N biateirespt‘ndent. u& LJuJaMEN? (1i 5.U?'.2Gi0) me re..’owmgjuagmenz 0f the Ceun‘ was Gem/e. ed ’y Uniremra mis cnmmai appeai unaer $ectéon emu; of the Code of Criminai Procedure is directed against the iua‘gment of conviction ancj arder c-f sentence dated 1“ December; 2054 passed in Ses$§ans T?ia£ Maia/$04 whereby iearned Additionai $eS$iens Judge, Biiasgur after hoidr‘ng t’ne appeilant guir’tv of causing murder or" Jagbaii Yadavg“ has cenvic’red him under $ection 31‘2“ of the indian Penai Code and e mu?! bUUhE!‘ C'F QHHI-‘HuipNJ-I l-‘T 3!LPS } g K comm: é-iéngbie; ‘ iijmrenmaivii 4i £3 gm; R.?§.C~‘:“é*: 2:” -., Crumma: Apnea; me nu wuua I‘APwFLiANT Jaggannatn :axo ‘ A: ".r: Jm.‘ ”"I Panci ram Suwmshé’! n years v Ea‘aP‘aa ES'T unaspur $f w. ‘3 ‘ Resrmn'dent he} 3*.haz‘é x 3g ' 3 A..ouu. . Swat 5:!aswr V \ ’C'N‘ I i urammaiA ?.resent: $‘nri MK Li‘naiferinn, cnnnsei fnri’ne angeiianf 3r A'shis‘f 5%; 55+ ' ;3:&->eéa‘zéh fer me L3\ A#A4 I?( ~\#AAMg ) U '. for ihree manths. brief, is that the appeiiant and fne (Ease ef the prweeuiion; in and they are neighbours. A year cea$ed are resident$ of Biibre fu \a[ Q 1 f ! u i on b ea th cheek. when attaerya Bat (f‘W-e‘), he aeceased on hrs head and ieh th . a abou§ 99w 0m there was som ch oi‘ner and reached near the h e mother—in-iaw of the deceased, tried to intervene, she was aiso hand and he threatened the other $sauiieci by an [axe oh her right farntty members and ahueea them bv using ft.t.y ianguage. toctgeei by amt Laxmtn Eai {PW-5) 3. Repcrt of the incident was vide txvo ivierg intimation of EXP-7 was aiso registered on her tnfermatton. After preparing inquest ‘over the person of the deceasea‘, is dead body was sent tor autopsy to Cliii‘viS, Btiaspur vide Ex.P-8, where, Dr. A“ Rat PW-t conducted post mortem and gave his report \ride EXP-i. On the basis ofmemorandum of EXP-f7 ot the appeiiant, weapon of ottenoe Le. bamboo stick and axe were taken into Bat {WV-£5) atso sustained injury in pnccession vide EXP-5. Biiasiya e heated dispute and arguments mlee 0f the-‘deeeaeed. At that ttme, vmv entenced ‘nirn to undergo iite imprisonment anti to pay a tine of .t ,QQU/-, in detauit or’ oayment of tine to further undergo aoditionai ore the date of incident, there was some quarrei between them and account otthat, there was enmity between them. Uh 2t .t‘JiZitiUti at etween the two in reiatton to oid uuarrei. Thev earted duarreiiing with V e aopeiiant went to his house, brought a hamooo‘ stick and assauited w . 1 i g 1.: “ t ‘ T h ‘ 5. Prosecution in order to estabiisn the charges against the appeiiant examined 9 witnesses in aii. “thereafter, statement of the accused was recorded under Section 31-3 of UF’C in which, he denied the circumstances appearing against him in the prosecution case and pieaded innocence and ’aise impiication. However, he did not examine J any WlEnBSS m nl$ fjefence. rf. the same incident. $he was referred for medicai examination vide bx.P-9 ana‘ ‘ner medic-o iegai injury report is ExF-QIA. The investigating Ufmer has aieo pregarec‘ site pien vide EXP-12. The map prepared by i-reiKm Fatwar. is EXP-14 Articiee seized during investigation were eeni i. ior medicai examination to? Foreneic iscience Laneratory, Raipur i i i vide Eve-4.2 However, report of the Forensic iioience Laboratory is , i‘ . not avaiiabie on renoro‘ 4. t Arter oompieting investigation, charge sheet was fiieci in t‘ne Court of Chiet Judiciai Magistrate, Eiiasour, who. in turn, committed t'ne case to the Court of Sessions Judge. Biiaspur and the same was received on transfer by teamed Additionai $essions Juooe. Learned triai Court framed charges under Section 3G2 of IPC: against the appeiiant tor causing ‘nomicio‘ai death ot‘ Jagbaii Yaoav, under Section . OH 24 oi‘ IPC- i-r causing voiuntary hurt to Biiasiya Bai and under $ection we Part~ii of IPC tor criminai intimidation to Biiasiya Bat. 6. 3 The ma: Court, enter hearing iearned counsei for the respective parties, convicted and sentenced the appeiiant under Section 302 ct the II-‘L as descnbed in ham-i nf We judgmeni The “a! Lenrt aim cow/Iczea the annenaht under Sechons ‘24 and auc van—ii or the We 7'. , Homicidal death of Janbaii ‘Y’adav i= nnt in dispuie. Even Otherwise It Ie ewdem Tmm tne emaencn or eye wwn-sses Layr‘mn Ba! (HM-bi ciiasiya uai gHVv-c), Unarmendra tPW—‘t’; and Jitene‘ra i u“ (WV 1U) Who ciaimen to have seen the deceased being assawted by the appeiiant, and aiso from the evidence of Dr. AP Rat (PW-t}, who has conducted the ,bost mortem over the person of the deceased and gave his report vide ExP-t, in which he found the tiniowing inguries and optnedthat death was due to shock as a resuit of head ingury and hemorrhage and it was homicide! in nature, homicidai death ot Jag‘oaii ‘t‘adav is estabiished, Externai iniurtes A. CI e iacerated wodnd on rinh“ che k measuring 2 cm x M so t. deep a: d my .1 c :2 tots resent over at. r :ne racerared wouno on ton n the .iii slightly on the right at middle tsp meacunr‘g s a.” \< 2 on; b3 .e ae n Bicw sic- oresent naematoma around it. . internai iniunes: 0n opening the scaip: he found ciotted dry biood under the iniury. Right parietai bone was found broken and pierced inside. Skuii cavity was “iii of oinod and laceration in Wain Tissue pr ht i -ue \z~\ T 3.‘ Shri N. K chatterjee, ieamed counsei for fne appeiiant argued m? conviciicn 0f the appeliant is based on the evidence of Laxmin Bai 13W?» Bnasiya Ba! {PW-$1, Dharmendra (PW-7) and Jiiendra (WW-1L1), wno nave ween exammea Dy me prosecution as eyewitnesses. Aii these witneseee have degosed betere i’ne Sour: that I e aggpeiiant hae assauited thedeceased with an axe over his head ane k cheeK. However, L from peruse! of the y ‘ evre‘ence r ‘ ot I Dr. e AP. .7 r ea Kai . (PW—I) V'vho has conducted post mortem, it wouio‘ be evident that the deceased did net sustain any incised wound over his body and ‘ne has sustained oniy tGvo iaeerated wounds, one over the right cheek and the V other over the head. The iaoerateci wounds found by the doctor couid not have been caused by axe and thus, the aiiegeci eyewitnesses are not the witnesses of truth and the triai Court was not gustitied in oonvicting the eopeiiant on the basis of evidence of aii these witnesses as their version is not reiie‘oie. 9. On the other hand, S'hri Ashish Shukia, ieernee‘ Govt. Advocate for the $tate supporting the imougned iudgmeht submits that from the F.i.R. as weii es the evidence ot’ Laxrnin Bat (Pijij-fi), it is evident that “he aooeiiant came with axe and iat‘ni and opened asseuit on tne deceased, as a resuit, the deceased sustained injury on his temporai region and died atter he was taken inside the house. 1C1. Reiiance is placed on the iudgment of the $upreme Court in the matter or“ State of iviadhga Pradesh vs. Etharkoie aiias Giotlind $ingn and others reported in auue LndLJ. we i v 1 ‘ ‘ € > § ¢ v § I l y i‘ef -rr 11. We have heard iearned counsei for the parties, perusea‘ the regard as a9so he impugned judgment. ’12 “i“‘ne ma! (Liou'ft has convicted the appeiiant reiying upon the ev dense 0f the witnesses hameiy Laxmih Eai {PW-5), wife of the deceased, Biiaeiya 5a (PW-6), mother-ih-iaw cf the e‘eceased, Uharmencira Yadav and Jitehdra ‘v‘adev (P.W—8}’and- {i—i.v‘\.i-'ilil) reén‘eaiveiv, who are sons of ihe deceaseei; ireatihg them m he the eve-witnesses. Laxmin Bei (PW—5) has iodged I-ir? vide Evwe This ‘ r i .. ‘ Witness, aizer deposihg the heeKgreund 0f the incident, has stated that the appetiaht anti the aeceased were quarreitihg With each other. She thed t0 peeity them: Hewever, the ahpetiant expressmg his reeoive that he shalt murder Jag‘haii Yadev, went to .is .euse and returned wrth axe and tathi and assautted him on the back of his head with an axe. He aiso assauited on the temporai region by axe, as a resuit, bieod started oozing and her husband teii oh the ground. Thereafter, he t.ed from there. 3h- aiso deposed that she went to the poiioe station to report the matter ieavihg her mother Biiasiya Etai {PW-6), and her son Dnarmendra t paragrahh-5 of her deposition, she stated that the appeiiant had some oid dearret with her husoand and on account of that grudge, he murdered her husband. in the cross-examination, she has reiterated her version in the examination-theohier’ and aiso deposed that the incident occurred just at a distance of "i /2 meter from her house. ‘i i V-i’) with the dead body tnside the house. in ‘I “i I\ '13 Eiaséya Ba! (PW-6) also su$tained injury in the same inciqen‘i. i , % € H9.wever, she oniy deposed that the quarret teok piace in her presence beaween her sch-in-taw and the appeiiant, whereupom the apgaeiiant ass§auited Jagbat! Yadav by axe over his head on the temporai region, a as :a resuit, he teii down and eied atter some time. The incident was i V , wrtrpessea oy Laxmln bar {PW-o) aha Dnarmenar {PW-r). m the cross- i examination, she has pointed out the omission regarding assauit by axe in her dairy statement of Ex.D'—'2. Ia ‘ A Eharmeno’ra " ‘r‘adav (PW-1} -—v nas x also oeposeo . i m . srmiiar . .; tines .. ' ano} stated that the appeiiant has assaUiteo‘his father with an axe on his head at temporai region ano back of the head. However, the assauit by axe is not mentioned in his dairy statement of Ex.D--3. Jitendra Yadav (PW-1G) 'is a t4 years oid son of the deceased. His evidence is aiso simiiar to the other eyewitnesses that the apgoeiiant assauited‘ his tather with an axe. The oniy argument advanced by iearned counsei tor the appeiiant is that the version ot‘ aii these witnesses cannot ‘oe reiied upon as the aiiegation regarding assauit by axe on the person ot‘ the ' deoeased is taisitieci from the post mortem report as no injury was Lund on his person caused by hard and sharp edged weapon i.e. axe. ’16. ’3) ocuiar evidence given by the eyewitnesses should be discarded oniy on the oround that correspondingginiuries caused by any hard and sharp The oniy question for our consideration ts —, whether the orai w 1 % i ? ‘ . ‘ ‘ edged weapon were not feund on the person of the deceased as per I the opinion of the doctor, who hae described that ai‘! the injuries Were oatised by hard and biunt object? 2? in the matter of Dhamoie aiias Got/ind singh tsuora}, the ubreme Court white considering the contradiction between the ocuiar no medicat evidence tor the nurgooses of aopreciation of eVicienoe C $t‘ i i i i it noer-Seottohs e é do ct Evidence Act, observed thus:- Ir wour‘g be erroneous to accord undue primacy w in m6 L if} In 15§ih$daa31 AVA 5 £H$W9m> n n. m 51" ' mEuiCa! .J: A -’v‘v’iff3€$$§8 i go exciude the eye-witnesses account wnicn had to be tested indepen Lofty aha not treated es the tvan'ebie’ keeping the medicei ewdenoe as the Ksorteient. A t ! if ts ' mte ‘ '“ the; é where the 4 eyewi'meteeee A ." 1-. n account is found credibie and trustwoehy, medicei opinion oeihat‘tg to eitemetive pesismrirtiee is not accepted as conciusive. Eye—witnesses account wouid reciutre e ceret‘u! indepertdent assessment and evaiuetion for their credibiiity which shouid not be e versei'y erqudgee Po’erg any other evidence, inciua’ing medicai ewo‘ence, es the sole ‘touchstone . tor . the i. test . A, or . sec. a. t8. in the instant case, we have aireao’y observed that the aopeiiant went to his house and came back with an axe and bamboo stick and ooened assauit on the deceased. in the promotiy iooged i-ih: aiso, the above tact has been mentioned by the complainant Laxmin Ba! {WW—5). indisoutahiy: the incident occurred in ii'ont oi the house of the deceased and thus; presence ot the eyewitnesses at the time ot incident is very naturai. With the overaii appreciation of the evidence avaiiabie oh record, we are ot' the opinion that the triai Court was whoiiy justified in reiying upon the evidence oi eye witnesses. We "i b a oredihiiitv. K mre oi ihe firm View ma: the ve.$!on of ihe eye\1v!tnesse$ came: be alwaaed oniy on ihe ireunu‘ that :ne cerrespondmg injuries cauSed by the weapon oi owence axe were net feund on the persan a?” t‘ne 21V (Dceased. 1'9. For the aforesaid reasons, we find no iiiegaiity or infirmity in the impugned iudgment, whereby the iriai Couri has convicted the aooeiiant uno‘er Section 302 of Ii-IL ior‘oausmo homroioai deem to "e o Jag '1 .40 Accoroiingiy, ihe aopeai being oevmo of meni deserves to be (3t i‘INa an {gnaw VI“ «i aHG l$ aereQy Gi§mlS$ed. ’ Q\\—ko\ #Sdl- sw— DHJRENDRA MISHRAI ; Judge _ R.N.Chandrakar Judge