IN THE HIGH COURT OF JUDICATURE AT BILASPUR Er; K. rm W (C.G.) $3 m” CRIMINAL APPEAL No. %5 7/ 2006 G} %&IMINAL APPEAL UNDER SECTION 374 (2) CRIMINAL PROCEDURE CODE APPELLANT Chandrika Rao Maratha S/o (IN JAIL) /' ‘Dhani Ram aged 38 years Cultivator and resident of it A A M? Kasdol ( Indira Colony ) in the «w QwLW Q; pol1ce statlon Kasdol D1stt Ralpur (C.G.) VERSUS The State of Chhattisgarh 4% Through the [Police Station (30"; «0/ a \ LL" its (7L Qw‘va Kasdol District Raipur] Collector Raipur (C.G.‘). “if XI-HC-78 EW,WW,W mm 1H 2005 WW (13W) @ i W$rm WWW ;m Wmm Wench: - Hon’ble Mt. L.C. Bhadoo, ég WW§WW %31fa‘n3n%31 c.J. and Hon’ble Mr. Sunll Kugar Simha, J. 9- 1-2007 Mr. Janak Ram Verma, eonnsel for the appellant Mr. D.K. Gwalre, Depu1y Govt. Advocate for the State] m§pgndent Today _the matter is No.2521/ 2006, application fox suspension of sentence and grant of this appeal. With the consent of counsel for the"respective panics, arguments were heard for dual disposal of this appeal. Oral judgment dictated um Dais. Per L.C. Bhadoo, Ag.C.J.: - This appeal is directed bail aming thc pendency of against the judgment of conviction and order of sentence dated 21—8-2006 passed by the 1“ Additional Sessions Judge, holding the accused] app under Sections 302 6a 323 of I.P.C.. sentenced him to undergo imprisonment for life and p y a hue of Rs.500/ —, in default of payment of tine to fulther rgo imprisonment for two months and to undergo imprisonment or six months, respectively. The pmsecution case, night of 27-7-2005 in Indim abusing Shanti Bai, he threa ned her to kill her and went towards listed for hearing on M.(Cri.}P. brief, is that at about 9 pm. in the ony, Kasdol, the accused started P.T.O. Baloda Bazaar, in Sessions Trial No.382/2005, whereby learned Additional Sessions Judge after e guilty for commission of odence e ' e l t XI—HC-78 g?) MW,W,W r 1 WWW WWW WWW WW%‘WW é?a¢%uaq1%¥r an time. Tijau Yaaav (since deceased) came and intexvened. in thatl pmcess, the accused assaulted the deceased with a crowbar on h;.s head. The matter was Iepoxted by Shanti Bai in Police Station: Kasdol, on which the hrst information report (Ex.P—1) was registered for commission of cEence under Sections 2%, 506 Paxt- II 8a 323 of the I.P.C. Themafter. injmed Tijau was sent for medical exgihinahon to the Assistant Kumar Sharma (PW—9), ex: prepamd the igjuxy report E) lacexated wound in the size oi near occipital protuberance a injury was caused by hard & head was taken and based o the bone beneath the injury EXP—13 was prepared. The] Hospital, Raipur. He was dist again he was admitted in the 8—2005. Merg intimation Ex Post-mortem on the body oi Kumar Dhruw (PW-7), Medic College, Raipur, who prepaiec he opined that the death was result of head injury and its ( intimation, odence was conve: her to assault her. In fhe me. ;r Surgeon. Kasdol, where Dr. Yogesh mined the injuries of Tijau and :.P-12. He noticed that there was a ‘ 1" x V2” muscle deep in the mid line bout 4" above left ear and the above blunt object. X—ray Ex.P- 15 of the n the X-Iay report it was found that was found fiaetured and the report. eafter, Tijau was sent to Mekahara sharged n‘om Mekahara Hospital and M.M.I. Hospital where he died on 8— .P—8 was sent to the Police Station. ‘Tijau was conducted by Dr. Vikas al omcer, Forensic Medicine Medical l the post-mortem report (EXP-9) and due to cardio respiratory failure as a :omplications. On receiving the merg rted to Section 302 of the I.P.C. P.T.O. mm a1 zooé WW(W) XI-HC-78 3am,'§mm, mm . ®Ag57 .. In zooé WW (WW) ; WWW WW§WW ‘ WWW mmmm %3T%mm \ ‘ ‘ Atter g1vmg notice EXP-2 to the Panchas, inquest report Ex.P—3 on the body of 'I‘ijau Yadav was pmpamd. During police custody, the accused gave morandnm EXP-4 legavding the place where he kept the cm bar, the weapon of oEence, ’and in pursuance of that, the crowb was got recovexed at the instance of the accused under EXP—5. After usual investigatio , charge sheet was hled in the Court ofjudic‘ial Magistrate, First Class, Baloda Samar, Who in turn committed the case to the m ssions Judge. Raipur. hum where learned 13‘ Additional Sessio s Judge. Baloda Bazaar received the case on tmnsfer for trial. The prosecution in o er to establish charge against the accused examined 15 witn . Statement of the accused 'Was‘ recorded under Section 313 f the Cr.P.C. in which he denied the in the prosecution evidence and material appearing against stated that as Shanu' Bai was in the habit of selling illicit liquor, he used to object and What ha ed he does not know, there was no dispute mganling the land. Learned Additional Sessions Judge after heating respective coun sel and perusal of recoxd, convicted and sentenced the accused as aforementioned. We have heard Mr. Janak Ram Verma. learned counsel for the appellant and Mr. D.K. Gwalre, Deputy Govt Advocate on behalf of the State] respondent. Mr. Verma has not disputed the homicidal death of Tijau Yadav. Apart from that, based on the ocular evidence of Shanii \Bal (PW—1), Sanjay Rao (PW—6), Fixtu Ram (PW—13) 81. Teejram P.T.O. e e e s p . ' n @ XI—HC-78 EW,W,W mm ‘ .G2s.a.'.g§7” an; 200’6 Wm (W) WWW WWW wwwerwm MWWW é:aw%w311%w Yadav (PW‘ 14), as also the medical evidence of Dr. ‘Vikas Kumar Dhruw (PW-7), it is established that the death of ’I‘ijau Yadav was homicidal in natum. As far as involvement ofthe accused in the crime in question is concerned, the crime in quesu'on was witnessed by Shami Bai (PW-1), Sanjay Rao (PW-6), Ffltu Ram (PW—13) 8r. Teejmm Yadav (PW~ 14). They have stated that the accused attacked the deceased WEI; the crowbar as a result of which the’deceased received fatal injuly on the occipital region Their evidence stands corrobomted by the medicgl evidence of Dr. Dhruw (PW-7). In the cross- examination ofwthese witnesses. defence has not been able to bn‘ng on record any circumstance which discredits the evidence of these- wimesses‘ Themfore, involvement of the accused in the crime in- question is established and to that extent we do not iind any illegality or infirmity in the j ment of the trial Court. y Leaxned counsel for th appellant argued that horn the facts and circumstances of the c se it is evident that when accused Chandrika Rao Maxatha w s (max-telling with Shanti Bai, the deceased came and interve and in that mccess, all of a sudden without any premeditan'on in a heat of passion the accused assaulted the deceased once. Moreover, the incident took place on 27-7—2005 and ’l‘i Yadav died on 8-8-2005 ie. about 12 days after the date of ident, that too on account of pus formation, therefore, odence against the accused does not travel beyond Secn'on 304 Part—II of the l.P.C. ;p» P.T.O. ‘ u g n o j ' c XI—HC—78 Wm (W) mmm WWW m On the other handf’ Advocate supported the jud WWW r. Gwahe. learnea Deputy Govt. nt of the trial Court. Inoxder to appmciate the arguments advanced by the rused the evidence. respective counsel, we have position that the incident took died on 8-8—2005. Shanti Ba that she took the land mm C1 hexein, for construction of hot 6a boulders for construction of house. Chandrika Ran came and started abusing her in mthy Language and he attacked her with a club as a result'ofwhich she s time, Tijau Yadav came and st why they axe quarrelling, in 1 club, picked up a ijod and attacked with the rod on the head of u fell down. Similar is the evidence .‘t t It is admitted place on 27-7—2005 and ’l‘ijau Yadav i'(PW— 1} has stated in her evidence [andn‘ka Rao. the accus4ed] ap gllant lse and on that land, she/put bricks Tijau as a result of which 'l‘ija of other witnesses, Therefore, in view of the the accused was abusing intervened and in that pmcess without any premeditah‘on, head, bone was h‘actured and on account of pus formation i1 are of the oonsidexed opinion above evidence, it is clear that when and attacldng Shamti Bai, Tijau i all of a sudden in a heat of passion th accused assaulted only once on the head of the deceased as a res t of which he received injury on his he died after 12 days of the incident l the head. In the circumstances, we that in view of the above evidence, it is established that the accused is entitled for the benent of Excepn'on 4 to Section 300 of 1 he I.P.C. P.T.O. HW,W,W WW .C$R‘..Q.l.g§.7 . as 20045 mamatg‘z‘iw amm ustained inimy on her head. At that arted intervening and said that as to a he mean time, the accused left the a XI-HC—78 W$Im wwm WWW In the result, the app WW§WW §KWW m entitled for set-0d again st the In vieWx of this order. disposed of. , Sdl- KActing Chief Justice Sdl- 1 tiled by the accused/appellant partly succeeds and the sam is partly allowed. Conviction and sentence imposed upon the a used/appellant under Section 302 of the I.P.C. are set aside. in tead thereof. he is convicted unéer Section 304 Paxt‘ll of the LP and sentenced to undergo RJ. for five yeals. However, convictio and sentence under Secn'on 323 of the I.P.C. for attacking Sh ti Bai are maintamed. Both the sentences shall nm concurre tly. It is stated that the accused is in detention since 14-8—200 till date. stands ‘d‘ ‘ WW,W§,W 1H 200g mm (We) Sunil Kumar Sinha The accused shall he ove sentences imposed upon him. M.(Cri.)P.No.252li2006 ‘ . . a b