' L".11"'" tt.sateaiiaijuij ••..f;'"1 f'^-«' \.! CF0000057486 ^f[ >^ IN THE HIGtl COHfiT 0:F 1'IADHYA •PRASESH AT JABALPUR CriminalAppeal Ho. Appellant s '.-/.Of 1989' s~ Smt. Kad^i Gurbo widow Qf Guddi Muria^) j n jail) ' 'aged about 30 years resident pf - ^ Beagloor- Ayati^ara P.S. Kuakonda Dis.tEict Bastar (M.P) Versus « ;: Respoaaent ;~ TheState of •APPE UNDER M.P. SECTION 374(2) OF.THE'CODE OP CRIMINMi PROCEBURE HIGHGOURT OF CHHATTISGARH : BILASPUR Criminal appeal no. 795 of 198& Single Bench:- Hon'ble Shri JusticeDMrendraMishra Smt Kadti Ourbo Vs. ^ TheStateofC.G. Appellant by Shri Utkarsh Verma, Adwicate. Respondent by Shri Vinod Shrivastava, Govt Advocate. JUDGEMENT (Delivered on^mWffi) •s'f.f .-i !i?y" ''•?'S^B ti;il:B'E^!B«SS,.. The appellant has preferred ttiis criminal appeat under SecUon 374(2) of the Code of CriminatProcedure as the appellant has been convicted under Section 304(11) ofthe Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. The case of the prosecution in brief is that the incktent took place on 25.11.1986 at about 3.00 pm at vlllage Begtoor. The report of Biis Inddent was lodged on 26.11.1986 at about 11.30 am in police outpogt Ifertekalyan by KadU Budhu. AccorcHng to the FfR Ihe daughter-ln-taw <rf the complainant informed the complainant that the anaetlant hss kilted the deceased wtth axe andthe body of the deceased is lying tn his thrashing fisld whereupon Vhe complainant went to Vhe house of his brother and found the dead body lying on the thrashing filed. On being asked from the appellant she said that while she was breast feeding her chitd, ttie deceased came and demanded fneat and when she totel that she will serve him meal after breast feeding, the deceased assaulted the appetlant twice by kicks and snatehed the chikl as a resutt of which she took the axe lying nearby and assautted the deceased. The appellant confessed in tte presence pf Sarpanch- Magdu Hando, Kotwar-Kamlu and other viHagers that she murd^red her husband and the incident was seen by Kadti Torko P.W.Sand Markami Jogi P.W.4. On the basis of Ex.P/12 merg inUmation was registered and accordingly FIR of Ex.P/13 was registered in Police YOGENDRA SINGH KANWAR Digitally signed by YOGENDRA SINGH KANWAR Date: 2025.02.20 13:02:07 +0530 sialeSS^ M:;;stss''i?gH •s. - Station-Kuwakondaand merg registered as per Ex.P/Kbythesatol Police Stafion. The matter was invesUgated by the Head ConstaUe Lekhdhar Dhiwan and he prepared the Inquest report of Ex.P/5 upon Ure dead body at theplaceof incident on 26.11.1986 and on the samedate sentthe dead body for postmortem. The postmortem report Is Ex.P/15. The Investigating Offieer seized ordinary and bloodstained soil from the place of ineident and a white dhoU videseizure memo ofEx. P/6 and ther«ifterrecorded memorandum of the appellant as per Ex.PQ and on her dtselosure the weapon of offence axe was recovered and sefzed as per Ex.P/3. On the samedate, the bloodstained towel wasseEed from the appellant as per Ex.P/10 and two sealed packets brought by Conslabte Ramsalwas also seized vide Ex.P/11. The seized towel and axe was sent for chemicat examination victe memo of Ex.P/8 and P<9-A. Dr.K.P.ts^ <rf Primary HeaBh Cenfre, Katekalyan gave his examinaUon report ot slmple antf bloodstained soil and bloodstained towel vide annexur®Ex.P/8. The axa was examinedby thedoctor on 14.12.t986 andthereport ofthedoetor is Ex.P/9. On further inv^igation chargesheet under SecUon 302 of the IF'C was filed and the teamed Judtesial Magistrate First Ctess committed the case to the Sessions Judge, Bastar, Jagdatpur vide order dated 07.02.1987 and Ihe charge underSection 302 of the IPC was framed vide orderdated 06.07.1987. During trial the prosecution examined in all 12 witnesswand thereafter recorded statement of accused under Sectfon 313 of ttie Cr.P.C. The teamed trial court disbelieved the vereion <rf wttoiess Markami Jogi P.W.4 and relied upon thereport of P.W.6 Dr. K.P. Nag that the death of ttie deeeased was homteidal tn natureand further relied upon thestatementof Kadti Torko P.W.3 and convictBd theappellarrt under Section 304-11 rfthe IPC senteneing her to undergo Rl tor seven yeare holding thatthough the appellant was asrare of the fact that by her act the deceased coutd die but she had no mottve to cause deathofher husband. Leamed counsel for the appellant submits that ttie Court betow has committed lllegallty by relying upon the statement of P.W.3 as there is material omission which is evidentfrom perusal of the cUary statemOTt of Ex.D/3 in which she had ^ated that peeping through bush sh&saw that the deceased was assaulting hiswife and snatehing fte child. Leamed counssl further argiies that the slatement of this eyewitness cannot be acted upon as the statement of this wttness Is not corroborated toy the .T]tt'*''*''["" -3- . 9 medical evidence in matertet partteulEff as thfewib^ss has stated In her statement that the appellant assaulted fte deeeased on his chest firom the back shle of the axe whereas P.W.6 has categorteally statect that ttw deceased sustained singte injury on Ws leg. The further submisdon by leamed counsel for the appeHant is that the Gourt below ought to have given Ihe right of private defenc®to the appdtant as th®deceased as^utted firet by kicks and thereafter snatched the breast feeding chtld from the appellantandthus theappeltantapprehending thsrt the deceased coukl throw her Md out of anger and thereby killed thechild, exercised the right of private defence and gave a singte blow to non-vital part, the l^, <rf the deceased. Leamed counsel for the appellant further submits that P.W.6 Dr.K.P.Nag has categorically opined thsrt there was no injury on the person of the deceased exceptasingte injury on his left leg behlnd knee of size 3x2 inches and he has stated that there was no injury eaused by the back sMe of the axe over chest or stomaeh of the deceased otherwise he woidd have menUoned the same. Relying upon <he Judgment reported in AIR 1980SuBiwi Court1873 in the matterof Purahottam and anetoerVs. Stete of Madhva Prailesh, teamed counsel submMs ttiat in ttie murder case where there is contradiGtion behveen medical testimony and eyewitn^ account regarding fetal injuries of the deceased, medical testimony should be preferred and thus, the Courtbelow has committed illegalfty by relying upon the statementof P.W. 3 as the statement of this witness is notcorroborated bythe medical evidence; On the other hand, learned counset fwthe ^ate submits that evenifitis eonsidered that it is a case of single blow, the doctor has categorically opined in hls report that the injury caused on the teg wss fatal in nature and the same was suffieient to cause death in the normal course. He further submits thafthe statementas gwen bythe P.W.3 was reliabteand has been rightly believed by the trial»Court. He submils that even black spots were also found over chest and stomach during preparatton of inquest reportwhich is evident from perusatoftheinqueslreportandthus ther®is no materiat variance regarding injuries presentover theperson of the deceased in the statements of the witnesses and the postmortem report. . —— -^ I have heard learned counsel for the parties and have perused the records, statements of witnesses and the impugned juc^ment of the trial court also. So far as the contention of the appellant that the eyewitness account of Uie P.W. 3 should be discarded in toto on fte ground that in her diary statement she has stated that she saw theincident behind the bush and ttiere is someomission regarding clescrtptton of the mcident in the matter of assault by the deceased and his snatehing of child from the appellant, 1 don't conslder ttiat simply on this reason her slatement can be discarded eompletely and this witnessshould be disbelieved as the discrepancy is minor in nature. As far as the second contention <rf the appellant that <he Court below ought to have extencted the benefrt under Section 97 of the IPC as the appellant assaulted her husband apprehending that he could cause harm to the child is concemed, taking into consideration the fact that the deceased was not having any weapon with him and he was simpty demanding meal so it can not be said that the appellant could have reasonably nourished the apprehension of IHe of her child. However, considering the circumstances in whieh the appellant assairftBd her own husband and further considering the fact that single blow was given by the appellant to the deeeased on his back knee, tt cannot be said that she had ttie knowtedge that by such act she could cause death of her husband and thus the finding of the Court below in the impugned order that the appellant assaufted the deceased by axe with the knowledge that she may cause death of her husband is erroneous. The act <rf the appellant is voluntarily causing hurt by dangerous weapon is punishable under Section 324 of the IPC. Accordingly the impi^ned judgment of convictionunder-Se&tion 304-11 ofthe IPC is set asideand the appetlant is convicted under Sectfon 324 of tfie IPC and considering the fact Uiat she is a tribal lady and further considering the circumstances in which the offence has been committed by her and that she has already undergone jail sentence of five months until npw, she is sentenced to the jail sentence already undergone by her. — Sd/- DHIBENDRA .MISHRA Judge