XI-HC-78 /f-'p^- <TTH<'ITai^|eh 3'ccT ^|4| Hl|, iSTflyilS, [alcll'My ^^..G?.:A-.^..^, W^ 200 an^'?T ira^? (yiI^si^'T) 3T1^T EfiT f^ricp ^sn gn^r sRniq; ^y ?CTTW;Hf?(f3n^T APPELLANT: (In jail) -v4 RESPONDENT: Present: Mrs. Indira Tripathi, counsel for the ^ Mr. D.K. Gwalre, Additional Publie P^ Division Bench: Hon'ble Mr. L.0 Hon'bleMr.Dhi ORALJ (Delivered on L.C. BHADOO, J. 1. This appeal is directed again; ofsentence dated 18-9-2001 Judge, Durg in Sessions Additionai Sessions Judge guilty for commission of offe S.P.C. sentenced him to »hi'i<t<vt41-f trprat' ^' fsc6 <Ri«i< ^a-rf^FTan^r Brajesh Kumar Singh, S/o Ke<i.»aaAteta,.s'*n^b• Aged about 32 years, Unemployed, Resident at: Baikunth Nagar, Camp No.2, Bhilai - 490 001, District: Durg (C.G.) sus- State of Chhattisgarh, Through Cfficer-in-Charge, Police Station: Chhaoni, Bhilai, District: Durg (C.G.) ppellant. •osecutor for ths State/respondent. . Bhadoo and rendra Mishra. JJ. »DGMENT 3rd March, 2007) ijt the judgment of conviction and order Ipassed bythe 4th Additional Sessions |Trial No.495/96, whereby learned |after holding the accused/appellant lce under Sections 302 & 324 of the unjdergo imprisonment for life and to P.T.O. ^' .! XI-HC-78 sn^T^TR-fi'* tPfTSn^TsbMich ^l^^ ^^•^-^f-s-^ tTrq^TT sh^licb 3ST ^lllfll, 9-rfl^'IS, Rl<'ll'My ^-fe..A;< ^ 200 311^1 Math (*P^3^8T) ?T<ITW af?(T 3TI^?T undergo R.l. for one year an|d of payment of fine to furfher respectively. 2. Case of the prosecution is t( Jairam (PW-7) was sitting Chand (PW-8) & uncle Baijr(ath at the shop, at that time, ac( associates was passing thro^jgh Baijnath called them and threatening to commit the which the accused/appellant| commit his murder, and he name of mother & sister. Br^iJ advised not to indulge in suc|i and attacked Baijnath by wh| and chest. Brajesh also sustained injuries on stomac|h. he was taken to Sector-9 Hot 3. Ex.P-13 report of the above' Receiving this report, the Chhaoni registered crime Saijnath was being taken to to the injuries sustained by the hospital and after giv prepared the inquest Ex.P During custody, Brajesh tll^fcl'fl-f H|t«-lT^'te'^'<(a]<<;l< ^aTf^R'sn^r to pay a fine of Rs.1,000/-, in default undergo R.l. for three months, lat on the fateful day at about 10 p.m. |n his grocery shop, his father Gulab (since deceased) were also sitting iused/appellant Brajesh along with his the street while abusing, therefore, |asked Brajesh as to why he gave rfiurder of the friend of Raj Kumar on replied, who is he to save him, he wil! a^used him also in fllthy language in the r^jesh was persuaded and when he was activities, he took knife from the attire |ch Baijnath sustained injuries on back attacked Jairam wlth knife, Jairam i. As Baijnath sustained fatal injuries, ipital. ]incident was lodged by Jairam Gupta. $tation House Officer, Police Station: uihder Section 307 of the i.P.C. When (he hospital, on the way he succumbed |him. Thelnvestigating Officer left for jng notice Ex.P-14 to the Panchas, 't15 on the body of Baijnath Gupta. ga|ve memorandum Ex.P-1 in which he P.T.O. n-' 1 -^ sn^T^irf?^ OTT3fT^Tsh*<|eti •it^AT-^Ur-^dliEU.WtutfJ ® tTTflf^IT ai'Hiqi 3^ '*IWWtl, BTfly'IS, (s|i11«^< . <h..^. ^ 200/ 311^1 4a<* (I^33^8T) S^ciTWBfStra-n^r knie stated that he gave knife t(|> knife and he get the same Ex.P-2 that he gave the Dayal gave memorandum under ground near the drair|. was seized under Ex.P-4. seized under Ex.P-5. Site was prepared. Post-morlem conducted by Dr. D.K. Agrav^al. respiratory faiiure due to inj Ex.P-9. Injuries of Baijnath| report Ex.P-10 was prepaf chemical examination the from where report Ex.P-25 ^ found stained with b!ood. 4. After completion of investiga< accused/appellant, Tarakda^ Indoriya and also against or|e in the Court of Judicial Magf committed the case to the| learned 4 Additional Sessi< transfer for trial. 5. The prosecution in order to persons examined 14 witr persons were recorded und . they denied the material apf °tii<<F<vi41-i 'TTiRffffte^'<R]<iii< ^srf^iTsn^Tr his brother Prakash for keeplng the r^covered. Prakash gave memorandum to Keshav Dayal Indoriya. Keshav :.P-3 that he has concealed the knife At the instance of Keshav the knife plood stained soil and plain soil were [^lan of the place of occurrence Ex.P-6 on the body of Baijnath was I. He opined that cause of death was jyry to lung. He prepared the report were examined by Dr. J, Downa and ted. Seized articles were sent for Forensic Science Laboratory, Sagar, Ivas received and knife Article 'C' was fon, charge sheet was filed against the >, Prakash Meshram, Keshav Dayal Awdhesh Singh in his abscondence istrate, First Class, Durg, who in turn, Sessions Judge, Durg, from where >ns Judge, Durg received the case on witnlesses establish charge against the accused Statements of the accused ir Section 313 of the Cr.P.C. in which against them in the prosecution app|eanng P.T.O. XI-HC-78 311^T?irR-fi+ aW3n^5Tsb*li°h ^;=?^.^^. ^Wfll Sh+lltft 3'er "qi'iiiciti, aTn^Kc, (siciiy^ q^ .^57..H.-..l^^-y.. ^p ^QQ ^ 311^1 W«h(j^^S^f) ??arw: trf?tT an^T th^y Lebmed evictence and stated that impticated in the crime. hearing the argumente of c^unsel and sentenced the accused/^ppellant acquitted accused persons Dayal Indoriya of all the char^es. 6. We have heard Mrs. Indit appellant and Mr. D.K. Prosecutor on behalf of the ^tate/respondent attacHed incisfed 7. Mrs. Indira Tripathi has Baijnath. Moreover, the Gulab Chand (RW-8) & Raj the accused/appellant of which he sustained incisi (PW-5) has stated that he Baijnath on 30th April, 1987' back of the deceased, all th the injury was extending respiratory failure due to inj above ocular and medical of Baijnath was homicidat in itot 8. As far as involvement of th|e concerned, conviction is ba^ed (PW-7) - the injured witne^s <bl'i|fcl<i1-f t|]H<lT^''tec^<.Rl<-AI(. ^;3if;giT3n^r are innocent, they have been falsely Additional Sessions Judge after for respective parties, convicted as aforementioned, however, arakdas, Prakash Meshram & Keshav a Tripathi, iearned counsel for the Gwatre, learned Additional Pubiic disputed the homicidal death of ejyewitnesses namely, Jairam (PW-7), |<umar Gupta (PW-11) have stated that the deceased with knife as a result ;is^d wounds/injuries. Dr. D.K. Agrawal c|onducted post-mortem on the body of there were thrse stab injuries on the th|e injuries were ante-mortem in nature, i|ip to lung and cause of death was inj]ury to lung. Therefore, in view of the ©Videnceit is established that the death hature. accused in the crime in question is primarily on the evidence of Jairam & nephew of the deceased, Gutab P.T.O. '7 ^ ^6 XI-HC-78 an^rqiTR^icb cfsirstn^TgwR; *< IHOI Sh^Trai 3^'qraTcPI', »Tflt)JI<a, (s|dltill,< ^.G....^;.^^....^20of 311^1 Wfh (^cli.^cji^T) ?T(iTW(tf?g'3n^r Chand (PW-8) - brother of| (PW-11) - son ofthe deceas^d hlis thre^tened re|3<y, 9. Jairam (PW-7) has stated in 29-4-1987 he was sitting in Baijnath Gupta, his father S| there, all of a sudden, Brajesfi which his father & uncle abusing. The accused asked Brajesh as to why he of his son Raj Kumar. In murder Baijnath and said, h^ anything". The accused ran | Brajesh was carrying Gupti. | hand and accused Brajesh on the back of his uncle. attacked him as a result stomach and ribs. Hospital and he lodged the df Thereafter 10.The above evidence has 8). He has stated in his sitting along with his brother accused persons gave Kumar, they were advised after Baijnath. Brajesh Intervene, Brajesh attacked 4>i^F<-i41-< tiwdTtrtei^)'<Riwi< ^srf^Han^T the deceased and Raj Kumar Gupta |iis evidence that at about 9-10 p.m. on h|is grocery shop, Gulab Chand Gupta & uncle, respectively, were also sitting and his associates came abusing, on er|quired from them as to why they are to kill them. His uncle Baijnath ^ave threatening to commit the murder f, Brajesh abused and threatened to can do anything but "you cannot do lafter his uncle to attack him. Accused Awdhesh caught hold of his uncle by ^ttacked his undawith Gupti which hit When he fried to intervene, Brajesh which he sustained injuries on his r, his uncle was taken to Sector-9 Ex.P-13 in the Police Station. r^port be^n corroborated by Gulab Chand (PW- evidbnce that at the time of incident he was jBaijnath. Jairam was also there. The thre|atening to commit the murder of Raj b<it they did not undersland and they ran att^cked Baijnath, when Jairam tried to [Jairam also and the accused persons P.T.O. XI-HC-78 3T[^r^TR^i«t> MTSn^TiiHR; *{Wc\{ shHlth 'ssf 'tAww-si •a^\w\s, V\v\wy. ttTO &-.^.4^^/..... ^ 200 f 3llct?l 4a* (^cl(^al^Br) ?T3TW:Hf?(T3n^T ran away. Raj Kumar Guptja has also corroborated the ablove 11 .Learned counsel for the app( it has been mentioned thatl whereas in the evidence, Je| with Gupti. As per recover^ been recovered. ThereforeJ evidence of these witnesses s^llant argued that in the report Ex.P-13 |accused Brajesh attacked with knife, Jejiram has stated that Brajesh attacked at the instance of Keshav, knife has |in view of the above contradiction, the fcannot be betieved. 12.As ttie incident was of 29-4-) accused attacked alt of a able to identify the weapon] name of the weapon as knif^ however, his evidence was years after the incident, th< such a discrapancy may be attached to this contradicdon 13.Learned counsel for the independentwitness has at! the witnesses are clos cannot be believed. 14.Settted !aw on the poirt is cannot be disbelieved mereN the victim. The Court white to scrutihize the evidence \k Court has to have a ciose ^F-ifefrr WRrr'^'te<^t <)SRere ^iSll^tHSnSsT (PW-11), son of deceased Baijnath, evidence. )1987 in between 8 & 10 p.m. and the sijidden, even then, Jairam (PW-7) was lof offence, that is whv he mentioned in the first information report Ex.P-13, tfecorded on 28-8-1997 that is about10 i^refore, there is every likelihood that ocijsur, as such, much importance cannot apc|eitant atso argued that in this case no suriported the case of the prosecution and ily related, therefore, their evidence (hat the evidence of related witnesses on the ground that they are related to lappreciating their evidence is required v^ith care and cireunispection and the sc|rutiny in order to ascertain truthfulness 7 P.T.O. XI-HC-78 sn^TqiTfeHi'- (pff3:n^Tsb*lI°h 's' W§R1TSh*41*b 3^ •SRTTaffi-gi^WTS,'iRtcfl^ 12S&0 3ll^l4^w(^i^aft}?al^ :g¥BTW:Hf%cra:[^T witnesstes oftheir evidence, regarding of these three witnesses (PW-8) & Raj Kumar Gupta| examination of these any cireumstance by which frustworthy. Their evidence) evidence also, because all their evidence that accused.1 Baijnath on his back and as| (PW-5) al! the three stab injt on back of deceased Baijns|l three witnesses cannot be they are closely telated to weapon of offence, has accusedKeshav. i Therefor^ established that accused question. ttfeeir ^rafe^r WRff ^'te^t'lTfSRaR •~ ;;; ^arf^iTsn^T iy'^ • tl^eir witnessing of crime. The evidence n^mely, Jairam (PW-7), Gulab Chand (PW-11) is consistent and in cross- >, defence has not been able to elicit Itheir evidence can be said to be not stands corroborated by ithe medical these three witnesses have stated in (appellant Brajesh attacked deceased 1 per the evidence of Dr. D.K. Agrawa! inj(iries sustained by the deceased were isfth. Therefore, the evidence of these (fisbelieved mereiy on thelground that |the deceased. Moreovef, knife, the belen recovered at the instance of co- (, in view of the above evidence, it is Bijajesh was the author of the crime in belen 15.Learnedcounsel; for thejappellant argued that the incident happened al! of a sudden |n a heat of passion. When Baijnath asked the accused as to why he threatened the friend of Raj Kumar to commit his murder, all df a sudden the accused attacked the deceased without having ar|y intention to cause his death, clunng that period some ejttercation took place and in a heat ot passion the accused attacked|the dece[asad without having anyjintention to cause his deafri. Learn^d counsel placed retiance on the judgments of the Supreme Cfourt in the matters of Surihder Kumar P.T.O. XI-HC-78 sn^rsRTf^iN; (I8]T311^Tsh11<* iSBgE ]4TH^ir •g?)*fra» Tsr^FraT^PT, i!iTl1u'i6, R'~iiyy,< &?.A:^ W=[ 200 311^1 4ach (yfi^sii^ET) ??(TTW:Hf?(T3TI^T vs. Union Territory, Chan<?igarh and Gurnam Singh and an|ather 1995Supp(3)SCC743. 16.0n the other hand, Mr. D.K. trial Court. 17.in order to appreciate the| Tripathi, we have scrutiniz|ed wifnesses and the materiat prosecution and evidence div< that Jairam, the complainan^, uncle Baijnath were sitting p.m., at that time, accused passing through the street asked Brajesh as to why he| Raj Kumar, accused Brajesi^ his uncle atso. Thereafter,| attacked Baijnath with his thrice. Thedeceased back, the description of whicl|i (i) Stab injury 3" below horizontal in (ii) Stab injury 5" befow horizontal; and (iii)Stab injury 1" right tc( cavity deep, injury to| cavitywas full of b!ooc|. knife sustaiihed shape extending =hl<lt<-l<fl-f >1|t1cll ifteit'^+AK ^srf^iTan^T reported in (1989) 2 SCC 217 vs. State of Punjab reported in Gwalre supported the judgment of the argument advanced by Mrs. Indira the evidence of the prosecution available on record. Case of the ^iven by the prosecution witnesses is (, along with his father Gutab Chand & his shop in the night at about 9-10 prajesh along with his associates was ^busing, on which deceased Baijnath ithreatened to kitl the friend of his son started abusing and they threatened they ran after him and the aecused s, which he was carrying, on his back three incised punctured wounds on is as foltows: - tfeft shoutder in the size of 2" x %" x 3" up to thoracic; ! shoulder in the size of 2" x %° x 4" the 10th thoracic vertebra 2" x %" x the lung %" x %" x %" and thoracic P.T.O. (^ P.T.O. f^ :-B XI-HC-78 3T1^T^>TR^ich traT»li^ishiicti ; "•^ ~%~L—- ^•^l;';-; tll^^Tl arqi^i 3ST -<||q|!n<i|, yrfltfiKo, (sjcliy^i q^. .^Xi.. .-.u:. l.V.^^... ^. 200 ( 311^1 4S1C*) (l^cli^sl^iiT) ^aT^KHfgci'sn^T tii'iifn'sfl.f Hwvf\ ff f5^& <Ri+<;K ^i3.rf^iT3rt^r IS.Above facts and evidence sltiow that when the accused persons were passing through the s]treet while abusing, Baijnath asked Brajesh & others as to why 1|hey are abusing and why they have threatened to kitl the friend o|F Raj Kumar. Simply on saying this, accused Brajesh ran after paijnath and stabbed thrice on the backside of Baijnath as a res]ult of which Baijnath's lung was aiso punctured. Moreover Baijnath was without any weapon. Above evidence is suggestive of the |fact that the deceased had not in any manner gave threatening to t|ie accused persons or said anything whereby they were suppose<p to attack Baijnath that too on vital part of the body with a deadly ^veapon like knife repeatedly for three times which resulted into dam|aging of lung of the deceased and he succumbed to the injury sustajned by him before he could reach the hospital. Above act of the |accused suggests that the accused attacked the deceased mercil^ssly in cruel manner with intention to cause death. 19.1n the matter of Thangaiya ^. State of Tamil Nadu reported in 2005 Cri.LJ. 684, the Ap^x Court held that intention of the accused can be ascertained where the assauit took placel used knife that too on bacM by size of weapon used, the place [ facts leading to assault and part of body where the blow was giv^n. In the present case, the accused side near lung and he repeatediy attacked thrice as a result ^>f which lung was punctured which proved fatal. Therefore, int^ntion of the accused to cause the death of Baijnath was writ lars|e. P.T.O. XI-HC-78 sn^TEfiTfq.n?; (]qT3(R?Tait11<!h 3^T •^WIvi'tl, WT^WW, (Slciwy ^.&.;Ad^J.. ^Wd\ sh^l* " 10 / Sll^l ^iaqi (ytljd^.ir) ^T 200 ?^nWfff?cT3I1^T filtlty 20.As far as the judgments citecj is concemed, in Surinder complainant party was given| marriage only and when poss^ by the accused party, the def the appellant and uttered sister. Tempers ran high anc| appeltant picked up the knife| and inflicted a simple injury o( on the side of his brother PWI- received three injuries. Th^ entitled to Exception 4 to Sec|t and the deceased started abiji that too in the presence ofth< pen knife attacked the app^l accused got infuriated and in from the kitchen which was the Court held that Exceptiort applicable in this case. 21.Whereas, in the present ca; accused as to .vhy he threat Kumar and he said nothing first instance, abused and thei was carrying that too three tin hoid ofthe deceased. qOTfeft^ TORTt''?•'te^t-rfSRCT; ^srf^R'STI^T by learned counsel for the appellant Ku^nar's case (supra), the kitchen of the |to the accused party for use during sssion of the kitchen was not returned :eased & PW-2 entered the room of abuses in the presence of latter's on PW-2 taking out a pen knife, the from the kitehen, ran towards PW-2 h his neck. The deceased intervened [•2 and in thecourse of the scuffle he Court held that the appellant was Ition 300 of the I.P.C., because PW-2 |sing the accused in a filthy ianguage ^ir sister and even PW-2 taking out a lant. in these cireumstances, the |a heat of passion picked up the knife l^ing thsre and attacked. Therefore, 4 to section 300 of the i.P.C. was ^e, the deceased simply asked the t^ned to kill the friend of his son Raj rhore than that. The accused, in the rleafter, attacked with a knife which he tintes and co-accused Awdhesh caught P.T.O. 3"^ YT-UC'^S XI-HC-78 sn^rscrf^tNi tCT'3ll<«lsh^l<b 3ST -^WW^, vSr<S\WW, (slcll'yy 11 <41*<WI Sb*1|tft G?...ft.-5^ •••••^r 200 311^1 M^qi (^dt^a)!,igr) ^RrrgT^rfStTa-n^r in 22.As far as the other judgment i|i is concerned, in that case als]o gandasa. The incident took| opening of an outlet. The C|3urt Section 304 (Part I) of the I.Fl.' I.P.C. 23.1n the present case, there w^ quarrel. The deceased simrily gave threatening to the friencf than that and the accused deceased. ^ho 24.Learned counsel forthe appei by the Supreme Court in Mohammad Khursheed rep case also, there was a cli deceased at the time of unable to expiain the origin started. Therefore, the Apex for the benefit of doubt, as he was convided under Sectictn 25.1n the present case, as has l was no quarrel befrween the the deceased simply asked gave threatenihg to his son's he attacked the deceased with •til'iltcll'l-l tllMi'lT^'fet^l'f.Rf+AK ^a.rf^irgn^r the case of Gurnam Singh (supra) the accused attacked by kassi and place in a sudden quarrel over the held that the offence fatls under .C. and not under Section 302 of the s no quarrel what to talk of sudden asked the accused as to why he of his son, there was nothing more was carrying knife attacked the |ant also cited the judgment delivered tDie case of The State of Bihar v. brted in AIR 1971 SC 2268. In this l^sh between the accused and the o^currence and the prosecution was and the manner in which the flght Court held that the accused is entitted si<ch, the benefit was given to him and i304Part-lofthel.P.C. jieen mentioned earlier, in fact, there ^ccused persons and the deceased, }he accused/appellant as to why he Iriend, that infuriated the accused and knife. Self-provocation without any ^^) 1<', P.T.O. ~~z XI-HC-78 3^ •<ll^ld^, ®Tfl<li|S,(s)c)|y^< 12 *<i^i?ii gwT^ TR; 200 3ii^i ww {'ic^yitS[) ai^Twf^IR; gqTa.n^TOTT^ Soma !;i8|l. ^ ' l9M ^'£^ 'BK" •»stSsS& ^^.sffs-^f' ^RiTW^trsn^T kind of instigation by the take the benefit of Exception ^ dec^ased 26.Therefore, the above three ju|dgments the appellant are distinguishaf accused/appellant. 27.For the foregoing reasons, v| appeal, same is liable to be dij Sd/- L.C.BHADOO Judge •iii'iiF^'iflH imRffir'to^l'<Ri-(-<iii. ^iarf^R'an^T does not entitle the accused to to Section 300 ofthe I.P.C. cited by !earned counsel for bie on facts and are of no help to the 'e do not find any substance in this smissed and it is hereby dismissed. -t<L._-