WW, @ww a, , W Fm”. Aff é 13’ warm In 2003 WW, m,W W m W 200 amt m (W) WWW ammm mmm '_ l- WW wW awq‘WW KV i k, umler Sections 302 & Mahasingh, sentenced and to pay a fine of Rs to further undergo RI» pay a- tine of Rs.2OG/~, .Q‘ f RI. for 1 month directed to run concurmntly. {2) The case ofthe prosecution night of 21“ and 22nd pm. when Mahasingk Milabai (PW—3), his soln- years were sleeping in Fagnu Singh came the Mahasingh enquired as accused/appellant PW-3— Milabai woke up the house and started law. When the accused accused picked up an attacked on the head thereafter he ran away. accused/appellant, — Heeralal and PW—4— \ result of the attack Mahasingh sustained 451 of I.P.C. for committing murder of Jim to undergo imprisonment for life 500/ —, in default of payment of fine _'or 1 month; (‘35 RL for 2 years and to in default thereof to fnrther undergo respectively. Both the sentences were in brief is that in the intervening of March; 2001, in between 11—12 (since deceased), his daughter ~ Chaitram (EV—6) aged about 13 their house, the accusedlappellant- re and called Mahasingh, on which, to who is there? In reply thereto, the disclosed his name. In the meantime, The accused! appellant came inside talking to‘ Mahasingh, his father-in— and the deceased were talldng, the axe, lying near the hearth and of Mahasingh for 2 times and On the attack being made by the Malasingh raised cries, therefore, PW-2 Keharsingh came on the spot. As a made by the accused] appellant, unjury on the right side of the head Wm (W) W m R 200 amwa; mmm 3_ WW wW éHIWIW axld Ear alld blood stalfsd oozing out of the injury. Th6 villagers namely— Chammsingh(PW—5) and Kangalsingh (PW- 7) also came them. The matter was reportsd by Heeralal (PW—2) in the night itszlf to the P.S.Keranar under EXP/2. Mahasingh was taken to the Police Station, thereafter, he was taken to the hostital Where he died while undergoing the treatment, therefoe, the mag-intimation EXP] 1 was sent by Dr, R.K. Buoxa (PW—1). After giving notice to the Pailchas, inquest on t1e body of Mahasingh was preparerl under E.X.P[ 3, Blood stained soil; plain soil and one wooden peace stained with blo 9d were also seized from the place of occurrence under EXP/4. Site plan (EXP/5) was prepared by the Investigating Officer. Site plan (EXP/6) was prepared by Halka Patwari While in the police custody, the accusedfappellant gaVe his memorandum (EXP/7}, on the basis of which, the axe was recovered under EXP/8. Postmortem on the body of Mahasingh was conducted by Dr. R.K.Baxi (PW-9). He opined that the cause of death was coma, as a result of head injury. He prepared postmortem report under EX. P[9 ‘ The axe in question was sent to Dr. RK. Baxi, who after examination of the axe gave report (EXtPl 10) and opined that the injury found on the head of the deceased-Mahas' gh wbuld be caused by the axe in question. When M asingh was sent to the Community Health Centre, Ka ardha, Dr.M.R.Deshpande (PW-10) WW (W) WWW ‘_z+~ mm “i 200 WWW%%@WR émifcmanéw d3) examined Vtihe injuries X—rays of the head ir EXP] 12 pm} C.H.C.Kawardha. The Raipur from where rep After completion of tJhe usual investigation, charge sheet filed in the Court of Chief Judicial Magistrate ‘ wag Kawardha, who in turn committed? the case to the Sessions Judge, Rajnandgaon The prosecution in order to establish the chaiges against the accused] appellant examined as tnany as 13 witnesses. The statement of the accused] appellant was recorded under Sectioni313 of the Co ie of Criminal Procedure, in which; he denied the materiel appearing against him in the prosecution, evidence (4) WaS and prepared injury report EXP] ll. juries were taken and X—ray report vared the Medical by officer seized alticles were sent to F.S‘L., )It EXP] 15 was received. from where, the learned Additional Sessions Judge received the case on traiisfer for trial. and stated that his wife, sister of Milabai and Chaitrali had died and he could not perform the last rites ceremony of his Wife, therefore, they have implicated him in a false case; The learned Additional Sessions Judge after hearing the counsel for respectiVe parties convicted and sentenced the accused] appellant as We have heard Shni K.K:Singh, learned counsel for the accused] appellant Lawyer for the State. learned Panel and Shri N.K. Mehta, aforementioned. ‘ EW,W,W . ‘W m vi 200 WW (W) WWW ammm ; mmm _§ _ mm‘iwm 1 éNiWIm i?) At the outset, Shri K.K.Singh, Earned counsd for the accused/appellaxit has not disputed the homicidal death of . Mahasingh, Moreover, PW—S- Milabaj, daughter of the \ deceased and sister—ixhlaw of the accusedjappellan’r has categon'cally stated that the accused] appellant attacked 4 11% ( u f father—Mahasihgh with an axe on his head. -The said oral testimony of Milabai is sorroborated by the medical evidence of Dr. R.K.Baxi (PW—9) who conducted posunoxtem on the body of ‘Mahasingh. He has stated that on 24.3.2001, he was working as a MeC ical Officer in Government Hospital Bodla, on that day at about 1.30 p.m.; on the requisition of Police Station —Reng ar, he conducted postmortem on the body’of Mahasingh and noticed the following injuries : i. an injury on the right side of the head in the size of 6cm X 2cm x bone deep and infection was present. ii an incised wound in the middle of right ear and infection was present. ThEre was bleeding from the eyes. 111 on dissection :t was found that temporal and mandible bones were fractured into pieces, clotted blood was preset t there. Injuries were ante mo rtem in nature and caused between 6—12 hours prior to examination. The cause of death Was coma, as a result of he ad injury. He has further stated that the injury found on the head of Mahasingh could be caused mm,m,W. W m 1:1 200 WW (W) mmm _§ _ wwwiwm $Wamé¥r ‘ W) At thc outset, Shri accused/ appellant has Mahasingh, K.K.Singh, lemed counst‘l for the not disputed the homicidal d€ath of Moreover, PW—S- Milabai, daughter of the deceased and sister—Erlaw of The accusediappellanf has categorically stated that the accused/ appellant attacked 4h% 4 father—Maliasingh with ooxroborated by the medical evidence who conducted postmodern on the body of .Mahasingh. He has stated That on 24.3.2001, he ical Officer in Government Hospital Bodla, on that day at about 1.30 p.m.; on me requisition of ar, he conducted postmortem on the noticed the following injuries : i. an injuiy on the Iight side of the head in the size of 6cm X 2cm x bone deep and infection was present. an incised wound in the middle of right ear and infection was present. ThEre was bleeding from the eyes. on dissection mandible bones blood was preset lnjun'es were ante mo 6—12 hours prior to e; coma, as a result of he the injury found on th: an axe on his head. -The said oral testimony of Milabai is of Dr. R.K.Baxi (PW—9) Police Station —Rengak body of Mallasingh an :t was found that temporal and were fractured into pieces, clotted t there. rtem in nature and caused between (ainination. The cause of death was ad injury. He has further stated that ‘ head of Mahasingh could be caused was working as a MeC mw,m,%mg{ mm ...o.o.o.o.o.o.o. 00.. a1 200 WW<W> maw%a3n%w H6“ WW§WW §;Wam by the axe? which was p1 oduced before him. Therefore, in View of the above ocular evidence and medical evidence, it is established that the death of Mahasingh was homicidal in nature. v (81 As far as the complicity of the accused] appellant'in crime in ‘ Question is concerned, the conviction rests on the testimony u . of PW—3— _Milabai and PW—6~ Chaitram, daughter and son of Mahasingh (since deceased). The incident, as alleged, took piace in the midnnight when all the three i.e. the deceased and these two eyewitnesses were present in the house of Mahasingh. At that time, as per the evidence of PW—3— Milabai, accused/appellant-Fagiu Singh came there and called Mahasingh, on which, Mahasingh asked as to Who is calling? Then the accused] appellant disclosed his identity and came inside the house, thereafter, the deceased and the accused/appellant talked for some time; and all of a sudden, he attacked the deceased with axe, on which, his father raised cries. The Lucident was seen by her brother- Chaitram (PW-6), Who' w present in the house. The above testimony of Milabai has een corroborated by the evidence of Chaitram-PW—é. ] Learned counsel for th accused] appellant argued that being night, it was not ossible for Milabai to identify the accused. He further ar ed that Dr. R.K. Baxi(PW—9) has stated that there was onl one injury on the head, Whereas, P.T.O. } l 9 \\ MWW Wm}m WWW 7 WW WW mimm é As far as the question of identincau‘on is concemed, it is not disputed that the accused] accused] appellant attacked for has stated that the accused l attacked twice, therefore, there is difference betvv‘een ocular evidence and medical evidence, hence, no reliance can be placed on these Witnesses. ; "‘ f [10) appellant is the real‘brother-in- law of these 2 eye-witnesses; and son:in-law of the deceasedv Mahasingh. accused/appellant came,. talked with her father and therefore, the accused be‘ g a close relative of these 2 eye— witnesses remained there or about one hour. It was but him. Moreover, Milabai has stated that she was stanc ing at a distance of about two hands. question of not identifying the was burning; therefore, th accused would not arise. {11) Milabai has stated that the 2-3 times and Chaitram sat there for an hour and reaiter, he attacked her father, As far as the variance b tween the ocular evidence and medical evidence is cone ined, PW—B- Milabai‘has stated that the accused/appellan ‘F‘agnu attacked her‘father with axe on the right side of whereas, PW-6- Chaitr attacked twice. 8/2007 —30,000. x \ .l x r \ head on ear for three times, has stated that the accused Even th igh PW—9, Dr. R.K. Baxi in his cross-examination has s ted that there was only one Wm F‘L 200 Wm (W) Milalbai (PW-3) has stated that when the e e She has also sta d that at that time, the hearth natural for them to iden ‘ a e a1 200 mWW WWW ‘ -g. mmwm WW§WW é€mm¥r injury, but in para 3 of the time of postmortem, . the right side of head in ; hae also stated that there was an incised wound in the middle of the ear. In tact, he examined the injuries after examination by Dr. M.R. his evidence, he has stated that at he saw that thore was an injury on size of 6cm X 2cm X bone deep. He Deshpande (PW— 10), Who examined a f the injuries in the hrst instance and has categorically stated that there were 3 injuries i.e. (1) a wound on the right ear in size of 2cm x 1 cm x bone deep, marg'ns were regular and [2) a wound was present on the placed in a total width of 2 cm in t, regular margins were there (3) a on the external ear in size of 1 cm :ut, marg’ns were regular (4) eyes Therebre, in View of Dr. M.R. Deshpande as on the right side of the head in appears that the accused] appellant repeatedly at one place. 011 examination Dr. Deshpande noticed 3 injuries. In this way, there is no variance between the ocular evidence and medical evidence. Mor Milabai and Chaitram in cannot be doubted. As on hearing cries came Keharsingh has stated 1hat when he reached on the spot, Milabai informed him that Fagnu has attacked his father ‘bleedjng Was stopped. external ear horizontally length, cartilage was cu wound above injury Noé X V2 cm, cartilage was became blackish. (PW— 10) he saw 3 injuri the area of right ear. It attacked the deceased cover, being midnight presence of their house was but natural and it per their evidence, other witnesses immediately on the site. PW—4 P.T.O. WW o ....... mmashsw mw,m,m MW, m,W Wm(‘W) ..ooo~‘ a 200 mwié‘m? WWW matwm #q. WWEWW égmm and ran awav."PW~2 -— Him brother of the deceased ha the night, he heard the cri brother, where, Milabai am the deceased were presenf u". accused] appellant Fagnu has attacked their father. Hiralal a (PW:2) lodged report EXP/i 2.15 p.m. on 22.3.2001, in assailant has been mentior of Hiralal; FIR Ex.P/2 Keharsingh, it is establish informed by Milabai that attacked their father. ( evidence of Milabai and Moreover, the accused] ap} deceaeed, there is no reason leaving the real' culprit. statement under Section o his wife, daughter of Maha Chaitram had died, as he ceremony of his Wife, that is why, they have implicated him in a false case. 12) The defence put forth by the plausible. ahected to PW—3-Milabai a i have implicated the accusec P.T.O. O ilal uncle of these Witnesses and s stated that at about 1 p.m. in es and went to the house of his l Chaitram, daughter and son of and they informed him that the 2 in the Police Station at about which, nam’e of the accused as Led, therefore, h‘om the evidence and the evidence of PW-4— ed that they were immediately the accused Fagnu Singh had )n account of their evidence, Chaitram stands corroborated. vellant being a son-in—law of the to implicate him l/n a false case, The accused/appellant in his ' L3 of Cr.P.C. has stated that as singh and sister of Milabai and zould not perform the last rites accused in his statement is not Moreover, no su ch cross—examination has been nd PW—G- Chaitranl that they . in a false case because he had WW x HW,W,W o ‘o.o.o.. o.‘ooo.oooo~o Wm<W> mmm WWW WW§WW éamm "uf {14) madam ' — (or- not performed the last ri the bclated defence a1 therefore, this defence cal Learned counsel for the Investigating Omcer and the axe in question Wi accused under EX. P/8, T Whereas; PW—6—Chaitrar snatched on the spot Eoubtful. ‘ Without going axe, other. ocular evide Chaitram, Hiralal ant discussed earlier, it e. accused] appellant in crit Learned counsel for the prosecution has not com the accused regarding h the accused/appellant intention to cause his d the close relative, being the prosecution has not the accused to cause deé law that when there i attack, question of motive becomes irrelevant even if it is not proved. tes ceremony of their sister. This is 1d afterthought of the accused, mot he believed. accused; appellant argued that the ,other 2 Witnesses have stated that as seized from the house of the )ased on the memorandum EX.P]7, 1 has stated that the axe was itself, then the recovery becomes g into the merits of recovery of the nce of PW-3- Milabai and PW—é- L Keharsingh, .Which has been ;tab]ishes the complicity of the 1e in question. accused] appellant argued that the a With clear cogent evidence against .s motive, it is not established that attacked -the deceased with an oath. It is true that the accused is a son—in—law of the deceased and come forward with any motive of Lth of Mahasingh, but it is a settled s clear cogent evidence regarding P.T.O. WW,WW,W WWHE'W) P.T.O. mm”... ..ooo.. In 200 WWW ‘g WW§WW mmwm H ’ $WW l ‘ \ ‘ 1151 J‘Iow caming to thE intention of the accuSedf appellant, the intmtion of the accused can lot: infared &om the material available on record, showmg the nature of weapon used, by hrhich the attack was part of the body Where the made, attack was made. In pr esent case, the accused] appellant ‘use‘d the axe as an weapkm of ohence and he attacked the deceased on right side oi his head on parietal region, the i :skull bone and mandible bones were fractured into many pieces and thereafter, he was taken to hospital, Where he died while undergoing the treatment on 24.3.2001, i.e. Within a period of 3 days, therefore, the intention of the accused] appellant to cause death of Mahas'mgh was writ large. [16} As far as the conviction under Section 451 of IPC is concerned, even though, there is no clear cut evidence to establish that the accu sed went to the house of the making i.e.,house-tress in order l deceased after preparation i.e.,house-tress to commit onence punish able with imprisonment. But the accused] appellant entered the house of Mahasingh in the mid-night and he attacked the‘deceased with axe, this conduct of the accused. establishes the fact that the accused] appellant trespassed the house with an intention \\ / to commit crir‘ne. Therefore, the accusedjappellant has / rightly been convicted and sentenced under Section 451 of .\/ .. IPC. . oououo E 200 WW§MW ém%uan%¥! mm,m 4 ' '1" For the foregoing reasons, inormity 1'11 the judgment substance in the appeal am Sdl- ?\r_ L.c.BHADoo ’ Judge Sunita we do not $1d any irregularity or of the trial Court. There is no ithe same is dismissed, , Sdl— Sunil Kumar Sinha Judge P.T.O. EW,WW,W mm(W)