{Criminai appeal under Se i Division Bench: Hon’ble Mr. L.C. Bhadoo and Hon’ble Mr. T.P. Sharma JJ. 7-5-2008 Mr. Abhay Tiwari, counse Mr. Akhil Mishra, Deputy Oral judgment dictated or :Dais. L.C. Bhadoo. J: - This appeal is directed against sentence dated 27th August, 2C Judge (F.T.C.), Raipur in < whereunder learned Additional ‘ appellant guilty for commission for :committing the murder ( imprisonment for life and pay a ction 374 (2) of the Code of Criminal ’rocedure} for the appellant. 3ovt. Advocate for th‘e State/respondent. the judgment of conviction and order of 03 passed by the 9m Additional Sessions fessions Trial No.78/2003 whereby & Sessions Judge after holding the accused/ of offence under Section 302 of the l.P.C. if Hemraj, sentenced him to undergo fine of Rs.500/—, in default of payment of mm WWW ._ wwwwi‘ww am'WI m APPELLANT: Rajesh, S/o Chhabilal Kannauje, (In Jail) aged about 23 years, R/o Bajrang Nagar, Police Station Azad Chowk, Raipur (C.G.) — Versus - RESPONDENT: State of Chhattisgarh, Through District Magistrate, Raipur, Distt. Raipur (C.G.) I t Q x WW (13W) Mmf‘w‘a; ammm mtrf‘aam WWiwW asafmm fine to further undergo R.l. for six months. However, co—accused Sanjay @ Montu was convicted under S action 323 of the l.P.C. and sentenced to undergo R.l. for one year. Case of the prosecution, in brief, is that on 27-10—2002 at 10.15 p.m. Naresh Turkane (PW-10) lodged a report in Police Station Gol Bazaar, Raipur to the effect that he is wc rking in the shoe slipper shop of Hemraj Mannadey (since deceased) situated at Old Bus Stand, Raipur, at about between him and Rajesh on the ground of calling their customers, on account of that dispute, at about 9.30 p.m., rothers, came to Hemraj and asked him that why his servant Naresh wa calling their customer and they started disputing. Accused Montu @ anjay started beating Hemraj with slaps and'accused/appellant Rajesh ttacked with cobbler knife on the right side of abdomen of Hemraj as result of which blood started oozing out of the injury. Wife of Hemraj ha taken Hemraj to the hospital. Receiving this report, the Staion House Officer, Police Station~Gol l.R. (EXP—16) for offence punishable under Section 307 read with S ction 34 of the l.P.C. and took up the investigation. On the requisiti n Ex.P-6 of the Station House Officer, Police Station Gol Bazaar, Rai ur, injuries of Hemraj were examined by Dr. S. Bose (PW—6). He pre ared injury report EXP-12. Clothes of Hemraj were examined by Dr. S. Bose. He prepared report EXP-13. WW,W,W m WeAW/s/ In 2003 8 p.m. some dispute took place Rajesh & Montu @ Sanjay, both Bazaar, Raipur registered the b . W m C37!&'(@( vi 2003 an?“ W (W) .. mmm mumiwm §¥afl¥mamé¥1 In the mean time, at about 3 a.m. Hemraj succumbed to the injuries sustained by him. Merg intimation EXP—15 was sent to the Police Station. Merg intimation EXP-'1 was given to the Police Station by N.K. Tripathi, ASI. The lnvestiga‘t WWW ammm Officer left for the hospital and after giving notice EXP—2 to the Pa chas, he prepared inquest EXP-3 on the body of Hemraj. Body of Hem aj was sent'for post-mortem examination under Ex.P-4 to Dr. Ambedk r Hospital, Raipur. Post—mortem was conducted by Dr. Ulhas Gon ade (PW-2), he prepared post-mortem report Ex.P-8 and opined that d ath was due to shock & haemorrhage as result of injury to abdominal or an. Site plan Ex.P-17 was prepared by the Investigating Officer. Clo of Hemraj were taken into possession under EXP-18. Cobbler knife, he weapon ofoffence, was seized under EXP—19. Blood stained soil mical examination to Forensic Science Laboratory, Raipur under EX.P 21 and report EXP—23 was received from there. Seized articles were sent for e plain soil were seized under EXP—20. 4 After completion of investigaton, charge sheet was filed against the accused/appellant and co-accu ed Sanjay in the Court of Additional Chief Judicial Magistrate, Raipur, o in turn, committed the case to the Sessions Judge, Raipur, fr where learned 9m Additional Sessions Judge (F.T.C.), Raipur receive the case on transfer for trial. 5 The‘ prosecution in order to establish charges against the accused persons examined twelve witn sses. Statements of the accused persons i g s t h o t mag: ' manfaaw ’vmmm _ WWW were recorded under Section 31B of the Cr.P.C. in which they denied the material appearing against therr in the prosecution evidence and stated that they are innocent, they have been falsely implicated in the crime. ge after hearing counsel for respective the aforementioned. We have heard Mr. Abhay Ti ari, learned counsel on behalf of the appellant and Mr. Akhil Mishra, l arned Deputy Govt. Advocate on behalf of the State/respondent. Mr. Abhay Tiwari has not di puted the homicidal death of Hemraj. Moreover, Dr. Ulhas Gonnade ( W-2) has stated in his evidence that on 28—10-2002 at about 11 a.m. h conducted post-mortem on the body of Hemraj and there Was a stitche wound on the abdomen of Hemraj. On opening the body it was found that there was about 400 ml. of blood present, small intestine, memb ane & large intestine were found to be stitched and clotted blood was resent near right kidney. He opined that cause of death was injury to st mach, haemorrhage & shock. His report his EXP—8. Learned Additional Sessions Ju parties, convicted accused persons as and se tenced Above medical idence is corroborated by the ocular evidence of eyewitnesses nam ly, Anjanabai Mannadey (PW-9) — wife of the deceased, Naresh (PW-1 — servant of the deceased & Suresh Turkane (PW—11) who have c egorically stated that accused/appellant Rajesh attacked the deceas d on abdomen with a cobbler knife. Therefore, in view of the ab ve medical and ocular evidence, it is v @ WW,W,W W m C» Aimg/ wt 2003 W “a? (W) established beyond reasonable doubt that the death of Hemraj was homicidal in nature. 9. As far as complicity of the aCCLsed/appenant in the crime in question is i concerned, even though Bhaudas Kannoje (PW-3), Manoj Kumar Bhondekar (PW-4) & Vinod .Khare (PW-5) have turned hostiie and they have not supported the prosecution case, but Anjanabai Mannadey (PW- 9), wife of the deceased, has stated in her evidence that on the fateful day she was present at her shoe shop along with her husband at about 8.30 — 9 p.m., at that time, Naresh & Aish were also present, in the mean time, Rajesh & Sanjay came to their shop in a drunken condition and asked her husband that why his servant Naresh was calling their custom-er and they started attacking her husband with hand & fist. In the mean time, accused Rajesh attacked her husband with cobbler knife on right side of abdomen as a reslt of which blood started oozing out of the injury and intestine came out fr m the place of injury. 1t, Naresh (PW-10), servant of th deceased has corroborated the~above evidence of Anjanabai Mannad y (PW-9). He has stated in his evidence that he was working in the sho of the deceased which was adjoining to the shop of the accused pers ns. He has further stated that he was present at the shop at that tim , when they were working at the shop, at about 8 p.m. one customer ca e to their shop and purchased a pair of shde, as he did not purchase shoes from the shop of Rajesh, Rajesh came and started quarrelling ith him saying that why he has sold the 3mm (W) ammm Wmm‘ mamféam WWW wW ém’fatxm shoe to his customer and Rajes slapped him, people Intervened and the matter came to an end. In the n ht at about 9.30, Rajesh & Sanjay came to the shop of Hemraj and sta ed abusing him saying that his servant Naresh is calling their custome Sanjay slapped Hemraj and thereafter, he caught hold of him, in the m an time, accused Rajesh picked up the cobbler knife Which was lying o the spot and attacked him on right side of chest as a resuit of which blo d started oozing out of the injury. 11 Suresh Turkane (PW-11) has Iso corroborated the evidence of above two witnesses. He has stated in his evidence that accused/appellant Rajesh attacked the decease with a cobbler knife. in the cross- examination of these three witn sses, defence has not been able to elicit any circumstance which discred ts the evidence of these three witnesses or to make their presence doub ul on the scene of occurrence. The trial Court after careful scrutiny of t e evidence of these three witnesses has reached to the conclusion tat their evidence inspires confidence. Moreover, the evidence of thes three witnesses has been corroborated by the medical evidence, as th doctor has stated that there was a stab injury on the abdomen of the de eased. 12. Counsel for the appellant was t able to point out any infirmity in the finding of the trial Court placi reliance on the evidence of these three eyewitnesses. Therefore, as far as complicity of accused/appellant Rajesh in the crime in question is concerned, that has been established beyond reasonable doubt by th ocular evidence of these three witnesses h r o n Wx WW,W,W <3) . A./0§.(. m. m m 2003 3mm (13W) m f-t-tim w mwm mwggm 13 A_._ and to that extent we do not flnc| any illegality or infirmity in the finding of the triai Court Learned counsel for the appellant argued that from the evidence of these three witnesses it is clear that the quarrel started on a petty matter that servant of the deceased had called the customer of the accused and a pair of shoes was sold to him. 11 the first instance, the accused/appellant quarrelled with Naresh, servant of the deceased, thereafter, they came to the shop of Hemraj and there they asked Hemraj as to why his servant is calling their customer and there some altercation took place. Thereafter, accused Sanjay slapped the de ceased. in the mean time, in a sudden quarrel, in a heat of passion accused/appellant Rajesh picked up the cobbler knife lying on the spot and attacked Hemraj only once. Learned counsel further argued that the manner in which the quarrel started and ' the unfortunate incident happe. n shows that the accused had not come with any preparation or preme itation in order to commit the murder of Hemraj. Only in a heat of passi n and in a sudden fight, he picked up the cobbler knife lying on the g und and attacked Hemraj only ”once, therefore, from the evidence, it cannot be inferred that the accused had attacked the deceased with i tention to cause his death. Learned counsel also submitted that b t. in the circumstances it can safely be inferred that when the accus d attacked the deceased, he had the knowledge that he is likely to c use his death. Therefore, offence against the accused does not travel be 0nd Section 304 Part-ll of the l.P.C. d mw,m,m 15 16 On the other hand, learned Deputy Govt. Advocate supported the judgment of the trial Court. in order to appreciate the arguments advanced by learned counsel for the appellant, we have carefully scrutinized the evidence of eyewitnesses (PW-10), servant of the deceased, is the main witness in this case. He I'as stated in his evidence that inthe first instance, co-accused Sanjay slapped the deceased and caught hold of him, thereafter, accused/appellant Rajesh picked up the cobbler knife lying on'the spot and attacked on the abdomen of the deceased. Perusal of the evidence of these witnesses viz., Anjanabai Mannadey (PW-9), Naresh (PW-10) & Suresh Turkane (PW-11) shows that in fact, the dispute started in the evening at about 8 p.m. when Naresh called the customer and sold'a pair of shoe to him. The accused was claiming that he was his customer. There ore, in the first instance, the accused quarrelled with Naresh, thereater, he along with Sanjay, his brother, came to the shop of Hemraj here they asked Hemraj that why his servant is calling their custome , in that process the quarrel started and accused Rajesh picked up the cobbler knife lying on the ground and attacked Hemraj only once. Ab ve facts show that everything happened in a spur of moment in the heat of passion. The facts of the case show that the accused did not com prepared with intention to attack the deceased. Therefore, from the cts of the case it cannot be held that the t accused in fact, attacked the de eased with intention to cause his death, and medical evidence. Naresh Wm G> 1...Fr '. (0 [3 In 2003 mm (W) wank-W WWW WWW WWW WW §N$E1=I311é¥r (g? WW,WW,1%WH3I WI. m ®a.[O/3 1n 2003 mimfawian‘ am m WWW WWW1¥WW éa‘imm a accused attacked the deceased and the it can safely be inferred that the accused the deceased with cobbler knife, he may 17 b‘ut from the manner in which th‘ weapon with which he attacked, had knowledge that by attacking Iikeiy to cause his death. In the circumstances, offence travel beyond Section 304 Part- convicting the accused under E him under that count cannot be: In the result, the appeal partly under Section 302 of the l.P.C. that count are set aside, he i: thereof,'he is convicted under sentenced to undergo R.l. for ti appellant is in detention since 2 for setoff of the above detentic upon him. a Sdl- ;L.C.BHAD00 Judge 4 against the accused/appellant does not ll of the l.P.C. Finding of the trial Court ection 302 of the l.P.C. and sentencing .ustained. succeeds. Conviction of the appellant and sentence imposed upon him under ; acquitted of the said charge, instead Section 304 Part-ll of the l.P.C. and an years. It is stated that the accused/ 8-10-2002 till date. He shall be entitled n period against the sentence imposed mm (W)