7^ .i-- .T\ I^)^ - CF0000059S32 'a's ?&- ^s^(^> !>.^\. ir's aam6 ®^ KesKfeiiW^ f^il.^^IR)^ LZI^CT' &ia»en©ed_fti^Q»{__ 2.0; ®a_2M&lMi ;e(ier sertioa 2>02.ttTdfcl -S.TB' 1i91 ^.^^T^iS^ ^^ G431 ff-a4|^i ul|ay^i|'i::?3^^&iT53^ i.'rs esptuiied t®ths' ffrisaaer Aat.if &e states-di' wis1tes|^;o be represented by leg; court nay proceed at oace with Ae case and afJafcemeat,..2-^10)1 5 ^ &Alollo)& i^-b^ it AlVP^B LdMi^ ffte CHreF JUOICIAI. MAGISTRATE ^mM^IJ(>u< Sy"f^U3SQffl~^ E"'!:r tdl ® EK EiiX.i m ^,.^ in C. J. M.''s office' ''" to accompan-y oftfae Afipej ^_ I fc -% ^ g- -a—t%-9-A&-l ^n=--»A ^kttu-so^v S-T'"?( -" V3'\'?'<ny2. » 4^7^.t^-gl- ^:.^ 'IMll s,.i;a' Bttlpi aF c|sceipi.'t'B"S.pp£li'a'te'Coal"{ ^,'-tt-^.',rU:\^-^<^^ §TC:>^T=' 'O-W 3nso:n3Jai'!sau8 >- '. : ise HIGHCOURTOF'jCHHATTISGARHiBILASPUR CRJMIB^L APPBAL N0. 6770F 1998 Bhurri Cherva Vs. State of Madhya Pradesh (Now Chhattisgarh) JUDGMENT FOR CONSIDERATION Hon'ble Shrl Justice V.K. Steivastava ^s-? Sd/- V.K.Shrivastava Judge --^ Fakhruddin Judge _nflst_£ni_23-A.aOO( 51-6-2006 Itt HIGH COURT OF CHHATTISGARH : BILASPUR CRIMINAL APPEAL N0. 6T7 OF 1998 Bhurri Cherya Vs. State ot Madliya Fradesti (Now Chhattisgarh) .,» CORAM :- -l— r?iaT s* <il3°OT ;B*a \y iur/<kia')T»Tf^ ffinor ir w €&'rTQTtr&<^frL&'vr& T i^.v/i.ii ,uA/£rwiju^i, V«JEX»WAa.jcS.JLVj^u i^kVx»^v rresent:- ynri Kavisfi Verma, counsel tor tne appeuant. Shri Akhil Mishra, Panel Lawyer for fhe State. Per Hon'ble Shri Fakhruddln, J JUDGMENT Heard leamed. counsel tor me parties. '2. 'l'ne appeuant nas preterrect ttus appeal against me judgment dated 29-1-1998 passed tn Sessions T~rial No. 1/97 by the Second /!„ ..... ._. . _ . . . .. _. . . . . '. ^ r Additional Sessions Judge, Arabikapur, Sarguia, whereby he has been convicted under Section 302 of fhe Indian Penal Code for conimitting muraer ot ms wue Kondi Uai anct sentencea to unaergo iiupnsonment lo^ Ue. ./ < / . ' • . o. Briefly stated fhe prosecution story is that accused Bhurri is tlie resident ot VUlage-yincnora ancl cteceased Kondi Bai was married wife of agcused Bhurri. Shivratan (PW-1'! lodged fhe First Information Reuort (Ex.P/l'j on 7-i'2-1996 to fhe effect that his sister Kondi Bai was married with the accused/appellant. A day before the date ofincident i.e. 6-12-1996 his sister Kondi Bai (since deceased') and accused both had come to his house. Kondi Bai stayed in the house and Bhurri went to viuage Sinchora, on the same day. On fhe next dav at about 8-9' o'clock while Shivratan was going to fhe house of" his aMother brofher-tn-law namely Sivaram situated in village Sinchora, on the way, accused niet with ''''^—F*' him.. PW-1 Shivratan asked him not to quarrel and he went to Sinchora and started taking nieal fhere and at about 12' o'clock Harichand, the neighbourer came there arid informed that Bhun-i nad ialled Kondi Uai by taagi and ne nas seen tms. Mearm.g mis, yhivratan and tus orotner-in-law yiyaram caine to viliage Chihnakala and saw tfaat me dead bodv of Kondi Bai was lying in the courtyard and the blood was oozing. Shivratan's wife F'uleshwari was there and F'uleshwari told fhat Bhiirri has cut Kondi Bai bv tangi and fled away. Tangi was lying near the dead bodv. When Bhiirri was cutting with tangi F'uleshwari, Panchmen Bai and Satanen Bai had seen. After seeing fhe situation of me spot Shivratan mimediately went to the Pollce .Station, Kajpur, which was situated at a distance of 10 Kms. froia his viuage and lodged the / . ,/ report. AfteK the report was written fhe Head Constable recorded merg intiination vide Ex.P/2. On 8-12-1996, at about 8.30 the investtgatuig Utticer cam.e, prepared pancnnanaa if;x.F/4) and also prepared the spdt map. The body was sent "for post-mortem vide 1 ' '.- . ' ' ';Ex.P/8 to Uie Prrman7 Health Center, Kaipiir. The post-mortem was ^ " ' , . f , II ^^staS SiffiEpSS&3 '^ conducted bv PW-8 Dr. Pritam Ram.. Post-mortem report is Ex.P/9. 'l'fae touowuig uiiiines were tound on me bodv ot Uie deceasecl: ^ "Antmwrtem:- ' Inased wound - back of the neck in between both sides scapula size 6 2 cm. cut alongwith vertibral column. Spinal cord common carotid artery and vein and muscles and nerve. Caitsed by hard and blood stained on face and D€tdi\. St^S-S Gj TftS GGCKtf, -i^CCiff? ftffCLaity^ €t^S3 ClGSffd, pupil duated, nose 'hectlthy, mouth closed, tongue w. side the mouth. Vpper and lower extremist was healthif. All naturcd orifices was heaithii.' in ttie opuuon ot Uie Uoctor Uie cause ot aeatti was clue to trauraauc cut iniun? of back side of fhe neck. The death was homicidal in natiire. The axe was seized (Ex.P/6'j and the same was sent to the Doctor (Ex.P/ lO-A') for his opinion. The opinion of Uie Doctor is Kx.f/ w wnere it is opuiea mat sucn uiiury can be miucted by uie weapon Uke axe. The accused was arrested on 9-12-1996 vide Ex.P/12. / j; ^ 4. On fhe charge betng framed, fhe accused abjured the guilt and contended that he has been falsely unplicated. It is further contended that he was not present on the spot. 5. The pro^ecution in order to establish fhe charge agatnst fhe '• / ' •. accused exqmuied: ui au 10 witnesses. 'l'ne trial Uourt relying upon the evidence and fhe material on record convicted the accused/appeU.ant and sentenced him as narrated above. m 6. As far as involvement of the accused/appellant in coiamitting murder of Kondi Bai is concemed, Shri Verma, leamed counsel appearing for fhe appellant, contended that there is no legal and reliable evidence on record and the appeUant has Deen falsely roped- tnin fhe criine. Shri Mishra, leamed counsel appearing for fhe State, on fhe other hand, supporte^ the judgment of the trial Court. ^: 7. Perused the record. Shivratan (PW-1) lodged the Flrst Intbrmation Report in ttie Police Station, Rajpiir, which is 10 Knis. away trom the viuage. In fhe FIR he has laentioned that Mankunwar (PW-2) has seen fhe incident. She is fhe eye witaiess and she narrated the story. In his evidence he stated that the appeUant & Kondi Bai had come to his vulage a day before the incident. Kondi Bai staved in fhe house and appellant had gone to village Sinchora. He furttier stated that ttie accused used to beat his sister and for this he toried to pursue both oftfaem not to quarrel. He also stated that he had gone to fhe house of his another brother- 3 • in-law namely Siyaram and at that time Harichand, the neighbourer of Shivratan came there and informed about fhe incident Then he came alongwith Siyaram and saw that his.sister was Iving dead and had sustaine^: tnjury caused' by tangia. He also stated fhat the - / .•• • • tangia was lymg near ttie cleacl l:>oclv. He went to the Police Station and lodged the report (Ex.P/ 1). In paragraph-6 he stated that in village Sinchora. his another sister is livtng and he had gone to her house. In paragraph-9 he further stated that he had seen fhe dead '\.^ - . . . ^ . \body offhe deceased which was lying in the courtyard. His mother, .J • . '" - ll^! ..i - | ^ wife and daughter were fhere. There is nofhing in the cross- exaramauon to aiscredit tus version. 8. Mankunwar, who is Uving adjacent to fhe house of Shivratan, has been examined as' PW-2. Mankunwar (Fw'-2| stated in paragTaph-2 of her evidence that at about 10' o clock she was sitting ^ alongwith Kondi Bai and were cutting fhe vegetables (piiinpkin) for preparation of badi. At fhat tune accused asked for water from Kondi Bai, Konai Bai gave a glass ot water ancl men ne aslsea tor tobacco. 'Thereafter he asked for axe on fhe pretext that he has to repair his chapaal. He asked Kondi Bai to accompany him. to his viUage; K-oncti Bai salcl ttiat sne woiild not come toaay ana atter doing tfae house hold work she would go. On this, accused gave axe blow on her neck, as a result of which Kondi Bai feU. down and blood started oozang out. Thereafter, fhe accused t1ed away from tfae spot. It is also stated by Mankunwar (PW-2) that while runntng the accused was watching fhe backside as to whether he is being chased or not. He left fhe tangia. on the place ofoccurrence. Tangia was taken out by fhe mofher of Kondi Bai. Thereafter viUagers caine there and she told about the incident to, fhem. In para-4 of her CToss-examin^tion, she stated fhat she was tnside the house and '- / ' - was preparing the food; at fhat' time Kondi Bai was beaten. She heard fhe noise and saw fhat fhe accused was beating Kondi Bai. She further stated that faer mofher-m-law also canie from the front side and she came froia bfher side. In paragraph-5 she stated fhat '••^Qae axe was taken on the pretext of repainng of chappals and stie \ ' - '",'•*' llNU'l' |i*t».i.itiia^i__ ^^-^'^, ••"•s^'-'i- ^ .1: V stated that if fhe Police has not written this she does not know fhe reason for the sauie. It is denied that she had not seen the incident and it was told by her son and she had only seen fhe accused runrung trom the spot. She turtner stated Uiat the nouse is iust adiacent near jhtata anct iust at Uie ctoor ot tne nouse accusea was '1. beating Kondi Bai. She has denied the suggestion that no talk had taken place with Kondi Bai. She voluntarilY stated that Kondi was her sister-in-law and fhey used to talk to each other. She also denied that she is falselv implicating the accused. It is further stated that she does not know about any previous quarrel between the accused and Kondi Bai. We have gone fhrough the entire eviaence. 'l'nere is nouiuig ui me cross-exaiamation so as to demolish the version of P\V-2. PW-2 is the natural witness and at uie tune 01 inciaent slie was present at me spot. 9. Apart froni fhe above, one more witaess nanielv Satmen Bai (PW-6), aged about 4 years is fhere. After putting .five questions trial Uourt canie to t&e conclusion Uiat sne is capaDle to iinderstanct tne questions. Questions asked were (1) about her name, she replied that her name is Satmen; (2) about her fafher's name, she repUed // . that her tafnfer's nanie is SIiivr^tan; (3) about her residence, she replied as Ctfilmi; (4) she was asked whefher we have to speak tnie or false, she repued as true; and (5) where you have come, she replied that Ambikapiir for givkig evidence. In paragraph 6 she stated fhat she knows the accused whose name is Bhurri. She knew ./• Kondi'who was her Bua who died. She stated that accused killed |i'feuufcjuia..i_.;. ~-ir- ^7, her Bua. She used the dialect word 'kapat'. She also stated fhat accusect nad miucted tangia blow wiien ner Uua was uiside uie house. She further stated in para 7 ofher evidence that at that thne her BUSL was cutting pumpktn for preparing badi. In para 8 she stated fhat she has come to the Court alongwifh her parents. In para 9 she denied that she gav6?"evidence at the behest of her parents. She admitted that p.olice had enquired froia^-tier. She ^^"•< denied that she was not present at fhe place of occurrence. She stated that she has onlv one Bua. At the tiaa.e of incident she and her Bua bofh were fhere and none was there. She has categoricallv stated Uiat sne nas seen uie uicident. She was aslsed as to wnetner she was able to understand about the deafh. She stated that accused beat her Bua, therefore, she died. The trial Court had put the question in paragraph 11 as to who had kffled her Bua.. She answered that accused present in fhe Coiirt Bhum had kuled her Bua. In para 12 she denied fhat she is saying fhat the accused has killed her Bua at fhe behest of her mofher and fafher. She has also clenied Uiat she is tutored by her parents. Though Satmen Bal jPW-6'l is a chud witaess but fhe nianner tn which she answered the quesuons uie Uourt Delow reliect upon ner evidence. We nave also ./ gone fhroUgK the evidence 6f f4is witness. 'There is nofhing on record to discredit her evidence. T'he evidence of Fw-2 Mankunwar is also such on which unplicit reiiarice can be placed. m fhe present case fhe prosecution has been able to produce eye witnesses. Their .eyidence fuUv establish the fact fhat it was fhe accused who had ..:1^_1 —:^ given me tangia Dlow on Uie necK ot Koncli Bai and as a resuit ot which she died. The evidence of fhis witness stands corroborated bv medical evidence. 10. At this stage, leamed counsel for fhe appeUant stated that the accused was not tn ttie vulage and was worktng Ln some nursery. ;'s1 He referred to fhe evidence of Ashok'Knmar, DW-1 and Lala Ram DW-2 wherein they stated that the accused was working in the nursery. We have gone fhrough titie evidence of DW-1 and DW-2 and found ftiat the detence version has riglitly been rejected by fhe trial court. We find no substance in the contention. The evidence of Mankunwar (PW-2'l 8s Satmen (PW-6) also g.o to show fhat the accused was beating the deceased Kondi Bai. They are eye witnesses of fhe incident. The lungi which was seized was found stained with blood which is evident from me report of F'SL and Serologist (Ex.P/14). 11. Lastly, leamed counsei for fhe appeUant advanced the argmnent that fhe offence would not fall under Section 302 of fhe Indian Penal Code and at fhe most the saine would fall under Section 304 of the Indian Penal Code as fhere was only one iniury / on the body ofth6 deceased and fhere was no intention to kffl her. 12. State counsel opposed the contention of the learned counsel for the appeUant and contended that it is a setued principle 01 law vthat number of iriluries is irrelevant and it is not alwavs the determining factor in ascertaining the intention. He placed reliance upon the decision in fhe case of State of Ralasthan vs. Dhool Slnedd reported in (2004) la SCC S46 (Para 131, wherein the Apex court neia as iinaer: ^. °.....The number of infuries is irrelevant. It is not always the detemunin^ifactor in ascertaining the intention. It is the naiu.re of injury, the part of body whsre it i& caused, fhe weapon used in causinq such injuni which are the m.dicators of the fact whether the resporident caused ths death of the deceased withan intention ofcausing death or not. In the instant case it is frae that the respondent nad 'decdt one single t>low iinth a sword which is a sharp-edged weapon measuring about 3 ft in lencfth on a vitcd part of the bodv, namely, the neck. This act of the respor^dent thaufih soiitary m number had severed stemocleidcd naisda, extemcd jugidar vein, tntemai .ruciutar vein ana common carotua. arteru completely leading to cdmost iristantaneoiis death. An.y reasonable person with anii stretch of imagination can come to the concbtsion that sv.ch injury on such a vitcil part of the body wtth a sharp-edged weapon wauld cccuse death. Such an iniu.nl not only exhibits the intention of the attacker in causing the death ofthe victim but also the Knowledge oj tne attacK.er as to the tiheiy consequ-ence of such attack which could be none other than caiising the death ofthe victim.......' State coTiinsel turther piaced reliance upon the decision in Uie cases ofTbant^iva/YS^StateotT^N. reported m SaOUSl 9 SCC 65Q (Para '• / ' . 22) & Darshan Yadav and others vs. State of U.P. reported in (2005) 10 SCC §92 JPara 3) contending fhat fhe sam.e view was taken by fhe Apex Coiut. —& 10 13. Having considered fhe facts and ciTcum.stances of fhe case as discussed hereinabove and in view of fhe fact fhat fhe manner in which fhe accused attacked. his wife and mflicted ttie iniury on the neck, which is a vital part pf the body, fhe intentioa of the accused was absolutely clear to cause death of fhe deceased. There is no ,,y» _.„ - _ ,. substance in fhe albresaid content^n. The oflence under Section 302 IPC is clearlv niade out. 14. We are ot Uie consiaered opinion Uiat tne tincung, conviction and sentence passed by fhe~ trial court do not suffer from. anv miinnity which may cail for anv interference by this Court in its appellate jurisdiction. 15. Accordmgly, tfae appeal faus and is dismissed. Sd/- Fakhruddin Judge Sdf- V.K.Shrivastava Judge -^-C-2GQ6 uown/M -. /