^f 3^ET ^)|<||<tii|, diTfly'ld, Rl0K-fy 'WTCff sb<4|cb' Cy.^-^o- 1^/^°°€ ••^ 200 3n^?r wv (1pf^^r) afl^i.^r R-ii* wian^r *^i+ WITWHtosil^f APPELLANT (In Jail) RESPONDENT Present :• DB:- Shri Suresh Pandey Uie appellant. Shri Akhil Mishra, Pai HON'BLE SHRI L.C. HON'BLE SHRI DHII ORAU (Delhrered L.C. Bhadoo. J ^l^lT^'T ^Hd'l' ^fft^ -<f^i^l< ^3iRr>T<n^[ Radhe @ Radheshyam, S/o Kejaha Ram, Aged about 40 years at the time of incident, R/o Singhanpuri, P.S. Takhatpur, Dist. Bilaspur (CG). v Versus- State of ChhatUsgarh, Through Station House Cfficer, P.S. Takhatpur, Disb-ict Bilaspur (CG). ind Shri Virendra Chandrakar, counsel for lel Lawyer for the State . BHADOO& IENDRAM1SHRA,JJ. JUDGMENT n16"'April,2007) The accused/appellant has of conviction and order of senterlice Addidonal Sessions Judge, Bilaspt|ir, has been held guilty under Sec|tion committing murder of Ishwar imprisonment for life. However, le^imed co-accused namely, Vijay Kuma^ accused/appellant. preferred this appeal against the judgment dated 17-4-1998 passed by Seventh r, in Sesstons Trial No.249/97 whereby he 302 of the Indian Penal Code for Prasad, and sentenced to undergo Additional Sessions Judge acquitted • and Kabeli Bai, son and wffe of the GRPRJ— FS/2-: S-HC—78 3^T -^WIift-^, •S-^W'fS, ^fWVy W^v\\ *t<l* •Wt sn^CT ?n K-iii* W SIK^! siill'* sn^?r'^gq; (4<<f'i<si<a) wnWHitti sii^i <M<it<n<iti 'W^ '^^^t <^>i^R ^ <4Rn <H1^1 2) The case of the-pro^ecution, in brief, is that Biharilal (R/V-1) todged the First Information Report in Police Station Takhatpur on 28-6-1997 to the effect that Bai, widow of R^mratan, who is his sister-in-law in relation, came and informed that her son-fn-law Ishwar (since deceased) was attacked by Radhe.Kurmi with lathi & ki< which Ishwar sustained inj< front of the house of one U by bullock cart to fheir ho( sister-in-law and saw the b|ody of tshwar. There were injuries on the head and other parts of the body ^tri, on account of agricultural land dispute, due to jries. He became unconscious. He was lying in ^tel Gond. From there Uiey have broug^rt Ishwar jse. Bhiarilal (PW-1) went to the house of his Ishwar was already dead. Receiving this report, Station House OfRcer, Rolice Station Takha4>ur, registered the First Information Report (Ex.P/1|) & merg intimaUon (Ex.P/2), left for scene of occurrence, after giving n4Bce (Ex.P/3) to the panchas, prepared inquest (Ex.P/4) on the bocty of l^hwar. Sando Baniyan of accused was seized under Ex.P/5. Bamboo lath kudri was seized under Ex.lp/8. The sari of Bai was seized under Ex.P/9. The accused gave memorandu( the basis of memorandum,] Bme, accused Radhe alscj Takhatpur to the effect that i was seized vide Ex.P/7 from Vijay Kumar. One |D (Ex.P/10) about lattii, weapon of offence. On lathi was seized from the accused. At the same lodged report (Ex.P/16) in the Police Station at about 12.00 noon when he was ploughing the field, Ishwar came armed vfth lathi and started attacking him. In spite of his objection, he attacked 3-4 (imes, as a result of which he sustained injuries and informed Khaniya OasJ Sanha (Ex.P/17). Halka f place of occurrence unde| Kotwar. The same was entered into Rojnamcha fatwari, Balram Sahu, prepared s'rte plan of the r Ex.P/18. The body of Ishwar was sent for } postmortem examination t|» Uie Community Health Centre, Lormi under 3^T ^l^l^, ^Tfly'l^, i^K'il'M^'1-" KIN^I *t<l* •g^ 200 sn^t •WK (•^^s) an^r.w R-fi* OTT3)I^T stitli* •^aiwttosi'^T ^qfepftT-tffCRff ^'-fe^t ^I^R ^sfRTHSII^T Ex.P/19where Dr. D. Lodge (PWf Ishwar, prepared report (Ex.P/27)l is shock and hemorrhage due to the body. Death was homicidal ir| -10) conducted postmortem on the body of in which he opined that the causs of death r|iultiple head injuries and other injuries over nature. 3) After completion ofsinvesti^ of Judicial Magistrate, First Clas4 to the Court of Sessions Judgel Sessions Judfle, Bilaspur, rece'ivef: 4) In order to establish ch( prosecution examined 10 witnest were recorded under SecUon 313 they denied the matenal appearin$ They stated that they are innocei] case. ation, charge sheet was filed in the Court Bilaspur, who in turn committed the case Bilaspur, from where learned Additional ttie same on transfer fortrial. irge against the accused pereons, the ses. Statements of the accused pereons rf the Code of Criminal Procedure in which against them in the prosecution evidence. it and have been falsely implicated in the Sessidns 5) Learned Additional respecthre parties, convicted and as aforementioned. However, acqpitted Kabeli Bai, son and wife ofthe Judge after hearing counsel for the jsentenced the accused/appeltant - Radhe co-accused namely Vij'ay Kumar and accpsed/appellant. GRPR. 6) We have heard leamed coi material availabte on record. 7) Leamed cpunsel appearing homicidal death of Ishwar. Moreov manner in which the accused as about the injuries sustained by -50,000. ^nsel for both the parties and perused the for the accused/appellant has not disputed ^r, Bai (PW-2) has categorically stated the .baulted the deceased with the lathi and >hwar. The same is corroborated by the B»s: :Si-H&—/8 ~s:s5f -^w\^, ®Ti1y'i6,Rciiyy tnnw *^i* sir^tw R-li* Wtl SIK^I Si)11<t> ad^rtRR; cyS^s) 200 TsnwHitB sii^i medical evidence of Dr" DJ conducted postmortem on th4 injuries, out of which injury N<j. was fractured. Therefore, in established that the death of W Lodge (PW-10), who has stated that he body of Ishwar and noticed as many as 17 j.1 is dangerous to the life as the parietal bone ^tew of the ocular and medical evidence, it is jhwar was homicidal in nature. 8) te far as invoh?emen|t question is concerned, learnefl argued that the prosecution] persons, out of which Iwo son and wife of the accused, same evidence, therefore, the same ground. He also when accused attacked the adjoining fields, but they did that had there been any He further argued that the confidence, as there are tot of accUsed ac<tused aifeued 9) On the'other hand, judgment of Uie trial Court. 10) Having heard learned record as well as the evident^ arguments advanced by lea|ned counsel. 11) 8ai (PW-2), who witnes|sed the fateful day accused - Ra<|lhe, spPtfe^T TTFT^f '^,fe^ ^^t^l^ i;3((OT 311^1 of the accused/appeltant in the crime in counsel appearing for the accused/appellant filed charge sheet against three accused persons namely Vijay Kumar and Kabeli, |have been acquittsd by the trial Court on the - Radhe is also entitled for acquittal on that as per the evidence of Bal (PW-2), tjeceased, the persons were woridng in the i|iot cpme and intervene, therefore, he argued they would have come and intervene. |evidence of Bai (PW-2) does not inspire <>missions and contradictions in the evidence. occUrrence le^imed counset for the State, supported the ^ounsel for the parties, we have perused the i{re of Bai (PW-2) in order to appreciate the counsel appearing for the respecttve th®crime in quesUon, has stated that on , was ploughing the fietd. She went ttiere K XJ-HC—78 3=5ST ^||<110<1, ($Tfly'l<o, [°(<7'>IUy tllNc^l *M|cb sn^rw K.-ii'h W 31S^I **<l=t> aii^?r iRra; (ipfy^w) TOiiwgfta sii^i and asked Radhe as to why h{ law Ishwar was with her. of the accused, were also Radhe why he is ploughing tl| whether the land belongs to attacked Ishwar with lathi, -hi< Vijay Kumar attacked with and thereafter they ran awa1) putHng him in bullock cart, bf incidenttoBiharilal. ThereaN is ploughing her ffled. At that time, her son-in- Co-|accused Vijay Kumar and Kabeli, son and wife p|oughing the field. When she enquired from ^e field, the accused abused her and said that ylsur father. On which she replied 'Yes'. Radhe wife Kabeli attacked with Kudri and his son Ti<tari on the leg. Radhe attacked on the chest She brought Ishwar on road. Thereafter 1'ought to residence. She informed about the laft^r Biharilal lodged the report. attadked 12) Having perused the (PW-1), who has stated that| accused persons have Report (Ex.P/1) was lodged (RW-2), in which he has ment accused Radhe has assaulteO has been mentioned about Therefore, the trial Court cam( Report only ttie name of other co-accused persons' main accused, therefbre, the] accused Vijay Kumar and Kab|i attove 13) The accused himself g^ Takhatpur (Ex.P/16) that wh^n noon, deceased Ishwar camel <*lllct<il-l HWvS fffS^S <fat$l< ^sifiPTSfI^I evidence of Bai 03W-2) as also Biharilal |Bai (PW-2) came and informed him that the her son-in-law Ishwar. First Information ]by Biharilal on the information giveh by Bai joned that he was informed by Bai (PW-2) that Ishwar. In First tnformation Report, nothing assault made by Vijay Kumar and Kabeli. to the conclusion that in the First Information tised-Radhe was shown as the assailant and were not there. Moreover, Radhe was the |trial Court giving benefit of doubt to the co- ^li.acquittedthem. t(ie acctised natnes ive information in wrtting to the Police Station, he was ptoughing the field at about 12.00 and attacked him with laftii. This fect shows M^HC—78 s^r -^m^, ^w<i, ^wy. Ml^cff *t<t* Wt. 200 sn^T w R-fi'ti ^^ -STT^T Stl+flejl 'it an^T-qiR; (4.4l«i<w) 'ssnw^fttT sii^r thb that in fact the dispute tookj however, in his statenient Procedure, has not stated Moreover, in this report, injuries, but there is no injur^; From the above eviderice, itj^ at the place of occurrence. Radhe attacked her son-in-la^ is corroborated by the medictil stated that there was inciseld temporal region. He has furtljier side of the head, 12 other there. Alt the above injuries| were ante mortem in nature. corroborated by medical defence has not been ablel makes the evidence of this 14) As far as the argumeijit the accused/appellant that as| in the adjoining fields, but the') Court is concerned, it is true| has stated that when she rais^d and intervening. As there wa^ persons working in the adj<(i dispute. The evidence of Bai] ground that the persons 'sbNf<!'i4t't1 TVSf^t T?,fS^ <^^il i? aifin 3ii^[ Iplace on the place of incident. The accused, Ijnder Section 313 of the Code of Criminal |and there is totel denial about the incident. accused mentioned that he suslained 3-4 report regarding the injuries sustained by him. established that in factthe incident fa^ok place 3|ai (PW-2) has categorically stated that accused i|v Ishwar with lathi. The evidence <rf Bai {FW-2) evidence of Dr. D. Lodge (PW-10), who has wound of size 4" x 1" on the left side of stated that there was contusion on the right dontusions and 3 tacerated wounds were also |were caused by hard and blunt object. They Therefore, the evidence of Bai (PW-2) stands In cross-examination of this witness, the |to bring any cireumstance on record, which unreliable and untmsbworthy. evidfence wnness advanced by leamed counsel appearing for Iper the evidence, some pereons were woridng ^ had not intervened or deposed before the trial |that none of them came forward. Bai (ffW-2) ^d cries all of them ran away instead of coming ^ famity dispute, therefore, it appears Vnat the )ining fields preferred not to interfere in the (PW-2) cannot be disbelieved merety on the working in the adjoining fields did not :1 M';; II ^: ^'•: s S-HC-78 's^ss ^m^^, Q-^V'W, ^vftw^, MW^ *M|cb sn^tw ft-fi'* WIT BiKff itlHltl sn^T'R% (iyf-i«i<t(: 200 ^giwdfer 3(i^i come & intervene and give required to be taken is that wttness, the Court has to meticulous manner. As evidence of Bai (PW-2) is accused himself submitted a scuffle and marpeet in the the arguments atfvanced |their evidence. The only precaution which is |she beingan interested witness and the only fecrutinize her evidence in more careful and mentioned in the earlier part of the judgment, the clorroborated by medical evidence as also, the (Ex.P/16) before the Police that there was peld, therefore, we do not find any substance in counsel for the accused/appellant. retoort by l^amed 15) As far as third circunjistance omission or contradiction in thle 16) Leamedcounsel for incident took place at about 2|, lodged at 8.15 p.m., therefore| argued that the Police reacfied thereafter they registered the 17) As far as delay is place at about 2.00 p.m., from where-Bai (PW-2) went him; Biharilal went to the Police Station for lodging the kms. from the place of occum report was lodged with delay. Uie next day moming is asked on this point. The distance of 20 kms. On <til-ili<rl--<ft^ "WRff '^,'fs^ <^i-^.x "^ <ffRR <fll^l is concerned, there is no substantial p evidence of Bai (PW-2). |the accused/appellant also argued that the 1,00 p.m. whereas, Firet InformaUon Report was there is delay in lodging the report. He furttier to tte village on the next day moming; teport Ex.P/1. corlcerned, the incident said to have been taken ther^after body of tshwar was brought to the village |to the house of Biharital (PW-1) and informed hou^e Bai, saw the body of Ishwar and went to the Ireport, which was situated at a dislance of 20 ^nce. In this process, 'rt cannot be sakl that the |As far as the coming of Police to the village on conc^med, in cross-examination, nothing has been rep|ort was lodged inthe night and there was a acc(?unt of darkness, it was not possible for the XI-pC—78 ~s^5f -^ww^, ®TTly;K»,[sto''iy^< *<INdl sh<41* "^ SII^I ?!T f<;-fi«h "ciSTT .STf^T shHicO sn^?r iiira; (''pfy???) TCiiwgfta sii^i dn Police to start investigaUon on the next day momlng. ln| arguments advanced by leartted reasons 18) For the fpregoing as invoh/ement of the concerned, there is no illegali|y >, we are of ttie consldered opinion thatas far acltused/appellant in the crime in question is or infimiity in the judgment of the trial Court. thle 19) Leamed eounsel for a dispute regarding field as per the evidence o)| (PW-2) came on the spot accused attacked the deceal injury and remaining are cause death of Ishwar. 20) On the other hand, judgment ofthe trial Court. wh^ 21) As per the evidence accused was ploughing the fit objected by saying that aNercation took ptace, the Uie evidence of Bai, it is parties regardlng the land in| brother-in-law of Bai (PW-2),] was dispute regarding the ploughing the field, Bai and l^ nothing has been brought on| <sbl'4i<y1-tH'r1 iTTO^f ^'fs^ •<fa^l< •s&sifOTsii^r the spot, therefore, investigation was started view of the above, there is no substance in the counsel for accused/appellant. th|e accused/appellant also argued that there was agriculti|iral land and accused - Radhe ploughing the Bai (PW-2). At that time deceased and Bai |and started quarrelling. tn that process, Uie a^ed with lathi and there was only one serious in nature. The accused had no intenUon to simble eamed counsel for the State supported the (>f Bai (PW-2), it is admitted position ttat the Vfld, she along with Ishwar went on the spot and he is ploughing the filed, on which some actsused attacked the deceased with lathi. From also lestablished that there was dispute between the quesUon because the accused is the son of ]therefore, they were from one family andthere l^nd. In that process, when the accused was ^hwar came and started quarrelling. Moreover, record by the prosecution in order to establish :'a-HC—78 3^r afpn^r, (STil'y'i®,^<(?'"'My sv^ w K-vds •gtiian^iwiw MWWS tbNlcb G^wri 3|^T •VXS: (' •RgiwHftg a^i W^ 200 ^raferi^iirTOf'if.feyl <^i< ^sifilH 311^1 that the field in question vijas in possession of Ishwar & Bai and that the accused was ploughing thejfield without any right. In the cireumslances, the quarrel started on the groi|nd of old dispute of agricultural land. In that process when Ishwar and ^ai intervened when the accused ploughing the filed, the accused attacked t(|e deceased with lathi, caused 17 injuries, out of which one was serious injyij/ and remaining injuries were simple in nature. Therefore, we are of the co(isidered opinion that, fn the cireumstances, the prosecution has not been a|}le to establish that the accused attacked the deceased with intention to catjse death of Ishwar, but the manner in which he assautted the deceased, it |can safely be inferred that accused had the knowledge that he may likeli) to cause death, therefore, the offence against the accused/appellant does [not travel beyond Section 304 Part-11 of the Indian Penal Code. 22) In the result, the appeaf partly succeeds. The conviction and sentence imposed against the accuse|J/appellant under Section 302 of the Indian Penal Code are set aside, ins<ead thereof, he is convicted under Sech'on 304 Part II of the Indian Penal| Code and sentenced to undergo rigorous imprisonment for ten years. It is stated that the accused/appellant is in custody sinee 30-6-1997; thejrefore, he will be enStted for set off for the above detention periodagainsljthe sentence jmpQsediiCQDjiinL_ Sd/- LC..Bhado!3 °;"*-; 'jiidgeF ,•: Sd/- Dhirendra Mishra Judge