;. ^rst% ^ -^/ !iiaa ~v- :gE-:Kia!i9'» HI6H COUftT W CHHATTIS6ARH AT BILASPUft &IVISION BENCT: Honlile Shri Dhnwidra Mishra A Hon'ble Shri Jikanindra Moluin Shrivastwa, JJ. APPELLANT CEnJait) RESPON&ENT Criminal-ABoeal No.S9 of 1992 Mnniger, son of Chungru UG!Min,.qged 30 years, riesident of Sona-Jori, P.S. LcM'fcmga, District Raigarh (MJ*.) Vs State of AAodhya Pradesh Present: Mrs. IGron Jain, Advoccrte for 1he appelknt. Mr. 5. Yodw, t>y. Swemment AdTOcnte for rte State. ORALJUbfiMENT (Detivered on 22* Jonuary, 2010) bhinndru Mishra. J. 1. This criminal aypeal is directed agairKrt' •the Judgment of convictwn ond order of sentence darhed 25.9.1991 passed jn S.T. No33/91 whereby the (eamed Sessions Judge, Raigarh hes convicted ihe appellBnt under Secfion 302 of the IPC ond, sentenced him.to Life Imprisonnwnt for cousing homicidal death of deceased Lahiram. 2. Cdse of -the prosecution, m brief,js thot on 25.2.1991 Ihe decmsed hod gone to •the house of his nephew nom»ely Cyrit (PW-4) tosee hhn as he -was sick. A feost wus also ammged in Ihe house of Cyril on Ihe eve of his marriage ond aj-ab<»ut4,00 p.m. deceased Lakiram, Lalsai (PW-2), Vijay A Cyril were sitHng in the house and consuming Kosna (home nwde liquor). All of ajdden, •the'appellont took out an axc from Ihe rpof ond assaullied Lahjrnm on his forehead A roouth ond ttereafter nn mwf. Lakiram died on the spot. 3. Report- (ExJ>-l6) of •the ncident wus lodged by Sudon 0>W-13) m Police _ Station Lailungn nt about 10.15 p.m. on the sngne ctay naming the oppelknt as perpetnitor of offence. Ater9 mtiroation wws also n^istered on the infonnation of said Sudan vide Ex.P-17. After registering •the offence, t,... Bll:iilfc:JiS!tt •the police proceeded for the scene of occyrrence and prqwped mquest over the person of deceased vide ExJ*-2. Thereafter, dead body of the deceased wws sent for cutopsy to Community Heah+i Centre, Lajlunga vide Ex.P-8 where Dr.'Swilendro Upadh^ty (PW-12) corKlycted postmortem ond gwe his ceport- of Ex. P-9. On 1tie miemorandum (g.x.P- 4) of 1+ie appeltant, weapon of offence, axe, wos recowred froiB'the forest vkle Ex.P-5, Spot map wws got prepared t>y Shri Albert- Bm», Halta Patwari (PW-11) vide Ex.P-15. Blood stamed arl'icles, wwe., dhoti of the deceased etc. were sent for chemical examinatton tp FSL, Sagor ond as per report of Ihe FSL (Ex.P-18), axe seized fronftheappellwitdidnot contam btood. 4. After comptetn9 uaial investigation, chcuy dwet «wsfjled againat the appetiont in •theCourt of Jwlickxl Mogistrntel Class, ©harghoda.wAo,in tum, committed the cuse to the Court of Sessioru Jud9e, Raigarh far trial. Leamed 5essions Judge frgmed charge under 5ection 302 of the JPC agamst the appelknt, who dibjured his guilt. Tbe prossecutKm in order to estiiblish charge against the appellant exaromed 15 wrtnesses in atl. Thereafter statement of dypeltant wus recorded unAsr Seri'ion 313 of •the Cr.P.C. in which he denied the circumslances appearing against him in •the prosecution xase ond plended -that wilnesses are relatives, they wont to oust him from his home and on account of this aninwsf(y»h<-hasbeen falsely implicated in -the crime in question. S./The trtat Cwirt after hearing cowiset fw -the wspective parties conyiet'ed and sentenced the oppellant as mentioned jn paragraph-l of the judgrtent. 6. Homicidal death of deceaSfed Lalwam is not in dj^pute. E^en otheFwrise from the evidence of Jhingabai 0>W-l),l-<>tsai(PW-2) & ftidhBam (PW-5), who have wilnessed •thc in<;jdent. and furth^r pn Ihe bdisis of exidaice of Dr. 5hailendra Up<ufliyay (PW-12), who has conducted Ihe postniprtem ; 'and proved his reporl' of Ex.P-9 in whjch he found following in^iries on •the persion 6f Ihe decisaseft and stoted Itwt deceosed (lied dMe tfl como & mtro cerebrol haemorrhage as a resutt of compression of broin ond the -"i^ii:. § ' ';:'^^; i' Bi^tSEi'aa dea-th is homicidal m nature, Ihe homicidat darth pf decensed Lahirom is established. • Incised wound at frontal bone re9ion on right side oblKyiely pkiced stnrting 1 cm above right angte of right eye of^size 1.8" fvngfth x .5" breadth, bone deep. • Ijicised wound at right cheek necr rightangte of nwu'th, bone sleep with blood cbts. • On intemat examinort-iwi, frontat bone frwtured in .snwll pieces and fragments dipped mto brain muterial. • Right parietal bone fraetured. • Joints of both fron-tal and parietat bones t*ere broten. • Left fronttil bone above left' eye was broken. 7. Mrs. Kiran Jain, learned counsel for •the dppellant qrgiied •that cmnjctwn of the appelbnt is based on the evidence of e^swrhieaes Jhmgabai (PW-1), Lalsai (PW-2) & Budhram (PW-5). However, evwi if their evidence is accepted, the convicticm of -the appellant under Scellon 302 of the IPC is ille9al and erroneous as from the evidence of eyewitnesses it woutd be evident that the inci<tent occurred in the spur of nwnient due to sudden provocation wi-thnit any pre-meditatipn while thp a|^)elkint end other persons present in Ihe house of Cyril t»ereunder •t+ie hrfhjence of liquor, the appellont suddenly .took out the oxe from •the roof of house and gave Iwo btows to the deceased resuhing in hjs unforhinate death. On -the basis of obove evidaice, offence wmmitted by Ihe cypelkint does not trwet beyond Section 304 Part-I or II of the IPC. 8. "Dn the olher hand, Mr. Yadav, leamed t>y. Sowrmnent Advocate for the State has supported the impugned judgment. '/ 9. We have heard leamed oounsel for Ihe parMes and atso perys^ .the record of the tria) Court inckiding the impugned jud9ment. lO.Presence of the oypellant, deceased Lahiram, eyewitnesses namely Jhingabai (PW-1), Lalsai 0>W-2) A Budhroin (PW-5) n the hoiise of Cyril (PW-4) is not h dispute. 11. Evidence of Jhingabai (PW-l)^«risaifl>W-Z) & Buahrom 0>W-5) is to the effect •that they had gone to the house of Cyrit on his invitation arKl ::^: ^ <S* :s •'.^t^'.iStsSS^. a!i;i:si;tagE&- KM:WE-3SSi!.. where they had dined »idconsumed Kosna Owme made luywr). Lalunim also came to see Cyril, who was sick, and at Ihat tinie Mnniyr, present appellont, assautted Lakiram on his forehead <nd hend byBxeflod after assaultng, he ran awuy. (.ahiFam djed •there. Th^sewJ'tnMaeshflWebeen cross^xamined by the defence, howwver, -fhe defwoe couU natelKit anythmg from •their cross-exnmination which mukes•rijey wi^ion untrustwortfiy or unrelwble. . Version of the abov®wilnesses is a|»corwboratBd fwm.tte evidence of Or. Shaitendro Upachyay (PW-12) wiho has foynd aind.prowd Kie correspondmg injuries over the person of Ihti deoeased. Their veraon is further corroborated from the evidwice of Suckin fl>W-t3) who todged Ihe report on the same day naming 1iie pr^antoppellontas perpetrator of offence. Therefore, in our considered 0'pmion, th^i trial Cwrt re^ftiQ upon the above evidence hos rightly held •the jnvolvenNsnt of Ihe appellant.in •the crime in question. IZ.The question for our <?)nsiderutk»n is whelher the trial Court »»as justified m convictin9 the oppeltont umter Section 302 of IPC or whe-ther -the c^pellant committed •thp said offence on •fhe spw of moment without pre-meditation Aie to sudden provocation. 13. From the evidence of Dr. Shailendra L^adhyuy 0*W-12) it js evident that the appeltant assaulted •the deceeaed by an axe owr his forehead A head (and-caused two incised injyries on the sluill and temporcd regwn. Injuries.wiere caused wilh sudi a force thut 1+ie snme resuhed in fraginenlution of frontal ond parietal bones. 14. It is sett-led taw •that intention of an accused B 19 tw gerth<»redfrom the weapon of offence, the force wrth wihich the assault was made end the port'ion of •the bwly over which the assoult was made. Lookmg to •the weappn of offence and nature of injuries sustamed by the deceased, , intentun of the appeltant to ccuse death of LakjnuB cnn safely be inferred. w^ 18. On close scrutiny of entire evidence, we fmdtbat •H'i»riisjs.rw evidsnce of provocation by Ihe deceqsed ond tberefore.tNeope unable to accept the arguinent pf leflmed caunsel for the appellont thct 1he ppesent offence ctoes not travel beyond Sectten 304 Part--I or II of •the IPC. 16.In the resuh", the appeal-hasno substance, the wme des^rves to be dismissed and is hereby di$missed. 17. Vide order chted 03.12.2001 the appellont was 9ronted bail, hwever, his bail bonds are cancelled caid he is direeted to sunwider before ths trial court forthwith. ~ Sd/- Dhirendra Mishra Judge Sd/- Manindra Mohan Shrivastava Judge k :».<:« s:r's: ,:itaE