”(11-1891 (Ja . . .T. P. R. 1/94/2,0Q s Sentenced to i¢§ W W‘ f nder secnion géZ/gbzxf%%y %7§?W. _ W U %§ v‘“ _ p e t s sented by legal practxtloner t cour may proceed at once wuh the case and wxll n b bhged to glve a heal-mg to any legal practmoner who should appea I n, , t ls explalned to the pnsoner that 1f he states or wmhes to be re ractmoner the Appellate ( ourt w111 not proceed w1th the bas he legal practitloner appear he t ot e o r ate of AipplVicatiOn for copy of Judemen Date on wh1ch cop recelve 2 a Wh / . ,. jléé 3;. Ne .'1 Cod 7 Jail presented y legal for seven days unless ays he may not heard at al f the f the prisoner legal practmoner states that he does doe n not apear WIS \to wrth be repre- ens D gt $.5 . 1 7 . y e 9y / ex 8 e ether the pnsoner Wishes to be represented or not - Yes /)lo am nnnem ®g ’ .!2 Dated Z’ rorwarded to the CHIEF JUDICIAL MAGI y d Date on whxch n 77 TE RAT 1 m p t 1ss1on to the proper Apellate Cour l Date o recet i f ip n Dte of recel p e a pt record to accomany th emo o Appeal to the Appellate cour ‘ o a] Fd e orwarde to th tm ‘ ra: .4 il) C 10 H I / " b d l I s ot p h m sev ' 25. a g \t S Appeal set M f t 7 N HIGH GOURT OF ~CHHATTIW‘RH AT BILASPUR criminal Amal lo. 189” 1997 Bulmatl ,. , V:. state of Madhya Praduh (Now Chhattmh) w comm: Hon’ble‘ am :nkluuddm and Hon’blo shrl Dhkendn Kuhn, JJ' Present: Shri V.D‘ Bajpai, Sr. Adv. with Shri Ramakant'l‘lwari, counsel for thr appellant. Shri Sanjay Kumar Agrawal, Panel Lawyer for thcState. JUDGMENT Per Dhixendra Mishm, J. »H'e\a‘1d learnzd counsel for the parties. 2. The appellant has pwmd this appeal against the judgnentv delivemd on 2-8- 1997 in Sessions Trial No. 69/97 by the Ilth Addiiional Sessions Judge, Rajgarh, by which the trial Court alter holding the Dhamu (since dead) and Balmati guilty for causing death of their son Babu Kumar, has convicted them under-Section 302/34 of the Indian Penal Code and sentenced to undergo imyn'sonment for life and under Section 342 of I.P.C., RJ. for one year respeciively. \ 3. Briefly stated theprosecun‘on story is that on 10-1-1997 at about 7.00 in village Baihamuda, deceased had leturned to his home after performing worship and sacrinc‘es and was wowng in his verandah along with his wife. Accused Dharmu went there in a drnnken, condition and stated that they shall share food together and took the deceased in his room. Balmati also accompanied him. Thereafter Balmati closed the, ‘ door and Dharmu assaulted Babu Kumarby an, axe over gagged, Y? \ a ‘ buttocks and neck. The deceased cried “save save’. At that moment, Mohannati and others mached there and opened the door and saw that the deceased was lying dranched in blood. There were big wounds over his‘ head, face and buttocks. The incident was mported vin the Police Station Gharghoda by Moharmati whereupon o&’ence under Sections 342, 302 read WithSection 34 of I.P.C. under oEence ’No. 7/97 was registered against the-accused persons vide Ex. P-l. Inquest of the dead body was performed vide Ex. P-3 in pmsence of the witnesses. Dead body was sent for autopsy to Primary Health Centte, Gharghoda vide Ex. P— 13‘Whe1e Dr. B.R. Ranjare conducted autopsy and submitted his mport of Ex. P— 13-A. Blood stained soil and plain soil were seized vide (Ex. P—4 and P—5. On the memorandum of Ex. P-8 of the accused, a blood stained axe was taken into possession vide Ex. P—6. The sealed packet containing blood stained clothing of the deceased was taken into possession on being pmduced by oonstable Nikolas Ekka vide Ex. P—7,. The seized articles - blood stained soil, blood stained axe and blood stained clothings of the deceased wele sent for chemical examination to Forensic Science Laboratory vide Ex. P-15. The report of chemical analyst is Ex. P-17. After completing investigatm'n, chargesheet was nled in the Court of Judicial Magistxate First Class, Gharghoda who in tum committed the case to the Court of Session, Raigarh and the same was received on transfer by the Additional Sessions Judge, Raigarh. 4. Charges under Section 342 lead with Secuim 34 of I.P.C. and under Section 302 of I.P.C. were f ed against the appellant who abjured the guilt. The prosecuu'on in order to establish the charges examined as many as 8 witnesses and thereafter statement of accused was, recorded under Section 313 of Cr.P.C. The appellant denied the circumstances appearing against her in the prosecution case and pleaded innocence and false implication. ,Hwvever, >ths learned trial Comt after hean'ng the learned counsel for the par&es, oonvicted and sentenced her as above. am wgl‘ ) [ :5 < g 73f 5. The homicidal death of the deceased is not in dispute. Dr. Banjare P.W.8 who has conducted post ’mortem and submitted his report of Ex. P- 13-B'found following injuries:— I. luckedwvound: Size 2" x 0.5” x 3’ over led side occipiml part of Head‘ Scalp margins are mgular, edges are even. Scalp, soul} bone, all three edges and cembellum led side all am incised and ' cut, 1ed blood clots were present. Red in colour. 'l‘mnsveme in position. Intracranial — Hemorrhages present. It h Amt-Mortem in natuxe. ll. - Incined- wound: 2" x 0.2” x 0.2" over left side cheek ( Face} margins are regular, edges am even, red in colour, skin, fascia and musclesaxe cut, III. lucked-wound: 2" x 0.5” x 2" over kft side, buttock, wgins ate regular, edges are even, xed in colour, Blood clots were pleasant.“ Skin, fascia,» muscles are incised & cut! The outer edge of the led side pelvic bone socket is cut half inches depth. Red blood: clots ~~present. Ecchymosis of bbod present underneath the injmed, part. lt is Ante-Modem in nature. IV. nicked-wound: 1.5” x 0.5” x 1" over led side buttocks half inches above the injury no. III. Margins am regulw, edges are even 8r. clean, cut, skin fascia & muscles are cut, ted in colour,- Blood clots pmsent, Red in colour, Emvazansaof blood present underneath the injmy. .Ante-Mortem in nature. V. Abrasion: 2" x 0.5" over the left buttock, at upperpait, skin was ,./V.<«w./ ‘N iii F ~ M \ abraded, red in colour. 1' ? \ / VI. Abrasion: 2" x 0.5” over the left side fac'cs ofchest at lower, sm' was abmded, md- in calour. ‘ Ecchymosis-Exhavasat‘on of blood wen present. underneath a3} the six injurm's. All the injuries were red in colour. All the , injun'es were Ante—Mortem injuries in natum. All the injuries were within 18 houm of dumiion. The injury no. l, 2, 3 & 4 may‘have been caused’by the‘isharp and cutting object'nnd the injury no. V & VI may have been ‘causcd by dashing 8s rubbing against the .‘hard Md, mugh surfaces. The injuxy no. I as lll axe grievousinjinies and the injuxy no.‘ l was fatal injuxy in my opinion due to which the death may have been occurred due to lesion of the cerebellum. Rest of all the injmy - no: 2; 4, 5 & 6th am simple injury in nature. All the injuries are Homicidal—Injuries in nature my opinion. Dr. Banjare has opined the cause of death as excessive bleeding. due to injuries caused on the head and the same was homicidal in nature. Themfoxe, the homicidal death of deceased Babu Kumar is established. NN;A ‘ i v, \fv ‘V 6. So far as involirement of the accused/appellant in cxime in question is ooncemed, the convktion is based on statements of Neexa ‘P.W.1, Mohamau’ P.W. 2 and Pyas ’P.W. 3. PLW. 1 Neemhas smwd‘ that Babu Kumar is her son-in-law. ‘He is dead. The incident is :in the evening of last Kam'k month when the sun was already set. Aocused Dhamm called the deceased inside and said that your life is in danger and he shall kill you and thereaher gave many blows over his head. She- has further stated’that she-was theteand ‘saw‘and heard about the incident. Her daughter was also there. The deceased, ww soio/i: the r ‘) \ \ accused. Earlier also whenever there was a quarrel, accused used to say so. Then they bmught the deceased in the mom and thereafter they took him to the house anti mm there to the police station. While § bringing out him of the police station, he died on the way. In the cmss- examinau‘on, she has stated that on the date of the incident, the deceased had consumed liquor, however the toxic liquor had ,/‘ i 5“ evaporated. She had denied the suggestion that at the time, she and Moharmati had consumed liquor and stated that she and her danghmr h‘ad seen the incident and they had also tried to save hut conld not save as the accused had fallen them on the ground. Learned counsel forthe appellant submits that even according to the prosecution, this witness is not an eye~wimess and this subsequent improvement is made during the course of investigation and therefore her statement could not be relied upon. Similar is the statement of Mohamah P.W. 2, the wife of the deceased who has stated that the accused persons are her mother— in-law and father-in—law and the deceased washer husband who is dead. The incident is of the month of Poos. On that day, her husband was in the home and accusedDharmu took him on the pretext of-taMng meals and thereafter her mother-in-law shut the door and she heard the voice of her husband ‘A Bai,‘ I shall not survive”. She further stated that thereafter she and her aunt Neera (wrongly typed as Meera) pushed the door and saw that accused Dharmu had assaulted her husband with an axe on his head, cheek and hack portion of waist. Except her son Anuj, none was present there. Thereafter they tookthe husband k3 Gharghoda hospital. She has stated that she does not know as to why her husband was killed. She has stated that her father-in-hw used to say after consuming liquor that he shall mil her husband. In the cross‘ ’ examination, this witness has admitted that all the persons had consumed liquor, however, Dharmu excessivelyrconsmpednEhgggr'and r l V \ A t he was not in senses and he was haldly able to stand. Poiniing out towams the oontradich'ons pmsent in the F.I,R. of Ex. P— 1, and ease dialy statement of this Witness, leamed counsel for the appeggnt submits that reliance cannot be placed on the statement of this wimess ’ as there are material contradictions and omissions in her statement He fuxther submits that this Witness also claims to have seen the incident which is a material impmvement during trial. P.W. 3 Pyas has stated that deceased Babu Kumar is his brother-in—law. 0n heating cries ofhis sister Moharmati that her father-in-law has ldlled her husband this witness went there mm his house and kom there they took the deceased to the police station and mm the police station to the hospital. Thus hom the statement of this wimess, we tind that he is a witness who came there after the incident when Mahatmati shouted that her husband has been assaulted by her father-in-Iaw. 7. So far as involvement of the accused D'hm‘mu in crime in question is concemed, horn the perusal of the statement of P.W. 1 Neem, P.W. 2 Moharmati and P.W. 3 Pyas and also the F.IV.R. wettind that theonly Lt " V V allegation against appellant Balmati is that when accused Dhnrmu took the deceased in his mom on the pmtext of taking meals, appellant Balmati closed the door. There is no evidence available on record that there was any altercation between the deceased and appellant Baimati before he was taken by the accused Dharmu to his mom or that the appellant Balmati in any manner pmcipated or exhorted me accused Dharum for commitn'ng the above crime and therefore, we are'of the considexed 'opinion that only on the basis of an act attributed to this appenant that she closed the door of the mom where the incident took place, common intention of this appellant to cause death of her own son along with accused Dharmu cannot be'infermd and to that eitent the \ i \ ‘ &ding of the Court below cannot be sustained and aocoMingly thr judgment of the trial court holding the appellant Balmah' guilty of Section 302 wad w1th Sechon 34 and Section 342 of IPO and sentencmg her to undergo Imprisonment for hfe and R I for one year respectively is set aside. The appellant be released forthwith if not mquixed in any othei‘ case. / 8. The appeal is accoxdingly allowed. Fakhmddin ‘ X Judge ’ I Sd/s ”is