>^: ^n^rj^r R'licb sb*<i«=t) w^» 1 ^1 -s-^ •^WW^, ^-^\W[<o, ^<ftWy. Cj<./^pp. U 6 ^TOW ^qfq;- •"""•••"••"F^"'"-7"-"^ 200^ ?ni{?r ^S^K (^S^ft^) '^RIRR 1^f??T 3FIT^r ^u^41<< ^^ gr HIGH COURT OF CHkIATTISGARH. BILASPUR Crimiaal Apiteal No.l16/2002 APPELLANT RESPONDENT Babulal (/ o JethuraiGL Dewangaa, 4g.ed about 33 years, ^/o Rojgaripara, Kondagaon, IPistrict Baster. Versus ' |tate of Chhattisgarh, |hrough D.M.Baster DB: HON'BLB SHRI JUSTIC|E HON'BLE SHRI JUSTIClE L.C. BHADOO. J. Shri K.K. Siagh, Coiuis^ Shri Akhil Mishra, Paiie| Heard. The appellaiit/accused) Section 374(2) offhe Code of| legality aad correctaess of th( of senteuce dated 13th Dect Additional Sessions Judge, ^ cni<if<n<ili "RTR^Tf ^* ft^ <f^<^l< ^3ffOT3^T ^MINAL APPBAL UNDER SECTION 374 (21 OF^R.P.C. L.C. BHADOO, SUNIL KUMAR SINHA, J & J. QISAlLORDER (01411.2007) for the appellaiit. Lawyer for tihe State. has preferred this appeal uiider )mnuial Procedure questiouiag fhe judgnient of oonviction aad order mber 2001 passed by tiie Fu'st agdalpur, District Baster in S.T. .....'. ! r~' ^500. 3:5:cT'^ll^l<7'><(, ^rO'y^KS, [s|<?)l^y *11*<dl **<lcb •""""•'"••—•"—""—•—""—"""— -^ 200 y^afi xni^ (i|^f^s^T) ^T^TJ^T Vw^ WT 3TT^T ^RRF WnW^f^T^TT^T _-2-»— ^lly^ ^ No. 169/2001, whereby fhe Judge after holdiag the accus< of flie offence punishable unde|r for coininitting inurder of S| atteiiipting to coBindt fh.e nii| sentenced him to undergo imp(ris ofRs.500/-, indefaultof for 6 nionths aad R.I, for 7 default of payinent of fine to respectively. Bofh the sentenc^s Case of the prosecutionj night of 9th & 10th Febmar^ accused/appellant) along wifh| and accused/appeUant wer^ appeUaiit was suspectiug fide4ty fhe said night, he attacked also attacked Seema (daugh^ stone aad iaflicted the fatal ifc succuinbed to the said iiyuiy. Rain (PW-1) gave nierg uitmlaf Report (Ex.-P/l) ia the PoUc^ fliat, ftie Investigating Officer scene of occurrence. He blood stain.ed soil was seized -30,000. imp|isonnient pay^ent ye^rs prep^red CM<if<n<flTi 'RTR^f "^f fe^ <F^^i< ^^iRpT^n^r l^anied First Additional Sessions jd/appellant guilty for commission Sections 302 and 307 ofthe IPC, ^ema (daughter of accused) aad irder of Maaju (wife ofaccused), for Ufe aad to pay a fiae offine to further undergo R.I. aad to'pay a fine ofRs.500/-, ia |Turther undergo RJ. for 6 months are directed to run concurrently. ia brief is fhat ia the iaterveiimg 2001, Smt. Maaju (wife of fhe her daughter - Seema Dewaiigaa sleepmg m their house. The of his wife -Maaju, fherefore, m Iflaaju wifh fhe grindmg stone, he (er of accused) with fhe grmdiag 4yury, as a result ofwhich, Seeina |However, Maaju sur^ived. Chainru (Ex.-P/2), First Information Station ~ Narayaapur, based on registered fhe criine and left for the Site Plaa (Ex.-P/S), plam soil, ^inder Ex.-P/4. After giving notices uitiiilation ^ ^n^r^ Rt'iicb 1rCT 3TR?T J^WI^T 3:E;cT^NI<r'><1, ©TH^I^,(sf<»!>W^< Nl*<dl d»t<(cb' W^ 200 3iT^?T IJ^F (^crf^SI^T) ^wi<3T ^a 3?n^T 3 (Ex.-P/9) to the Paachas, pi\ body of fhe deceased -Seeia^ examiaation to fhe Priaiary Ex.-P/ll, where Dr. M.K. on flie body of fhe deceased- death was coina due to head nature. He noticed one iajury 3" x 2" caused by hard postoiortein report (Ex.-P76). exainiiied by fhe saoie Doctor.| in. respect of Manju aad foundj Injury over 3"x 1 l/2Cid (1) (2) (3) Injury on r^Ii V2 cinx Y2 cbi. Inju^ on ri| x V2 cin. According to the Doctor, injur| object, bleeding was present. it was found that fhere wad margm. While ia poMce e\ meinoraaduin (Ex-P/ 16) regai|< CM<<f<n<il»i'RWTf "^f fe^ <P^<^i< ^? 3fRiTT^n^T r^pared inquest (Ex.-P/lO) on tfie I.. Bodyl was sent for postooiortein |iealth Centre, Narayanpur under S^ryawanshi conducted postmortem Seeiaa. He opiaed fhat cause of pLajury aad deafh was homicidal m bn the head of Seema m flie size of 4iid blunt object He prepared [njuries of Seema aiid Maaju were He prepared iajury report (Ex.P/7) fhe foUowiag iajuries : |the right orbit of eye m tiie size of x Y2 cin. rfelit upper Up ui fhe size of 1 cia x £htcheek m. the size of lcin x ^ cra ^s were niflicted by hard aad sharp After X-Ray of fhe iiijury of Maiiju, a fracture of right supra orbital istody, accused/appellaat gave diag the place where grmdio.g stone ^ll^cfi^ S?Nf -30,000. ^n^T^T Vw^ <WT ^TR^T ^ Twr^n^n^T, ^TH^KO, R«>>wy NIW <b*<i<ib * W(. 200 3ni(?r XRI^? (^lfl<<^) 'g^nw^rf?^ ^ was lyiag, m pursuance ofthslt was seized iinder Ex,-P/l^ requisition (Ex.-P/19) euqiiire| injuries found on fhe bodies 4: by tlie grmdiag stone ia iiistaace of the accused/app<| that it may be possible to question. Site Plao. (Ex.-P/ ; Patavari. Seized Articles were underEx.P/23. After completion offhe 4 in the Court of Judicial Magis ia tura coininitted tiie case from where learaed Additional ou traasfer for tdal. The prosecution ia ord^ accused persons exammed 1( acciised/appellaatwas record( which, he denied the materiall tliat he is mnocent aiid has b| ni question. After hearing fhe argiirn) parties, learaed Additional Ses| as aforementioned. cbi^(<?i^Ti ^i^dif ^f ft^ <r»i<^i< ^sfRpTgn^T grmding stone stamed wifh blood The ' Investigatmg Ofiicer vide from fhe Doctor as to whefher the |f Seeina and Maaju caa be caused qi^estion, which was seized at fhe ^llant He gave opinion (Ex.-P/19) c^use fhe iojuries by the stone ia SO) was 'prepared by the Halka |ent to Forensic Science Laboratoiy i|ivestigation, charge sheet was filed 3|trate First Class, Narayanpur, who |o fhe Sessions Jiidge, Jagdlapur, Sessions Judge received fhe case br to estabUsh charge against the witaegses. The statemeut of the |:d under Section 313 ofCr.P.C., m |appearmg against him and stated >^en falsely implicated ia the criine ;iui3|ents of counsel for tlie respective ^ions Judge convicted tlie accused ^,' ^\wf\^ ^ 1-30,000, 75^r ^(NI^, ^>Tn<i'i<o, fsi0iyy <<INdll (bMlcb WI, 200 3?n^?Tj^T R^Jcb WT 3n^?r 'q^? (^yvf) ^wi^R <if^a 3?1T^T .^_ <r~~^- We have heard Shri K.| aiid Shri AkhU Mtehra, Paiiel At fhe outset, Shri I( homiicidal death of Seeiiia. eye witaess to the iacident flie accused) has categoricall^ attacked her and her daugh( M.K. Suryawaashi (PW-4), examiiied fhe iajury of Seeni^ was coina due to head iajury Therefore, from the above o| established that the deafh As far as coiupUcity of in questiou is concemed, 1] argued that even tliough tlie| (PW-10), who is aa eye-witae^ caiinot be believed for the Section 161 of Cr.P.C. was 4 the first tmie before fhe Coiirl question, her statement undel been recorded. On tlie ofher haiid, that it has been mentioned ia head mjuiy of Maaju, she losfc <=bJ^fd^ilT1 ^l^ldf ^f ft^ <F»(^K ^3?fiPT31I^T ,|<. Siagh Counsel for tlie appeUant ^av^TyerJfor fhe State. LK. Sin.gh has not disputed the I^oreover, PW-10 -Maiiju, who is an (ijaother of tiie deceased aad wtfe of stated that fhe accused/appellaiit |:er wifh grmdiag stone. Eveu Shri wjio condurted the postooiorteni aiid has stated that the cause of death ^iid death was homicidal ia nature. |cular aad niedical evidence, it is of $eeiaa was horaicidal ia nature, pie accused/appeUaiit ia the crime 'araed counsel for the appellaiit prosecution has examiaed Maaju ^s to the in-cident, but her evidence jreason tliat her stateinent under |ot recorded, she gave evidence for t. Ifshehad witaessed tlie criine iu l' Section 161 Cr.P.C. ought to have le^raed couusel for fhe State ai'gued |the charge sheet that on account of meinory; therefore, her statement i ^t«icQ<i ^N" (0,000. S^'^ll11!!^, ^^li<?, t^cr>wy fWfV^S <b^icb" -^ 200 ^sr^r ft"iiflb ^q? 3TI^y !^CTi^ ?niSTT?3W (1l?f^5?T) ^wW «^<* <^- 4)1^41T1 'RTR^f ^ fS^ <^i^i< "^3ifiFT3^?T could not be recorded at that tiaie, on account of treataK memory, fhen, she gave evider It is tirue fhat ia the 03 le. However, ia the due course of ;nt, she was able to regam her lce ia the Court. laiy course, the witness to whom tiie prosecution waiit to exaijime before fhe Court ia order to estabUsh ttie crime agaiast th^ accused, statement under Section 161 Cr.P.C, of that witaess oufeht to have been recorded ia order to enable fhe accused to raise bis detenCe aiid to know fhat what pai'ticular evidence is goiag to pecuUar facts aad circiunstaii<j aay witness is not recorded be deposed by the witness against him. In absence of such stat^ment, the accused is ia iminense darkness aad is not able to ma|ce out a proper defence, but ia fhe (es of fhe case, if fhe statenient of under Section 161 Cr.P.C., the evidence of such witaess can^.6t be rejected out-righUy. Before placiag reUance ou fhe obUgation or duty bound to avallability of fhe statement oj Cr.P.C., no serious prejudice s ofsuch witaess, a Court is under snsure that on accoimt of non- ' tliat witaess under Section 161 Ihould be caused to fhe accused. Evidence of such witaess mu^t be scrutmized witli care aiid circuiHspection io. order to findj aad veracity of the evidence (j out fhe trufhfulness, correctaess f siich wito.ess. The evidence of such witoaess may affect the ^veightage to be attached to the evidence of tlie witaess, but itj such witaess inadmissible. does not render tlie evidence of !--30,000. ^7. 3^r^nziT^T^ ^TH^,i<o, f^i0w^< 'wqW *NI<!b" -CT^ 200 ^n^r^TlN?? WT 31I^T W -?- JfclN^* 9ni{?r xi5w (llci^<^) ^<n<9< i-ii^a <=hl^li<ri^^ ^Hdf ^ fe^ <fo«ci< -7—I iTsiRmsn^Fr Applying the above pri4ciple, ifwe scrutiaize the evidence ofPW-10 -Maaju, who has c^tegoricdUy stated thatia fhe fafeful night, she along with her 4 daughter ~ Seema (deceasedj seeiag soine saistalce, accuj sustamed iajury on head, as s| the iiijuiy. She witoaessed fh^ attacking Seema. Bhziri Bai i^ residiag iii her house on accused/ appeUaiit attacked h^ to which, she becaoie uncons witaess, she has stated tliat .usbaad - Babulal (accused), her were present ia the house. On ^ed attacked her daughter, she result ofwhich/she succunibed to iacident, when her husbaad was ^ known to her because fhey were Irent. She has stated tliat fhe |r also wifh fhe griiidiag stone, due t^ious. In cross-exaoiination of this at the tiine of incident, she was pregnaiit aiid used to work iiji Aanganbadi It is correct to say tliat on account of frequeut ^ Babulal used to quarrel with are two doors in the house fo iiicorrect to say ftiat ui the fat^ Isit of one person m their house, ler. It is correct to say fhat there iagress aad egress^ Maay times, Babulal used tp stay at Konda^aon, where he was workiag. It is ful night, accused/appeUaat came late iii the house. PW-2 - Bhuri Bai has st|ated that accused-Babulal, Maaju and Seema ai'e known to her. Maaju along^vith her daughter - Seeina aad husbaad ~ Babul^l were residiag in tilieir house on rent. Babulal used to work m|a hotel at Kondagaon. His wife - Manju was also workmg at (^arayaiipur io. Aanganbadi. The 5TW j/2007 —30,000. 3^' "41<><l<yl>'4, ^Tfl'M^KS, (sf^l^^i Nl*ldl <bNlcb' -^ 200 3?n^r^r (<*ticb WT 3Tt^ff ^b^lch / 3ni{?r 1RW (TICrf^»5?T) ^RiRR^ff^in^r -^- ou|t ^ll^ofi^ ^ accused used to up and do^^a Seenia has died. Three-four in|( she was at her residence. Ad and Seeaia were also present | she went to sleep; Maaju aad| 5:00 a.Bi., she heard writTiiiji^ Maajii, but there was no re{ Chamruram - brother of M Chamruraai caaie to the hou^ of Manju and blood ooziag The accused/appeUaiit was took both fhe ladies to lu fhe cross-exammati^ has not been able to bring discredits tlie evidence of aiid mjured ~ Maaju were no^ cross-examiiiation of Maaju, on record aiiy circumstance, not present ia fhe house ia giving false evidence. Moreo\| house is estabUshed by the fa<| head, which was seen by Maaju - Chamruram. Howev^ had already left tfae house; ) —30,000. cbi^{d4Ti Tnwif ^f 'fi^ <f^-^i< ^3tRPT^T^T from Kondagaon to Nai'ayanpur. |onfhs b'ack, on the date ofnicident, |cused/appeUaiit - Babulal, Manju |m their house. After takiag dianer, |others also went to sleep, At about 3|ig of Maaju, fherefore, she caUed [sponse from iaside. She infonned [aaju. Th'ereafter, she along wifh |e of Maiiju, saw in-jury on the head froni fhe nose and ears of Seeina. ^iot m the house. Thereafter, fhey Naraya|ipur hospital. a|ny Bhiliribai ^n of Bhuribai (PW-2), the defence circuiastance on record, which Litribai aad estabUshes that accused present iu tihie house. Even ia fhe (lefence has not been able to bring ^yhich establishes that accused was |the fateful night or fhat Maaju is \er, the presence of Maaju m flie |;t that there was fatal iajury on her IPW-2 - Bhuribai and brother of |r/at fhat tiine, accused/appeUaat t^ierefore, flie presence of Maiiju iii 3n^?r^»T(<wiicb WT 3Rff^T ^|ch ^ @ ~yss[ ^iw\^, ^-^\W\G, ^<ftwy. -WRW •g^q^p-- •"•"""•-"—""• """——^ 200 snisr XRW (^t^^r) 5WI<(R ^ci 3n^T ^ tlie house ia fhe fateful nightj question adses as to why false case that too ia a seriou^ - Seema aad atteniptiag to In cross-exainiaation of| flie defence has not been abl4 any reason with Manju to iinp| During the course of appellaat was not able to arj uon-recordiag of statement Cr.P.C. aad ultimately, non-a^ in ady way prejudiced fhe acc^ presence of Maaju ui fhe h acczised/appellant ia the hoj crmie in. question was comini^ is no reason before us to disd account of non-availability Cr.P.C. Ratlier the evidencel corroborated by fhe evidence presence oftlie accused, Maiij the house, fherefore, the criiae ia question is aay iUegallty or mfirmity ia the Ma^iju cotimit imp|Ucate argi^ment estabUshled cbNid^ ^Hdf'^'fe1^ <t^'^i< ^sTRm^n^sr ^aiinot be doubted. Then, tfae next wiU iimplicate her husbaad ia a nature of niurder of theii' daughter her murder. [eifher ofttie prosecution witaesses, to briag on record tliat fhere was her husband ia a false case. [ments, learaed counsel for the ^ue witfa force that on account of |of Maaju under Section 161 of (ailability ofthe stateiaent of Maiiju |ised. As has been discussed above, |ouse as well as presence of the ise m the fateftd night when fhe |ted is established. Therefore, there lai'd tih.e evidence of Manju only on statement under Section 161 of of Manju to a great extent is joflandlady - Bliuri Bai regardiag l|i aiid Seema m fhe fateful night m of the accused/appellant in 1. To this extent, we do not find judgment of flie tdal Court. of ter com|plicily ^(yc0^ )7 —30,000. ^W^r Vwy WT 3:5^T ^TRT^T, ^tfl^Ko, RlOWy *ll*{dl tb*li<b' ^ 200 sni^r i^?R (11?(^<^) ^t<ll<?T 1M^a ^Tf^T — I C? _ Mr. K.K. Siagh submitt^ accused inider Section 302 concemed, fhere is no evidei]|< accused had fhe intention tol drawiag our attention to th^ argued tiiat ftiis witness ha( soine mistake, accused attack|< stated fhat fhe accused used coxaing of a person ia their fact shows fliat ia a sudden q4 attacked fhem fhat too with accused had iatention to daughter, tlien, he ought to witli preparation, fliat too witj tiie grmding stone lyiag in th^ Seema and Maiyu. It is finstratioii, as sonie quarrel spur of moment, he picked and wtfe. On tlie other haiid, the judgment of fhe tdal Court| Haviiig heai'd learaed fhe evidence of Manju, whic counsel for fhe appellant, cbl^id4lTI '^3^f ^ fe^ <F'i'^i< ^^fi[H3^T ?d fhat as far as conviction of fhe of IPG for raurder of Seenia is x on record to establish fhat the cause fhe deatii of Seema. While evidence of Manju (PW-10), he categorically stated that seeiag |ed and furtiier m para 6, she has |to quarrel wifh her on account of louse frequenfly. Therefore, above ^arrel aiid heat of passion, accused tjie stone lyiag iti fhe house. If the coifamit fhe inurder of his wife aad h^ve attacked ia a plaaned maaner |i other deadly weapons, not with kitchen. He attacked only once to lestablished tliat he was under Ijook place between fhein aiid in. a u{) the stone, attacked tlie daughter leara|ed counsel for the State supported ^ourt) cc|unsel for the parties, a penisal of ^h has been referred by learaed prc^babUse what has been argued by ^:( ^ny<0^ !)7 —30,000, ^S^^Wv^, ^xn^<|<S, fs|<»!>iy^< NINdl <hMlcb' ^200 ^niST ^^SR (^S^ft^) ^n^r^RT Kt^icb <t^T3n^r" ^IW^ e|r hioi, because, fhe whole tihiii| accused, his wtfe aad daughtej normal and aU of a sudden io.| Maoju has cafegorically statc accused/appeUant attacked. cogent evidence to estabMsIi iatention to cause deafh of S| murder of Seeina. For tlie foregoiag reasoi the accused under Sections sustaiaed. However, the niaiirit attacked the deceased wifh fh< tliat the accused had definitel cazise niurder of Seeina and c4 In fhe facts aiid accused/appellaiit corainitted II of IPC for causing deafh ofj voluntarily in.flictm.g grievous In fhe result, the appeal) The conviction and accused/appeUant under aside. Instead fhereof he is aiid 325 of IPC aad sentencet happened ia the night TiU fhe took the ditiner, everythuig was [the night, ttie incident happened. ^l fhat on seeiag some mistake, [Therefore, there is no clear aiid fhe accused attacked wifh fhe !|eenia aiid attempt to commit the tliat cr)i<i(<yi<4li *<i^<rff "^ f^^l <f^i'^i< ^ 3fRpT3T^?[ l^s, fhe conviction aiid seutence of 1302 and 307 of IPC caimot be ?r in which fhe accused/appeUaiit grmding stoue, it eaa be mferred knowledge fhat he may likely to |use iajuries to Maiiju. circuinstances of this case, Iflie ofience under Section 304 Par- ISeeina aad Section 325 of IPC for ijury to Manju. partly succeeds. sentence imposed upon tlie Sedtions 302 and 307 of IPC are set c4nvicted under Sections 304 Part-II to undergo R,I for 8 years aad 5 <^.,:: * )7 —30,000. .y^'^^X i) .^'...'" w ^? ^n^r ^T f<-ii<=b TTsn ^^n^T 9n^w ^ Shyna l^ 7^( ^Ni0^<, ^•cfl'M<i<o, (st^i-yy Nl*1dl tb^lch "^ 200 3^?T 'q3W ( ^t^^T) ^<TTW^f^ 3:n^r —i ^_ years respectively. It is di|rected that both the sentences shaU run concurrenUy. It is stated fhat fhe| 14/2/2001 tffl date; thei^fore, of fhe detention period imposed upon him. accused/appellaat is m detention since sfore, he shatl be entitled for fhe set off Lhready undergone agaiast tlie sentence Sd/- L.C, Bhadoo Judge <=bi^(<rt<flri ^i^KnT '^^f^A ^f^$R i^ 3<fhH 3n^r Sd/- Sunil Kumar Sinha Judge