^^y aii^r^r wtran^T ^K; •^'s^- *<I*ICTI a»*(i<h ^sr •<<I'LIICI<I, ^•rfly'l'e, Fqoiyy ,..£ac.A...^..U...;.5:$:/.6.^ 31I^ff.1!ra^ (lyi^<)<^) DIVISION BENCH: •» HON'BLE SHRI L.C. BHAEWO & HON'BLE SHTOT7P.SHARMA.JJ GRIMtNAI. APPEAL M APPELLANTS 1. Gwid Ra^n S/o Dukatu Suryavan^ii aged ?ln Jain 50years '*w[ci<fl-i i<i4rtf 4 fe^t <F^t(]< ^3TfgiT3lA?[ O.iaS/2083 Wtlage Bamhoo P.S. Sepat Dist- Bilaspur (P.G.) Smt. Jslmuna Bai w/o Gand Ram Suryavan P.S. Sep^ VERSUl RESPONDENT State of (] Dist Bila^ Shri Dharmesh Shrivastava -;-^ Shri Sudhir Bajpai Dy. GA shi aged 40yeafs Viltage Bamhoo it Dist Bilaspur (C.G.) hhatU^arh Throi^h P.S. Sepat, 3ur(C.G.) 1 counsel for the appettants. flor the respondeirt/State. .lUDGME (Passed on L.C. BHADOQ, J NT(ORAU ^6.6.2008) This appeal is directed agajtast the judgment <rf conviction and order of sentence dated 28.12.20C^ p^sed by the AJelitional Sessions No, 376Q001 whereby the leamed convieted the accused/appellant Judge, Bilaspur, in Sessions Trial Additional Sessions Ju<^e has Gendram under secUon 302 of fte IF'C and Smt. Jamunabai under ?ira^T ^^ ^j^uij^^ T '197—3/2008—40,000. ,tl;"S:'Bat /',^^ "i'':^S^HC-78 3]R?r W ^•U'h "(T8TT 3?TT^ sn^ieh ^it^'f^^ tlllcn ^qi9i 3^ •<fl<ll<v1^1, 0iTl)'«4'IS, fs«Y1l'(Hti< ^....C.^.A......^J^^ sn^i '^^.( t'li^'i^) WiiWBftasn^r section 302/34 of the ITC, imprisonment fbr life. ^nd sentenced each of them to undergo effect Babutfet catne 2. Case of the prosecutio|i deceased Babulal todged a Seepat on 21.6.2001 tothe well as her husband garden. At about.10 a.m. her] and their son Ram Kumar that once ttie partiUon has done. The same thing was which her husband Babulatl partition but as the land was| help of rope. On that, Jamun^ the meanwhile, Gendram as| on the ground. te soon as h^r Gendram started attacking attacked him with knife. on the ground. Gendram, of her husband by attackinj Dehati Information Ex. P-1, | recorded and FIR Ex.P-1A the scene of occurrence. inquest Ex. P-3 on the body sent for post mortem under Ex. P-10 where Dr. 4»1<<['vf^'T^fftl^fr ^f 'fe^ TF>1'(^.1< ^i'sTRrosii^i in brief is that PW-1 Seventin Bai wife of Btehati Information Ex. P-1 in Police Station that on that day at about 8 a.m. she as were leveling the well in thdr Idteton [brother-in-law (Jeth), sister-in-law (.lethani) towaids ttieir house and Jamuna asked faken place, how many times would it b® ^akl by her brother-in-law (Jeth) also, on replied that he was nol asking for any luneven, therefore it be measured wtth the picked up a club for making an attwk. In |;ed her husband to put down the pick axe i^r husband Babulal put ctown tte pfck axe, with knife repeatedly. Ram Kumar al» caught her by hatr and ata-upUy threw and Jamuna committed ttie munjer him with knife and lathi. Bas«l on this merg intimation Ex. P-2 and P-2A were registered. Investigating Officer teft for giving notice to the Panchas he prepared ()f Babulal. Thereafter, body <rf Babulal was to Primary Heattti (^ntre, SeepErt jRajesh Kumar PW-8 condiwtBd ttie post hlm Jamluna Ralnkumar Was Aft4r exafftnation ^"- .rf'sr /''^lh .j;' •f l;L. ^^S-i!.. 'S 'i lilBiilF"*y!>. " •^;^1,/ '"S'it'SSS^" ssi^r'w ft-ti* wnw^rwiN? ^TTfT^t? ^l? Hs!.U][^ <^( <n*«ir(BttKh ^ST •<11<LII<1^, ^Til'y'16, f®IWI'Hlj,< _..£ac..A.rJ.&:^:(/..^.. W1200 sn^i 'fsw (icitai<^) wiim'aft^ ai^i mortemand opined thateauseofl to rupture of vital ofgan (liver, he^rt injuries. He prepare3 post morteifi took into possession plainso a4 bated occurrence under Ex.P-9. Cloth^s possession under Ex. P-8. W>1ile memorandum Ex. P-15 and seized at the instance of accused seized at the instance of accus^d Ex. P-19 was prepared. Seized Laboratoi'y, Bilaspur, for chemj Ex. P-24 was received. (death was shock and hemorrhage due and teft lung) as a result of multiple report Ex. P-10. Investigating Offirer jd blood slained soil from the place <sf of the deceased wera taken inte in police custody accused gave on that blood stained knife was IGendram under Ex. P-16 and tathi was Jamuna under Ex. P-14. Sils plan dirtteles were sent to Forensic Seience jcal examination from where report 3. After comptetion of investf^tk>n Court of Judteial Magistrate First the case to the Court of Sessions Judge, received the same m^ny recoilded 4. In order to establish the prosecution has examined as accused/appellantwas also Criminal Procedure in which thel against them in the prosecution some land dispute they have question. Accused Ram Kumar b| was filed before the Juvenile JusUI +i<<[ci4)'f wfrif 4 felzt At^K '^sTRmsiRSr Sestions charge sheet was filed in the Slass, Bilaspur, who in tum comfflitted from wher® leamed Additional ontransferfortrial. chjarge agalnst ttie acrajsed pwsons, the as 15 witnreses. Statement of the under secUon 313 <rf the Code of y have denied the material an?eartng ^vidence and statedthat on account of falsely Implicated In the crims in |sing juvenile, charge sheet against hm t»Boaid. b^en '-a — FS/IA7—3/2008—40,000. .r: ,,^sa /^^ ^ ^ ^*. '^ .^ "'til !BSi»' aTf^iqnlyiNi' WIT an^l *Ni+ ^ST •<<I<<K'I<I,yal'M'ie, fii<ni'M^< -^- *II*ICTI a>*iiq» _.<:^x:.,.A.-.. •V1200 Sf^\ ^rt^ (iqi^qc^t) TOIIW^fel 311^1 J-- iir^?H?m^< 5. Leamed Additional-Sessioi|is parties and perusal of the record, personsas mentionea aforesaid. a|Sipeflants 6. Learned counsel for death of deeeased Babulal. Mo( stated that on 22.6.2001 he was| Health Cenfre, Seepat. At 1 examination on the body of wounds, left lung and teft ventric|e and cause of deaft was shock organ and the death was homicids has not disputed the homicidat i|-eover Dr. Rajesh Kumar PW-8 has posted as Medical OKeer at Primary n|3on he conducted the past mortem and found as many as SK stab and left stele of Iwer were punetured hemorrhage due topuncture of ^rftal in nature. Bartilat arid evidence 7. The above medical evidence of PW-1 SevenUn Bai Bai PW-2 daughter-in-law of daughter of the deceased who Gendram caused stab injury to above medicat and ocular eviden^ was homicidal in nature. 8. As far as complicity of acc|used/appellant Seventin Bai PW-1, Chameli Bai daughter-in-law and daughter of that on the fateful day when decejased were teveling the well, at that tin^ <OT<rf^qh TTPR"?ff ^f 'fe1^ ^T<?^R i? 3(Rin SII^T Judge after h^ring counsel for the convicted and sentencwl the aceused fs eorroborated by the ocular ^nfe ofthe deceased Babutal, Chameli t(ie deceased and PW-15 Droftf the l^ave categorically stated ttiat accused ?abulal witt) knife. Therefore, from the <te itis established that death ofBabulal Gendram is concemed, RA/-2 and Drepfi PW-15 viAio are wife, he deceased hawe cat^orically stsrted Babulal and his wife Seventin Bai e Gendram, his wife Jamuna and thetr <ns — FS/197—3/2008—40,000. «" ^ 1*T " lf"«!«,,, ;la> ""^ s«6:h.S KESiBi- '^is^'' ,i •tnar' •ai^r^ifttw w-vfSs's^ -i;/:K?sr 1 ^0 *<r^?li fhw«h ^ST •^wivf<i, w^wie, fqyiyy ..c.^c-.a..-.. c - •"^200 311^1 f51<n '( •jCjt^q^I:?) ?'RIIW ^lftif 311^1 sc&ne even We son Ram Kumar came on tte knife. They have stated that wNh knife and to this extent examination which discredits merg intimation, FIR and Dehati| categorically stated that Gendraijn the deceased. Even the knife Gendram which was sent for chj Laboratory, Bilaspur from wher^ knife was stained with bloocf. evidence, evidence of aforesai4 Dr. Rajesh Kumar has also examination and after examini injuries found on the body of Bs questten. Thus from this the aforesaid three witnesses is that accused Gendram attacked stab injuries, theflndings ofthe or inflrmity. jffi-^ra- B-I^Fl-q^iTn^q'^ r 9. As far as accused Jamurja appellant argued that in Deha( Jamuna attacked the deceased in the court evidence thatone lalhi evidence is concemed, the cau|s< Gendram and no lathi injury 'tiiit<"i<fl'< 'wwif 'if ftTst <r<ii*<;i< ^;3fRCT3fI^[ and Gendram attaclted Balautat with Ram Kumar has also stebbed Babulal do not find anything in their cress the|?evidence of these witne^. Even in the llnf^nnation given by SevenUn Bai, it is and Rsm Kumar caused stab injury to ^fas seized at the instance of accused ifemical examination to Forensic Science report was recen/ed stating that the Therefore, from this cjreumstantial eye witnesses is corroborated. PW-8 sltated that Imife was sent to him for ifig the Imife he opined that the stab libulal coutd be caused with the knife in evidence also the tesflmor^ of corroborated. Therefore, te the extent Ideceased Babulal with knife and caused Court do not suffer from any illegatity circunlstantial th'al is concemed, leamed counsel for the ti information it is not menNoned ttat ^Mth lathi. Improvement has been made hi blow was given. As far as ttie doctor's se of death was stab injuiy infliGted by was found on the bocty of Babulal. -FS/11)7—3/2008—40.000. < t an^CTqii tmESff^TsinN' s^^^-:&7^ (g) vimwi a»*<iti» 3^T •<<l<<l<1<<, ©Tilyis,fqcll'Hy ,X^.A.....!.S^4b^.. £- W^T^ra^r (1?t3«l<i4) TOiiwiiftaan^i Therefore, there is no niaterial on caused fetal injury which was Irecord which estabtistos that Jamuna resplsnsibte for causing death afdeeeased. ahd 10. As far as her convi^tion concemed it is not a case Where with the accused Gendram to cor|imit prosecution case, when Babulal garden,accused pereons came has already taken place, how m^ny deceased Babulal was real broth^r started on the spur of moment 't^ asked Babulal to keep the pick a((« ttie ground, all of sudden, There is no material available on| asking Gendram to attack Babul^l knife withher. Prosecution has sharing common intention with is mentioned in Dehati infennatlon record that Jamuna attacked simple injuries to her. Thus Jampna section 323 and not under secti()n Jamuna has already remained in j^iil Gendram 11. Learned counselforthe real brother of the accused and which accusect attacked him ^iili'i'fli wivS ^ fe^ <R«si< ^i'sfRman^T lunder secUon 302^4 of the IPC is (amuna was sharing common irtenKon n|imit the murder of Babulal. As per Uie his wife were working in the kitehen Ijhere andsakl that when the partition ^ny times they would get tt done. The of accused Gen*ain. Some quarrel which Gendram at the flrstinstance >((e on the ground. When he k^>t it on ^arted attactdng hlm wtth knife. record to establish that Jamuna was wtth knife or she was canying the Ifailed to establish ttiat Jamuna was to cause the death of Babulat. tt and other evidence avaitable on Bai and thereby she caused has committed the offence under 302/34 of the IPC. »t is staled that jtiil for about 290 days. Gehdram S^ventin JN' apjsellants argued that deceased was the ^uarret startedr^arding some land in Uie heat of passion without any in STTg^R^? ^ —FS/197—3/2008 —40,000 v 311^1 wft-fi* "tWT 3H^r stiflf<t> B, ;'?^^:^^^ *11*1CTI ttl11<«» TS( •^W\V\it, &TSWW, [~s{V\Wj<. .c^:.£t.^LS:.S:./..v3... -7 Wl 200 sn^i ^ra^ (ici(i'"t?) t«nw^n off^i the prosecuUon evidence, Ram +l^Ict<fl*l *n*!<-ff'if fe^ <I<i<^i< ^STRlt 311^1 preparation or premeditgUon to cs|use death of his brother. Ewn as per Kumar and Gendiam brth attacked Babulal with knife; frierefore, it tannot be said that Babulal died on account of the injuries inflict^d byjGendram only and the offence against Gendram does not travel beyond ^ecUon 304-11 ofthe IPC. 12. On the other hand, ttie judjment of the trial court is supported by the counsel for tHe State. 13. In orderto appreciate the E|rgument of counsel for the appellants, we have perused the evidence of and Dropti PW-15 as wetl as the information and evidence of Sev^ntin Bai PW-1 who was worlgng wlth the deceased at ttie time of leveling thewell. Atthattime, acc ieventin Bai PW-1, Chameli Bai PW-2 Dehati infbrmatton. Pwusal of Dehati neident, categorically mentipns tttat deceased Babulal and hls wife w|ere working in Ure kttchen garden for jsed Gendram along with his wife and son came on the spot and asked ^hatas to hcw manytimes the partifion would go on. On &»is,deeeasedsi^npty reptied that he was not asking tor any partition but land is unevei^, thersfore, it be measured by rope. Gendram asked Babulal to put c|own the pick axe on the ground. fis soon as Babulal putdown the picl^ axe on theground, aceused Gendram immediately started attaeking him| with kntfe. Even his son was paity to the attack. As per the post morten|i report there were SB( stab wounds on the body ofBabulal as a resultofijirtiich ribswerefractured, leftportion of lung, liver and hean were fraGt^iredortiieh proved fetat. Number of injuries, place on which they wer^ caused, natore of weapon smd loroe wwfiq vSv yfpnev.ysiv'w! — FS/I 97—3/2008—10,000. / ki '\ g"; -tfro •im.m^ fe -i ^r ^ST •^nw^, y-fll.y'is, [s<dl'9y,< ^Wvn tlrHleSt A.^....fe?3C.A...-..(.>S^ •W[,200 STI^I T^r^( •jqt^iyf) l^iraT'afttian^i estaUlish wtth which they were caused, angry that he gave repeatedknife lung, liver and heart were puncture^l number of injuries, part of the b^ weapon i.e., knifeand the foree establish the intention ofttie accused that the accused was so mueh blows to Babulal on account of which and he died spwtaneously. Thus, ><tcty where they were inflicted and which rspeated blows were given in commitUng murder of Babutal. w* 14. Thus, in view of the aforesaid not find any Htegality or infirmity in it relates to accusedteppeltant regards accused Gendram Is dismisf 15. As regards accused Jamuna conviction under section 302/34 imprisonment of life are set aside 4 under section 323 of me IPC and undeigone by her. She be set at lilj) other case. L.C. Bhaduo Judge <=t>i^f<r(4i'i MW^\ ^f "fe^t <r»i^i< ^isiRnsn^i levidence available on reconl, we do Wp judgment of the trial courtas far as Getidram. Accordingly, the appeal as ted. pal, the appeat is partly attowed. Her !of the IPC and the sentence of tnd instead thereof she is convicted to the imprteonment already forthwith, if not required in any - ^ selitenced lil|>erty Sd/- T.P. Sharma Judge ^F^T g^T^T,.T^Ht^TN —T:S/ll>7—3/2008 —40,000. +