3^T ^T f<-l[ch 'cT^T ^STI^T 5h^icb J'- 3^cT ^WW^, ^T{1^11<o, is)<?'»l<-t^< Nl^ldl sb^leb •"--"••-—"•••——•"•••—•""•""—•^ 209 3H^?T 1C[5ra? (li^I^<^) ^RTTW ^rf^T ^T^T APPELLANT (in custodyj V^rsus RESPON&ENT (CnminaJ Appgal i^ bivislon B^nch : Hon'bJ®Shrl L.C. ehadoo ^ Hon'bl®Shri T.P. Sharma^ Heard 5hri Vjnav &dbev AAishra, Dy, Sovt. Advocate Ord JudQment dictati< L.C- Bhadoo, J Thjs appeai is direc^ order of sentence dated Bibspur jn sessions trjai N after holding the accused^ under .Sections 302 & 323 cbl^(<n41Ti ^i^^* ^fe^ <f^i^i< i?3?TRm3n^T ftamjhool, •S/o. Sonsol. aaed' 48 ysars, H/'o yiiiage Ardband, P.S. Thakhatpur, Distt, Bilaspur, The Stote . of Chhattisgarh, Throuqh TakhaTpur, DisTt. Biiaspur, C£: nder Section 374(2) of ths Cr.P.C.) M [bey^ counsel for the appeibnt A Shri Akhi! fw the State. ^d on ab^ |ed against the iudgment of conviction ond pO-7-2002. by the Sessions Judge, )347/2001 whereby Jearned Sessions Jydge fappeJiant guiitv for commission .of offence <^f the Indian PenaS Code (for skort "the IPC1} -s-^t ^HI^, ^TfiyKo, (®10Wy ??T VW^ ^T^RT^ ^Wv\[ ^hWvh ^ 200 31T^T TRTO (lyI^<i?T) '^nW^?ft<T 3?TT^r w s^ntenczd hlm to undergo i|ns Rs.100/-, in default of paym^t for cousing death of Jutl^ei for couslng simple injuries respectively* . - " iprlsonment fo.r life ^: to pay a fine of to further yndergo ftJ« for one month ^l ond to undergo RJ< for one month to PW-6 Phaganl Bai, wife of Juthei, 4n 2) Case of the prosecuti< (smce deceased) and the. a<|< vilioge Araiband. There is c^n accused and the deceosed< Irl wheeter dre not passed thro accused and the deceased, w<| In the fateful night one Bh troctor of-: hls n^phaw nami deceas^d to r^move the stomb.^ the scene and started quar brought the axe and attacke^ which he fell down. 3) On 25-5-2001 at 4.30 Boi (PW-6) lodged a report Station House Officer regis' under Section 307 of the CM<<f<yi<I1i ^R^lf ^f,fe(3t <Rn^i< ^3TRP:[3T[^T ^ jn. brief, is thot the houses of Juthel cused ore situoted facing each other in op^n space. between the houses of the order to ensure that buiiock carts or four igh the spoce between the houses of the ^oden stumps were fixed by the deceosed. sgwani Dos of viliage Bhaisbod brought a ^ly, Su^hij^ therefore, he. requested the L In the meontjme, accused appeared on •elling. The accused went to his house, the deceased on his head, as a result of {i,m., wife of the deceased namely, Phagani JEx.P/13) in Police Station Takhatpur. The .gist^red the crime for commission of offence IPC. Juthel was taken to the hospital, s> <5-T7C| ^ww^, STftw^, f^ray **WVf{ 'SRW^? ^T'f^rw ^T8TT ^ii^r sD+ticb 3^T1»SW (^f^q^) "^ 200 °hi<4F<n<i)T1 ^w^ ^fe^ ^RiR^R ^^tRTH^^r TakhctDur on a bu!bck cart Hospital, Bihspur, where he Merg intimations (Exs,P/14 & Xnvestigatjng' Offlcer after^ prepared 'inquest (Ex?/5) from wh^re he . ref^rred to &haram succumbe.d to the injurles on 26-5-2001, P/14-A) were given by the Ward Boy. The giving . notice (Ex.P/4) to the Panchas, n the body of Juthel* Clothes of the deceased were seized und4^ Ex.P/6. Postmortejn on the 'body of deceased wos conducted'byj Dr< R/Jeetpure (PW-3). He opined that there was a fracture of sk^ll of left parietal region, haematoma was present and cause of deo.th ^as due.to fracture of skuli of Jeft parieta! bone,. The axe In question i^as produced by Phagani Boi (PW-6) and the was seized under ExPfl2. Injury of Ph^cni Bal was.exairuned by PW-1 Dr/fSmt.) ^ Naharei, jphagani Bai (PW-6) was complalnlng pdn over rliaht side of neck and ridit cheek. but there wo.s no vjsjbie jnjyrv. Injyry report Is Ex.P/3»- }ln the first mstance injury of Juthei was examined by PW-1 Dr. (Sm'f.) K. Naharei, Injury report Is ExP/2, Site plan (ExP/17) was prepared selzed under ExP/18. -axamlnQtlon to the por^nsl report ExP/21 was receiv^< Blood stalned clothes of the accused were ISelzed artlcles .were sent for chemical lc Science Laboratory, Bilaspur, from where ^^y^^ K/ B. ^ i %IKM%'& 1^ ^... "^<^ '^^^" 3:wT '^WW't-t, ©xfl^'Ko,fs|0iy^< NINdl **<!<*» ^^T^ f<vl[<=h ^T^H 'STT^T $b^icb "Wi, 200 3n^?r XHI^ (^y<^) '^<nw;Rf^r ^T^?r 4) After compietion of in Court of JudiciaJ-Magistrote, the cose to the Court of Sesslons 1/estigation, chorge sheet was fiied in the prst Cbss, Bilaspur, who in turn committed Judge, Bilaspur, for triai. 5) In ord.er to establish tr^e prosecution examined 12 witn| was recorded under Section materJol appearlng against hl|n been fa!se!y impiicated in the |e charge against the accused/appei-iant the ^sses. Statement of the accused/appeliant B 13 of the CrP.C, in which he denied the He stated that he Is innocent and has jcrime in question. 6) ' Learned trial Court o\ parties, convlcted and aforementioned. 7) V¥e have heard Shri V Shri Akhi! Mishra, Dy. Sovt. 8) . Shri &ubey, learned c^ disputed the horpicida! deoth who conducted postmortem os| a stitched wound on thej 4.5 cm< Another stitcheti stltch. he found that th^rej cr)l^f<n<i1Ti *ii+i<3il ^fe^ <R»i<^i< '^3?TRpT^n^r |fter hearing counsel for the respective" |sentenced- the accusecl/appeibnt as inay Dubey, counsel for the appe'lant and ^ldvocate for the State, )uns€'i for the accused/appeiJant, has not ^f Juthei< Moreover, PW-3 Dr. R. Jeetpure, the body of Juthel, has stoted th.at there left side of the hecd. The slze of jnjury j .wound 4 cm* in bngth. On openi.ng of the was o fractur^ in the teft parjetal bone. XT*^S^ ..;¥-€/" <$T7C| ^|«^|0<^y>TO^<|<o, (s)<?!>|y^< ^Tf^TT^ ^T8H ^il^l 5r><-iioh ^4 Nl^dl *NJck ^ 200 ^?r Tra^ (4^f^<^) '^TTW Tlf^T 3^T1^T I Ha^matomes was present. Brq resu!t o.f head injury l.e. frac c»>i<if<n<flvi ^M<A*^l^^ ^R^IT "^ ^tRPT ^TT^T in was congested. Cause of death was as a rure of skull of !eft parietui bone. Injurles were ante mortem in nature ojnd the same were sufflcient in the ordinary course of nature to cause.c|eath/ Postmortem report is Ex?/7\ The dbove medical evidence is cor Bd. wife of the deceGsed, w| were sieeping m their house, roborated by the evldence of PW"6 Phagani io has stated that in the fatefu.1 night they At about 12,00 in the night Bhagwani &as came and her to rem4/e t^1e stumps from the open space and he demanded pickaxe, then she the meontime, the occused she ^ouScj ^Jbw 4he l-r-r:''i^.:i 'on the n^ck. .'Thereafter h^ ^epiied thot there is no pickoxe with her, In ^ame carrying iat-hi, by asking her whether ^o throuah the open ^pace attocked her sbpped on her ch^ek, as a rae^u!t of which she fe!I down and rais^d criks on which h^r husband Juthel came there .cnd a^Red the accused as Gccused ottocked her husbal her husband sustained injur the Injury ond h^ feil down cart. In view of the abov^ that death of Juthe! was hoj l-o why he attacted his wife, on which thia [id wJth axe on his head, as a result of which ^ on the.head, broin m<st©rliaicome.out from m the ground. Herson Dilip & Kabr took him to the hou^e from there th^y took him to Thakcstpur hospitai on a buiiock medjcal & ocubr evidence, it is establish^d mJcida! in natura. :3iii r^T f<Tii<=b TT^T ^IT^T 5h^icb ® Tv^ ^ww^, ts»xn^4i<o, fsic!>iy^< ^l^dl *^l|eb "^ 200 3Tr^?r XR^ (4^f^<<£T) ^'wi^FC ^f^a ^TT^T 9) As fcr: as complicity question is concern^d, in thh incident i.e. PW-6 Phagani Bai 10) Learned coun^el for th^ there Ss on!y one witness'and wltnesses, who reached on'th^ ^vidence on record to show t| m qu^stion, whlch wcs S€lze|j araued that PW-9 Bhaawani ca^e, ther^fore, explicit reli PW-6 Phaoani .Bsl. He furt|ier dttacted the deceased oniy mtentjon of the accus^d to 12) It is true thot in th's Phagani Bd, yyife of the dz evld^nce has to be ^een and witnzss Inspire^ confldence chi^f<n<i)vi ^H^*^l^t <P»1^1< i^ 3?Tfim ^n^r of the .accu^ed/appellant in the cri'^e in cos^ there is only one eyewitnes^ to the wlfe of the deceased. accy^ed/opoaliant aroued that m this case he prosecutlon has not examined the other spot, He further argued that there is no. iat the injuries could be caused by the ox@ by the I-nyestjgating. Offic^r^ He aiso |>a^ hos aSso not supported the prosecution J3.nce can'not be pbced on the evidence of argued that in a quarr^l the accused t)nc€ on his head, therefore, there was no dcath ;bf the deceased, c4use 11) On the other hand, le^rned counsel for the State ^upported the judgment of the trial Court. there Is only on^ eyewitness i^. PW-6 :eased. It is settted bw that -quo.lity of rjot the quantifv» If the evidence of o single the Court, the conviction can be bosed on ^T^T ?^ fqiw ^T^T 3Tlit?T 5b^ict» "?0 3=5:5T ^ll^l^, ^Tfl<-l'l<o, t«l<y>l^y Nl^ldl 9b^l<sb •^ 200 3^?T -q^F (i^l^<yT) '^TTW^ft^ ^I^T witnfe's^ 'the sole testimony of a wltn be scrutinlzed with areot co 40 sp^ce 13) PVv'-6 Phagani BGJ, fatefy! n-ight at about 12J sieeping in the courtyard of woke up ond remove thB'st| demcmded pickaxe from her. p^iss through th^ open pickax^» In the meantime/ ond attocked h@r saying tho' through the soid open spoc^ neck and thereafter the raised cries. Hearing her c accused os to wfhv he attecl h€r'"husband with on th^ hss sustained jnjurie^, brain ground. Thereafter, her husband inside the house. report (Ex.P/13) in Police S^ has dented the suooestlon the decea^ed, . She ha^ std ^life cbl^fd^l'1 'RP^ff ^fe^ <f^^l< ^ 3TRp=T 3TliST L The evidence of reJative witness hos to •e and circymsp^ctlon. of the deceased, has stated thot in th^ she oiong wlth her faniJSy members wos her house» BhGowani Das cam^, asked her to imp, which WQ.S fixed in the open space. He |t"o r^move the stump so that the tro.ctor can ^ce, on .which she replied that she has no |th@ occu^ed came carrying bthi m h Is hond whether she would o.ibw the tractor to poss |, ,she sustained jnjuries on the right side of. sbpD^d her on her cheek. on which she •N^s, her hosband came th^re and asked the ted his wife. on which thz accused attacked right side of his hecd^ as a r^sult of which tmoferbl came out and he fe!l down on the Dliip & Kabar came there and took her* ^he has further ^tated that ^he Jodged th^ ^ation TokhQtpur, In cross-exomination she |hat quarrel wcs between Bhagwran Das and |ted that it is incorrect to ^av that in the ocdjsed ^frn ^TI^T ??T ^[<=h ^^T ^^ fl')*iict» 7^S ^WW^, ^T{1<111<o, tslOl^y ^Wv\\ **<|ch -^ 200 3n^?r'CRPF (4ci^<i?T) ^«ll^R^t^a 'STT^T same night there was quorre The evidence of this witnes^ attack made by the accused. defence has not been abie suggest that on account of has implicated the accused in] between her and the wife of the accused* is cteQr and categoricci in respect of the In cross-excmination of this witness, the \o brina on record anv circumstGnce which o^y Qnimosityf or for ony reason this witness |a fatse case* 14) Maju (PW-10) in cro^ were residing in the vicinity, and saw the body. She has hearing the commotion. It Moreover, the incident happ when every one was sleeping < people of the vicinity might h 15) As regards the quest| cross-examinQtion that therd the accused with lathi, but yisible injury. Phagani Boi w^ cross-examination she has ^ injury, but, in fact/ there w<^ whole testimony of this witn^ss <=M^f<yl<fll _*<l^l<yff "^,fe^ <Fa|^l< ^^ifim^FTi^T s-examinotion stated that 15-20 persons hearing the commotion they woke up, CGme categorically stated that they came after is not lite that they SGW the incident. sned 12.00 in the mid night i*e. the time ind it is not expected that at that time the xve witnessed the incident, ion thot PW-6 Phagani Bai has stated in wasa bleeding from the injury caused by rhe injury report shows that there was no ^s complaining oniy pain. It is true that in Itated that there was bleeding from the is no bieeding. Merely on this ground the cannot be rejected because the incident .'^;^-^ 1 '^- 3^' ^<|<1|0'q, ^^'1(0, (sKDI^y aq?^T ^TT fqilcr) ^,<3TT^T $b^i<=b ^ ^Wv{[ <b*41<b ^ 200 3H^?T'qiR? (4C<^<^) '^ITW^rf^T sdd to haye been took pface reported by Phagoni Bai in P<^! a.m., and Juthei wos imm^djti hospital from where he wo.s matter was reported -in th^ been categorically mentionj attacked her and thewaft^ abo with the csxe on his promptness. It has been c| u^d in th@ crimc: in d produc^d by Phagani Bai i.n t^ and the so.me was seized unc Toppo, Investlgating Officer 16) .Dllip (PW-4), son of f| heard the cries of his mothe^ on the spot and sai^ that hi^ wos an injury on. hi^ heod yilbgers ond took'hls father •matter was repor'ted. cbl^fd^)t1 TTTR^if ^f,^'1^ <F»I^I< ^^tRpT^n^r ibout 12.00 in the ni.id night, the matter was ice Stotion Takhatpur on 25-5-2001 at 4.30 tteiy taken on c buJlock cart to TakhGtpu.r 'eferred to &hara.m Hospital, Bibspur. The night itseifand in that report also jt hos td . that QCCUSCQ came from th^ house, ^'when her husband came he attock^d hirp head< The report was lodged with GJI itegorically mention^d that the axe, which |uestion/ which teft on the spot, was e Police Stotion ^hen she iod^ed the report |er E.X..P/12 & has been proved by PW-1--2 J. he deceased, has-.olso stoted thatwhen he that his father has been attocted he went father was Iving on the ground that. there {ind he was breo.th ing. He inform^d the |on a buibck cart to Poiice Statlon and the '-iiSSfe '• "'t ^ ^ ^ •/ -s-^f •^NI^^I, «>T0^4i^, R«^i^< <53 10 '^^-^' •^^^:^^^ ^n^r ?FT'f^iN' '^T^^TT^T $b+iicb ^Wv\\ tb*<|cb "TH; 200 3TI^?T XHRR (yc(l^<i}ST) '^ITW^f^T^iTI^ 17) Bhaowani Das (PW-9) ^i in the fotefui night he brou^ housz of Chedlial. He has n| has stated about 10-15 rpsinij accpjsed attacked the d^ceasl .the house of Chcdjtal where ll ^., \j 18) The emdence of Phao^ medjcal evidence that there' therefore, we do not find on trbl Court regardlng complic and findjna of the trial Court 19) In order to oppraciot^ for the occosed/appeiiant th|st o-nce .in a quarr^l, we h^ve scr 20) As per the prosecutio deceos^d ar€..situGted facin between the .said .houses. .^ th^irvehic.tes somc tim^<. It deceased and his wife fixc <=hi<if<n<flti *ii*i<?iT '^f^fe^ <Fai<^i< ^ ^fRpT 3?n^r os aiso been examined. Hz hos stated that ht th^ tractor and porked the same in the 3t sto.ted anything ^bout the incident. He tes thereofter he came to know that the sd/ Th^ house of the accu^ed Is adjacent to e parked the troctor. irii.Bai (PW-6) Is .corroboratBd by the ^os an injury on the head of the deceased^. y ground. to interfere in. the finding of th^ ity of th^ accu^ed in the cri^e in que^tion lis based on the iegal c!inchino evid^nce, the argument advanced by Jeorned couns^i thc accused attncked the decea^ed only jtinjzed the ^ateriaJ avaiiable on record./ n case the hous^s of the occused and the 3 each other and there is an op€;n -^poce |s the persons uscd' thot for pcrking thot m order to prevent that-the d wooden stumps. . In' the fateful night XI-HC •3^s ^HI^, ^y1!^, t^oiyy 11 [^T^W '^T,3TTc[?T sh*licr> v^' TntRTT <bK|cb "-^ 200 an^r^w (1I?^^) cbl^id^D'1 TnT^'^.fe^ <Pn«fi< ^3iRiH3TT^T &as came with a ti to remove the stump^ He sdd that she has no pickax^ attack.ed Phagani Bai wi-tb c tractor to poss through tha1 •actor and asked Phagani Bai to wake up and also demanded pjckoxe.from he;r, when she wlth h@r, accused woke up ond catrse there tothi saying whether would albw the open space .or not. When she cries, d^ceosed came and asked th^ accused os to why he attocked his wif^, on x whlch the accused attacked\tha deceased. As the deceased WGS ormless and sjmpiy osking by the dec^ased os to why hz (stt-acted h Is wife, ther^ wo.s no reason for the accu^d to attGc^k the deceaszd wlth the o.x^ oncl that too from th^ shorp side {^f the cxe on the vital p.art of the body. In fo.et there was no aua^et frfcm the side of th-e deceaszd\ Th^'accused without <sny act on th^ part o|f the deceased attack^d him wlth the i?xe, The 'manner in which the occu^ed a.tto.cted this deceo^ed on the vital port of the body and the force ^ith which the occused ottacked, Darieto! bone o'f'the dececsed wa< fr^ctured and JmmediateSy through the injury br'QJn moteriol cam®out and |ie died on the next day. Therefore, the nature of i^eapon^ place of the^ with ^hich he attacted the d^ thct he attacked.th^ deceas^c 21) In the r^solt/ the app^ body chosen by the accused the'force shows th^ intention of the accused wJth intention to caus^ his d^ath. ^ai being devold of.merlt is iioble to be dlsmissed and it is hereby dls jssed: ^^ Sd/- L.C. Bhadoo Judge Sd/- T.P. Sharma Judge