XI-HC-78 3TT^T^T^J<=h ^lT^n^Tsb^ich ^ ^ HIHdl »»+11<h TocT ^l^M^, ^tfl<H^<o, [sKrtwy ..c^^..^...A.ci.A ^T 2003 3lt^l 451 c^ (^ql^q^l) ^RfTW^f^TW^T APPELLANT: RESPONDENT: Present: Shri Awadh Tripafhi, Advocati Shri D.K. Gwalre, Deputy GOV Division Bench: - Hon^ble Shtri L.C. Bhadoo 85 Hoa'ble Shi ORAL (DeUvere< L.C. Bhadoo, J. Heard on M.(Cr.)P. condonation ofdelay in j51mg 1 As per ftie office report, this appeal, It has been acciised was ia czistody, fhei conld not file fhe appeal. cbi^I<n41Ti ^i^^T^'te^^^K ^)3{f^T3Ti^T Anirit Lohar, son of Chetram Lohar, aged about 23 years, Occupation-Agriculturist, Resident of Mehvatikra, PoUce Station Raigarh, District: Raigarh (C.G.) Versus State of Chhattisgarh, Through Distdct Magistrate, District: Raigarh (C.G.) for fhe appellant. L. Advocate for fhe State/respondent. i Dhiresidra Mishra, JJ. JUDGMBNT 1 on 15-3-2007) No.311/2007, appUcation fais appeal. for fhere is delay of 1734 days ia fiUng nier^tioned in. fhe appUcation that as the jefore, he called his inofher, but she P.T.O. XI-HC-78 3^ ^I^Krl^, ^T{1<M^<o, Ridl^^< *11+1<<11 Sh+lich ^200 S) CT^T^T^Jch cT8TT3TI^T^RT^ STf^TtfiTO1 (^qt^q^T) ?^fT^T^f?cT3TT^T cbi^T^i41Ti ^ii^oiT ^* CsLc;1 <Ri<-^i< ^3Tf^T3^T Consideriag fhe groun<{ls taken ia the application, facts of the case aad fhe fact that fjie accused is sentenced to undergo iniprisonnient for life, we are of fhe considered opuiion that it is a fit case in which delay in filpng the appeal should be condoned. Accorduigly, fhe application ^s allowed. Delay ia flliag the appetl is condoned. Also heard on tlie quest|ion of admiission. The appeal is admitted for consideration. Wifh the consent ofleaj^aed coiinsel for fhe parties, appeal is heard finatly. This appeal is directe^ Additional Sessions Judge, leamed Additional Sessionsl appeUant guilty for com.Biissicj I.P.C. for coniinittlag niurdt agaiast fhe jiidginent of conviction aad order of sentence date(|. 5th May 1998 passed by fhe 2nd |?aigarh in S.T. No. 179/97 whercby Jndge after holdiag the accused/ ^n ofoffence under Section 302 offhe [r of his fafher nainely, Chaitrani, sentenced hun to zindergo ira]|)risoninent for tife. Case of fhe prosecution), ui brief, is fhat on 6-5-97 at about 9 p.in. ia fhe night deceased C|h.aitrain, father offhe acciised, caxae ia drunken condition, aflte^ abnsing tiie accused, he rushed towards hiin to beat him. Tl^e accused picked up a crowbar aad attacked his fafher wifh cro^bar, as a result of which ChaitraBi succuinbed to fhe iajuries. T] Kolwar under F.I.R. Ex.-P/7. Raigarh after registeriiig fhe |ie matter was reported by Bhagwaao, Station House Officer, PoUce Station base imder Section 302 of the I.P.C. P.T.O. XI-HC-78 3TT^T^T^icb cT§TT3TR?T^RT^ 3^- ^|<q|<nq^ ^T{I^JI(o, [s«ni<rl^< +11*1011 »»+1ich ^ 200 3^i^l^5|ct) (^i^^T) ^cTTW^rf^TW^T left for scene of occurrence, to the Paachas, preparcd i deceased. WhUe in the nienioran.diiin Ex. -P/ 1, in. crowbar, weapon of ofFence, staiaed soil was taken iato under Ex.-P/S. The body of xaortera exainiaation to fhe P/ 10-A wherc Dr. Ashok fhe body of the deceased, and opined fhat inode of nature. apter giviag notice Ex.-P/S & Ex-P/5-A u|iquest Ex.-P/6 on fhe body of fhe [poUce custody, fhe acciised gave F|zirsuance of fhat he got recovered JLinder Ex.-P/2. Plaia soil aiid blood ^ssession froin fhe place ofoccurrence 4eceased Chaitrani was sent for post- K.G. Hospital, Raigarh under Ex.- Jaia condiicted post-inortein on p^pared postoDaiorteni report Ex.-P/lO is shock. Deafh is homicidal m Kntaar dedith After coBipletion of the| agaiast tlie accused in the Raigarh who ia tum coinni4 Raigarh frora where leamed case on traasfer for trial. ord^r The prosecution ia accused exainined 9 recorded under Section 313 niaterial appearing against fhat he is ianocent aad has b witnies^es hifai Learaed Additional Se counsel for fhe respective convicted and sentenced fhe cbi^^41-i ^i^^T^fte^^^K ^3^m'3TT^T 1 investigation, charge sheet was filed |Court of Chief Judicial Magistrate, |ted fhe case to the Sessions Jzidge Ajdditional Sessions Jiidge received fhe to estabUsh fhe charge agamst ftie Stateoient of fhe accused was of the Cr.P.C. ia which he denied ia the prosecution evidence, stated ;en falsely unpUcated in fhe crraie. ^sions Judge after hearing leamed ^arties aad perusal of fhe record, ^cciised as aforenientioned. P.T.O. XI-HC-78 ^S[ ^l^lcnq, ^TflH<ll(o, RlcrlK-iy "^y ^IUdl sb^lcb ^ 200 ^TT^T^rR^Jch cTSTTW^T$b^l<t) ^T^^cb ^<frw^rf?cT^n^T We have heard learaed At the ozitset leamed c<|)unsel for fhe accused/appeUaiit has not disputed iavolveinent of conszuniag Uquor he nsed to accused and rashed towar^ accused picked iip crowbar crowbar. As per postm.ortexn| uijuries were ia fhe nature iajiiry which caa be said to cbl^f<"l41T1 ^l^<"lT^:tel:^'<(^^K ^3Tf^R'W^T ^ounsel for fhe pardes. |lie acczised ia assaultmg his fafh.er, as a result of which Chaitorar(i succiinibed to the iajziries iaflicted by fhe accused. His argunie^it is that fhe deceased was fafher of fhe accused, he was ia th|e habit of consuinuig Uqzior, after ^eat the accused. On fhe fateful day, the deceased carae ia a dru|aiken condition, started abzisuig the |s him to beat him., fhereforc, the fcad attacked fhe deceased with said report aad inedical evidence, all the |of contLisions. There was no fatal |)e dangerozis to the Ufe. As per the doctor's evidence, the dec^ased died on account of shock. Therefore, fhere was no iaten| his fafher, as siich offence \ beyond Section 304 Part-II of| On the other haad, learjaed counsel for the State/respondent supported titie judgnient of fh^ Haviag heard learaed | perused evidence avaUable on| the accused raade extara jud] crune before PW-1 Puniraai,| Rathiya and PW-5 Haasraia. extra judicial confession ma^ lion of fhe acczised to cazise deafh of igaiast the accused does not travel ttie I.P.C. tdal Court. counsel for fhe parties, we have record. As per fhe prosecution case, lcial confession after commission of PW-2 Bhagwaao, PW-4 Harimangal Penisal of their evidence shows fhat [e by the accused was voliintary aiid P.T.O. XI-HC-78 3^T ^l^lcn^, ^Tfl<-IJI<o, fsKrll^iy ?< +ll^cfll Sh^ich ^ 200 3^1^1 ^l^ch (<i,c<i^<s<^) 3n^r^)T^i4) cTSTT3TR?Tsb^l<=t) ^c<TT^K^f?<T^n^T true. Moreover, crowbar, we^ iastaace of fhe accused, as mfirmity m fhe jzidgment of accnsed was aufhor of fhe crijaie in question. ipon ofofifence, was recovered at the mch we do not find any illegality or the trial Court to the extent fhat the As far as arguinent a< appeUaat is concemed, ar^uraent of leamed counsel for fhe appellaat has force for the r^ason that case of fhe prosecution is fhat fhe deceased was ia fhe used to abuse aiid beat thd deceased caine ia a dniny accused to beat hiai, theref<t crowbar. PW-6 Dr, Ashol postaiortem, has noticed follo^ (1) (2) (3) (4) (5) Contusion on left si( arch ia fhe size of 1. On openiag skuU there present in the braiii. He ha^ canse of deafti was shock on| his head and also on accounl stated that injtiry was sufficie^ cbl^fd^t^ ^l^^T^te^i^l^K ^3Tf^TW^T vaaced by learaed counsel for fhe [habit of consuming Uqiior, thereafter accused. On the fateful day, fhe m coudition, nished towards the >re, the acczised attacked hun with Kuniar Jam, who conducted pyuig uyunes:- Contusion over rig4t cheek near eye above fhe level of zygoraatic arch ia f4e size of2 CDI x 1 cni, Bluish discolouratio^i of right upper eyeUd, Conttision on left sifte of ueck ia the size of 7 cin x 3 cni aad 1 cia in widtht, Lobule ofleft earwa^ tom, le of face above the level of zygoniatic ^ cni x 1 cni. t¥asclotted blood. Clotted blood was further stated that iti his opiaion accoiint of sudden attack m.ade on of heart failzire. The doctor has not ^it iii fhe ordiaaiy course of nature to P.T.O. XI-HC-78 ^TT^T^r^Jcb cTSTT<3Ti^T5h^i<=b t;'^. Barve ^") ^^^TRT^T, ^Tn^ll(o, fa<rll<rl^< +11*1011 ?b+1ich ^ 200 3ll^l ^flch (*ic<^st^;T) ^RTT^FC^feT^n^T cazise death. Therewasno neck or head. The background ia whjich niakes it clear fhat fhe acciis^d his father. However, froin f attacked his father with. crowt safely be iaferred that fhe) attackiag wifh. crowbar he in^ Therefore, knowledge caa be th-e above facts, ofFence agaijn.st Sectiou 304 Part-II of fhe I.Pj under Section 302 of the I.H under fhaf sectlon cannot be In fhe result, fhe app^ sentence ioiposed upon fhe 4 fi^icture or damage to fhe vital orgaii of Section 304 Part-II ofthe I.P.^ therefore, du'ected fhat fhe forthwith, ifnot reqziired in. aijiy other case. Conseqiiently, M.(Cr.)P. Sd/- L.C. Bhadoo Judge chi^f^i<41vi ^i^^T^fte^^^K ^•3:rf^T3n^T the accused attacked his fafher kd had no mtention to cause deafh of lie inaaner ia which fhe accused bar ftiat too on neck an.d face, it can accused had knowledge that by ly Ukely to caiise deafh ofhis father. ittributed to the accused. In view of the accused is niade oiit iinder C., Hence conviction of fhe accused ,C. and sentence miposed upon him sustaiaed. al partly siicceeds. Conviction and .ccused/appeUaat iinder Section 302 ofthe I.P..G. are set aside. Iijistead fhercof, he is convicted under ^. and sentenced to zuidergo R.I. for 8 years. The acciised/appeUaj|it is stated to be iii detention siace 7-5-97 fhere.by he has cora^leted inore fhan. 9 years sentence, therefore, he has already serv^d sentence iiaposed zipon hiai. It is, accused/appeUaiit be set at Uberty No.312/2007 staads disposed of. Sd/- Dhirendra Mishra Judge P.T.O.