-HC—78 ^?^i?Fr1^NT ^CT 'STT^? ^RI^F •S^ ^l-qi^-q, ^^^(5, fs)0|^< ^INdl *NSch ^ 200 3?T^9T ^RR (^?1^<^) I^iTW^fi<T3^I MVISION BENCH: HON'BLEJAR.bHlfeQMbM MISHM HON'BLE MR. T.P CRIMINALl APPB.LANT (Injoil) RESPONDB^T ©hurarwtcm Bho9alu^ Distt. Nagesiyo, Age-33, S/o 'rwi, R/o Mendridcffiip, P.5. Kapu, Rjaigarh C.6r. Vs State House \f Chhattisgarh. through the Station pffjcer, Police Staiton- Kopu, bistt. Raigarh|C.e Present: Mr. Anant Bajpayee, Advocate Mr. U.K.5. Chandei, Panel Lawy ORALl (15th Per &hjronclra Mishra. J: This criminal appeal is and order of sentence datefcl Sessions Judge, Raigarh S.T^ Judge has convicted the sentenc^d him with life impri^ of payment of fine to Case. of the prosecutior|. is ,the husbcuid of deceased) ^8<li<v1<ill WR^f ^^fe^ ifa^K ^^RiH'3?n^F SHARMA. JJ APPEAL N0.743/2005 for theappellcnt, fer for the State. JUb^MENTJ February, 2008) ^irected against the judgment of convjction 31st January, 2002 passed by learned Np.107/2001 whereby leamed Sessions 4peHant under Section 302 of IPC and impri^onment ond fine of Rs.2,000/-, in default further undergo R.I. for 1 year. , in brief, is that comptainant Luran ^W-l) Dinobai. Tlie oppellant, who is physically ^I^T'^T h^ 'TOI SIR^T ^^{cfr» ^^.-' 3:^T-MI<MI<7'>^, t$TQ-y41(o, is)01^^< ^l<4dl sb*<l<sb •^ 200 3?I^?T XT5TO (l^i^sSc^T) after} some crippled since birth and could real brother of complainoint the evening, the complainant Dinobai was also in the same crutches in his room and that the appellant ho^ assaultejcl got up in haste and saw the Dinobai was crying for help. appellant, however, when the hefledaway. Reportwas day vide Ex.P-1 against the app^ of occwrence. performed inqu^: Ex.P-7 and sent the dead bhdramjaigarh where Dr, postmortem and gave his prepared by the Investigating] into possession from the cour|t- Spot mcp was also got prepare^l and blood stained soil was incident vide Ex.P-5. PW-8 sustained injury caused by <kalk lodg^d inqu^st bodyf rep4rt <2hRtd4l'1 'HTR^ff ^fe(st <fa^i< '^^[RFr^i^T only with the help of crutches, is the L^iran. On 10.3.2001 at about 6.30 p.m. in 1-uron was sJeeping in his room, his wife ro|om, at that time Luran heard the sound of time he heard the voice of his wife her. Hearing the voice, the complainant <}ippellant holding blood stained knife and He tried to snatch the knife from the o^pellaint crttempted to Jassoujlt on him afso by Lurwi at about 8.30 p.m. on the axme dlant. The police proceeded for the scene over the dead body of deceased vide dyjfor autopsy to Community Health Centre, A^vind Singh Thakur (PW-5) conducted of Ex.P-10. Site plan of Ex.P-2 was 1 Officer. Weqson of offence was taken )ur|tyard of complainant Luran vide Ex.P-3. by Halka Patwari vide Ex.P-4. Plain soil into pos^ssion from the place of Bhogalu, father of the appellant, also appellant and his medico legal injury t4ken ttie ^l^T?Frf^;?^T ^^1 '3??T^T s^^i^ } ^ T5€T^l-^l^^, ^iTfly^KS, Isj0|<-)^< NINdl sb^<ch ^ 200 33iT^?T'<^W (^fys^) Kntfe coUld report is Ex.P-11. Appellant his injury report is Ex.P-12. who vide his report of Ex.P-l| tiie person of dece.ased However, he had advised for the presence of human blood. also taken into pos^sssion vi4 chemical examination to reporl- of FSL has not been fil^ After completing invest appellont herein in the Dharamjajgarh, who in tum Judge, Raigarh. During triaf, Thereafter, statement of app^ evidence appearing against h innocence & false inipiication, hearing arguments of learned <| sentenced the appeltant, as Homicidal death of •tiie evidence of Luroai ^W-l),] j?resent in the room when tfras Foreihsic ifilid< investjgati Cdurt <^i^f<n<i1^ 'W^lf ^f^st ifa^K '^^FI^IT^T also sent for medical examinoitjon caid was sent for examination to the doctor pl has opined that the injury present over be caused by the knife in question. lchemical examination for confirmation of Biood stained shirt of the oppellant was le Ex.P-14. Seized articles were sen^ for Science Laboratory, Raipur, howrever, during tnal. '. 'gation, charge sheet was fjled against the of Judicial Ma9Jstrate 1st Class, the case to the Court-of ^ssions prosecution examined 11 witnesses in all, ^jlant was recorded in which he denied the m in the prosecution case and pfeaded However, learned Sess\or\s Judge after 4ounsel for respective parties, convicted & in Para-1 of this judgment. ^d is not in dispute. Even otherwise from who is husband of the deceased and was was committed and also from the coilnmitted ttie mehtioned Dinobai the joffence C—78 ^?^??H"^?NT ^SH ^l^T ^^icb 3:S€T^|^|<^^, ?$T{)y<|^, (G|^|y^< ^Wvi\ sh*<lcb ^ 200 3H^?T ^W (^(i^^r) evidence of PW-5 Dr. Arvind the person of deceased Dinojbai Ex.P-10 in which he found in|; wall of size 4cm x 2cm, 9th present over liver, there wasj cause of dea-rii was shock homicidal in nature, it is in nature. jSingh who has conducted the autopsy over jbai and proved the postmortem report of i|:ised wound on the right upper abdominal |rib was frctttured, one incised wound was an injury over diophragm cnd opined that }due to haemorrhage caid 1+ie same was that death of Dinobai was homicidal estaS>lished •rtie trie tiis Learned counsel for appellant is solely based on be present in the room whei^e appetlant. However, in Para-1 stated that he did not see argued that Luran has statec} was awoke and lying on the c^ in his room and assaulted th^ witnessgd the assault, this ii 1+ie fact that the appellant only wi'rti the help of crutc^es that the deceased caid her hj he was only the person who <^8<4f<yt<iii *iH<rff ^Fs^ <fa4^1< ^^RpT^i^r cypellant argued that conviction of the statement of Luran 03W-1) who ctaims to -t^e incident was aJJegedly committed by 1+ie of his cross-examination this witness has l^is brother assautting fiis wife. He furt+ier that he was present in the same room, he ^t and he ctaims that +he appellcuit entered deceased with the knife and he could not highly improbabte part-icularly considering s a physicajly crippled and is able to walk Ttiere is evidence available on record isbcmd used to quarrel with each other omd 41aims to have witnessed the jncident and in 3^5T ^W\^>^, ^^\W\<a, ^[^W^. ^ii^i^r [qiic^ ^^Ti 37i^T ^^i<=8^ > 'WTcW 5hN14> ^ 200 3H^9T T?5TO (^slf^^T) fact, he himself was the auth the deceased was able-bodied ?r of the crime. It wois also argued that lady. she could have resisted the asaault particularly when it is admifted case of the prosecution that the oppeKant is a crippled mcui circumstances the prosecutjon] facts and the court below ougl^ impugned judgment argued tha| appellant who have stated t^ family members were not settr has stated that earlier alsol CM^I<vi<iii T??1:Mf ^fest <fa^i< ^stRlH^fT^T and is not able to run omd in these witnesses have not come up with the true t to have extended the benefit of doubt. On the other hand, (ear^ied counsel for the State supporting the I' there is consistent eyidence in the shope of statement of none-else th^n the mother and father of the present iat the appetlant wos frustrated as his ing his marriage, Father of the appellG^t II the appellant had beaten him on that pretext. Even Qiamrin Bai ^W-4), mother of Itie appelloait, is the witness of the above fact and he js not married, he would kil room where the deceased was -t+iat the appelloint had -Hireatened that if anyone, Presence of Luran (PW-1) in the murdered is natural, as he is the husbcnd of the deceased and he has categoriaxlly stated that he heard the sound of walking of the Gppellomt GBic| after some time when he heard the cries of his wife, he saw that the a^pellant has assaulted her with the knife. Evidence of above witnesses ^ appeltant in the crime in questij learly establishes the involvement of the w. ^^S2S 3^1 ^r ^i^ ^^T 'Sii^T ^>Hi<^ TC^T •^|<1t<^<q, ^•cn'y^KS, fcl^K-l^ ^ ^INdl shN14» ^ 200 3ni?r'<^TO (i^it^^r) 4ble We have heard learned the record as also the impugn€<y Conviction of the cppell^: (PW-1). Chamarin Bai (PW-4) a^ Luran (PW-1) has stated| lying o" his bed. Appellant is heard the sound of his crutcht for taking Sudaku, at that tim| that the appellant has assaul-f alarm. His parents and otiier \| the knife, however, when the fled from there. TTiis witnesls leng1+i, however, he stuck to hi standing with the blood staine| condition. Defence has not version of thiswitness untru^ Bhoglu (PW-8), father of the incident he was working in the| Luran he rushed towards the been assaulted by ^iuran by lo^r and blooct was oozing frc^i aDi <^8^1<vi<ili ^i*i<rif ^fe^t <fa^j< '^3?JR?H3:I7^T ;ounsel for the parl-ies. We have perused judgment. »nt is based on the statement of Luran also Bhoglu (PW-5). that he was present in his room caid was towalk with the help of crutches, he is and thought that he might have come he heard the cries of his wife and sxw -ed his wife with the knife. He rajsed illagers came +here. He tried to snatch »pellantattempted t6 assault him also, he has been examined by the defence at claim cuid stated that the appellant was d knife and his wife was lying in injured able to elicit anything which makes the itworthy or unreliable. Apart from this, ippellant, has stated that on the date of field, hearing Ihe diouts of children of of Luron and leamt that Dinobai has nife in her stomach. She was lying on the m her stomach. When he reached to the hbuse khife 3^5T "4i<t)|(?'>^, ^»Tf|y^|(S, ^<rl>|-y^< ^ ^i^T ??T f^-ri^ ^^11 3TR¥f^TTF^' ^l^dl gbNlcb ^ 200 ^niyT t?5F^ (^y^<^) house of Luran, ^iuran was co knife in the courtyard omd wh< him with tiie club on his thereafter the accused went ^T^i<n<iii ^P^T? ^fs^i <fa^i< ^^tRR^I^f ^fiing out of his house, he had thrown the he asked why he did -Hiis. he asaiulted However, he snatched the club and ixway, There is no cross-examination of this witness by the defence r|egardin9 the fact that this witness had seen the accused coming wsth |+ie knife and that he threw 11ie knife in the courtyard or that he assau|ted him with 1+ie club on his he^ad- Chamrin Bai [PW-4], vs^ stated that she rushed to thel o is mother of the appellant, has also hous^ of Luroyi on hearing the shouts of Luran- Luron told her 1+iat Shuhon has asaxulted his wife ond thercafter she saw that Dinobai was lying on the floor in the injured condition cuid when she touched her she foijnd that she was already dead. She has further stated that the appel|ant insisted for getting married and he u^d to be angry wi1+i them fo«| that if you do not marry him, h^ would kilt anybody. Tlius. from 1+ie eviden not marrying him and he had threatened :e of above three witnesses, who are brother, father A mother res^ectively of 1+ie appellant, we are of the considered opinion that the pi^osecution has been able to establish the invofvement of the oppellant Further version of the complair^ Ex.P-1 in which he had named in crime beyond alt reasonable doubts. i<mt is duly corrobonited from the FER of -Hie oppellcmt as assailant and medical 21 ':! rr*. ^- ».^ y^:??rf^ ' ^i^T ^T't^TN' ^CT's-n^T ^iN? A- 3:^?2TprT^T, ^TO^^Ko, Is|<7'>iy^< ^l^dl sbNleb ---"••—••—••—"••••-•"-•-"—•"•^ 200 3?I^jT'q^l^ (4ct?l^<^) '^nw^rf^^n^T ^ evidence of Ex.P-6 where co4 the person of the deceased. In tiie result, 1+ie appe^l the same deserves to be dismijsed Sd/- Dhirendra Mishra Judge ^Frf^pft^ 'HPraf 1^\fe1-^ ^R^R ^^H^¥r 'esponding injuries have been found over filed by the appellant has no substance, and jt is accordingly dismissed. Sd/- T.P. Sharma Judge