HW,W,W WW ..................... m 200 mW<W> WWEWW matwm én‘wm ‘ , HIGH COURT OF CHHATTISGARH AT BILA5PUR DIVISION BENCH: HON’BLE MR Lt: BHADOO & HON'BI F NR. DPERE§DRA MI5I—RA, Jg CRIMINA APPEAL NO.980/2003 u '1‘ APPELLANT a ~ V5 RESPONDENT Gulab Chandra, aged 48 years, 5/0 Shri Sq'h rayan, R/o rChurcha Colliery, P.$. Baiku 'rhpur, Disfr'icr Korea, ChhaH'isgarh. The 'l'e of Chhaf'risgarh Through Sfafion Hou Officer RS. Baikumhpur, Dis‘rricf Kore (C.&.). Presenf: Dr. N,K. Shukkl, 5r. Advocate wi'rh Miss Rifu Mishm, Advocqfe for The appellan‘r. Mr. Sudhir Bqjpai, Dy. Governme T Advoca'fe for 'rhe respondenf/Sfafe. UDGMENT July,2007) Pa- LC. Bhadoo, J; Heard. Appeal is din“ led for co sidera'rion. Learned Sr. Counsel fo The‘accused/appellanf submil's Thai The :~ accused/appellanl' is in delen‘l'io for aboul‘ 4% yew-s, 'l'herefore, 'l'his’appeal P.T.O. / a a s a “ J \_ MW,W,W WW F?\ 200 WW(W) WWW mmm WW§wW mmwm ‘ aawanéw ruw“u H'self may be heard finaily, to which Ieurned Dy. Govt. Advoca‘l'e has no objecfion. As smh, wifh fhe comem of fhe parfies The appeal is heard finally. This appeal is direcfed insT ‘rhe judgment of conviction and order of seni'enco da‘i'ed 24*“ July, passed by ihe Addi‘iional Sessions Judge, Baikunfhpur (Koriya) in 5.T. No 147/03 whereby learned Addii‘ional Sessions Judge after holding fhe accus d/appellonf guiliy for commission of offence under section 302 of The I.P. for commifi‘ing murder of his wife Sikku @ Shardo, senfenced him fo under o R.I. for life and i'o pay o fine of Rs.1,000/-, in default of phymen‘i‘ of fine 1'o fur‘l‘her undergo RI. for fwo momhs. u .. Case of The prosecution in brief, is fho‘ijin The nighT of 17.2.2003 aT abouT 10.30 pm Pooranchond ( W-5), son of accused, gave merg inTimaTion (Ex.P-6) in The Police Oui'posi' hurcha To The effecT ThoT on 16.2.2003 oT abouT 2.30 p.m. his moTher 5ik u @ 5harda (since deceased) had gone along wiTh Budhram (PW-9) Towards Village BonkheTa forvconsuming liquor. His faTher wenT To call his moTher, ThaT Time his moTher was lying on The road in a drunken condiTion, There ore, his faTher d Budhram lefi‘ her There. Today, his broTher namely Arun Kumar (PW-6) wenf There wiTh a lemon and he saw ThaT his moTher was lying d ad, Based on This informaTion, FIR. (EXP-4) was regisTered, OuTposT In-ch rge Shri MJ'. Hrdousi (PW-15) lefi' for The -‘ scene of occurrence on 18.2.2 '3 and afTer giving noTiee To The Panchas prepared The inquesT (Ex.P~4) on The body of Sikku @ Sharda. Body of deceased was senT for po morTem examinaTion To DisTricT HospiTal, BaikunThpur under Ex.P-1A, w ere Dr. (5min) Neelam Tirkey d: Dr. D.l<. a: \K‘ P.T.O. XI—HC<78 " -v a a Z XI-HC—78 HW,W,W WW ..................... 1H 200 WW(W> WEIW WWW WW WW mmm%aan%sr %3TF—?—m311%¥1 Trial. The prosecul'ion in order 1'0 esl’ablish 'l‘he charge againsf 1'he accuse appellanf examined 15 wifnesses. 51'afemen'l of accused/appellanf was recor ed under Secfion 313 of Cr.P.C. in which he denied 'l'he ma+erial,appearing againsi' him in 1'he prosecution evidence and p stated that he is innocent and h s been falsely implicated in the crime. Learned Addil‘ional Ses ions Judge after hearing fhe arguments of learned counsel for fhe resp cfive par‘l‘ies, convicted and sentenced the accused/appellant, as aforem oned. We have heard Dr. N.l<. hukla, Sr. Advocate for The appellant and Mr. Sudhir Bqipayee, Dy. 6ovt. Adv ate for the respondent/5tate. In this case almost eve eyewitness has turned hostile. Jairam Singh (PW-2) has sfafed Tha‘f in o Chikanjuri (PW-1) conducfed pdsrmor‘rem on The body of deceased, prepared fhe pos‘l'morfem repor'f Ex.P-1 ahd opined “Hm? cause of deafh was coma due To head injury. While in police cu ody fhe accused gave memorandum (EXP-9) and a bamboo club a1' The in‘ once of occused/appellonf was seized under Ex.P-10. The bamboo club was s n1- for examination +0 The docfor under Ex.P- 2A, who gave his opinion vide x.P—Z and opined fhaf injuries found on The head of The deceased could b caused by flie said bamboo club. Si‘ie plan (Ex.P-5) wasprepared by fhe P wari (PW-4). \ ga'i'ion, charge sheet was filed in fhe Cour'l‘ of Chief Judicial Magistrate, B ikunthpur, who in turn committed the case to learned Sessions Judge, 5argu from where fhe Addi‘l‘ional Sessions Judge received fhe case on Transfer P.T.O. / day morning he was going on his work to' n i j ’ e i Ie x @ mm W 200 XI-HC—78 mW,mn—qr,%lmg? WW<W> Wamm ‘ WWffWW WWW ‘ %;aw%mm Baikunfhpur. He saw 'fhaf accused md his two daughfers were s‘randing behind Churcha Sfadium and one lady was lying There. On enquiry, accused disclosed That his wife is lying because s 1e has consumed liquor. Budhmm (PW-9), ev‘en 'i‘hough he has been occlnred hosfile, bu‘i' on 'cross-examinaiion by The A isfan'r Governmen'i‘ Pleader- hos stated Thai deceased Sikku @ Shardn as ed her son Arun 1'0 bring foreign liquor and ' Sharda consumed fhe liquor b oughf by her' son. Deceased was his sister-in- slaw. He &5harda wenf foge‘r er ‘i‘o consume liquor, Sharda consumed Mnhua liquor. Gulab i.e. accused/appeliam also consumed liquor. Accused asked his wife To go 'i'o 1'he house. They eff The place fogel'her. Accused assaulted him wi‘l‘h The stick and also sai fhai' you people are s'l'ill consuming liquor. Thereafter he asked Sikkubai o go lo 1'he house and when Sikkubai was going towards The house she fell do on The earTh as she was in drunken condiTion. BoTh The daughTers of Sikkub i namely Priya & PreeTi were wiTh her, she was lying on The earth and saying That They should allow her To Take rest and later on, she will go To The house. At That Time, accused came with a bamboo club, kicked her and also assaulted her with That bamboo club. He snaTched ThaT bamboo club from The accused Threw the same and Thereafter he left for his house. The defence, in the cross-examinaTion of this witness, has no't been able To discrediT The evidence To establish ThaT The above evidence of This wiTness is not worth reliance. Therefore, from the evidence of PW—9 Budhram it is clear ThaT in The first insTance the deceased arid Budhram consumed liquor Together. Accused u f \ P.T.O. i ‘ XI-Hc—78 W‘-m . m 200 mmm wmm wwwm WW§E¢TW émf§ma®¥r also consumed liquor and fhl accompany him To their house able to walk and fell down on Therefore, she may be allowed a bamboo club and assaull'ed her wifh thal- club and as per doctor's reporf ‘ u ‘ExP—‘Z 'l'he injuries found on file head of ‘l'he deceased could be caused by fhe i bamboo club recovered from “he accused. Therefore, from ‘i'he evidence of &.Idhram (PW-9) and medical zreafl'er when he asked his wife Sharda To Sikkubni, heing in drunken condii'ion was n01- lhe enr‘l'h. She asked fhal‘ she will go later on r1-o lie clown for- some lime. . Accused came with : HW,W§,W mW<W> evidence if is esfablished That 'l'he accused assaulted fhe‘ deceased i.e. his wife wifh a bamboo club and as a resulf which she susfained head injury and ied. Learned 5r. Counsel fo ‘l'he accused/appellant argued 'i'haf from fhe fac'fs of fhe case i1- is nof esfa lished fha‘i The accused had inTenTion To cause deaTh of his wife. In facT, he deceased and The accused boTh were in drunken condiTion, The accuse persuaded his wife To accompany him To Their house buT being in drunken con iTion she was noT able To walk, Therefore, The accused assaulTed her once wiT a bamboo club,which unfor'i'unaTely landed on The head and proved faT l. Therefore, The offence againsT The accused/appellan'l' does noT Tr On The oTher hand, lea ed AddiTional Public Prosecul'or for The STaTe supporTed The judgmenT of The rial courT. Having hewd learned ounsel ~for The respecTive parTies, we have considered The evidence. Th case of The prosecuTion iTself is ThaT The deceased d accused boTh l beyond SecTion 304-11 of The IPC. consumed liquor and boTh were in drunken a h i XI-HC—78 3am, WWJ§IE1H$ ‘WW m 200 WW (W) mmmm ' éswm Rqshanl-L condiTion and as per evidence of PW—9 Budhram, who also consumed liquor with The deceased & accused, if has come on The record 1'ha1- when The i T accused asked The deceased To accompany her- To Their house, she being in i drunken‘condiTion was noT able To walk, Therefore, The accused ossaulTed The j deceased wiTh The bamboo club as a resull‘ of which she susTained fa‘Tal injury ‘ and died. From The above facT riT cannoT be inferred ThaT The accused had The inTenTion To cause deaTh of Silkubai @ Shardafbu‘r from The above evidence . iT dun safely be inferred ThaT while aTTacking The deceased wiTh The bamboo l club on her hedd, The accused had definiTe knowiedge ThaT he may likely To- : cause deaTh of Sikkubai. Th l: accused and as such, The offe ce under SecTion 304 ParT II of The IPC is made ouT againsT The accused/ ppellanT. ' In The resulT, The appe l filed by accused/oppellanT parTly succeeds. ConvicTion of The appellanT ‘ der SecTion 302 of The IPC and senTence imposed upon him under That s cTion are hereby seT aside and he is acquiTTed ‘ of ThaT charge. InsTead Thereo , he is convicTed under 5ecTion 304 Par-T II of The IPC and senTenced To und rgo RI. for 5 years. As per Paragraph 25 of The judgmenf The accusedhpp llanT is in deTenTion since 23.2.2003 Till Today, Therefore, he shall be enTiTle for set-off of‘The above deTenTion period againsT The senTence impoSed u on him. Sdl- L.C.BHA Doo Judge V f refore, knowledge, can be aTTribuTed To The P.T.O.