B"B®®^^B '^•:L^y^':'.-^-^\: —-^^, jXI3.189/(JaiI) '. ^' fC.J.P.R. 11/94/2,000 1 0: .- : ' •-laSS^:-i:^ff%SSKI^'iEalS8 ^KKSS%jsi888BSBiSBjl81Sa i^BSSSSIi%gW^»"SS%' ^iS^ .y-^'^..'s-'^T-^ \ •\/'}1: teion ^^w^ ^ame;..GSf.f^.f .ss.^v^m Residence ,.'^SfS/'--r-'^T3^gS^ Sentenced to^^u»ffcy.:.fl(535J^^T......;..On. '^pKTf^ yyc '^73/?^<yj^ysf/^ • section ....^^...^^^.^..... by ^ It is explained to the prisoner that ifhe states or wishes t.6 be represented by legal practitioner the Appellate Court will not proceedwith the base for seven days unless !the legal practitioner appears If the legal practitioner does not appear within seven days he may not heard at all Iflhe prisocer states that he does not wish to be repre- sented by legal practitioner the court may pruceed at once with the case and will not be obliged to give a hearing to any legal practitioner vvho should appear . ! Date of Application for copy of Judgement 2 Uate on whichcopy received 3 Date on which Appeal seat 4 Whether the prisoner wishes to be represented or not - Yes / No Ct^9 SX4! (7 in ...... .....^S^R............... Jail ....•St^^I^C^S^ No......&S/^r?fe^^--Dated"--:::^^°^-J199^- n ^i . -.t!Ln..r'£\. Forwarded to the GHffiF- J-yWefAfc-MAGBTRTWE 'Wv^-S^rVS^'-^^W^i 's^y^t. ycij^STT'nTe ^eEyc,'C^i^R togather which a copy of judgement or order pa'ssedT in'the case for favour of trans- miission to the proper Appellate Court^ -MSls^^' Superin^e^ ^1.-- Date of^receipt in........... ................... office Date of receipt record to acco^/panythe ^ / . A4emo ofA.ppeal to ihe Appellate court •w- '<*'1?<U»»B ^^^^^ :*io - *- JE?t. Dated .......:......t....l99 s ^orv.'arded to the ................ ............... ...^ 3ate of.reGeipLin.AppellateCourt ...... ..................... ........^,.^o(:B<t'~*.....'L^. ( P. T. 0:->) ^ \*sSf » HIGH COURT OF CHHATTISGARH AT BILASPUR Crimiaal Appeal No. 2325 of 1997 AppeUaat Hem Singh Versus Respondeut State ofM.P.(now State of Chhattisgarh) fhrough PoUce Station - Chura, Tattsil- Gariaband, District- Raipur. DIVISION BBNCH ; HonZle Mr. Justice L. C. Bhadoo, and HonTsle Mr. Justice Satish K. Agnihotfi, JJ Dr, Shailesh Ahuja, Advocate for the appeUaat. Shri U. N. S. Deo, Govemineut Advocate for fhe State. ORAL JUDGMENT (20dl July, 2006) The foUowiag Judgeinent of the Court is delivered by L. C. Bhadoo, J. 1. The appeUant has preferred this appeal, froin jail, under Section 374(2) of fhe Code of Criininal Procedure, questioniug fhe legality of the judginent of conviction and order of sentence dated 11.9.1997, whereby the Vth Additional Sessions Judge, Raipur after holding fhe accused/appenaat giulty for coiaiiussion' of-fhe offence under section 302 of the Indiaa Peaal Code for cominittmg niurder of Jagoti Bai, sentenced 1iim to undergo ixaprisorunent for Ufe and pay fine of Rs.500/, ia default of payiuent of fine aiaouat to fitrtber undergo three inonths rigorous iiaprisoruuent. ^u lj!'?^li:" i^^S?3 ;^£; ^s?"i^Sil 2. The case of the prosecution, in brief, is that on 3rd Februaiy, 1997 the accused/appellaat was working in his kitchen-garden aud his wife namely Jagoti Bai (since deceased) had sent food for him, which was half-cooked, as a result of '»' which the accused beconie angry aad when in the eveniag tte retumed to his house he found his wtfe Jagoti Bai in dnuikeu condition, which furfher iafuriated the accused/appellaat and he assaulted the deceased wifh the wooden handle of the axe, then fhe deceased started running, when she fell dowa, the accused again attacked Jagoti Bai on her neck froin the side of sharp edge of fhe axe. As a result of which, she received fatal iajun7 aad died spontaueously. The said incident was witaessed by none else than daughter of fhe deceased namely Hira Bai (P.W.6). Thereafter the son of fhe accused Naine Singh lodged the First Infomiation Report (Ex.P/3) at fhe police station- Chura. He also gave vasrge iatimation (Ex.P/12). After registering fhe case the Station House OfEcer took up the investigation and leflt for the scene of occurrence. After giving notice (Ex.P/1) to the paachas he prepared fhe panchnama (Ex.P/2) of the body ofJagoti Bai. The accused, / while ip /the poUce custody gave menioraaduin (Ex.P/5) .Fegardirig'the weapon ofoffence axe aud in piirsuance ofthat . the axe was recovered at the iastaace of the accused vide (Ex.P/6). The investigating of&cer also took iato possession fhe plam and blood staiaed soil as also the broken glass baagles of the deceased froin fhe place of occurrence vide Ex.P/7. The '. ¥i '^. ^s^'^S^ 4. loongi of fhe accused was taken. into possession vide Ex.P/9. The body was sent'for postmortem. to the Primary Heatth Center-Chura, where Dr. Sanjay Vanlchede (P.W. 19) conducted the post iiiortein and prepared fhe postmortem report (Ex.P/12). The site plan (^x.P/13) was prepared by ftie investigating o£&cer, the recovered articles were sent to fhe forensic science laboratory, Raipur froni where titie report (Ex.P/16] was received. After couipletion of the investigation fhe charge sheet was filed ia fhe Court of Judicial Magistrate First Class, Ganabaad, who ia tura coinuiitted fhe case to fhe Sessions Judge, Raipiir froia. where fh.e Vtil Additional Sessions Judge received fhe case on traasfer. The prosecution in order to estabUsh the chai^e against the accused/appeUaxtt examuied 20 witnesses, The statement of the accused/appellantwas recorded under Sectlon 313 ofthe Code of Cruniaal Procedure ia which he denied ttie prosecution evideiice appearmg against him aad stated that he is innocent aiid he has been falsely implicated. Leamed trial Court after hearing, leanied Additional Public Prosecutor aud leanied coi.uisel for the accused, convicted and /. •». « senti6nced the accused/appeUaat, as inentioned ia para - 1 of fhis judgment. We have heard Dr. ShaUesh Ahuja, learaed counsel, appoiated by fhe High Court Legal Aid Coiainittee for appearing on behalf of fhe appelfaat and Sbri U. N. S. Deo, leamed Goveniment Advocate for fhe respondent/State. B^;'..i- .':; .'i- 3:'Hi|8"!@i81 W-4 7. As feu- as the question of homicidal death of Jagoti Bai is conceraed, the sagie has not been disputed by fhe counsel for fhe accused/appeDatit. Even otherwise, Dr. Sanjay Vaiikhede (P.W.19) ia his evidence has stated that on 6.2.1997 when he was worldng in fhe prmiary liealth center Chura, he conducted fhe postm.orteiu on fhe body of Jagoti Bai. Theie was a iucised wound on. ffae left side of neck on back 5x3x5 c.ni., radish brown in colozir, directed upwards, clotted blood present, fracture ofvertebra present 3 c.in., C-3, there was tear ofneck blood vessels. In bis opuiion, fhe cause of death was shock, due to heiaorrhage, as a result of fhe injuiy on fhe neck aad fhe death was homicidal in nature. Therefore, ia view of fhe evidence of Hira Bai (P.W.6) aud Dr. Sanjay Vaakhede (P.W. 19) it is esteblished that the death of Jagoti Bai was homicidal ia nature. Now coiniag to the involvein.ent of the accused/appeUaxit in coiiLmittuig fhe inurder of his wife is concemed, Hira Bai (P.W.6), age about 10 years, the eyewitaess of fhe iacident, who is daughter of the accused, has categorically stated fhat at the tiiae ofthe uicident i.e. ia tbe eveiung she was working ia the;/kitchen and at fhat tirne her father assaidted her ^ / moth.er with the axe Ardcle "B", and as she was fr^htened, therefore she rau away froin the house iu the kitchen garden and she heard cries of her inother aad she iaformed about that to her brother Naiae Siagh. In fhe cross-examination fhe ( l.tAM t^U^ -tk t- defeiice has not/eUcit aay circuinstaace, which niakes tlie ../-> evidence of fhis witaiess untruslworthv or luireUable. Beiag the daughter offhe accused/appellaat her presence in the house was but natural and fherc was no reason for fhis witness to uupUcate her father in a false case, particularly iu the inurder ofher inofher. Therefore, we'are ofthe considered opinion fhat ffaie trial Court has rightly placed reUance on fhe evidence of this witaess. The evidence of fhis witness laads support froin the evidence of the ofher witnesses nainely Guruwaru Rani (P.W.ll), Doulat Ram (P.W.12), Bhejgiri (P.W.13), Ram Smgh (P.W.14) and Ram Singh S/o Kham Singh (P.W.lS).They have stated that on the fateful day, ia the eveiung, fhey were playing voUeybaIL wifh Name Singh (fhe son of the accused ), at fhat time the accused came on bicvcle aad asked Nauie Siueh to go to the house aad he wiU never coiae back aad he lefit the place. On the next day ia fhe inorrung when fhe police caiae in the viUage ftieu they caiae to kaow about fhe inurder of fhe wife of the accused/appeUant. Therefore, fhe above conduct of the accused also corroborated the evidence of Hira. Bai (P.W.6). Moreover, ffae axe, weapon of offence was recovered at fhe iastauce of the accused. Therefore, ia view of / ''• flie^&bove we are of the opioion fhat there is no mfc-mity an^d illegality in the judgnient passed by fhe trial Court, as far as the uivolveriient offhe accused iu criLme is concemed. Dr. Sbailesh Ahuja, leamed counsel appearing for the appeQant argued that fhe prosecution has not been able to establish fhat fhe accused assaulted Jaeoti Bai with in.tention »:iSSE to cause her deafh. Froin the F.I.R. it has coiue ou record fhat when fhe accused retumed to fhe house, he found his \fife ta dnuiken coitdition, which iafuriated the accused/appeUaiit and aU of a sudden he attacked the deceased with the axe. ">" Therefore, the offence dtoes not travel beyond Sectioa 304 Part- II of the Indian Peual Code. 9. On fhe ofher hand, Sbri U.N.S. Deo, leamed Goverrunent Advocate supports fhe judgenient. 10. Froni the evidence of Hira Bai (P.W.6) it has coine on record that the accused ia the first instaiice attacked the deceased with a wooden haadle of the axe and when Jagoti Bai started runiuag, he chased Jatoti Bai and agam attacked the deceased on fhe neck with the sharp edge of the axe, whlch proved fatal because of iacised wound on fhe neck, as a result ofwhich the vertebra was cut. The accused in his statement uader Section 313 ofthe Cr. P.C. siuiply deiued his involyeiaent ia the criine. He has not stated that on account of anv act of the deceased he was provoked. Selfprovocation caiinot bring the case under exception IV ofSection 300 ofthe I.P.C., it should be from fhe act of the deceaseil. The intention of the accused/appeUant / •• cen. be gafhered froin fhe nature of fhe weapon used, the inanner iu which fhe deceased was attacked and the part of the body where injuiy was iruQitcted. 11. The Supreme Court ia the matter of Thangaiya Vs. State of Tamil Nadw (2005 Cri. L. J. 684) has held that for gathering fhe uitentioil ofthe accused fhe weapon used, facts leading to V .^ •a iti^S^SS fhe assault aad part of the body where injury is inflicted arc fhe factors to be considered. 12. As inentioned earUer, ia fhe first instaace the accused assaulted fhe deceased wifh the wooden handle, even at fhat he did not stop aud chased the deceased aad agam assaulted from. the side of sharp edge of the axe, fhat too on the vital part of fhe body, as a result of which fhe vertebra was fi-actured and Ja^oti. Bai received fhe uicised injuiy on fhe neck aad she died spontaneously as a result of the injun'. Therefore, froin the above facts and circuinstauces, appeariag on record, it can safely be held that fhe uitention pf the accused/appeUautwas to cause inurder ofJagoti Bai. 13. In fhe result, we do not find any infirmity or fllegality ia fhe impugned judgeiaent. The appeal beiag devoid of nierit is liable to be disinissed aud it is herebv disiuissed. 14. The appeUaat be informed accordiugly, by sendhlg a copy of the judgeinent. ;——„ Sd/- L.C.Bhmdoo Jadge Sd/- Satish K. Agnihotri Judge T'hakur •• /