t |||Hill|l||||l|||l|HllH|||N|l| 1 CFOOOOD50238 Division Bench (Crimina!} camxm appm No. QHW A998 . ‘ O LALLn @ Tmvam, .‘/ 765V£¢Sy Rleé Ly SLri . .NLI! 7&14’2?‘%.. .. mm... AJVOCE£9 50a of ahallu Palnika. aged about 30 yeam, «ax-penter, Resident of Pateratol;, Police Station Gorella, District Bilaspur. P. m RE.A R VER$US ‘ Di strict.- Bil aspur. M. P. CONVICTION PWIWENT IN “IEE HiGi-I COUR‘F OF JTmICRI‘URE ET JABALPUR mmommauvi ox? cRmINAL A?pBAL UNDER swrxow 374p) OF 'Ima conE OF CRmINAL PRocEDURE,1973. REsPOwEm ~¢ O STATE OF WYA PRADEw thmugh Police Station PaSan. r x XI1HC~22‘ e questioning the legality °"' cenm ‘oxdel of sentence dated 17 9 1 ' Sess1031s Judge B11aspur Lmk F laaxnai 4th Addmonal Sessmns ”for comnuttmg murder of Ins Sectlon 30’) of fhe Indlzm Pe rigorous imprxsonment tor Jft ' condmon of the accused no tine was nnposed upon tum The plosecutlon case 111 L a 'uncle of deceased Unmla B81 l Pasaan on. 24 8.1.997 to the e daughfer and she was married 1 ’ the month of June; acc‘used/ap J IDIVISION BENQH HON’BLE MR L C BHADOO 8r. HON’BLE MR DHIRENDRA MISI- RA, JJ 22 Oa 2096 Shn Rakesh Pandey Advc l $ Shn U N S Deo Addmonc Agalwal Pane1 Lawyel for the Sate] respondent O1a1 Judgment dlcmtad on ‘cate for tha appellant 1 ~ 1 Pubhc Pmmcutox W1th Shn Ravmdra Bats ‘ Per L.C.‘ Bhadoo J, . ‘ AéCuSed/appenalit Lallu elias TriV€ni has pmfarred thls apimal mess of the judgmeflt of cohvictien 6a " . 998 “passed by learned 4&1 Additional endm Road in S T NO 48W 97 “‘heleby ‘ Judge after holdmg the accused gmlty 1 ‘mfe Urmlla Bal comncted hun unde1 ' 1al Code axld sentenced to undelgo However lookmg to the poverty nef is that Amol Sal (PW 4), maternal odged the repoxt m the Pohce Statloo feet that Unmla Bal was, 111$ Slsters o the accused 1n the yeal 1985 86 In ’ ' ellant along Wlth 111s Wife atld chJldl en XI-HC— 22 ' staItCd living in his in-law$ 1n On 23 8 1997 m betwean 11 1’ ce Unmla “came, I am bemg attacked’ On hearmg screams he rushed towmds 1115 brothel Dhansals house and saw that Unmla was weepmg and saymg save-save” Her husband we. accused/appellant was holdmg axe In his hand and attackmg ,7 Urm-ila on her neck with tgle ax‘ ’use situated at {Village Klimhari—dafri.‘ ‘ / a m when he was abbut to take meal” * be hEard The screams of Ins m z, as a result ofWhlch blood was 002mg ' out. Accused agaiu assaulted Unmla on her neck He unmedlately * jumped and caught accused T1 wem and shouted that accused Tnvem e Prasad is committing murder of hls mace Urmlla Wlth the axe On 7 heaxjng his shout, his son:Suk hnandan 111s mece Maughbar Ins Wife ‘- ‘So‘nkunwar/ his daughter Kaushalya Bax and Villagers namely I Vishambhal Smgh Vishnu Sm rh‘, -Kewalraim,» Shivnarajan 65 Sarpanch / Inderpal Smgh came Receivmg this report Sh N K Pulsatya Statlon House Oilicer,‘ Police Station Pasaan legisteiel the FI R (EXP 4) ,for commission of i \oii'eiice undei Section 007 of ie Indian Penal Code and left for the While scene of occurrence in police custody, ' accused gave» memorandum (Ex P 1) and m pursuance of that the axe i e weapon of : offence was taken into possession under Ex P 2 He also took mto‘ possession the blood stained scil and plain soil from the place of occurrence under EX P 8 Unuila Bai was sent to C1Vil Dispensary, Pendra for treatment Where Di R C Mishra (PW 9) at the request of the Station House Ohicei Polici Station Pasaan (EX P—lO) recorded the e ‘dvmg declaration (Ex P 5) of Unnila Bai Di Mishra (PW 9) also i\ l [111%w l XLHC-22 > examined the injuries of Urmila Bai and; prepared. thereport EXP-,9. x ‘ Clothes\ of Umiléa Bai Ware taken into possession. uncle-r Ex;Pv6.7Whjle v taking treatmem' iti the hospital LUrmila Bai succumbed ’to ths injuries on 6 9 1997 therefore a merg ‘uitimatioh (EX P—8) of the same Was glven to the Pollce §tat10n Penclra based on Whlch the ogence was ’converted Into 302 of the IPC anchnama (Ex P—I7) of the body of . deceased Urmlla was plepalt-d b th6 Stauon House 0mcer after glvmg r nottce Ex p 16 to The Pancha§ 1 the request of Statlon House Officer, ‘ EX P 18 postmortem of the body of Unmla B31 was Conducted by Dr ' R C Mishra (PW 9) and he pie (EX P 20) was prepaxed by the In After completlon of mvestl Court of learned Jucholal Magtst turn comtmtted the case to l whele learned 4th Addttlonal Se v Road lecelved the case on haosf The prosecutlon 1n oréer ' accused] appellant exammed accused/ appellant was recorded 'under Section 313 of the CrP C. appearing agamst him 1n the prosecution ev1dence and stated that he "has been falselv mphcated m the cmme. He has further stated that he. at the time ‘of incident his mel has not murdered hIS Wlfe and _ condmon was not pmpel axed the report Ex P—12 stigatmg (Jifcer amen, charge sheet was filed m the ate Fast Class Pendra Road who 111 ‘ d Sesslons Judge Bllaspm flom Slons Judge, Ellaspur Lmk Pendra f01 tnal to prove the charge agamst the Statement of l ‘ )y learned Addltlonal $esslons Judge r r , in whleh he demed the matenal- Slte - plan V Wltnesses - twelve aweéfaa' e ‘ 71 e' e nta . /"\q_.— 'Léarned Additional 863310 ls Judge aftsr concluslon of mal and hsanng the pounsel of rasp€ct1 e pames conv1cted and senmnced thé‘ , accused 1n the manner as menu ned m Para-1 of thls Judgment 7 We ’ have heard Shr Rakesh Pandey, Advocate r 1‘01“, ‘" r acouseii/ appellant &. 81m U N S Deo Addl Pubhc PrOSecutor Wlth Shnk » ~ Ravmdra Agauwal Panel Lawye1 or the Statellespondent At fhe outset iearned counsel for the accusedj appellant submltted that the pmsecutlon as not been able to estabhsh that the ‘ accused assaulted hls w1fe With the 111tent1on to cause he1 death He I further submitted that at the 1me of 111c1dent the accused was not mamtammg proper mental con H1011 and moreover flom the ev1de11ce of doctor (PW 9) 1t 1s estabhsh that the deceased dled on account of 'mfectlon m the mjunes and se tlcaenna He furthel argued that the docto1 has fmthel stated that t1 mJuIy on the neck was not sufflolent ‘ ‘ to cause death m ordmeuy cour e therefore the oii'ence under Sectlon 302 ofthe I P C was not made o t agamst the accused On the othe1 hand Shn eo Addmonal Pubhc Prosecutor vwth ' Shh Agarwal Panel Lawvel for I State supported the judgment of trial ' «Court As far as the mvolvement of accused] appellant 1n the cnme 1n ' ' quesuon 1s concerned PW 4 A 01 Sal 1s a person who mzltnessed the crime and 1s the maternal un e of the deceased Thls W1tness has \. clearly stated 1n hls ewdenee tha he returned to hls house at about 10- 11 am and when he sat for g meal he heard the screams of Unmla from the house of 111s bro ler Dhansal Urmlla was crymg came, _ mazes: e, e '1 i ”XLHC’ZZ . I am being. amicked’. HG’ left thé brother Dhansai alld saw ‘that the axa H€ attacked Unm'la twn tha hijuriés“ H6 éaught‘ths acc ~son Sukhnandail andv otlmrs c ' also called Unnila 85 accused Stanon H011SE Ofwm‘ sand that “Jmnla b6 taken to th6 C1V11 Dlspensaly Pencha Road He lodged the rep . ‘ tlns w1tness th€ d€fence has n on account of whlch tho exude untrustworthv fax as tho accused] appellant that at the t the accused was not perfect th Sectxon 84 of the LRC. ls conce - the trial court and in paragrap] has mghtly rejected thle defence. . on the accused to estabhsh that atthe ' v Sectxon 84 of the IPC the onus 1‘ trme of commlssmn of crnne he was suh'enng flom unsoundness of Sechon 84 of the IPC c > ' A$ 1ent of leanled for the argm me of moldent the mental cond1t10n of erefore he 1s ent1tled for the benefit of med We have perused the Judgment of 1 19 of the Judgment of the tnal court In order to attract the prowsmns of ’mmd ontemplates that nothmg Is cm Oj§fence which zs done by a person who, a1 the\t:me of domg 1t by reason of unsouredness 0f mmd, ts mcapable of knowmg the nature of the act or that he 1s domg what Is ezther wrong 03* comma} to iaw Tl1e1ef01e, to » seek exemptlon p10v1ded m Se anon 84 the accused was requlred to estabhsh that at the time of commlssmn of crime, by mason of ' l . meal rushed towards the house of 1115 the accused was attackmg Urmlla w1th e m hls v1$mn Blood was 002mg out of 1sed and started shouting on Whlch h1s me and thereafter the Sarpanch was were taken to the Pohce Statlon The )rt EX P 4 111 the cross exammatxon of 3t been able to ehc1t ally cucumstance ace of thls w1tness can be held to be -‘ counsel ' XI—HC- 22 unsoundness of mmd he was or that 1m ls domg what ls e1thd wrong or contrary to law In the heat mstance the e 1s no matemal on record to show that V ' at the tune of comnnttmg th crune m questxon the accused “as suffermg from unsoundness of mmd Even flom the cross exammatlon ’ ‘ ‘ of the plosaunon Wltnasses the fact legardmg unsoundn ss of mmd Therefore, the argument " advanced by leanlcd counsel f the accused] appcllant 1s dcvmd of any n memt and accused 1s not entl fol any benefit under Seotlon 84 of the I P C As far as the quoStlon of 1tenuon to cause death of Urmlla Bal 1s j r concerned Dr R C Mlsll1a (P 9), Who exannned the mjunes of Urmlla ’ Bal has stated m‘hls €V1d€n t thele were four molsed wounds 011‘ neck there was mjurv on ce Vical reglon C 2 vertebra was found " fracturod In Para 8 he has st ted that 1n hls oplmon Urmlla Bal dled as a result of syncope on acc of mfcctlon 1n the neck mjumes and sepucemla In crose examma ‘on th1s W1tness has stated that had y Urmlla Bale mJunes operat upon there was possllnhty of her “ surVNal m fact on account of epucaemla and mfec’uon deceased died The mJunes on the neck we1e ot sufiiment 1n the ordmaty coulse to ‘ ‘ cause death It 1s also adnn ed fact that mjurles were mmcted one V 2o 8 1997 and Urmlla Bal (he 1n the hospltal Whlle takmg treatment“ on 6 9 1997 1 e after 14 daVs o the moldent Therefore, the mtentlon to cause death rs mlssmg and mo over the mjurles were net suffic1ent 1n 1 j‘the ordlnary comse to cause de th as such the tindmg of the tr1al court ‘1, u . ' L\‘ ‘ I , [@éfaa defence has not been able to estabhsh e ' 0 tle ce o t a e XI-HC—22 v u scntcncing hiln‘foi‘ ihat 0E€11cc the injuries Were grievous in na1 _ _that the offence against tbs ac¢w I P C 1s made out In the result the appeal 4 ‘ sentence mpo§€d on appallant L the C1*.P;C. axe hereby set aside, instead th€r6of he is convict€d undel Sectlon 326 of the Indlan ‘R I for 1O years Appellant Lallu aha Tnve ‘pemod dunng wh1ch he remained Sd/- L.C. BHADOO )L Judge convicting the accused/appellanit'under Section 302 ofthe LPLQ and “a11nd£ be sustained‘ Oii‘the facts as ure we ale of the consldexed opmlon - )ed/ appellamt under Sectlon 326 of the x 1s partly sneeeeds. Conviction and allu ahas'Txiveni under Section 302 of he is acquitted of that Charge and for Commission of oh‘ence'.pimishab1e Penal Code. and sentencea to undergo n W111 be entltled for set—off for the m custody J Dhirendra Mishra Judge . » I //‘ Sd/- -,[.‘1'1%%F@§ x ' ,