BS WS^SissS^^Sf1^^ .^^'? i^;'^^t1^'v •^x', CF000005789T (Crn IN THE HIGH GOUR2! OF MADHTA PRADSSH AI JABALFUR Criminal 'Appeal No.„;_/__/199^ Ha» ^ffSBW"" Appellalt (In Jaxl) Mohar Sai s/o Kanhaiys Gond, \^S.{ t/" . . ". . », AgejW'ysars resident of ^awapare, Polic^ Station Manendragarh Distts Sargaja (M.P«). Versus f". ^l k '• The Stote of Madhya Pradesh. r"s r-^i^ -¥T j .••? i <&f 1 •j i«a*.;.._.-,.J.-.-.__^-^. 11 CRMINAL APPSAL u?UNDER SECIIOI, 574(2} OF IHE CODE "^ OE' GRII^IKAL PROCEDJRS s 1973 '. '•^- K- 1'.i\ '^'""^tl.. /<^ ''<".,-'" i'tinK'. 'i1' ...•:. •:^^.-^^H^ APPELLANT RESPONDENT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 571 of 1994 Mohar Sai VERSUS State of Madhya Pradesh Smt. Usha Chandrakar counsel for the appellant. Shri Neeraj Mehta PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGIVIENT (22.06.2010) This appeal is <directed against the judgment and order dated 11.5.1994 passed by Additional Sessions Judge, Manendragarh in Sessions Trial No. 385/1993 convicting the accused/appellant for the offence punishable under Section 304 (Part -1) IPC and sentencing him to undergo rigorous imprisonment for ten years. 2. Case of the prosecution in brief is that on 18.5.1993 at about 10.30 p.m. FIR (Ex.P-12)'was lodged by Manohar (PW-1) alleging that on that day at about 2 p.m. the appellant had assaulted his second wife Phul Kunwar and when his first wife Moharmania Bai intervenedin the matter, she too was brutally assaulted by him and the injuries sustained by her ultimately resulted in her death. After investigation, challan was filed against the accused/appellant on 31.7.1993 for the offences under Sections 302, 323 and 498-A IPC, However, on 3.11.1993 the trial Court framedthe charge against him under Sections 302 and 323 IPC only. 3. So as to hold ,the accused/appellant guilty, prosecution has e^amined 13 wit/iesses in support of its case. Statement of the accused/appellant. was also recor4ed under section 313 of the Code of. Criminal Procedure in which he denied the charge levelled against him and pleaded'his innocence and false implication in the case. 4. After hearing the parties the trial Court has acquitted the accused/appellant of. the charge under Sections 302 and 323 IPC but —^2_ convicted and sentenced him as mentioned in paragraph No.1 of this judgment. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellant submits that there was no intention on the pari: of the accused/appellant to commit the murder of the deceased and that as the incident had taken place all o.f a sudden, accused/appellant cannot be held guilty under Section ,304 (Part-1) IPC. She further submits that all the injuries sustained by the deceased were simple in nature and for this reason also he cannot be convicted for the said offence. She submits that important witnesses Phul Kunwar, Shiv Kumar and the village Kotwar who had accompanied the lodger of the FIR to the police station have not been examined by the prosecution and therefore, benefit of same should have been given to the accused/appellant. 7. On the other hand counsel. for the respondent/State supports the impugned judgment and submits that the Court below has already taken a lenient view in convicting the accused/appellant u/s 304 (Part-1) in stead of Section 302 IPC. He submits that the accused/appellant had caused 17 injuries to the deceased with the help of 35 inch long bamboo stick and therefore, the findings of.the Court^below.convicting the appellant u/s 304 (Part - I) IPC cannot be said to be unjustified. According to the State counsel, as the appellant has made extra judicial confession before Manohar (PW-1) and Mohan (PW-4), it is apparent that it was he who had committed the murder of the deceased. He submits that Shiv Narayan Singh (PW-2) is the eyewitness to the incident who has categorically stated about the involvement of the accused/appellant in the crime in qyestion. / 8.. Manohar (PW-1) - the lodge^of the FIR Ex. P-12 has stated that on the date of incident he was informed by his son Roop Narayan that the appellant had called him and when he went to his house, he was sitting near his doorstep along with his sister. When this witness asked the aceused/appellant as to why he had called him, he told that due to quarrel -with his wife he had killed her. On hearing this, he straightaway went to call the Kotwar. He has stated that when the door was opened, he saw that the inu '^-' SSSKS -s— 'WSSSISS WWE9S '^.&^^ d6ceasedwaslyingthereandnumberofinjurieswerevisib]eonherb6c|% Shiv Narayan Singh (PW-2) one ofthe eyewithesses to the incident has stated in hjs evidence that when he along with one Shiv Kumar had gone tbthehpuseoftheaccused/appellanttoattendCertainritualsforthedeath of his aurit, hesent his second wife Phul Kunwar to get liqupr and then he himself, Shiv Kumar as well as wh/es of the appellant consumed liquor. Thereafter, one more bottle ofliquor was called by the acGused/appellant which he had consumed alone. According'.to this witness, when Phul Kunwar was serving the food tothe acGuSed/aFipellant, he threw away the same saying that it was not CQQked wgll an'd then started ^beatiiig her, When first wife of the appetlant namely'siyciKarrnania'^^^^ came to intervrene iri the matter, tie staffle^^ g this,ShivKurnarleftthespot.AGeQrdmgtotKiswitness,wMenhe^ intervene in the matter, the acGUSed/appellant had beaten him also. Thereafter, this witness went to call the yillagers and after his return when hesaw Moharmania, shewas dead and her deacl bodywas lying Qn the cot. Dhanukdhari (PW-3) is the seizure witrress of various articles who Mas supported thecaseofthe prosecution. Mohan^PW-4) isthewitness before whom the accused/appellant had made extra judicial CQnfession. Dr.,P.K. Niyogi (PW-9) who had conducted the post mortem examination pn the body of the deceased has stated that there were 17 injuries on her bQdy and some of them were in vital parts. He has stated that though all e injuries were simple in nature, because of their cumulative effect d6ath could have occurred. 9. Thus after examining thernaterial available on record this 'Court reachesttre conclysion that the prosecution has succeeded in proying its ease beyond reasonabl3 dQybt. Looking t6 the staterrients of W^ ./. ' . • ' :1 . • ;':• : ' :<: .' ':- ;: •' • ' ,.. ;,'1 leyewithesses to^thfe incident, number^of iryuries on the body .of^the deceased^neluding vital parts ther^ and extra judicial confession raade y By the accused/appellant before Manohar (PW-1) and M^ cpnvietion ynder secrtion 304 (Part-1) IRC appears to be ^ully justifi^ ^hte^es/e^a^thfe]nci(jerithadtakenplaGeinlheyearl993^ ias®|ti'nIJ|^^Glg(^ase<:J,tbe aeeusetfw^ lKiiE:@Q|.l|giBol%ythat th& 'ena of .justice woi.ilcl ^ineet ifaffiie .se'|^i|g| t I'l M •1] ag/ -<Y- imposed on him is reduced to rigorous imprisonment for five years plus fine of Rs. 500 in place of rigorous imprisonment for ten years. 10. Consequently, the appeal is partly allowed. Conviction of the accused/appellant u/s 304 (Part-1) IPC is maintained. However, sentence of rigorous imprisonment for ten years awarded by the Court below is reduced to that of five years plus fine of Rs. 500. ^^^. Sd/- Pritinker Diwaker Judge 'i-t. '•3US~ Bi ES