XI—HC—78 W HW,W,W 200/ mCms£N .....°. wig/5‘0 Hi WW<W> W$IW WWW wwwm WW§WW éEWW ’ \s HIGH COURT OF DIVISION Bl HON'ELE MR JUSTICE HON'BLE MR. CRIMINAL APPEAL CHHATTISGARH AT BILASPUR NCH' L C BHADOO & DHINENDRA MISHRA J’J NO. 1213/2000 E APgELLArxfT ‘ r NandaL residenf Prafappur, Surguja. son of Dular, aged abouf 48 years, of Dhar-ampur, P.S.H. Officer, P.5.H. (Police Chauki Bhafganw) Disff. (MR) § ‘ VS RESPONDENT ‘ Sfa‘l‘e Officer! BhatganW) of Madhya Pradesh, fhrough P.$.H. P.S.H. Pra+appur, (Police Chauki Dis‘r‘r. SurgujiwP.) ' Present Mr. J.K. Shas‘l‘ri, Advoca‘i‘e for fhe Mn U.N.5. Deo, Addii‘ioml Public appelian‘i. Pl‘osecu'ror’ for ‘l'he respondent-Side. JUDGMENT March, 2007) ins‘l‘ fhe judgmen‘l‘ of convicfion and passed by The Addifional Sessions in $.T. No.106/94 whereby learned r holding fhe appellanf guilfy for ion 302 of fhe IPC, sem‘enced him 1'0 ORA L Per L.C. Bhadoo, J This appeal order of senfence Judge, $urajpur, Addifional Sessions commission of is dated Disiricf offence (26” direc’red ag 10.3.20 Sarguj Judge aff under- Sec P.T.O. J :XI—HC-78 WW,W,W ~ ...a1-.Q;QLe.-..Lzt:> W m H1 2000 wmgwaia ) WWW WWW WW&‘WW axmm ' mmwm “2- v { undergo RI. for life and To pay a fine of Rs.1,000/-, in defaulf of paymen‘r of fine To fum‘her undergo RI. for one year. The case of The prosecution, in brief4 is fha‘r on 4.11.1993 a‘r abou‘!‘ 9.00 am accused Nandal was busy in weeding work in his kifchen garden, deceased Mersai came To him in a drunken condifion and demanded liquor. OnJe’fusai by fhe accused, Mersai s‘l'ar'l'ed damaging drain prepared by The accused, when fhe accused asked him noi‘ To damage The drain, Mersai sTarTed abusing him. Therefore, The accused wenT To The parenTs of deceaéed and asRed Them To ring Their son To Their home, as he is Troubling him, buT The parenTs f deceased did not go There. When The accused reTurnedTo his kiTchen' arden, Mersai again sTarTed abusing him, which enraged him and in The h aT of passion he aTTacked The deceased wiTh The spade (kodi) on his he d as a resulT of which‘Mersa‘i feii down and his head was broken. Acc sed carrying spade (kodi) in his hand reached To The Police OuT-PosT BhaTgaon and gave The reporT, based on which firsT informaTion reporT (ExP—E & Ex. P-SA) was regisTered for commission of offence under 5 cTion 307 of The IPC and spade (kodi), weapon of offence}was Seized mm The accused/appeHanf under Ex.P-1. Receiving This reporT, The Inves igaTing Officer reached To The spoT and Took The injured Mersai T DisTricT HospiTal, Ambikapur. The InvesTigaTing Officer under Ex. —6 requesTed The docTor To examine The injuries of'Mersai, on which r. N.K. PaThak (PW—10) examined The injuries, prepared The injury r porT EXP—6A. In The hospiTal, Mersai P.T.O. ‘ XI—HC—78 @ ww,m,m WI-m . ‘ og‘k.g.ud—0£. .L24&. H1 2000 WW(W) Wamm WWW WWEWW wwwm ”’Lr‘ émf‘hrm succumbed fa fhe injuries, Therefore, merg infimafion (EXP-9) was sen? f0 the Poiice Sfafion. Dr. Virendm Kumar Shrivasfava (PW-7) conducfed posfmor‘fem examination an the body of deceased, prepared fhe posfmorfem repori‘ EXP-3 in whicf he opined fhaf cause of deafh is coma due f0 brain injury caused by f ur‘e of skuH bone. The Invesfiga‘ring Office: prepared the sife pian ( x.P—4) and also prepared the inquesf (EXP—2) on the body of deceased. Affer complefion of inves iga‘l‘ion, charge sheaf was fiied in the Cour‘i' of Judicial Mugisfra‘ie First Class, Surqjpur, who in furn commi‘l‘fed The case 1‘0 learned Sessions dge, Sargliia from where learned Addi‘rional Sessions Judge has r' eived fhe case on fransfer for frial. The prosecution in order To es‘lablish The charge againsf fhe accused/appellan‘r examined eeven wifnesses. Sfafemenf of accused/appellant was recorded u der Sec‘l'ion 313 of Cr.P.C. in which he denied ’rhe ma‘rerial appearing aga ' him in The prosecui‘ion evidence and sfafed fhaf he is innocent and h been falsely implicated in the crime. \ Learned Additional Sessions .Tu ge after hearing the arguments of learned counsel for the respectiv parties, convicted and sentenced the accused as above mentioned. We have heard Mr. J.K. 5 astri, Advocate for the appellant and Mr. U.N‘.5. Deo, Additional Public P osecutor for the respondent State. Mr. ,Shastri has not disp ted the homicidal death of Mersai. Moreover, PW—4 Tiwariram & PW 5 Tilakdhari have stated that accused a \4\\\\ P.T.O. r i u i 1 XI—HC—78 mw,m,W mm “HHQ'.A§.GL1X)%I§ ~200‘b mm(m) mmiém‘m WWW wmmm came To fhem and made ex‘rra J‘l murder of Mersai. ~44,— Dr. Virendr idicial confession fhaf he has commi‘H-ed That on 5.11.1993 he conducted p was'one incised woun‘d in ‘H’le forehead 2 inch aboveFfhe eye, 1‘1 4‘:<§ inch x deep bone on fhe frc bone was fracfured, “there was t fracfure of bone, shock and inJur fem in na‘l'ur'e and cauge of deafh was presenf, injuries were anfi mar : ‘fhe whoie case resfs on the cir: has fried fo esfablish fhe cri foilowing circumstances?- 1. The accused ‘ made e) Tiwariram & PW-5 Tiiakdi' 2. The accused wen? To The 'ihat deceased is Troubli Somari Bai (PW-1), mofhe of deceased, have sfafed 9 a Kumar Shrivasfava (PW-7) has sfa‘red tos‘imor'fem on The body of Mersai, There 1 inch x boneideep on fhe .gize of 3x g i nere was a iacera‘i‘ed woundiin fhe size of mfo-parie’rai region, beiow :ihaf fhe skull m injury on fhe brain, cioHed blood was ies were sufficienf fo cause deafh. s esfablished fhaf fhe deqfh of Mersai In view of fheiabove‘ if twas homicidd in n'nTuré. As far as involvement o1 i fhe accused/appellan’r in‘fhe crime in iquesfion is concerned, fhere is mo direcf or ocular evidence in This case, umsfan‘rial evidence and ‘lhle prosecufion me agains‘r fhe accused Based on line \ (irqjudicial confession before PW-4 CH. parenfs of deceased and informed ‘l'hem n9 him and ‘lhey should bring him and ~ of deceased and Ramsai (PW-2), father n fheir evidence fhaf when‘lhey reached P.T.O‘ XI‘HC»7 8 33W,m,f%mwgx WW ’ ....Q$A:Q§%;.L27l3 ’W‘QUOW mm<W> WW#WW " aaaTi—‘vdtranéw Aim {Q accused fhey saw fhaf their! son was lying :cused ran away. evidence of PW-4 Tiwariram & PW—5 v ‘ four Times and ihereaffer accus s carrying spade (K‘adi) i’n his hand h‘and, was s‘i‘ained wi‘ihi blood. i PW-5 Tilakdhani, who is \ above evidence and sf‘la'red ‘rha’r met him and informed fha‘i one i you fake him f0 ihe police. Whe Village Dumariya, accused mef h by him, The accused informed 1' and he is going To poli‘ce ouTposT. fhe cycle and he fook him 'io poli is from his village and his neighbi The defence has nof cro lengfh‘ in order To ascerTain T These Two wiTnesses are indepen disbelieve Their evidence and Th¢ l I mwmm ”5*” To The kifchen garden of in injured condifion and at Mr. Shasfr'i argued fha‘l Wakd‘hari is nof worfH reliame. PW-4 Tiwarirar§1 has sm‘md {haf on the fa‘reful day I’ie was grazing cat‘Hg in his garden, accused carve 1'0 him and said ’rhaf he has murdered him ThaT he aTTacked Mersai on his head Mersai. A‘ccused alsainformed ed wenT Towards police ouTposT BhaTgaon The spade, which he was carrying in his l i rillage Kofwar, has also corroboraTed The 3n The faTeful day, on The Way Tiwariram person has commiTTed murder of Mersai, n he was going on cycle, on‘The way near m carrying spade in his hand. 0n enquiry aaT he has commiTTed murder of Mersai On his requesT, I ailowed him To siT on :e sTaTion. Accused is known To him as he )ur. Spade was sTained wiTh blood. examined The above Two wiTnesses aT e veraciTy of Their evidence. AIThough enT wiTnesses, buT There is no reason To :re is noThing on record To show ThaT The P.T.O. XI~HC—78 HW,W,W WW . QKQQW W 2000 WW(W> WENW WW§WW WWW r wwwm -6“ é:3¢i—\rcman%31 ex‘rrqjudicial confession was n01- volunfar'y or True. Their evidence sfands corroborai'ed by The facf fhaf Mersai was found in injured condifion in the kifehen garden of accused and 1‘he accused was absconding from thaf place; PW-l Somari Bai, mother 0'? deceased & PW-2 Ramsai, fa’rher af deéegsed, who were working in fheir ki‘rchen garden af fhe Time of incident have _ca¢egoricaily s'i'afiad fhai' The accused came 1‘0 fhem and informed fhai fhe deceased is ceea’ring problem ’ro him, Therefore, fhey shouid bring him‘to fheir house. Thereaffer, ’rhey went fo fhe house of accused, they saw Thaf Their s01 was lying in iqjured condiTion and The accused ran Towards BhaTgaon. Therefore, The evidence of above Two WiTnesses and The facT ThaT Mersai was found in injured condiTion in The kiTchen garden of The accused, esTabIishes The facT ThaT exTrqjudiciai confession made by The accused before These Two wiTnesses was True and volunTary. Therefore, The involvemenT of The accused in The crime in \ quesTion is esTablished a'nd To This exTenT we do noT find any illegaliTy or infirmiTy in The JudgmenT of The Trial courT. Mri ShasTri argued ThaT case of The prosecuTion is ThaT The deceased wenT in a drunken in The kiTchen garden of accused where he was working, he demanded liquor which was noT acceded by The accused, on which The deceased sTarTegl damaging The drain of accused, The accused aske'd‘him noT To do so, Thereaffer, The accused wenT To The parenTs of deceased in order To persuade The deceased noT To indulge any i \\ P.T.O. XI—HC~78 WW,W,W WW ’ QQCQQmE‘ In 200-0 WW(W) WWW WWW wwwm - WW WW$$ awf—rHnm I JJ’L: ..'l_‘ such ac'fivi‘ties and fo bring him 1'0 their house, bu? They did nof furn up and when fhe accused re‘rur‘ned to his kifchen garden fhe deceased again sfarfed abusing him and damaging drain, therefore, The accused was lef‘r wi‘rh n0 ai'l'ernafive being enraged and he affacked The decea ed. As such, The accused wifhouf having any in'i'em‘ion f0 cause deafh facked The deéegsed and fherefore, fhe offence againsf The accused does noT Travel beyond 304 PanT II of The IPC. On The oTher hand, Earned AddiTionai Public ProsecuTor for The STaTe suppor‘red ‘The judgmenT of The Trial courT. The case of The: prosecuTilon, as per charge sheeT, isl ThaT on The faTeful day The accused was work ng in his kiTchen garden, deceased came To accused in a drunken condiTinn and demanded liquar, which was noT acceded by The accused, Therefore, The deceased sTarTed abusing and damaging The drain, even The accused wenT To The parenTs of deceased in order To persuade him noT To inculge in such acTiviTies buT They did: noT \ Turn up and in The meahTime, The deceased again sTarTed abusing The accused and damaging The drain of accused, on which The accused became angry and ThaT forced him To aTTack The deceased. This acT of The accused and The deceased finds supporT from The facT ThaT even The moTher ”of deceased Somari Bai (PW-1) and faTher of deceased Ramsai (PW-2) have also sTaTed ThaT in TacT accused came To Them and apprised Them abouT The acT of Their son and asked Them To bring back Their son. \‘\ \ Second Thing, ThaT The incidenT happened in The kiTchen garden of The I A P.T.O. XI-HC-78 ‘ j} ‘. 3am, m,%‘mgt WETm 2000 Wm<W> mmwm WW§WW §5Wm§w I ’8' f» a . evidence of Somari Bai & Ramsai drunken condifion fa The kifchen working, ‘sfar‘fed quarreHing wifh accused assaulfed ‘I'he deceased WI which deaeased feH down, his sku fhe hospifal ‘whefe he succumbe Therefore, in View of fhe above ci opinion fhaf the offence againsf Sec’rion 304-1 of The IPC, as such and senfencing The accused unde susfained. In The resulf, The appea! p: imposed upon The accused under- aside insTead Thereof The accuse 304-I of The IPC and senTen’ced Tc The accused/appellanT was in deTe: Judgment and ThereafTer', he is it of judgmenT i.e. 103.2000 Till Toc seT-off of The above period agains t . ,. Sdl- qr] N L.c.BHADoo T Judge’ accused, Therefore, The prosecuTTion case, as per ground siTuaTion and shows ThaT in facT deceased wenT in a garden of The accused, where he was The accused and in ThaT process The Th The spade on his head as a resuiT of i bone was fracTured, he was Taken To :d To The inJuries on The nexT day. r'cumsTances, we are of The considered The accused does noT Travei beyond The finding of The Triai courT convicTing r SecTion 302 of The IPC cannoT be zrTiy succeeds, convicTion and senTence SecTion 302 of The IPC are hereby seT d/appeiianT is convicTed under SecTion v undergo RI. for 10 years. During Trial, iTion from 5.11.1993 To 5.2.1994, as per T deTenTion continuously from The daTe ay, Therefore, he shall be enTiTled for T The senTence imposed on him. P.T.O.