isslB^^^^^g3iBf^~ ><nu att,flreB»ah i... sW^siaisisaaKUwi^kS!^. ,p,,s,; (Cri®Esd5 IN THE HIGH COURT QE' HADH''& PRABESH &.T JABALPUR Criiainal Appeal Ne. ^ S ° or 1993. ' j'V)'^^' APPgM.AHT s ,Ca Oiapralcash alias Qnishankar alias Guddu son ef Shri MabeshraHi CliaHbaia^ aged about 19 years,^resideBt of Mohapali, Pelice Station Samnar, Bistt. Raigarh. VERSUS RBSPQKDEHT The State af Madhya Pradesh throagh the Station Officer, Pelice Station Tainaar, Bistt. Raigarh. APPEMi TOHBER SECTIGN_374,,CODB OF C&IMXHAI, BIOCED®E 1873. .^.J^.^^—- RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.07 12:29:05 +0530 XI-HC-78 vd'c.q '-tii<4irt<j, y-al-<-i<id, Rril'i-iy'! .(^.-.A:.S..^.^./.^.5 sn^?T qgcp (^crf^g) an^STOTf^irfcp aa!T3Il^?TSpqra5 g^TTW'ilRdaiI^ST <ni«[n<Tli*)!*iwl'Tt'feKS •<Fji'(-d|'( ^Stf^TSIRST DMSION BENCH: - . V.K. SHRIVASTA Mr. Parag Kotecha, counse) Mr. U.N.S. Deo, Public Pros Oral judgment. This appeat is directed 1993, passed by the 2nd Addition^l Trial No.122/1992 whereby iea^ holding the accused/appellant gui Section 302 ofthe I.P.C. sentence|J The prosecution case, in V^ 1992 complainartt Mahesh Ram demolishing the wail of their old Ram namely, Omprakash (acjc separately, came and said that[ therefore, they shouid not demoli^ to which partition he is talking for.| will take the share of bullocks. Th|e that he will give him after his Omprakash became furious, brot going to give share to him he wii! Ram went to cal! Panch Patei andi When Mahesh Ram covered soml saying that she will not suiviv^. namely, Patel Amar Singh, Para^ forthe appellant. ecutor for the Stats/respondent. a^ainst the judgment dated 21st March, Sessions Judge, Raigarh, in Sessions fied Additional Sessions Judge after |ty for the commission of offence under him to undergo imprisonment for !ife. rief, isthat in the eariy morning of 1-6- lalong with his wife Mathura Bai were house, at that time, the son of Mahesh ;used/appeliant), who was residins so far partition .has not taken place jh the wall. Mahesh Ram repiied that as Then accused Omprakash said that he |en complainant Mahesh Ram again said marriage. On hearing this, accused axe and said that if they are not |kiii them. On this, compiainant Mahesh Mathura Bai stayed back on the place. distance, he heard the voice of his wife Mahesh Ram caiied village Panch >ram, Bhajairam, Guru Prasad ete. and XI-HC-78 rs< dTyq-qiqic')^, yTn'(-l<l(»,Rini'Hy< .a>....A....?>..5^, sn^si ira?p (^ciijci^) an^OTwR'ii* WITSn^STiPWF g^iTSR^Tfiasn^sT <bw[ri41-1 ^ltlriT^'fsxSi '!lu]'«i'< ^Sif^tTSn^ST saw that the blood was oozing ou't from the shoulders of his wife and she Mahesh Ram lodged the Station House Officer, Poiice Statibn: ieft for the scene of occurrence. S.H.O. prepared the Panchanarrla Under Ex.P-3, he took into posss broken pieces of bangles of Mathjjra stained wiih blood from the piac^ took into possession the blood Mathura Bai. While in poiice information Ex.P-5 under Section the weapon of offence where it| information, the accused/appe!lar|t axe under Ex.P-6. The site plan of offence, axe, was sent for oj>i injuries which were found on the| the said weapon. The doctor Mathura Bai was sent for pos) conducted post-mortem on She !|>i post-mortemreportEx.P-12. Th4 syncope on account of excessi\ nature of death was homicidal. were fatal and anti-mortem in natttre. After compietion of investi^atK accused/appei'ant in the Court of committed the case to the Sessidns I'eport at Police Station: Tamnar. The i: Tamnar registered F.i.R. Ex.P-1 and After giving notice to the Panchas, the of the body of Mathura Bai Ex.P-2. ^ssion the biood stained soil, plain soil, Bai and two pieces of bamboo ciubs of occurrence. Under Ex.P-4, he also Istained sari and blouse of deceased custody, the accused/appeliant gave |27 of the Indian Evidence Act regarding was kept, In pursuance to the said |ot recovered the weapon of offence, EX.P-8 was also prepared. The weapon j>inion of the doctor as to whether the |body of Mathura Bai can be caused by ^ve his opinion Ex.P-13. The body of mortem. Dr. A.G. Sheikh (PW-10) )ody of Mathura Bai and prepared the doctor opined that cause of death was bleeding and haemorrhage, and the |ln the opinion of doctor, ali the injuries Me investidation, charge sheet was filed against the pudicial Magistrate, Raigarh, who in turn, Judge, Raigarh for triai, from where, XI-HC-78 ^ESS '^iAjin'q, u>-al'<-i<is, firti'('iy'< ,.&?.•..f.-.^^/l-s.. 3TI^?T q^P(t^ij6|<d) an^ST'RTR-iicb aaiisn^STspwp ?^H8R^rii?T3n^?T iHd ieamed 2"" Additlonal Sessions transfer. The prosecution in order tc^ |Judge, Raigarh, received the case on appellant examined as many as OtlS was recorded under Section 3131 prosecution evidence appearing is innocent, as he was not residint falsely implicated in the crime. Learned Additional Sessi< the Additional Public Prosecutor and sentenced the accused/appf eariier part ofthis judgment. We have heard Mr. Parae Mr. U.N.S. Deo, Pubiic Prosecutoit As far as the question of concerned as homicidal; same hs|s for the appellant. Apart from th^ (PW-1) & Dr. A.G. Sheikh (FW- proved that the nature of death Mr. Kotecha, iearned coun^ whole case rests on the evidenc^ had not witnessed th®crime. Th^ at the scene of occurrenee and tht the accused cannot be convicted.l judgment of the Apex CQurt Satham v. State of Madhya witnesses namely, Amilai & Kisha^i prove the offence agalnst the accused/ 112 witnesses. Statement of the accused of the Cr.P.C. in which he denied ihe jgainst him and in the iast stated that he V with his father, therefore, he has been cpl't|[<'>^-rf^!<1rtT^'t^£t'({^'(•^R ^>3rf^*I3I1^9T Judge after hearing the arguments of ind counsel for the accused, convicteci fcllant in the manner mentioned In the Kotecha, counsel for the appellant and on behalf of the State/respondent. nature of death of Mathura Bai bein< s not been disputed by learned counsel from the evidence of Mahesh Ram and the post-mortem report, it stands Bai was homicidai. >el for the accused/appellant argued that i of witness Mahesh Ram (PW-1), who crime was committed when he was not irefore, merely on the basis of suspicion Learned counsel placed reliance on the IR 2002 SC 3206 (Ashish Pradesh). He also argued that the !al who were said to be on the scene of tUie nsls thbt -1(3) ofNathura *11*101 ^TTq? MT.Tf-qi<(lrto^ y-at'i-l'Ko, Rril'(-iy'< ...^...A.:.S-5^.S. W^^00^ an^sT^Tftgra? gsn3n^?r**<i<h 3TI^?Ttraq?(ljclij<sl5) s^ar8R^fl?r an^?i ^ occurrence, are not produ' prosecution has faiied to provi beyond reasonable doubt. On ihe other hand, IV supported the judgment of evidence it is established th< commtssion of crime and ther accused in the crime in quesfl eyidence of IVIahesh Ram. guilty. Having heard tearned evidence, other materiai exh| Mahesh Ram (PW-1) has stat about 6-7 a.m. he along with 1"| house. Accused Omprakash of the house and said why yoi not been given the share of 4 demotish the walt. Then Mah^ been married, he wi!l be ^i Omprakash replied that if thej wil! be bloodshed. The accji Mahesh Ram called Amilal apprised them about the inc[ wife Mathura Bai (since dec^i On this Mathura Bai said, "yof the village to call Sarpanch Af Parasram Patel and informec) <ed by the prosecution, therefore, the the offence against the accused/appellant '. U.N.S. Deo, iearned Pubiic Prosecutor the tria! Court and argued that from the 3|t the conduct of the accused prior to the iafter was such that the involvement of the ion is established also on the basis of the llence, the accused has rightly been held tiiifcxili <ii<inr^r'ls>d <([ul<^l< ^srt^sn^ST |ounsel for the parties, we have perused the fbits and the judgment of the trial Court. id in his evidence that on the fatefui day at is wife were demolishing the wail of their old who was residing in the oid house came out people are demolishing the wall, as he has 'ullocks, therefore, he wil! not allow them fo ish Ram said that so far Omprakash has not iven share after his marriage. On this, are not going to give his share, then there used came with an axe and at that time, Kishanlal who were working nearby, and dent. Thereafter, Mahesh Ram asked his ased) !et us go, we do not want to quarrel. go and call Panchas". Mahesh Ram left for larsai, Ayodhya Prasad, Bhajoram, Kirtan & them. On this, they said, "you go back, we SP/FS/2005-20,000 XI-HC-78 \dx.T|.~t||<4lrt^, t<>-<Tl'<-l<ld, Rril'i-iy'i ..<S?.:.A..s^.^.. 3II^?T^V (ijcifjd^) an^srwi R^i'B nqTan^STri'ii'h OTarsR^f^r SII^ST —CT- <ci<<[<'xi1i liinT^'fe^l ifuK-ci't ^ari^Tsn^sT oit rep{>rt eviddnce are coming". When he returned, the door. He also saw the injuries his wife, and blood was oozing him to go near his wife and he again went to the Panchas. Thet came and advised him to lodgej Police Station and iodged the Perusal of the above shows that same is in conformiti witness. As per the evidence, started demolishing the wall of th^ house and asked fhem not to advised his son that he will be gi\| became furious and said that ifthl! be bloodshed and he came with ^n iVlahesh Ram went to cal! the to the place of occurrence, MathL|i and she received as many as fo(i body, which is evident from the two incised wounds on the right| the right ieg and one incised woiji As per the doctor's evidence, died due to haemorrhage and bleeding. The axe was recover^d information Ex.P-5 given by the Evidence Act. The doctor has were found on the body of Mathi(ira he saw that the accused was sittina near on the ieft ieg, left shoulder and neck of ofthe body. The accused did not aiiow ritshed towards him with the axe, then he •I'eafter, Panch Lalram, Bodhan & Bodha |the report, upon which he went to the :Ex.P-1. ofthis witness (PW-1 Mahesh Ram) with the F.1.R. (Ex.P-1) lodged by this 1 when this witness. along with his wife iir old house, the accused came from the demolish the wail. When Mahes.h Ram fen his share after marriage, the accused i|ey wiil not give him share, then there wii! axe. On this, on the advise of his wife, Sefore Mahesh Ram could return |ra Bai was already attacked with the axe ir serious injuries on the vitai part of her j^ost-mortem report Ex.P-12. There were Iside of the neck, one incised wound on ind was also there above the right knee. injuries were fatal and Mathura Bai which was on account of excessive at the instance ofthe accused on the laccused under Section 27 of the Indian ined in Ex.P-13 that the injuries, which Bai, can be caused by the axe which an Paitichas. itost- thlese stlock <ap XI-HC-78 v3^c[--qraicW.®Tf ,fe?...A.:..^;^./. ^. 3IT^9TWR'<i<l» gqTan^STipqra; gWTSR^f^f3n^?T iH rie accus^d Ae envis49®s subi^ct was recovered at the instance ofl the evidence of Mahesh Ram ih admissible. Apart from that, when demolishing the wail, the came with an axe upon which Panchas. Mahesh Ram went to 1 Ram returned, the accused was did nof ailow Mahesh Ram to g< towards Mahesh Ram with the axb. admissible and relevant as per Evidence Act, 1872, which offence against whom is the conduct jnfiuences or is influenc^d and whether it was previous or Therefore, the conduct of took place was that.he threaten^d father, that if they wil! not give hij immediateiy broughtthe axe. Th|e Mathura Bai as per the doctor's elf offence, axe recovered at the instfen accused after commission of the to go near the body of Mathura B.| with axe, which shows that the accused/appeliant. The 313 ofthe Cr.P.C. has simply Mbthura slttin( accusedf^ppel deriied <frl<l|Fri'ii1-1<4!t|riT^r"fecS' ^aif^'T^CT the accused by the Police. Therefore, view of the above circumstances is deceased and Mahesh Ram were came and threatened, thereafter he Saj advised Mahesh Ram to cali lcall the Panchas. Even when Mahesh ijtting on the scene of occurrence, and he near the body of his wife and mshed The above conduct of the accused Is provisions of Section 8 of ths indian lat "the conduct of any person an of any proceeding, is relevant, if such by any fact in issue or relevant fact, : thereto". ^ccused Omprakash before the incident ihe deceased and Mahesh Ram, his share there will be bloodshed, and he injuries, vvhich were found on body of 1'idence can be caused by the weapon of of the accused. The conduct of the tiffence is that he did not allow his father and even he rushed towards his father 4rime in question was committed by the If^ppellant in his statement under Section the prosecution case and he has not subseauent instfence '^/ XI-HC-78 v3'c'q'-yrairt^,y-al'<i<ic, R!ril'<-iy>< ..<b....A.s.^^/^ 3iT^?T q^q; (lyijs|<ri) SII^STOT R'ii* cCT3II^»I*4i<b s^TiR^rfferan^^T 7 <ni<iFn<Ili iMn'i'»t'f^Q'<iuitci'< ^sri^TS-iI^CT stated anywhere that particularty w\ how that offence occurred. Therefore, in view of th< advanced by Mr. Parag Kotecha, crime in question v/as not witness) reliance cannot be placed on his question was committed within succession that there was no pos^ else. As has been mentioned abo\| and the conduct of the accused clinching that it can safely be in^ committed by the accused/ appell^ of circumstances brought on recoj that there is no possibility of irresistible conciusion, which evidence on record, is that the a4 question. There is no scope of involvement of any third person in f In yiew of the above facts, t| the accused/appeliant (AiR 2002 fien he was reslding at the same place above discussion, the arguments le|arned counsel for the appellant that the >^d by Mahesh Ram (PW-1), therefore, ^vidence, is of no value. The crime in juch a 'short time and in such quick iibility of committing crime by anybody \e, the previous conduct ofthe accused after commission of the crime is so (erred that the crime in question was ll^nt and not by anyone eise. The chain (d by the prosecution is so intemoven inrjocence of the accused and the on!y ca|i be drawn from the circumstantia! tcused was the auihor of the crime in tnnocence of the accused and that of llfie cnme. le decision cited by iearned counsel for pC 3208) on facts is of no help to the Now, coming to the que^i Kishanlal, in the first instance,^ wh^n to establish the crime against the out, merely on that basis, the prt Even otherwise, if we look into th^ has stated that when the accus^d tion of non-examination of Amila! & there is sufficient evidence on record ccused, even ifsome witnesses are ieft ssecution case cannot be thrown out. evidence of Mahesh Ram (PW-1), he threatened him he called Amilal & XI-HC-78 \j-ce) -qi^lrt^i, u>-rfl<(l<l<»,Rrtlfiy ,.&'.;.<l:^.^.^.. sn^sT tRcp (<yi^ci<g) 3II^?T<BlR'li<b asn3ii^?isb'4i<b wry{<<i41'i*iiirtTTt'to€t';Rii'(-di'( ^3[f^*I3li^OT Sorrla Kishanlal who were working neai)! Panchas. From this evidence, it were at the scene of occurrencsl question. Even in cross-examin^tion elicited that these two witnesses '4 every possibiiity that when Msjhesh Panchas, these persons might ha\ie we are of the considered opini] witnesses is not fatal to the prose^ In view of the foregoing opinion that the finding of the tria| by this Court, as the same is bas^d do not find any infirmity and ille^al Gourt. In the result, there is no be dismissed and it is hereby disr(iissed. Sd/- L.C.BHADOO Judge and thereafter, he !eft for calling the dannot bs inferred that Amiial & Kishanlat at the time of commission of crime in of this witness, nothing has been 'itnessed the crime in question. Thers is Ram left the scene for caliing left to their placs for work. Therefore, ibn that non-examination of these two itution. Idiscussion, we are of the considered Court does not require any interference on legal and admissible evidence. We ^ality in the finding arrived at by the friai sitbstance in this appea!, same is !iable to Sd/- V.K.Shrivastava Judge