f- -''k'-~.(l.>M <^' 6^-^-^ ^_APPEAL OF PRISONER-/ |1 Name sr^-^Q_ Eher's Ngme ~^-%-R7' r\ Residence5SS_r33®^ ^ Sentenced t3 '^T^g'^ cs-w.iiyi'g',_ _ ___-^'^^^ 3-11 ^-A-£^!^2— under Section ^ so2- '3:.<l-<-bv~-(^??r°S(l^-»?^r_ S.T.No.4^/5t3 ^^TT^Stl ^. It is explained t3 the prissner thgt' if he states or ;hes fo be reprssented by a legal prgrtitioner -the Appellate irtwill not proceed with the base for saven days unlsss; the ial practitioner appsars. If the legal practitioner does appear with in seven dgys he.may be heard at all if the ,,S3ner states that the doss no't wish to be represented by jal^practionar the Court may procesd at once with the case p '&.i!,l not be obliged to givs a hearing to any legal proct- ^oner who shaud appear. Date of applicati3n for c3@y of Judgenent: ^-(o- .Oate of which cspy received;- I'a'- A •9/i Date on whichAppelisent:- 2-o- 4'?4 ^ (ntinusd inl2^^__^Jii^J?.il_^dB^^^JLjY'^_6&^^£_ad'. ^___/^S^^a.^s^jM—— Dated Z.^/" 4 /^4 Erwarded to the CHIEF JUDICIAL MX3ISTRATE <~TetA^L/^-UW&; Igather with -3 copy of jifdgement or order p4s^sd in ths case IE favsur 3f transmission ts the proper A)ar>liats Court. Whether the prisoner wished -to be represented or not .1-—^ \'es/-s^-r Name _0<,-^ S(<- T^Gj^T^f- -._)., SrpsriiSei ?upaSSltftiP?Rfe?I:. fte sf recsipt in C.J.M's Office. 'Z2 t,e of receipt of record of accompany. .mo of Appeal of ths Appelliate Court. Dated istt./ Srwarded to the .^n5<^^ '^^^^? C.J.Magistrate, \^ •te of receipt of Appelliate Court il^ IIISI! ."\llS —sit ../i""- :i^^ -iw.' T'l DIViSiON BENCH; HON'BLE SHRI K.H.N. KURANGA, CJ & HON'BLE SHRI L.C.BHADOO, J CRIMSNAL APPEAL N0.827 OF 1994 Sd/- L.C.BHADOO Judge T^, —S'W^si&tTw—' >nief ^.w^ Sd/- ChiefJustice ^ JVtfAW- :^ Sd/- J U DG E 31& /04/2004 t_t.s^iS_s /^tt^i.i s^i'y ^"i.s"1 it ll!-<.S/a»;al>E"t FP%irn iWtEJ'.IR *P"V3 pujsnt ^}-%3r. ETt8E ^i°<i]=SifES^ 'ni^n^vun.i ^i-^uuik.fAiunis L.Kr3iaiAi U^^M^I^; E?3LM's^ly?tt SIVISSON BENCH: HON'BLE SHRI K.H.N. KURANGA •aLi i».\^. E^nr^^^^W^ U B7 OF 1384 APPELLANTS/ACCUSED RESPONDEN' Chand;-u S/o Sukdas Ohurvs. acisd about 26 vesrs. R/o vi!iaae Chilputi. Poiice Station: Frsjarp' District: Bastsr (CQ) VERSUS state or ijnnatiisgari Pressnt: Shri Abhay Kumar Tiwari, Counse' for th.s appeiiant. Satish Guota. Dv. v^QVL Aavocas 3tate/resDondent. MT (Delsvsred on^^L'ofApri! 2004} The foliowlng Judament ofthe Courtwas deiivered bv LC. J: Accused/appeilani Chandru has preferred this criminal avpess^ under Seotion 374 (2) of ihe Code of Criminai Prooedure, 1973 bei^g aggrieved by the judgment of convjction and sentence daled 15/04/19&4, passed bythe learned Second Additjona! Sessions Judge, Bastar ai JagaaipL'r in Sessions Tria' No.461 of 1993 whereby the ieamed Seoond Add'tSorsi Sessions Judge affer hoiding She accused/appeiiant guiity of the offencs punishabie under Section 302 of the indian Penai Code convicfed and sentenced him to usidergo imprisonmeni for !ife. (2) Factual scenario giving rise to ihe present appeal is as foilows: On 09.06.1993 ai about 3.00 P..M. the accused/appeiiani vvent to ihe houss of vlilaae Kotwar Sukdas and inrormed him that he had commitfed the murder of his uncie Dewoo bv assauitina him on his neck with a Tanflia from ihe sharp edaed side and on the head from its blunt side. When Koiwar Sukdas aste'd the accused/appeilant as to why he has murdered his uncis, the accused/'appeilant repl'ed fhat he i.e. his uncie Dewoo v»'asnot ailowing him 1:0 piough fhe field and he always used to quarre' at the resldence. Sukdas asked w him to wait bu* the accused !eft the house of the Kotwar. !<otv/ar Sukdas after taking Hastu, Shankar and Lahngoo aiong with him went io the horse of Sn:5 accused and Ihey saw the dead body of Dewoo. There was cut injui-y' on She nsck and another injury on ihe head of Dewoo. Biood was oozing Oui of th° injuries. On ?he same day, Sultdas reported the matter {o Frejarpur Po'ic's Station. The poiice regisiered Crime No. ^20i93. The investigating Officer reached the scene or occurrence and afier givlng notice fo Ihe ^anchas prepared ihe Panchanama of the dead body and sent the same for p0£:t mortem examination. Assistant Sub Inspector Surya Bhan Singh o''; 10.06.1993 seized the Tangia, weapon of offence, from the accused. Hs also seized piain soi! and fhe biood stained soii from ihe scene oioccurrence. D:'. K.R. iVSourya conducted the autopsy on the dead body of Dewoo and oi'epsrec! the post mortem report Ex.P/5. (3) The Poiice after completlng the investigalion flSsd the charge- sheet against the accused Chandru, Budhram and Sonsingh in the Gourt af Additiona! ChiefJudiciai Magistrate, Jagdalpur.who inturn committed the cass to the Sessions Court, Bastar from where the Isarned Second Additioina! Sessions Judge, received the case on fransfer. (4$ The learned Sec-ond Additiona' Sessions Judg-e after hearlng the arguments on charge and perusing the records was of ihe opinion thst the's was sufficient materia! to frams charge against sccused Chsndru, Sudh'asri and Sonsingh lindsr Section 302 or in the aifernstive, under Ssctlon 302 rssc wilh Section 34 of the 'ndian Penal Code. Accordingly he framed ths oharges agalnsl the accused persons for the commissio" ofthe aforesaid offences. Ths charges were read over and expialned to ths accused/appeiianls. 'ft:e accused/appeiiants denied the charges anc claimed to ae tried. (5) The prosecution in order fo prove the charges against ihe accused Dersons examined in a!i five witnesses at the trial. The staiemen'ss o' the accused personswere recorded underSection 313 ofthe CodsofCrimina' Procedure in which they denied the aiiegations ieveiled agalnst thsm 3''.cl ststed that they are innocent and have been faise'y implicated in the crime. ir^ defence accused/appellant Chanciru examined two witnesses namely Lskhani] (DW-1) and Astu (DW-2). (6) The iearned trial Court, arter hearing the argumenis of v,s iearned Additional Pubilc Prosecuior and ihe learned oounsei sppearing .o- 'he accused oersons scauitted accused Budhram and Sonsingh. However. afts' bellsv'ng fhe evidence of the prosecution witnesses, he convicted sn^ sentenced the accused/appeilant in the manner mentioned in para one of :hi;; judgmsnt. (7) We have heard Shri Abhay Kumar Tivvari, learned counsei fcr the accused/appeiiant and Shri Satish Gupta, Dy. Go'irt. Advocais fos- ih.:; State/respondent. $8) As far as the nature of the death c>f deceased Dswoo behci homioida! is concerned, it is not In dispute. PW-5 Dr. K. R. iVSourys, hss staled !n his evidence that on 11.03.1993 he was working as Assistani Surgeon in •the Maharani Hospiiai, Jagdaipur end on the request ofthe Poiice of Police Statiori Frejarpur he conducted the autopsy on the dead body of Dewoo. "he bodv was in swolien condition. ivlaggote were crswting overthe body. The skin a' the chest and the sfomach was not present. IVioyth and the eyes were ciosecl and ths foui smeii v.'as emjiiing ?rom ihe body. There was incised wound or She ieft side of the neck in the slzs of 8 cm x 4 cm x 6 cm, deep up lo 'ht. inuscies. There was an incised wound on the lefi parietal region ofthe ssu!' ir the size of 6 cm x 4 cm bone deep and on account of this injuiy bra'n maSte;' 'A'as comina out and ihe parietal bone vvas fractured. Ths membrane was a'sc iaceratea and the carotid arSsrv was a!.so cut. Th-s cause of death of the decsased was shoc!i: and hemorrhaae. The iniiirles were Enfe rncriem !r nature. The post mortem report is Ex. P/5. The doctor also examjned "hs Tangia and gave his rsport Ex.P/5. in ihe opinion cf fhe dcctor *he sbcve injuries coiiid have been caused by fhe Tangsa, which was shcwn to him. ;r: view of the above evidence of the doctor and the evidsnce of PW-1 Sukdas PW-2 Mahangi and PW-3 Krishnaial, it stancs proved that the desfh of deceased Dewoowas homicidai. (10) Now coming io the involvement ofthe accused/aDpeiiants ir' l.he murder of Dewoo, PW-1 Sukdas is an IndependenS wrtness. he has s'iated in his evidence thai on 09/06/1993 at about 2-3 P.M. he was in his house; st tha: tlme accused Chandru came to his house and Informed him that he hsd co'nmltfed She murde.r of his uncie'Dewoo by assaulting hlm 'A'ith Tangia and a'i fhat time the accused/appe!ia"S was holding blood stained Tengia In his hand, Whesi he trled to snafch ths Tangla ihe sccused/appellant rai-, sway. Thereaftei' he along Wi;h Shankar; P-stoo and Lahngoo weni tc the house of accused and saw the dead body of Dewoo. There was incised wound on ths neck of Dewoo and there was aiso an injury on the head. Thereafter, ^s tre-. 'w reported ihe matier af the Police Station. The Teoori is Ex.P/1. The poiics seized the Tangia under Ex.P/2, which bears his signature. Ths potlce a'ss seized the plain soi! and the blood stalned soil from the piacs of Inciderit urde- Ex.P/3, which beare h!s signature. In the cross examlnatio" ths deferiGe hss noi been abie io eiicit anything, which makss the evidence of ?',¥-' untrusiworthy or unreiiabie. PW-2 iVSahangi is sn syewitness io the i'idder;. She has staled in her evidence that she was engaged by the accused SCT jrazing the cow and in iieu of he used to gjve her rioe. When she weni to ihii house of the accused Chandru for coiiecting rice ss her labcur chai'yes, shs saw Shat accused Chandru and Dewoo, the deceased, were presenf tiiers and aocused Chandru assaulted Devvoo with Tanaia on 'nis neok. A.ccusej Budhram and Sonsingh were holding of Dewoo. Thereafter Dewoo disd. PWI 3 Krishna!a! has siated that affer hearing the nolse comina out from the houss of Sukdas, he peeped into the house of Sukds.s. He saw 'the deac body of Dewoo and on seeing the dead body he became frightened. A>ccussd Chandru, Son Singh and Budhram were standing near the dead bcdy an:l accused Chandru was holding the Tangia in h's hand. Thereafter he retuned to his house. After sometime the aecused persons came near hOllSC!. Dewoo was unmarried and he was residina wilh Sukdss. Accused Chanan,, iudhram and Son Singh are fhe sons of Sukdas. in vle:w of the evidence, n stands proved that accused Chandru assaulted the deceesed wlii Tangia on his neck and head and he made extra judiciai confession sefcrs P'vV-1 Sukdas, the Kotwar of the village. PW-2 Mahangi has stated in her evidence that accused Chandru assaulted the deceased with Tangia. (11) As far as the evidence of defence witnesses namely Lakhm.' DW-1 and Astu, DW-2 Is concerned; Lakhmu hss statsd that cn the fatefu! day hs and the accused/appeilant were working together in the t'ieid and v'here ihs fefher of Chandru came and informed that Dewoo has died. T:1e absvs evldence of this witness cannot be beiieyed becsuse m the firsl 'nstsnce hs 's a relative of accused Chandru and secondiy, on this aspect PW-1, PW-2 and PW-3 have not been cross examlned on the poini whethsr at the tlme of ths incident accused Chandru was present in the agriculturai fieid and whethsr hs was not present at the scene of occurrence. Therefore, this evidence of DW-1 sfterthought and the sarne cannot be beiisved. As far as DVV-2 Asty i-s i:& concerned his evidencs is of generai nature whicr; is of no heip io 'ihe accus.ec. (12) Therefore, 'n v'ev»ofthe above disc'jssion, we srs oftheopjnlci that the flnding of tlie learned triai Court holding the accused;'appeiiant l^-1 OH QiC'Q? ifirrr;i{v 'n th Chandru guilty of the commission of murder of Dev.'oo, is basi appreciat'on ofths evidence and vve do not find any l!iega!lty or r findinci ofthetria! Court. (13) Furiher, learned counsei appeanng for the 3c;cusedi''appei:jai,t has noi chalienged the conviction. He has argued that the offer.es iji'idfer Section 304, Part-li of the indian Penai Code is made out againsl the accused/appellant as the prosecution has not been abie 'io prove that ths accused /appeliant assauiied the deceased with the intention to coTimi! his murder. Learned counse! reiied upon ihe judgment of fhe Hon'b'e Apex Co'j.'t in the ma'tter of Shanmuaam alias Kuiandaiveiu Vs State of Tam'I Nad.! reported in 20Q3 CRi.L.J. 418 and in the matter ofSuresh Sita Ram Stirve Vs state of lyiaharashtra reported in 20QS CRLL.J. 475. in ihe casg of ihanmugam ailas KuEandaiveiu (Supra) the Apex Court has heid: "Accused in a petty quarrel armed vvith spear (pointed vveapon) stabbed deceased on his abdomen and ohest- Victim died s week after the incideni, out of sepiicemis- Accused though v.'as in posiSlon to cause inslanlaneous death of victim bu{ ieft the spot after being persuaded by h'.s 'A'ife who rushed to scene of offencs cn hearing the cries- Evidenoe of Doctor, whc attsnded vlciirn while in HospiSal noi' ieading to a definlte conclusion as to sufficisncy of irjuries causing death 'n fhe c-rdinan/ course." In the case of Suresh Sita Ram Surve(Supra) the Apex Court has heid ihus: "Post-mortem reoort reveals the cause of death by 4 injuries on chest and abdomen by Gupti- Consistent evidence of ai' witnesses that appeilant plerced Gupti Into stomach and abdomen of deceased- Thev wifnessed only one injury being inflicted by appeliant by Gupti- However, evidence of some of 'witnesses revea! that accused surrounded deceased and more than one person was armed with Gupti- Two Guptis recoyered In piace near incident- Under such circums'iances, it can noi be inferred ihat appeiiant oaused ail the severe injuries orthe fafal injury." ,yo These tv.io cases are of no help to the accused/appeliant in the present case. In the present case, as per the medicat evidence the decease died due to shock and hemorrhage. PW-5 Dr. K.R. Mourya has stated in his evidence that the carotid artery was cut and that injury was suffioient in the ordinary course of nature to cause th8 death, Even otherwise, as per the medical evidence the left parietai region of the deceased was fractured and the brain material was coming out and the accused himseif informed the Kotwar of the viliage that in the first instance he assaulted the deceased with sharp edged side of the Tangia on his neck and thereafter he assaulted him with the biunt side of the Tangi on his head and he further said that he had murdered hjs uncle because ne vvas not allowing him to piough the fiied and aiso he used to quarrel in the house. The death ofthe Dewoo was sponfaneous. Therefore, in view ofthe above medical evidence, the nature of the injuries and the weapon of offence used in the crime and also the fact that the injuries were inflicted by the accused/appellant on vital parts of the body i.e. head and neck, we are of the opinion that the prosecution has been able to prove beyond reasonable doubt that the accused/appellant assauiied the deceased with the Tangia with the intention to cause his death and the injury which he caused with the dangerous weapon iike Tangia on the head was sufficient in the ordinan/ course of nature to cause death. Therefore, looking to the facfs of the present case, the above- cited judgments are of no help to the appellant. (14) For fhe foregoing reasons, we are of the opinion that the conviction and sentence passed by the ieamed triai Court requires no interference by this Court as the same are based on proper appreciation of the .evidence produced bythe prosecution. (18) In ths resuit, the appeal preferred by the accused/appeitant fails and fhe same is liabie to be dismissed and it stands dismissed. Sd/- Chief Justice V. ^C^E§.- Sd/- L.C.BHADOO Judge