Bif iaaL.. V"" Ui c^i :C>S ^.&1%^ % KII-189/(JaU) C.J.P.R. 11/94/2,000 CF0000060506 u ^)p,^) APPEAL OF PRISONER C^??S?] .^SSS^Slssl°.9.<?:iI?i-.,.^: No.... SJO"l.<j.... Ky...fo.b.9->3........ Name Father's name t3 Residence '^CCF.^^^BI^^^aSG^Age on.i-^A.S-.a^. •TE'f Sentenced to".-; Undersection^^F.^^.^^^... ..../by^i^5(^jSan^^@^s^^^ (,l3ToS~^_ ^ ' It is explained to theprisoner that ifhe states orwishes to be represented by legal practitioner the Appellate fourt will not proceed with the base for seven days unless the legal pra.ctitioner appears . If the legal practitioner does not appear within sev^n days he inay nbt heard at all . Ifihe prisocer states that he does not wish to be repre- sented by legal practitioner the eourt may pruceed atonce with the caseand will n&t be obligedto give a hearing to any legal practitioner who shouldappear . ^. ^t-.^: Date of Application for copy of Judgement 2 Date on which copy received 3 Date on whieh Appeal sent........... .. ...... 4 Whether the prisoner wishes to be represented or not - Yes / No -D ^ :. :>»it '~~l ;.€ i'I'\ No.SO.n^...C.^. .. .'fi'.'0^.^............ ...... Name ... .,•<^tteJ~^6"C¥ tt^bnfined in ...... ......^T^^,.^.......3a^?3\^^^^^J). I^.......»..S9^.../?^6^.-Date(i........^./^£^99^. /-'-» . . • • / . ' / ' • ''.. " . • . ~ 17~ ^ . FoirWarded to the ©HffiF-aTDIOIAU MiiU3IBTnATC->®9£.i ^w % s^^-tf s-~?A-y/.'&va^*syo cjT1? ^ogatherwhich a copy ofjudgemeiit or order passed in t&e ca§e for favour of fri Ission to the proper Appellate Court, ^0(d^7-~ s<7:J?/d.'^^.. 7?y^i^/ . ^nt,^^^S'(M^.... .8-%.tl- cni...fe: '-<i''.S!'<T Date of receipt in... ........ ... ..............:.. office;. Date of receipt record to accompany the ... Memo ofAppeal to.lhe Appellate courf '-•'->•/. ;!•,»- No ... .. ... ........ ............E^ted .,..,,,,.....,../.nlg9......... < .< ^•«.ar>»dt~<—fr» ie*j .' •.i'^&'-^ Forwarded to the ...:.....,.^... .:,.:,........,... ..;^ .,,!;,.A^N...^^N.t??|..,,,,...'fR| ^..^^i^ii Da'fe o.f recejpt InAppellateGoiirt...... .........:.- .-;;J—^ .......»^,(t*^itn»lo*.«*" •K":';4a?1 ......... ,y.........--^#^^a^^^sSs. ''^'''''.f'^^^QS^yfs^ •:i1S!iX ?->1- '•:-^- -.,:'^K^ ^'~^'_ '•inT"r'''Fu:SE&"B.^_^.i.;';^ XI-HC-78 an^r^f^itq; <raT3TI^TgiITR; *11*IMI Sh*1ich s^'.qrai^pr^ siTn<iii6, feiditi^ ^-^.•^•..s.3./w. ^ 200 3<i^i wv> ('i?^°"<,;^) s^nw !TI^(T 3;n^?T IN THE HIGH COURTOti tii'iiFi-i'fl-i wncff ir' fei^t <Riwi< ^sri^iTsn^T CHHATTISGARH AT BILASPUR CRIMINAL APlPEAL N0. 83 OF 1998 APPELLANTS + Khanfia @ Rajesh and another RESPONDENT State Vs. ^>f Madhya Pradesh DMSION BENCH: HON' HON' Present: Shri J.K.Shastri,learned Shri U.N.S. Deo, learned ORAL PERL.C.BHADOO.J. By this appeal under S Procedure sent through S 3LE SHRI L.C. BHADOO & BLE SHRI SATISH K. AGNIHOTRI, JJ. cjounsel for the appellants. i.A. for the State/respondent. JUDGMENT (Deliveretl on 20'n July, 2006) ection 374(2) of the Code of Griminal iiperinl^ndent, Central Jail, Raipur, accused/appellants Khanna @ pajesh and Partal have questioned the legality and correctness of theii) conviction and sentence under Section 302 read with Section 34 of fhe Indian Penal Code passed by the Additional Sessions Judge/Spe<|;ial Judge, Bilaspur inSessions Trial No. 72/97, whereby the leamed Acfditional Sessions Judge/Special Judge, Bilaspur, after holding the accus^d/appellants guilty for commission of the P.T.O. XI-HC-78 sn^TqirR-fi* (raT3TI^TS»l11t> *11*R11 SbHlch 3ST •^MW<i, ®Tn*f']G,RlMI'Hy ,.C'a-..^.-.i??./.<?.%.. W^^4^ sn^Tira^? ('i^i^^'T) ?RIIW Hf®T-W^T 2. ~ refed offence under Section 302 sentenced them to undergo imprf 2. Case of the prosecution ir( 1, Bahadur atias Baita was goin^ dinneron the occasion of Chh accused/appeltants Partal and connection with a dispute regarcfng of Charan. He saw thatPartal ahd with lathi and axe and on accouht neck and back he fell down on| with axe on the neck of Charanl the intervention by Bahadur alia^ assault Charan, as a result ofth^ The incident was also witnessecf Bhagwantin atias Bhairi. After ijifoi Bahadur alias Baila went to the Station House Officer, on recei\t registered the FIR, Ex. P-1 fo^ Section 302 read with Section 34 for the scene of occurrence, afte( prepared Panchnama, Ex. P-4 <(f possession the blood stained ar|d under Ex. P-5 and P-6 respecf seized under Ex. P-7 from th^ Rajesh and lathi was seized fron|i Ex. P-8. Merg intimation of Ex. <t>ioFfi41-i WRrf if fs^S <Ri<-t;i< ^isrf^q-gn^r with Section 34 of the I.P.C., has sonment for life. brief is that on the fateful day when PW- to invite his sister-in-law Jamunabai for latti festival, he saw that in the street, ^hanna were quarreling with Charan in grazing ofbullock of Partal in the field Khanna were attacking Charan Singh of the injuries sustained by him on hjs the ground. Accused Khanna assaulted and Partal assaulted with lathi, even on Baila the accused pereons continued to said assault Charan died spontaneously. by P.W.-2, Ku.Anju Kumari and P.W.-3, ijiforming the village Kotwar, the witness ((olice station and reported the matter. The fing the report from Bahadur alias Baila, the commission of the offence under ofthe IPC. The Investigating Officerleft giw'ng notice, Ex. P-2 to the Panchas, he the dead body of Charan. He took into I ptain soil from the place of occurrence ively. The weapon of offence axe was posse'ssion of accused Khanna alias the possession of accused Partal. under 3-12 was recorded. Site plan of Ex. P-3 P.T.O. -sr XI-HC-78 sn^T^irf^TN; (raTsn^tgiiiR; *ii*irtT^»Tr^> 3^'^fPTRra', »Tfl<1'IS,Rldlti^ ...Qv.,.Q.-..S.3J.tS ¥R; 2W- 3TI^?T<4^qi ('icl'd°"S.iir) wnwdf^cTSti^r ~3- examination under Ex. P.13 to P.W.-6,Dr. (Smt.) C.K. Singh »bl<lFfl41-lWRTf if te^ iFaK^K ^STf^R'SIT^T was prepared by the Patwari. B^dy of Charan was sent for post mortem Community Health Centre, Bilha, where onducted post mortem examination and prepared the post mortem cepoi|t, Ex. P-9. The doctor on the request of the police under Ex.P-15 gave h^r opinion Ex. P-10 regarding the factthat the injuries which were found onjthe neck of Charan could be caused with axe in question. Clothes of l|he accused persons were taken into possession under Ex. P-16 and lf-17. The recovered articles were sent for chemical examination to Forensi^; Science Laboratory, Sagar, from where report of Ex. P-21 was receive^. After completion of the investigation, charge-sheet was filed in the Cotirt of Additional Chief Judicial Magistrate, Bilaspur, who, in turn, committed|the case to the Court of Sessions Judge, Bilaspur, from where leamed Sp for trial. th^y 3. The prosecution in order persons, examined 7 witnesses| the accused persons were recc|rded Criminal Procedure in which and stated that they have been the witness Bahadur is on inimidal outcaste. The accused person^ J.P.Singh in their defence. 4. We have heard Shri J.K| behalf of the accused/appellarfts Advocate on behalf of the State. ^cial Judge received the case oo transfer |to establish charge against the accused [in all. On the other hand, statements of underSectio/? 313 of the Code of denied their involvement in the crime f^lsely implicated. They further stated that relation with them and they have been examined DW-1, Jawahar and DW-2, Shastrl, learned counset appearing on and Shri U.N.S.Deo, leamed Govt. P.T.O. XI-HC-78 STI^T^iTf^TNT TOT3fl^ist»lit) Hm^lTSh*1|ch 3:^'^[rai?pr, sTflo'is, Riyiuy c^.'^: ^ 2fl0- sn^riragr ('^igg^ET) ??(Traxflf?(T3n^T — ^ 5. As far as the question °hi<<Fct<l1-f inii?rF ^ fWt <R|WI< ^isri^rsn^r ^f homicidal death of Charan Singh is concerned, the same has not be^n disputed by the learned counsel for the appellants. Even otherwise, PW-|6, Dr. (Smt.) C.K. Singh has stated in her evidence that as many as 8 incjsed and lacerated injuries were found on the neck and back of the dece^^ed. The cause of death of Charan Singh was hemorrhage and shock as ^ sufRcient in the ordinary course result of injuries on the neckwhich were of nature to cause death. She has further opined that it is possible to caus^ the injures found on the body of Charan Singh by the axe in question. "Cherefore, in view of the evidence of Dr. (Smt.) C.K. Singh and eye-witn^sses PW-1, Bahadur alias Baila, PW-2, KuAnju Kumari and PW-3, Bh crime in question, the homicidal i 6. As far as involvement question is concerned, the con'|i witnesses, namely, PW-1, Ba^ daughter of the deceased and deceased and accused Khannd has categorically stated that on festival he was going to invite hi^ that time he saw that some disbute Partal and deceased Charan as crop of Charan. Accused Par(al house, closed the door from ins| out canying axe in his hand, attacking Charan Singh. Accu^ed axe and Partal with lathi. Accusted agwantin alias Bhairi who witnessed the teath ofCharanSingh is established. of the accused/appellants in crime in riction is based on the evidence of eye- ladur @ Baila, P}W-2, KuAnju Kumari, 3W-3, Bhagwantin @ Bhairi, aunt of the @ Rajesh. PW-1, Bahadur alias Baila the fatefut day on the occasion of Chhatti sister-in-law Jamunabai for dinner and at was going on in the street between :he bullock ofthe accused had grazed the andKhanna @ Rajesh entered their de and thereafter accused Khanna came Partal <iame out with lathi and started Khanna attacked the deceased with Khanna attacked the deceased on his P.T.O. H :!| j,f XI-HC-78 3n^r?irR-<icti craTsn^rgiiTN; +11+i^ti s.btrra» 3^ •^WM'lt, W-^WW, Rldlti^ .e'r.^.^./'x. ^-^w^ SlT^TMaw (lcltAqS,]iT) STaTwgfstTsn^T hbs neck with axe as a resutt ofwhil; spontaneously. This evictence PW-2, Ku.Anju Kumari who has[ persons assaulting tier father evidence of the witnesses furth.et R/V-3, Bhagwantin, particularly Baita and FW-3, Bhagwantin ar^ deceased as Bahadur has statetl both are his nephews and PW-3J son of her sister and deceasecj Jamunabai. Therefore, these persons andthe deceased as no occasion for them to implicate|f too in such a serious crime ofl defence has not been abte to ^l evidence of these witnesses these eye-witnesses is also P.W.-6, Dr. (Smt.) C.K.Singh as manyas 8 injuries, which cou| the weapons of offence i.e. Investigating OfRcer from the Therefore, to this extent, we do| impugned judgment of the triat| accused in assaulting the decea^< beyond the shadow of any doubtj subh implicate|the whb qirafa^T WTOt'ff (Wl-Tf^RK ^aTf^iTsn^T i|sh he fell down on the ground and died been corroborated by the evidence of stated that she witnessed the accused (pharan with axe and lathi. The above stands corrobprated by the evidence of |when the witnesses PW-1, Bahadur @ related to the accused aswell as the that accused Partal and the deceased Bhagwantin has stated that Partal is the is also her nephew, son of her sister wjtnesses are related to both the accused being relative of both sides there was accused persons in a false case that murder. In their cross-examination the licit any circumstance which makes the untt|ustworthy or unreliable. The evidence of co|rroborated by the medical evidence of has stated that the deceased recefved fdbecaused by axe in question and that and lathi were recovered by the possession of the accused persons. not find any iltegality or infirmity in the ICourt and that the involvement of the ted wrth axe and lathi stands estabtished *xe P.T.O. XI-HC-78 sn^T^irf^iR; traT3n^Tshii<ti Nrqni Sh*1|ch 3^ -<iWMt, w-^wie, fs|dlti^< * * »• *•'<• * * V* ^ •f* * »^* * * »^2W~ 3li^?l yaw ('icit^si^ff) ??(iTmHf?(T3n^r —(- 7. Learned counsel for the evidence available on record, persons had not attacked the death. While drawmg the attenljion PW-3, Bhagwantin, he further a( the house of accused persons| quarrefling with them and in accused persons assaulted the the accused persons does not IPC. ^ccused/appellants argued that from the jt can safely be held that the accused deceased with an intention to cause his of the Court towards the evidence of ^gued that the deceased himself went to carrying lathi in his hand and started process in a sudden provocation the [deceased, ttierefore, the offence against travel beyond Section 304 Part II of the thbt 8. On the other hand, leatr supported the impugned judgmefit ofthe 9. In order to appreciate th4 counsel, we have perused the e\|i paragraph 9 of her cross-exam receiving the injuries, her fathei) that Charan left for the house of t and was saying that the bullock| =t)l<lfc1<fl-1 ^Wvfl' ^' fS^I •rf^RSK ^srf^R'Sn^T ned counsel for the State/respondents trial Court. arguments advanced by the respective dence of P.W.-2, Ku.Anju Kumari, who in nation has stated that accused persons were tatking from inside their hcjuse after closing the door and her father was also talking with them stantling in the courtyard of the house of the accused persons and in paragr^ph 12,she has further stated that after was lying down in the courtyard of the house of accused persons and t(e died there. It has also come on record that both the deceased and ac^used persons were abusing each other. f. P.W.-3, Bhagwantin, in paragra^h 5 of her cross-examination, has stated iccused persons carrying tathi in his hand of the accused persons have grazed his field, therefore, he will not leave (hem. In paragraph 7, she has stated that P.T.O. 'Si. XI-HC-78 «41*IC11 ^tTT^l 3^ '<<1<IIM<<, ®Tflu'l(S,Kldl'M^< .<?<7.;^.'..t?/?.<?^ 200— sii^r^iTR-fiiti (P'n'3n^T3w?> 3TT^?T4si<t> (4c<?d<:l^.!iT) WITW Hfga'sn^r -Tl- +i'iifd41-f tii^dT^'te'^'f.fai-WK ^srf^Tan^r Charan was attacked in the couittyard of the house of the accused Partal, therefore, it is establishsd ttiat and in that process the accused| and accused Partat with lathial Exception 4 of Section 300 of th| on account of grazing of bullock of the accused persons in the field of (pharan, Charanwas not happy with them and, therefore, he teft for the h^use of accused persons carrying lathi in his hand and there hot Words w|ereexchanged befrween both the parties is not murder if it is committed '(irithout premeditation in a sudden fight in the heat of passion upon a su having taken undue advantage c 10. As far as the accused deceased with lathi after snatch has come in the evidence of sharing intention with Khanna manner in which the dispute sl Partal, it cannot be said that he Khanna assaulted the deceased with axe ter snatehing the lathi of Uie deceased. s I.P.C. envisages that culpable homicide ^lden quarrel and without the offender's r acted in a cruel or unusual manner. It is admitted position that the dece|ased went to the house of the accused persons carrying lathi and th^re hot words were exchanged, which provoked the accused persons. Partal is concerned, he assaulted the Ing the same from deceased and nothing prosecution witnesses that Partal was to commit murder of Charan and the arted and looking to the part played by took any undue advantage or acted in a cmel or unusual manner and as |such his case is covered under Exception 4 of Section 300 of the I.P.C.,1 travel beyond Section 304 Part 1| 11. As far as act of accused come oh record that he assaultM therefore, offence against him does not ofthe I.P.C. |<hanna alias Rajesh is concerned, it has the deceased with axe on vital part of P.T.O. ^ o XI-HC-78 311^1 ^iTfeNi traT3n^T»ti[cb +ll*l(^Ta»*fT^i 3^ •<ii'Micii|, aiflu'ia, Riciiyy CV::Q:.^.U'5l.th ?P3; 204L Sii^i <4ach (yl^^ff) S^ITWH)^(T3I1^?T — < ~ his body i.e. neck and other p^rts of the body causing as many as 8 incised and lacerated woynds a »hi<iF!'i41-i tiiti<-iTffte^<[oi<<;i< ^sri^Trsn^T fid as per the doctor's opinion the injuries on the neck ofthe deceased wa^ fatal, which was sufRcient in the ordinary course of nature to cause de . When on account of assautt and snatehing lathi by accused Rar(al the deceased became armless, there was no occasion for accused Kh|anna to continue to assaultso mercilessly that too with a deadly weapon l|ke axe and to cause 8 injuries and some injuries were on neck which capsed the death of Charan, therefore, his case is not covered under Excefation 4 of Section 300 of the I.P.C. as he took undue advantage and acte<jl in a cruel and unusual manner. As has been held by the Hon'ble Apex Qourt in the matter of Thanaaiva vs. State of Tamil Nadu. reoorted in 2005 Cri.LJ. 684 that intention of the accused can be gathered from is inflicted, which are the factol intention. the weapon used, size of the weapon, place of the assault, facte leadinjg to assault, part of the body where injury rs to be considered for ascertaining the 12. Based on the above princ|iple if we look into the facts of the present case, accused Khanna alias Raj^sh was having deadly weapon i.e. axe in his hand and he assaulted the vital organ of the body, therefore deceased repeatedly on his neck i.e. the the intention of the accused Khanna was writ large to finish Charan Sii|gh forever. Therefore, we are of the considered opinion that Khanna |has rightly been convicted and sentenced forcommission ofthe offence ofhiurder ofCharan. 13. In the result, the appeal merits is liabte to be dismjssed a of Khanna alias Rajesh being devoid of riAthe same is accordingly dismissed. As P.T.O. 151 iill I XI-HC.78 qm^irsfitfT^ 3'ScT RIPTRPT, 8^ta?1^, f^dl'tiy .<??C^^2/?^^. gn^rqsR? (^t^^F) »f^T?iTfS:IRi (raTan^rgiiiR? Iv^:^^ '•f\ '^ f .^•\" ^,Oo SRireKfffsa'aTi^T fflv far as appeal of appellant Parta| and his conviction under'Sectioh and sentence imposed under accused Partal is convicted uncfer sentenced to undergo rigorous ir Sd/T L.C. Bhadoo Jiidge ehl^tdifl-l HWvi\ if fS^Sl A^K ^i arf^H 3{i^r is concerned, the same partly succeeds 302 read with Section 34 of the I.P.C. section are set aside. Instead thereof, Section 304 Part II of the I.P.C. and rjiprisonment for 10years. 14. It is 'sitated thataccusei) Partal is in custody since 4-11-1996, therefore, the accused shall be e|ntitled for set off for the period undergone by him in custocly tfuring investig^ition and tn'al. Sd/- Satish K. Agnihotri Judge - P.T.O. 'l'.lill i • M