[C—78 ^T^T ?5T ^jch 1cT8Tf '3TI^?T sti^i^ T^T ^1^10^1, ^•c{i<-l^l^, fs|<?i>|-y^< CTT'A-HO. S5~7 /^ 001, 'WT^T sb^lcb •••""•-•-•••-•••••••••••-•"••"-•• "••-•^ 200 3:ni??r 1c[5Ri (4<=<F^<8T) @} '^nw^ft^ 3?ni^i CM^I<yl<fll ^H<A ^f^fe^ if^gTt iFr 3if?pr ^i^r AND HON'BLE DB: HON?BLE SHRI DHI&ENDRA MISHRA APPBLLANT VER^ RESPOTffnRjffT l-2-2008 Ms, Shipi^ Vishwa^ Mr. Sudhir Bajpai, 2. The appellant has ^ conviction aa.d order of 369/2001 whereby leam^ convicted the appeUaiit undergo ioiprisonment foj paynient of fine, to farthe| com.plain.ant Kursain Buc| matenial iincle-iii-law anj she woke up on hearin| .P, SHARJCTA, JJ. Punem Pandu; Son ofBaiyya Muria, aged about 43 years, occupation Farmer, residenf of village Salepaili, P.S, Parsegaj'h, District Dantewada (Chhatiisgaih) Us State of Chhattisgarh through Police Stauon Farsegarh, Disuict Daiitewada (Chhattisgarh) |, Advocate, for fhe appellaiit, py. Govt, Advocate, for the state. [referred fhis appeal agaiiist tlie judginent of Isentence dated 21-2-2002 passed ia S.T, |d Sessions Judge, Bastar at Jagdalpur has ulader Section 302 ofI.RC. aad sentenced to ^ life aiid fiae of Rs, 500/- and ia default of ^ undergo additional RJ. for 6 moiiths. 3. Case 6f fhe prose^utiou, ia brief, is fhat on 24-5-2001, fhe hari was sleepiiig ia the couityard witli her d her children. At about 11.00 ta tlie night, ? the barkiiig of dogs when she saw fhe appeUaat comiag witii ai|i axe and assaultmg fhe deceased Kui'sam Paiidu 4-5 tiaies as a rebult Kursam Paiidu died. She narrated fhe nicident to tlie villagers.j Paiichayat was convened ia the foUowiag 3?{T^T^ f<rlJch ^T^T '3TT^?T $f>^i<^ v^-^r r^i^i0^, ^Tfl-y^xs, fsf<yl>i^^< ^2 1RTPT?IT w^sch •^ 200 3:[li!?T'<T3W ( llc*?lc<^) ^mw^ftn^n^r Paiich4yat, day. In fhe said confession, fhereafter Merg| 4 was lodged by Kursaia Bitidhari Bo|dy prod^iced 4. During iavestigation,| deceased was prepared, to Public Health Centre, Stagh Dhruw conducted p<| Blood stained aiid plain soi possession vide Ex. P-8, possession on being articles seized duruig examiD.ation to FSL vicle EJ the queiy, P.W. 8 Dr. Ex. P-14 and opiaed that deceased could be caused further advised tliat for co3 be chemicatly exainuied. Gaie^id 5. After completuig the Coiul of Judicial Magistr4t coniniitted tlie case to the l^ 6. Duriiig tdal, the tliereafter statenient of cM^(<yl<fll 'HFRTf ^fe^ <P»l^i< ^^^w^n^r fhe appellaiit made extra judicial mtimation of Ex, P-5 aad report of Ex. P- Ldhari on 26-5-2001. inquest of Ex, P-6 over the pei^on of fhe of Kursain Pandu was sent for autopsy ^hairamgarh where P.W, 8 Dr. Gajendra ^st Biorteni and gave report of Ex, P-ll-A. froDi the place of uicident was taken into |Weapon of offence axe was taken iilto by the appellaiit vide Ex. P-9. The ^ivestigation were sent for chemical jc. P-12, A queiy was sent aad ui reply to e^idra Singh Dhruw gave his opiaion vide jthe uijiiiy present over the person of the by fhe seized weapon Kulhadi aiid he ^iliiirDiation of blood stsias, the axe should ^nvestigation, charge sheet was filed ia the 4te First Class, Daiitewara, who iii turn t:arued Sessions Judge, pit>secution exainmed 8 witoesses m aU, acdused was recorded uiider Section 313 of 3:SST ^tWW^, ^W\<o, isl^l-y^ ^-r NWdl sbUllcb •^ 200 371^T ?5T'f^TR? TTSff SV^ $h^li<=b 3:IT^?T ^R^ ( ^I^<i?T) '^TTW^ft^T ^TT^T Cr.P.C. in which he deniled the prosecution case aad p|leaded 7, Leamed trial Court parties, has convicted ao.t /above. after hearmg counsel for fhe respective ^ sentenced the appeUaiit as nientioned 8. Homicidal deafh of| dispute. Even ofher wise, Budhari (P,W. 5) aad evid^nce who conducted post niorte^i in which he has noticed parietal bone of size TraasversaUy iacised wo4nd position ia size of 4" x W frontal bone area to inaxijla Biode of deam was due to morteni hoBiicidal ta Kursam Budhari is establisjJ 9. Leanied counsel for the appellant is based on Budliari (P.W. 5) aad Kursam Maida (P.W. 7) wh< It was argued that P.W. 5 eye-witness, however her [<n<fli ^i*i<3il ^fe^ Tf^R5R ^ 3?tRPT-3T7^T the evidence appearing against him ta. ianocence aad false unplication, fhe deceased Kursam Paiidu is not ta from the evidence of complainant Kursain of Dr. Gajendra Siagh Dhruw (P.W. 8) and has proved fhe report of Ex. P-11-A |one lacerated wound over right side of x 25?, parietal bone (Rt) ruptared, on face, below neck over iiiaxiUa |aiid verticaily uicised wound on face froin 4" x W arid has furtlier opiaed that ^ubdural haeniorrhage (iajury No, 1) aiite 4ature, hoinicidal death of Uie deceased foed. the appeUaat submits that conviction of Istatement of aJleged eye-witoess Kursam s^teBient of Kawasi Kosa (P.W, 6) aad |> are witaesses of extra judicial confession. 1 Kursam Budhad claiais herself to be Uie conduct is unnatural as she did not r ^^.. ^ite^ 'l ^...^"^f 3^ET r^|q|0A|, ^-Hjl<o, fsf<7'»l^^< ^r ^l^dl shNlcb •^ 200 ^n^r^T h^ '^f^T'SflTT^T ^RW 3:nit?r ^ra? (lic<?l<s<<^) '^RIW^f^T'3^1 disclose about fhe uicidenjt two days on 26-5-2001 ui lodguig the report, was dark ui the iiight, hov| -r^<x'y'^1> of ffliooni&t ania Kiufeain /yvtcc^XifcNrj^ it was not a moonUt day. has been lodged on fhe n^ was, ra fact, lodged on 2^) confession made by tlie P.W. 6 Kawasi Kosa has cailed ui the Paachayaf persons beat him, he c^. confession aiade under extra judicial confession. 11, We have heard ledmed perused fhe record of fhe 12. P.W. 5 Kursam has deposed fhat sbe has| deceased on the date of| sleeping on a cot before smaU children beside hiiDf chl^(<yt<ilvl 1RTR^ff ^fe^ <Fai^i< '^^fRTH^TT^T to aayone aad the report was lodged after tliere is no vaiid explaaation tor fhe delay Budhari (P.W. 5) has admitted that it ^ever she claiins fhat she could identity fhe ^"~~ |fe, The day on which flie incident occuiTed, ln para 9, she has claimed that the report ?xt day ofthe iacident, however fhe report ^-5-2001 i.e. 3rd of the incident. So far as ^ppeUant ia the Paachayat is concenied, ^dmitted iii para 6 that the appellaiit was |3Ut he did not come and only after flie ^rae before tiie Paiichayat and fhus any aad threat caiinot be considered to be dub:ess 10. On the other hand, l|earaed coiuisel for fhe State has supported the iaipugned judginent. counsel for fiie paities. We have [ial Court as also Uie inipugned judginent, Budliari Jiari, who has lodged Uie report of Ex. P-4, [herself seen fhe appellaiit assaultiag fhe incident. Deceased Kursam Paadu was ^is house, she was also sleepiag with her |, she woke up on heaiiag bai'king of the 3^cT ^ll^l^, ^Tfl^^KS, [s|<7i>l<1^< ^ ^Hdl sbNlch ^ 200 3TI^T ?RT'ftplN 'cT^T '3TT^?T 5h<-ii^ 3TT^?T 1q^p ('^5^?T) '^nw ^rii^T 3?n^r Paii^u dogs and saw Punem assaulted Kiirsaui Paiidu assault, he fled froni uistaataiieously. She did /The appellaiit used to qi reason of quarrel, she dc^ Paiidu, Paachayat was Chuina, Bodda, Oyani caaie fliere ia the Panch^ Kursam Paiidu wim an. witiiess has stuck to her v< coniiag with aii axe aad also saw tiiat he |over his head 4-5 tunes aad after inaking ffctere wifh Uie axe. Kursaoi Pandu died 4ot disclose about the incident ui the night. larrel wifh the deceased. What was the ?s not know. After Uie death of Kursaia cor^vened in the viilage, In the said Paiichayat, M4tta were also present The appellaat also ayat aiid he confessed fhat he Biurdered ^Lxe. In Uie cross-examination also, this |rsion given in the exaniiaation-ui-chief contyened 13. P.W. 6 Kawasi Kosa| Pandu, Panchayatwas nuiaber of viilagers were Paachayat aad confessed He had also coine with wifh blood, After Panchaya|t witness has admitted in for the first tinie, fhe acci beaten, lie camie to similar statement. Paach^yat. 14. The first arguineul appellaiit that tliere is a d fhere is no explanation <t)l<l(<y1<i1l 'WRTf ^fe^ <P»l^i< IR'3tRW-3??T^T Ihas stated that after the deafh of Kursani ia tlie viilage. In the said Panchayat, Ipresent, The appeUant also came in the jthat he niurdered Kui^ain Pandu by axe. in the Panchayat, The axe was stained only, fhe report was lodged, Though Uiis 6 that when tiie Paiichayat was caUed (.sed did not come aad only when he was L. P.W. 7 Kursain Maida has also niade sDie p^ra advao.ced by learaed counsel for the ^lay of two days in lodgiag fhe report and for such delay, is concemed, froxn fhe ^ <r ^-^t ^WW^, ^•(-t4Ko, {s)^l-H^< ^l^dl sbNlcb •^ 200 -STT^T^ f<Tl[<=h ^T^T^3TT??T 5h^l<=h an^r •<ra^ (4ci^a<<'») ^RiTW^rf^T 3?n^fr 1(1 statenient of above three ^j Paiichayat was convened i|a Uie report was iodged. It is| whenever aay incident o) convened aiid only tliere{ opiaion, ia the story broi|ight days in lodgiag FJ,R, is dyjlly wa|s 15. The evidence of eye fhat her conduct in not ( highly uniiatural and, Ui< unable to accept this arg p,in., Kursaia Budhad fhat time, she witnessed Uie odd hours and also c< non-disclosure of fhe ui< render her version unnati be discarded particiilarly proinptly lodged F.I.R, perpetrator ofthe offence. Utl 16, So far as the arguni^ it was not possible for Ki^ concemed, from fhe evide^ice father (Dada) of fhis wiUi^ <=r)i^f<yl<flTi HW^ ^fe^ Tf^RgK iR>3?fiW3TI^T ^taesses, it is clear fhat after fhe incident, the village aad only after tlie Paiichayat, coniinon practice iii fhe tdbal villages that F this nature takes place, Paachayat is after report is lodged. Therefore, ia our by fhe prosecution, fhe delay of two ily explamed, ^witaess was also assailed on tlie ground ^isclosing about the incident to others is ^retore, it camiot be actecl upon, we are liiiaent as the iiicident occurred at 11,00 sleepuig wifh her niuior children ao.d at ghastly crime aiid, therefore lookiag to ^nsideriiig that she was with her children, ttident to ofhers iiniaediately would uot aad on this ground, the saaie cannot ^vhen her version is duly corroborated by which she has naaied the appellaat as fdis .atilLral ?nt that it was a dark night aud flierefore, rsam Bodhad to identity fhe appellaiit, is ^ it is clear that flie appellaiit is graiid- ;ss aiid she witnessed tlie uicident from a r rr TcSf ^|<4|<7->^, ^»Tf)y<t(S IC)<^I<H^< Nl^idl sh^jch """""""""""""""""""""""" ••"••^ 200 3?ri?r 1^w (^cjf^^) 311^1,5RT'f^TT^F 'TOTW^T 5h^i<4> '^n^R Tritn ^i^r close distaiice under the open cannot be suspected. 17. Apart from the evidenc^ coufession, Kawasi Kosa (P.W, 6E called to tlie Paachayat afte( wittiesses naaiely P.W. 5 Kursajju who are also witnesses of extral stated Uiat the appellant caaiej extra judicial confession before extra judicial confession is igncjred, eye-witness ofthe uicident, is and prompfly lodged FJ.R, and| the tdal Court has not holduig the accused guilty of 302 ofi,P.C. for coinnuttiag miLJrder 18. In the result, the appeal be disinissed aiid it is hereby dib: Sd/- Dhirendra Mishra Judge 1 CM^f<vt<41'1 'RFT^if ^f fe^t iF^^K ^^tRpT^n^T iky aad, therefore, her identification of eye-witiiesses of extra judicial D has adniitted fiiat fhe appeUaat was |r beating, however the ofher two Budhad aad P.W, 7 Kursaiii Maida [judicial confession have categoricaUy witli a blood stedned axe aiid made (Jie Panchayat, Even ifthe evidence of 1, Uie version of RW. 5 who is the coiToborated frora meclical report |we are of fhe considered opmion that aay illegality or iafibnnity by offence punishable under Sectiou of KursaBi Paadu. igncjred 4uly comihitted tie fbeio^g devoid ofsubstaace is liable to Isniissed. _ Sd/- T.P.Sharma Judge GRPRJ— FS/246—2/2007— 50,000.