot be deceased with intention to circuinstances are suggestive oll in. a h.eat of passion"wifhoul^p| sudden. fighf. Therefore, fhe covered under Exception IV of] frord the -facts and mannrT i4 deceased with the laufe, we ai^ offence against the accused/^ Section 304 Part I ofthe IPC. 20. In the result, the appeal f sentence in^posed upon fhe ac^ years. It is iiiformed that fhe.l since 12.04.2001 tiU today, thcj of the above detention period Mm. q)l<llt1<(ll *1P^ ^fel<il <f<14^R i;3ifOT3II^T deceased wifh. preparation, pre ;eased ititervened, it was aot liked i^ssion, accused/ appeUaat took out ttacked only once. Therefore, ia the s^ld fh.at the accused attacked fhe cfause deafh.. Moreover fhe aboye [fhe fact fhat the accused attacked ^e aieditation or preparatiou, ia. a |;ase of fhe accused/appeUant is Section 300 of the IPC. However, which fhe accused attacked fhe of the considei^d opinion that fhe ippeUaat does not travel beyond artly succeeds. The coiiviction aad ased/appeUant uiider Section 302 of fhe IPC are set aside. In st^ad fhereof, he is convicted uiider Section 304 Part-I of the IPC abd sentenced to undergo RI for ten accused/appellant is in detention refore he will be entifled for set ofF gaiust the sentence unposed upon Sd/- L.C. BhadpG v~"i; SiidgS' . J :i .!. Sd/-..;:. t.E.Sbanna Judge M )